Oregon Class-Action Lawsuit against "Big Tobacco" Struck Down

For every step that is taken forward in the name of consumer empowerment in the justice system, it seems as if two steps are being taken backward.

The Oregon Supreme Court has decided a ruling that can only be seen as a victory for Big Tobacco, limiting as it is to potential members of class actions suits and those suing for personal injuries that have resulted from use of tobacco products.

The court struck down a potential class-action lawsuit seeking medical monitoring costs for smokers who had yet to experience adverse effects of the tobacco products they had used. Instead, the court ruled that smokers must demonstrate that they have experienced actual harm in order to make a claim of negligence, that merely claiming the possibility exists that they will be harmed is not enough.

The lawsuit was brought on behalf of around 400,000 citizens of the state of Oregon, and alleged that the five tobacco companies named in the suit, including Philip Morris and R.J. Reynolds, knew that their cigarettes contained "toxic and hazardous substances likely to cause lung cancer."

However, the court decided that their "likelihood" was not enough to continue with the case. It's a legitimate issue to take with the lawsuit, naturally, since proof of injury is typically an integral part of the tort process. In explicit terms, the decision stated that "a threat of future physical harm is not sufficient" grounds for a claim in Oregon.

However, in this special case, lawyers representing Patricia Lowe, who filed the class-action suit, are not so sure that historical views of what constitutes grounds for a lawsuit according to common law are applicable. New technology has afforded us the chance to gain inroads to cancer and other deadly diseases, but only if they are caught and treated early.

Like many toxic substances and other hazardous products, tobacco products can cause irreparable damage if the exposure is not halted and corrective action not taken. In many cases, even treatment can be ineffective, because it's just too late.

One of Lowe's lawyers saw a potential for this line of reasoning to be effective, regretting that the court ruling shows that "the law is trailing behind science," according to an article on Law.com.

A concurring opinion by Oregon Justice Martha Lee Walters was sympathetic to the idea the law could change when science has advanced to the state where the effects of a cancerous lesion could be determined beforehand-and medical experts suggest that such technology is not that far off.

Her lawyers also bitterly noted the irony that this was the same court that upheld an $80 million punitive damages award against Philip Morris in the face of a U.S. Supreme Court ruling against the verdict.

Regardless, the idea of paying for monitoring is not a stretch-similar instances have taken place in other fields. When companies or state or local governments allow a breach of customer or citizen data, they typically pay for credit monitoring services for a set period of time in order to help prevent adverse effects in their negligence.

While the stakes may be much higher when it comes to healthcare and potential onset of cancer, it's not a bad idea to transfer this model effectively. However, it will have to wait in this instance.