No Tobacco Medical Monitoring in Oregon
Oregon's high court ruled unanimously yesterday that the mere possibility of injury is not enough to make a negligence claim against cigarette makers. Plaintiffs’ class action lawsuit on behalf of 400,000 Oregonians wanted medical monitoring for smokers to test for tobacco related disease.
It is difficult to argue with the court’s ruling in this case. While certainly the risk of disease from tobacco creates a greater risk for users, a mere threat of future harm probably should not be the basis for a claim in the tobacco cases. He or and court did not address this question, but I think it boils down to the question of whether the harm is expected to be imminent and how likely the harm is to occur. Certainly, you would think that the court would take a different posture in, for example, the Medtronic cases where the risk was more imminent.
But that explanation does not quite explain it because 400,000 people are dying a year from smoking and far less will die from Medtronic’s alleged negligence. I think a larger factor in the Oregon courts conclusion is that all of us believe on some level that smokers are also culpable by assuming the risks that they had incurred.
