Holding that New Hampshire does not recognize medical monitoring claims for the mere exposure to a toxic substance, New Hampshire’s Supreme Court ruled in favor of a plastics manufacturing plant alleged to have released perfluoroalkyl substances (PFAS) into the surrounding environment in Brown v. Saint-Gobain Performance Plastics. This 2016 class-action lawsuit was filed by a group of Merrimack-areas residents who alleged they were exposed to toxic chemicals from Saint-Gobain’s plant and suffered “a significant increased risk of illness.”

Nevertheless, answering a certified question, the court ruled state law does not allow for medical monitoring claims for plaintiffs who have not yet suffered any physical injury from exposure. Specifically, the court held, “the mere existence of an increased risk of future development of disease is not sufficient under New Hampshire law to constitute a legal injury for purposes of stating a claim for the costs of medical monitoring as a remedy or as a cause of action.” The court further reasoned the alleged need for medical monitoring was actually “a claim for damages” and not an injury.

In doing so, New Hampshire joined 34 other jurisdictions which require an actual physical injury and not just an increased risk of harm or expense of diagnostic testing to trigger a claim for medical monitoring. This ruling is particularly significant in the context of emerging PFAS litigation, as numerous PFAS class actions across the country allege only economic damages under a “price premium” theory that consumers would have paid less or not purchased certain products had labelling/advertising conveyed the presence of PFAS. Under a Brown analysis, such deceptive advertising claims could not support an additional claim for medical monitoring.

Harris Beach’s experienced New York PFAS attorneys are monitoring all developments in this arena. If you have any questions about the matters in this Legal Alert, please contact attorney Gene Kelly at 518-701-2740 and gkelly@harrisbeach.com, attorney Kelly Jones Howell at 212-912-3652 and khowell@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

To read more about PFAS:

New York’s PFAS Food Packaging Law and Four Risk Mitigation Steps for Businesses

EPA Releases Crucial PFAS Drinking Water Rule; Implications for Water Treatment Facilities

Modernization of Cosmetics Regulation Act of 2022 Signals New Era of FDA Oversight

Airlines Trade Association Requests EPA Withdrawal of Proposal to Designate PFOA/PFOS as CERCLA Hazardous Substances

EPA’s Latest PFAS Guidance Signals Source-based Permitting and Monitoring Strategy

EPA Proposes Rule to Enhance PFAS Reporting Data

PFAS: Navigating a New Frontier in Environmental Regulation

As PFAS Litigation Swells, More Companies Must Consider Strategies for Class Defense; U.S. EPA Issues Health Advisory for PFAS