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Amicus Win: NH Supreme Court to Reject Claims for Medical Monitoring Absent Present Physical Injury in Opinion Aligning with DRI Center Amicus Brief

  • Published March 21, 2023

The Supreme Court of New Hampshire has issued its opinion in Brown, et al. v. Saint-Gobain Performance Plastics, which is in alignment with the arguments presented in the amicus brief that was filed by The Center for Law and Public Policy at DRI. In a succinct opinion, the court agreed with the arguments presented by the defendants and held that New Hampshire does not recognize a claim for the costs of medical monitoring as a remedy or cause of action in the context of plaintiffs who are exposed to a toxic substance. The court briefing summarized the facts, noting that the plaintiffs brought multiple claims alleging that perfluorooctanoic acid (PFOA) was released into the air contaminating the wells and other drinking sources and purportedly increasing the risk of health problems. The court also summarized the arguments of the parties.

The court then pointed out that “our well-established precedents control the resolution of this issue.” In the court’s view, the possibility of an injury is not enough to impose liability of to give rise to a cause of action. Negligence accrues only when the plaintiff has suffered an injury. The court rejected the plaintiffs’ argument that an increased risk of injury sufficed, explaining that the plaintiffs’ argument that they have “a ‘present medical necessity’ for ‘diagnostic testing’ is based on the plaintiffs’ allegation that they are at an ‘increased risk’ that in the future they might possibly develop an illness or disease caused by exposure to PFOA.” The court agreed with the federal district court that this effectively conceded that they lack a present injury.

The court also rejected the plaintiffs’ argument that important public policy interests promoting early diagnosis and treatment supported the conclusion that the need to incur the cost of medical monitoring was a compensable injury. The court pointed to the defendants’ arguments that “legislative efforts to supersede the common law physical injury rule have been unsuccessful and that ‘abrogate[in] the well-settled requirement of a present physical injury has severe and adverse public policy consequences.’” The court agreed that the declaration of public policy is primarily a matter for legislative action. And the court pointed out that the New Hampshire Legislature had considered and adopted a bill to recognize medical monitoring, which was successfully vetoed. In the court’s view, “[t]his recent legislative action reflects the current public policy of this state.”

The court held that “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 in the context of plaintiffs who were exposed to a toxic substance but have no present physical injury.”

Mary Massaron, a former president of DRI and senior appellate shareholder with Plunkett Cooney, and DRI member Doreen F. Connor of Primmer Piper Eggleston & Cramer prepared and filed the brief on behalf of DRI and its co-amici, the Tri-State Defense Lawyers Association and the Washington Legal Foundation.

Read the Full Brief (PDF)

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