CONCORD, N.H. (Legal Newsline) - New Hampshire law doesn’t allow uninjured plaintiffs to collect money for medical monitoring just because they have been exposed to a chemical, the state’s highest court ruled on a question submitted by a federal court hearing lawsuits against manufacturer Saint-Gobain Performance Plastics.
While evidence a company polluted while recklessly ignoring the risk of danger to the community can be used to prove negligence, the New Hampshire Supreme Court ruled, plaintiffs must prove they were injured before they can seek a remedy in court.
The decision is a victory for manufacturers and insurance companies wrestling with billions of dollars in claims over PFAS, so-called “forever chemicals” because they persist in groundwater and human tissue for years. Some studies have linked exposure to chemicals in the PFAS family to a variety of cancers, high blood pressure in pregnant women and increased cholesterol and the Environmental Protection Agency recently proposed near-zero standards for PFOA in drinking water.
Plaintiffs living near a St. Gobain plant in Merrimack, N.H. sued the company claiming chemicals containing PFOA, a compound in the PFAS family, were released into groundwater and the air. They sued for the cost of medical monitoring, saying their exposure to PFOA “creates the present medical need for the testing.”
Defendants, supported by the U.S. Chamber of Commerce and other business organizations, said black-letter law prevents plaintiffs from suing unless they have an injury. They cited a 1997 U.S. Supreme Court decision, Metro-North Commuter Railroad v. Buckley, which ruled that plaintiffs must be injured or courts would be inundated with claims covering “tens of millions of individual.” A number of state supreme courts including in New York, Oregon and Alabama have also rejected medical monitoring claims.
In its March 21 opinion, the New Hampshire Supreme Court agreed. By suing for money to pay for diagnostic testing, the court ruled, “the plaintiffs effectively conceded that they do not, at present have an injury.”
“An increased risk of harm is not an injury for purposes of a negligence action,” the court ruled.
New Hampshire legislators passed a bill in 2020 that would have created a statutory right to sue for medical monitoring without proof of injury. But Gov. Christopher Sununu vetoed it in 2020, saying it was “too broad and lacks necessary clarity.” New Hampshire sued 3M in 2019 over PFAS contamination and has since enacted some of the strictest PFAS standards in the country.
3M started producing PFAS in the 1940s for a wide variety of products firefighting foam and Teflon nonstick cookware. After 3M ceased making the chemicals in 1999, DuPont took over as a leading manufacturer. Both companies face thousands of lawsuits, mainly by residents near sites where it leached into groundwater.
DuPont settled an early case in 2004 on terms that included funding a study of some 69,000 residents in West Virginia to uncover effects of PFAS. That study found statistical association with six diseases including testicular and kidney cancer, ulcerative colitis, thyroid disease and high cholesterol.
The federal government recently issued a proposed maximum contaminant level for some chemicals in the PFAS family, though some feel action is premature without better research into their exact health effects on the human body.