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.