New Hampshire Supreme Court Finds Medical Monitoring Costs Are Insufficient to Allow Negligence Cause of Action
05.08.23
As more companies face litigation for their use of perfluorooctanoic acid (PFOA) and per- and polyfluoroalkyl substances (PFAS) as well as the harmful health conditions that exposure to these chemicals brings about, one issue has emerged concerning whether medical monitoring costs form the basis of a valid cause of action for negligence.
If an individual who was exposed to PFOA seeks medical treatment to detect early signs of health problems related to that exposure, there is an open question of whether they can then seek to recover those medical costs against the party responsible for the exposure, even before there is a present physical injury. Do the medical costs incurred (referred to as “medical monitoring costs”) form a sufficient basis for a negligence claim, absent any present physical injury? This is the question that the Supreme Court of New Hampshire recently addressed in Kevin Brown, et al. v. Saint-Gobain Performance Plastics Corporation, 2023 WL 2577257 (N.H. Mar. 21, 2023).
Case Background
The plaintiffs in Brown, who were individuals that lived in the Merrimack, New Hampshire area, brought claims against Saint-Gobain Performance Plastics Corporation and other defendants (“Defendants”). The Plaintiffs claimed that the Defendants used chemicals that included perfluorooctanoic acid (PFOA) in their manufacturing processes, resulting in the contamination of the air, ground, and water in Merrimack and nearby towns. This contamination then allegedly exposed the Plaintiffs to PFOA, thereby increasing their risk of testicular cancer, kidney cancer, immunotoxicity, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy induced hypertension, among other health problems.
Based on these allegations, the Plaintiffs brought several tort claims against the Defendants including negligence, nuisance, trespass, and negligent failure to warn.
The Plaintiffs essentially posed the question of whether they may pursue a cause of action of negligence against the Defendants before receiving an official diagnosis of any of the aforementioned health conditions, or before suffering symptoms of the conditions.
From an insurance coverage perspective, the Plaintiffs’ allegations stood to potentially expand an insurer’s coverage obligations. If the court were to find that there is the basis for a negligence lawsuit before a diagnosis, this would allow a far greater number of individuals to file suit against companies such as Saint-Gobain and the Defendants, ultimately increasing the number of claims that insurers might be responsible for defending against. Though the potential individual harm from exposure to PFOA and PFAS could certainly be life altering, the implications of allowing litigation to move forward when there is no physical injury would greatly impact the way that negligence due to environmental pollution would be addressed under New Hampshire law.
Argument
The case was heard before the United States District Court for the District of New Hampshire, which certified two questions to be answered by the New Hampshire Supreme Court:
- Whether New Hampshire recognizes “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 (even when there was no present physical injury); and
- Depending on the answer to the first question, a consideration of the requirements and elements of a remedy or cause of action for medical monitoring.
With respect to the first question, the Plaintiffs argued that even if there was not yet a showing of physical injury, the medical monitoring costs incurred when trying to detect illness or disease is still a compensable injury under New Hampshire law. The Plaintiffs contended that New Hampshire tort law is based on a plaintiff’s “right to recover for another’s invasion of a legally protected interest.” In this case, since there was an increased risk of illness or disease that was allegedly caused by the Defendants’ use of PFOA in their manufacturing processes, the Defendants created the need for medical monitoring that ultimately cost the Plaintiffs. Therefore, the Plaintiffs argued that medical monitoring costs should form the basis of a remedy in court. The Plaintiffs also pointed to decisions from other jurisdictions that permitted claims for medical monitoring costs under similar circumstances, as well as the public interest in promoting early diagnosis and treatment.
Conversely, the Defendants argued that there must be a present physical injury for there to be a chance of recovery under negligence—not simply the costs of detecting an injury, as the Plaintiffs argued. The Defendants relied on very traditional notions of New Hampshire tort law, stating that “black letter law [states] that there can be no liability for negligence unless there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover.” Id. at *1. Since the Plaintiffs did not allege an actual physical injury from the Defendants’ alleged acts that caused PFOA exposure, the Defendants argued that the Plaintiffs lacked a fundamental element of a cause of action of negligence.
Ruling & Takeaway
The Supreme Court of New Hampshire agreed with the Defendants, finding that New Hampshire does not recognize a claim for medical monitoring costs as a remedy or as a cause of action. The court explained that a mere increased risk of future development of a disease does not constitute an injury that would entitle a plaintiff to state a claim for medical monitoring costs under New Hampshire law. If the court were to find that there was a cause of action based on medical costs for an increased risk of harm, this would blur the line between an allegation of an injury and an actual claim for damages.
Given the finding that there was not a basis for a remedy or a cause of action in medical monitoring costs, the court noted there was no need to address the second question regarding the elements for such a cause of action. In issuing this ruling, the court demonstrated that it will still value the traditional theory of negligence, which requires a showing of actual physical injury and damages.
If you have any questions about this case or what it means for future claims of coverage under your insurance policies, please contact a member of our Insurance Coverage group.
