The New Hampshire Supreme Court became the latest state high court to reject a tort claim for medical monitoring in the absence of a present physical injury, according to a legal opinion letter written by Shook Public Policy Practice Group Co-Chair Mark Behrens and Senior Counsel Christopher Appel.
Behrens and Appel co-authored a legal opinion letter for the Washington Legal Foundation titled “New Hampshire Supreme Court Rejects Medical Monitoring,” which discussed the high court’s ruling in Brown v. Saint-Gobain Performance Plastics Corp.
Brown was a putative class action by individuals allegedly exposed to perfluorooctanoic acid (PFOA) in contaminated water and soil near a manufacturing facility, Behrens and Appel said. The claimants sought funds to monitor for the development of a range of potential health issues. The New Hampshire Supreme Court ruled that a right of action accrues only when a plaintiff has suffered an injury, and that an increased risk of harm is not an injury. The court also rejected the claimants' public policy arguments.
“With Brown, the New Hampshire Supreme Court joins a growing list of state high courts that have rejected adopting a cause of action for medical monitoring for claimants with no present injury,” Behrens and Appel said. “The courts appreciate that awarding medical monitoring to the non-sick raises serious public policy concerns, including the potential for unlimited and unpredictable liability and for unimpaired claimants to exhaust resources that may be needed to compensate sick claimants in the future.”