Brown et al. v. Saint-Gobain Performance Plastics Corp., New Hampshire Supreme Court, No. 2022-0132

Agreeing with NELF, the New Hampshire Supreme Court Deferred to the Legislature on a Novel Toxic Tort Theory

Brown et al. v. Saint-Gobain Performance Plastics Corp., New Hampshire Supreme Court, No. 2022-0132

The case arose out of the operation of a facility owned and operated by Saint-Gobain in Merrimack, New Hampshire.  The plaintiffs alleged that they drank water contaminated by perfluorooctanoic acid (PFOA) that had been emitted by the facility.  They alleged that Saint-Gobain’s negligence caused them to incur the medically necessary cost of being monitored for possible future adverse effects of the PFOA.  While the PFOA had not caused them any injury cognizable under traditional tort, some had elevated levels of it in their blood.  They asked the Court to recognize their right to recover from company all costs relating to their being monitoring.

NELF filed an amicus brief in which we urged the Court to defer to the legislature on this novel legal issue.  As that Court has acknowledged many times, the legislature has primary responsibility for declaring public policy in New Hampshire.  The Court will declare public policy only when there has been sufficient guidance from the legislature or when the Court is entirely confident that there exists no substantial doubt about that particular policy.  Here neither of those two conditions existed.

NELF noted that in the past few years the legislature has shown itself quite active on the subject of PFOA and related chemicals.  In 2018, the governor signed a law regulating public waters contaminated by those chemicals.  Later, in 2020, when a state agency set maximum allowable levels of contamination and its regulation was challenged in court, the legislature intervened to moot the case by enacting those levels into statutory law.

Indeed, NELF recalled to the Court, in 2020 the legislature passed House Bill 1375, which would have established a statutory cause of action for medical monitoring for all toxic substances.  The governor vetoed the law, however, declaring himself open to a “more tailored” approach, but none emerged from the legislature.  In 2021 a bill specifically naming Saint-Gobain dealt with contamination of the Merrimack Village Water District, while House Bill 368 once again proposed a statutory claim for medical monitoring, as did Senate Bill 111, but neither got out of committee.

Hence, the legislature was fully aware of the general problem and had acted on it but only in part.  Notably, though the legislature had considered medical monitoring, it had not achieved a sufficiently large, stable consensus among its members to enact legislation.  NELF urged on the Court the view that the elected body, as the principal public policy maker for the state, should be allowed whatever time it needs to fashion policy on the novel issue put before the Court in this case.

In its March 2023 decision the Court deferred to the legislature and rejected the plaintiffs’ claims.  The Court emphasized the novelty of their claims under existing state tort law and, like NELF, noted that “recent legislative action reflects the current public policy of this state.”


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