Urging the Court to Defer to the Legislature on an Important But Unsettled Public Policy Issue Relating to Toxic Torts in New Hampshire
This case involves an issue of first impression in the form of a certified question from the U.S. District Court for New Hampshire. The plaintiffs’ drinking water was contaminated with a toxic chemical called perfluorooctanoic acid (PFOA), which is traceable to the defendant Saint-Gobain. The question asks the New Hampshire Supreme Court whether New Hampshire permits the plaintiffs, who are asymptomatic, to bring a claim for the costs of their being periodically medically monitored for symptoms of disease caused by exposure to PFOA.
The present case arises from a facility owned and operated by Saint-Gobain in Merrimack, New Hampshire. The plaintiffs allege that they drank either municipal water or private well water contaminated by PFOA that had been emitted by the facility. They claim that Saint-Gobain’s negligence has caused them to incur the medically necessary costs of being monitored for adverse effects of the PFOA they consumed in their drinking water. While none of them appears to suffer from any disease or disorder caused by the PFOA, some of them have elevated levels of the chemical in their blood.
Seventeen states grant medical monitoring as some form of relief. The major hurdle is the tort requirement that a plaintiff allege a present physical injury. Several states hold that the presence of toxins in the body counts as a physical injury if the levels are so greatly elevated that they create a significantly increased medical risk for which monitoring is necessary. In this view the cost of monitoring is pursued as direct tort damages. Other states allow it as consequentialdamages when an uncontroversial tort, such as private nuisance, is separately proven; no physical injury is then needed. Here the judge asks in which of these two ways, if either, plaintiffs would obtain medical monitoring in a New Hampshire.
In July of 2022, NELF filed an amicus brief in which we urged the Court to defer to the legislature on this issue. As the Court has acknowledged many times, the legislature has primary responsibility for declaring public policy. The Court declares public policy only when there is sufficient guidance from the legislature or when the Court is assured that the public’s mind is so clearly and firmly settled on an issue that there remains no substantial doubt about it. Here the Court’s deference to the legislature is amply warranted because neither of these two conditions exists concerning medical monitoring.
As we note, in the past few years the legislature has shown itself quite active on the subject of PFAS (PFOA belongs to a class of chemicals called per- and polyfluoroalkyl substances (PFAS)). In 2018, for example, the governor of New Hampshire signed a law regulating PFAS contamination of the public waters of the state. Later, in 2020, when maximum allowable levels of contamination were set by agency regulation, which was then challenged in court, the legislature intervened to moot the case by enacting the levels into statutory law.
Indeed, as NELF recalls 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 appeared. In 2021 a bill titled “An Act relative to treatment of PFAS contaminants in the drinking water of the Merrimack Village Water District” dealt with Saint-Gobain by name, and House Bill 368 once again proposed a statutory claim for medical monitoring, as did Senate Bill 111, but neither bill got out of committee.
Hence, the legislature is fully aware of the problems posed by PFAS; where it has been able to achieve a sufficient consensus, it has enacted laws enunciating public policy. Notably, however, though the legislature has considered medical monitoring, it has not achieved a sufficiently large, stable consensus among the members of both chambers to enact legislation recognizing claims for monitoring. NELF believes that the elected body, as the principal public policy maker, should be allowed whatever time it needs to fashion public policy on the issue before the Court in this case.
NELF concludes by discussing other state courts that have chosen to defer to the legislature on medical monitoring claims because they judged representative bodies to be better suited to the fact-finding and the balancing of humanitarian, environmental, and economic interests entailed by these novel legal claims.