Dechert Win for Saint-Gobain in Case Seeking Costs for Medical Monitoring

In a unanimous decision issued on March 21 by the Supreme Court of New Hampshire, Dechert LLP and McLane Middleton, P.A. won a decisive ruling for manufacturing company Saint-Gobain, on certified questions from the federal district court in New Hampshire regarding: (1) 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; and (2) If so, what the requirements and elements of a remedy or cause of action for such medical monitoring are, under New Hampshire law? Answering the first question in the negative, the court declined to address the second question.

The plaintiffs in the underlying case brought tort claims alleging that the defendant's manufacturing process used chemicals, including PFOA, which had left them at increased risk of developing illness, disease or disease process, requiring an award of the cost of a program for medical monitoring for detection. They argued that the need to incur these costs was a compensable injury under New Hampshire law, even absent present physical injury, because the exposure and increased risk itself created the present medical need for testing. 

Along with local firm McLane Middleton, P.A., Dechert successfully argued that, under black letter law, there can be no liability for negligence unless there exists a duty whose breach causes the injury for which the plaintiff seeks to recover, and that the New Hampshire court had never before affirmed liability under a negligence claim except upon proof of a physical injury and, thus, the essential predicate was lacking.

The court agreed, holding that the mere existence of an increased risk of future development of disease was 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 cause of action in the context of plaintiffs who were exposed to a toxic substance but have no present physical injury. The case was remanded.

Dechert litigation team members representing Saint Gobain included Sheila Birnbaum, Mark Cheffo, Bert Wolff, Rachel Passaretti-Wu, Douglas Fleming, Paul LaFata, Nathan Williams, Mike Fazio, Monica Gorny, David Weinraub and Marina Schwarz.

About Dechert

Dechert is a leading global law firm with 21 offices around the world. The firm advises on matters and transactions of the greatest complexity, bringing energy, creativity and efficient management of legal issues to deliver commercial and practical advice for clients.