Last Friday, the NAM filed an amicus brief urging the New Hampshire Supreme Court to reject medical monitoring as a remedy or cause of action absent present physical injury. The plaintiffs in this putative class action, are seeking damages in the form of costs to cover monitoring for potential medical conditions arising from their alleged exposure to PFOA, even though they are not presently physically injured. The case is before New Hampshire’s high court following a federal district court’s certification of a critical, undecided issue under New Hampshire law: whether and under what terms the state authorizes recovery of medical monitoring.
As the NAM’s brief explains, medical monitoring cases brought by asymptomatic plaintiffs trample the long-established present injury requirement—a basic tenet of recovery in tort for more than 200 years—by permitting recovery based on the mere possibility of a future injury. Moreover, a medical monitoring system involves myriad complex scientific, medical, economic, and policy-laden questions that courts are ill-equipped to decide. The U.S. Supreme Court and numerous state high courts have thus recognized the inherent and intractable problems with allowing a medical monitoring remedy for the unimpaired and with court-created medical monitoring programs. Most jurisdictions have likewise rejected medical monitoring as an independent cause of action. Adoption of a medical monitoring cause of action or remedy in New Hampshire would radically alter tort law in the state and subject manufacturers to unpredictable and potentially unbounded liability.
Happily, on March 21, 2023, the New Hampshire Supreme Court rejected medical monitoring as a remedy or cause of action absent a present injury.