Petition of Textiles Coated Incorporated d/b/a Textiles Coated International

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0224, Petition of Textiles Coated
Incorporated d/b/a Textiles Coated International, the court on
March 21, 2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2).

The petitioner filed a petition for original jurisdiction from orders of the
Superior Court (Brown, J.) ruling that plaintiffs who allege exposure to
perfluorooctanoic acid (PFOA) but do not allege a present physical injury can
pursue claims for medical monitoring, and denying the petitioner’s motion for
an interlocutory appeal. The petitioner requested that we exercise our original
jurisdiction “to simultaneously answer the significant common questions of
law” that have arisen in this case and in Brown v. Saint-Gobain Performance
Plastics Corporation, 175 N.H. ___ (decided March 21, 2023). In Brown, the
United States District Court for the District of New Hampshire certified two
questions for our consideration. Brown, 175 N.H. at ___ (slip op. at 3). The
first question asked 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. Id. Depending on the answer
to the first question, the second question asked, “what are the requirements
and elements of a remedy or cause of action for medical monitoring” under New
Hampshire law. Id.

We determined that, in accordance with New Hampshire law, the mere
existence of an increased risk of future development of disease is not sufficient
for purposes of stating 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 but have no present physical injury. Id. at ___ (slip op. at 5).
Accordingly, we reverse the trial court’s order on that issue and remand for
further proceedings consistent with Brown.

Reversed and remanded.

MACDONALD, C.J., and HICKS and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk