NH Supreme Court arguments in Saint-Gobain’s PFAS lawsuit

The New Hampshire Supreme Court on Tuesday heard hearings in a lengthy case focused on contamination from PFAS chemicals emitted by manufacturing company Saint-Gobain.

PFAS are a group of man-made chemicals used by Saint-Gobain and other companies to make fire and chemical resistant fabrics, among other things. The company has provided alternative drinking water to parts of New Hampshire whose water supply has been contaminated.

The case is a proposed class action lawsuit for residents exposed to PFAS contamination near Saint-Gobain’s Merrimack facility. Among other things, local residents who say they have been exposed to toxic chemicals that have contaminated their water are hoping the company pays for medical surveillance for diseases linked to PFAS exposure, such as certain cancers.

The case has been pending in the New Hampshire District Court since 2016. However, courts in the United States are divided on the issue of medical surveillance, so the New Hampshire Supreme Court is being asked to consider whether the state recognizes medical surveillance claims as a cure for people who have been exposed to toxic substances.

They were also asked to indicate whether these individuals would need to show they had a current injury from the toxins, or if they could have medical monitoring without a current injury.

Kevin Hannon, an advocate for residents exposed to the contamination, argued it was unfair for individuals or their insurance providers to have to pay for the company’s negligence. He said medical monitoring could help.

“Early diagnosis improves treatment prospects, prolongs life, minimizes pain and disability, and mitigates the harm of toxic exposure,” he said. “Mitigation is something the law encourages.”

In a brief filed before the hearing, plaintiffs’ attorneys also argued that exposure to toxins and increased risk of disease requiring medically necessary testing is itself an injury eligible for compensation.

The attorneys are comparing allowing residents to be reimbursed for medical testing for diseases related to PFAS exposure to allowing a car accident victim to be reimbursed for an X-ray.

Bruce Felmly, an attorney for Saint-Gobain, argued that allowing medical surveillance claims without a present assault would derogate from 200 years of New Hampshire common law.

“It’s a dramatic change,” he said. “To say that you don’t have to prove any physical manifestation of that exposure.”

When a judge asked how Saint-Gobain’s situation differed from a person in a car accident, Felmly said the presence of cuts and bruises in the latter case indicated a recent injury.

Felmly also argued that the medical surveillance would cost the company a lot of money and create more work for the New Hampshire courts. He also said few people would benefit from the long-term tests.

“This is the poster child for a medical surveillance case that is unfeasible, impractical, incompatible with New Hampshire law and incredibly expensive – for what? To deliver another case every few decades,” he said.

Andrea Amico, a longtime advocate for New Hampshire communities exposed to PFAS contamination and founder of Testing for Pease, participated in the hearings. She said she is glad the matter is before the state Supreme Court.

“I think responsible polluters should take responsibility for contaminating communities without their consent,” she told NHPR. “Unfortunately, they didn’t.”