In products and class action cases involving exposure to purportedly hazardous materials, plaintiffs often have trouble demonstrating concrete physical injuries, and in particular concrete physical injuries that would be common across a class.  To avoid dismissal and bolster class certification, those plaintiffs sometimes bring so-called “medical monitoring” claims, which seek recovery for the present-day costs of testing and other early detection procedures designed to mitigate injuries that might occur sometime in the future.

In Brown v. Saint-Gobain Performance Plastics Corp., 2023 WL 2577257 (N.H. Mar. 21, 2023), the Supreme Court of New Hampshire became the latest state to reject medical monitoring as a standalone cause of action, reaffirming the longstanding, common-sense principle that “possibility [of injury] is insufficient to impose any liability or give rise to a cause of action.”  The court also rejected the plaintiffs’ argument that present-day medical costs arising from increased risk of harm are in and of themselves a compensable injury, holding that “an increased risk of harm is not an injury for purposes of a negligence action.”  Put differently, even though a plaintiff might incur present-day costs, those costs are not recoverable absent an actual, present-day injury.

Although some states allow medical monitoring claims, a number have adopted the same prohibition announced in Saint-Gobain, including Alabama, Illinois, Kentucky, Michigan, Mississippi, New York, and Oregon.  The Supreme Court of New Hampshire’s decision is also notable for its recognition that medical monitoring claims have faced sharp legislative resistance, specifically citing the New Hampshire legislature’s failure to enact a statutory cause of action for medical monitoring in 2020.