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.

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Photo of Steve Petkis Steve Petkis

Steve Petkis is a litigation associate in the firm’s Washington, DC office. He has experience defending a variety of clients in their most sensitive and complex litigation matters in both state and federal court.

Steve is skilled in all phases of litigation, including…

Steve Petkis is a litigation associate in the firm’s Washington, DC office. He has experience defending a variety of clients in their most sensitive and complex litigation matters in both state and federal court.

Steve is skilled in all phases of litigation, including discovery, trial, and appeal. In particular, he has played a lead role in crafting and executing dispositive, expert, and evidentiary briefing strategies, resulting in key victories at all stages. As a member of multiple trial teams, Steve also has stand-up court experience and has been responsible for taking and defending fact and expert depositions, drafting key witness examinations, and developing post-trial findings of fact and conclusions of law.

Steve previously served as a law clerk to Judge Katherine B. Forrest on the United States District Court for the Southern District of New York. He maintains an active pro bono practice focused on civil rights and criminal justice issues.

Photo of Emily Ullman Emily Ullman

Emily Ullman has a complex civil litigation practice focusing on products liability and mass torts work, primarily representing members of the life sciences industry and consumer goods manufacturers and suppliers across federal and state courts. In addition, she counsels companies facing transactions, regulatory…

Emily Ullman has a complex civil litigation practice focusing on products liability and mass torts work, primarily representing members of the life sciences industry and consumer goods manufacturers and suppliers across federal and state courts. In addition, she counsels companies facing transactions, regulatory interactions, or strategic decisions that expose them to tort risk.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.