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 partner in the firm’s Washington, DC office, where he represents a variety of clients in their most sensitive, complex, and high-stakes litigation matters in both state and federal court. He regularly defends life sciences clients and other regulated entities…

Steve Petkis is a partner in the firm’s Washington, DC office, where he represents a variety of clients in their most sensitive, complex, and high-stakes litigation matters in both state and federal court. He regularly defends life sciences clients and other regulated entities against class action and mass tort claims that span jurisdictions.

Steve handles cases from pre-litigation planning through appeal, with a proven record of delivering victories at all stages. He was a member of the trial team that secured a complete defense win for McKesson in a landmark public nuisance case involving prescription opioid medications. In addition, his briefing strategies, fact and expert depositions, and courtroom stand-up have helped steer a number of other clients to highly-favorable resolutions that eliminate billions of dollars in potential exposure.

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 serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.