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District of New Hampshire Declines to Dismiss PFA-Related Property Damage Claims; Undecided on Medical Monitoring Damages

A putative class of plaintiffs who allege to have lived in a defined geographic area around a manufacturing plant in Merrimack, New Hampshire, or have been served by the town’s municipal water supply, sued the manufacturer in federal court, alleging property damage claims and exposure to perfluorooctanoate (AFPO) and perfluorooctanoic acid (PFOA) that warrants medical monitoring.  Brown v. Saint-Gobain Performance Plastics Corp. et al., No. 16-cv-242, 2017 WL 6043956 (D.N.H. Dec. 6, 2017).  The plaintiffs’ claims were styled as common law claims for negligence, trespass, nuisance, and negligent failure to warn, as well as an equitable claim for “negative unjust enrichment” on the theory that the manufacturer was unjustly enriched by avoiding costs associated with preventing the release of contaminants.  The Court dismissed the unjust enrichment count but allowed the remaining claims to proceed.

The defendant manufacturer’s motion to dismiss primarily targeted the plaintiffs’ damages claims.  First, it argued that the allegations of property damage were nebulous and not concrete.  Indeed, the plaintiffs alleged generally that PFOA particles contaminated the air, soil, dust, trees, groundwater, and household water systems and supply wells on the plaintiffs’ properties, but appear not to have made specific claims regarding the contamination identified at any plaintiff’s property.  Ultimately, the court held that the complaint sufficiently pleaded diminution in property value damages to allow the common law tort claims to proceed.  The court did not reach defendants’ argument that New Hampshire’s broad economic loss doctrine prevented recovery of any consequential economic damages beyond diminution. 

Second, the defendants’ motion argued that the plaintiffs’ alleged need for medical monitoring was not a cognizable injury under New Hampshire law, as the need for future testing to evaluate whether an injury has occurred is not equivalent to a present injury.  In evaluating this argument, the court compared states that have recognized medical monitoring as a form of damages (West Virginia, Maryland, Missouri, California, New Jersey, and New York) against those that have not (Michigan, Oregon) but declined to assume New Hampshire’s likely position.  The court denied the defendants’ motion on this issue without prejudice, suggesting that it may be an appropriate issue for certification to the state’s Supreme Court.

Next, addressing certain claims individually, the court found that the plaintiffs properly pleaded trespass, even though the tort requires intent and the plaintiffs also alleged that the defendants negligently allowed contamination to escape from the plant.  Similarly, the court allowed plaintiffs’ claim for negligent failure to warn to proceed but acknowledged that the claim may not be distinguishable from the separate claim for ordinary negligence because the plaintiffs had not pleaded a special relationship with the defendants that would give rise to a heightened duty. 

Finally, the court dismissed the claim for negative unjust enrichment.  The plaintiffs argued that the defendants were unjustly enriched by savings, “that is, money not spent,” that theoretically would have been spent to prevent the release of contaminants.  The court noted that this type of claim has been recognized in at least one jurisdiction, but held that New Hampshire does not recognize such a claim, particularly outside the scope of a contractual relationship.

In sum, the court’s decision was a mixed bag for the parties.  It trimmed the plaintiffs’ most adventurous claim, and raised question regarding whether medical monitoring damages would be recognized under New Hampshire law.  On the other hand, it green-lighted all of the plaintiffs’ common law claims, permitting the putative class to proceed to its next hurdle – likely the class certification stage – with a large geographic swath of potential property damage plaintiffs.