Hermens v. Textiles Coated Inc.

• Docket Number: 2024-0189
• Decision Date: 30 May 2025
• Citation: Hermens v. Textiles Coated Inc., 2024-0189 (N.H. May 30, 2025)
• Parties: John Hermens & a. v. Textiles Coated Incorporated d/b/a Textiles Coated International,
• Court: New Hampshire Supreme Court

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John Hermens & a. v. Textiles Coated Incorporated d/b/a Textiles Coated International,

No. 2024-0189

Supreme Court of New Hampshire

May 30, 2025

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order.SeeSup. Ct. R. 20(3).The Superior Court(Messer, J.) has transferred one interlocutory appeal question asking whether the final resolution of a class action lawsuit seeking medical monitoring damages brought by the plaintiffs, John Hermens and Brenda Hermens against the defendant, Textiles Coated Incorporated d/b/a Textiles Coated International (TCI), bars this lawsuit seeking property damages.SeeSup. Ct. R. 8(1).We answer the question in the negative.

I.Background

We accept the statement of the facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary.On July 21, 2017, the plaintiffs simultaneously filed two suits against TCI: a Class Action Complaint for Medical Monitoring (medical monitoring case) and a Class Action Complaint for Damage to Property Interests (property interest case).Each complaint alleged that TCI used products containing ammonium perfluorooctanoate (APFO) at its manufacturing facility in Amherst which led to the emission of perfluorooctanoic acid (PFOA) that contaminated household water in the plaintiffs' private well.Each complaint alleged trespass, nuisance, negligence, and negligent failure to warn.

The medical monitoring complaint alleged that, as a result of having been exposed to toxic substances "in the air groundwater and soil, and household water," the "Plaintiffs and Class Members have been exposed to toxic substances and suffered a significant increased risk of illness, disease or disease process as a result of that exposure."The plaintiffs sought the cost of a medical monitoring program aimed at detecting disease caused by the alleged exposure to PFOA.The property interest complaint alleged that due to TCI's conduct "and the resulting contamination, the value and marketability of the property and property rights of the Plaintiffs and members of the Class have been and will continue to be diminished."The plaintiffs sought damages for the cost of remediation and mitigation, as well as for annoyance and discomfort, loss of use and enjoyment, and diminution in property value.

In October 2017, TCI moved to dismiss the medical monitoring case for failure to state a claim upon which relief could be granted.TCI argued that, because the plaintiffs did not allege that they presently suffer from "illness or any adverse symptom or reaction,"they cannot sue in New Hampshire for tort in the absence of an injury.In March 2018, the Superior Court(Brown, J.) denied TCI's motion, finding persuasive cases from other jurisdictions that allow claims for medical monitoring without the existence of present physical harm.The court subsequently denied TCI's motion for an interlocutory appeal of its ruling.

At a hearing in July 2018, the trial court agreed to consolidate the two cases for discovery purposes but noted that, if the "issue of joinder" became "ripe at some point," either party could make a motion to bifurcatethe cases.In 2019, following a consolidated hearing, the Superior Court(Brown, J.) granted class certification for both cases, with different class definitions for each.SeeSuper. Ct.R. 16.The class definition for the medical monitoring case included:

All person[s] who have occupied residential properties in the Town of Amherst with private wells within three-fourths mile of the TCI Site, and those properties to the North along and within the area of Boston Post Road on the west, Cross Road through its easternmost intersection with Windsor Drive, and Waterview Drive, and who

[1] were born to mothers who consumed household water containing 20 parts per trillion ("ppt") or higher of the sum of PFOA and PFOS for a cumulative time period of one year or more before that child's birth, or

[2] during the period from birth up to their 20th birthday for a cumulative time period of one year or more, consumed household water containing 20 ppt or higher of the sum of PFOA and PFOS and/or were breast fed by mothers who consumed household water containing 20 ppt or higher of the sum of PFOA and PFOS for a cumulative time period of one year or more before that person's birth, or

[3] consumed household water containing 70 ppt or higher of the sum of PFOA and PFOS during the period from their 20th birthday and after for a cumulative time period of one year or more.

The class definition for the property interest case included:

All person[s] who own residential properties in the Town of Amherst, New Hampshire with private groundwater well within three-fourths mile of the TCI Site, and those properties to the North along and within the area of Boston Post Road on the west, Cross Road through its easternmost intersection with Windsor Drive, and Waterview Drive.

In April 2022, the trial court approved the plaintiffs' proposed deadlines in the consolidated cases, including April 2022 for completion of remaining discovery, May 2022 for challenges to expert testimony, July 2022 for replies to objections to expert testimony and for pretrial motions witness and exhibit lists, and pretrial statements, and August 2022 for the trial management conference.On April 26 2022, the trial court issued a Notice of Jury Trial for the consolidated cases, ordering a trial management conference on August 25, jury selection on September 8, and trial beginning on September 12.

On April 25, TCI filed a petition for original jurisdiction in this court from the trial court's 2018 ruling that plaintiffs who allege exposure to PFOA but do not allege a present physical injury can pursue claims for medical monitoring, and from its denial of TCI's motion for an interlocutory appeal.See Sup. Ct. R, 11.In support, TCI explained that we had accepted an interlocutory transfer of certified questions in a separate case from the United States District Court for the District of New Hampshire asking whether New Hampshire recognizes a claim for the costs of medical monitoring as a remedy or as a cause of action in the context of plaintiffs who were tortiously exposed to a toxic substance.Accepting its petition, TCI argued, would "allow this Court to simultaneously answer the significant common questions of law that have arisen in two separate lawsuits pending in both state and federal court."On June 23, we accepted TCI's petition.

In September, one week before the scheduled trial, the parties jointly moved to stay the property interest case because "a determination of liability [in the property interest case] will not necessarily resolve all liability questions in the Medical Monitoring Case."The parties agreed that "for the efficiency of judicial resolution there should be a stay of the [property interest case] until the appeal of the Medical Monitoring Case is concluded."The trial court granted the motion.

On March 21, 2023, in answering the certified questions from the federal court, we determined that New Hampshire does not recognize a claim for the costs of medical monitoring as a remedy or as a cause of action in the context of plaintiffs who were exposed to a toxic substance but have no present physical injury.SeeBrown v. Saint-Gobain Performance Plastics Corp,, 175 N.H. 641, 645(2023).Based on our decision in Brown, we issued an order reversing the superior court's denial of TCI's motion to dismiss the medical monitoring class action for failure to state a claim, and remanding for further proceedings.Petition of Textiles Coated Incorporated d/b/a Textiles Coated InternationalNo. 2022-0224(non-precedential order at 1)...