Bill to force chemical companies to pay for medical monitoring hits GOP resistance

  • FILE - In this Friday Jan. 7, 2011, file photo, water flows from a water fountain at the Boys and Girls Club in Concord, N.H. The New Hampshire Senate gave preliminary approval Thursday, Feb. 13, 2020, to several bills meant to address concerns about contamination in the state's drinking water from a class of toxic chemicals known collectively as PFAS. (AP Photo/Jim Cole, File) Jim Cole

Monitor staff
Published: 6/28/2020 5:15:14 PM

New Hampshire lawmakers are seeking new assistance for plaintiffs in toxic chemical lawsuits, pushing a bill that would help force companies to pay for medical tests for those who have ingested toxins.

A late amendment to a Senate bill this week would create a new statutory scheme for “medical monitoring” – a type of relief in which negligent companies must pay for the tests of those who have been exposed to harmful substances.

The law would not require that kind of relief, which would be given at a court’s discretion. And nothing in New Hampshire law is stopping a court from mandating that relief now, without a new law.

But providing a statutory process for the relief could dramatically increase the chances that plaintiffs are successful, lawyers on both sides say.

Advocates say that the proposed legal change could be a boon to New Hampshire families affected by the state’s perfluoroalkyl substances (PFAS) crisis.

Those chemicals, which have been found in water sources in Plymouth as well as areas of the Seacoast, have been linked to cancer, organ failure, and other conditions. But the full health side effects are not fully known, and those who have ingested PFAS require medical monitoring to catch potential ailments like cancer early on.

New Hampshire has the highest rate of childhood cancer in the nation, according to a Centers for Disease Control and Prevention report in 2018, largely owing to a “cancer cluster” in the southeast.

Under New Hampshire’s common law – the court-driven precedent that does not require a statute – plaintiffs already have the ability to seek medical monitoring relief. But the bill would standardize the approach.

In order to get the relief through the proposed law, a court must find that a company negligently caused the plaintiff to be exposed to chemicals, and that those chemicals have led to “an increased risk of illness, disease, or latent disease.”

The plaintiff does not need to prove that they have symptoms of that disease – just that they are at risk of developing them.

If the lawsuit is successful, the court can order the negligent company to cover the costs of “reasonably necessary periodic examinations.” But the relief is limited to those plaintiffs who sue within three years of discovering the exposure.

The effort received bipartisan support in the House, after being drafted with Democratic and Republican support and passing the House floor and key committees with near-unanimity. But it crashed into opposition in the state Senate Wednesday, after Republicans said the legislation was too far-reaching and should have been centered on PFAS cases, not all toxic chemical cases.

“If you want to talk about targeting areas that have been identified as having PFAS issues I can support that,” said Sen. Sharon Carson, a Londonderry Republican. “But this is ... too broad. It’s just way, way too broad.”

One industry lobbyist objected to the breadth of the potential claims. Gregory Smith, a partner at McClane Middleton representing Waste Management of New Hampshire, requested an amendment to require that plaintiff’s prove physical injury has already occurred to get the monitoring relief.

“Anyone who’s going to make the claim will have to show even if it’s on a cellular level, at a microscopic level, there’s some evidence that their body has been injured,” Smith said Wednesday, explaining his proposed change. “Otherwise what the bill does is allow the diversion of resources to people who have not been injured, have not shown they’ve been injured, have never been injured, and away from people who may well be injured.”

But Sen. Shannon Chandley, an Amherst Democrat, rejected the proposal.

“The whole point of monitoring is to see what happens as a result of exposure to the toxin,” she said. “And if we say that proof of physical injury is necessary, then that seems to defeat the purpose of monitoring to me.”

The Judiciary Committee voted to recommend the amendment, 3-2, on a party line vote. The measure will be debated by the Senate on Monday.

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