Megan Noonan

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In recent years, communities across the United States have discovered water contamination from per- and polyfluorinated substances (PFAS).[1] Research on the health impacts of PFAS contamination suggests that exposure to these chemicals is associated with various diseases, such as high cholesterol and cancer.[2] Because of their widespread use in firefighting foams, these chemicals are particularly prevalent on military bases, airports, and in surrounding communities.[3] Thus, people living in communities with PFAS-contaminated water may have elevated levels of PFAS in their blood and face significant potential health problems.[4]

As PFAS are largely unregulated by the federal government, some people exposed to PFAS seek to recover through toxic tort litigation.[5] Medical monitoring claims are one option for plaintiffs to consider.[6] These claims acknowledge the prospective harm of chemical exposure by requiring the responsible party to pay for ongoing medical testing associated with the early detection of disease.[7] While this common law remedy is not recognized in every state or by the federal government, it exists in at least 16 states.[8] Medical monitoring claims generally allow plaintiffs to recover if exposure to the chemical sufficiently increases the risk of developing a serious latent disease, even if the plaintiff lacks a present physical injury.[9]

This Note will discuss the challenges and concerns associated with recovering medical monitoring damages for PFAS exposure and suggest the most likely route to success for plaintiffs seeking relief in Vermont. Part I will provide a background on PFAS, the current regulatory framework, and describe the widespread groundwater contamination discovered in Hoosick Falls, New York and Bennington, Vermont. Part II will provide a background on medical monitoring, discussing the development of the claim and surveying the current state of medical monitoring throughout the United States. Part III will analyze the present injury requirement in a pending medical monitoring case stemming from PFAS contamination in Hoosick Falls, New York.[10] It will consider the legal basis for New York’s interpretation of “injury” and ensuing policy concerns. Finally, Part IV will recommend avenues for Vermont to recognize a state claim for medical monitoring, building on lessons learned from PFAS litigation in New York.

[1]See Bill Walker & Soren Rundquist, Mapping a Contamination Crisis, Envtl. Working Group (June 8, 2017), https://www.ewg.org/research/mapping-contamination-crisis#.W5GGTehKhyw (finding that PFAS contamination can be found in public water supplies affecting 15 million Americans in 27 states).

[2]Basic Information on PFAS, EPA, https://www.epa.gov/pfas/basic-information-pfas (last visited Oct. 21, 2018).

[3]Jeff B. Kray & Sarah J. Wightman, Contaminants of Emerging Concern: A New Frontier for Hazardous Waste and Drinking Water Regulation, 32 Nat. Res. & Env’t 36, 37 (2018).

[4]See, e.g., Howard Weiss-Tisman, State: Bennington Residents Who Consumed Water With PFOA Have It In Their Blood, Vt. Pub. Radio (Jan. 27, 2017), http://digital.vpr.net/post/state-bennington-residents-who-consumed-water-pfoa-have-it-their-blood#stream/0 (explaining that residents affected by PFAS-contaminated water in Bennington, Vermont have PFOA blood levels five to thirty times the national average and that PFOA exposure is linked to kidney and testicular cancer, among other adverse health effects).

[5]See Laura Hall, Alastair Iles, & Rachel Morello-Frosch, Litigating Toxic Risks Ahead of Regulation: Biomonitoring Science in the Courtroom, 31 Stan. Envtl. L.J. 3, 5–6 (2012) (“In this context, toxic tort litigation has emerged as a means of controlling chemical risks.”); see also Ilene Munk & Kacy Manahan, Private-Party Actions are Establishing PFOS and PFOA Liability, 32 Nat. Res. & Env’t 29, 29 (2017).

[6]See Hall, Iles & Morello-Frosh, supra note 5 (noting that plaintiffs may opt to pursue medical monitoring over claims for nuisance, trespass, or negligence because “the medical monitoring tort offered the best chance of recovery for prospective harms resulting from chemical exposure.”).

[7]Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R.5^th 327.

[8]See infra Part III.C (surveying the current state of medical monitoring claims); see also Kenneth Rumelt, Modernizing Legal Remedies for a Toxic World, 8 n.41–42, https://www.vermontlaw.edu/sites/default/files/2018-03/2018-01-11%20Modernizing%20Legal%20Remedies.pdf (2018) (detailing which states have judicially recognized recovery for medical monitoring damages).

[9]Hall, Iles & Morello-Frosch, supra note 5, at 26.

[10]Baker v. Saint-Gobain Performance Plastics Corp., 232 F.Supp.2d 233, 250 (N.D. N.Y. 2017).