A lawsuit against Saint-Gobain, the French manufacturing company accused of contaminating drinking water in towns in southern New Hampshire with harmful PFAS chemicals, has entered a new phase after a federal judge said part of the case could be managed as a class action.
Under the decision, thousands of residents who live or have lived near the Merrimack facility since 2016 could be part of the class action. The class could include almost 9,000 households within Merrimack and 382 homes in Bedford within the Merrimack Village District Water Works service area, and 1,200 homes with private wells in the area.
PFAS are a class of man-made chemicals that have been used for decades in a variety of consumer products and have been linked to risks to human health like increased risk for certain kinds of cancers.
Elevated levels of those chemicals were discovered around Saint-Gobain’s Merrimack facility in 2016. The company knew about elevated PFAS levels in their emissions since at least 2004.
The company has provided bottled water and alternative drinking water to residents affected by contamination through a consent decree with the state of New Hampshire. They announced they were closing their Merrimack facility last year.
A class action lawsuit brought by people living near the Saint Gobain manufacturing facility in Merrimack who say they were exposed to PFOA, one of many PFAS chemicals, was filed in 2016.
Judge Joseph Laplante’s Dec. 29 decision splits that case into two phases. In the first, the court would determine whether Saint-Gobain’s Merrimack facility was liable for contamination for nearby residents as a whole, instead of for each individual case.
The second phase will determine how individuals may be compensated for the contamination on a case-by-case basis.
Laplante denied class certification for the claim in the lawsuit that Saint-Gobain caused a “nuisance,” saying that whether Saint-Gobain interfered with each person’s use and enjoyment of their property would need to be determined on an individual basis.
But he certified the class for the purpose of the claims that Saint-Gobain trespassed on residents’ land by causing PFAS chemicals to enter without their permission and that the company acted negligently by emitting PFAS, not investigating and mitigating contamination adequately, and not warning residents about the risks of the chemicals.
Whether Saint-Gobain is liable for emitting the chemicals, how much they foresaw the consequences, and whether they adequately investigated, mitigated, and warned people about them can be determined for all residents together, the judge said.
Mindi Messmer, a former state lawmaker who has called for more accountability for Saint-Gobain over their PFAS emissions, said the decision is a victory for those who may have been affected by the chemicals.
“This is a big step in that the court is signaling that there is at least some validity to the claims made by the plaintiffs,” she said.
According to court documents, the plaintiffs are seeking compensation for non-economic losses, like the loss of enjoyment of their property, and compensation for economic losses related to the decreased value of their properties and the cost of mitigating contamination.
Experts for the plaintiffs found that damages in the area addressed in the lawsuit would be around $578 million for losses in property value and $2.6 million for those who switched from private wells to municipal water.
Last March, the New Hampshire Supreme Court decided that people exposed to toxins could not recover the cost of medical testing from polluters if they’re not currently sick in a ruling connected to the case.
That came as a disappointment to Laurene Allen, who started Merrimack Citizens for Clean Water to advocate for those affected by PFAS contamination. She said the Supreme Court decision weakened the class action suit.
“When you talk to people you hear about a health condition, then another health condition, then another health condition,” she said. “For many people, you’re watching what’s happening around you, and you know why it’s happening, and no one’s doing anything about it, and your health isn’t properly supported in terms of monitoring. That’s why medical monitoring is so important.”
But despite the lack of medical monitoring cost recovery, Allen said the certification of the class in the lawsuit was validating. And, she said, she hopes the case goes to trial.
Two other class action lawsuits against Saint-Gobain for PFAS pollution – one in Hoosick Falls, N.Y., and one in Bennington, Vt. – ended in settlements in which the company did not admit wrongdoing or liability.
“I would love to see this go to trial and that they truly be held accountable for the harm that they caused,” Allen said. “What they have never once been held accountable for is the harm they have caused, the harm to human health and the forever contamination of our environment.”
