Introduction

This order addresses a pivotal preclusion question at the intersection of environmental torts and class action practice in New Hampshire. Plaintiffs John and Brenda Hermens sued Textiles Coated Incorporated (TCI), alleging contamination of their private well by PFAS-related chemicals (PFOA) stemming from TCI’s use of APFO at its Amherst, New Hampshire facility. On the same day in 2017, the plaintiffs filed two putative class actions: (1) a medical monitoring case seeking the costs of prospective health monitoring due to toxic exposure; and (2) a property interests case seeking remediation costs, loss of use and enjoyment, annoyance and discomfort, and diminution in property value.

After the New Hampshire Supreme Court’s 2023 decision in Brown v. Saint-Gobain Performance Plastics Corp. eliminating medical monitoring as a freestanding claim or remedy absent a present physical injury, the trial court dismissed the medical monitoring action with prejudice. TCI then invoked res judicata to bar the still-pending, stayed property class action. The Superior Court denied TCI’s motion for summary judgment, and certified to the Supreme Court the question whether the medical monitoring judgment precludes the property damages case.

The New Hampshire Supreme Court answered “no.” Emphasizing the State’s pragmatic and merits-focused procedural tradition, and the unique posture—simultaneous filing, consolidation for discovery and trial, and a stay of the property case solely to allow appellate resolution of medical monitoring issues—the Court held that applying res judicata here would not serve its underlying policies of judicial economy and certainty in legal relations.

Summary of the Opinion

The Court affirmed the trial court’s denial of TCI’s summary judgment motion and concluded that the final resolution of the medical monitoring class action does not bar the separate, concurrently filed and consolidated property damage class action under res judicata.

Key points:

• The two suits were filed on the same day, consolidated for discovery and trial management, and were prepared as a unit for a single jury trial before the property case was stayed for efficiency pending appellate resolution of medical monitoring issues.
• Brown v. Saint-Gobain (2023) foreclosed medical monitoring claims absent present injury, which led to dismissal of the medical monitoring class action. That development, however, did not—and could not—resolve the separate property damage claims that were already part of the consolidated litigation.
• Under these “unique circumstances,” applying res judicata would not advance the doctrine’s purposes. The Court therefore answered the certified question in the negative and remanded for the property claims to proceed.

Analysis

Precedents Cited and Their Influence

• Christian Camps & Conferences v. Town of Alton, 118 N.H. 351 (1978): The Court restated foundational res judicata principles from Christian Camps: the doctrine bars a losing party from a second review of a claim after failing to obtain relief in the first, and it covers issues that were or could have been resolved in the earlier action. This case provides the classic framing and policy underpinning for claim preclusion in New Hampshire.
• Graham v. Eurosim Construction, 175 N.H. 633 (2023): Cited for the three elements of res judicata—(1) identity or privity of parties, (2) same cause of action, and (3) final judgment on the merits—and for the point that res judicata is an affirmative defense with the burden on the movant. TCI relied on Graham to argue all three elements were satisfied. The Supreme Court’s order acknowledges those elements but concludes that, given the litigation’s posture, applying the doctrine would be inappropriate.
• Cook v. Sullivan, 149 N.H. 774 (2003): The Court echoes Cook in highlighting that res judicata is determined on a case-by-case basis. This flexible approach frames the Court’s emphasis on “unique circumstances” rather than formalistic application.
• Roberts v. General Motors Corp., 140 N.H. 723 (1996): Quoted for New Hampshire’s longstanding commitment to deciding cases on their merits, avoiding “imaginary barriers of form.” This supports the Court’s pragmatic refusal to apply res judicata where it would short-circuit a merits-based adjudication of distinct property harm claims already in the consolidated pipeline.
• In re Proposed Rules of Civil Procedure, 139 N.H. 512 (1995): Cited for the jurisdiction’s focus on what justice requires rather than strict precision in form, reinforcing the case-by-case, equitable bent in procedural doctrine.
• Morency v. Plourde, 96 N.H. 344 (1950): Invoked to underscore New Hampshire’s liberal approach to pleading and aversion to procedural gamesmanship, again pointing toward avoiding preclusion where it would elevate form over substance.
• Brown v. Saint-Gobain Performance Plastics Corp., 175 N.H. 641 (2023): The pivotal substantive tort decision holding that New Hampshire does not recognize medical monitoring as a remedy or separate cause of action absent a present physical injury. Brown directly led to dismissal with prejudice of the medical monitoring class action but, as the Court stresses, did not and could not adjudicate the property damage claims that were already part of the consolidated proceedings.
• Petition of Textiles Coated Incorporated (TCI), No. 2022-0224 (N.H. Mar. 21, 2023) (non-precedential): The Court used Brown to reverse the trial court’s refusal to dismiss the medical monitoring case, precipitating the final judgment TCI then tried to leverage for preclusion. The order contextualizes how that reversal fit within the consolidated litigation’s overall trajectory.
• Wiebusch on New Hampshire Civil Practice and Procedure § 57.20 (4th ed. 2014): Quoted for the core policies behind res judicata—judicial economy and certainty in legal relations—policies the Court found would not be advanced by preclusion under these facts.

Legal Reasoning

The Court frames res judicata as a practical, policy-driven doctrine, not a rigid checklist untethered from context. While citing the familiar three elements from Graham, the Court’s analysis turns on whether applying claim preclusion here would actually serve its goals in light of the procedural history:

• Simultaneous filing and consolidation created a unified “first litigation.” Both class actions were filed on the same day in the same court. The trial court consolidated them for discovery and motion practice; class certification for both proceeded at the same hearing; and the cases were jointly managed toward a single jury trial. This unified administration made them, in practical terms, one litigation package.
• The property case was stayed solely for efficiency, not abandoned. With a trial date set, the parties jointly sought a stay of the property case because resolving medical monitoring issues would not necessarily resolve all liability issues and because an appellate resolution of medical monitoring could streamline trial. Thus, the property claims were neither dormant nor waived—they were preserved within the consolidated suit.
• Brown resolved only medical monitoring, leaving property damages untouched. The Supreme Court’s 2023 clarification that New Hampshire does not recognize medical monitoring absent present physical injury led to dismissal of the medical monitoring case. But that outcome did not adjudicate or logically resolve property damage questions—there remained separate, fact-intensive property harms (diminution in value, loss of use and enjoyment, and remediation costs) allegedly arising from the same contamination.
• Res judicata would not further its core policies in this posture. Applying preclusion would not conserve judicial resources, because the property claims had already been developed within the consolidated action and were poised for trial. Nor would it promote certainty in legal relations, because the parties had been litigating both tracks in tandem, expecting judicial resolution of each. Preclusion would instead turn a temporary, efficiency-based stay into an unintended forfeiture.

Notably, the Court does not rest its answer on a granular, element-by-element finding that the parties, causes of action, or merits judgment elements are lacking. Instead, it emphasizes New Hampshire’s non-formalistic, justice-oriented procedural philosophy: under these “unique circumstances,” the two cases constituted a single “first litigation,” and preclusion would misfire.

Impact and Future Implications

• Narrow, fact-sensitive carve-out to res judicata in consolidated class actions. The holding is carefully cabined to the “unique circumstances” presented—simultaneous filing, consolidation, shared case management through discovery and certification, and a stay entered for efficiency. It is not a general retreat from res judicata, nor is it an endorsement of claim-splitting. It instead recognizes that, in practice, these two tracks were one litigation.
• Environmental torts and PFAS litigation. Plaintiffs whose medical monitoring claims are foreclosed by Brown may still pursue property-related claims arising from the same contamination events. The decision confirms that Brown does not “spill over” to extinguish separate property harms merely because both theories arise from the same factual nucleus.
• Class action management strategy. Counsel may safely seek consolidation and, where appropriate, a stay of one track pending resolution of a threshold legal issue in another, without risking res judicata pitfalls—provided the suits were filed together and administered as a unit. This reduces pressure to cram distinct theories and class definitions into a single pleading where that would complicate certification, proof, or trial management.
• Defendant strategy and limitations. Defendants should still assert res judicata where suits are sequential or meaningfully separate. But this decision signals that res judicata will be difficult to use to bar claims that were already inside the consolidated litigation tent and stayed for case-management reasons.
• Identity of parties and classes. The trial court had found the classes distinct, undermining the “same parties” element. While the Supreme Court does not rest its order solely on that ground, counsel should expect that distinct class definitions can complicate or defeat the identity-of-parties prong in class preclusion disputes.
• Merits-first ethos in New Hampshire procedure. The decision reinforces New Hampshire’s longstanding orientation toward deciding cases on the merits and avoiding procedural traps—especially where parties have acted diligently and transparently to coordinate related claims.

Complex Concepts Simplified

• Res judicata (claim preclusion): A doctrine preventing a party from relitigating a claim after a final judgment. It typically requires (1) the same parties (or their privies), (2) the same cause of action, and (3) a final judgment on the merits. It aims to conserve judicial resources and provide finality.
• Cause of action: In preclusion, courts often look to whether claims arise from the same transaction or occurrence and whether they involve the same operative facts—even if the legal theories differ. Here, the Court took a practical approach: even if both actions stem from the same contamination, the property harms were distinct, and, in any event, both actions were already consolidated as one litigation.
• Privity: A legal relationship close enough to bind a non-party to a judgment. In class actions, identity of parties can turn on whether class definitions overlap. The trial court noted the two certified classes differed in definition and membership.
• Final judgment on the merits: A dismissal “with prejudice” generally qualifies as a final merits judgment for preclusion. The medical monitoring class action was dismissed with prejudice after Brown. But the Supreme Court held that using that judgment to preclude the consolidated property case would not serve res judicata’s purposes here.
• Medical monitoring: A legal theory seeking the costs of medical testing to detect disease early after exposure to hazardous substances. In Brown, the New Hampshire Supreme Court held the State does not recognize medical monitoring as a freestanding cause of action or remedy in the absence of present physical injury.
• Consolidation and stay: Consolidation allows related cases to be managed together for efficiency. A stay pauses one case (or track) to allow developments (such as appellate rulings) in another to guide next steps. Here, the property case was stayed to allow resolution of medical monitoring issues, not to abandon the property claims.
• Summary judgment: A procedural device to resolve claims where there is no genuine dispute of material fact and one party is entitled to judgment as a matter of law. TCI sought summary judgment based on res judicata; the trial court and Supreme Court rejected that bid.
• PFAS/PFOA/APFO/PFOS: Per- and polyfluoroalkyl substances (PFAS) are persistent environmental chemicals. PFOA and PFOS are common PFAS compounds. APFO (ammonium perfluorooctanoate) can degrade to PFOA. The alleged contamination involved these substances in private well water.

Conclusion

The New Hampshire Supreme Court’s order in Hermens v. TCI clarifies a critical boundary around res judicata in complex, multi-track litigation. When plaintiffs file related class actions simultaneously, those actions are consolidated, and one is stayed for efficiency pending appellate clarification on a discrete legal issue, a subsequent dismissal of the stayed-away track does not automatically preclude the other. The Court’s merits-first, policy-driven approach—rooted in Roberts, In re Proposed Rules, and New Hampshire’s liberal pleading tradition—ensures that distinct property harms receive their day in court even after Brown has eliminated medical monitoring claims lacking present physical injury.

Key takeaways:

• Res judicata remains vital, but it is not applied mechanically; it is guided by judicial economy, fairness, and the realities of case management.
• Brown forecloses medical monitoring absent present physical injury, but it does not wipe out separate, concurrently pursued property damage claims.
• Strategic use of consolidation and stays, transparently managed by the court and parties, will not be punished by claim preclusion when doing so advances efficient, merits-based adjudication.

By answering the certified question in the negative and remanding the property case to proceed, the Court preserves space for substantive adjudication of environmental property harms while reaffirming New Hampshire’s commitment to procedural pragmatism and justice.