Not Such a Small Thing: The Litigation Risks of Nanotechnology

It appears likely that the labeling and marketing of nanotechnology-enabled products will become a litigated issue in the near future.

They say that where there's smoke there's fire. Another truism might be that where there is public fear about a new technology (whether justified or not), there are plaintiffs' attorneys ready to file suit. While no lawsuits targeting a specific nanomaterial have yet been filed, history suggests that when there are gaps in scientific knowledge combined with public concerns about health, safety or environmental hazards, as is the case with nanotechnology, tort litigators are never far behind.

The gap in scientific knowledge about the potential risks of nanomaterials, particularly with respect to their toxicity, is well-documented. Governments, NGOs and companies around the world have been struggling with how best to close that gap, with few effective solutions surfacing to date. As reported in the May issue of IndustryWeek, the U.S. Environmental Protection Agency and California's Department of Toxic Substances Control have both tinkered with voluntary and mandatory information call-ins of toxicological data on specific nanoscale materials with uneven results. While calls for greater research into the potential health and safety risks of nanotechnology continue, we remain in a state of uncertainty.

In the public sphere, many people's perception of nanotechnology is shaped more by science fiction than science (e.g., Michael Crighton's novel, "Prey," in which nano-sized robots develop intelligence and threaten civilization). A significant majority of Americans have never even heard of nanotechnology, but the most vocal of the minority who have tend to focus on the unknown risks. Reports that certain nano-particles can pass through the blood-brain barrier, and that laboratory-controlled exposure to a particular type of carbon nano-tube caused lung damage in mice only feed a broader, amorphous (mis)perception that all nanotechnology is something to fear. This mix of scientific uncertainty and public fear forms a foundation upon which prospecting litigators are likely to build.

Of course, the same limits of scientific understanding that create this uncertainty and speculative fear also shackle litigators who might otherwise attempt to bring personal injury lawsuits on behalf of one or many individuals. Such claims could arise on behalf of workers who handle nanomaterials or consumers who use nanotechnology-enabled products and claim injurious exposure to the nanoparticles within.

But a personal injury claimant in a toxic tort suit bears the burden of proving that a specific substance caused his or her injury, and the toxicological and epidemiological knowledge required to meet this burden in the field of nanotechnology does not yet exist. This difficulty is multiplied in class action suits, where class treatment of a group's claims requires a plaintiff to also demonstrate that the facts underlying his or her own case are sufficiently similar to those of every other individual within the purported class -- differences in each individual's exposure type, dose, medical conditions, and alternative causes of their conditions are likely to subsume any similarities, rendering class treatment unlikely.

It is for these reasons that consumer claims are likely to form the leading edge of nanotechnology litigation. Consumer claims, such as false advertising, require no showing of physical harm because they seek only economic damages. These claims typically seek reimbursement of the purchase price of a product pursuant to a state consumer protection statute, and are often bundled together into a class action in order to aggregate damages that are individually relatively small. The theory underlying such a claim is likely to be one of the following: failure to label a product as containing nanomaterials; failure to warn consumers of the possible health risks of the nanoparticles contained in a product; or misrepresentation of the benefits or risks of a nanotechnology-enabled product.

Several consumer groups have already spoken out in favor of product labeling that clearly identifies nanomaterial ingredients, while at the same time, some companies have stopped disclosing the nanoparticle content of its products to avoid potentially negative safety connotations. It therefore appears likely that the labeling and marketing of nanotechnology-enabled products will become a litigated issue in the near future.

Another possibility is that the initial wave of nanotech-related litigation will focus on medical monitoring claims. Like consumer claims, medical monitoring claims may be brought in certain jurisdictions without any evidence of then-existing physical injury. Merely the increased risk of some future physical harm attributable to the product is enough to state a claim in those venues. As the title suggests, such claims would seek the costs of ongoing medical observation, testing and evaluation for plaintiffs who claim that exposure to a nanomaterial has left them more susceptible to a particular disease. In jurisdictions where an existing injury is a predicate to a medical monitoring claim, we may see novel allegations that bioaccumulation of nanoparticles within the body, or some type of subclinical change in the plaintiff is sufficient evidence of physical harm to substantiate a claim.

What we do know for certain is that it is only a matter of time before enterprising attorneys find a way to bring litigation that directly targets the nanotechnology industry, particularly given the often-publicized projections that the global nanotechnology market will be worth a fantastic $1.5 trillion by 2015. Those in the industry would be well-served to carefully assess and manage all risks associated with their products, not only in line with wise risk management principals generally, but specifically with an eye toward protecting themselves from future litigation.

Peter E. Masaitis is a partner in the Los Angeles office of Alston & Bird LLP. His practice is focused primarily on the defense of product liability, toxic tort and complex business litigation. www.alston.com

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