Nanotechnology is a catchall term for the “science, engineering, and technology conducted at the nanoscale, which is about 1 to 100 nanometers.” It is a rapidly developing field, with governments and private industry alike paying close attention to new innovations; the European Commission, for example, recently published a report examining different potential uses of nanotechnology. In the field of manufacturing, there is a wide variety of nanotechnologies, including nanocomposites, nanocrystals, nanoparticles, nanotubes, nanocatalysts, nanofilters, and nanostructured materials.
With new technology come new hazards and new liabilities. This article analyzes whether nanotechnology has the potential to spark a new wave of mass tort litigation, i.e., become the new asbestos litigation. It considers four factors that have been applied in analyzing other potential “mass torts” to determine whether they exhibit characteristics that were salient to the explosion of asbestos liability during the past quarter century. Those factors are:
- Plaintiffs’ ability to prove tortious conduct on the part of manufacturers;
- The existence of a large number of exposed individuals and potential classes of plaintiffs;
- The existence of a specific or unique causal association between the product and one or more serious medical conditions; and
- The existence of “dread” factors, i.e., emotional or sympathy-inducing facts that would tilt a case in a plaintiff’s favor
For the moment, these factors suggest there will not be a wellspring of nanotechnology products liability suits. It is still much too early, however, to determine whether this will remain true. But as the research on the short-term and long-term effects of nanotechnology on human health continues, nanotechnology manufacturers and industrial consumers would be well-advised to take a precautionary, conservative approach by employing occupational safeguards and minimizing exposure to nanoparticles.
The History of Tortious Industry Conduct
When it comes to the production of nanotechnology, there is no record of manufacturer wrongdoing, no “particularly lurid set of liability facts” that would have juries view industry players as bad actors. One reason is that the technology is simply too new. As the OECD notes, “[t]here is  much uncertainty about emerging risks associated with nanotechnologies. It will take years for studies about exposure routes, the effects on human health, and the environment to reach conclusive results.” And the current research is at an impasse. In the last decade alone, researchers have written over 6,000 papers debating the health impacts of nanotechnology, yet there is no consensus on whether it poses a serious risk of harm to the public. For the moment, there are no “reports of adverse health effects in workers producing or using [carbon nanotubes and nanofibers]”—versatile nanotechnologies that have great potential for electronics, ceramics, biomedical products, and other types of manufacturing.
Proactive measures taken by industry leaders also distinguish nanotechnology from the asbestos model. DuPont, an early player in nanotechnology development, openly collaborated with the Environmental Defense Fund to create a risk assessment framework that gauged the safety of emerging nanotechnologies. The initiative may have been the result of corporate hedging—an effort to avoid the “new asbestos”—but it nevertheless was a display of industry openness about the potential hazards of nanotechnology. That sort of openness, in turn, may aid companies in future tort cases—a conclusion our firm drew about the DuPont Framework in 2007.
The Number of Exposed Individuals and the Potential Classes of Plaintiffs
Nanotechnology has the potential to reach almost every aspect of the manufacturing industry. As a result, such nanotechnology—broadly and hypothetically speaking—could be exposed to the same groups of people at the heart of the asbestos litigation model, e.g., employees of manufacturers, industrial workers, etc. In some ways, the number of potential plaintiffs could be larger; toxic absorption through the skin or by ingestion is also possible, though the research on these methods of entry is sketchy at best.
On the other hand, the industry could take a conservative approach to nanotechnology development and use by adopting prophylactic safeguards such as the ones proposed by the CDC’s National Institute for Occupational Safety and Health (NIOSH). Such an approach could lessen the number of potential plaintiffs.
But even assuming that there will be a large number of potentially-exposed individuals, consolidation would prove especially difficult. One nanotechnology-infused product will have “different physical and chemical parameters” (and thus, “different toxicities”) from another. This is true even if two products serve the same function, e.g., self-cleaning or flame resistance. Absent proof of a unique association between exposure to nanomaterials and a specific adverse health outcome (e.g., the link between asbestos exposure and mesothelioma), the heterogeneity of exposure circumstances would require individualized, case-by-case consideration and case preparation. The need to essentially start over in each new case could render mass litigation unwieldy and prohibitively expensive for plaintiff-side firms.
Causal Association Between Nanotechnology and Serious Medical Conditions (and the Potential “Dread Factor”)
Perhaps the biggest missing piece of the liability puzzle is the most important: the scientific link between exposure and injury. Almost every major risk assessment of nanotechnology admits uncertainty about whether nanotechnology exposure—mainly by inhalation—can cause permanent damage to the human body. So far, the most commonly made medical observation is that the inhalation of certain carbon-based nanotubes and nanofibers causes inflammation in the lungs. The permanence of the resulting damage is debatable and debated, with some reports likening the lung damage to the type caused by asbestosis.
The comparison to asbestos is, in itself, controversial. One camp describes the comparison as “plausible”; it, however, also points out that, unlike asbestos, “nanotube fibers tend to clump together rather than exist as single fibers, thus possibly significantly reducing exposure and their potential to do harm.” The other is a bit more alarmist, emphasizing the similarities between asbestos fibers and carbon nanotubes. Both sides base their conclusions on speculation because the data are lacking.
Animal studies have shown what the worst-case scenario could be—i.e., what may prove to be a “dread factor.” Short-term studies indicate the inhalation of nanoparticles could result in “pulmonary inflammation, granulomas, and fibrosis.” Other cell and animal studies have shown some single-walled carbon nanotubes “can cause genotoxicity and abnormal chromosome number by interfering with mitosis (cell division).” (Some asbestos studies indicate genotoxicity plays a role in mesothelioma-related carcinogenicity.) Put differently, the worst-case scenario involves some of the same lung-related carcinogenic effects induced by asbestos, with the additional prospect of birth defects to boot.
But that, of course, is entirely speculative. For the time being, there is no “terrible disease” associated with nanotechnology as mesothelioma is to asbestos. Two great unknowns could dramatically alter the health calculus. First, a product’s deleterious effects (or lack thereof) will largely depend on how the product is composed. Second, nanotechnology compounds may interact differently in the real world, in contrast to artificial lab settings where pure nanoparticles are used. So far, the nanotechnologies introduced into the consumer market do not appear to be particularly worrisome. If the industry adopts best practices and takes a conservative, prophylactic approach to safety, the risk of product harm and the potential for liability arising therefrom are likely to be manageable, if not minimal.
Mark Raffman is a partner in Goodwin Procter LLP’s Litigation Department. Based in D.C., he concentrates his practice on complex product liability litigation, insurance litigation, domestic and international commercial litigation and arbitration, and toxic tort and mass casualty litigation.
Andrew Kim is an associate in Goodwin Procter’s Litigation Department, and is also based in D.C.