Nanotorts: "A Litigator's Guide to Health and Environmental Issues"
The January 2012 issue of the Defense Research Institute’s For The Defense magazine features the nanotechnology article "A Litigator's Guide to Health and Environmental Issues," by attorney John Delany, a member of Delany & O'Brien, in Philadelphia.
Delany describes the potential for what is now a limited series of commercial, patent, and regulatory legal battles to become full-blown personal injury tort litigation in the near future. Here is an excerpt:
The factors that could create a toxic, nanolitigation storm are (1) ubiquitous exposure; (2) sympathetic plaintiffs; (3) sensational press (4) reactive politicians; (5) product identification capability pointing to a specific product or a specific defendant; (5) biomarker and causation evidence; (6) corporate culpability; (7) state-of-the art medical and liability; (8) the serious, objective, potentially permanent nature of a potential injury due to nanomaterial exposure compared with potentially subjective transitory injury; (9) deep pockets of recovery; (10) product benefit-cost utility; and (11) warnings and personal choices involved with exposure.
In addition, judicial and legislative factors may affect the liability picture, including potential immunities, economic caps, limitations on punitive damages, joint and several liability, the collateral source rule, venue shopping, removal to a federal court, preemption, and the framework that the judiciary uses to manage and adjudicate claims, such as multi-district litigation processes.
So, What Is The Latest About Nanotort Litigation Risk?
Reading Delany's January 2012 article shows that not much has yet changed – in the litigation threat arena – since I published a seminal article on the subject over three years ago: "Nanotorts: The Legal Risks of Nanotechnologies," For The Defense, November 2008.
In the ensuing 3+ years, I have provided some additional legal analyses of litigation risk for some specific product types (e.g., medical device, pharma, automotive), e.g., "Automotive Nanotechnology: Big Rewards and Big Risks from the Inconceivably Small," Westlaw Automotive Journal, November 9, 2010; "Nanotechnology: Risks & Benefits in Medical Applications," Medical Malpractice Law & Strategy, September 2009 & October 2009
I have also written about nanorisk for some specific types of claims (mass-tort claims, no-injury class action claims), e.g., "Nanoparticles: The New Frontier For Product Liability Mass Tort and Class Action Claims," published in Product Safety & Liability Reporter, December 13, 2010; Class Action Litigation Report, November 26, 2010; Toxics Law Reporter, November 11, 2010.
And I have written with some specific suggestions for nanotort risk mitigation approaches for any type of claims. E.g., "Reducing the Risk of Nanotechnology Personal Injury," ABA-TIPS General Liability and Consumer Law Committee Newsletter, Summer 2010; "8 Steps To Reducing Nanotorts In Your Nanofuture," Product Liability Law360.com, July 2010.
These articles, and others, are available at the "Articles and Presentations" page of Nanotort Law Blog. You may find something of interest there.