Category: Toxic Torts

Carbon Nanotubes and the Asbestos Thing

Posted Oct.12, 2011 under Asbestos, Carbon nanotubes, Health, Research, Toxic Torts, Workplace

asbestos-fibreI have written here about various ways in which nanomaterials may be comparable to asbestos – both in the ways nanoparticles may impact the human body and the ways the law may respond.  So it’s not surprising that one more comparison has emerged recently.

 Scientists from Brown University have studied the impact of carbon nanotubes on mouse cells.  Their study, published in the September 19, 2011 issue of Nature Nanotechnology, showed that certain types of multi-walled carbon nanotubes enter cells in a way that causes an immune response and cellular inflammation.  The physical properties of the nanotubes are responsible for this reaction.  As the researchers stated in their abstract, “cylindrical one-dimensional nanomaterials such as carbon nanotubes enter cells through the tip first.”  Certain nanotubes – those with end caps or carbon shells at their tips – seem to trigger the inflammatory reaction.  The researchers mention asbestos fibers in their abstract as being analogous (though they are clearly physically different) in this important aspect.

Does this mean that carbon nanotubes will create the same health problems that asbestos created?  Not necessarily.  Some might consider asbestos-related illness to be one of the major scourges of the last quarter of the 20th Century and well beyond.  Asbestos has shaped the law in relation to workplace safety and mass tort litigation, and has transformed industry.  Asbestos is a naturally occurring substance, and its use has been limited since the 1970s.  Its health effects, however, are ongoing because symptoms of asbestos-related disease typically occur after a latency period that may be quite long.

Nanomaterials, however, are engineered and represent new technology in a new technological world.  A new response is warranted.  What can be done going forward?  Scientists may be able to engineer carbon nanotubes in a way that will eliminate this particular inflammatory response.  But more research needs to be done before that.  For example, these same researchers intend to study whether nanotubes with others types of tips create the same or similar cellular response.

For now, we may be heading in the direction of “intelligent tip modification,” as the researchers refer to it.  Let’s hope we aren’t headed down the asbestos road again.

 

The abstract of the article may be accessed at

http://www.nature.com/nnano/journal/vaop/ncurrent/full/nnano.2011.151.html

 

For a report on the Brown University study, see the following piece in the BNA subscription service:

Greg Hellman, Researchers Show How Carbon Nanotubes Pierce Cells, Leading to Inflammation, 18 Daily Env’t Rep. (BNA) A-12 (Sept. 20, 2011).

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The Bigger Picture: Thinking About Technology, Nano and Otherwise

Posted Sep.25, 2011 under Environment, Evidence, Government Agencies, Litigation, Products Liability, Supreme Court, Toxic Torts
usalawyerstoday.com

usalawyerstoday.com

Wondering where we’ve been for the past month?

 My summer was spent thinking and writing about technology – all sorts of technology.  It got me thinking about how technology has changed our lives and how it is poised to change all aspects of the law.  Let me share with you my summer projects, which go well beyond nanotechnology issues.  I hope it will enable me to put the legal issues of nanotechnology in a broader context going forward.

 1.  Neuroscience and Tort Law.  I and my co-author (and co-blogger) Eric Laury embarked upon a project more than a year ago to examine how the so-called “new neuroscience” will impact tort law.  By “new neuroscience” we mean mostly functional neuroimaging (fMRI and SPECT), but also any other neuroscientific methods to examine the human brain, including brain wave technology.   Our approach to this extensive law review article was both doctrinal (i.e. how the new neuroscience will eventually change the rules of tort doctrine) and practical (i.e. the problems of incorporating it in tort litigation, particularly under the rules of evidence).  We spent a lot of time predicting the effect that the new neuroscience will eventually have in the courtroom.  Professor Stephen Morse at UPenn Law School has pointed out that much of what we currently know as legal doctrine is based upon “folk psychology” – that is, what we believe causes people to act the way they do.  The new neuroscience will eventually change the law by changing our understanding of human behavior.

 2.  Cell Phones.  I also found myself writing a piece on cell phones and product liability.  In particular, I looked at whether actions claiming the telecommunications industry should be marketing cell phones with headsets to protect against the hazards of radio frequency (“RF”) emissions should be allowed, or whether they are preempted by regulations granting the FCC the authority to set radiation standards for cell phones.  The question, it turns out, it much more complicated than one might think and involves several federal statutes and regulations, including the two major statutes governing the wireless networks in this country.  The Supreme Court will consider a petition for certiorari in Farina v. Nokia, 625 F.3d 97 (3d Cir. 2010), early in the new term.  Even if cert is not granted, this topic likely will continue to make waves in the courts.  My article appears on the BNA subscription service at 39 Prod. Safety & Liab. Rep. (BNA) 871 (Aug. 5, 2011) and 26 Toxics L. Rep. (BNA) 949 (Aug. 10, 2011).  It also appears in U.S. Law Week at 80 U.S.L.W. 321 (Sept. 13, 2011).

 3.  Nanotechnology and the Environment.   I also wrote a short article to be published in the “Insight” section of the upcoming Natural Resources & Environment journal, which is the journal of the ABA Environmental Law Section.  My goal was to alert attorneys to some of the regulatory initiatives either in the works or in the pipeline.  The piece focuses on TSCA, FIFRA, OSHA, and foreign initiatives (EU, Australia).  It was interesting to look at the impact of nanomaterials exclusively from the environmental (outdoors and indoors) perspective.

So while I may not have been spending a lot of time blogging about nanotechnology and the law, I was busy getting the bigger picture on technology.

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Proposed Disease Cluster Legislation: What’s Nanotechnology Got to Do With It?

Posted Jun.26, 2011 under Environment, EPA, Government Agencies, Governmental Interaction, Health, Regulation, Safety, Toxic Torts

capitol_building_

In January, a bill was introduced in Congress proposing an act to assist governments on all levels to investigate disease clusters.  The short title is the “Strengthening Protections for Children and Communities From Disease Clusters Act,” and is referred to as the Disease Clusters Act.  Disease clusters are generally defined as “the occurrence of a greater-than-expected number of cases of a particular disease within a group of individuals, a geographical area, or a period of time.”  Sec. 5(4)(A).  Because children are more susceptible than adults to the risks of environmental pollutants and toxic substances – due to a variety of developmental and environmental factors – the act proposes to facilitate investigation of disease clusters and the potential hazardous substances that may cause those diseases.  The act would grant authority to EPA to develop regulations and to coordinate efforts and funding with states and communities.  Sec. 3 & 4.

Disease clusters are well known in toxic torts.  The existence of a disease cluster does not necessarily mean that a causal connection can be drawn between the disease and substances to which the population was exposed.  Recent examples have been breast cancer clusters in Long Island and autism clusters in New Jersey or among children who have received certain vaccines.  While it is possible that environmental or product-related connections could yet be discovered, to date reliable science has not been able to make those connections.  In contrast, in Woburn, Massachusetts, in the 1980s, citizens discovered a cluster of childhood leukemia.  Grass roots investigation, followed by an epidemiological study performed by Harvard University, demonstrated a connection between chemicals in the drinking water supply of two of the wells that supplied the part of town where the ill children lived.  The story of this community and the subsequent litigation have been described in Jonathan Harr’s book, “A Civil Action,” and the movie adaptation.

As the Woburn example demonstrates, it is important to investigate disease clusters.  But it is equally important to recognize that sometimes a disease cluster is coincidental.  The proposed legislation would treat all disease clusters alike in the initial phases of investigation, using the best available science.  And some might criticize an outlay of resources for an uncertain enterprise.

Where does nanotechnology enter this picture?  The act makes no mention of any specific potential hazards, though it does reference environmental pollutants and toxic substances and indicates that the substances may be present in the air, water, ground, drinking water supply, waste sites, and any other place, whether or not already regulated by another statute.  Sec. 5(7).  Nanomaterials in the environment would fall within the definitions in the act.  The act would be a way to examine the health and environmental effects of nanotechnology that may not be captured – or yet captured – under existing regulatory schemes.

The down side, however, is that citizens shouldn’t have to wait until disease clusters manifest for potential hazards to be studied.  Diseases such as cancer caused by exposures to toxic substances generally manifest symptoms after a latency period that could be as long as several years.  The same is true of developmental delays in children.  It is always preferable to prevent the problem in the first instance.  But the law recognizes that that is not always possible.  This disease cluster act would be a post hoc solution, after some people have already become ill.  But it could prevent others from suffering the same fate.

The bill is sponsored by Senators Barbara Boxer and Mike Crapo.  It was referred to the Committee on the Environment and Public Works, which favorably and without amendment reported it to Congress on June 9, 2011.

 The bill may be read in its entirety at

http://www.govtrack.us/congress/billtext.xpd?bill=s112-76

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Thinking Again about Nanoparticles and Asbestos

Posted Mar.29, 2011 under Asbestos, Environment, EPA, Governmental Interaction, Health, Litigation, Nanotubes, Products Liability, Regulation, Research, Safety, Toxic Torts, Workplace

asbestos-fibreEarlier, I wrote about some potential similarities between asbestos personal injury litigation and the litigation that is certain to come over nanoparticles and human health.  I will be writing on and off about this topic going forward as well.  I can’t emphasize enough the urgency of avoiding another disaster like asbestos litigation, which has clogged the courts since the 1970s.

For example, engineered nanomaterials are being placed into building materials.  In the first instance, these materials are being designed and manufactured in the primary workplace environment, thus potentially exposing workers to hazards about which little or nothing is known.  Another set of workers, those using the building materials in the secondary workplace, run the risk of exposure to potentially harmful substances.

The history of asbestos shows that the early studies were conducted on asbestos textile factory workers, but that meaningful studies on workers out in the field who were installing the materials lagged far behind.  Then, when the studies began to raise danger signals, the industry ignored those signals until the specter of mass litigation and government regulation forced recognition.  By then it was too late.

Nanomaterials present some of the same workplace issues, particularly when used in building materials.  The hazards of the primary workplace may be different from those in the secondary workplace.  Studies must be conducted on both types of environments.

Further, there is a third concern, which also mirrors the asbestos experience.  At some point down the line (years or decades), the anticipated life of the materials will expire, just as asbestos insulation materials have done.  At that point, degeneration of the materials could put nanomaterials into the environment to a degree that could endanger the safety of persons in the vicinity.

In the case of nanomaterials, do we know any of this for certain?  No.  But at the present time we know almost nothing about any of these safety issues.  In December, the National Institute for Occupational Safety and Health (NIOSH) proposed a workplace exposure limit for carbon nanotubes and nanofibers.  This is a start; but without hard data, it is really only a guess.  And it is not necessarily consistent with limits for other substances.

While the industries creating and using nanomaterials will likely take seriously the lessons of asbestos, more should be done up front to ascertain the seriousness and scope of the hazards that the materials may present.  Now is the time.  If the hazards outrun the studies, the finish line will be litigation.

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Daubertizing Nanolitigation – Part 4

Posted Mar.22, 2011 under Chemicals, Cosmetics, Evidence, Health, Litigation, Pesticides, Products Liability, Research, Safety, Toxic Torts

nano 6In my previous post, I indicated that I would be moving on to discuss the relevancy arm of the Daubert admissibility test.  It turns out I have a few more thoughts about the reliability arm.

 What does it mean for admissibility purposes when the expert testimony sought to be introduced in litigation is based on an established methodology used in a new context?  This is likely to be an issue when parties seek to introduce studies of the health and safety effects of nanomaterials.    Does such a new subject of a study transform an established methodology into a new and untested methodology?  If so, the evidence would face a much more rigorous level of scrutiny.

 Researchers acknowledge that the state of research on the health and safety aspects of nanomaterials is in its infancy.  Some have noted that due to the costs of obtaining necessary quantities of nanomaterials for animal testing, that type of toxicological testing has given way to the use of more efficient in vitro laboratory tests.  While both animal testing and in vitro tests have been used to test toxicity for a very long time, their reliability in testing chemicals at the nanoscale has yet to be fully assessed.  This could lead to exclusion of the evidence under either the Frye or Daubert analysis, at least until such the use of the studies gains greater reliability.  In other words, courts could view this as a new and untested methodology.

 A related issue is the value of in vitro tests generally in litigation to show a connection between exposures and injuries.  Studies conducted in laboratory containers do not receive high marks from courts generally when introduced to demonstrate causation between an exposure and a person’s injuries.  Courts prefer both epidemiological studies – which determine statistical risks in human populations – and animal bioassays over in vitro studies.

 All of this adds up to some thorny questions that will have to be resolved.

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Daubertizing Nanolitigation – Part 3

Posted Mar.01, 2011 under Chemicals, Cosmetics, Environment, Evidence, Health, Litigation, Pesticides, Products Liability, Research, Safety, Toxic Torts

supctThis post continues the discussions in earlier posts about evidentiary standards for admissibility of health and safety studies on nanomaterials under both the Frye standard and the Daubert standard.  I will resume the reliability discussion here, this time focusing on the reliability standards applied in the federal courts and other Daubert jurisdictions.

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), reliability of expert scientific evidence is determined in relation to four factors.  These four “general observations” set forth in the Daubert decision were intended to provide guidance to the trial court making a decision about admissibility of expert scientific evidence.  All four need not be favorable to the party seeking admission of the evidence for the evidence to be ruled admissible.  The Supreme Court has said that when it comes to scientific studies, evidentiary reliability is the equivalent of scientific validity.  What makes a scientific study (and the expert testimony relying on it) valid?  The Supreme Court set forth these “general observations”:

 (1)  Whether the scientific theory or technique on which the evidence is based has been tested (presumably by the scientific method);

(2)  Whether the study has been published or has undergone another form of peer review;

(3)  The known or potential rate of scientific error associated with the methodology;

(4)  Whether the methodology has achieved general acceptance in its field.

Although these factors reduce the weight of general acceptance (the sole Frye criterion) in the admissibility analysis, the reality is that the Daubert test has raised the bar in litigation for plaintiffs seeking to have their scientific proof admitted.  These factors are often applied strictly.

Will scientific studies on the health and safety effects of nanomaterials be treated differently under the Daubert reliability analysis than under the Frye general acceptance test?  The primary difficulty under Daubert, as under Frye, is the newness of the studies.

Although the Supreme Court in Daubert said that the focus of the reliability analysis should be on the scientific methodology or technique – and not on the conclusions reached – the Court subsequently modified that statement.  In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Supreme Court said that “conclusions and methodology are not entirely separate from one another,” thus inviting the trial court to consider the conclusion and whether it constitutes the kind of novel theory that may not be admissible.

It may be true generally that newer methodologies may not have been sufficiently tested, peer reviewed, or accepted in the relevant scientific community, and that they could have a potentially high (or unknown) rate of error.  But one issue that will need to be sorted out in the era of nanostudies will be whether the methodologies for these studies consist of tried-and-true testing methods or, in contrast, will be viewed as novel because of their focus on materials at the nanoscale.  This distinction could make a critical difference in whether such studies will be admitted in litigation in a Daubert jurisdiction.  Tried-and-true carries more admissibility weight.

Perhaps one way to look at this issue – and one that is relevant to the emerging studies of nanomaterials – is the way that a federal district court analyzed the problem in Smith v. General Electric Co., 2004 WL 870832 (D. Mass. 2004).  When confronted with novel and admittedly “controversial” studies, the court concluded that the experts were “serious scientists with controversial views that are in many respects on the periphery of the mainstream, but views that are not so divorced from a scientific method of investigation that they can be dismissed as quackery or armchair conjecture.”  While the district court was likely correct in observing that Daubert did not require or perhaps even empower a court to “determine which of several competing scientific theories has the best provenance,” many would reject the flexible view of Daubert applied in Smith.

Reliability is only part of the admissibility analysis for scientific studies articulated by the Supreme Court in Daubert.  Relevance of the evidence is equally important, and my next post on the subject will look at the relevance of scientific evidence as it has been explained by the Supreme Court in Daubert and Joiner (mentioned above).

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Daubertizing Nanolitigation – Part 2

Posted Feb.01, 2011 under Chemicals, Cosmetics, Environment, Evidence, Health, Litigation, Nanotubes, Pesticides, Products Liability, Research, Safety, Toxic Torts

Lab beakerMy previous post began a conversation about applying the evidentiary rules for admissibility of scientific studies and expert testimony to the emerging studies on the health and environmental effects of nanomaterials, all in the context of the toxic tort litigation that is soon to come.  This post will continue that conversation by looking at the legal rules to determine the reliability and scientific validity of such studies.  In particular, this post will look at the Frye rule and its continuing viability in a significant minority of jurisdictions.

Under the older Frye rule, reliability was determined solely by whether the scientific technique has achieved “general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  States that have adopted and continue to apply the Frye test for admissibility of expert evidence have further clarified and refined the rule.  Thus, the Minnesota Supreme Court stated in Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn. 2000), that a two-pronged test would apply:  “First, [the] technique must be generally accepted in the relevant scientific community, and second, the particular evidence derived from that test must have a foundation that is scientifically reliable.”  In Goeb, the plaintiffs alleged that their son had suffered permanent injuries from exposure to a pesticide that had been applied in their residence.  The court agreed that the trial court had properly excluded the plaintiffs’ expert scientific evidence of causation because the scientific methodology used was not generally accepted and because the expert’s analysis had no “independent validation.”

The Frye rule has frequently been criticized, however.  Thus, the Alaska Supreme Court (in a case adopting the Daubert rule and the federal evidentiary standard), has criticized Frye as incorrectly favoring the conclusions of scientists over courts in matters of a legal nature, arguing that it “ ‘abdicates’ judicial responsibility for determining admissibility to scientists uneducated in the law.” See State v. Coon, 974 P.2d 386, 392, 394-95 (Alaska 1999).  The Minnesota Supreme Court countered this argument by stating that “the Frye general acceptance standard ensures that the persons most qualified to assess scientific validity of a technique have the determinative voice.”  Goeb, at 813.  In Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009), the Maryland Court of Appeals established a compromise rule.  In Blackwell, the plaintiffs alleged that their child’s autism was caused by thimerosal in childhood vaccines.  The court reaffirmed its adherence to the Frye doctrine, characterizing the doctrine in Maryland as requiring that “[g]enerally accepted methodology . . . must be coupled with generally accepted analysis” by the expert.  This approach thus assures that the trial judge has the final word on acceptance of the evidence.

The debate continues, however, over whether the Frye doctrine relies on excessive deference to the scientific community on matters of a legal nature.  This disagreement is not likely to be resolved soon and is reflected in the split in the states over the adoption of the Daubert rule, which, in contrast, is heavily dependent on judges to evaluate the scientific evidence.

What will happen to nanotechnology studies in a Frye jurisdiction?

The answer may depend on whether the studies are viewed as new and untested because they involve materials at a scale that has generally not been previously studied for health and environmental impacts.  Frye does not favor new technologies.  Frye admissibility is premised upon a history of the technologies that has evolved to the point of receiving general acceptance in the particular scientific community.

On the other hand, an argument could be made that such studies are simply versions of well-established and generally accepted scientific studies, whether of an epidemiological nature (statistical studies of human populations) or a toxicological nature (such as studies on mice conducted in a laboratory).  It is worth noting, too, that studies of human populations generally take much longer to develop, and nanomaterials measurable in consumer products and the environment are a relatively new occurrence in the scheme of things.  Thus, the studies on nanomaterials now emerging are laboratory experiments.  See, for example, the studies summarized in Powell & Kanarek, Nanomaterial Health Effects – Part 1:  Background and Current Knowledge, 105 Wisc. Med. J. 16 (2006).

In the next post, I will examine the Daubert reliability standard.

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Daubertizing Nanolitigation – Part 1

Posted Jan.26, 2011 under Chemicals, Cosmetics, Drugs, Environment, Evidence, Food, Health, Litigation, Pesticides, Products Liability, Safety, Toxic Torts
usalawyerstoday.com

usalawyerstoday.com

Many of my posts have talked about the need for studies on the health, safety, and environmental effects of nanomaterials.  But it has been a long time since I raised the question of what these studies may mean for toxic tort litigation.  As in any litigation, the evidence, including scientific studies and the experts who interpret them, must be admissible under the relevant rules of evidence.  In the United States, there are two basic approaches to the admissibility of expert evidence in the courts – (1) the federal courts’ approach, which is governed by the Federal Rules of Evidence and a trio of cases beginning with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and (2) the approach known as the Frye test.  Regardless of the approach used by the particular court considering the evidence, early studies that may demonstrate health or environmental risks associated with nanomaterials will have an uphill battle for admissibility in the courts.

Over the next month, I intend to discuss some of these issues in a series of posts.  This post will consider the first question:  What is it about this evidence that will be so difficult for the courts?

To begin with, let’s briefly look at the rules for admissibility of the evidence in court:

 1.  Frye Test:  This test derives from the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a criminal case that involved a scientific lie-detection technique that was a sort of precursor to the modern lie-detector tests.  The court there said that “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Thus, courts view as admissible under this test only expert evidence derived from scientific studies or techniques in general use, and usually long-standing use, in the particular field, and which most experts in the field recognize as being reliable.

 2.  Daubert Test:  The Daubert case itself was a toxic tort, a prescription drug product liability action, so the Supreme Court had before it on the record scientific studies that resemble the kinds of studies of exposure-and-outcome that might be produced for nanomaterials.  The Supreme Court held that the test for admissibility of expert evidence under the Federal Rules is broader than the Frye test and requires that the proponent of the evidence demonstrate that it be reliable – i.e. that it be scientifically valid – and that it be relevant to a particular issue in the case, not that it merely be suggestive of health problems.  The Court emphasized that the trial judge is the “gatekeeper” who must make a determination at an early time in the litigation as to whether the expert evidence is admissible.  If it is not admissible, often plaintiffs’ cases are dismissed prior to trial.

 What evidentiary challenges will nanomaterial studies present?

 ●  The studies will provide only probabilistic evidence.  This means that the studies will only show statistical associations (probabilities) between exposure to a particular nanosubstance and a particular outcome (e.g. illness).  While the extent to which probabilistic evidence differs from traditional forms of proof in tort cases (such as motor vehicle accidents) is a matter of degree, the inability of the studies to confirm the causal relationship between exposure to a substance and the illness the plaintiff suffers will be problematic for plaintiffs’ cases.

 ●  The illnesses are likely to be “generic.”  Some substances previously studied are linked to “signature diseases,” which occur very rarely in the general population, but with greater frequency among people exposed to the substance.  Silicosis (silica dust), asbestosis (asbestos), and pleural mesothelioma (asbestos) are examples.  But most cancers, respiratory conditions, and neurological disorders, for example, are caused by a variety of triggers, some related to exposures, others genetic or idiopathic.  It is therefore difficult to differentiate those caused by a particular exposure and those arising for other reasons.

 ●  The nanostudies will be new.  Under either admissibility test, new and untested or unreplicated studies may not pass muster.  In toxic torts, history has shown that early plaintiffs may have considerable difficulty with the admissibility of their evidence; even if the evidence is ruled admissible, problems of proof arise because juries may not view the early evidence as having much weight.   As time goes on, these studies may gain more acceptance in the field – or, they may be proved to be aberrations.

 Next up:  Admissibility and scientific reliability of nanostudies.

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A Thank You and a Promise for the New Year

Posted Jan.02, 2011 under Bionanotechnology, Environment, Governmental Interaction, Health, International Nanoregulation, Toxic Torts
usalawyerstoday.com

usalawyerstoday.com

We would like to thank those of you out in cyberland who have found our blog – now only 9 months old – and have been interested in what we have to say about the emerging issues in nanotechnology and the law.  We hope that you continue to follow us in the coming months.

Writing a legal analysis blog has been a challenge.  Because of our interests in cutting-edge legal issues, in particular toxic torts and biotechnology, we have especially enjoyed the challenge of relating nanotechnology to existing and evolving legal doctrines.

Our promise for 2011 is to step up the pace of our posts while still maintaining our commitment to accurate and high-quality legal analysis.  As always, we welcome your comments on the blog.

Nanotechnology is a new frontier in the law, and we look forward to being able to offer readers our thoughts and insights on how the law will meet the challenges it presents.

 Best wishes for the new year.

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Will Nanoparticles Be the New Asbestos?

Posted Oct.18, 2010 under Environment, Health, Litigation, Nanobiotechnology, Nanotoxicology, Nanotubes, Products Liability, Research, Safety, Toxic Torts
http://www.techwall.org

http://www.techwall.org

The course of asbestos litigation is well known, as is the fact that there appears to be no end in sight.  Is nanotechnology producing the next asbestos?  Some groups are working to prevent nanoparticle litigation from following in the steps of asbestos litigation.

In 2009, the United Kingdom’s Institute of Occupational Medicine (IOM) issued a report asking the question whether High Aspect Ratio Nanoparticles (HARN) – most notably, carbon nanotubes – create some of the same health risks as asbestos fibers.  The fiber-like features of HARN, although man-made rather than naturally occurring, may or may not interact with the human body in asbestos-like ways. The importance of determining whether HARN raise similar health risks cannot be overstated.  These issues have yet to be resolved, with potential health risks lurking in the interim.  As is often the case, development of new technology has flown past the scientific community’s ability to determine and assess the technology’s risks.

Looking back at the history of asbestos litigation, some burning questions need resolution sooner rather than later.  For example:

●  Do HARN fibers remain in vivo or do they degrade before disease processes are initiated?

●  If HARN are shown to persist in the body, what is the likely impact on workers?  In the asbestos context, the impact was seen in thousands of workers who developed debilitating progressive obstructive lung disease and/or malignant mesothelioma.  Do HARN have the capacity to produce similar health problems?

●  Even if HARN do not appear to behave directly like asbestos fibers, could HARN cause other, unknown, adverse health effects?

●  What broader impact might HARN have outside the workplace, including consumer and environmental exposures?

Are we headed down the same litigation road with HARN that we traveled with asbestos?

The asbestos litigation debacle in the United States began modestly enough with workers’ compensation claims, which were first denied and eventually routinely paid.  When asbestos insulation workers successfully brought actions against the manufacturers of the products they used in the workplace, the litigation expanded exponentially and has continued to challenge the court systems.

How can we avoid another asbestos?  The answer begins with research, knowledge, and awareness.

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