Tuesday, November 4, 2014
Advancements in nanotechnology have led to a proliferation of nanomaterials for both industrial and consumer use, raising concerns about the potential health effects of exposure to nanoparticles on both workers and the general public. Nanotechnology is generally defined as “the understanding and control of matter at dimensions between approximately 1 and 100 nanometers, where unique phenomena enable novel applications.” National Science and Technology Council et al., National Nanotechnology Initiative Strategic Plan 1 (Feb. 2014). On the one hand, these characteristics have led to research into previously unattainable applications, such as pesticides, electronics, and certain drug delivery systems within the human body. On the other hand, such developments have generated questions about health risks when nanoparticles are absorbed into the human body or interact with ecosystems in the environment. Scientists have noted that particles at the nano-scale behave differently than non-nano-scale particles of the same substances. Although the United States Government has been studying the risks of nanomaterials, there is disagreement over the need for discrete regulation of nanomaterials. To date, this is an ongoing debate. In advance of any comprehensive or consistent regulation, workers compensation claims and product liability litigation are likely to emerge.To both scientists and the legal community, concerns about the absorption of particles into human organs should raise the specter of asbestos and its half-century-and-counting journey through the legal system. That journey has been fraught with challenges for parties and courts.
A few of the many challenges for plaintiffs in asbestos litigation have been:
- The potentially long latency period for development of asbestos-related illness.
- Identifying the manufacturers to whose products a worker was exposed.
- Obtaining recovery for injuries arising from low exposures.
- Obtaining recovery for less common types of injuries.
Nanotechnology poses even more difficult challenges for plaintiffs because the nature, etiology, and latency period of any conditions that exposure to nanomaterials may cause, while suspected, are largely unknown at the present time. Asbestos exposure is associated with so-called “signature diseases” – asbestosis and mesothelioma – but nanomaterials have not yet been so strongly associated with any specific clinically identifiable illnesses.
Asbestos insulation manufacturers have faced substantial litigation challenges as well. A few of these are:
- Developing effective legal arguments in the shadow of reports that demonstrated the industry’s knowledge of the health hazards of asbestos to insulation workers as early as the 1930s.
- Objections from liability insurers regarding coverage.
- Managing the threat of bankruptcy from the overwhelming magnitude of claims and the size of punitive damages awards.
Nanotechnology firms and the industries that use their technology to create products could easily face the same challenges.
The legal system has been working for decades to find ways to effectively address the problems generated by asbestos litigation. Some of the challenges for the legal system have been:
- Determining how to resolve causation questions that arise from a single plaintiff’s multiple exposures to products manufactured by numerous defendants.
- Resolving disputes among insurers regarding triggers and extent of coverage.
- Managing mass litigation that includes both persons with present injuries and persons exposed to asbestos who may develop injuries in the future.
- Assessing the reliability of the many epidemiological and toxicological studies, particularly when the studies are few and new.
The legal system will confront these same challenges if and when nanotechnology lawsuits take hold. And as with asbestos, the threat of an eventual flood of litigation is very real.
Do scientists consider nanomaterials dangerous? Studies have emerged indicating that there is reason for concern about the health effects of nanoparticles on workers, consumers, and the environment. One recent study, for example, has examined the physicochemical properties of nanomaterials – e.g. size, density, chemical composition – to determine how the various properties may cause lung inflammation. See Hedwig M. Braakhuis et al., Physicochemical Characteristics of Nanomaterials that Affect Pulmonary Inflammation, 11 Fibre & Particle Toxicol. 18 (2014). On the basis of such preliminary studies, scientists are attempting to find ways to make nanomaterials safer, but answers may not be forthcoming in the near future. Carbon nanotubes, for example, serve a wide variety of unique industrial uses because of their extraordinary strength, light weight, flexibility, and conductivity at low temperatures. In a recent study addressing the possible risk of lung disease from inhalation of multi-walled carbon nanotubes, researchers coated nanotubes with aluminum oxide which were then exposed to the lungs of mice. The coating appeared to reduce the risk of lung fibrosis, but did not eliminate it altogether, thereby leaving open the possibility of other adverse effects or additional health effects after long-term exposure. See Alexia J. Taylor et al., Atomic Layer Deposition Coating of Carbon Nanotubes with Aluminum Oxide Alters Pro-Fibrogenic Cytokine Expression by Human Mononuclear Phagocytes In Vitro and Reduces Lung Fibrosis in Mice In Vivo, 9 PLOS ONE e106870 (2014). The risk of adverse lung effects is only part of the picture. In 2009, researchers at UCLA reported a connection between nanoparticles in some consumer products and genetic harm. See Benedicte Trouiller et al., Titanium Dioxide Nanoparticles Induce DNA Damage and Genetic Instability In vivo in Mice, 69 Cancer Res. 8784, 8787 (2009). Also, some early research into the environmental effects of nanotechnology has indicated that nanoparticles in the environment may interfere with certain ecosystems. The President’s Cancer Panel warned in 2010 that nanomaterials “safety research and regulation is lagging behind their creation.” President's Cancer Panel, Reducing Environmental Cancer Risk: What We Can Do Now (2008-2009 Annual Report) 40 (2010). That statement continues to be true.
Going forward, it will be necessary to exercise increased vigilance over the potential hazardous effects of nanotechnology and the legal challenges it poses for both regulators and courts. As with asbestos, nanotechnology is a highly useful technology. Its potential for extraordinary benefits is vast, and there is a temptation to advance the technology before its full effects can be understood.
It is time to plan ahead for the litigation to come. And it begins with understanding the risks of nanomaterials to human health and ecosystems, as well as the legal challenges those risks create.
For additional posts on the health and safety aspects of nanotechnology, see Jean Eggen’s Nanolaw Blog.