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"Nanotechnology: The Next Mass Tort?" ABA Mass Torts Litigation August 15, 2017

“Nanotechnology offers vast promise and potential,” Nanotechnology Practice Group chair Thomas P. Bernier and partner Brendan H. Fitzpatrick write in Mass Torts Litigation, an American Bar Association (ABA) publication. Yet, as with most fast-developing technologies, “the study and understanding of health and environmental risks … lag behind research into new applications.” While nanotechnology — the manipulation of matter on an atomic or molecular scale — advances at an increasing pace, preliminary studies suggest some nanomaterials may pose health and environmental risks. As such, “regulators, manufacturers, insurers, and attorneys must keep appraised of potential risks,” Tom and Brendan write. “Although claims of personal injury related to exposure to nanomaterials have not yet resulted in litigation, it may just be a matter of time.”

“The projected applications of nanotechnology are almost limitless and are incorporated into appliances, coatings, electronics, food, beverages, toys, games, clothing, cosmetics, paint, homes, pharmaceuticals, and textiles,” Tom and Brendan explain. Because of their projected ubiquity, nanomaterials that may have potentially dangerous properties now pose the risk of causing widespread damage and leading to mass torts. Carbon nanotubes, for example, are similar in shape to asbestos fibers. Studies on mice have shown that carbon nanotubes, like asbestos fibers, can because of their size and shape pierce mesothelial cell membranes — and may cause mesothelioma in humans.

Various government agencies, including the National Institute of Occupational Safety and Health (NIOSH) and the Environmental Protection Agency (EPA) have stepped up efforts to collect and review data and studies nanomaterials, but have not issued guidance on anything beyond reporting and recordkeeping. “For now,” Tom and Brendan write, “counsel must keep up-to-date on research developments because the indicators of a major toxic mass tort are present and building.”

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