{"id":490,"date":"2009-02-25T12:35:54","date_gmt":"2009-02-25T12:35:54","guid":{"rendered":"http:\/\/neu.innovationsgesellschaft.ch\/?p=490"},"modified":"2013-11-08T15:30:47","modified_gmt":"2013-11-08T15:30:47","slug":"the-big-business-of-nano-litigation","status":"publish","type":"post","link":"http:\/\/innovationsgesellschaft.ch\/en\/the-big-business-of-nano-litigation\/","title":{"rendered":"The Big Business of Nano Litigation"},"content":{"rendered":"

(Rick Weiss on Science Progress<\/em>) It suddenly struck me while attending a two-day nanotechnology conference in Washington last week: I should have gone to law school.<\/p>\n

This fascinating conference, sponsored by the Food and Drug Law Institute and aimed largely at company officials, offered panel after panel of lawyers telling nanotech execs how to avoid getting sued by\u2026other lawyers.<\/p>\n

Whether it\u2019s about suing or being sued, it seems that nanotechnology\u2014and every other new technology with a still-uncertain benefit-to-risk ratio\u2014is a 21st century Full Employment Act for attorneys.<\/p>\n

\u201cIf you think nanotech liability claims are never going to be a problem, you\u2019re dreaming,\u201d said Lynn L. Bergeson, a partner at Bergeson & Campbell P.C. in Washington, noting that even a \u201cfear of disease\u201d is sufficient basis these days for filing a lawsuit. That\u2019s a standard that may not be difficult to meet today given the array of worrisome, if inconclusive, studies about the possible health risks posed by nanotech\u2019s microscopic fibers and engineered particles, which, depending on who you ask, are either the key to future techno-prosperity or the harbingers of environmental and medical Armageddon. It\u2019s even possible, Bergeson said, that a court might consider it a violation of current worker safety laws if a company is not maintaining detailed records of each employee\u2019s exposure to nanomaterials, for reference years later should certain cancers or other ailments come to be associated with the high-tech materials.<\/p>\n

In short, if you are a nanotech company you need to start developing a legal strategy for \u201chow to protect yourself,\u201d summarized Henry Chajet, an attorney with Patton Boggs. Listening, I felt sheepish for thinking it was about how to protect your employees and customers.<\/p>\n

Truth be told, such defensiveness is understandable. Some critics have exaggerated the negative health implications of preliminary animal studies involving nanomaterials and have unfairly ignored the technology\u2019s real promise. And plaintiffs\u2019 attorneys already are boldly trolling the Internet for potential clients who believe they may have been harmed by nanotechnology.<\/p>\n

\u201cThey are actively hunting for that next [equivalent to an] asbestos case, which, by the way, made them billions,\u201d said James Chen of Crowell & Moring LLP, a DC-based food and drug law firm.<\/p>\n

One of the best ways to stay clear of such lawsuits is to post adequate safety warnings for workers and consumers, Chajet advised, so that any user who eventually claims to have been harmed by the stuff can be argued in court to have been a \u201csophisticated user\u201d\u2014someone who was aware of the risks and took them anyway.<\/p>\n

Nowhere is the nanotech industry\u2019s nervousness about its own potential liability more apparent than in its relationship with regulators, several of whom also made presentations at the FDLI conference. Agencies such as the Environmental Protection Agency and the Food and Drug Administration are still trying to work out how nanotech fits into existing regulations, and whether new guidances or rules may be required to protect the public. That means that for now, at least, regulators are largely relying on their sparkling personalities and cajoling invitations to \u201ccome talk to us\u201d just to find out what nano-companies are up to.<\/p>\n

Not that any lawyer would encourage a company to participate.<\/p>\n

\u201cYou can be the government\u2019s guinea pig if you turn in a lot of data,\u201d warned George Burdock, president of the Burdock Group, an Orlando-based consulting firm. While companies should do enough safety tests of their products to show they were reasonably diligent, Burdock added, they should not overdo it. \u201cDon\u2019t test yourself out of a product,\u201d he advised.<\/p>\n

Given warnings like that one, it should not be surprising that companies have hardly been lining up at regulator\u2019s doors. Fewer than 30 companies have offered information under a one-year-old EPA program that asks nanocompanies to volunteer information. In the words of Jesse Barkas, a program attorney in EPA\u2019s chemical control division, that\u2019s \u201creally pretty low participation.\u201d What\u2019s more, participating companies have ultimately provided \u201clittle actual data,\u201d Barkas lamented. And for those of you who might want to know more, don\u2019t come to the EPA. Much of what the companies provided is classified as \u201cconfidential business information\u201d so is unavailable for public review.<\/p>\n

Participation has been even lower for the agency\u2019s voluntary \u201cin-depth\u201d program, in which companies are asked to divulge even more details about their products. Only four companies have volunteered, Barkas said. And although they have been generally forthcoming about the physical characteristics of their products, they have provided \u201cvery little data on eco-toxicity.\u201d<\/p>\n

All told, Barkas said, there is a \u201cpretty big gap\u201d between what the agency knows about nanoproducts and what is out there on the marketplace. The agency needs a lot more information, she said, \u201cso we can get our arms around what it is we are regulating.\u201d<\/p>\n

In a few cases, nonetheless, the EPA has begun to use sticks as well as carrots. In March it will begin enforcing a decree that requires all manufacturers and importers of carbon nanotubes\u2014some types of which have been shown to cause tissue damage similar to that caused by asbestos fibers\u2014to notify the agency before releasing their products onto the market. Federal regulators also recently declared that they will demand tighter controls on nanoscale particles of titanium dioxide (used in paints and pigments) and alumina\/silica, in recognition of the added health risks these ultrafine powders appear to pose compared to their larger particulate cousins.<\/p>\n

Some states are also getting tougher. In January, California\u2019s Department of Toxic Substances Control sent letters to the 27 companies and universities that it believes are manufacturing or importing carbon nanotubes, and asked a series of tricky legal questions such as: \u201cWhen released, does your material constitute a hazardous waste under California Health & Safety Code provisions?\u201d<\/p>\n

\u201cI\u2019m not here to give legal advice,\u201d said John Monica, of Porter Wright Morris & Arthur LLP, a Washington law firm, \u201cbut\u2026God help you if you say \u2018yes\u2019 to that.\u201d<\/p>\n

Jim O\u2019Reilly, of Baker & Daniels in Cincinnati, encouraged nanotech execs to hire a few experts to do enough basic studies so they can at least argue that they made a good effort to determine employee risks. The expense will pale in comparison to the cost of defending yourself in a tort case, he said, noting that \u201cfor one lawyer\u2019s time you can hire four industrial hygienists.\u201d<\/p>\n

Given all the money being spent and made in the field of nano-liability, some are wondering aloud what they will do for a living if this self-sustaining element of the U.S. economy ever peters out. In the words of Donald Ewert, an environmental health and safety manager at Oso BioPharmaceuticals Manufacturing LLC in Albuquerque: \u201cI\u2019m wondering\u2026what we\u2019re all going to do when we find out that nanotechnology is not dangerous?\u201d<\/p>\n

But lawyers are nothing if not good at spotting the next income stream. \u201cSynthetic biology!\u201d one quickly shouted, referring to the controversial new science of making artificial bacteria and viruses from scratch.<\/p>\n

Well, I\u2019m not here to give legal advice. But if you think you\u2019ve been harmed by a synthetic life form, there is definitely an attorney out there who wants to talk to you.<\/p>\n

Source: Science Progress<\/a>
\nAuthor: Rick Weiss is a Senior Fellow at the Center for American Progress and Science Progress.<\/p>\n","protected":false},"excerpt":{"rendered":"

Attorneys are hard at work protecting nanotech makers - what about consumers? Rick Weiss (Senior Fellow at the Center for American Progress and Science Progress) summing up a recent conference examining the legal protections corporations are taking to defend themselves in the event their products turn toxic highlights regulatory questions.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[],"class_list":["post-490","post","type-post","status-publish","format-standard","hentry","category-nanotechnology"],"_links":{"self":[{"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/posts\/490","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/comments?post=490"}],"version-history":[{"count":0,"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/posts\/490\/revisions"}],"wp:attachment":[{"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/media?parent=490"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/categories?post=490"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/innovationsgesellschaft.ch\/en\/wp-json\/wp\/v2\/tags?post=490"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}