James O’Reilly, “Nano’s Dirty Little Secret: Industrial Users of Nanotechnology Should Start Developing a Daubert Strategy and Liability Defenses,” BNA Product Safety & Liability Reporter, February 2009
University of Cincinnati College of Law Professor James O’Reilly recommends that defense lawyers begin preparing now for a reasonably predictable wave of litigation involving exposures to nano-sized materials that are being used in increasing number in a variety of foods and other products. According to O’Reilly, defense lawyers should be partnering with the health, safety and environmental professionals in key client organizations and starting to revise material safety data sheets, referring to them as important vehicles for risk disclosure and excellent defense tools.
O’Reilly also suggests that counsel (i) “urge investment in engineering controls on the lines where the nanoparticles are dumped, sprayed or handled”; (ii) “encourage the medical department or industrial hygiene team to track the medical and compensation claims of lung and internal organ problems, and lost-time illnesses, that have both a base line among the worker population before nano-materials use, and a potential for a ‘spike’ increase after a period of use of the nanoparticles inside the workplace”; (iii) “be a ‘best practices’ advocate to the manager who makes the decision about worker safety investments”; and (iv) “watch the casualty insurers for signs of a selective aversion to nano-materials.”
O’Reilly asks, “Why let your client become a much-publicized defendant in a landmark jury verdict and controversial set of appeals, when your client can invest less money and gain more worker appreciation by ventilation upgrades and issuing better personal protective equipment?” He also notes that the United States is lagging behind other countries in “gathering nanoparticle exposure and toxicity information,” and speculates that “a deep pocketed plaintiff with sophisticated resources could utilize global scientists to make the case in a Delaware or Nevada courtroom.”
In a related development, a leading Australian consumer group has reportedly raised concerns about the introduction of foods using nanotechnology without notice to the public. According to a spokesperson for Choice, “[U]nder our current food code there’s no requirement for any of this to be specifically labeled [as to] the use of nano-particles. They’re so small they can actually enter cells and enter parts of the body, which might not routinely happen with normal food stuffs.” The group is apparently calling for government agencies to provide greater oversight. The Australian Office of Nanotechnology reportedly responded that it is reviewing requirements for foods using nanotechnology and that Food Standards Australia New Zealand (FSANZ) will require such products to undergo a safety assessment and may institute labeling rules. See Australian Food News, March 30, 2009.
