Be
afraid, very afraid, when litigation lawyers start to wrap their brains
around nanotechnology liability issues. The Defense Research
Institute’s For the Defense January 2012 issue features an article by John Delany, a founding member of Delany & O’Brien, in Philadelphia.
He
describes the potential for what is now a limited series of commercial,
patent, and regulatory skirmishes to become full-blown legal battles in
the near future. Here is an excerpt from the article titled “A
Litigator’s Guide to Health and Environmental Issues”:
“The
factors that could create a toxic, nanolitigation storm are (1)
ubiquitous exposure; (2) sympathetic plaintiffs; (3) sensational press
(4) reactive politicians; (5) product identification capability pointing
to a specific product or a specific defendant; (5) biomarker and
causation evidence; (6) corporate culpability; (7) state-of-the art
medical and liability; (8) the serious, objective, potentially permanent
nature of a potential injury due to nonmaterial exposure compared with
potentially subjective transitory injury; (9) deep pockets of recovery;
(10) product benefit-cost utility; and (11) warnings and personal
choices involved with exposure.
In
addition, judicial and legislative factors may affect the liability
picture, including potential immunities, economic caps, limitations on
punitive damages, joint and several liability, the collateral source
rule, venue shopping, removal to a federal court, preemption, and the
framework that the judiciary uses to manage and adjudicate claims, such
as multi-district litigation processes.”
According
to the author, one of the strategies Corporate America should consider
in order to reduce their potential exposure is “…lobbying for immunity
caps, class action restrictions, and tort reform”
