By ilise feitshans • March 07, 2017•Careers, Legal Academia
Experts quoted in popular articles on the web and in serious law articles have asked whether “nanotechnology is the next asbestos” and some have claimed that “nanotechnology torts” are a sleeping giant. This raises the question whether the recent vogue of assuming that asbestos litigation is a valid paradigm that foreshadows litigation about Nanotechnology. For international lawyers, this question looms increasingly important as the inevitable interact between local laws protecting local products are mingled with the principles and products of international commerce. Although anyone can be sued at any time for any reason, far more dangerous risks than asbestos exposure have passed through commerce without the notorious litigation of asbestos fame. Why? Several emerging theories suggest that risk or danger is not the relevant criterion that preoved to be outcome determinative in the course of asbestos kitigation in sevral nations. Litigation surrounding asbestos exposure is an outgrowth of failure to warn about known dangers of potential harm; many judges and juries found a wilful plan to hide information about dangers. Therefore, people who were exposed in the workplace or as consumers could not take precautions to mitigate risk. Thus itnernational lawyers must become apprised of the methods of epidemiology, risk analysis and risk management in order to effective represent the interests of their clients without creating undue confusion between asbestos substance effects and nanotechnology, a process that impacts thousands of chemicals. Litigation that broke open the Pandora’s box of medical evidence regarding asbestos and regulations that were an outgrowth of the public demand for protection in response to those harms is now, however, embedded into the regulatons that govern international transport storage and handling of most goods. International laws, USA laws and the global harmonization of chemical safety agreements are examples of modern law that encourages use of toxic and hazardous substances, so long as safeguards are applied and known dangers have been disclosed. This dilemma raises the question whether candid discussion of known risks, absent in the early history of asbestos use is the best prevention against potential litigation. Disclosing that problems are unquantified is not the same as hiding known dangers; disclosure of the known but unquantifiable risks can avoid potential liability so long as the disclosure is accurate. Candid disclosure of accurate statements aboutof accurate statements about risk is the criterion that will distinguish any effort to shackle nanotechnology in toxic torts compared to the ghosts of asbestos litigation that haunt us today. These questions will keep lawyers employed in both defense and plaintiff postures and as regulators for decades in the future.