The Coming Age of Nanotorts

“I never think of the future, it comes soon enough.”

' Albert Einstein

Dear Mr. Einstein, The Age of Nanotechnology has arrived. Nanoscience went from imagination to reality in the 1980s with the birth of cluster science and the invention of the scanning tunneling microscope. The development of new tools like atomic force microscopes, scanning probes, and optical tweezers have enabled rapid advances in the past 20 years, continuously improving our ability to measure and manipulate individual molecular structures. Within a few short decades, nanotechnology has shown the potential to deliver revolutionary advances ' amazing, economy-disrupting, life-changing advances ' in almost every facet of our lives. Yet few lawyers understand what nanotechnology is and even fewer have a grasp of how the nanotechnology revolution is likely to influence tort litigation.

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), hastened the assimilation of scientific understanding into the law, requiring that lawyers have sufficient expertise to understand, assess, and explain science. In the coming Age, litigating nanotechnology-related claims will require that judges and lawyers become much more sophisticated consumers of science. Space limitations require this article to assume a basic level of nanotechnology knowledge. For a more extended recent discussion of nanotechnology basics, potential health and environmental risks, and current nanotechnology regulatory initiatives, see Wernette and Nilsen, Nanotorts: The Legal Risks of Nanotechnologies, For The Defense, November 2008. This article very briefly describes the current state of hazard assessment knowledge and suggests likely near and longer term risks of product liability and related litigation involving commercialized nanotechnologies.

Nanotechnology Risk Overview

While the commercialization of nanotechnologies is already well underway, sufficient information exists to warrant caution. With regard to engineered nanomaterials, the caution is founded on two characteristics: particle size and other particle properties.

First, nanomaterial size and shape facilitates biological and environmental mobility, allowing the movement of nanoscale substances through organisms and the ecological system that would be prohibited to their macro-sized counterparts. Studies of naturally occurring ultra-fine particles suggest that particle size alone can impact toxicity equally, if not more so, than chemical composition. See NTP Nanotechnology Safety Initiative Fact Sheet, available at http://ntp.niehs.nih.gov/?objectid=7E6B19D0-BDB5-82F8-FAE73011304F542A.

Nanoscale devices and particles are hundreds or thousands of times smaller than human cells and many can easily enter most cells and migrate out of blood vessels as they circulate through the body. As such, they represent a new category of potentially toxic substances. How do manufactured nano-structures, with molecular structures and physical properties heretofore unknown, behave in living organisms, including humans? The limited research so far indicates that some nanoparticles can bypass the human body's natural defenses against larger particle substances. For example, inhaled nanoparticles can move from the lungs into the blood and then to other organs and ingested nanoparticles also reach the organs much more readily than larger particles. It has already been observed that some nanoparticles are capable of bypassing the blood-brain barrier.

Second, the unique physicochemical properties that make nanoscale materials exciting and useful may increase their biological and environmental risk. Properties aside from size that may be relevant to the ecological hazard and biological toxicity of nanomaterials include: size distribution; shape; agglomeration state; biopersistence, durability, and solubility; surface area; surface charge; surface chemistry/coatings; porosity; chemical composition; trace impurities and contaminants; and crystallinity. See ASTM Int'l, Standard Guide for Handling Unbound Engineered Nanoscale Particles in Occupational Settings, E2535-07 (2007). How large are the health and environmental risks of nanomaterials? Right now, no one knows. Existing scientific knowledge about nanomaterial risk is scarce, while the body of work is growing. Little is known about the acute or chronic toxicity of nanoparticles in general or the effects of the various unique particle-specific charactersistics noted above. The commercialization of nanotechnology over the past ten years has rapidly outpaced the research to address possible health, environmental, and safety risks. It will take years for studies about exposure routes, the effects on human health, and effects on the environment to reach what may be viewed as conclusive results.

Some scientists speculate that something can be learned from the study of other small-scale materials, such as mineral fibers, naturally occurring ultra-fine particles, and welding fumes, although only tentative and inferential conclusions can be attempted because engineered nanomaterials have unique properties heretofore unknown and unstudied. Experts also agree that engineered nanomaterials differ so much from bulk substances that existing safety-assessment models are inadequate for nanomaterials because the potential adverse health effects and environmental risk of nanoparticles cannot be reliably or validly predicted from known toxicity of the bulk materials. Making valid science-based risk assessments for use in the legal realm will require an understanding of both the toxicity characteristics as well as the levels of exposure that are likely to occur, for each specific type/class of nanomaterial. Nanoparticles can be inhaled, ingested, and perhaps absorbed through the skin. Study will also be necessary to determine the impact, if any, on uptake route as it pertains to dose-response for various nanomaterial types/classes.

In sum, neither existing risk assessments for bulk materials nor the body of scientific knowledge concerning other small-scale materials is a substitute for nanomaterial-specific research. New scientific research is required. Given the wide range of new nanoparticle types, sizes, and formats, it will be many years before this information is significantly developed. Even then, the information will be highly material-specific and broad generalizations about risk assessment related to nanomaterials will be inapplicable.

Projected Nanotorts Litigation

No one knows yet whether nanotechnologies will be shown to have harmful consequences or whether they present only phantom risk. Experience teaches that when there are concerns about possible health and safety hazards, trial lawyers ' using both the management of public and political risk perception and then actual litigation ' are never far behind. When nanotort claims are made, they can be expected to cover the full range of tort litigation: both individual and mass tort/class action personal injury; workers' compensation; environmental contamination/cleanup; consumer protection; and property damage. See, e.g., Monica, Jr., et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, Feb./Mar. 2006; Miller, A Matter of Torts: Why Nanotechnology Must Develop Processes of Risk Analysis, 232 N.Y.L.J. 67 (2004).

Despite the uncertainties of health and environmental hazards, nanotorts are a virtual certainty. Why? Because a large, well-financed plaintiffs' mass tort infrastructure is in place. That mechanism, financed initially by tobacco and asbestos litigation, has been used with some success for other target substances such as lead, benzene, silica, welding fumes, medical devices, and pharmaceuticals. The plaintiffs' mass tort infrastructure consists of two equally important and sophisticated parts: 1) the creation and management of public and political risk perception; and 2) the pursuit of litigation. Well-honed on other substances, both aspects are well suited for application to the Age of Nanotechnology.

It is a fact of American law that new technology breeds new litigation. Furthermore, it has been the case that tort lawsuits in toxicity and biological areas in particular tend to get ahead of the science, especially where sufficient political and public risk perception exists. The sophisticated plaintiff's toxic tort/mass tort bar understands that the current high level of scientific uncertainty about nanoparticle risk makes it near-impossible to meet the burden of proof of causation ' general and specific ' recognized in both federal and state courts in the context of toxic exposure personal injury and wrongful death claims. The science needed to assess hazards of nanomaterials in the fields of toxicology, epidemiology, and industrial hygiene, let alone meeting the standards for admissibility of such scientific evidence under Daubert, is likely to be many years in the making. On the flip-side, there is not yet a solid base of scientific work that can be used by the nanotechnology industry and its lawyers, to feel confident that nanotorts will not become asbestos redux.

Medical Monitoring Claims

One area of possible early nanotort activity, because it has the potential to avoid some of the stringent causation problems described above in some jurisdictions, concerns medical monitoring claims. Medical monitoring claims ' recognized in many, but not all, jurisdictions ' are divided into two types: jurisdictions requiring present physical harm and those with no present physical harm requirement. For a recent breakdown of courts that recognize medical monitoring claims and those that do not, see Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 6-7 nn.3-5 (Miss. 2007). For those jurisdictions with a present physical injury requirement, the burdens described above for nanoexposure claims are essentially the same, making it very difficult for plaintiffs to succeed in exposure cases.

One expects that good lawyers representing claimants will attempt to overcome or sidestep some of the current hurdles by making novel arguments about what constitutes a “physical injury,” especially in cases alleging nanomaterial exposure. Arguments will be made that exposure to novel man-made nanomaterials requires fashioning new law based on the unique biological issues presented by nanomaterials that have no precise legal analog. For example, will unwanted nanomaterial exposure be sufficient to prove an injury where it can be shown to have created subclinical, cellular, and/or subcellular changes, but without any diagnosed disease process? Will proof of bioaccumulation of nanomaterials in specific organs be sufficient? The dawn of the Age of Nanotorts means the opportunity for many novel arguments and the necessity of difficult judgments where emerging science is being evaluated by judges and juries using traditional common law concepts that may be ill-suited to the task.

A discussion of novel and controversial injury theories advanced by some alternative medicine practitioners is beyond the scope of this paper, but the complexities, unknowns, and fear perception raised by nanotechnologies makes nanoparticle exposure almost certain to be a target of practitioners in fields such as “environmental medicine ” and “ clinical ecology.” Many of those practitioners staunchly advance an agenda that exposures to many common chemical substances are toxic, and various nonspecific ailments and negative health conditions are caused by such exposures, such as multiple chemical sensitivity, chronic fatigue syndrome, attention deficit disorder, muscle and joint pain, cardiovascular disease, hormone imbalance, and a variety of other syndromes and “ailments of unknown etiology.” The author's rich experience with such claims suggests that arguments claiming exposure to new man-made nanoparticles has triggered such disorders and ailments is a virtual certainty. Consider the alarm sounded, and risk managers and their counsel alike will be called upon to focus much more attention on the scientific validity of those unconventional medical fields and controversial ailments.

For those jurisdictions that do not require proof of a present physical harm, an increased risk of harm is sufficient to justify a medical monitoring claim. Courts are further divided as to the extent of the increased risk necessary to support a claim for medical monitoring. It is on this last point that the lack of hard science establishing a link between exposure to a specific nanomaterial and increased risk of any particular illness or disease process can prove legally fatal, even for a medical monitoring case in a “no present injury” jurisdiction. Nevertheless, the advent of tort litigation concerning nanomaterials that have no precedential risk assessment in science or the law creates the opportunity for claimant attorneys to press for new ways of assessing what constitutes harm and relevant risk. That legal ground is still unplowed.

Traditional Toxic Exposure Class Action Claims

For those hoping to pursue mass tort class action claims, the challenge is even greater where class certification requires that the showing that common issues of fact and law predominate over individual issues of fact and law. Such a showing will be virtually impossible for nanomaterial exposure claims because issues of individual plaintiff exposure, dose, medical history, causation, and damages will predominate. Despite the difficulty of class action certification in the mass tort/toxic exposure area, plaintiffs have had some pockets of success that may be applied in the nanotechnology context.

For example, class certification may be achieved if an action is divided into phases that allow for class-based litigation of some issues involving issues of common proof (e.g., negligence, whether the product was unreasonably dangerous, failure-to-warn, entitlement to punitive damages), while providing for determination of individual liability and compensatory damages in separate phases. See, e.g., 7-Eleven, Inc. v. Bowens, 857 N.E.2d 382 (Ind. Ct. App. 2006) (affirming class certification on issues of liability and general causation only, excluding individual issues of exposure, specific causation, and damages, in case alleging injuries from leaking underground storage tanks); Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)(affirming class action jury findings on general liability issues ' cigarettes were defective and unreasonably dangerous, defendants concealed information on risks of smoking, and defendants were negligent ' but decertifying class for further proceedings due to predominance of individual issues of causation, comparative fault, and damages). Class certification has also recently been affirmed in the context of medical monitoring claims, in those jurisdictions recognizing such claims in the absence of a present physical injury. In such cases, because individual class members need not prove an actual injury, the courts are more inclined to find that the key issues are matters of common proof. See, e.g., Meyer v Flour Corp., 220 S.W.3d 712 (Mo. 2007)(lead exposure from lead smelting plant).

'No Injury' Consumer Class Action Claims

For the reasons already described, although more aggressive claimant counsel can be expected to try and push the legal envelope with novel legal arguments where nanomaterial exposure is alleged, it is unlikely that nanotort cases alleging traditional toxic exposure personal injury, especially class action suits, will be successful unless and until a signature illness or condition is discovered. Meanwhile, more probable nanotort litigation is pursuit of so-called “no injury” or “fraud light” claims. Pursued primarily as class actions, these cases have sprung up in the past decade in direct response to the increasing difficulty with proving personal injury in the mass tort and exposure context and the problems of obtaining class certification. Typically brought pursuant to state consumer protection statutes, these claims do not allege any personal injury at all; rather, they seek only economic damages in the form of a refund of the product purchase price. Seeking only an economic remedy avoids almost all of the difficult causation issues. In addition, the state consumer law statutes at issue typically do not require all the elements of common law fraud, e.g., proof of actual reliance by a particular plaintiff. The elimination of that individual issue of fact, combined with the elimination of difficult-to-prove individual personal injury causation, makes class certification and summary judgment survival much more likely.

Conclusion

Nanomaterials have special properties and present the promise of untold benefits to mankind, but with resultant risks that are still largely unknown. In the absence of legislative or regulatory action not yet contemplated, the revolutionary changes expected to be brought about by nanotechnology will play out within the established framework of American tort liability law that has accommodated and addressed every emerging technology of the past. Mass tort and toxic exposure lawyers have important roles to play in the realm of nano-risk perception as well as in nanotort litigation ' roles that could significantly impact the degree to which the fantastic economic and societal benefits of nanotechnologies are realized.

Ronald C. Wernette is a partner with Bowman and Brooke LLP in the firm's Troy, MI, office where he focuses his practice on toxic tort, product liability, and other personal injury defense. He is a member of the DRI Product Liability Committee and the ABA Section of Science & Technology Law. He can be reached at [email protected].

“I never think of the future, it comes soon enough.”

' Albert Einstein

Dear Mr. Einstein, The Age of Nanotechnology has arrived. Nanoscience went from imagination to reality in the 1980s with the birth of cluster science and the invention of the scanning tunneling microscope. The development of new tools like atomic force microscopes, scanning probes, and optical tweezers have enabled rapid advances in the past 20 years, continuously improving our ability to measure and manipulate individual molecular structures. Within a few short decades, nanotechnology has shown the potential to deliver revolutionary advances ' amazing, economy-disrupting, life-changing advances ' in almost every facet of our lives. Yet few lawyers understand what nanotechnology is and even fewer have a grasp of how the nanotechnology revolution is likely to influence tort litigation.

Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993), hastened the assimilation of scientific understanding into the law, requiring that lawyers have sufficient expertise to understand, assess, and explain science. In the coming Age, litigating nanotechnology-related claims will require that judges and lawyers become much more sophisticated consumers of science. Space limitations require this article to assume a basic level of nanotechnology knowledge. For a more extended recent discussion of nanotechnology basics, potential health and environmental risks, and current nanotechnology regulatory initiatives, see Wernette and Nilsen, Nanotorts: The Legal Risks of Nanotechnologies, For The Defense, November 2008. This article very briefly describes the current state of hazard assessment knowledge and suggests likely near and longer term risks of product liability and related litigation involving commercialized nanotechnologies.

Nanotechnology Risk Overview

While the commercialization of nanotechnologies is already well underway, sufficient information exists to warrant caution. With regard to engineered nanomaterials, the caution is founded on two characteristics: particle size and other particle properties.

First, nanomaterial size and shape facilitates biological and environmental mobility, allowing the movement of nanoscale substances through organisms and the ecological system that would be prohibited to their macro-sized counterparts. Studies of naturally occurring ultra-fine particles suggest that particle size alone can impact toxicity equally, if not more so, than chemical composition. See NTP Nanotechnology Safety Initiative Fact Sheet, available at http://ntp.niehs.nih.gov/?objectid=7E6B19D0-BDB5-82F8-FAE73011304F542A.

Nanoscale devices and particles are hundreds or thousands of times smaller than human cells and many can easily enter most cells and migrate out of blood vessels as they circulate through the body. As such, they represent a new category of potentially toxic substances. How do manufactured nano-structures, with molecular structures and physical properties heretofore unknown, behave in living organisms, including humans? The limited research so far indicates that some nanoparticles can bypass the human body's natural defenses against larger particle substances. For example, inhaled nanoparticles can move from the lungs into the blood and then to other organs and ingested nanoparticles also reach the organs much more readily than larger particles. It has already been observed that some nanoparticles are capable of bypassing the blood-brain barrier.

Second, the unique physicochemical properties that make nanoscale materials exciting and useful may increase their biological and environmental risk. Properties aside from size that may be relevant to the ecological hazard and biological toxicity of nanomaterials include: size distribution; shape; agglomeration state; biopersistence, durability, and solubility; surface area; surface charge; surface chemistry/coatings; porosity; chemical composition; trace impurities and contaminants; and crystallinity. See ASTM Int'l, Standard Guide for Handling Unbound Engineered Nanoscale Particles in Occupational Settings, E2535-07 (2007). How large are the health and environmental risks of nanomaterials? Right now, no one knows. Existing scientific knowledge about nanomaterial risk is scarce, while the body of work is growing. Little is known about the acute or chronic toxicity of nanoparticles in general or the effects of the various unique particle-specific charactersistics noted above. The commercialization of nanotechnology over the past ten years has rapidly outpaced the research to address possible health, environmental, and safety risks. It will take years for studies about exposure routes, the effects on human health, and effects on the environment to reach what may be viewed as conclusive results.

Some scientists speculate that something can be learned from the study of other small-scale materials, such as mineral fibers, naturally occurring ultra-fine particles, and welding fumes, although only tentative and inferential conclusions can be attempted because engineered nanomaterials have unique properties heretofore unknown and unstudied. Experts also agree that engineered nanomaterials differ so much from bulk substances that existing safety-assessment models are inadequate for nanomaterials because the potential adverse health effects and environmental risk of nanoparticles cannot be reliably or validly predicted from known toxicity of the bulk materials. Making valid science-based risk assessments for use in the legal realm will require an understanding of both the toxicity characteristics as well as the levels of exposure that are likely to occur, for each specific type/class of nanomaterial. Nanoparticles can be inhaled, ingested, and perhaps absorbed through the skin. Study will also be necessary to determine the impact, if any, on uptake route as it pertains to dose-response for various nanomaterial types/classes.

In sum, neither existing risk assessments for bulk materials nor the body of scientific knowledge concerning other small-scale materials is a substitute for nanomaterial-specific research. New scientific research is required. Given the wide range of new nanoparticle types, sizes, and formats, it will be many years before this information is significantly developed. Even then, the information will be highly material-specific and broad generalizations about risk assessment related to nanomaterials will be inapplicable.

Projected Nanotorts Litigation

No one knows yet whether nanotechnologies will be shown to have harmful consequences or whether they present only phantom risk. Experience teaches that when there are concerns about possible health and safety hazards, trial lawyers ' using both the management of public and political risk perception and then actual litigation ' are never far behind. When nanotort claims are made, they can be expected to cover the full range of tort litigation: both individual and mass tort/class action personal injury; workers' compensation; environmental contamination/cleanup; consumer protection; and property damage. See, e.g., Monica, Jr., et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, Feb./Mar. 2006; Miller, A Matter of Torts: Why Nanotechnology Must Develop Processes of Risk Analysis, 232 N.Y.L.J. 67 (2004).

Despite the uncertainties of health and environmental hazards, nanotorts are a virtual certainty. Why? Because a large, well-financed plaintiffs' mass tort infrastructure is in place. That mechanism, financed initially by tobacco and asbestos litigation, has been used with some success for other target substances such as lead, benzene, silica, welding fumes, medical devices, and pharmaceuticals. The plaintiffs' mass tort infrastructure consists of two equally important and sophisticated parts: 1) the creation and management of public and political risk perception; and 2) the pursuit of litigation. Well-honed on other substances, both aspects are well suited for application to the Age of Nanotechnology.

It is a fact of American law that new technology breeds new litigation. Furthermore, it has been the case that tort lawsuits in toxicity and biological areas in particular tend to get ahead of the science, especially where sufficient political and public risk perception exists. The sophisticated plaintiff's toxic tort/mass tort bar understands that the current high level of scientific uncertainty about nanoparticle risk makes it near-impossible to meet the burden of proof of causation ' general and specific ' recognized in both federal and state courts in the context of toxic exposure personal injury and wrongful death claims. The science needed to assess hazards of nanomaterials in the fields of toxicology, epidemiology, and industrial hygiene, let alone meeting the standards for admissibility of such scientific evidence under Daubert, is likely to be many years in the making. On the flip-side, there is not yet a solid base of scientific work that can be used by the nanotechnology industry and its lawyers, to feel confident that nanotorts will not become asbestos redux.

Medical Monitoring Claims

One area of possible early nanotort activity, because it has the potential to avoid some of the stringent causation problems described above in some jurisdictions, concerns medical monitoring claims. Medical monitoring claims ' recognized in many, but not all, jurisdictions ' are divided into two types: jurisdictions requiring present physical harm and those with no present physical harm requirement. For a recent breakdown of courts that recognize medical monitoring claims and those that do not, see Paz v. Brush Engineered Materials, Inc. , 949 So. 2d 1, 6-7 nn.3-5 (Miss. 2007). For those jurisdictions with a present physical injury requirement, the burdens described above for nanoexposure claims are essentially the same, making it very difficult for plaintiffs to succeed in exposure cases.

One expects that good lawyers representing claimants will attempt to overcome or sidestep some of the current hurdles by making novel arguments about what constitutes a “physical injury,” especially in cases alleging nanomaterial exposure. Arguments will be made that exposure to novel man-made nanomaterials requires fashioning new law based on the unique biological issues presented by nanomaterials that have no precise legal analog. For example, will unwanted nanomaterial exposure be sufficient to prove an injury where it can be shown to have created subclinical, cellular, and/or subcellular changes, but without any diagnosed disease process? Will proof of bioaccumulation of nanomaterials in specific organs be sufficient? The dawn of the Age of Nanotorts means the opportunity for many novel arguments and the necessity of difficult judgments where emerging science is being evaluated by judges and juries using traditional common law concepts that may be ill-suited to the task.

A discussion of novel and controversial injury theories advanced by some alternative medicine practitioners is beyond the scope of this paper, but the complexities, unknowns, and fear perception raised by nanotechnologies makes nanoparticle exposure almost certain to be a target of practitioners in fields such as “environmental medicine ” and “ clinical ecology.” Many of those practitioners staunchly advance an agenda that exposures to many common chemical substances are toxic, and various nonspecific ailments and negative health conditions are caused by such exposures, such as multiple chemical sensitivity, chronic fatigue syndrome, attention deficit disorder, muscle and joint pain, cardiovascular disease, hormone imbalance, and a variety of other syndromes and “ailments of unknown etiology.” The author's rich experience with such claims suggests that arguments claiming exposure to new man-made nanoparticles has triggered such disorders and ailments is a virtual certainty. Consider the alarm sounded, and risk managers and their counsel alike will be called upon to focus much more attention on the scientific validity of those unconventional medical fields and controversial ailments.

For those jurisdictions that do not require proof of a present physical harm, an increased risk of harm is sufficient to justify a medical monitoring claim. Courts are further divided as to the extent of the increased risk necessary to support a claim for medical monitoring. It is on this last point that the lack of hard science establishing a link between exposure to a specific nanomaterial and increased risk of any particular illness or disease process can prove legally fatal, even for a medical monitoring case in a “no present injury” jurisdiction. Nevertheless, the advent of tort litigation concerning nanomaterials that have no precedential risk assessment in science or the law creates the opportunity for claimant attorneys to press for new ways of assessing what constitutes harm and relevant risk. That legal ground is still unplowed.

Traditional Toxic Exposure Class Action Claims

For those hoping to pursue mass tort class action claims, the challenge is even greater where class certification requires that the showing that common issues of fact and law predominate over individual issues of fact and law. Such a showing will be virtually impossible for nanomaterial exposure claims because issues of individual plaintiff exposure, dose, medical history, causation, and damages will predominate. Despite the difficulty of class action certification in the mass tort/toxic exposure area, plaintiffs have had some pockets of success that may be applied in the nanotechnology context.

For example, class certification may be achieved if an action is divided into phases that allow for class-based litigation of some issues involving issues of common proof (e.g., negligence, whether the product was unreasonably dangerous, failure-to-warn, entitlement to punitive damages), while providing for determination of individual liability and compensatory damages in separate phases. See, e.g., 7-Eleven, Inc. v. Bowens , 857 N.E.2d 382 (Ind. Ct. App. 2006) (affirming class certification on issues of liability and general causation only, excluding individual issues of exposure, specific causation, and damages, in case alleging injuries from leaking underground storage tanks); Engle v. Liggett Group, Inc. , 945 So. 2d 1246 (Fla. 2006)(affirming class action jury findings on general liability issues ' cigarettes were defective and unreasonably dangerous, defendants concealed information on risks of smoking, and defendants were negligent ' but decertifying class for further proceedings due to predominance of individual issues of causation, comparative fault, and damages). Class certification has also recently been affirmed in the context of medical monitoring claims, in those jurisdictions recognizing such claims in the absence of a present physical injury. In such cases, because individual class members need not prove an actual injury, the courts are more inclined to find that the key issues are matters of common proof. See, e.g., Meyer v Flour Corp., 220 S.W.3d 712 (Mo. 2007)(lead exposure from lead smelting plant).

'No Injury' Consumer Class Action Claims

For the reasons already described, although more aggressive claimant counsel can be expected to try and push the legal envelope with novel legal arguments where nanomaterial exposure is alleged, it is unlikely that nanotort cases alleging traditional toxic exposure personal injury, especially class action suits, will be successful unless and until a signature illness or condition is discovered. Meanwhile, more probable nanotort litigation is pursuit of so-called “no injury” or “fraud light” claims. Pursued primarily as class actions, these cases have sprung up in the past decade in direct response to the increasing difficulty with proving personal injury in the mass tort and exposure context and the problems of obtaining class certification. Typically brought pursuant to state consumer protection statutes, these claims do not allege any personal injury at all; rather, they seek only economic damages in the form of a refund of the product purchase price. Seeking only an economic remedy avoids almost all of the difficult causation issues. In addition, the state consumer law statutes at issue typically do not require all the elements of common law fraud, e.g., proof of actual reliance by a particular plaintiff. The elimination of that individual issue of fact, combined with the elimination of difficult-to-prove individual personal injury causation, makes class certification and summary judgment survival much more likely.

Conclusion

Nanomaterials have special properties and present the promise of untold benefits to mankind, but with resultant risks that are still largely unknown. In the absence of legislative or regulatory action not yet contemplated, the revolutionary changes expected to be brought about by nanotechnology will play out within the established framework of American tort liability law that has accommodated and addressed every emerging technology of the past. Mass tort and toxic exposure lawyers have important roles to play in the realm of nano-risk perception as well as in nanotort litigation ' roles that could significantly impact the degree to which the fantastic economic and societal benefits of nanotechnologies are realized.

Ronald C. Wernette is a partner with Bowman and Brooke LLP in the firm's Troy, MI, office where he focuses his practice on toxic tort, product liability, and other personal injury defense. He is a member of the DRI Product Liability Committee and the ABA Section of Science & Technology Law. He can be reached at [email protected].