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Insurers' Response to Nanotech Suits

By Charles J. Fischette and Marialuisa S. Gallozzi

Insurers, policyholders, and the plaintiffs' tort bar anticipate that nanotechnology claims may soon be a serious source of potential liability even though no lawsuits have yet been filed and great uncertainty exists about the adverse effects, if any, of exposure to nanomaterials. See Connie Germano, Managing the Emerging Risks of Nanotechnology, John Liner Rev., Summer 2008, at 30; Linda K. Breggin & Leslie Carothers, Governing Uncertainty: The Nanotechnology Environmental, Health, and Safety Challenge, 31 Colum. J. Envtl. L. 285 (2006); Ronald C. Wernette, The Dawn of the Age of Nanotorts, Prod. Safety & Liab. Rep., Apr. 2009; Stephen Goldberg, Nanotechnology May Be Tiny, But Exposures Could Be Huge, P&C Nat'l Underwriter, Dec. 7, 2009. Many commentators have encouraged policyholders and insurers to take steps now to assess exposures and implement risk management controls. See, e.g., Kristine L. Roberts, Nanotechnology and the Future of Litigation, Litig. News, Winter 2010, at 6, 7-8; Lloyd's, Risks: Lloyd's Emerging Risk Team Report (2007).

The vacuum of information concerning risks posed by nanotechnology and nanomaterials makes risk management planning difficult, if not impossible. See Robin Fretwell Wilson, Symposium: How Do We Develop Regulatory Policy in the Context of Limited Knowledge About the Risks, 34 J.L. Med. & Ethics 704 (2006); Breggin, supra. This article addresses that gap and explores the insurance implications of the likely “first wave” of lawsuits ' suits arising out of exposure to nanomaterials in the absence of evidence of actual physical injury or harm. It explores three scenarios where plaintiffs are likely to be exposed to nanomaterials in the near future. Nanotech suits are likely to raise many of the same coverage questions that apply to more traditional and well-known liabilities, but the uncertainty regarding nanotechnology's potential for harm and its unique nature mean that past experiences (and judicial decisions) provide only limited guidance.

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