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"

A Litigator's Guide to Health and Environmental Issues