The latest piece from Rick Weiss at Science Progress is a must-read for anyone concerned about the safety of nanotechnology. Weiss attended a conference sponsored by the Food and Drug Law Institute where lawyers provided advice about avoiding nanotech-related lawsuits, and learned this:
In short, if you are a nanotech company you need to start developing a legal strategy for “how to protect yourself,” summarized Henry Chajet, an attorney with Patton Boggs. Listening, I felt sheepish for thinking it was about how to protect your employees and customers. …
One of the best ways to stay clear of such lawsuits is to post adequate safety warnings for workers and consumers, Chajet advised, so that any user who eventually claims to have been harmed by the stuff can be argued in court to have been a “sophisticated user”—someone who was aware of the risks and took them anyway.
“‘Sophisticated user’ is a great defense,” Chajet said. “That’s how we’ve escaped liability for lots of clients.”
And, of course, companies can study the effects of the materials they’re using – but only to a point:
Jim O’Reilly, of Baker & Daniels in Cincinnati, encouraged nanotech execs to hire a few experts to do enough basic studies so they can at least argue that they made a good effort to determine employee risks. The expense will pale in comparison to the cost of defending yourself in a tort case, he said, noting that “for one lawyer’s time you can hire four industrial hygienists.”
I hope companies using nanomaterials also have advisors who are telling them that they should study nanotech risks in order to provide workplaces free of serious recognized hazards, as the Occupational Safety and Health Act requires.
This is one reason why we need government agencies to do science: we can’t rely on industry to conduct studies that might show their products or workplaces to be harmful. It’s a pricey job, but it can save a whole lot of expense and anguish when the Next Big Thing turns out to be as dangerous as asbestos.
Also, much as we hate to think that only the threat of lawsuits – and not concern for workers and consumers – motivates companies to do safety research, we’re lucky that they do face that threat. Since last year’s Supreme Court decision in Wyeth v. Levine, medical device manufacturers no longer have to the risk of lawsuits to motivate them to be more safety-conscious. Congress may effectively undo that decision by passing legislation granting consumers the right to sue medical device companies, but the lesson is clear: There are many industries that would like to eliminate or weaken the threat of litigation, and we need to make sure consumers and workers maintain the right to sue – because the threat of a lawsuit can be a powerful motivator to operate safely.
For more on the conference, including news about what FDA and EPA are doing around nanomaterials, read the whole post here.