As noted by Michael Heintz earlier today, the National Institute for Occupational Safety and Health (NIOSH) just published a Current Intelligence Bulletin, entitled "Interim Guidance for the Medical Screening of Workers Potentially Exposed to Engineered Nanoparticles." Although the interim document is not binding on NIOSH or the general public, it is still interesting to consider from a potential liability perspective.
We have previously presented on the issue of a nanomanufacturer’s duty to warn (or lack thereof)regarding potential adverse health effects allegedly associated with exposure to certain nanoscale materials in light of the current uncertainty of scientific studies. One of the most interesting conclusions of the NIOSH bulletin is that,
"No substantial link has been established between occupational exposure to engineered nanoparticles and adverse health effects."
In short, although NIOSH recommends: (i) prudent measures to control potential worker exposure; (ii) hazard surveillance activities; and (iii) and established medical surveillance techniques to identify any potential nano-exposure issues, the bottom line is NIOSH believes ". . . insufficient medical evidence exists at this time to recommend the specific medical screening of workers potentially exposed to engineered nanoparticles."
Even though the "substantial link" language used by NIOSH may appear "helpful" from a manufacturer’s perspective, companies still need to be aware in some states potential liability attaches when there is only a “possible/potential” scientific association between exposure and injury. See., e.g., Garfinkle v. Bayer Corp., 779 N.Y.S.2d 71 (S.Ct. NY 2004). Other states have gone so far as to attach liability where there was only slight evidence even "tending to show” such an association. See, e.g., Miller v. Pfizer, Inc., 2000 WL 968792 (D. KS. 2000).
Finally, it is interesting to note NIOSH acknowledges a potential "litigation bias" might arise from simply creating a workplace exposure registry for nanoscale materials. The Idea that attention from NIOSH may spawn a new wave of litigation is not far-fetched. As an example, plaintiffs’ attorneys relied heavily on NIOSH findings when bringing so-called “popcorn lung” cases over the past few years. These cases, which allege that occupational exposure to diacetyl (a popcorn butter ingredient) causes lung disease, were mostly filed after NIOSH investigated health complaints relating to popcorn workers in Missouri. Many argue the early government attention was followed directly by civil litigation.