Given all of the press this week regarding the Poland et al. letter in Nature Nanotechnology and the and Takagi et al. paper in the Journal of Toxicology — both of which discuss alleged "asbestos-like" effects of carbon nanotubes in mice-studies, we thought readers might be interested in an excerpt from our 2005 paper "Preparing for Future Health Litigation" published in Nanotechnology Law & Business.

Carbon nanotubes have already been compared to asbestos. The asbestos litigation crisis provides a useful case study to explain the importance of keeping products liability law in mind from the beginning of a product’s life cycle to the end. The Rand Institute for Civil Justice has estimated that as of the end of 2002, approximately (i) 730,000 people had filed asbestos related lawsuits; (ii) 8,400 entities had been named as defendants in those lawsuits; and (iii) a total of approximately $70 billion had been spent defending those lawsuits and compensating those with alleged injuries. Of that $70 billion, approximately $21 billion was spent on actual defense costs, while another approximately $49 billion went to plaintiffs and their attorneys. (Approximately $19 billion went to the plaintiffs’ attorneys, while $30 billion went to the actual claimants themselves). And it is not over: due to the decades-long latency period of alleged asbestos related diseases, most experts estimate that only 75 percent of the final number of asbestos claimants have come forward.

Asbestos litigation began in 1966 when Claude Tomplait filed the first asbestos products liability suit against 11 manufacturers of asbestos products after he was diagnosed with asbestosis. He lost his case, but three years later, a coworker, Clarence Borel, sued and won nearly $80,000 from the manufacturers of asbestos products that purportedly caused him injury. The “asbestos litigation crisis” began in earnest in 1974 when attorney Steven Kazan filed, and ultimately won, a civil suit against the Johns-Manville Corporation on behalf of an employee who developed asbestosis after working in the company’s Pittsburg, California plant for 29 years. In 1981, the California Supreme Court upheld an award of damages against Johns-Mansville – damages that would ordinarily be foreclosed due to the state’s workers compensation laws. Specifically, attorney Kazan and his associates alleged that internal memoranda and letters showed that the manufacturers of asbestos had conspired to suppress knowledge of the hazardous effects of asbestos on human health as early as the 1930s."

In addition, as the body of scientific knowledge regarding negative alleged health consequences of asbestos exposure grew, trial lawyers sought out and found huge populations of workers and others that allegedly suffered significant occupational exposure to asbestos, despite having never worked in an asbestos factory. As time went on, asbestos litigation widened to include plaintiffs allegedly exposed to asbestos in construction jobs, power plants, oil refineries, shipyards and more. This “widening” trend continues to this day. According to the same Rand survey, claims by these workers have been increasing at a far greater pace than those by workers in “traditional” industries. (17% to 22% faster pace). In fact, the trial lawyers have begun a new strategy to further increase the number of asbestos claimants: suits on behalf of persons potentially exposed to asbestos, but who have not actually yet taken ill. It is unclear how the courts will come out on this issue.

The pattern of mass tort litigation showcased in the asbestos litigation has important implications for the nanotechnology industry. The pattern of lawsuits in the asbestos context may repeat in this area: first, those plaintiffs with the greatest and most direct exposure to nanotechnology products will sue. Then, after the trial lawyers have “skimmed the cream” off the top of the claimant pool, they will search for new theories of liabilities to allow more claimants to sue more and more corporations, including corporations very “remote” from the source of the alleged injury.

Asbestos litigation left nothing short of economic devastation in its wake for the companies that manufactured or otherwise used asbestos. While the trial lawyers argued that those companies who allegedly conspired to cover up the dangers associated with asbestos “deserved” to be bankrupted, it is also true that an even greater number of defendants who were only remotely involved in manufacturing the product met the same fate. Indeed, products liability is a strict liability cause of action, meaning that good intentions, lack of negligence, and best efforts are largely irrelevant. If a nanotech product is found to be defective and causes an injury to someone, the manufacturer and distributor of that product are presumptively liable.