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Nano-Torts on the Horizon: A Jack and Jill Story
Volume 9, Issue 2

J. Philip Calabrese and Stephanie E. Niehaus

To date, there has been little litigation surrounding nanotechnology generally, or nanosilver in particular. However, increasing criticism about the current state of scientific understanding of the potential health and environmental impacts of nanotechnology, combined with an emerging regulatory framework, raise the specter of litigation in the near term. In all likelihood, traditional principles of tort law will be used to frame and resolve disputes involving nanotechnology, meaning that consumer or other “no-injury” class actions are likely to emerge first. Although it is fair to say that most “nanotorts” are unlikely to proceed until a deeper understanding of nanotechnology and its potential risks to human health and the environment emerges, manufacturers of products incorporating nanotechnology should at least begin to anticipate litigation and take proactive steps to mitigate their legal exposure and understand their likely defenses, so that if and when litigation does emerge they are left holding more than just a proverbial “pail of water.”

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