New Nanotechology Rule and Handling Toxic Torts

After a wait of more than 10 years, on January 12, 2017, the EPA issued its final rule relating to reporting requirements under TSCA for nanoscale chemicals, being the agency’s first time in requiring such reporting.

We will not attempt to set out the particulars of the reporting requirements (e.g., what substances are reportable under the rule and what substances are not) but will make two observations for the mass torts practitioner, especially young lawyers, to consider as an exemplar of how to handle a mass toxic tort matter.

First, with the EPA’s rule, will we see an uptick in the scientific literature regarding nanoparticles and any alleged toxic effects, which might provide groundwork for tort claims by purportedly exposed persons? Having in place a system for remaining abreast of current scientific literature for a substance of concern is important. This can also help in being prepared to identify potential experts if you are brought into a case, or for rendering advice to a client who might want engage in research regarding the substance.

Second, we note a trend to utilize such regulatory developments and corresponding scientific literature for litigation sounding in a consumer-based theory, rather than a traditional toxic tort, the advantage to which is avoiding the difficult and expensive causation issues. For example, on the heels of the IARC (International Agency for Research on Cancer) classification of the pesticide glyphosate as a “probable” carcinogen, class action lawsuits were filed against Quaker Oats claiming that the product was wrongfully promoted as “100% Natural” because the crops were treated with glyphosate. See, e.g., Gibson v. The Quaker Oats Co., No. 1:16-cv-04853 (N.D. Ill. filed May 2, 2016).

In a traditional toxic tort, the fact that glyphosate is a legal, approved chemical; the difficulties in establishing causation (i.e., providing epidemiological studies sufficient to demonstrate legal causation, not just associations) and reconstructing the plaintiffs’ exposures and doses; and the limitations on class actions in such circumstances, comprise significant hurdles.  However, in the context of a consumer theory, a little bit of science, manifested in a regulatory development, might make a claim colorable. For example, in the Quaker Oats cases, the plaintiffs allege that “Consumers lack the scientific knowledge to determine whether Quaker Oats [are “natural] or to assess the safety of ingesting glyphosate,” and therefore, must rely on the producer’s information (who then is to blame for somehow not recapping all the underlying science on the side of a cereal box).

It would seem that such cases will still ultimately turn on the science—whether there is any there there—which reinforces the importance of our first point above.

This article is reprinted with permission from the American Bar Association.