Justinian Lane

When does the medical monitoring start?

It's not much of an exaggeration that carbon nanotubes could turn our sci-fi fantasies into reality.  They weigh very little and are as strong as a diamond.  Their potential is limitless, both in application and in profitability.  How about a car that's twice as strong as an SUV but weighs half as much as a compact?  Or lightweight body armor superior to anything made today?  Or a safe way to target cancer cells for drug delivery?  Only time will tell if they turn out to be the miraculous material they appear to be.

There was another substance once hailed as miraculous: asbestos.  We know now that in addition to its useful properties, asbestos causes asbestosis and mesothelioma.  And now a study has shown that carbon nanotubes may carry some of the same risk:

Here's a scientific study with legal implication for business: "Carbon nanotubes introduced into the abdominal cavity of mice show asbestos-like pathogenicity in a pilot study." Published last week in the journal, "Nature Nanotechnology," the report prompted a rash of news coverage, which from what we've seemed, carried a reasonable sense of balance, caution and caveats.

The basic finding was that long carbon nanotubes -- in contrast to the short or curly ones -- created conditions in mice abdomen that resembled lesions that lead to mesothelioma in humans.

Prominently featured in all was the study's coauthor, Andrew Maynard, a physicist and chief science adviser to the Project on Emerging Nanotechnologies at the Woodrow Wilson International Center for Scholars in Washington. In The New York Times, Maynard said, "I think there is clear evidence for caution in how they are used and handled." He told The Los Angeles Times that the greatest danger was to workers involved in the manufacturing of nanotubes who might inhale the dust. ....

NPR's "Science Friday" carried a 24-minute segment on the study, again, pretty balanced. But several of the callers displayed the kind of uncertainty and anxiety that can produce a cultural and political environment that invites litigation. The thought kept recurring: When do the suits start? | PointOfLaw Forum: Nanotubes are to Asbestos as Litigation is to Litigation

The wave of asbestos litigation occurred because a group of evil men - and I don't use the word lightly - decided to conceal the fact that asbestos causes mesothelioma from their workers.  They made the conscious decision to let thousands upon thousands of workers die of cancer rather than implement necessary safety procedures or discontinue the use of asbestos in their factories.  Rather than worrying about when the lawsuits will begin, why not worry about the health of the workers who had been exposed to long nanotubes without proper protection?  Why not wonder when nanotube manufacturers will begin a medical monitoring program for those workers who may have breathed in carbon nanotube dust? 

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Posted at 2:03 PM, May 28, 2008 in Asbestos | News
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There are few things that have been studied so extensively as the reaction of carbon nanofibers to host tissues. In fact, the study you related showed that there was granulation formation. Granulation is the bodies response to foreign bodies and is seen with fungal infections, sarcoidosis and other foreign bodies. The study does not show that there is cancer formation. Further, the study is well removed from the area of medical research where the integration of carbon nanofibers with host tissue is being well elucidated.

Carbon nanofibers are being used in microintegration of electrode arrays for the purposes of the Artificial Retina Program, and Functional Electric Stimulation of paralysed muscles not to mention the substrate for the propigation of tissue culture.

The medial picked up on the study because they though it would be a sensationalized, they were right. They did not look to see what other research was out there and as a result we very well might see a promising new technology vanish because of potential litigation before it even gets off the ground.

Posted by: throckmorton | May 29, 2008 10:00 AM

I'll trust the accuracy of your comments, as I haven't had a chance to investigate these studies further. I sincerely hope you're right and that these won't be "the next asbestos." However, I'm very doubtful that the industry will abandon products that stand to make tens of billions in profit over the threat of litigation if causation can't be proven. A quarter of a trillion dollar settlement against big tobacco didn't cause them to stop selling smokes...

Posted by: Justinian Lane | May 29, 2008 10:44 AM

"A quarter of a trillion dollar settlement against big tobacco didn't cause them to stop selling smokes..."

Of course not. That's because the trial lawyers didn't want tobacco to stop selling smokes. The settlement created a cartel protecting tobacco companies from future competition, and transferred wealth from smokers to lawyers; the tobacco industry, facing lawsuits in states where the trial lawyers bribe judges and where the law had been changed retroactively, agreed to it. A large chunk of tobacco profits is effectively spoken for by trial lawyers.

Your mistake is thinking that the plaintiffs' bar doesn't put profits before people.

Posted by: Ted | May 29, 2008 11:57 AM

So what you're saying is that even under the worst of circumstances, carbon nanotubes will stay on the market?

I kid, I kid.

Seriously, let's hope that (a) cancer fears are unwarranted, and (b) the nanotube industry does the right thing and makes sure workers and consumers are properly protected.

Posted by: Justinian Lane | May 29, 2008 12:57 PM

The nice thing about being a member of the plaintiffs' bar is that we don't really have to worry about losing our livelihood, should companies give up irresponsible behavior. There's always some other wrongdoer happy to insure that we will have employment for many years.

throckmorton, as I'm sure you know, you present a false dilemma. It's not a choice between using nanotubes or letting adorable children die. The whole point of publicizing this research is to allow manufacturers to take precautions now, rather than assume "of course this research is preliminary" or "why bother, it's not exactly like asbestos" and have to deal with real injuries years down the road. Asbestos can be used safely if the proper precautions are taken and people are educated about its use. No reason that carbon nanotubes would be any different.

Posted by: mythago | May 30, 2008 9:42 PM


I hope you are right but we are already seeing the result of the threat of litigation on new technology and products. The most recent example is the research that showed that COX-2 agents were protective from colon cancer. Although the data showed that this could decrease the incidence of cancer, comapanies immediately stopped all investigation secondary to potential lawsuits.

Whether we like it or not, it is all about economics. The threat of litigation is a huge deterent to large R&D expenses and carbon nanotubes represent a huge R&D expense. This expense is largely paid by private corporations who will be reluctant to stake the money for the risk of litigation. They would rather let someone else develope the product and then the potential liability risk. This is called off shore out sourcing and is also known as China.

You are absolutely right that members of the plaintiff's bar will not have to worry about losing their livelihood as legal malpractice litigation is rapidly increasing.

Posted by: throckmorton | June 1, 2008 7:08 PM

throckmorton, if 'the threat of litigation' were enough to shut down entire industries, there would BE NO R&D. Yet, somehow, drug companies still invent new drugs and the world has not given up on carbon nanotubes. And you're right that litigation is one thing driving manufacture to China, but not in the way you thing; it's much cheaper to make products in a country where workers have no legal rights.

I am intrigued by your assertion that 'legal malpractice litigation is rapidly increasing'; any source for this? If true, it should be a boon for the defense bar as well. Y'all don't make a dime unless we're filing lawsuits.

Posted by: mythago | June 2, 2008 10:03 PM

"throckmorton, if 'the threat of litigation' were enough to shut down entire industries, there would BE NO R&D."

You mean like in the non-existent American contraceptive industry? Or in the American private aircraft industry, which would have been bankrupted if not for tort reform?

Posted by: Ted | June 2, 2008 11:39 PM

Yes, it was a shame when Merck closed its doors and when Pfizer gave up on its last promising drug and moved all operations to Kazakhstan, all because of the American civil litigation system. Faced with the threat of consumer lawsuits, the American pharmaceutical industry died a long time ago.

Can you think of any reason other than plaintiffs' attorneys that there have not been major advances in contraception?

Posted by: mythago | June 4, 2008 5:43 PM

Ted, Mythago: Don't forget the major advance that is the miracle of the Ortho-Evra patch. In addition to killing lots of women in their teens and twenties, it also isn't any more effective than the pill.

Posted by: Justinian Lane | June 4, 2008 5:46 PM


It actually turns out that that the patch was far more effective. This has to do with complainace with the treatment. When compared to a cohort of patients who actually complied and took the medication there was no difference. In the general population where compliance was an issue it showed an advantage.

The issue with PE s harder to determine. The studies did not seperate those with other risk factors such as obesity, smoking and use for other conditions. This is still being determined.

What the patch does show is that no matter the science, the liabilty will be far greater for any company that resides in the US.

Posted by: throckmorton | June 5, 2008 1:25 PM

Throckmorton: I won't bore you with arcane details of civil procedure, but basically any pharmaceutical that sells a product in the U.S. is subject to liability in U.S. courts. There may be other reasons not to locate in the U.S., but fear of the liability system isn't one of them. A foreign company selling its products to the U.S. will be subject to the same jury verdicts.

And as for compliance? If you can't figure out how to take a pill every day, you probably shouldn't be having sex in the first place. :-)

Posted by: Justinian Lane | June 5, 2008 2:13 PM