The growing knowledge of genetic factors and their interaction with environmental factors has the power to forever change mass tort and class action litigation.
In July, a St. Louis jury awarded $4.7 billion in damages in a mass tort suit against Johnson & Johnson. Trial lawyers for 22 women charged that using the company’s iconic baby powder caused their clients to develop ovarian cancer. As many as 9,000 similar suits are said to be pending.
Sensational though it was, what could be called the Great Talc Case may be remembered as the beginning of the end of multi-plaintiff chemicals-and-cancer suits.
At the center of every suit of this kind is the presumption that all people react to all environmental exposures at all levels in the same way. That is why, as with the 22 Great Talc Case women, everyone sues together and their lawyers point to statistical correlations (that may or may not indicate a common cause) to pursue gigantic judgments.
But genomics could make it increasingly hard to win the kind of all-plaintiffs-in-the-pool lawsuits seen in most toxic tort courtrooms today.
Disease Resistance Is in Genetic Code
All of us carry within us a genetic code. Most know that this code determines our most prominent characteristics: sex, height, eye color, left or right handedness, and much more. But few realize that it also influences our resistance to numerous diseases, none more than cancer—and not just cancer generally but to highly specific cancers, papillary thyroid cancer, acute myeloid leukemia (AML) or peritoneal mesothelioma, for example.
To illustrate: eight genes are highly associated with papillary thyroid cancers. If at conception any two come up together in the genetic slot machine’s windows, the new person will be at increased risk of developing papillary thyroid cancer very young, regardless of environmental exposures.
Likewise, there are twelve extremely rare and hereditary mutations in Fanconi anemia subtype protein, each of which can dramatically increase the risk of developing AML. A variant known as CDKN2A especially predisposes carriers to die of cancers that involve double-strand breaks in DNA, which smoking, sun and other environmental exposures all trigger.
The definitiveness of such findings varies from cancer to cancer, but our understanding continues to grow. For example, we are learning to use genomics to determine whether an individual is resistant to benzene-induced AML.
Genomics can already provide an indication that an individual is resistant to AML. But we don’t yet have the same level of understanding about whether an individual is genetically resistant to asbestos-induced mesothelioma. Similarly, it is well known that mutations of BRCA2 play a major role in driving ovarian cancer.
Bad News for Litigation
The clarity of genomics is bad news for litigation that exploits the fog of epidemiology. Epidemiological data are the opposite of genomic data. Epidemiology covers large populations. It makes no judgments about whether a particular individual will develop a particular cancer as a result of a particular environmental factor generated by a particular factory or product. Genomics comes closer to answering the question that matters: Did this chemical cause a change in person A but not in person B?
Epidemiology certainly has an important place in science, but likely less so, as time goes on, in the courtroom. Genomics is far more suited because it tries to find out whether a chemically induced mutation caused a specific cancer or something else did.
Epidemiology, by contrast, offers probabilities about broad populations. A genomic analysis is necessary to provide detail about the individual, which is what matters in the fact-specific cases that come to trial.
Advanced genetic examination could soon show in a dispute like the Great Talc Case that some substance other than talc induced the cancer in some of the plaintiffs, that other plaintiffs were the victims of an insurmountable hereditary tendency toward ovarian tumors or that one suffered from a spontaneous genetic flaw.
Precise Information Is Powerful
Generic mass tort and class action litigation makes no sense when information can be this precise and nuanced. According to Len van Zyl Ph.D. of ToxicoGenomica, which advises litigants in toxic tort cases, “We are already seeing courts and lawyers make use of genetic information in toxic tort cases.”
As with all disruptive innovations, the use of genomics in chemicals-and-cancer lawsuits has understandably met with skepticism and caution among plaintiff and defense attorneys. Both recognize that this new information changes the game, but neither is certain just how.
For mass-tort plaintiff attorneys it may end some mega paydays. For defense attorneys it may confirm that some plaintiffs are without question entitled to awards.
But what no one can doubt is that the one undisputed winner will be more most important party in any courtroom—justice.
Dr. Bob Wassman is the chief executive officer and chief medical officer of Life Designs Ventures. He is a medical geneticist focused on reproductive medicine, rare cell diagnostics, and next-generation DNA sequencing, and has been founder and CEO or CMO at six genetic-medical companies.
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