The problem is that genomic technologies are complex and often involve science from many different disciplines. Accordingly, it can be difficult to fully grasp the implications of the relevant science or to determine exactly how new genomic data relates to general and specific causation.
Many lawyers involved with asbestos litigation recognize the importance of maintaining an awareness of the scientific literature related to genomics in the context of malignant mesothelioma (MM) and lung cancer (LC).
The problem is that genomic technologies are complex and often involve science from many different disciplines. Accordingly, it can be difficult to fully grasp the implications of the relevant science or to determine exactly how new genomic data relates to general and specific causation. Even more important, it is often unclear how genomic data can best be applied to defend your clients.
Make no mistake, as we have written in past posts, genomics has already emerged in asbestos trials and we predict that this trend will increase dramatically. Several lawyers and scientists have stated unequivocally that the time is now to prepare your legal team and strategies given the constantly emerging genomic landscape.
In this post we offer 5 specific actions that attorneys can take to ensure they are prepared to deploy advanced genomic science in asbestos litigation.
It is never too early to begin your expert recruitment efforts so that you are organized when the time comes to engage with genomic issues. This will help you respond to plaintiff allegations as well as to explore new strategies that may become apparent from the emerging scientific literature. You are likely to need experts in a variety of sub-disciplines, including one or more of the following:
A solid expert team will play a critical role in each of the additional steps described below.
As genomic data becomes more relevant to individual asbestos cases, it is increasingly critical to make well defined and specific discovery requests. This includes crafting the right interrogatories based on the medical information that you have available as well as very specific document requests. Your genomics expert team will obviously play a critical role in helping you to craft the best discovery strategy in this regard. One example, is whether or not it will be advisable to seek biological samples from plaintiff and deciding which type of sample you may need to analyze. Do you need a paraffin-embedded tumor block, or if possible, will a blood sample do?
Once you have obtained the necessary information in discovery, it will be essential to perform a detailed and informed review of this material. You will want to determine if the available genomic information was performed by credible and trustworthy laboratories as well as the conclusions made in reports regarding causation and diagnoses. You will want to align these findings with the published scientific information related to asbestos. Some of the genomic information may point to susceptibility genes, driver mutations, and other potential “omic” fingerprints that may be used to argue against causation or to counter plaintiff arguments arguing for causation.
After you have reviewed plaintiff’s medical records – including all relevant and available genomic data – it may be advisable to perform your own sequencing studies. This decision is obviously complex and will require input from your consulting and testifying expert team. Reasons for performing this sequencing might include responding to allegations that you expect plaintiffs to make relevant to their case (e.g., “eggshell” plaintiff arguments) or trying to come up with genetic factors that might have made the injury inherently more likely (i.e., alternate cause arguments).
Whether or not you ultimately decide to perform sequencing studies on plaintiff tissue samples, you should be ready with the appropriate resources, which should include a short list of high-quality laboratories with the necessary security and expertise in place. Qualities to evaluate in these labs include their equipment, their personnel and staff, litigation experience, and bandwidth to respond to requests in a timely fashion.
The genomic and molecular science related to BRCA-associated protein-1 (BAP1) has been emerging at a remarkable pace over the past decade or so. For example, conducting a simple PubMed literature search using the keywords “BAP1 mesothelioma” returns approximately 50 studies published in the last year alone. We expect this body of literature to expand as the knowledge base continues to increase. How are you and your team maintaining an awareness of this important emerging literature?
All of the tactics described in this post will empower you and your team to maintain a detailed awareness of the science related to genomics as it applies to asbestos litigation. Adhering to these approaches will help you to determine when you need additional discovery that can play a critical role in your cases and allow for rapid and effective genomic analyses when warranted in individuals or groups of plaintiffs. Finally, it will help with the interpretation of the science so that you are in the best position to mount the most informed and effective defensive.
Genomics is Changing Causation Evidence in the Courtroom Forever.
Download our Interview with Gary Marchant, J.D., Ph.D.
Just fill out the form below.
On Wednesday July 8, 2020, Dr. David Schwartz of Innovative Science Solutions presented at the IADC 2020 Virtual Annual Meeting on a panel titled The Use of Genetic Testing in the Courtroom. A complimentary copy of the panel presentation is now available for download. Read more
Dr. David Schwartz of Innovative Science Solutions will be presenting at the IADC 2020 Virtual Annual Meeting on a panel titled The Use of Genetic Testing in the Courtroom. Read more
Plaintiff experts having been asserting for decades that all mesotheliomas must be linked to some asbestos exposure. Indeed, this has led to the erroneous (but widespread) view that mesothelioma is a signature disease, only caused by asbestos exposure. Read more
The journey to scientific and commercial success is often complex and always critical, if you are looking for an expert partner to help steer you to confident solutions, contact us todayContact us