Science and Law
23rd April 2015

Genomics is Changing Causation Evidence in the Courtroom Forever

Genomic science is finding its way into multiple facets of our legal system and it is establishing itself as a major force changing the face of causation evidence in the courtroom. We recently caught up with Gary Marchant to talk about his view on the role of genomics in the legal arena and his view on how this science is likely to change the practice of law in complex cases involving personal injury, product liability, toxic tort, and intellectual property cases.

Genomics is Changing Causation Evidence in the Courtroom Forever

An Interview with Gary Marchant, JD, Ph.D.

 

Genomic science is finding its way into multiple facets of our legal system and it is establishing itself as a major force changing the face of causation evidence in the courtroom. We recently caught up with Gary Marchant to talk about his view on the role of genomics in the legal arena and his view on how this science is likely to change the practice of law in complex cases involving personal injury, product liability, toxic tort, and intellectual property cases.

 

 

Gary Marchant is a professor at Arizona State University (ASU) Sandra Day O’Connor College of Law where he teaches courses related to environmental and health sciences, technology, genetics, and the law. Gary, however, is not your typical law professor. In addition to his JD, Gary has a Ph.D. in genetics and a degree in public policy. With that knowledge in hand, Gary has been, and remains, way out ahead of most lawyers in appreciating the intersection between molecular biology and the legal rules for “toxic tort” litigation.

Gary’s research interests include the use of genetic information in environmental regulation, risk and the precautionary principle, legal aspects of personalized medicine, and regulation of emerging technologies such as nanotechnology, neuroscience and biotechnology. With so many interests, Gary joined ASU precisely because the undergraduate and graduate schools are very focused on and believe in multi-disciplinary thinking. Over time, one result was the creation of the law school’s Center for Law, Science and Innovation, an institution where Gary and others push forward with conferences, meetings and papers that are breaking new ground on important topics at the intersection of science and the law. The Center also publishes a wide-ranging blog, Bits, Blots, and Biomarkers, that covers new developments related to genetic science and the law.

In 2009, Gary and his colleagues published a groundbreaking article that every toxic tort lawyer should read.

 

Below is an excerpt from our interview with Gary

 

Schwartz: What exactly is genomic technology, -omics, and epigenetics? Do you think these techniques are going to have an impact in the courtroom?

Marchant: There are two different types of genomic information that are relevant to the courtroom. One is the genomic information you’re born with, including the billions of base pairs that form at the moment of conception. We’re now able to find out a lot about which variations affect how we metabolize things coming in to our body, whether they are drugs, chemicals, or food, which are some of the more variable ones. We can now identify which of those genes we have. We’re moving very quickly into the world of whole-genome sequencing. I imagine that in the next five or ten years, most people are going to have their whole genome on a chip, and so it’s going to show right there what things you are more susceptible and less susceptible to, what genes you have that make you more likely to get diseases, and whether you will live longer or live shorter. All that is going to be right there. So this black box will now be a known quantity that we can look at in litigation. That’s going to have all kinds of profound implications.

The second major type of genomic information is changes that occur to our genome that are brought about by certain exposures or other things we encounter in our life. This involves changes to the gene or changes to the gene expression and which genes get turned on or off. The term epigenetics as used as an umbrella for some of these processes. Cancer treatment has been completely revolutionized in the last two years because they’re now looking at the tumor and genetic and epigenetic changes to try to figure out what therapy is best for you.

And these techniques will also have major legal implications for toxic tort litigation. The detailed findings scientists can now produce will help to show if or how you’ve been injured or that you’ve been exposed to a chemical or that you can quantify an exposure. In some instances, the analysis may exonerate a defendant. Genomic data also will be used to show that you are at risk of a certain disease because of your past exposure. These types of questions will now actually be testable with actual data. These questions and data will revolutionize personal injury litigation.

Give an example of what you believe the scientific evidence in a toxic torts case might look like in twenty years.

So, I think that, in twenty years, almost everyone’s going to have his or her whole genome on a chip. Therefore, the defense will look at that data for the plaintiff and interrogate it to look for factors that could be used in defending against a liability. A plaintiff, in contrast, will be able to look at that same data for factors that might increase the case for liability or causation. So both sides will use this information to go beyond the evidence we have now, which is imprecise and non-individualistic. Both sides will also be able to look at a particular individual for indications of what did or did not cause their outcome or illness or whatever they have. That’s going to be the revolution. Genomic information will come into play in almost every case, even accident cases, because how you respond to an accident, what your life expectancy is going to be, is partly determined by this information, which is going to be easily available to both sides.

So I see this becoming a major part of future litigation, but it’s going to raise a lot of profound legal doctrinal and policy issues as well as ethical debates.

What kind of toxic tort cases will lend themselves most to genomic techniques?

I think the biggest type of case that will benefit from genomic techniques is the one where people have a fairly common disease outcome that could be caused by a lot of different things. Right now we’re incapable of teasing out which lung cancers or brain tumors or leukemias are caused by a particular agent or exposure. Using genomic techniques, we’ll be able to tease these things apart for many people, and that’s going to be revolutionary.

Right now, we’re operating in this great cloud of uncertainty and don’t have any precision at all. This probably means that more cases will be brought because, right now, if you have lung cancer, unless you are a smoker, you have no idea of what may have been the cause. But with genomics, we may be able to figure that out.

The other thing, which I think is more disconcerting and problematic for the legal system in the long term, is that we all get exposed to things and we don’t bring law suits because there is no data to show that the plaintiff may be at risk. However, now, if we start collecting actual latent risk data on each of us, which is quantified, objective, and empirical and that shows molecular changes in our blood, in our genes, how is our legal system going to deal with that? Are we all going to become plaintiffs? Maybe that’ll solve the economic woes.

The changes ahead could flood our litigation system unless we create some rules and a threshold that people have to meet to avoid an unrealistic burden on our legal system. Otherwise, you’re going to have huge medical monitoring classes for basically every product on sale in this country. The legal system faces challenges to adapt because science moves very quickly these days, and because so many substances (“natural” or not) create the possibility of hurting someone who has some set of characteristics.

Do you see any changes or increased attention from the judiciary right now in terms anticipating these issues?  Perhaps getting together new statutes or other rules of evidence?

This is interesting because I’ve given many talks to judges about this and they’re interested in it because they’ve started to see cases involving these genomic issues. But I haven’t seen anything in terms of new rules of evidence or anything like that. I was on the National Academy of Sciences Committee a few years ago and we put together guidelines for handling these issues, but there is nothing in the legal system that I am aware of.

There are many important social, political, and ethical issues relevant to learning about an individual’s genetic information. Interestingly, most of the rules we have don’t apply in the litigation context, for example, we have HIPAA privacy rules in general and, specifically, the Genetic Information Non-Discrimination Act (GINA) that generally don’t apply here.

There are really interesting debates going on in the medical context amongst health-care providers about the kinds of duties they will have to patients. Because when you have entire genome sequences, you get all kinds of information and findings that were not the major focus of your investigation. These unanticipated findings could have profound implications for an individual’s medical future, so doctors and medical societies are debating the duties of a doctor to disclose this information to the patient, who may or may not even want to know it. Nevertheless, it’s important information that could affect the patient’s future health.

So, what’s going to happen in the litigation context? We’re finding out this information and none of the statutes, such as HIPAA or GINA, apply. It’s not really a health provider- or doctor-patient relationship, rather, we’re now getting information about someone’s genetic makeup that could have profound implications that go far beyond a particular legal case.

On Saturday, I was on a panel with a doctor who was a defense expert. In the course of litigation, he saw some information that may have been important to the person’s future health. He ended up talking to the judge, who instructed the plaintiff’s lawyer to tell his client about this risk. I think that we’re going to see this sort of issue arising more and more. There are the recent guidelines given to doctors by the American College of Medical Genetics that state that if you genetically sequence someone and you find one of fifty-six different genes, you are required to tell him about it and counsel him on what it means.

What’s going to happen in a litigation context? Will the judge instruct the legal team to counsel the plaintiff about relevant genetic information? We’re clearly unprepared to deal with these issues.

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