As we have highlighted in our blog over the past couple of years, there is a revolution underway in toxic tort litigation. This revolution involves the use of genomic data to define tumor types, to establish causation, and to establish alternate cause arguments.
As we have highlighted in our blog over the past couple of years, there is a revolution underway in toxic tort litigation. This revolution involves the use of genomic data to define tumor types, to establish causation, and to establish alternate cause arguments. Genomic and other molecular science findings and legal issues continue to take on additional prominence across various subsets of “toxic tort” litigation, such as litigation involving benzene, dioxin, talc, silica and asbestos.
Consistent with our efforts to track scientific advances related to litigators, we are pleased to announce that we have recently updated our White Paper: New Science and Law in Asbestos Litigation (2016 Edition) (co-authored by our colleagues Kirk Hartley at the LSP Group and William Wilt at Assured Rearch).
On the science side, in this year’s edition, we once again focus on the following topics:
These scientific advancements remind us that while we are still a way off from the identification of genomic markers that definitively separate asbestos-induced cancers from non-asbestos-induced cancers, the science is moving in that direction.
In this new edition, we also focus heavily on the science related to talc litigation, including the following critical issues:
As highlighted in a recent NJ ruling precluding the testimony of two leading plaintiff experts, the science related to talc and ovarian cancer is far from definitive.
Like last year’s report, we also include a substantial analysis of claims, insurance and money, as well as legal developments that have matured in the last year.
The past year brought several notable developments in the genetic and other molecular science fields relevant to asbestos and talc litigation. In the following sections we present extracts from the 2016 edition of our report. Examples include information about the continuing, rapid increase in genetic analysis related to when and how mesotheliomas arise, and recent statements by litigation experts about individual, genetic variability as to cancer. Our extracts are intentionally brief; fuller documentation of our statements can be found in the full paper.
Individual Variability and Susceptibility to Cancer
Genetic issues are now squarely in asbestos litigation through issues about mutations of the BAP1 gene, and the implications for development of mesothelioma. Specifically, the first mesothelioma trial with genetics directly at issue arose from the pleural mesothelioma that killed Mrs. Holly Ortwein. The case (No. RG13701633) was in trial in January 2016 before a jury in the Alameda County Superior Court, with Judge Brad Seligman presiding.
The case was settled, with our takeaway being that juries will increasingly be exposed to expert opinions that seek to account for both genetic and environmental factors in the development of cancer. One other take away is certain. All sides must add more lawyers and other people with an interest in and a knowledge of science, including a much wider team of experts who can teach juries useful facts about cancer, genetics and exposures.
Genetic Susceptibility, Mesothelioma, and BAP1
In thinking about mesothelioma and genetic susceptibility, it is important to see BAP1mutations as simply the first in an expected future stream of new information about individual genetic variability and susceptibility related to mesothelioma (and other asbestos-related cancers). Research findings to date include clues that suggest a role for other inherited genetic mutations, especially as to peritoneal tumors in women. Moreover, as researchers better understand the functions of the BAP1 protein, they gain insights into possible epigenetic factors in mesothelioma.
Science of Talc, Asbestos, and Ovarian Cancer
Talc has two uses: cosmetic and industrial. Everyone is familiar with the cosmetic (safe-enough-for-babies) uses. Industrially, talc is used as a filler, coating or dusting agent, pigment and extender in plastics, paint, ceramics, and roofing materials, among other products.
The year 1976 brought relatively rigorous quality standards for pharmaceutical and cosmetic grade talc, meaning that post-1976 products likely were free from asbestos and asbestiform fibers. Thus, talc and mesothelioma legal cases primarily allege that a plaintiff’s historical use of talcum powder products (from the 1960s and 70s) was the cause of their mesothelioma. However, industrial grade talc was not subject to similar controls, and so asbestiform or asbestos-like talc particles may be present from any era, including products sold even today.
The science regarding talc is complex, incomplete and evolving. Much scientific thinking, planning, and work is needed to frame better questions and studies that will provide more answers about talc and the various cancers for which talc defendants are being targeted. The bottom line is that major expenses lie ahead for insurers with notable talc defense obligations. It is crucial for experts, clients, attorneys and their teams to keep up with the scientific and medical literature to avoid surprises and succeed in the courtroom.
Developments in Lung Cancer Claiming
With over 220, 000 lung cancers cases in the U.S. annually, lung cancer claims remain a potential wild card within asbestos litigation. In this year’s edition, we report on a little-known, confidential deal between a notorious plaintiff firm and several large asbestos defendants which we see as a factor that needs to be consider when thinking about claims that were nominally stable. As for lung cancer science, Finnish researchers published new data from their ongoing efforts to define a “signature mutation pattern” for asbestos-induced lung cancers, and other global teams of researchers continued to work toward developing signature mutation patterns for a range of cancers. More broadly, researchers and entrepreneurs also continued to press forward to develop relatively inexpensive and effective tests to find cancers early using liquid biopsies. In addition, both groups continue to sequence large numbers of lung cancer tumors, thereby generating increasingly useful genetic profiles of lung cancers and enhancing the ability to understand the sources of lung cancer evolution at a previously impossible level of detail.
Other Cancers Related to Asbestos Litigation
In our view, stakeholders should expand their vision to include the fact that researchers are seeking genetic signatures for sources of a wide range of cancers, and the 3,200 annual mesotheliomas are a drop in the bucket compared to the annual hundreds of thousands of other cancers that are or may be linked to asbestos – think 22,000+ annual ovarian cancers; think 220,000+ annual lung cancers.
We are not suggesting floodgates have opened or will open, but at the same time, there are signals suggesting possible future storms. If, or when, science proves that a type of cancer is caused by asbestos or some other “toxin,” the claim quantities and risks can be orders of magnitude greater than they are for claims related to mesothelioma.
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
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