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Analyzing the Use of Genetics in
Determining Causation in Toxic Tort Cases
American Conference Institute | Toxic Tort & Environmental Litigation | June 23, 2017
Howard E. JarvisWoolf, McClane, Bright, Allen & Carpenter, PLLC (Knoxville, TN)
E. Paige SensenbrennerAdams and Reese LLP
(New Orleans, LA)
Presented by
The Honorable Richard KramerJAMS
(San Francisco, CA)
Glossary of terms
Gene is composed of DNA and is the basic
physical and functional unit of heredity. They act
as instructions to make proteins (antibodies,
enzymes, structural components)
Genetics is the study of heredity.
Glossary of terms
Genomics is the study of genes and their
functions.
Genome is the complete DNA complement of an
organism and includes a complete set of its genes.
Genomes contain all the information needed to
build and maintain an organism. 1
1 World Health Organization
Genetics concerns the function and composition
of a single or limited number of genes, whereas
Genomics addresses all genes systematically,
how they interact and function within and between
themselves and the environment to effect the
growth and development of the organism.2
2 World Health Organization
Human Genome Project
Launched in 1990 and funded by NIH
and DOE
At its start, the project was expected to
take 15 years, but completion was
announced on April 14, 2003.
Human Genome Project Findings
Human genome contains 46
chromosomes and approximately 3.5
billion base pairs.
Approximately 20,500 genes in each
human.
Epigenetics
The study of potentially heritable changes in
gene expression that does not involve changes
to the underlying DNA sequence — a change
in phenotype without a change in genotype
— which in turn affects how cells read genes.
Toxicogenomics
The application of genomic technologies (e.g.,
genetics, sequence analysis, gene expression
profiling, proteomics, metabolomics, etc.) to study
the effects of chemical and pharmaceutical agents
on human health and the environment.3
3 Application of Toxicogenomic Technologies to Predictive Toxicology and Risk Assessment. National Academies Press (US) 2007.
Genetics and Alternative Causation
in Litigation
• Genetic markers may be characteristic of disease predisposition.
• Genetic markers may separate toxicant-induced disease from
idiopathic disease.
• Genetic markers may be characteristic of exposure.
• Exposure may only be relevant in specific genetic subtypes.
All Driven By The Research
When you’re finished changing,
you’re finished.Benjamin Franklin
Genomics can provide sufficient
scientific evidence for and against
causation, for and against susceptibility
risk, for and against predisposition
risk, and for or against exposure to the
claimed agent.
Plaintiff DefendantAge at
DiagnosisCancer Toxicant
Cacoilo Sherwin-Williams et al. 24 AML Benzene
Blackford-Cleeton Marathon Oil et al. 32 Mesothelioma Asbestos
Leach BP et al. 58 AML Benzene
Guzman Exxon Mobil et al. 28Papillary thyroid
cancerRadium
Harvey Sunoco et al. 34 AML Benzene
Defense Strategies:
“Every Case is Unique”■ Disprove exposure
■ Use medical/family history, low exposure
■ Epidemiological evidence – problem not looking
at the individual-epidemiology only does
population wide estimates
■ For clinical genetic testing … alternative models
of causation based on literature
Information available from primarily
plaintiff’s medical records: ■ Family cancer history
■ Behavior (lifestyle)
■ Exposure information
■ Employment history
■ Diagnosis and treatment of cancer
■ Past patterns of illness/infection
■ Genetic testing
• Predisposition to a disease, if identified by
genomics and germline tissue, has nothing to do
with susceptibility.
• Susceptibility is increased risk of developing the
disease from THE EXPOSURE AGENT.
• Predisposition is a risk of developing a disease
NOT FROM THE EXPOSURE AGENT.
Predisposition genes ARE
ALTERNATIVE CAUSES and they
CANNOT BE ARGUED TO BE THE
SAME AS SUSCEPTIBILITY TO
THE CLAIMED EXPOSURE AGENT.
A germline mutation is taking the
person as you find him.
“Making the invisible visible”
Thank you.
American Conference Institute | Toxic Tort & Environmental Litigation | June 23, 2017
Howard E. JarvisWoolf, McClane, Bright, Allen & Carpenter, PLLC (Knoxville, TN)
E. Paige SensenbrennerAdams and Reese LLP
(New Orleans, LA)
The Honorable Richard KramerJAMS
(San Francisco, CA)