Academic journal article Defense Counsel Journal

Genetic Injury in Toxic Tort Cases: What Science Can and Cannot Prove

Academic journal article Defense Counsel Journal

Genetic Injury in Toxic Tort Cases: What Science Can and Cannot Prove

Article excerpt

IN THE past several years, courts have compensated plaintiffs who allege that they were exposed to some substance that increased their risk of developing disease in the future, although at the time of trial they were free of injury. When asserting these claims, plaintiffs may allege any or all of three causes of action:

* Fear of future disease, under which they seek compensation for the emotional distress allegedly caused by the fear that they may someday contract a disease, usually cancer, as a result of the exposure.

* Increased risk of future disease, under which theory they seek compensation for all probable manifestations of a disease that they are deemed likely to contract in the future if they can demonstrate a sufficiently enhanced risk of contracting the disease.

* Medical monitoring claims, under which they seek to recover the costs they will incur as a consequence of having to be monitored for early manifestations of a disease that is associated with their exposure.

The problem with these theories is that they are very speculative. Courts routinely have required that a claim be genuine, serious and reasonable before allowing a recovery for a speculative claim.(1) Some courts will grant medical monitoring on the basis that the need for the monitoring is a present compensable economic injury. Other courts, however, have required that plaintiffs prove the existence of a present physical injury.

In determining whether a physical injury exists, some courts have expanded the definition of what constitutes "present physical injury." In some instances, they have found sufficient physical injury when a plaintiff who alleges exposure to a toxic substance presents complaints of headaches, nausea, dizziness or cramps.(2)

Courts also have found that "subcellular" damage can be a present physical injury. "Subcellular" markers of disease are widely accepted in the medical community to demonstrate present injury. For example, elevated liver enzymes and elevated bilirubin counts are seen in patients exposed to hepatotoxic substances. The main issue, however, is whether genetic abnormalities, which are a type of subcellular damage, is acceptable as an indication of present injury or risk of future injury.

In an increasing number of instances, plaintiffs have argued that exposure to a toxin created a change in their chromosomes, thereby increasing their risk of some disease, usually cancer, in the future. Courts have held that chromosomal breakage is sufficient to satisfy the present physical injury requirement. Although the terms "chromosomal injury" and "genetic injury" are used interchangeably in the case law and in this article, they are not the same. For example, a chromosome is made up of many genes. Chromosomal breakage refers to gross breakage of a chromosome, irrespective of a specific gene. Genetic damage refers to damage of a specific gene.

This article discusses current case law with respect to claims alleging that exposure to a product has resulted in chromosomal damage and seeking medical monitoring or damages for increased risk of disease or fear of disease. The article also presents a general overview of certain concepts in molecular biology and studies that have been documented in the medical literature to determine if one can conclude with a reasonable degree of medical certainty that damage to a gene will more likely than not predispose an individual to an increased risk of a disease warranting the award of damages.(3)

RELEVANT CASE LAW

For years, the prevailing law was that the claim of a subclinical injury was held insufficient to constitute a "present physical injury." In Schweitzer v. Consolidated Rail Corp.(4) the Third Circuit noted that a subclinical asbestos-related injury prior to manifestation may be of interest to a histologist and of vital concern to liability insurers and their insureds, but the court held that such an injury did not constitute the actual loss or damage to the plaintiff's interest required to sustain a cause of action under generally applicable principles of tort law. …

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