As many of our readers know, there have been two recent, large toxic tort verdicts: (1) $4.6 billion talc verdict against J&J (22 ovarian cancer cases); and (2) $300 million glyphosate verdict against Monsanto. In both cases, the role of genomics has been oversimplified by the plaintiffs. Specifically, some plaintiff counsel have argued that individual and groups of plaintiffs are prone to the effects of specific exposures (e.g., asbestos in talc or glyphosate).
In our view, courts and parties need to focus on bringing more objective individualized scientific data to bear on these legal claims involving allegations of genetic susceptibility. Certainly, tools exist that the defense could use to bring some objective data and precision to claims in which the role of genomics is being over-generalized.
We provide below some overall themes from the two recent trials related to the use of genetic science in the courtroom.
- Recent legal cases and large verdicts demonstrate some notable trends in toxic tort litigation that highlight the importance of what we informally refer to as a “genetic defense”
- As we predicted, plaintiffs have embraced genetic arguments, specifically asserting that plaintiffs suffer from “genetic susceptibility”
- A recent large verdict in an ovarian cancer/talc trial provides a clear example of a trial court allowing oversimplified and unfair use of genomic information, which unfairly prejudices the jury against the defendant
- Defendants and their counsel have been reticent to embrace genetic arguments because they have feared that plaintiffs will turn the arguments around and argue for genetic susceptibility – but this is already happening, and adverse verdicts are severe
- Genomic sequencing can demonstrate that an individual may have specific hereditary factors that directly led to their disease as an alternative to their exposure – this type of evidence is needed to overcome existing trends
These two recent verdicts will undoubtedly encourage additional lawsuits for plaintiff counsel seeking additional plaintiffs with ovarian and non-hodgkin’s lymphoma (NHL) alleging that the cause of their injuries was talcum powder or glyphosate. As these toxic tort cases continue to emerge, the defense must build in a knowledge of genetics to their strategy – at the very least so that they can effectively cross-examine plaintiff experts.
Ultimately, we believe a genetics-based approach will provide the defense with a winning strategy from an affirmative perspective because it makes the case about the individual, not about heterogeneous groups of plaintiffs.
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