GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

Stanford Law School and Professor Deborah Hensler offer a significant online resource with numerous papers on class action practice around the globe. The resource is titled the Global Class Action Exchange. The website is here. The text of the "About" section is pasted below because it provides an overview.

"About

The Global Class Actions Exchange is an outgrowth of an international conference on the worldwide spread of class actions, group proceedings and other forms of collective litigation that was held in Oxford, England in December 2007. The conference was co-sponsored by Stanford Law School and the Oxford Centre for Socio-Legal Studies and funded by the American Academy of Political and Social Sciences and Stanford Law School, with additional support from individuals, law firms and the business sector in the US and Europe. Participants in the conference were eager to share information about developments in their countries and to establish a network of academicians, judges and lawyers interested in class actions and group litigation to whom they and others could turn for advice on these developments. We established this Clearinghouse in response. The Clearinghouse is directed by Prof. Deborah Hensler of Stanford Law School, who co-organized the 2007 conference with Dr. Christopher Hodges of the Oxford Centre for Socio-Legal Studies.

The Global Class Actions Exchange currently includes country reports and other materials prepared for the 2007 conference; statutes, rules and important cases related to class actions and group litigation; academic and other commentary on global developments regarding class actions; contact information for legal analysts and practitioners who research or practice in the class action or group litigation area; and news of conferences and other events of interest to scholars and practitioners.

If you would like to contribute material for the Global Class Actions Exchange, please contact Deborah Hensler at dhensler@stanford.edu.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Science moves much faster than does "the law," and the changes in science over time will have a profound impact on the framing and resolution of legal issues.

For a new example, consider that respected medical journals Nature and Nature Genetics this month published articles from three research teams asserting identification of one or more genes they say are materially related to an increased risk of contracting non- small cell lung cancer, which comprises about 80% of lung cancers. Having one copy of the gene is said to be a characteristic of about 50% for persons of European descent, and far lower among persons from Asia and Africa. According to the authors, inheriting one copy of the gene raises the risk by about 28%, and inheriting two copies of the gene raises the risk by 70-80%. Some of the authors suggest the gene may be tied to the tendency to smoke. The press articles indicate that the research teams made the usual prediction that tests for the two genes will be available in the future.

The implications for law in general are profound when one considers all of the societal and legal issues related to health itself, and the obligations of insurers, governments or individuals for the expenses of treating (or, some day, preventing) a non small cell tumor in the lung. Those many issues are far beyond the scope of this blog. Here, the focus will remain on the potential tort litigation issues that may flow from these studies, and the other studies that surely will follow.

For example, many asbestos claimants with "lung cancer" attibute the disease in whole or in part to inhalation of asbestos fibers and/or cigarette smoking. In such cases, what difference should it or does it make if the claimant has one or more copies of the identified genes, and has the non small cell tumor? Defendants may ask for genetic testing and if they find the presence of one or two copies of the gene said to be relevant, they may argue that their presence breaks the legal causation chain and so precludes liability. Defense counsel also may invoke Daubert principles and seek to bar expert testimony from plaintiff's experts if the testimony is not focused in persons with two copies of the gene - will that tactic be allowed to work ? How soon?

Plaintiffs' counsel, on the other hand, may be expected to argue that the "two copies" claimant is just like the "eggshell skull" plaintiff we all heard about in law school. We were taught that the general rule is that a liable defendant cannot avoid financial responsibility simply because a particular person had an especially thin skull. Will that rule continue in force in the age of genomic testing? Should it stay in force as is, or does it need modification?

Plaintiffs also may use the presence of two copies of the gene to try to meet legal standards they cannot meet today for some claimants advancing fear of cancer claims or other claims. For example, some state law opinions (e.g Havner in Texas) will for the most part refuse to permit a claim unless the plaintiff proves that there is a relative risk of a specific disease created by "exposure" to a substance that is at or exceeds 2.0. Will science over time allow plaintiffs' lawyers to meet the 2.0 standard for claimants with the "two copies" even if the 2.0 standard could not be met for a person without the two copies of the "lung cancer" gene?

These and many other issues are arriving fast. For press articles with more details on the lung cancer studies, see:

http://news.bbc.co.uk/2/hi/health/7325971.stm; http://www.latimes.com/features/health/medicine/la-sci-lung3apr03,1,483181.story

• Email This
• Print
• Comments
• Trackbacks
• Share Link