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  • Writer's pictureKirk Hartley

Genomic Testing Order Issued in Philadelphia Benzene Case – The Future is Now (and Kudos to Ho

Courts hearing toxic tort cases are continuing to open the doors to genomic and other molecular analysis. Proof? A new order in a Philadelphia benzene case – the order allows defendant access to tissue samples for genetic testing.

Entry of this order should not be a big deal. After all, DNA evidence has for years been used in criminal courts by both prosecutors and defendants, and today people are some times freed from jail based on genomic testing results. But, mass tort defendants, insurers, plaintiffs, futures representatives, and trustees of mass tort trusts are not exactly beating down the door to understand and use (for better or worse) all of the new information arising from the ongoing revolution in molecular biology.

A hat tip to Harris Martin for publishing the article below, which I’ve taken the liberty of republishing in full. And, even more kudos to Howard Jarvis – you will see Howard’s name at the end of the HarrisMartin article as national defense counsel who made the order happen.  Howard truly gets science and its implications for mass tort claims. Indeed, he’s at the very, very forefront in terms of actual courtroom use of new science. Howard’s also very active in seeking to spread the word to other lawyers. He’s been writing and talking about it for  some time now – see Howard’s online bio for names of and links to articles. And, recently Howard kindly invite me to join  a conference he organized – last spring’s HarrisMartin conference on genomics and toxic torts (it was formally titled “HarrisMartin’s DNA and Molecular Evidence in Toxic Torts Conference: A Scientific Revolution in Asbestos, Benzene and Environmental Litigation.”

Over the next few days, I intend to add more analysis and comments. For now, the order is online – see here. And, here’s the HarrisMartin article:


“PHILADELPHIA –– A Pennsylvania state court has allowed defendants in a benzene case access to tissue samples of the decedent in order to perform genetic testing, sources told HarrisMartin.

The Philadelphia County Court of Common Pleas granted the motion on Sept. 10, sources said. Defendants had argued that testing on the tissue samples would aid the parties in determining causation in the underlying case.

In granting the motion, the judge stated that the plaintiffs could attend the testing, sources added.

In bringing the lawsuit, the plaintiffs said that Andre Harvey developed acute myelogenous leukemia as a result of exposure to benzene-containing products while working as a laborer and boilermaker in refineries.

However, according to the defendants, a known causal factor in AML development is familial or genetic predisposition.

In August, the defendants moved for testing of inanimate tissue, saying that the decedent’s physical and medical condition was in controversy and such testing on Harvey’s DNA “may contain discoverable information that would shed light on the issue of causation in this case.”

The defendants also sought permission to obtain preserved, inanimate appendix tissue that had previously been removed from the decedent and is currently in the possession of the Hospital of the University of Pennsylvania.

In addition to the motion, the defendants filed affidavits from Len van Zyl, Ph.D., John B. Sullivan Jr., M.D., and Emanuel Rubin, M.D. In the affidavits, the doctors testify that “testing based upon generally accepted and widely used genetic testing methodologies such as are commonly used in hospitals and cancer centers across the United States can be used to conduct genetic testing to determine whether Decedent’s DNA contains genetic markers associated with the development of familial of genetically inherited AML.”

“This testing,” the motion explained, “would address the issue of causation, which is a central issue in this case.”

The defendants further proposed that the genetic testing be completed by ArrayXpress Inc., a research company in North Carolina that “conducts genetic research using state of the art technology including DNA and RNA sequencing.”

The defendants are represented by Richard C. Biedrzycki, Jeffrey L. Pettit and Chad D. Mountain of McElroy, Deutsch, Mulvaney & Carpenter LLP; and Howard E. Jarvis of Woolf, McClane, Bright, Allen & Carpenter.

Harvey v. Valero Energy Corp., et al., December Term, 2012, No. 002471 (Pa. Ct. Comm. Pls., Philadelphia Cty.).

Documents are Available Call (800) 496-4319 or Search Motion Ref# BEN-1409-06 Van Zyl Affidavit Ref# BEN-1409-07 Sullivan Affidavit Ref# BEN-1409-08 Rubin Affidavit Ref# BEN-1409-09″

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