Improving the Intersections Between Law and Science in Cancer Trial – Thoughts from a Recent N

Law and science intersect in court rooms in jury trials involving personal injury claims by person arguing that a cancer was caused by a substance or a drug. Ironically, at this intersection, law and science are in some ways going in opposite directions.

How so? On the science and medicine side, we are entering the age of personalized medicine. For persons fortunate enough to obtain treatment at a true, national cancer center of excellence (e.g. MD Anderson), this new age often means treatments unique to that person’s genome and the genomic specifics of the tumor. In court, however, there are some observable efforts to move away from individual analyses and towards consolidation of multiple personal injury cases for trial.

Consolidation of personal injury cases for trial always has been and remains both controversial and complex. However, consolidations are back on the front burner in some jurisdictions. Why? One reason is that some insurers and some defendants refuse to settle cases until faced with real trial dates, and judges need to keep their cases moving. Pressures for consolidation also arise because state court budget cuts mean that courts lack resources and want to resolve cases in larger groups. And, of course plaintiffs almost always want trial dates and consolidations to increase the pressure on defendants and insurers to resolve cases.

Against that background, consider a New York trial consolidation order from August 2012 for various "asbestos cancer cases." Unlike too many orders, this one actually does set out some of the specifics of each case, and so provides a relatively useful example of contours of the cases being combined for trial. One point for the reader to see is that the cases really are not very much alike except that they involve "the same" diseases allegedly caused by asbestos. And, today, the level of analysis for "sameness of disease" is not very deep – in fact, it’s pretty much assumed, as illustrated by the order. On the other hand, doctors working at centers of excellence increasingly see the "same" disease (e.g. mesothelioma) as falling into different general subtypes, along with individual genomic variations.

Conclusion? The intersections between law and science are growing as cancer rates increase and more lawsuits are filed, but lawyers and doctors/scientists often see the world in very different ways. Lawyers need to spend more time understanding the science, and finding better ways to litigate and resolve cancer personal injury cases. And, doctors/researchers need to help us see better see which differences matter to them and why. Then we all ought to help judges and legislators understand, and we all ought to try to revisit old assumptions about how to get things done so that we improve the cancer trial intersections between law and science.

#Asbestos

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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