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  • Writer's pictureKirk Hartley

Jurors In Toxic Tort Litigation Take Genetics Seriously

In the shameless self-promotion department, another article on “omics” and torts. LAW360 kindly published this on February 21, 2017.  In my view, it’s critical for trial lawyers to get focused on a range of topics related to “omics” and toxic torts.

Jurors In Toxic Tort Litigation Take Genetics Seriously

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Law360, New York (February 21, 2017, 11:46 AM EST) —

David Schwartz

Kirk Hartley

Can jurors grasp the role of genetics in personal injury claims alleged to arise from exposure to specific chemicals? Can judges grasp the issues well enough to really help expert witnesses present the issues clearly, and to help jurors understand?

Not long ago, we saw the first asbestos trial making explicit reference to a plaintiff with BAP1 mutations and the alleged role of those mutations in the causation story. The point of this article is to provide some more specific information from that trial with respect to the genetic information described and to highlight the message that jurors take genetic testimony seriously.

The first mesothelioma trial emphasizing the role of genetics in establishing a causal link between asbestos exposure and mesothelioma involved a plaintiff named Holly Ortwein. The case (No. RG13701633) was tried to a jury in the Alameda County Superior Court before Brad Seligman, a judge who has tried multiple asbestos cases.

According to lawyers from the trial, the jury consisted primarily of college graduates, and included at least two jurors with advanced degrees.

The lone defendant at trial was CertainTeed, a maker of pipe that contained blue (crocidolite) asbestos fibers. CertainTeed was represented by Frank Belfield and Jennifer Lee of Dentons US, and Elizabeth Geise and Neil Lloyd of Schiff Hardin. Holly Ortwein (and then her estate) was represented by Joe Satterley, Justyn Bosl and Andrea Huston of the Kazan firm.

The genetic issue in the Ortwein trial revolved around the BAP1 mutation, and its role in mesothelioma. Normally, all persons have two working copies of the BAP1 gene. The undisputed fact in this case was that Holly Ortwein was not “normal” because she inherited from her parents one mutated copy of the BAP1 gene; her BAP1 mutation prevented the production of “normal” amounts of the BAP1 protein that works (along with other proteins) to suppress cancers by repairing defects in cell DNA.

Also, in the tumor itself, Ortwein’s “normal” BAP1 gene was missing because it had been “knocked out.” Thus, in the cells that comprised Ortwein’s mesothelioma, there were zero normal copies of the BAP1 gene, and therefore little or no BAP1 protein was being manufactured (i.e., “expressed”) in those cells.

Sadly, Holly Ortwein was from a family heavily affected by mesothelioma. In fact, mesothelioma had previously killed three other members of her first generation family. Thus, Ortwein was the fourth family member killed by mesothelioma.

At trial, Ortwein’s trial team presented the first ever trial testimony of Joseph Testa, PhD. Dr. Testa is one of the lead authors on some of the seminal papers on the role of BAP1 in mesothelioma and one of the world’s most accomplished researchers in this area.

Testa testified on Jan. 14, 2016, and was presented by Justyn Bosl. After he testified, Judge Seligman followed the desirable practice of allowing the jury to submit written questions, which Judge Seligman first discussed with counsel in chambers and then presented to Testa in open court.

The questions and answers are pages 163-173 of the daily transcript. The jurors’ questions, as asked by Judge Seligman, are set out below, with some very slight editing.

Q1. So the first is, is there a BAP1 genetic mutation that disables both genes versus just one copy of a gene?

Q2. You said there were 10 to 12 or 5 to 6 additional mutations that were required to move from Stage II to Stage III in the diagram, talking about your earlier diagram about how cancer develops. Can you clarify the number, and does this difference matter?

Q3. Asbestos — this is a question. Asbestos exposure causes the additional mutations alone or does the cancerous growth itself cause the mutations as well?

Q4. There was some testimony about children getting mesothelioma under 10. And the question, I think, is, for those children where there’s no history of asbestos exposure, do you believe that there, in fact, must have been asbestos exposure, natural or environmental, that we just don’t know about or that this was caused some other way? [edited slightly]

Q5. You noted that asbestos can both initiate and promote the development of mesothelioma. Are some types of asbestos more aggressive initiators and/or promoters of mesothelioma?

Q6. Can you say anything about the degree to which crocidolite is more aggressive in the presence of a BAP1 mutation?

Q7. There’s — would you agree that there’s no evidence — that there’s no evidence showing an increase in mesothelioma in the general population among people with a BAP1 mutation?

Q8. And I guess this is a follow-up, which is, is there sufficient evidence to conclude that BAP1 mutation is a risk factor for a number of cancers, but, in the absence of asbestos exposure, it would not on its own cause mesothelioma?

Q9. You agree that those who are aware they have a BAP1 syndrome would do well to closely monitor their health for specific malignancies. But if BAP1 syndrome is so rare, how would anyone ever know to be screened for it, especially if they appear to be otherwise healthy?

In our view, the questions asked by the jury are excellent. They highlight the view that the jury is engaged with the genetic testimony and is trying to appropriately utilize that testimony.

That’s important because good science arises from asking good questions. Indeed, Dr. Testa, started his answer to Q3 by saying: “That’s an extremely interesting question.”

And we think the same principle applies to good verdicts. So, what did the Ortwein jury decide about the role of BAP1 in the causation of mesothelioma associated with asbestos exposure?

There was no jury verdict; the case settled shortly before it would have been sent to the jury.

Two more comments seem apt. First, we applaud Judge Seligman for letting jurors submit questions in follow up to expert testimony and then for taking those questions seriously enough to present to the expert.

Second, we hope trial lawyers are thinking about the big picture questions regarding juries and the topics of cancer, genetics and disease causation. We predict these topics will become more and more important in the near future.

—By David Schwartz, Innovative Science Solutions LLC, and Kirk Hartley, LSP Group LLC

David Schwartz, Ph.D., is head of scientific support to counsel at Innovative Science Solutions, where he helps clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods and dietary supplements in the courts, the regulatory arena and the market place. Kirk Hartley is the founder of LSP Group LLC, and has practiced law for over 30 years, with a focus on advising a wide range of corporations, associations and individuals (as both plaintiffs and defendants) on mass torts issues.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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