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  • Kirk Hartley

Molecular Biology, D&O Caremark Duties, Unknown Unknowns, and Cellular Changes Driven by Protein

(Photo courtesy of RIKEN)

The photo above confirms the science described in a new paper about histone changes successful re-programming cells to become a form of stem cells to produce a new generation of mice of different colors. Why might lawyers and others care about the work of Japan’s RIKEN in reprogramming cells and thereby inducing multi-generational changes in the coloration of mice? There are many reasons, but one is to appreciate that multi-generational changes of many kinds can occur without causing mutations in DNA. Instead, the bonding of certain proteins (histones) in certain places can produce new outcomes, some of which may be devastating.

The impact of non-mutational changes is a point often made by researchers who argue that substances in the "environment" of a fetus (from many sources, not just "toxins") can change the development of fetuses and children. Loosely speaking, one may refer to some of the substances as "endocrine disrupters." Generally speaking, changes arising from differences in chemical bonding are "epigenetic" changes that some say drive early adult onset diseases and/or "birth defects."

Is it "safe" today to not understand – or ask questions about – the stunning advances in molecular biology? How many manufacturers are testing whether, when and how their products are or are not causing epigenetic changes? How many insurance underwriters have even a tiny clue about epigenetics? How many manufacturers or insurers know the known and unknown realities of multi-generational diseases? How many directors and officers of how many companies are therefore arguably breaching Caremark duties (explained by Professor Bainbridge) to assess risks to the corporation, and to take steps to protect against them?

On the importance of asking questions and knowing what’s not known and what is known, former Secretary of Defense Donald Rumsfeld always comes to mind. He’s perhaps most often quoted for explaining that it’s important to define both the knowns and the unknown unknowns. He also said: "Those who made the decisions with imperfect knowledge will be judged in hindsight by those with considerably more information at their disposal and time for reflection.”

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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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