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Why Lawyers, Risk Managers and Executives Might Care About Molecular Biology as Applied to Tort Clai

Over the next few weeks, some of the new posts will focus on recent papers and rulings that illustrate why this blog includes so many posts about molecular biology, new science tools, and new findings.

In short, the pace of molecular biology has material implications for litigation.

In 1854, a veteran cholera researcher (John Snow) attributed a cholera outbreak to use of water drawn from a neighborhood well in old London. Dr. Snow’s theory bucked the conventional wisdom that "bad air" caused cholera. Mr. Snow’s theory was plausible when compared to the facts, but others disagreed, preferring their "bad air" views.

At that point in time, the investigative microscopes and other science tools were not enough to find the exact source of the disease. So, the diligent researcher sought to further prove the cause by investigating whether cholera deaths occurred among people who had used the well. That theory bore statistical fruit, and ultimately others became convinced the risk related to the well. Thus, epidemiology was born, and "cause" was attributed based on studies of large numbers of persons. But even then, the cause was not truly isolated – the government did not want to accept the reality that fecal matter could contaminate water and cause cholera. Thirty years later, however, new science tools were more powerful, and the responsible bacteria were found, as explained here (short version) and here (longer version).

In contrast, researchers today use powerful new tools and take a molecular look at the pump handle, and/or the water in the well, instead of depending on studies of people who may or may not have encountered the pump handle. And, today, researchers are increasingly able to find objective biomarkers that establish, for example, past contact with water from the well.

In the recent past, defendants sought to make science their friend by challenging plaintiff’s lawyers to gather "scientific proof." Defendants especially grew to love, argue for and rely on epidemiology, which some argued as if it were the one and only true science. Then, the Daubert decision was won, and defendants developed even more confidence in "science."


Today, however, some defense lawyers are rightfully worried about where law and science are going. Some are particularly concerned because plaintiffs are often the litigants embracing new molecular biology findings. For example, plaintiffs embrace Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011). Milward is not favorable for defendants as it refused to reject new, non-epidemiology evidence on the cause of a form of leukemia.

Why focus on Milward? Because far sighted lawyers in the defense bar consider it a key case. In over-simplified terms, molecular findings triumphed over epidemiology. That’s not a happy outcome for defendants that win summary judgments by arguing that expert opinions must be excluded when they are not backed by epidemiology. Accordingly, defense groups made every effort to have Milward reviewed and reversed by the U.S. Supreme Court, but failed. This page of Scotusblog provides links to the 1st Circuit’s opinion, and all of the U.S. Supreme Court certiorari briefs, including the defendant’s cert petition and unsuccessful amicus briefs by the Defense Research Institute, The U.S. Chamber of Commerce, and the Product Liability Advisory Counsel. But they did not succeed.

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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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