It is the assertion that a gene mutation in certain people (i.e., plaintiffs) creates a greater propensity to develop diseases such as asbestosis and mesothelioma.
This, of course, deflects the blame from where it actually belongs: On the manufacturers and distribution companies that allowed workers and the public to unknowingly be exposed to asbestos, a toxic substance that is the only known cause of such diseases. The new defense attempts to flip established science on its head by asserting that not only does the genetic mutation create a greater propensity that one will develop a disease if exposed to asbestos, but that the mutation itself might actually directly cause these diseases all on their own.
The argument centers on a genetic mutation identified as BAP1. Researchers from the University of Hawaii are the ones to posit the direct causation theory with regard to the gene.
It’s worth noting this research isn’t entirely new. The report in question has been around since 2011. However, it’s only very recently that the theory has been used in court – despite the fact that it’s just that: a theory. It has not been proven. It hasn’t even been all that widely tested.
In the view of our mesothelioma lawyers, it is simply another attempt by defense lawyers to worm their way out of responsibility for egregious misdeeds many years ago. Those actions include actively concealing the dangerousness of asbestos, as well as presence of the material in a wide variety of products, and thus failing to protect workers and the public from injurious exposure.
Attorneys representing plaintiffs are working to stop forced genetic testing in mesothelioma cases in which the genetic mutation claim is asserted.
It’s unclear whether such efforts will be successful, but they are being closely watched. For example, in the Ortwein lawsuit, the judge overseeing the case approved a defense request to force plaintiff to produce a sample of lung tissue in order to be tested. Although it was allowed during the discovery phase pre-trial, the issue of whether that evidence will be allowed at trial remains up in the air.
Defendants were able to overcome concerns about genetic privacy in one of the cases by arguing that, because original plaintiff was now deceased (from her illness), no other person could claim a valid interest in her privacy, such that might interfere with the persons’ right to use, control and disclosure. The judge agreed.
So far, this defense is not widely used, and it is still strongly held that asbestos is the only known cause of mesothelioma in the United States. We could see that assertion more forcefully challenged if additional defense attorneys begin adopting this theory.
Even so, we have yet to see extensive, scientific proof of this theory as it pertains to causation, and that is one area in which this could be effectively challenged in court.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C.