Have insurers and defendants been overpaying for asbestos liability claims? Are there other ongoing toxic torts where that might be true today?

Executive Summary

More than 500,000 sets of matched genomic/medical information will arrive like tsunamis over the next few years, with the potential to reshape the liability landscape, according to William Wilt, president of Assured Research, and Kirk Hartley, founder and principal of the Law Science Policy law firm. These tsunamis are contributing to "genomic epidemiology" research papers about toxicants, which will help to exonerate liability defendants in some cases while supporting plaintiffs in others. Importantly, actuaries and other insurance professionals will not find precedents in the past liability claims data, they say, urging insurers invest time, effort and money as they think about how they are going to cope with so much risk of rapid change. "There soon may well be bad faith claims against insurers who fail to fund genomic defenses in appropriate cases," they add, as they warn insurers against sticking their heads in the sand as the impacts play out.

The questions arise as a result of a revolution that’s now underway in genomic analysis and its application in civil litigation.

Genomic analyses of molecular data can allow medical scientists to identify an individual’s genetic propensity to develop cancers like mesothelioma and other conditions. Beyond that, the frequency with which genomic analyses have been used in personal injury cases—by both plaintiffs and defendants—is increasing rapidly.

How It Started

An early, impressive use of genomic analysis was in Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787 (2006). There, children were born with heart-rending deformities, including malformed eyes. The claim was that fungicide exposure caused the deformities.

Shortly before trial, newly published, peer reviewed research showed that a pathogenic mutation to a particular gene (CHD7) could be the cause of the deformities, independent of any exposure to the fungicide. Genetic testing revealed the children at issue in fact carried pathogenic mutations to the CHD7 gene.

Ultimately, the genetic testing results caused plaintiff’s experts to withdraw their prior opinions on causation, and so summary judgment was entered for the defendant fungicide maker.

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