Monday, April 26, 2010
Tort lawyers and scholars have long grappled with the issue of how to prove causation in toxic tort cases. Establishing causation is difficult because latency periods often precede exposure-related harm, making it hard for plaintiffs to connect illness to a particular substance. To overcome this problem, tort law has looked to science for help, and a large body of doctrine and scholarship has developed discussing what is sufficient to prove causation in a toxic tort case. In recent years, however, scientific developments have moved at a dramatic pace. The law soon will need to catch up.
Most legal debate in this area references probabilistic evidence (such as epidemiology studies) or extrapolative evidence (such as toxicology studies involving organisms or animals). Recent breakthroughs, however, will allow researchers to draw more specific conclusions about the consequences of toxic exposures than one could have imagined even a decade ago. For example, new techniques permit the observation of biomarkers in human tissue or fluids that can more accurately measure individual levels of exposure to toxic substances. Advances in toxicogenomics – the study of interaction between genes and toxins – are even more dramatic. Developments in this field have the potential to demonstrate not only individual exposure to a substance, but also the early progression of disease. (See generally National Institute of Environmental Health Sciences, Toxicogenomics Research Consortium, http://www.niehs.nih.gov/research/supported/centers/trc/).
The potential implications for tort law are immense, as people will have an increasing ability to gain information about health risks and environmental exposures before they manifest clinical symptoms of disease. Such information might provide opportunities for those on either side of a toxic tort lawsuit. Plaintiffs, for example, will argue to expand the traditional notion of compensable harm. Defendants, on the other hand, might look for evidence that a claimant’s disease was progressing before a particular exposure took place.
Before going further, I should inject appropriate caution. The “genomics revolution” is still in its infancy, and we remain far from having the ability to easily connect individual disease to most toxic exposures. But given the speed at which other developments have taken place, why should doing so be a far-off fantasy? Consider, for example, that the first human genome was successfully sequenced only seven years ago – after thirteen years of work and $300 million of investment. Today, technology allows researchers to sequence chemical bases thousands of times faster and at a fraction of the cost. This has spurred a cottage industry in the area of “personalized medicine,” with dozens of companies marketing direct-to-consumer genetic tests designed to analyze portions of the human genome that might have a correlation with disease. If we’ve come this far in just over a decade, what might the next ten or twenty years bring? Is it really far-fetched to think that we might soon be able to connect a toxic exposure to disease as easily as one connects a punch in the nose to a broken bone?
In a forthcoming article, Professor Steve C. Gold of Rutgers-Newark discusses these issues at length, dividing commentators into camps of those who take the “prophetic view and [the] skeptical view of the new science’s potential.” (Gold, “The More We Know, The Less Intelligent We Are? -- How Genomic Information Should, and Should Not, Change Toxic Tort Causation Doctrine,” 34 Harv. Envtl. L. Rev. ___ (forthcoming 2010)). Count me proudly among the “prophets.” Will I be right? Only time will tell … but I’ll bet that time will come sooner than many might imagine.
Paul E. Beam Professor of Law
Indiana University School of Law-Indianapolis