What Role Would Toxicogenomics Play in Causation

I’m sure research on the human genome will reveal some spectacular results, such as explaining why once a person reaches age 60, he feels compelled to buy bright, white tennis shoes, and to continue upping the brightness and whiteness as he ages, to the point where he will eventually wear shoes equipped with xenon headlamps. (As an aside, I wonder how the pioneers satisfied this primal urge.) Today, we give a hat tip and comment on this post by Christopher J. Robinette at the TortsProf blog discussing a word we had never heard before: toxicogenomics. Robinette cites this article from LegalNewsline discussing the advances in science and what “the study of the relationship among the cell’s genome, chemicals in the environment, and disease” could mean in the future of toxic tort. We don’t live in 1958 anymore, and we know that cigarette smoking and exposure to asbestos can cause lung disease. The question then, is, when we map an individual’s genome, how specific can we get with causation in relation to genetics and exposure to certain toxicants.

The LegalNewsline article focuses on the potential for toxicogenomics in causation, pointing to better evidence in linking exposure to disease. When science links exposure to disease, this should lead to an explosion in litigation. By the same token, science can lead to better evidence in defense of a toxicant-exposure case.

While all this remains to be seen, the impacts will not be felt merely in causation. Litigation outcomes inform future courses of action for people not parties to the action (or so we learned in torts class). Indeed, is it that hard to imagine that certain employers could require genome testing of their employees? After all, one central theme of products liability is imagining all the inane things that a potential plaintiff could do and defending design in a court. Isn’t a failure to warn claim really a “you should have protected me from myself” claim. Certainly you can see a plaintiff testifying in a case of occupational exposure that his employer should have protected him from his genetic predispositions. Employer-mandated pre-employment genetic testing would be a reasonable means of defense in a lawsuit, but there certainly would be some resistance to this cellular “love pat.”

I would hazard a guess that within ten years, we will see the first wave of pre-employment genome screening. Removal of asbestos from products and warnings on cigarette packs demand this. I’m just glad that, as a lawyer, I personally don’t have to worry about occupational exposure to anything but stress, but maybe the bar will start genome testing for pre-disposition toward substance abuse. Until then, products like Four Loko should be banned from the market. Right?