ABSTRACT
This article explores the increasingly important role that genetic evidence is playing in toxic tort litigation, and indeed personal injury litigation more broadly, with reference to recent case law in both Australia and the United States. Genetic information can provide valuable evidence to support or dispute causation by showing genetic changes indicating a plaintiff’s exposure to a toxin and/or injury because of exposure to a toxin; genetic predisposition to disease; and genetic susceptibility to a toxin. This article also observes that, while courts can compel plaintiffs to undergo genetic testing as a means of shedding light on the issue of causation, caution is needed to balance the benefits to the administration of justice with the risks, which include misinterpretation and violation of individual and familial privacy and autonomy.
Imagine that a plaintiff alleges they were injured by a pollutant in their drinking water, toxic dust in their workplace, a pesticide used in their garden, or a vaccine or medication they were prescribed. In such a case, how can the plaintiff prove that their injury (be that a cancer, birth defect or brain damage) was caused by exposure to that specific toxin, rather than the myriad of other exposures they experience on a daily basis? The methods lawyers have used in attempts to prove or disprove causation in such toxic injury cases include epidemiological evidence, toxicological evidence and the developing field of genetic evidence.
Golru, Sara, Judging the Genome: Using Genetic Evidence to Support or Refute Causation, (2023) 175 Precedent 29.
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