Genetic Susceptibility and Biomarkers in Toxic Injury Litigation

Abstract

The tort system generally treats plaintiffs as indistinguishable black boxes, entitled to compensation when a defendant's wrongful act or defective product causes some manifest disease or injury. This current paradigm is likely to change dramatically with recent advances in genetic and related technologies. These new technologies will permit differentiation of individuals with respect to susceptibility and predispositions, and to peer inside the individual plaintiff to identify cellular and molecular markers that identify both the status and etiology of pre-symptomatic disease processes. This Article surveys potential, and in some cases existing, uses of such biomarkers in toxic injury litigation, and assesses the doctrinal, procedural, policy and normative issues presented by these biomarker applications.

JEL Classification: K13, K32