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 paradigm is likely to change dramatically with recent advances in genetic and related technologies. By peering inside the individual plaintiff to identify cellular and molecular markers that indicate both the status and etiology of pre-symptomatic disease processes, it will be possible to differentiate among individuals with respect to susceptibility and predispositions. 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 they present.