Court-Ordered Genetic Testing: The Defendant’s Right to Examine the Plaintiff’s Genome?

Abstract

This article provides an original analysis of the small but growing number of Australian and United States ('US') personal injury cases where defendants have sought to compel genetic testing of plaintiffs in order to identify potential alternative causes of their injury. It finds that, despite the concerns of some scholars, courts continue to show a willingness to order genetic testing on the basis that possible benefits of the test results outweigh any risks to the plaintiff's privacy and autonomy. It concludes that genetic testing should usually be ordered so long as the test is directed towards causation of the plaintiff’s injury and the defendant has identified a sufficient prospect that the findings of the proposed testing may reveal an underlying genetic trait or condition as an alternative cause. This is not to suggest that this evidence should be determinative of causation, this article simply asserts that genetic evidence should be collected in the form of court-ordered genetic testing – it will be for the trial court to determine what weight to give to that evidence and what conclusions can actually be drawn from the evidence.

There is significant uncertainty around whether toxic tort1 defendants should have a right to examine the plaintiff’s genome for the purpose of disputing causation. In a small but increasing number of cases, defendants have sought to compel plaintiffs to undergo genetic testing in an attempt to identify potential alternative causes of their injury. An original analysis of Australian and United States ('US') personal injury cases reveals that courts are overwhelmingly inclined to grant these requests to compel. Some scholars have expressed notable concern that such testing poses risks to the plaintiff’s privacy and autonomy. Nevertheless, courts rightly continue to show a willingness to order genetic testing on the basis that any risks to the plaintiff are outweighed by the benefits to the administration of justice.

This article will begin with an investigation of how courts manage requests to compel genetic testing in toxic tort cases. It will then consider the broader societal implications of compelling genetic testing for the purpose of disputing medical causation. As noted by Professor Gary Marchant, ‘genetic data will present courts with both great opportunities and serious challenges to ensure that such information is used in a sound, effective, and ethical manner’.2 The ‘collateral consequences’ include individual and familial privacy violations, stigmatisation, discrimination, psychological trauma, as well as increased ‘delay, confusion and risk’ due to unreliable test results.3 Part II will explain the relevant legal framework governing court- ordered genetic testing in Australian and US tort litigation. Parts III-VI will examine the socio- economic ramifications of court-ordered genetic testing, including privacy (Part III), stigma/trauma (Part IV), reliability (Part V) and efficiency (Part VI).

Keywords: courts, court-ordered genetic testing, court, Australia, United States, causation, personal injury, genetic, genetics, genome, torts, tort law, bioethics, privacy, stigma, trauma, reliability, autonomy, alternative cause