A legal defense grounded in genetics: Is DNA testing the magic wand to winning (or losing) a negligence case?
, 2022-08-22 23:21:36,
mong the four elements required to establish liability for the tort of negligence is causation. In addition to proving that the defendant was careless or otherwise breached the legal standard of care, the plaintiff must establish that the wrongful conduct caused the harm the plaintiff suffers. This 1941 New Hampshire Supreme Court decision explains:
Necessary elements of a cause of action based on negligence are the causal negligence of the defendant plus the resultant harm to the plaintiff. Putting it another way, there must be negligence and harm and they must have a causal connection.
Mesothelioma and asbestos litigation
At the height of asbestos litigation, mesothelioma, a cancer of the lining of the pleural (lung) cavity or the abdominal cavity (peritoneal mesothelioma) was believed to be pathognomonic of asbestos exposure, meaning that the disease was a signal cancer of asbestos exposure, and only asbestos exposure. A diagnosis of the disease was tantamount to legal recovery (and virtually certain and swift death). No longer.
Today, it is recognized that mesothelioma has other causes, including erionite, another naturally occurring mineral used in pet litter, soil conditioners, animal feed, wastewater treatment, and gas absorbents. Radiation is also a recognized cause of mesothelioma, either from employment-related exposures, or older therapeutic uses which are now known to cause disease. And then there are causes we don’t even yet know about — as well as those arising spontaneously. These are known as idiopathic causes.
Asbestos exposure significantly declined beginning in the 1970s when the first OSHA asbestos laws were enacted. However, the incidence of mesothelioma, even with its notoriously long latency or delay period, is increasing in women, and has remaining constant overall. This lends credence to the fact that mesotheliomas arises from causes other than asbestos — or even arises spontaneously, “meaning the body needs no help from asbestos or anything else in generating them.”
Of course, spontaneously does not mean “magically” or “out of the blue”. Rather, of the estimates that perhaps twenty to fifty percent of mesotheliomas don’t arise from asbestos, it appears some are attributable to genetic “misfirings”, or mutations, that arise over time, some occurring as we age, and our defenses or repair mechanisms are no longer functioning optimally. (Think how slow your older…
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