Genetic Testing and Testimony in Toxic Tort Litigation: “Admissibility and Evaluation”

June 3, 2012

Official guidelines must be promulgated in order to assist with case-by-case judicial admissibility determinations of genetic testing evidence in toxic tort litigation. Emerging technology, specifically advancements in genetic testing, could prove highly influential in toxic tort litigation. Genetic testing data can, in many cases, provide evidence of both (i) proof of exposure to a toxic substance and (ii) proof of genetic susceptibility of an individual plaintiff to a specific illness. Thus, genetic testing data may be helpful in proving an individual plaintiff’s exposure to the alleged toxic substance, as well as in establishing or disproving the plaintiff’s genetic susceptibility to illness alleged to have resulted from exposure to said toxic substance. As such, genetic testing data could have a drastic impact on a jury’s causation analysis in toxic tort litigation. It is imperative that such evidence be admitted only where there is clear scientific significance of the evidence in question and the impact of such data can be sufficiently explained to the jury. This article proposes that formal guidelines be promulgated to ensure the probative value of genetic testing evidence and testimony in toxic tort litigation is properly weighed against the potential harm such evidence poses to individual plaintiffs and defendants, as well as the potential of the evidence to confuse the jury’s causation analysis.