Heather Isringhausen Gvillo Mar. 9, 2015, 7:41am

Plaintiffs firms are battling a new defense being employed in asbestos litigation – that is, a certain genetic mutation is believed to increase a person’s risk of developing mesothelioma when exposed to asbestos.

The genetic mutation is called BAP1, and University of Hawaii researcher Dr. Michele Carbone believes that not only it it capable of increasing the risk of developing mesothelioma and other forms of cancers with asbestos exposure, but also that it can directly cause mesothelioma.

While a report of this research was released in 2011, attorneys with the Kazan, McClain, Satterley & Greenwood law firm in Oakland, Calif., say that only recently has the BAP1 gene mutation theory appeared as a defense strategy in asbestos lawsuits.

Attorney Steve Kazan said his firm is taking the lead "to legally stop forced mesothelioma genetic testing” in cases where defense has introduced the BAPI defense.

“It sure didn’t take long for corporate lawyers to try to take the new discovery about BAP1 and turn it into something to use against innocent people who are dying because of corporate greed and neglect,” Kazan wrote in his blog. “Knowingly exposing people to lethal asbestos is wrong regardless of anyone’s genetic make-up.”

As of last August, Kazan attorney Andrea Huston said she had only seen the BAP1 defense used in five cases: Ortwein v Certainteed Corporation, Perez v ArvinMeritor, Inc., McCarthy v Baltimore Aircoil, Co., Bergstrom v 84 Lumber and Bernard v Colgate-Palmolive Co.

The Ortwein and Perez cases are being litigated by the Kazan law firm in Alameda County Superior Court in Oakland, Calif.

In plaintiffs’ Holly and Richard Ortwein’s lawsuit, Huston said she became aware that BAP1 might be an issue when her office received Holly’s pathology slides from the defendants, which contained a report showing that "someone" with the University of Hawaii Cancer Center had done immunohistochemical staining for BAP1 protein expression.

Presiding Judge Jo-Lynne Lee last November granted defendant Certainteed’s motion to compel production of lung tissue samples from Holly Ortwein for genetic testing.

However, Lee added that the court had not addressed whether the results of the genetic testing would be admissible as evidence.

“This motion concerns the scope of pre-trial discovery, and not the admission of evidence for a dispositive motion or at trial,” she wrote. “As a result, the court is not acting as a gatekeeper and not deciding whether to exclude expert opinion testimony that is not supported by the material on which the expert relies.”

On the discovery question, Lee reasoned that because Ortwein had since died from her illness, she no longer had a legally recognizable interest in her genetic information. She added that a person “owns” their own genetic information, meaning the remaining plaintiffs don't have a legal interest in Ortwein’s genetic information.

“It then follows that one person cannot have a constitutionally protected privacy interest in another person’s genetic information because any such interest would interfere with the owner’s right to control the use and disclosure of their own genetic information," Lee's order stated.

Expert witnesses in asbestos litigation - which annually generates billions in settlements and verdicts - have long held that mesothelioma, a deadly form of cancer, is caused exclusively by exposure to asbestos.

But that long held theory could be put to the test if more courts allow the introduction of genetic testing.

Dr. Joseph R. Testa, a geneticist and professor at the Fox Chase Cancer Center in Philadelphia, worked alongside Carbone to first discover that those with BAP1 mutations had a predisposition to mesothelioma.

In a declaration Testa submitted Aug. 29 in the Ortwein case, he explained that a BAP1 gene mutation prevents the patient’s proteins from acting as tumor suppressors when cancer is detected.

“[F]amily members who inherit this mutation are less able to suppress tumor formation and, thus, are more susceptible to developing certain types of cancer, including mesothelioma, when a carcinogenic agent enters the body,” he stated

Testa, however, disagreed with Carbone that mesothelioma can be caused absent exposure to asbestos.

“[W]hile a single inherited BAP1 mutation can greatly increase the risk of cancers such as mesothelioma, it is not sufficient to cause the disease,” Testa wrote.

Testa wrote that in their original 2011 report, a team of 19 doctors hypothesized that the BAP1 mutation alone could potentially cause mesothelioma, but the suggestion has since been proven untrue.

Carbone, however, maintains that a person who possesses the BAP1 mutation can develop mesothelioma without asbestos exposure.

In the Ortwein case, Carbone declared before Testa in an Aug. 5 filing: “In other words, the BAP1 mutation, in and of itself, is capable of causing mesothelioma and many other cancers. However, asbestos exposure may increase the risk of developing mesothelioma in carriers of BAP1 mutations."

In the meantime, Kazan's firm remains committed to fighting BAP1 defense.

At a conference of the International Mesothelioma Interest Group (IMIG) held last October in South Africa, Kazan was the sole legal presenter among doctors and medical researchers.

He presented "Hippocrates and BAP1 Genetic Testing in Mesothelioma Litigation."

Another Kazan attorney, Irena Kin, has amplified the "Hippocrates" message presented at the IMIG conference by questioning the ethics of genetic testing, as applied by defense, in asbestos litigation.

“Companies that are being sued in mesothelioma litigation are trying to use this information as a defense to liability,” she said in a video presentation.

Kin urged plaintiffs to consider their options when defendants bring up genetic testing, including a plaintiff’s right to deny.

“Everyone has the right to privacy, especially to protect personal data derived from a genetic test,” she said.

She went on to say that defense attorneys are only concerned with advancing their client’s interests and challenged medical professionals to maintain their ethical duties.

“The attorneys that hire these medical professionals are not responsible for making sure that they follow their ethical obligations. Their responsibilities are to their own clients, the defendant companies. As a result, medical professionals need to make sure that they follow particular ethical duties.”

A jury trial has been set for the Ortwein case in December.

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