HeplerBroom attorney introduces genetic mutation 'BAP1' defense in asbestos case

A defense attorney at HeplerBroom has joined a handful of lawyers nationwide who are introducing a genetic mutation defense in asbestos litigation.

"BAP1" is a genetic mutation believed to increase a person’s risk for developing mesothelioma when exposed to asbestos.

Rebecca Nickelson of HeplerBroom is the lead counsel for defendant Georgia Pacific in an asbestos case ongoing in the St. Louis Circuit Court. Prior to the company's eventual dismissal from the suit on Jan. 6, Nickelson introduced the BAP1 defense when she filed a motion for an order compelling a blood examination from plaintiff David Bergstrom for genetic testing.

In their complaint, Bergstrom and his wife Kaye Bergstrom, claim he developed mesothelioma as a result of exposure to Georgia Pacific’s asbestos-containing products during his career as a drywall finisher.

In Nickelson's motion to compel examination, she relied on Missouri Supreme Court Rule 60.01, which states that when the physical condition of a party is in controversy, the court may require the individual to submit to blood examination.

Nickelson argued that Bergstrom’s physical condition was put in controversy when he alleged that he suffers from mesothelioma caused by exposure to Georgia Pacific’s products.

In her request, Nickelson raised a controversial argument that a BAP1 gene mutation “is known to cause mesothelioma.”

Belief that a gene mutation alone can cause mesothelioma was the hypothesis of Dr. Joseph R. Testa, geneticist and professor at the Fox Chase Cancer Center in Philadelphia, and Dr. Michele Carbone of the University of Hawaii, when they began research into the BAP1 gene mutation. The two were the first to discover that those with BAP1 mutations had a predisposition to developing mesothelioma.

Testa and Carbone believe the BAP1 gene mutation prevents the patient’s proteins from acting as tumor suppressors when cancer is detected, meaning the patient is more susceptible to developing cancers, including mesothelioma.

While, Carbone believes the BAP1 mutation alone can cause mesothelioma without asbestos exposure, medical experts have not been able to reach an agreement on this hypothesis.

“If this genetic testing demonstrates that Mr. Bergstrom has a BAP1 gene mutation, the mutation’s existence may show that asbestos fibers attributable to Georgia Pacific products did not cause Mr. Bergstrom’s mesothelioma,” Nickelson argued in her motion.

“Consequently, Mr. Bergstrom’s physical condition – specifically, whether he has a BAP 1 gene mutation – is directly involved in the question of what caused his alleged mesothelioma, which plaintiffs must prove as a material element of their negligence and strict liability claims against Georgia Pacific."

The Bergstroms, who are represented by Benjamin Schmickle of SWMK Law in St. Louis, answered the motion to compel last July, rejecting the BAP1 defense.

“If the BAP1 were not a gene but rather some product of Georgia Pacific’s ingested or inhaled by plaintiff, and any plaintiff were to bring a lawsuit against Georgia Pacific alleging that the plaintiffs use of BAP1 caused the plaintiff’s mesothelioma, with a current state of medical knowledge regarding BAP1, Georgia Pacific would file a motion to dismiss the case, and the court would be correct in doing so,” the answer stated.

The Bergstroms claim Nickelson’s request is misleading.

“In short, Georgia Pacific’s assertion that a BAP1 gene mutation is ‘known’ to cause mesothelioma is simply scientifically unsupported,” the plaintiffs argued.

“Without medical support, the motion is simply lawyer talk."

The Bergstroms agreed that it was possible for plaintiffs and defendant medical experts to agree that some genetic component makes certain individuals more susceptible to developing particular diseases, but the “medical literature is replete with examples of individuals who develop mesothelioma with much lower and infrequent lifetime asbestos exposures.”

Circuit Judge Robert Dierker was unconvinced and granted Nickelson’s motion on Aug. 1, compelling Bergstrom to submit to blood examination for purposes of genetic testing.

Dierker, however, laid out conditions in a following Aug. 5 order. He ordered the test to be conducted from Prevention Genetics, which is only authorized to test for a BAP1 gene mutation. Upon completion, the lab was ordered to share the results with Nickelson and the plaintiffs’ counsel. Prevention Genetics also was ordered to destroy or turn over all of Bergstrom’s blood samples and results to his treating physician.

The confidential results of the genetic testing were not submitted as evidence on the record.

Defendant Welco Manufacturing Company joined in Georgia Pacific’s motion to compel a blood examination on July 29 before Welco was later dismissed from the suit on Aug. 26.

The case is still being litigated. The most recent action was a settlement reached March 10 between the Bergstroms and KCG Inc., successor to building material makers Rew Materials and KC Wall Products.