Can DNA Break the Asbestos Backlog?

One of the most egregious injuries to public health of the 20th century - one that could've largely been avoided - was the widespread use of asbestos in industry, manufacturing, and construction. Though a great insulator and flame-retardant, the microscopic asbestos fibers also wreak havoc when inhaled - causing all sorts of lung complications, the worst being "mesothelioma", the cancer caused by asbestos exposure. Even after the first cases of "asbestos lung" became well known (the first court case was in 1929), it was still kept in widespread use.

Though most products were removed from the market by the 1980s, a stunning swath of the population had had some exposure, a legacy that keeps on ticking, with some 10,000 people still dying from the legacy of asbestos exposure annually. It has likewise spread into the legal system. In the past three decades, $70 billion has been spent on asbestos litigation (Jim Suroweicki had a nifty New Yorker column on the asbestos industry last year, from which some of these facts are drawn). Asbestos claims clog our court systems - there have been more than 6,000 defendants and 600,000 claimants; in 2001 Supreme Court justice David Souter described asbestos litigation as "an elephantine mass" (the onslaught has resulted, not surprisingly, in all sorts of lobby groups and organizations aiming to eliminate the backlog. Another curious side effect: Google charges top dollar for ads to run alongside searches for "asbestos litigation" and similar terms because there's such demand from lawyers). The cases are hard fought, and drag on for weeks. Last time I was called for jury duty I was considered for a civil case based on asbestos litigation; the judge estimated that it would take three to six weeks to hear all the arguments.

One of the reasons asbestos litigation is such a burden on the court system is that it's difficult to prove causality for many cases. Though some conditions, such as mesothelioma, are strongly correlated with asbestos exposure, many claimants are bringing lawsuits based on less egregious illnesses and short-term exposures. In the case I almost sat on the jury for, the claim was for emphezema - and the plaintiff's lawyer slyly asked potential jurors if the fact that the plaintiff was a lifelong smoker, as well as someone exposed to asbestos, would affect our ability to judge the origin of his disease. Multiply that times 10,000 and you have a huge, sclerotic burden on the court system, and the country.

There have been efforts at cleaning up the mess with legislation. The "Fairness in Asbestos Injury Resolution Act" would set up at $140 billion trust fund for asbestos claimants, but it hasn't gotten out of Congress (the American Public Health Association, among others, opposes the bill).

And now there may be a solution through technology. A DNA test called msds1 promises to offer a clear, declarative read on causality for injuries from exposure to chemicals and substances such as asbestos. If it catches on, it could be a great impetus towards answering the causality question in so many asbestos suits (and it could give it's inventors a nice slice of the massive litigation expenditures).

The test, devised by University of Illinois Bruce Gillis at his Cytokine Institute, measures gene expression, matching a gene up to specific chemical signatures across 36,000 parameters. The company claims it can provide "99.9% certainty if a person was injuriously exposed to a particular toxin." It's hard to suss out exactly how the test works, but it sounds like it works by comparing tissue from a diseased person claiming causal exposure to tissue from a healthy person. More specifically, someone claiming injury provides a tissue sample - and then that A sample is compared to a B sample from a healthy person that has been exposed to specific chemicals. If there's a DNA match in gene expression, odds are the DNA change is due to the substance in question, and the injury claim is valid. The test costs a little over $6,000, according to a National Underwriter story.

Earlier this month, the Los Angeles-base Institute opened an office in Boston - a hub for asbestos related litigation. The test has already been used in 20 California cases, and I expect it'll start showing up in East Coast courtrooms now, too.

(Curiously, the UK press is all over this - The Times of London, the Independent, and the BBC all have stories. Some publicist must've been working the field over there).

Thomas GoetzComment