April 07, 2020 Articles

Recent Civil Discovery Decisions Addressing Genetic Testing

Genetic testing of plaintiffs will likely become routine at least in mass tort product liability litigation within a decade.

By James M. Beck

Based on existing trends of dramatically decreasing cost and equally dramatic efficiency increases, genetic testing of plaintiffs will likely become routine at least in mass tort product liability litigation within a decade. The cost of such testing is constantly plummeting, even more steeply than would be predicted by Moore’s law. As that happens, it is likely that the rules of civil procedure will be modified to govern such testing. Even now, what little precedent exists mostly agrees that recalcitrant litigants may—with appropriate confidentiality safeguards—be required to provide specimens necessary for genetic testing. To date, almost all of those cases involve blood samples, but technology is enabling even less invasive alternatives:

A high number of patients seem to accept salvia samples as a risk assessment tool . . . and are interested in their specific risk situation. At the same time, it could be demonstrated that it is an effective way to provide high-quality DNA for . . . gene analysis.

Poehls et al., “Saliva Samples as a Source of DNA for High Throughput Genotyping: An Acceptable & Sufficient Means in Improvement of Risk Estimation Throughout Mammographic Diagnostics,” 23 Eur. J. Med. Res. (2018), art. 20 at “Conclusion” (2018).

The great majority of genetic testing cases seek to employ such tests to establish someone’s identity.

The great majority of genetic testing cases seek to employ such tests to establish someone’s identity.

Credit: Pexels, Martin Lopez

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