BAP1 is a genetic mutation that may possibly increase the chances of developing mesothelioma from asbestos exposure. A few defense attorneys around the country are hoping they can use BAP1 as a possible genetic defense in asbestos exposure litigation. HeplerBroom attorney Rebecca Nickelson is heading the defense team for Georgia Pacific in an ongoing asbestos exposure case in St. Louis Circuit Court.
While the company was eventually dismissed from the suit in January and other joined defendant Welco Manufacturing Company was dismissed in August, the case is still being litigated between plaintiff David Bergstrom and KCG, Inc., successor to Rew Materials and KC Wall products, both building material makers.
Bergstrom’s claim is that he was exposed to Georgia Pacific’s asbestos-containing materials in his career as a drywall finisher and that, as a result, he now has mesothelioma. Nickelson convinced Circuit Judge Robert Dierker to compel Bergstrom to provide a blood sample for genetic testing after raising the BAP1 argument.
The judge put the following restrictions on the testing, ordered in August. The lab was specified as Prevention Genetics and is only authorized to test for the BAP1 gene mutation. The results were to be shared with both parties’ counsel and the lab had to either destroy Bergstrom’s samples or surrender them to his treating doctor. Interestingly, the confidential test results were not submitted as evidence on the record.
Could it be that asbestos defendant’s have a miracle defense? Time will tell, but I don’t think it’s likely. Dr. Joseph R. Testa of the Fox Chase Cancer Center in Philadelphia and Dr. Michele Carbone of the University of Hawaii, created the original hypothesis that a BAP1 gene mutation can cause mesothelioma without asbestos exposure. They discovered the connection between BAP1 mutations and a predisposition to developing mesothelioma.
The mechanism, they believe, is that the mutation keeps the patients’ proteins from working as tumor suppressors when a cancer is detected. This increases susceptibility to developing cancers, including mesothelioma. Their peers, however, are not convinced and Bergstrom’s attorney made that point very clear.
Benjamin Schmickle of SWMK Law in St. Louis said, “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. In short, Georgia Pacific’s assertion that a BAP1 gene mutation is ‘known’ to cause mesothelioma is simply scientifically unsupported. Without medical support, the motion is simply lawyer talk.”
While Schmickle agrees that the possibility exists that he and the defendant’s medical experts could agree that BAP1 may make certain people susceptible to developing mesothelioma, he is quick to point out that the “medical literature is replete with examples of individuals who develop mesothelioma with much lower and infrequent lifetime asbestos exposures.”
It will be interesting to see how this ultimately plays out. Personally, I’m leaning more toward “No” regarding BAP1 as a valid defense, at least not without more research.