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Legal Updates for Asbestos and Mass Tort Litigation

Can Testing Gene Mutations Help in Defending Mesothelioma Claims?

Legal Updates for Asbestos & Mass Tort Litigation – February 2020

February 3, 2021

by Erin N. Margolin

If you have ever watched television, you have surely seen a commercial from a plaintiff’s firm proclaiming: “Mesothelioma is caused by asbestos exposure. If you or a family member suffers from mesothelioma, you may be entitled to financial compensation.” However, these advertisements are misleading. As advances in genetics research are made, it has become clear that occupational asbestos exposure is not the only potential cause of mesothelioma. In fact, in at least 20 to 30% of mesothelioma diagnoses, occupational asbestos exposure has nothing to do with the diagnosis. As information on other potential causes of mesothelioma increases, large payouts by industrial defendants on these cases are no longer a foregone conclusion.

Let’s start with a basic scientific overview. Mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs, i.e., your mesothelium. There are several types of mesothelioma: pleural mesothelioma (mesothelioma that affects the tissue that surrounds the lungs); peritoneal mesothelioma (mesothelioma that affects the tissue in the abdomen); pericardial mesothelioma (mesothelioma that affects the tissue around the heart); and tunica vaginalis mesothelioma (mesothelioma that affects the tissue around the testicles). Mesothelioma occurs when the DNA in cells is damaged. DNA is the chemical in our cells that makes up our genes. Genes are the instructions for how our cells function, and we inherit our genes from our parents.

Consequently, it makes sense in that our genes play a role in whether or not we are predisposed to various cancers, including mesothelioma. For instance, BAP1 tumor predisposition syndrome is caused by mutations in the BAP1 gene. BAP1 is an important “good” gene, which suppresses tumors, and every human has two copies of this gene: one from their father and one from their mother. BAP1 gene mutations have been found in the genes of patients with mesothelioma, in addition to various other types of cancer. P16 deletions also are a possible feature of the genes of patients with malignant mesothelioma; in fact, this deletion occurs in up to 80% of pleural mesothelioma cases and approximately 25% of peritoneal mesothelioma cases. It can be expounded from this that some people with no industrial asbestos exposure whatsoever, but with certain gene mutations, are more predisposed to developing mesothelioma than others who do not have the same genes. Likewise, many individuals with a large amount of occupational exposure to asbestos never develop mesothelioma, likely because they do not have any gene mutations.

In the 2011 article “Germline BAP1 Mutations Predispose to Malignant Mesothelioma,” Joseph Testa opined that mesothelioma clustering associated with the BAP1 gene mutation is observed in some families; in fact, such clustering in families in the U.S. and Turkey have lead to up to 50% of family members developing mesothelioma. Dr. Testa’s study sequenced the BAP1 in germline DNA from one family in Wisconsin and one family in Louisiana, none of whom had any occupational asbestos exposure. In the family from Wisconsin, six affected family members (four with mesothelioma and two with other types of cancer) had identical gene mutations, whereas, unaffected family members did not. Likewise, the genes of the five affected family members (three with mesothelioma and two with other types of cancer) in the Louisiana family showed complete concordance between the BAP1 mutation status and linkage analysis.

The question then becomes: What else plays a factor in these pre-disposed individuals developing mesothelioma?

In 2018, Dr. Richard Attanoos wrote an article titled “Malignant Mesothelioma and its Non-Asbestos Causes,” about the developing information on the other causes of mesothelioma. Dr. Attanoos states that therapeutic radiation for other malignancies is a now a well-established cause of mesothelioma. Additionally, he noted that chronic pleural inflammation can cause mesothelioma, as diffuse malignant mesothelioma has been reported in patients with tuberculosis, chronic empyema, peritonitis and/or Crohn’s Disease. Dr. Attanoos expounded that some mesotheliomas are also idiopathic in nature and some may be caused by mineral fibers other than asbestos.

Dr. Attanoos goes on to explain that while most pleural mesotheliomas (70% to 90%) in men in Europe and North America were attributable to occupational asbestos exposure; for peritoneal mesothelioma, however, the proportion was lower. Additionally, in North America, few mesotheliomas in women were attributable to asbestos exposures. Dr. Attanoos pontificates that, given amphibole asbestos exposures are presently uncommon and epidemiologic evidence, including incidences of mesothelioma in both sexes, as well as the time trend of these diagnoses in addition to the lack of occupational asbestos exposures, suggests that there are other factors which cause mesothelioma. In simpler terms, there is overwhelming evidence that recent diagnoses of mesothelioma cases are being caused by something other than occupational exposure to asbestos. Dr. Attanoos opines that the current data suggests that a smaller fraction of tumors in men and very few tumors in women are now related to asbestos.

This is expounded upon in the 2018 article “Genomics and Epigenetics of Malignant Mesothelioma,” authored by Dr. Adam Sage. Dr. Sage notes that there have been global efforts to limit asbestos exposure through bans; however, a corresponding decrease in mesothelioma diagnoses has not been observed. In fact, the incidence of mesothelioma increased by almost 40% between 2005–2014. He opines that a significant portion of the newly diagnosed cases are the result of non-mining professional occupations and environmental exposures. Dr. Sage believes that germline mutations in the BAP1 gene are one of the most significant factors that lead to the development of mesothelioma.

Testing for BAP1 mutations is fairly easy, especially as genetic testing continues to be on the rise. In fact, much like women with a familial history of breast cancer undergo BRCA testing, there may be a time in the near future when those with a family history of mesothelioma are given genetic testing for BAP1 mutations and P16 deletions so that they can be monitored for early detection. Even ancestral DNA testing companies, such as 23andMe and AncestryDNA, already test clients for BRCA. It is reasonable to assume that other gene mutations linked to cancer will be commonly tested in the future.

Accordingly, it is likely that the presence of the BAP1 mutation will be readily available information in future asbestos litigation. There is already strong evidence to suggest that occupational asbestos exposure is not causing mesothelioma diagnoses to continue to rise. In the meantime, in order to appropriately defend occupational exposure mesothelioma cases, it will be important to question plaintiffs regarding their familial cancer history as well as any genetics testing that they have undergone. Additionally, a history of radiation therapy as well as exposure to other types of mineral fibers should be investigated.

 

Legal Updates for Asbestos & Mass Tort Litigation – February 2020, has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tdrau@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

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Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998.  For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer.  In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability.  The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline.  Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter.  The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant.  The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing.  The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations.  As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer.  The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements.  Therefore,  the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b).  Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements.  For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

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Employer/Carriers Must Explicitly Invoke Right to Deny Claim Under “Pay and Investigate” Statutory Provision; Employes Must Always Prove Medical Necessity of Treatment

Koren v. City of Kissimmee/PGCS, ___So.3d___(Fla 1st DCA 6/10/26) The majority opinion in Koren holds that the Judge of Compensation Claims (JCC) properly denied psychiatric treatment because the claimant did not challenge on appeal the JCC’s finding that the requested treatment was not medically necessary. However, Judge K. Thomas authored a detailed concurrence agreeing with the result on the ground that the claimant failed to meet his burden of proving medical necessity. In doing so, Judge K. Thomas also emphasized an important principle: employer/carriers must expressly invoke the 120-day pay-and-investigate provision under Florida’s Workers’ Compensation Act if they intend to preserve their right to deny compensability. Merely authorizing evaluations, without explicitly invoking the 120-day rule, may be insufficient to preserve the right to deny compensability of specific injuries. In Koren, the claimant sustained injuries to his upper lip, tooth, right knee, and right foot when a board gave way on a deck he was repairing for the employer/carrier. The accident was accepted as compensable, and multiple specialists were authorized to treat his physical injuries, including an ear, nose, and throat physician, dentist, orthopedist, and plastic surgeon. The claimant later sought psychiatric treatment and attended an independent medical examination (IME) with a psychiatrist. The IME diagnosed adjustment disorder with mixed anxiety and depressed mood, opining that the condition was caused by “the actual appearance of the scar” resulting from the industrial accident. The IME recommended continued medication, including an antidepressant, as well as follow-up care with a psychiatrist and psychologist. Critically, however, the IME did not offer an opinion regarding the medical necessity of this treatment. The claimant then filed a petition for benefits attaching the IME report and requesting authorization of psychiatric care. The employer/carrier responded by authorizing a psychiatrist, whom the claimant did, in fact, see. However, the employer/carrier neither denied the claim nor issued written notice invoking the 120-day pay-and-investigate provision. The authorized psychiatrist subsequently opined that the claimant’s psychiatric condition was unrelated to the industrial accident and instead attributable to prior employment as a law enforcement officer and volunteer firefighter. The psychiatrist further concluded that the work accident was not the major contributing cause of the condition. Although the employer/carrier stipulated to the authorization of the psychiatrist, it ultimately denied the claimant’s entitlement to psychiatric treatment. The JCC denied the requested benefit. The majority opinion affirmed on the narrow ground that medical necessity had not been established. Judge K. Thomas’s concurrence, however, expands on the legal framework. Under Florida law, an employer/carrier presented with a claim must “pay, pay and investigate, or deny.” To avail itself of the 120-day pay-and-investigate protection, the employer/carrier must affirmatively and explicitly invoke that option, typically through a written 120-day letter. The statutory investigative period does not arise automatically upon the provision of care. Furthermore, an attempt to characterize authorization as a “one-time evaluation” does not avoid waiver, as even a single evaluation may constitute the provision of a compensable benefit. By authorizing psychiatric care without invoking the 120-day provision, the employer/carrier in Koren effectively accepted compensability of the claimant’s PTSD condition. Nonetheless, it retained the ability to contest entitlement to ongoing treatment. While the employer/carrier failed to demonstrate a break in the causal chain, the claimant still bore the burden of proving that the requested treatment was medically necessary. Because the JCC found that the claimant failed to meet this burden, and the claimant did not challenge that finding either below or on appeal, the denial of psychiatric benefits was ultimately affirmed.

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Appellate Division Affirmed Workers’ Compensation Order Striking Defenses and Ordering Treatment

Kneezel v. Lambertville House, No. A-2729-24 (June 1, 2026) In Kneezel v. Lambertville House, Lambertville House appealed from a workers’ compensation order to strike its defenses and directing it to authorize knee replacement surgery. By way of background, the petitioner worked as a property manager for Lambertville and injured his back and knee in December 2019. A workers’ compensation claim was filed and the petitioner treated at Rothman Institute. He underwent four injections to his low back and was recommended for surgery. The day before, Lambertville canceled and set up a second opinion exam with Dr. Lawrence Barr. The petitioner filed a motion for medical and temporary benefits (MMT), which was ultimately granted by the workers’ compensation judge. As such, he received authorized treatment for his back. The petitioner was then referred for his left knee pain and treatment was provided by Lambertville. He was recommended for a knee replacement, but the petitioner declined at that time. Approximately two years later, he sought additional treatment, which was denied. After obtaining a report from Dr. Dhimant Balar, the petitioner filed another MMT. In response, Lambertville submitted Dr. Zachwieja’s report and surveillance reports. Dr. Balar opined the left knee injury was related to the work accident, whereas Dr. Zachwieja believed it was due to his advanced degeneration as there was no evidence of acute trauma. A hearing on the MMT began in November 2024, with the petitioner testifying his knee pain never went away and he had a lot of trouble walking, especially for more than five to ten minutes. The surveillance investigators were scheduled to testify after, but had to be rescheduled a couple of times. During a conference in early February 2025, prior to when the investigators were to testify, it was discovered that Lambertville did not provide discovery to the petitioner, including the investigators’ information and surveillance footage. The petitioner moved to strike Lambertville’s defenses and sought an order to authorize the left knee treatment. Petitioner’s counsel pointed to Lambertville’s unreasonable delay in providing the necessary information and Lambertville did not file an opposition. In March 2025, the investigators’ testimonies were set for mid-March. On March 14, 2025, petitioner’s counsel advised she was still waiting for discovery and the judge directed Lambertville’s counsel to provide any missing information by March 17, 2025. Lambertville provided video clips after the petitioner had testified so the judge indicated that if everything was not provided to petitioner’s counsel by the end of March 19, 2025, the judge would sign the order granting the MMT. The next day, the judge entered the order striking Lambertville’s defenses and ordering left knee treatment. Lambertville moved for reconsideration of stay of the order pending appeal. Following oral arguments, the judge denied Lambertville’s motion, citing N.J.A.C. 12:235-3.11 (a)(4)(i) that Lambertville was required to provide surveillance after the petitioner’s testimony and that it had failed to do so even after he testified in November 2024. The judge also noted the investigators’ testimonies were rescheduled multiple times and Lambertville had more than enough time to provide the requested information and failed to do so. The judge also noted Lambertville failed to file a response to the petitioner’s motion to strike. In addition, the judge pointed to the petitioner’s testimony, finding him to be credible and observing him to have to stand and move multiple times during testimony. Lambertville appealed, arguing its due process rights were violated as there was no opportunity to be heard and the order was procedurally and factually defective. However, the Appellate Division disagreed, noting Lambertville had sufficient notice and many opportunities to be heard. It was noted Lambertville’s failure to comply with the judge’s requests led to the order. As for the motion to strike, the Appellate Division indicated Lambertville failed to oppose the motion, which provided the judge with the ability to decide without a hearing for an uncontested motion. Ultimately, the Appellate Division found no abuse of discretion and affirmed the judge’s rulings and order.

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No-Cause Jury Verdict Secured in Wrongful Death Trial

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