Rebecca Nickelson, an asbestos defense attorney with the St. Louis law firm of HelperBroom, has helped to develop a genetic mutation defense in asbestos litigation. A specific genetic mutation, “BAP1,” increases an afflicted person’s risk for developing mesothelioma when exposed to asbestos. Nickelson introduced the defense on behalf of her client, Georgia Pacific, in a now- dismissed case in St. Louis Circuit Court.
The case was filed by plaintiffs’ David Bergstrom and his wife Kate, claiming he developed mesothelioma during his career as a drywall hanger and finishing worker, where he used Georgia Pacific’s drywall products. Through Nickelson, Georgia Pacific motioned the court to order Mr. Bergstrom to undergo blood examination and genetic testing. A motion to compel such an examination is pursuant to Missouri Rules of Civil Procedure 60.01. Under the rule, the court can order a party, upon motion for good cause, to submit to physical and blood examination when their physical condition is in controversy in that action.
Mrs. Nickelson’s motion cited recent scientific research from the collaboration of the Fox Chase Cancer Center in Philadelphia, Pennsylvania and from the University of Hawai’i. Drs. Michele Carbone and Dr. Joseph Testa began research into the “BAP1” gene mutation where their findings led them to conclude that a person with the mutation would be predisposed to developing mesothelioma when exposed to asbestos.
The motion alleged that if Mr. Bergstrom has the “BAP1” gene mutation, he might have developed mesothelioma prior to or regardless of exposure to the defendant’s products. Essentially, if Mr. Bergrstrom has the gene mutation, it is impossible to link his exposure to asbestos from Georgia Pacific’s products as the cause of his cancer. The motion was granted by Circuit Judge Robert Dierker and Mr. Bergstrom was ordered to submit to blood examination at Prevention Genetics testing corporation before July 29, 2014.
However, on Jan 6, 2015, Georgia Pacific was dismissed from the lawsuit, without either party making a statement on the matter. The results of Mr. Bergstrom’s genetic tests are confidential and will not be disclosed.