Transgenerational risk: scaling the tail of a ‘known unknown’20th October 2020
Chemicals found today in everyday, consumer products could have unforeseen injurious consequences for future generations says Hiscox’s Flavia Lyons – General Liability Underwriter
Back in 2007, the scientific journal Nature published findings suggesting that pregnant women exposed to a synthetic oestrogen medication called diethylstilbesterol (DES) experienced a marked increase in reproductive abnormalities and rare cancers not only in their children, but also unearthed evidence of this latent bodily injury in the second generational maternal line. This was an unexpected result since the children of their daughters had not been exposed to DES.
The hypothesis that present exposure to widely available consumer goods may be responsible for an unforeseeable and heritable injury – a phenomenon known as transgenerational (or intergenerational) harm – could have significant implications for wider public health in the long term. Today, an increasing cohort of commonplace consumer chemicals are being tested for transgenerational effects.
The collateral implications of this discovery and the potential health crisis it could spur may also have consequences for the upstream chemical manufacturers all the way down the supply chain to the high street retailers of chemical-based consumers goods. And successful litigation as a result of applying this science in court has the potential to call upon the general liability insurance market to protect businesses from corporate negligence claims.
The hypothesis that present exposure to widely available consumer goods may be responsible for an unforeseeable and heritable injury – a phenomenon known as transgenerational (or intergenerational) harm – could have significant implications for wider public health in the long term.
Transgenerational harm refers to the observation that certain types of cellular injury in adults can appear in the children, grandchildren and subsequent descendants of those individuals originally exposed to a toxicological hazard. Most often these injuries are transmitted by changes in how our genes are regulated as opposed to changes in the genes themselves.
As early as the 1970s, evidence concerning an increased risk of cancer in children of auto mechanics was documented and there is extensive acknowledgement of the devastating impact that Thalidomide medication taken during pregnancy in the 1950s and 1960s had on pre-natal foetus. But what if emerging clinical science supports prognosis of bodily injury resulting from more widely consumed and accessible substances which, following adult ingestion, could have far-reaching implications across multiple future generations?
Inheriting physical and mental disorders
That appears to be the case with recent experiments exploring the possibility that such substances can cause transgenerational injuries via three suggested scenarios; damage to germline cells (eggs and sperm), damage to somatic (non-germline) cell DNA, and in utero exposure which can damage both types of cell. Further, it has been suggested that each of these channels can permit the transmission of both physical and mental disorders.
Another article published in Nature involving glyphosate – the much-publicised active ingredient of Roundup weed killer – cited heritability of related diseases across second and third generations of lab rats. Recent legal scrutiny has resulted in jury awards of up to $2bn for the suspected culpability of this herbicide in causing lymphomas in its direct third-party applicants but it is now coming to light that glyphosate could be accountable for transgenerational cancer causation, with trials presenting a 30% increase in prostate disease amongst second and third generation rodents. There is every possibility that this evolving science could be used by the increasingly shrewd plaintiff bar, which could have huge implications for commercial liability.
Given the potential for latent bodily injury from glyphosate, bisphenol A – found in some plastics – arsenic, cadmium and even caffeine exposure, there is a possibility that plaintiffs will look for compensation for the exposure experienced by previous generations, where there is a distinguishable biological signature of the exposure observable on a plaintiff’s DNA.
Does the duty of care apply to future generations?
Reviews of the literature surrounding the transgenerational harm phenomenon have been undertaken by liability risk modelling company Praedicat Inc, which has built probabilistic models to make predictions for how the existing science for 14 transgenerational harm agents could progress and potentially lead to litigation. Given the potential for latent bodily injury from glyphosate, bisphenol A – found in some plastics – arsenic, cadmium and even caffeine exposure, there is a possibility that plaintiffs will look for compensation for the exposure experienced by previous generations, where there is a distinguishable biological signature of the exposure observable on a plaintiff’s DNA. But what is the chance of this all playing out in the short term?
For litigation to be successful, all elements of tort law need to be satisfied; there needs to exist a duty of care and it is this duty that must be conclusively breached by the defendant. Crucially, there also needs to be a trigger of negligence, a conscious dereliction of duty or failure to exercise appropriate care to prevent the damage from occurring. The critical questions now being asked are whether this duty of care can be retrospectively applied to generations who were subjected to the original exposure? And, from what point onwards can jurors expect defendants to be aware of the potential implications of their products to future generations?
The hurdle of foreseeability
According to Praedicat, women exposed to DES in utero have filed a wave of lawsuits against manufacturers and secured settlements in relation to their health claims, but it’s believed that no such claims have yet gone to trial. There is the hurdle of foreseeability. Can it be conclusively proven that it was exposure to one specific product and chemical that led to the injury? The science surrounding biomarkers and traces of chemical exposure on the genome will need to become more established which will then add far greater gravitas to potential lawsuits.
Adam Grossman, Ph.D., Vice President of Modelling at Praedicat, says: “The discovery of transgenerational injury is relatively recent and comes at a time when research into biomarkers – so called ‘fingerprints of past exposure’ – have gained significant traction in the scientific community. If the science matures to the point of being able to demonstrate a prior generation’s exposure to a chemical caused a bodily harm, then we should expect lawsuits to follow. The courts, of course, will have to work out the questions of duty and foreseeability as mentioned. The law lags science, so we will not know the answers to these questions for at least several years. Nonetheless, companies today need to be aware of the risk that transgenerational harms pose to their business.”
Businesses using higher risk chemical products need to think about going beyond the toxicology risk assessments they carry out for direct human exposure and consider the possibility that their products could harm future generations..
Businesses need to take action
In the short to medium term, businesses using higher risk chemical products need to think about going beyond the toxicology risk assessments they carry out for direct human exposure and consider the possibility that their products could harm future generations. The actions they take now could help to mitigate future problems both from a financial perspective but also – and the two are of course interlinked – any reputational damage.
Scope for insurers to innovate
Insurers that provide liability protection for these businesses will also need to consider the implications of transgenerational harm to their existing underwriting. How would existing contracts respond to this exposure, for example, if cases came to court and juries found in favour of those who claimed they had suffered physical harm from the actions of their antecedents? And for the future risks they underwrite, transgenerational harm could redefine the nature of long tail risk. But, rather than seeing transgenerational harm as a problem for the industry, and in the same way that insurers have risen to the challenge of insuring other emerging risks, there is huge scope to look at innovative new ways of responding to this potential risk and in helping clients manage this ‘known unknown’ liability whether through new risk transfer options, risk management solutions, or a combination of both.
This article was first published by the Insurance Day on 20th October 2020: