University of Maine School of Law University of Maine School of Law Digital Commons Faculty Publications Faculty Scholarship 1997 Genetics, IQ, Determinism, and Torts: The Example of Discovery in Lead Exposure Litigation Jennifer Wriggins University of Maine School of Law, [email protected] Follow this and additional works at: http://digitalcommons.mainelaw.maine.edu/faculty- publications Part of the Law Commons Suggested Bluebook Citation Jennifer Wriggins, Genetics, IQ, Determinism, and Torts: The Example of Discovery in Lead Exposure Litigation, 75 B.U. L. Rev. 1025 (1997). Available at: http://digitalcommons.mainelaw.maine.edu/faculty-publications/41 This Article is brought to you for free and open access by the Faculty Scholarship at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Maine School of Law Digital Commons. For more information, please contact [email protected]. GENETICS, IQ, DETERMINISM, AND TORTS: THE EXAMPLE OF DISCOVERY IN LEAD EXPOSURE LffiGATION JENNIFER WRIGGINS" INTRODUCTION ....................................................................... 1026 I. EFFECTS OF LEAD EXPOSURE ............................................. 1031 II. GENETIC EsSENTIAliSM AND MATERNAL DETERMINISM ............ 1034 A. Genetic Research, Genetic Essentialism, and their Implica­ tions ................................................................. ..... 1034 1. Introduction......................................................... 1034 2. Genetic Narratives and Genetic Essentialism ................. 1036 3. Research in Genetics and the Pressure to Expand Testing and Other Inquiries................................................ 1037 4. Testing Non-Parties and Seeking Non-Parties' Personal Records Based on Genetic Arguments ......................... 1039 B. Maternal Determinism and its Implicarions ....................... 1041 ill. IQ REsEARCH: HISTORICAL BACKGROUND AND CURRENT MANIFESTATIONS ........................................................... 1044 A. Historical Background ................................................ 1045 B. Heritability ......................................:....................... 1048 C. Bias ....................................................................... 1049 D. The Uses ofJQ.......................................................... 1052 IV. THE D ISCOVERY SHIFT FROM THE Pl.AINTIFF TO TilE MOTHER AND FAMILY ................................................................. 1055 A. The Plaintiff-Centered Discovery Framework ..................... lOSS B. Departures from the Plaintiff-Centered Discovery Framework 1058 • Associate Professor of Law, University of Maine School of Law; B.A., Yale College; J.D., Harvard Law School. I am grateful to many people for assistance in writing this Article. 'Thanks to The Law & Society Association for allowing me to present an early draft at the 1995 conference in Toronto. I received insightful comments. on drafts from Martha Cbamallas, Deborah Denno, Elizabeth Jester, Karen Kruskal, Dr. Francesca LaVecchio, Lois Lupica, Martha McCluskey, Ruth Miner, Dr. Herbert Needleman, Sive Neilan, Kurt Pressman, and Dean Donald N. Zillman. Tara Healy was helpful and gener­ ous with her time and expertise. For outstanding research assistance, I thank Rebekah Smith. For logistical assistance, I appreciate the help of Ruth Miner and Donna Jones. Mary L. Bonauto reviewed many drafts and provided support in many ways. 'Thanks also to Article Editor Dawn Horrocks and the Editors of the Boston University Law Review. I was involved in litigating lead exposure cases for children alleged to be injured by lead exposure for four years. General thanks also to my former law panners Kun M. Press­ man and Karen L. Kruslcal. 1025 1026 BOSTON UNIVERSrrY LAW REVIEW [Vol. 77:1025 1. Broadening Scope of Litigation ................................. 1060 2. Intrusion............................................................. 1061 3. The Scientific Basis for Departures from Plaintiff- Centered Discovery is not Clearly Establisped ............... 1067 4. Rule 35 and Judges' Power to Compel Non-Parties in Civil Cases to Submit to Examination and Testing .......... 1070 a. Past Challenges to Rule 35.................................. 1011 b. Testing ofPersons other than the Lead-Exposed Child Despite Rule 35 ............................................... 1073 i. The Inherent Powers Argument ....................... 1074 ii. The Due Process Argument ............................ 1077 c. A Thought Experiment ....................................... 1079 v. FUTURE DIRECTIONS ....................................................... 1079 A. Introduction and the Happiness Set Point ......................... 1079 B. The Cu"ent Discovery Framework's Protection of lndividu­ als.........................................................................108l C. A Preliminary Proposa/ ............................................... 1086 CONCLUSION ......................................................................... 1088 INTRODUCTION In a disturbing development in tort litigation, defendants use detenninistic, genetics-based ideas about individuals and their families to undercut and de­ flect attention from personal injury claims. This development has arisen in lead exposure litigation, which generally involves claims for cognitive inju­ ries I brought on behalf of children who have ingested lead paint. 2 The most extreme manifestation of this development to date has been the efforts in several states to compel non-party relatives of lead-exposed children to sub­ mit to IQ and· psychological testing. 3 1 Numerous studies show that lead exposure causes cognitive injuries in children, in­ cluding brain injury, lowered IQ, and death. See infra notes 27-34 and accompanying text (discussing the hannful effects of lead exposure in children). 2 Ingestion ofold, chipping paint and paint dust is the major source of lead for children. See CENTERS FOR DISEASE CONTROL & PREVENTION, U.S. DEP'T OF HEALTH & HUMAN SERVS., PREVENTING LEAD POISONING IN YOUNG CHILDREN 18-19 (1991) [hereinafter CENTERS FOR DISEASE CONTROL) (stating that lead-based paint remains the major source of lead exposure for young children, and explaining that children ingest lead paint when they ingest dust and soil contaminated with lead from paint that flaked or chalked as it aged); Jane E. Schukoske, The Evolving Paradigm of lAws on Lead-Based Pain/: From Code Viololion to Environmental HazJJrd, 45 S.C. L. REV. 511, 515-16 (1994) (noting that resi· dential lead, including lead-based paint, threatens young children). This litigation is gen­ erally brought on behalf of lead-exposed children against landlords of properties where lead paint has been found. See SEAN F. MOONEY, INSURANCE INFORMATION INSTITUTE, LEAD LIABILITY (1995), reprinted in 4 MEALEY'S LITIG. REP., LEAD 15, at C2 (May 3, 1995) (noting that the typical lawsuit is brought against the landlord of the residence of the lead-exposed child). 3 See infra notes 156-60 and accompanying text (discussing cases from the District of 1997] GENE17CS, IQ, DETERMINISM. AND TORTS 1027 The Secretary of the United States Department of Health and Human Services called lead poisoning "the No. 1 environmental threat to the health of children in the United States. "4 Lead poisoning affects African-American children in numbers disproportionate to their numbers in the population. s Although federal law bas banned lead paint for residential use since 1978,6 it continues to be the subject of a significant amount of legislation.7 In addi­ tion, a substantial amount of litigation is brought against landlords for chil­ dren's lead-related injuries,8 and a 1995 insurance industry report predicted massive claims in the future. 9 To date, however, relatively little legal schol­ arship has been published in this area. 10 Columbia, Louisiana, Massachusetts, New Jersey, and New York, in which defendants have sought the IQ testing of the plaintiffs' non-pany relatives). Defendants have also sought to compel production of medical, educational, and employment records of the plaintiffs' relatives. See infra note 169 and accompanying text (discussing cases involving production of the personal records of plaintiffs' relatives). 4 Louis Sullivan, Speech at First Annual Conference on Childhood Lead Poisoning (Oct. 7, 1991), in WASH . TIMES, Oct. 8, 1991, at A4. ~ See infra note 20 and accompanying text (discussing surveys of the incidence of blood lead levels in children and finding that the incidence is significantly higher among African­ American children than among white children) . 6 See CENTERS FOR DISEASE CONTROL, supra note 2, at 18 (noting that interior lead­ ~ paint was available until the 1970s). 7 See, e.g., 42 U.S.C.A. §§ 4851-4856 (West 1995) (Residential Lead-Based Paint Hazard Reduction Act of 1992). About half of the states have statutes dealing with lead paint and lead ingestion. See Jennifer Bush, The Federal uad Poisoning Prevention Pro­ gram: Inadequate Guidance for an Erpeditious Solution, 23 B.C. ENVTL. AFF. L. REv. 645, 649-50 (1996) (noting that as of 1994, 25 states had legislation regulating lead-based paint for residential housing). • Lead poisoning cases for injuries to children have gone to trial in at least ten states. See generally Sonja Larsen, Annotation, Landlord's Liability for Injury or Death of Ten­ ant's Child from Lead Paint Poisoning, 19 A.L.R. 5TH 405, 412-38 (1995) (discussing