The Future of Biotechnology Litigation and Adjudication

Abstract

This article pursues a difficult quarry: forecasting biotechnology issues expected to come before courts in the future. Predicting the future is a daunting enough challenge. Predicting the future of litigation and adjudication perhaps borders on foolish. My experience, both as a judicial clerk and in private practice, is that the only predictable thing about litigation is that it is unpredictable. Nevertheless, I believe I can provide some useful information concerning biotechnology issues that are likely to confront judges throughout North America and the world during the next several years, and some insight into understanding these issues and how to handle them. First, I can explain what biotechnology is. Much litigation concerning scientific and technological issues is unnecessarily complicated by a failure to understand the science. Once the science is understood, even at a lay level, some legal issues resolve themselves surprisingly easily. Biotechnology is a perfect example. Though biotechnology presents several socially and politically highly charged issues, there actually is considerable scientific consensus on this technology's scientific benefits and risks. Setting aside the rhetoric simplifies many legal issues. Second, I can provide a survey of past and present biotechnology litigation. Several biotechnology lawsuits already have been adjudicated or are being litigated, and existing litigation likely provides some of the most reliable insight into what to expect in the future. Lastly, in my discussion of past and present biotechnology litigation, I will ignore better judgment, and mix in predictions about what trends and additional issues are in store for courts in biotechnology litigation and adjudication in the future. The article concludes with an analysis of, and recommendations for, the use of scientific evidence and expert testimony concerning biotechnology in the courtroom.