Dr. Bruce Gillis has been retained as an expert witness by both plaintiffs and defendants in many toxic exposure lawsuits. But he has rarely had to go to court.

The vast majority of the cases settled before entering the trial phase. Gillis, a physician and toxicologist, likes to think this is a direct result of his pretrial analysis.

"During depositions I use sophisticated diagnosis methods," he said, "and try to make sure they are objective and easily repeatable."

Now, Gillis hopes that a new test developed at the University of Illinois College of Medicine in Chicago and marketed through his two-year-old Los Angeles-based company, Cytokine Institute, will provide an even better assessment as to whether a plaintiff was exposed to a specific toxin.

"We are trying to do the same thing with these tests that I did with my testimony," he said. "But these tests allow us to ascertain through DNA technology an accurate determination of when an exposure to a noxious substance is injurious to human health."

In a toxic exposure suit, Gillis and expert witnesses like him working for either side examine plaintiffs' allegations of some injury or illness, such as cancer, as a result of exposure to benzene, hexavalent chromium or numerous other toxins.

For cases that don't settle, a judge or jury is left to sort through the experts' testimony to determine whether the defendants are liable.

Gillis asserts that his new test, conducted with a blood sample, provides a more precise scientific picture of exposure. Even if that exposure doesn't result in illness, it still can be considered an injury.

Testing for 'signatures'

Gillis and scientists at the University of Illinois have created a procedure in which exposure to toxins does not kill human cells. The death of the cells had been the stumbling block in the past. Under the new procedure, the scientists take a cell, expose it to a toxin without killing it, and then examine the results for a specific signature of chemical exposure.

The company's test works by tracking the release of cytokines, or proteins, that are shed when cells come in contact with foreign substances.

So far, the Cytokine Institute has done tests on two toxins, benzene and hexavalent chromium. The results have been used to find a "signature" relating to exposure to those substances.

While other applications of the test are possible, it is in the context of litigation where the impact is expected to be the greatest and most immediate.

For example, if a cancer-stricken worker has filed a lawsuit against an employer claiming that the illness resulted from on-the-job exposure to benzene, the Cytokine Institute is able determine from a blood sample whether the worker's cells contain the signature associated with benzene exposure.

But Dr. Harry Milman, a Maryland-based expert who has testified in toxic exposure cases, said the "signature" doesn't prove a chemical cause of a specific illness such as cancer. The weakness of the test, according to Milman, is that exposure doesn't necessarily equate to cause.

"Let's assume that test is very specific for benzene, for example," Milman said. "And so if a person shows this signature that can be caused by benzene the question is still, 'What is the significance of that?' I am sure the signature is not related to the carcinogen. It is a fingerprint of exposure, not causation."

The Cytokine Institute claims its tests are 99.9 percent accurate. The test has been peer-reviewed in two academic journals.

Gary Rodrigues, chief operating officer, said the test is currently being used in 30 toxic exposure cases in California.

Neal Jardine, a Sherman Oaks-based lawyer, was representing insurer Liberty Mutual Group Inc. in a workers comp claim that he has said was dropped as a result of the test. The plaintiff, a tire retreader, claimed his cancer was a result of exposure to benzene over 20 years at his place of employment.

But a test by the Cytokine Institute revealed that the cancer was not caused by exposure to benzene.

The company often cites this example as a success story. But Rodrigues also points out that the test could have been beneficial to the plaintiff if the results showed benzene was the cause of the cancer.

Since the company has only done the background testing for benzene and hexavalent chromium, it can only use the results in cases involving exposure to those chemicals, for which it charges $12,500.

Rodrigues said it costs $175,000 to develop a sample signature for a single toxic substance. "There is a library of thousands of chemicals and in an ideal world we would have a fingerprint for all of them."

Since there are a large number of chemicals it's common for a major company to have identified that it uses more than 3,500 the Cytokine Institute has sought to get development funding from potential clients.

For companies and individuals that help fund the background testing on a toxin, the institute will charge only $6,500 per test for the first 40.

The company currently employs 27 people, some of which are researchers affiliated with the University of Illinois.

Boston bound

Gillis said the Cytokine Institute is close to formalizing a similar relationship that will allow it access to scientists and labs at Harvard University. Cytokine recently opened a Boston office.

Gillis said the company was not yet profitable. He would not disclose the institute's financial relationship with the University of Illinois, although he said Cytokine has the exclusive rights to market the tests.

Gillis has said that his initial goal in starting the research was not to build a business but to create better diagnostic tools. "The litigation context was not part of our thinking back then."

The Cytokine Institute has been getting the word out to attorneys.

Later this year, Gillis will be speaking at an American Bar Association event about emerging trends in tort litigation.

But there are applications beyond the courtroom.

The company has also introduced AccuHealth Monitoring, which is a baseline test that would allow, for example, employers to establish a clear picture of an employee's pre-employment health condition.

The Cytokine Institute is also developing a certification process that would provide a comprehensive analysis of a company's health and safety protocols, including environmental issues and carbon footprint.

"In addition to solving current claims, we are also focusing on helping companies prevent future claims," Rodrigues said.

Cytokine Institute LLC
Founded: 2006
Core Business: Laboratory testing for toxic exposure
Employees in 2007: 20
Employees in 2008: 25
Goal: Creating testing methods for exposure to toxic substances
Driving Force: Companies' need for accurate analysis of exposures to hazardous chemicals for defending against lawsuits and developing safety procedures

For reprint and licensing requests for this article, CLICK HERE.