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This article discusses a disturbing development in tort litigation in which defendants use deterministic, genetics-based ideas about individuals and their families to undercut and deflect attention from personal injury claims. Lead exposure litigation involving cognitive injuries claimed on behalf of children who have ingested lead paint is the context of this development. The most extreme manifestation to date has been the efforts in several states to compel relatives of lead-exposed children (usually mothers) to have IQ and psychological testing, even though they are not parties to the litigation. Rule 35 of the Federal Rules of Civil Procedure and its state counterparts clearly only allows testing of parties. Yet, judges in several states have actually ordered IQ and psychological testing of mothers of lead-exposed children, although the mothers were not parties to the litigation and although they objected to the tests. The article argues that these efforts to seek sensitive information about non-parties through the discovery process run counter to the long-established history of plaintiff-centered discovery in civil litigation. These efforts also raise race and gender issues, in view of the targeting of African-American mothers in particular for these invasive efforts.

Part I briefly discusses the effects of lead exposure. Part II focuses on several ideas involved in the shift away from the plaintiff-centered discovery framework, including “genetic essentialism” and “maternal determinism.” Part III shows how the history of intelligence research is steeped in race, gender, religious, and class prejudice and reviews the controversy about the 1994 bestseller THE BELL CURVE. Part IV shows how the invasive lead exposure discovery reflects the confluence of genetic essentialism, maternal determinism and IQ, resulting in a huge, yet thus far unnoticed shift away from the plaintiff-centered discovery framework in tort cases. Finally, the article suggests that the trend to broaden discovery beyond plaintiffs is likely to continue and suggests a preliminary framework to address the various interests involved.

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Boston University Law Review



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