The In-Terrorem Value of Science: Bisphenol-A Litigation and an Empirical Assessment of Science as a Collective Litigation Tool

Abstract

This paper examines the role that science plays as a tool in collective litigation to substantiate claims. Scientific data and expert testimony are often included to buttress a claim and the admissibility of such evidence is often a conse-quence of the extant evidentiary rules and their application. The article will focus on the multidistrict litigation con-cerning Bisphenol-A (“BPA”) as a case study of the phenomena of scientific tailoring of evidence and its admissibility. BPA is a compound included in the synthesis of plastics and is found in food containers, plastic bottles, and ep-oxy-based coatings used to avert the rusting process of food containers. There is a negligible amount of BPA in several food and beverage products. Several countries along with the US Food and Drug Administration (FDA) and Environ-mental Protection Agency (EPA) have marshaled scientific studies that demonstrate the lack of any definable negative health effect attributable to an exposure to trace amounts of BPA. Notwithstanding the conclusions of these scientific inquiries, opponents have asserted that BPA exposure results in an alteration of embryonic hormone levels, thereby impacting their development and later reproductive function. This article will address these issues in addition to the salient question of what role science plays as a tool for collective litigation.