Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of the toxicity of chemicals and other products. The manner and extent to which scientific gerrymandering is explored and litigated within those suits is often driven by another typical feature of toxic tort litigation—the procedural device of bifurcation. Judges frequently bifurcate toxic tort suits into causation and negligence phases, with the causation phase heard first. Bifurcation in toxic tort suits involving issues of scientific gerrymandering requires judges to decide whether evidence of scientific gerrymandering is relevant to and may be presented during the causation phase of a toxic tort trial. And, typically, as Judge Vince Chhabria recently ruled in In re Roundup Products Liability Litigation (MDL No. 2741), judges hold that evidence of scientific gerrymandering cannot be presented or must be evidence of scientific gerrymandering cannot be presented or must be significantly limited during the causation phase because scientific gerrymandering is not relevant to causation.
Rulings that prevent admitting evidence of scientific gerrymandering during the causation phase of bifurcated trials can, however, be critiqued on both doctrinal and normative grounds. First, from a doctrinal perspective, scientific gerrymandering—how a corporate defendant shaped scientific knowledge about a product’s risk—is often directly relevant to causation— whether the product causes the relevant harm. This is so because effective corporate scientific gerrymandering can define the current state of science about product risk, particularly when questions about the extent of risk caused by a product lie at the frontiers of scientific knowledge. Additionally, numerous tort doctrines support shifting or reducing causal burdens in the face of defendant misconduct, like scientific gerrymandering—which might be likened to obscuring evidence.
Second, from a normative perspective, permitting consideration of scientific gerrymandering during causation can be justified even where the introduction of such evidence creates the risk that juries will erroneously find that a product causes harm. Condemnation of scientific gerrymandering is consistent with corrective justice because corporate scientific gerrymandering can occasion distinct and independent harm by creating a large group of exposed individuals who endure an extended period of fearful uncertainty until such time as the nature of that risk can be objectively resolved, even if that product is ultimately shown not to cause the suspected harm. Finally, from a policy perspective, allowing the introduction of evidence of corporate scientific gerrymandering during the causation phase of bifurcated toxic tort trials should discourage corporate actors from engaging in scientific gerrymandering, thereby improving the efficacy of regulation and bolstering public confidence.
Katrina Fischer Kuh, Megan Edwards & Fred McDonald, Scientific Gerrymandering & Bifurcation, 29 N.Y.U. Env’t L. J. 171 (2021), https://digitalcommons.pace.edu/lawfaculty/1176/.