CPSC Reform Act

Floor Speech

CPSC REFORM ACT -- (Senate - March 05, 2008)

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Mr. KOHL. Mr. President, the bipartisan amendment I am talking about addresses the troubling use of court secrecy. Far too often, our courts permit vital information that is discovered in litigation, which bears directly on public health and safety, to be covered up. Our amendment is a narrowly targeted measure that will make sure court-endorsed secrecy does not prevent the public from learning about health and safety dangers.

This amendment is a good amendment because it is a complement to this bill, and we know private lawsuits are often a critical source of information about dangerous products. Court secrecy often hinders regulatory agencies in their efforts to protect the public.

Under the amendment, judges would have to consider public health and safety before granting a protective order for sealing court records and settlement agreements. Judges have the discretion to grant or deny secrecy based on a balancing test that weighs the public's interest and public health and safety hazards and legitimate interests in secrecy such as trade secrets. The amendment does not place an undue burden on our courts. It simply states that in a limited number of cases, judges would have to take a closer look at requests for secrecy.

We know there are appropriate uses for these orders and we are confident that our judges will protect information that truly deserves it.

We are all familiar with well-known cases where protective orders and secret settlements prevented the public from learning about the dangers of silicone breast implants, IUDs, prescription drugs, exploding gas tanks, dangerous playground equipment, collapsing baby cribs, and defective heart valves and tires. Had information about these harmful products not been sealed, injuries could have been prevented and lives could have been saved.

At a December hearing, we learned that while some judges may be more aware of the issue, this problem continues, and we have examples to prove it. Johnny Bradley told us the chilling details of a car accident caused by tire tread separation that killed his wife and left him and his son severely injured. During his lawsuit against Cooper Tire, he learned that information about similar accidents had been kept secret for years through court orders and secret settlements. Today, details about this tire defect remain protected by court orders while Cooper Tire continues to aggressively fight attempts to make them public.

We also heard from Judge Joe Anderson, a Federal district court judge in South Carolina. He supports the bill as a balanced approach to address ``a discernable and troubling trend'' for litigants to ask for secrecy in cases where public health and safety might be adversely affected. He told us about a local rule in South Carolina, one that goes even further than our amendment, and how it has been a great success. The number of trials has not increased and cases continue to settle even though secrecy is no longer an option in that court.

I have heard concerns about national security and personally identifiable information so I have included language to ensure that this information is protected. I have also heard concerns about protecting trade secrets. I would like to make it very clear that our amendment protects trade secrets. We are confident that judges, as they are already required to do, will give ample consideration to them as part of the balancing test. However, we will not permit trade secrets that pose a threat to public health and safety--such as defective tire design--to justify secrecy.

Some people argue that there is no evidence that protective orders or sealed settlements present a significant problem. Just ask the thousands of people who took the prescription drug Zyprexa without knowing the harmful side effects that were concealed by a secret settlement. Or ask the parents whose children were injured or killed by dangerous playground equipment, collapsing baby cribs, ATVs, and over-the-counter medicines.

If information about these products had not been sealed, we may have known about the dangers and lives could have been saved.

So I hope my colleagues will support the efforts we are trying to bring to bear to pass this long overdue legislation.

Thank you so much, Mr. President.

I suggest the absence of a quorum.

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