U.S. Senator Herb Kohl's bipartisan legislation to prohibit secret court settlements that jeopardize public safety was approved by the Senate Judiciary Committee this morning by a vote of 12 to 6. Kohl's "Sunshine in Litigation Act" is a response to dozens of cases in which hazards and threats to public health were not disclosed during court settlements and subsequently resulted in additional fatalities, serious injuries or illnesses. These court-sanctioned secrecy agreements prevent government officials or consumer groups from learning about defective and dangerous products that can stay on the market unchallenged. Kohl's legislation requires that judges consider public health and safety before granting a protective order or sealing court records and settlement agreements. They have the discretion to grant or deny secrecy based on a balancing test that weighs the public's interest in a potential public health and safety hazard and legitimate interests in secrecy. The Sunshine in Litigation Act is cosponsored by Senators Lindsey Graham (R-SC) and Patrick Leahy (D-VT).
"We are all familiar with cases where protective orders and secret settlements prevented the public from learning about the dangers of silicone breast implants, IUDs, a prescription pain killer, side-saddle gas tanks, defective heart valves, tires, and most recently prescription drugs. Had information about these harmful products not been sealed by court orders, injuries could have been prevented and lives could have been saved," Kohl told his colleagues on the committee.
Dangerous secret court settlements can be found in an array of industries, from autos to pharmaceuticals. From 1992 to 2000, tread separations of various Bridgestone and Firestone tires were causing accidents across the country, many resulting in serious injuries and even fatalities. The company quietly settled dozens of lawsuits, most of which included secrecy agreements. It was not until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late for the more than 250 people who had died and more than 800 injured in accidents related to the defective tires.
Other examples of recent court-endorsed secrecy agreements include:
In 2010, the world's largest automaker, Toyota, faced a barrage of litigation relating to its recall of over 8 million cars due to sudden unintended acceleration problems, leading to more than eighty deaths. After years of lawsuits, Congressional oversight hearings, and Toyota's efforts to keep settlements and product information secret, a California federal judge finally made public thousands of previously sealed documents, nothing that "the business of this litigation should be in the public domain."
A federal judge in Orlando, Florida is currently faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. In 2009, the court unsealed some of the documents at question, but denied requests to release AstroZeneca's submissions to foreign regulators and sales representatives' notes on doctors' meetings. Despite a recent $68.5 million settlement, continued efforts to unseal crucial documents proceed unsuccessful. This is exactly the sort of case where judges should consider public health and safety when deciding whether to allow a secrecy order.
In 2005, the drug company Eli Lilly settled 8,000 cases related to Zyprexa, a drug used to treat schizophrenia and bipolar disorder. These cases alleged that Eli Lilly did not disclose known harmful side-effects of Zyprexa, such as inordinate weight gain and dangerously high blood sugar levels that sometimes resulted in diabetes. Eli Lilly was also accused of promoting off label use of the drug by urging doctors to prescribe it to elderly patients with dementia. All of the settlements required plaintiffs to agree "not to communicate, publish or cause to be published any statement concerning the specific events, facts or circumstances giving rise to [their] claims." The public did not learn about these settlements or Zyprexa's dangerous side effects until two years later, in 2006, when The New York Times leaked documents from the case that were subject to a protective order.
In 2002, Johnny Bradley's wife was killed, and he and his son were injured, in a Ford Explorer roll over accident. The accident was allegedly caused by tread separation in the SUV's Cooper Tires. While litigating the case, Mr. Bradley's attorney uncovered Cooper Tire documents which he claim show that Cooper tires were prone to tread separation because of design defects. These documents had been kept secret through protective orders in numerous cases prior to the Bradley's car accident. Mr. Bradley settled his case, but one of the conditions required that almost all litigation documents be kept confidential under a broad protective order. Mr. Bradley and his lawyer, familiar with the documents and unable to speak about the details due to protective orders, believe that if the documents were made public Cooper Tire would be forced to fix the alleged tread separation problem.
Earlier examples of court secrecy agreements that resulted in injuries or fatalities include:
· Defective heart valves
· Dangerous playground equipment
· Side-saddle gas tanks prone to causing deadly car fires
· Complications from silicone breast implants
· "Park to reverse" problems in pick-up trucks
· Dangerous birth control devices