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Public Statements

Sunshine Litigation Act of 2011

Floor Speech

Location: Washington, DC

Mr. President, I rise today with Senator Graham to introduce the Sunshine in Litigation Act of 2011, a bill that will curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information hidden from the public. As we recognize Sunshine Week, this bipartisan, commonsense measure is an important step to improving transparency in our courthouses by requiring judges to consider public health and safety before permitting secrecy agreements.

This problem of court secrecy has been occurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend a virtually unlimited amount of money defending the lawsuit, prolonging the time it takes to reach resolution. Facing a formidable opponent and mounting medical bills, a plaintiff often has no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation.

Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. But the American public incurs the loss because they remain unaware of critical public health and safety information that could potentially save lives.

This concern about excessive secrecy is warranted by the long history of tobacco companies, automobile manufacturers, pharmaceutical companies, medical device manufacturers, and others settling with victims and using the legal system to hide information which, if it became public, could protect the American people from future health and safety harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information, as well as personal identifying and classified information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin.

One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992 to 2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It wasn't 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. More than 250 people had died and more than 800 were injured as a result of the defective tires.

If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued.

More recently, the world's largest automaker, Toyota, has faced a barrage of litigation relating to its recall of over 8 million cars due to sudden unintended acceleration problems, causing 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, noting that ``the business of this litigation should be in the public domain.'' Had a judge been required to weigh the public's interest in health and safety, as this legislation would require, perhaps we would have known more about the risks sooner and some of those lives could have been saved. Until we put the public interest on par with the interests of private litigants, public health and safety will remain at risk.

This very issue is currently before a Federal judge in Orlando, FL. There, the court is 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 AstraZeneca'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 proved unsuccessful. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order.

We are mindful of the risks to public health and safety that court secrecy orders can pose in the wake of last year's horrific BP oil spill in the Gulf of Mexico. As the parties continue to fight over crucial documents, injured parties continue to accept secret settlements. We can only hope that information vital to public health and safety, which could protect against the next disaster, is not being shielded from us as well.

The examples go on and on. At a 2007 hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers continue to remain in the dark about this life-threatening defect.

In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those 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.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes.

There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond Bridgestone/Firestone, General Motors, Toyota, Seroquel, BP, Cooper Tire, and Zyprexa, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about.

While some judges have already begun to move in the right direction by giving serious weight to public health and safety, we still have a long way to go. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that in any proposed secrecy order in a case pleading facts relevant to public health and safety, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety.

Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies.

This legislation does not prohibit secrecy agreements across the board, and it does not place an undue burden on judges or on our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. Since last Congress, we have made changes to make absolutely clear that this would apply only to those cases with facts relevant to public health and safety, and to ensure that there is no undue burden on judges or our courts. The time to focus some sunshine on public hazards to prevent future harm is now.

I urge my colleagues to support this important legislation.

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