Judiciary Committee Passes Bill To Protect Public Safety In Secret Court Settlements

WASHINGTON (Thursday, March 6, 2008) – The Senate Judiciary Committee today approved legislation authored by Committee Member Herb Kohl (D-Wis.) and sponsored by Committee Chairman Patrick Leahy (D-Vt.) and Member Lindsay Graham (R-S.C.) to prohibit courts from shielding important health and safety information from the public as part of legal proceedings against corporations.  The bipartisan “Sunshine in Litigation Act” was prompted by dozens of cases in which hazards and threats to public health were not disclosed during court lawsuits or out of court settlements and subsequently resulted in additional fatalities, serious injuries and illnesses.  


Kohl chairs the Subcommittee on Antitrust, Competition Policy and Consumer Rights, and chaired a hearing on the Sunshine in Litigation Act in December.


“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,” Kohl said.  “This legislation simply says that while litigants may want total confidentiality when resolving their disputes in court, information about public health and safety dangers does not deserve court-endorsed protection.  This bill creates the appropriate balance between secrecy and openness in cases involving public health and safety.”


“Allowing certain court documents to be kept secret in cases where public health and safety is at stake can and does put lives in jeopardy,” said Leahy.  “I was delighted to join Sen. Kohl in cosponsoring his legislation to make it more difficult for courts to seal records in cases that reveal threats to public health and safety.  I hope the Senate will consider this legislation in the best interest of the American consumer.”


These court-approved secrecy agreements even prevent government officials or consumer groups from learning about and protecting the public from defective and dangerous products.  Under the bill, judges must consider public health and safety before granting a protective order sealing court records and approving secret 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 most famous case of court secrecy abuse involved Bridgestone/Firestone tires.  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 have included over-the-counter children’s medicine, defective baby cribs, Zyprexa, and Cooper Tires.  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, and dangerous birth control devices.   

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