Secrecy Accords in Product Liability Lawsuits Debated : Legal system: Critics say sealed records deny public vital information. Advocates contend the release of data threatens privacy, property rights.
In the end, the hang-up was not the $6-million settlement agreed to by the Ford Motor Co.
The problem was that Ford wanted the damage amount in the $23-million lawsuit over a disastrous accident kept secret, and the Miller family of Carlsbad, Calif., said it would go along only if Ford would alert its customers to what the family contends is a need to equip rear seats with shoulder harnesses instead of only lap seat belts.
Ford refused, arguing that damage suit settlements are not the proper forum for setting seat belt policy, and the amount became public--a rare breech in the increasing secrecy surrounding product and environmental safety cases and medical malpractice matters.
The case revolved around the 1988 head-on collision in a Ford Escort that killed one of James Miller’s 11-year-old twin sons and left the other a paraplegic.
By keeping such settlements secret, lawyers for plaintiffs argue, the public is denied vital truths on health, safety and the environment that could protect the people from injuries and even death.
Ford and other defenders of the push for silence counter that making public seven-figure settlements can stimulate others to bring suits and that civil damage actions are “private matters” brought by private litigants. Disseminating the information threatens privacy and property rights, according to secrecy advocates.
The issues were drawn into sharp focus Wednesday at a Washington conference organized by the Assn. of Trial Lawyers of America and the Society for Professional Journalists.
“I think many judges have shirked their responsibilities” in not seeing that suits over product liability have import beyond the two parties and can affect the public, Justice Lloyd Doggett of the Texas Supreme Court told the conference.
Doggett is the author of recent sweeping changes in Texas court rules that establish a presumption of openness for civil suits and sharply restrict the practice of sealing court records. The rules, adopted by a 5-4 vote of his court, take effect Sept. 1.
Doggett said the struggle over revealing matters that are increasingly being withheld “has to be defined in terms of openness vs. secrecy and public involvement vs. public exclusion.”
Individuals like James Miller who insisted on making public the Ford settlement are “rare,” said Eugene I. Pavalon, a Chicago plaintiffs’ attorney.
Plaintiffs and their lawyers are tempted to go along with secrecy requests to avoid prolonged litigation over the issue, although Pavalon noted that he insists on including a provision in the agreement that the lid can be lifted at some later date.
A Ford spokesman pointed to the “irony” of Miller himself at one stage of his suit requesting that the $6-million settlement be kept confidential until the city of Carlsbad decided on what amount of damages it would pay for the accident.
Often the money that corporations are willing to pay in settlements persuades victims to accept secrecy conditions.
Dianne Jay Weaver, a Ft. Lauderdale, Fla., lawyer, said she is “still sickened” over agreeing to a protective order insisted on by a large pharmaceutical firm that prevented her from informing the federal Food and Drug Administration of hazardous side effects of an anti-inflammatory drug made by the firm.
She said she settled because one of three clients in the suit badly needed the money the firm offered.
Such secrecy agreements “can’t really be treated as voluntary,” said U.S. District Judge Jim R. Carrigan of Denver.
Judges often go along when both the plaintiff and defendant agree to secrecy, because they’re “understaffed and underpaid . . . and it’s an easier route to take,” Pavalon said.
Lawyers for the defense in the damage suits, however, contend that plaintiffs are trying to distort a private litigation system into a means for public discovery.
James W. Morris III of Richmond, Va., for example, cited “the rights of civil litigants to privacy. It’s all well and good to publish that $6 million was paid to settle a case but if you don’t want your cousin in Albuquerque to know. . . . “
“We can’t get too carried away with the emotional vignettes that the advocates are presenting,” said Alfred W. Cortese Jr., a Washington lawyer and supporter of protecting confidential client information.
Cortese argued that public access to materials placed in the public record of a court trial does not extend to materials that lawyers gather during so-called “discovery,” the wide-ranging questions that both sides pursue under court authority in preparing for trial.
“Granting a right of public access to discovery materials would threaten both constitutionally protected privacy interests and the efficient functioning of the judicial system,” Cortese said. Advocates of lifting secrecy contend it prevents plaintiffs’ lawyers from sharing information and forces them to “reinvent the wheel” in damage suits.
“Can plaintiffs share information? That’s what this comes down to,” Judge Carrigan said.
Cortese dismissed this as an “efficiency” argument, saying it was outweighed by the “right to be secure in one’s personal property.”
Mary Cheh, a George Washington University law professor, said the argument over secrecy reflects that the legal system is “in the throes of completely changing the perception of a civil lawsuit.”
