COLUMN ONE : Dilemmas of Settling in Secret : Companies offer hefty sums in exchange for keeping the details of public-hazard lawsuits quiet. Plaintiffs must choose their own interest or the public good.

There is a moment that recurs with disheartening regularity for Barbara Arbuckle.

It comes during her conversations with women who, like her, have survived faulty Pap smear readings and deadly cervical cancer.

Just as Arbuckle is nodding sympathetically in response to a companion’s account of medical travail, just as she’s thinking that this lady’s story is a film of my own life, the other woman invariably leans forward, eyes narrowing, with questions: So where were your Pap smears done? Do you know anything about my lab? How many tests did you have? How did they botch your case?

Arbuckle has talked in general terms on national television programs about problems with Pap smears. She has testified before a U.S. Senate subcommittee. She has campaigned tirelessly for what she calls “the public’s right to know.” But she is unable to answer those other women’s specific questions.

I can’t tell you, she responds, looking away. I just can’t.

Such is the price Arbuckle paid in agreeing to a sizable out-of-court settlement of her lawsuit against two laboratories that she said misread her Pap smear results. In exchange for avoiding an expensive, drawn-out trial, Arbuckle agreed not to identify the labs publicly or discuss details of her case or disclose evidence that she and her lawyer had gathered about the labs’ problems with other patients’ Pap smears. In fact, she agreed to let most of the court records of her suit be sealed from public view.

“Today, I regret that deal,” Arbuckle, 27, told a state legislative hearing in Washington state last January. “There are things that you all should know. I can’t say some things. And those things could save lots of lives . . . . Lives would be saved if people knew.”

With those words of public remorse, Arbuckle joined a mounting national backlash against sealed settlements and protective orders, which over the last 15 years have become a commonplace element of the civil justice system.

In recent months, San Diego County and five states--Virginia, Texas, Florida, North Carolina and New York--have acted by court edict or legislative statute to curtail such arrangements in cases involving public hazards. Bills with similar aims now are being considered in Congress and by several other states, including New Jersey and Washington.

A few individual judges have started preventing secret settlements or reversing their own confidentiality orders. A national trial lawyers’ association has begun an offensive called Project Access, which files legal challenges to confidentiality orders and mails out thick information packages full of key cases and sample briefs.

Citizens drive cars, take drugs, operate equipment and live near toxic polluters that have been the subject of lawsuits covered by confidentiality orders. Does the public have an absolute right to know about these cases? Or should plaintiffs and companies be allowed to settle their private disputes as they see fit? Where to draw the line between private rights and public interest? These are the questions being raised by lawyers and lobbyists in a growing national debate.

Barbara Arbuckle takes part in this broad exchange but also sees the matter in more personal and morally vexing terms. The legal system, after all, forced her to choose between her own interests and the public interest.

“My attorney’s advice was to let go, move on, because she knew I was wore out,” Arbuckle said. “I agreed. I’m not mad at my lawyer. She handled this to the best of her ability. Here was a 23-year-old waitress, just scratching by with no one to help her. But the bottom line is, this hurt the public. It hurt lots of other people. So I have a question: Why should my attorney have to advise me about this in the first place?”

A look at Arbuckle’s case and the debate in Washington offers more than one answer to this question.

Arbuckle was 21 when her troubles began--first discomfort and pain, then problems with menstruation. For two years, she regularly visited her doctor, who took a series of Pap smears but could find nothing wrong. Some girls just go through these things, the doctor would tell her. Your tests are all fine.

Then, watching television late one night in October of 1985, Arbuckle happened on a show in which medical people were sitting around talking about cervical cancer. There was a listing of symptoms. This sounds just like me, Arbuckle thought.

Three weeks later, she underwent a radical hysterectomy to remove advanced cervical cancer.

“I had all the goals in life,” she recalled. “I was going to have a little boy, a little girl. Then the doctor told me nope, you don’t get it. This shouldn’t have happened--it’s not just bad fate. I’d been going to my doctor, telling him my symptoms for two years, taking the tests. So I called my attorney.”

Eventually, her lawyer came to believe the fault was with two Seattle labs. The labs, attorney Mary Ann Ottinger claimed in a lawsuit, misread Arbuckle’s Pap smears. Such misdiagnoses, it emerged, had been a growing problem across the country and were not uncommon at the two labs in question. But the scope of the problem had been obscured by secret court settlements.

“I felt mad as hell,” Arbuckle said. “If previous secret court settlements hadn’t concealed the problems in reading Pap smears, I might have learned of my cancer at an earlier stage. They could have frozen my cervix then. I could have had a child. I started meeting with doctors, victims, victims’ widowers. I learned that thousands of women die from cervical cancer, which is curable. I told myself, I don’t care what it takes, I’m going to do whatever is in my power to get this known. I wanted to organize protests, lobby, put on the pressure.”

Soon, Arbuckle was speaking out in public regularly, being careful not to dwell on the particulars of her own case, because there had been no judgment in court yet. Reporters called every week. Geraldo Rivera invited her on his talk show. So did Larry King.

“The response from all over since I started to talk was so much,” Arbuckle said. “It’s amazing--people do read, people watch TV, people learn. We were giving the public the knowledge. The only way I knew about Pap smears was that late night TV show. Without that show, I’d be dead. If I can learn about my health watching TV, why not others?”

But, while her public appearances multiplied, her legal battle dragged on without resolution. One trial date was postponed, then another, until the case was 2 1/2 years old. Defense lawyers came back again and again to question Arbuckle.

“They asked hundreds of questions,” she said. “When was the first time I saw a doctor? How often did I see him? What about my sex life? How often? For how long?”

Then, in early January of 1988, the defending companies learned Arbuckle was scheduled to testify within days before a subcommittee of Congress that was investigating Pap smear misdiagnoses. “No way did the defendants want their names and the details spread over USA Today,” said Ottinger, Arbuckle’s attorney. “They did not want it in Congress and the papers.”

So, just as Arbuckle was packing for Washington, a generous settlement offer arrived. It had a condition, however: Arbuckle could not talk about the details of her case, and the file would be sealed.

Arbuckle bristled. “After 2 1/2 years of legal fighting, I’m told I have to keep my mouth shut. And the whole record is to be sealed. My case doesn’t exist. To what purpose?”

On the other hand, those 2 1/2 years had been draining. Arbuckle’s whole life was rotating around this case. She thought about it every night when she lay down to sleep.

Arbuckle wavered.

What should I do? she asked her lawyer.

Arbuckle and Ottinger’s dilemma was not at all an uncommon one. The increasing use of confidentiality orders and sealed settlements is one response to the growing number of complex lawsuits being filed that charge businesses with creating public hazards. More than 90% of all civil cases filed nationally are settled by the contesting parties with little court involvement, and protective orders are now routine in those that involve product liability, auto design, toxic exposure, environmental hazard, medical malpractice and consumer fraud claims.

Honda Civics, Bic lighters, DPT vaccines, Zomax and Feldene painkillers, Zenith television sets, Pfizer heart valves, General Motors fuel tanks, Xerox toxic leak sites--all are examples of cases in which companies have chosen to settle claims confidentially rather than draw attention to an allegedly defective product or other public hazard. And the list keeps expanding.

The reach of protective orders has grown along with the volume. In recent years, companies have started insisting on secrecy at the start of a lawsuit as well as the end.

When a company is sued, it is required by the rules of civil litigation to hand over to the plaintiff a wide array of its private documents, in the legal process called discovery. Many companies now tell the plaintiffs: We will only hand over these documents if you agree not to share them with other lawyers or make them available to the public.

From the company’s point of view, this is entirely reasonable.

The public has a right to court records, defense attorneys argue, not to pretrial materials. It’s not fair to have a company’s private documents offered to the public and press before a case is tried or resolved, simply because a plaintiff’s attorney filed a complaint. Not all lawsuits are meritorious, after all, and the mere fact that a lawsuit is filed, or is settled before trial, does not mean its target is truly a public hazard. Often a plaintiff’s attorney is fishing for documents he can sell or otherwise market to other lawyers pursuing similar suits.

“Releasing documents publicly without a chance to vindicate, when there’s been no trial or verdict, damages reputations,” argued Thomas McLaughlin, a corporate defense attorney who testified before the Washington state Legislature on behalf of business associations. “It’s called an anti-secrecy law, but we look at it as an anti-privacy law.”

Such arguments are simply smoke screens for the companies’ desire to avoid litigation, the plaintiffs’ attorneys respond. It’s one thing to hide the amount of a settlement, they say, another to hide public hazards such as toxic leaks, faulty fuel tanks, exploding lighters and defective drugs. When a company pays, say $700,000, it’s not a nuisance settlement--there’s a reason. Why shouldn’t plaintiffs’ lawyers be able to share discovery materials with other lawyers? Why must work that costs up to $100,000 be repeated each time a lawsuit is filed? Why reinvent the wheel?

“It is impossible to justify secrecy orders to the man on the street,” said plaintiffs’ attorney Ron Perey, who testified at the legislative hearing. “Only lawyers can do that to other lawyers. The only people who could stand up and say we should bury public hazard news are the people who make the public hazards.”

Despite their obvious outrage, however, the plaintiffs’ attorneys almost always cut the deals. There finally is just too little incentive to resist--fighting for public disclosure doesn’t help win the lawsuit. Secret settlements benefit all the players and grease the system’s wheels.

The injured plaintiff quickly gets to collect a handsome settlement without the time and duress of extended court appearances. The plaintiff’s attorney gets to collect up to a 40% share of that award without shouldering the risk or burden of preparing for a trial. The defendant gets to avoid bad publicity and additional lawsuits. The judge gets to keep his docket trim, the machinery of his courtroom humming.

“It’s very seductive,” said Michael Withey, a Seattle plaintiffs’ attorney associated with Project Access. “The defense attorney brings in a pile of documents and says, you can look at all this if you sign this protective order. The plaintiff’s lawyer salivates. The temptation is to sign so you can get your hands on that pile . . . . Then they offer a big settlement if you’ll keep quiet . . . . You’re representing a client, not a public interest. I have clients with injuries who need the money. What are we supposed to do? Our hands are tied.”

So, when Barbara Arbuckle turned to her lawyer for advice, it was no surprise that Ottinger didn’t hesitate or agonize for very long. Ottinger did not like the choice--”I felt caught between a rock and a hard place . . . . It was a distasteful proposition.” But a trial could last two weeks, cost $30,000 and be appealed forever, and Ottinger had just a one-person office with a phone-answering machine. Arbuckle had as much of an emotional as a financial need to put the matter to bed. This was the time for Barbara to get on with her life. Besides, people could learn the names of the labs they had sued if they checked the courthouse files.

Take the settlement, Ottinger advised.

The lawyer’s and client’s sense of conflict remained, however. Months later, Ottinger called Arbuckle with a question: Would Barbara be willing to come to the state Capitol to testify on behalf of a bill restricting secret deals?

Arbuckle did not hesitate. You bet, she replied. You bet.

By design, the national debate about confidentiality orders increasingly is being framed as a consumer protection issue, rather than a fight among attorneys for their own benefit. “Trial lawyers get the image of being greedy sharks,” said Rep. Marlin Appelwick, chairman of the Washington state House Judiciary Committee. “I try to make clear this is a public interest issue . . . . That’s why we asked injured people to testify.”

So it was not random chance that brought Arbuckle to a legislative hearing room on the morning of Jan. 18. What unfolded that day mirrored the current scene in a number of state capitols.

The trial lawyers worked to keep the focus on hidden public hazards, while business lobbyists portrayed the whole endeavor as a grab by attorneys for more business.

“Why don’t they want this stuff on the record, for people to know?” Arbuckle demanded. “I would never imagine that a manufacturer or lab would try to keep the information from others when someone is harmed by their product or service . . . . Are they that money hungry? It blows my mind.”

“The plaintiffs’ bar has got to have some sort of public policy rationale to come before the Legislature,” responded Richard Ducharme, a business lobbyist. “But my thinking is that their real rationale is (that) it’s commercially beneficial to their industry. The plaintiffs’ bar has never been down here to ask for anything unless there’s money in it for them.”

When it was over, the hearing had drawn the intended publicity, including photographs and interviews of Arbuckle in the next day’s local newspapers. Weeks later, on March 8, after undergoing revisions that excluded doctors’ malpractice from its reach, the bill was passed by the state House and was sent to the Senate, where it is now being considered. It faces an uphill battle there--”All I need to know is that the trial lawyers’ association is behind it,” one Republican state senator told Appelwick. But some sort of reform is likely eventually, just as it is elsewhere in the country.

The momentum is apparent. In New York, after much public outcry, a state judge ended up ordering the release of court records he had earlier sealed in a $4.75-million Xerox toxic leak settlement. In Maryland, a Baltimore magistrate removed most confidentiality restrictions imposed earlier in toxic exposure lawsuits against a Goodyear Tire & Rubber Co. plant. In Oregon, in response to a challenge by Project Access lawyers, a Superior Court judge vacated a protective order that had been imposed on Honda Motor Co. documents in an all-terrain-vehicle rollover case. New York in February began prohibiting the sealing of court records without a judicial finding of “good cause.”

Florida’s “Sunshine in Litigation Act” prohibits court orders and private agreements that conceal information about a public hazard. Texas’ sweeping new court rules, the country’s strongest because they cover discovery documents as well as court records, establish a “presumption of public access” that can’t be overcome without notice, a hearing and a court’s finding of a “specific, serious and substantial” reason.

Despite these advances, however, Arbuckle remains uneasy, for, from time to time, amid the lawyers’ and lobbyists’ now familiar exchanges, she hears one particular comment that still gives her pause.

“No one forced that woman to settle” is how the Seattle defense attorney Thomas McLaughlin put it. “She could have gone forward in a public trial. She would have been free to talk then.”

True enough, Arbuckle has to allow. Under the relatively loose terms of her deal, she still speaks out publicly, and much is known anyway about Pap smears. But other lawyers and clients, disregarding the great difficulties involved, have started refusing altogether to accept secret deals; “Just Say No” was the title of one recent article in the legal journal Trial.

Last August in Seattle, in a case involving exposure to electromagnetic pulse radiation, the Boeing Co. agreed to pay more than $500,000 to leukemia victim Robert Strom even though Strom refused to accept a gag order. “We basically stared them down--Strom wanted others warned,” attorney Mike Withey explained.

There is no such option for Arbuckle now--if she tried to back out of her settlement, she would be breaching a signed contract. So, in the end, Arbuckle wants a new law not just to protect people from public hazards but also to protect countless plaintiffs and their lawyers from facing the temptation of their own self-interest.

“This experience leaves me feeling depressed, upset, mad, guilty,” Arbuckle said one recent evening. “You learn from your mistakes. The older you get, the wiser. I think I have. I consider it a mistake to settle. I never pictured women coming up to me and me not being able to say anything. This is something I will have to live with my entire life.”