Sometimes, Secrecy Kills

Here’s the question: Should consumers be told of product defects uncovered in the course of litigation? A no-brainer, right? Not to the companies that for years have fought to keep such information secret as the price of settling with consumers who bring lawsuits.

Texas, Florida and more than a dozen other states already require that court records involving product defects be open to the public. Bills that would do the same in California are now before the Legislature, and after years of failed efforts they may have enough momentum to succeed.

The Firestone/Bridgestone safety debacle is the best reason why these bills should pass. By the time the company was forced into recalling 6.5 million tires last August, a pattern of high-speed tread separation had caused scores of accidents. Firestone had settled many of the resulting injury and wrongful-death claims long before the recall but required plaintiffs to keep secret the information their lawyers uncovered about the tires’ tendency to “detread.” Those secrecy deals ensured there would be more injuries and deaths.

Secrecy agreements are standard for large corporations in product liability lawsuits. The list is long: asbestos products, heart valves, contraceptive devices. In each case, dangerous products stayed on the market. Lawyers had to build the documentary evidence from scratch in each case.

SB 11 and its Assembly version, AB 36, would end this practice by declaring that information about defective products, environmental hazards, financial fraud and unfair insurance claims practices is a matter of public record in most cases. The trial judge could shield company trade secrets but not information as to the harm that products may have caused or the circumstances in which injury occurred. SB 11, sponsored by Sen. Martha Escutia (D-Whittier), may hit the Senate floor this week; AB 36, introduced by Darrell Steinberg (D-Sacramento), faces its first big test, in the Assembly Judiciary Committee, next month.

Opponents--including manufacturers, insurers and drug companies--insist that opening up trial court records would unleash a flood of litigation and cause businesses to flee California. Neither has happened in states with strong disclosure laws. Companies are out of excuses for concealing suspected safety defects.