The Sunshine Act - Who Does It Protect?
The Sunshine Act – Who Does It Protect?
Lawyers of all types have to keep a lot of secrets. That’s the nature of the business. For the most part these secrets fall under what is called “attorney/client privilege,” and it certainly has its uses. It’s difficult for an attorney to provide effective legal counsel unless their clients tell them everything.
But there are plenty of secrets that attorneys and their clients don’t want to keep at all. There are some secrets that they think should be shouted from the rooftops, posted on billboards, advertised on television and plastered on the front page of every newspaper in the United States. But in many cases, attorneys and their clients aren’t allowed to do any of these things. And innocent people suffer as a result.
Here is a completely made up, pie in the sky scenario for you: Let’s say for the sake of argument that a multi-billion dollar chemical conglomerate has released a new weed killer, specifically to be used by regular people in their home gardens. Let’s call it “Product X.” Mrs. Smith (again, a totally made up person who does not really exist) purchases Product X and begins to use it at home. It works wonders on the weeds in her garden, so she recommends it to all the members of her gardening club. Five of the members of the gardening club purchase Product X and start using it vigorously.
Within a year, Mrs. Smith and all five of the members of the gardening club have been hospitalized with a chronic, debilitating illnesses. Doctors are baffled until it is determined that all five of them started using Product X at the same time. Testing determines that when used under certain conditions, Product X is actually a quite dangerous defective product. It turns out that Mrs. Smith and her gardening club will all be stuck with hacking coughs and chronic weakness for the rest of their lives.
Mrs. Smith and her gardening club all file lawsuits against the multi-billion dollar chemical conglomerate for $5,000,000 a piece, and as a group they ask for $30,000,000 in punitive damages. The chemical company files delay after delay, employing legal tactics that are known as “grinding it out,” which means filing appeal after appeal for every conceivable aspect of the lawsuit. If there is a comma in a complaint that they don’t like the looks of, they will file for a continuance over that. If the continuance over the comma is denied then they will appeal that. If that doesn’t work then they will file for a continuance over the use of the word “Product” in the lawsuit, and if that is denied, they will appeal that. And so on and so on.
The chemical conglomerate does these things not because they actually care about commas or the use of the word “product.” They are doing this to gum up the works. To slow everything down. To make it so this case will be twenty years old before it even gets within sniffing distance of a jury. And why are they slowing it down?
Because they know that they have the money and resources to wait out Mrs. Smith and her gardening club. They know that Mrs. Smith and her gardening club will soon collapse under the weight of their medical bills, which will make them all the more susceptible to a nice low settlement. Let’s say, $200,000 a piece with no punitive damages.
Which is exactly what they offer Mrs. Smith 18 months later. Mrs. Smith and her friends, tired of the legal proceedings and hovering near bankruptcy, reluctantly accept the settlement. But the settlement has some strings attached. The most important being that once Mrs. Smith and her gardening club accept the money, they will not be able to discuss any aspect of their experiences with Product X, the detrimental effects, or anything else involving the lawsuit with the chemical corporation. Nor will their attorneys.
In the meantime, it’s business as usual for the chemical conglomerate. Product X is selling like hot cakes. Sure, there is the occasional hospitalization, but the conditions that cause the product to be dangerous are so rare and remote that there isn’t any need to remove it from the shelves. And that person who occasionally gets hurt can be handled just like Mrs. Smith and her gardening club. Grind them out, give them a low settlement, and then swear them to secrecy.
That sounds like a bad movie, doesn’t it? Unfortunately, it isn’t. A lot of product liability settlements effectively glue the mouths shut of the victims and their attorneys, which means that the people who were responsible for putting bad products out on the market won’t suffer any bad PR as a result, and in some cases might be able to continue selling the very same products that caused people to get hurt in the first place.
This scenario was put into plain English by Senator Herb Kohl (D-Wis,) who is trying yet again to move the “Sunshine in Litigation Act” moved through the Senate.
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. Because they remain unaware of critical public health and safety information that could potentially
save lives, the American public incurs the greatest cost.
The point of this legislation is to simply give a judge a standard to determine whether or not a secrecy order is being requested for valid reasons. And there certainly are valid reasons to impose a secrecy order. Here is another hypothetical: Let’s say that the Coca-Cola Corporation accidentally puts out a bad batch of cola in Santa Fe, New Mexico, and the people who got sick filed a lawsuit. Let us further suppose that in the course of his investigations, the attorney representing the sick people found out the secret formula for Coca-Cola. (Please remember that this is hypothetical.) The Coca-Cola Corporation would be well within their rights to demand a secrecy clause in any settlements that they put out.
But secrecy clauses should not cover corporate malfeasance. They should not cover the manufacturing and marketing of bad products, and this has definitely happened before. We don’t even have to give you a hypothetical here. We can just point to the tires on your car.
The Bridgestone/Firestone tire company had been placing defective tires on cars for years. It wasn’t just a bad batch. There were quite a few models that were falling apart after a few thousand miles had been put on them. There had been multiple lawsuits over these tires that were settled and settled quietly before a Houston public television station broke the story. In those intervening years between the tires being manufactured and the story being made public, there were hundreds of crashes, some of which ended in fatalities.
These car accidents could have been prevented had it not been for the secrecy clauses in all of the Bridgestone/Firestone settlements. Had the plaintiffs not been given the choice to either shut up or go bankrupt, the bad publicity would have certainly forced Bridgestone/Firestone to recall all of those tires and re-think their operating methods. But “omerta” was imposed, and it was business as usual.
The tire company wasn’t the only company protected by secrecy orders. Pharmaceutical companies issue secrecy orders on settlements as a matter of routine. Eli Lilly had secrecy orders on over 8,000 settlements regarding harmful side-effects of the drug Zyprexa. The only reason the case became public was because somebody leaked to the New York Times. But because none of the victims were able to talk about it, people bought $4.2 billion dollars worth of a drug that was essentially harmful in the interim.
The purpose of the Sunshine in Litigation Act is not to get rid of secrecy orders. The point is to allow a judge to determine whether or not a proposed secrecy order is being invoked for valid reasons. As far as we are concerned, “C.Y.A.” is not a valid reason. Nor is “Business as Usual” when people are getting hurt.
Variations of this bill have been introduced for years now, and every year the legislation gets torpedoed by the same groups. The Chamber of Commerce, Lawyers for Civil Justice, the Federation of Defense and Corporate Counsel and practically every other heavyweight tort “reform” organization goes crazy at even the mention of secrecy reform. Their main argument is that they are concerned about “revealing trade secrets to a competitor,” but we find it hard to believe that any competitor would want the secret formula to a product that causes injuries.
As easy as it is to become cynical about politics these days, we do believe that contacting your representatives in Congress does have an effect on how they view legislation. We believe that letting your Congressman or Senator know how you feel about the Sunshine in Litigation Act would be helpful in moving it along.
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