Sunshine Is The Best Disinfectant
Devra Davis nearly died from taking a popular painkiller. She later discovered that previous lawsuits exposed that the manufacturer knew the drug could be lethal, but used judicially approved secret settlements to conceal the information from the public. Alarming? It should be. The story is not unique. There are heaps of reported instances in which Big Pharma and other large corporations have used secret settlements to hide product information that, if unsealed, could save peoples’ lives. And, due to the very nature of the problem, the number of instances that are reported likely pales in comparison to the number that aren’t.
Public access and openness are supposed to be cornerstones of our justice system. But as it stands, federal judges can approve secret settlements and other confidentiality agreements hiding information gleaned during litigation — even when it’s dangerous and public knowledge of it could save lives or prevent harm – so long as the lawyers can conjure up something resembling a reason for secrecy, so-called “good cause.” The truth is judges, anxious to get cases off their docket, typically pay little attention to the settlement process, unless one of the parties makes an objection to it. Salivating for their attorneys fees, plaintiffs’ lawyers rarely object to secrecy provisions and, in fact, may conspire with corporate defendants to sneak them in. The result is that “good cause” tends to be whatever the parties agree to. There’s no cop on this beat.
The good news is that there’s proposed legislation that could fix the problem. The bad news is that it has been languishing in Congress for 17 years! First introduced in 1993, the Sunshine in Litigation Act simply requires federal courts also to consider “the public interest in the disclosure of potential health or safety hazards” before stamping the secrecy agreements demanded by Big Business. It’s about as objectionable as a Hershey’s kiss. Which makes it all the more disappointing that, having died a thousand deaths in committee, the Act has barely seen the sunshine of the House or Senate floor, let alone been voted on.
Rep. Robert Wexler (D-FL) and Senator Herb Kohl (D-WI) re-introduced the Act in their respective chambers in March 2009. At a time when the nation’s health is on everyone’s mind, the legislation is awfully relevant.
Critics of the Act argue it would “chill” settlements and increase trials. But no such chilling has occurred in Florida where similar legislation was enacted in1990. In fact, sunshine rules may actually produce more settlements. According to the December 11, 2007 senate testimony of the Honorable Joseph F. Anderson, after federal courts in South Carolina enacted a local sunshine rule they found that fewer cases went to trial in the five years following the rule’s enactment than in the five years before.
Last year, the DOJ pounced on the legislation in a letter to Sen. Patrick Leahy. The Department demanded that at the very least the legislation include an “exception” to recognize and protect “property or other interests.” It doesn’t take a Harvard lawyer to see how such an “exception” could precipitate a total solar eclipse. Still, the Department’s position distilled the essence of this debate: Do we want a law that prioritizes property or people?
“I am for both the man and the dollar,” Abraham Lincoln once said. “But in the case of conflict I am for the man.” The Sunshine in Litigation Act is a no-brainer. Judicial consideration of public safety in approving litigation secrecy is not a liberal agenda item. It’s a pragmatic necessity. And its time is long overdue.
