California law should end confidentiality in legal settlements that hides evidence of dangerous products, environmental hazards or financial fraud. Secrecy should only be allowed to protect constitutional rights to privacy, trade secrets, or confidential personal or business information.
The Santa Clara County Superior Court has passed rules disfavoring confidentiality agreements. The California Newspaper Publishers Association sponsored legislation which became law in 1994 to require that local governments to publicly report approval of litigation and identify the litigation’s substance. The time has come for California to have a strong policy in all cases that prohibits secrecy and protects consumers.
Recently, two separate health hazard cases (tobacco and the drug fen-phen) had different outcomes because of secrecy.
In 1994, Florida sued tobacco companies for health care costs for tobacco-related illnesses. Tobacco company documents showed that the companies knew of the harmful effects of tobacco, knew nicotine was addictive and specifically targeted minors in advertising campaigns. Although this information had surfaced in cases throughout the country, it has been kept secret by court approved protective orders. Fortunately, Florida passed a “Sunshine in the Courts Act” in 1991 and the tobacco companies could not hide the documents under Florida law. The discovery of these documents eventually resulted in the $206 billion settlement between the states and the tobacco companies.
On the other hand, lack of disclosure can lead to serious consequences for consumers. In May 1997, a San Francisco case settled against the manufacturers of fenfluramine and phentermine (fen-phen), popular diet drugs, on the condition that documents showing that fen-phen caused heart damage and pulmonary hypertension be kept secret. It was not until September 15, 1997, when the FDA removed the product from the market that the dangers become public. During the five months between the first settlement and the recall, patients continued to take fen-phen, causing harm, particularly since these disorders are affected by the length of time the patient took the drug. At least ten manufacturers had received “adverse reaction reports” indicating the danger, but failed to protect users. Instead, manufacturers used the court system to hide the dangers.
Secrecy abuse is not isolated to a single product or industry. Recently, the Walt Disney Co. was fined for refusing to reveal the accident history on the popular Indiana Jones roller coaster ride. Within six months of the opening of the ride in 1995, the company became aware of at least 21 people who complained of various neck and back pains from the ride. Later one woman suffered permanent brain damage from riding the Indiana Jones Adventure. Earlier disclosure could have prevented her injury as well as those of others.
Disclosure provides substantial benefits for the public and should be the rule in all cases.
If you or a family member have been wrongfully injured call us at 1.888.777.1776 or use this form, delays can hurt your case, so please don’t hesitate to contact us.