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Secrecy blowout


Another casualty of the Bridgestone/Firestone-Ford calamity may be the ability of corporations to close from public view information used in deciding product liability cases in federal courts. That’s how staffers for Sen. Herb Kohl, D-Wisc., read the congressional tea leaves in the wake of the recall of 6.5 million tires. Numerous accounts of the deadly chain of events have noted that the growing toll of deaths and injuries attributed to tread separations and rollovers was masked from publicity when the companies reached out-of-court settlements which kept some or all of the proceedings confidential. Consumer advocate Joan Claybrook said that suits against Ford and Firestone “were settled with gag orders” that hid the crisis from view.

Kohl aides said that in the past, his Sunshine in Litigation Act came within a vote of passing the Senate. In introducing the current version of the act last year, Kohl slammed “the growing abuse of secrecy orders issued by our federal courts.” Kohl said that courts too often “allow vital information that is discovered in litigation — and which directly bears on public health and safety — to be covered up, to be shielded from mothers, fathers and children whose lives are potentially at stake and from the public officials we have asked to protect our health and safety.”

Such “secrecy orders,” he said, are one of the reasons it took more than 40 years for tobacco litigation to succeed. A recent Los Angeles Times article noted a number of parallel cases, including silicone-gel breast implants, the Dalkon Shield and problems with side-mounted fuel tanks in GM pickup trucks.

The Kohl bill wouldn’t ban the sealing of information involved in product liability cases, but would require federal judges to determine in each instance whether the corporate need for secrecy — to protect trade secrets or other strategic business information — outweighs “public need to know about potential health and safety standards,” as Kohl put it on the Senate floor.

Ford spokeswoman Susan Krusel said the role of confidentiality agreements is being blown out of proportion (News Hits paraphrase) and that plaintiffs are free to tell judges “if they believe that something should be made public.” Moreover, she argued that the discovery process often churns up sensitive company information unrelated to the liability claims at issue.

As to the Kohl bill specifically, she said she was unaware of it and had no comment.

W. Kim Heron is the managing editor of Metro Times. E-mail [email protected]

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