By Amy Blume, NCL public policy intern
Amy Blume, an intern at NCL this summer, is rising senior at Wesleyan University in Middletown, Connecticut. At Wesleyan she is majoring in government and receiving certificates in international relations and environmental studies. She came to Washington, DC through the Roosevelt Institute, a progressive, student-led think tank, and is president of the Wesleyan Chapter, which publishes annual policy journals and engages in local political discourse. Amy also writes blogs for Mother Nature Network, an online environmental company.
National consumer advocacy organizations are working to pass the Sunshine in Litigation Act (H.R. 5419),1 a bill that will require critical health and safety hazards to be opened up to the public instead of hidden in secret settlements between the parties. The bill will enhance measures already taken by 41 states and 94 federal districts, but will also require consistency in reform of federal courts.
In the past few years, several forms of the Sunshine in Litigation Act reached Congress. None passed, but a variety of testimonies identified the need for such a bill, restricting court-ordered secrecy of case histories and settlements on areas of public health concerns. In a testimony before Congress in July 2008, Federal Court Judge Joseph F. Anderson of South Carolina, with 22 years on the bench, discussed the all-too common trend toward court-ordered secrecy in settlement cases. Anderson noted that lawyers often request court-ordered secrecy in settlements, but when it comes to public health concerns, the public deserves access to information. It can protect consumers and help them make more informed decisions. Anderson gave several examples of court secrecy in decisions involving information critical to public health.
Court-ordered secrecy of important information in cases of public health:
In one case before Anderson, 350 plaintiffs contended that the defendant knowingly dumped harmful levels of PCBs into a river upstate. The toxicity caused severe health problems among residents. Concluding with a settlement in which all parties were satisfied, the judges agreed to court-ordered secrecy, but Judge Anderson said that he had second thoughts on whether this was the right choice. Shouldn’t people have the right to information depicting health concerns associated with a large, local, public body of water where residents might swim, boat or fish?
In another case, a child died from an incident involving a defective go-cart. The case was settled for $1.4 million dollars. The settlement was kept out of the public domain and that same hazardously designed go-cart was still being sold. Reform of court-ordered secrecy allows consumers access to make more informed decisions when purchasing products, decisions that can protect health and safety.
Restricting court-ordered secrecy will not impinge on the court system and districts:
Reform will likely improve information available to consumers without taking a major toll on court systems. Judge Anderson’s federal district in South Carolina adopted court-ordered secrecy reform, the only district in South Carolina to do so by the time Anderson testified in 2008. New companies continued to spring up and thrive despite the changes in settlement secrecy. Interestingly, the court did not see any major increase in numbers of cases. In a testimony for the Sunshine in Litigation Act in 2009, Georgetown Law Professor Sherman L. Cohn mentioned that although reform may lead to decreased sums of money exchanged in settlements, a general “loyalty to society,” and a responsibility to public welfare, should transcend other considerations when matters affect public safety.
Information on the safety of a market product, such as a defective go-cart or other hazardous toys, machinery, jewelry, food and water, or land area, is vital to consumers, especially when the problems associated with a product may be fatal. We can’t afford to keep this information from the public. Let’s protect each other’s families and health by improving access to critical information on court cases relevant to public health and supporting the Sunshine in Litigation Act of 2010.