Gag Orders – Personal Injury Suits Involving a Product or Condition of Pub Hazard

“Lives would be saved if people knew.” That was the bell-ringing sentence in the testimony a year ago by Barbara Arbuckle, 27, before a state legislative hearing in Washington state that was considering a bill to end gag orders and sealed settlements in personal injury lawsuits involving a product or condition of public hazard.

Ms. Arbuckle had received a faulty Pap smear reading from two laboratories which delayed her cancer detection. She settled with the two labs on condition she not publicly identify the labs or disclose any evidence her lawyer has gathered about the labs’ erroneous results with other patients. Since the mid-Seventies, companies, that are sued because of their harmful products, have increased their petitions asking judges to issue “gag” or protective orders over evidence which they had to produce for the injured plaintiff. More judges have approved such petitions.

Similarly, more companies are settling cases for substantial sums only if the plaintiff agrees to a confidentiality requirement in effect sealing the case from public scrutiny. The firms do not want press coverage that would alert other people harmed or at risk from similar company hazards or products.

Taxpayers pay for the courts. Law suits are public matters when filed. A series in the Washington Post about five years ago disclosed details of widespread judicial secrecy and denial of the public’s right to know.

In fact, defective vehicles, hazardous medicines, fracturing heart valves, the dangerous side-effects of the sleep-inducing drug, Halcion, breast implant materials are some examples of risks that millions of Americans and dozens of regulatory agencies would have liked to know about for years but were prevented by court-sanctioned secrecy.

The first sunshine breakthrough came in a Texas Supreme Court decision by Justice Lloyd Doggett. His majority opinion established criteria for Texas courts to follow in refusing to endorse secrecy over public hazard law suits. Florida passed a law to achieve the same goal shortly thereafter. Virginia, North Carolina and New York next opened the public window. Bills to do the same are pending in California and Washington state.

For over a decade, I have urged bar associations to declare an unethical practice when any defense lawyer requires secrecy as a condition of settlement and thus forces the plaintiff’s lawyer to choose between the client and the public safety. No legal ethics panel accepted this recommendation. Now, the Washington state bill, which has passed one House, actually voids any agreement or contract that would conceal from citizens information they need to protect themselves from any kind of “public hazard.”

Safety and health regulatory agencies also would be able to do their job better it they could use information obtained through court proceedings about consumer, environmental or workplace dangers. These agencies could establish standards based on such evidence that would save lives and prevent injuries or disease.

I recall in 1966 how the Congress was stimulated to pass a tire safety law by disclosures (fortunately without a court gag order) in a California lawsuit against an Akron tire company that showed inadequate safety testing levels.

Time and time again, it is a product liability lawsuit that propels these critical facts into the public arena — asbestos perils, Pinto fuel tanks, Dalkon Shield IUDs, Silicone Gel implants — not any activity by the often passive safety agencies.

The trend is for more judicial openness, but still most states have not followed the lead of Texas and Florida. If you believe that your tax dollars should produce sunshine rather than shadows in the courts, support legislation that would alert the public and advance its safety.