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Against Court Sanctioned Secrecy

David Michaels is a scientist and former government regulator. During the Clinton Administration, he served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of the workers, neighboring communities, and the environment surrounding the nation’s nuclear weapons factories. He currently directs the Project on Scientific Knowledge and Public Policy at The George Washington University School of Public Health and Health Services. His most recent book, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health explains how many of the scientists who spun science for tobacco have become practitioners in the lucrative world of product defense. Whatever the story- global warming, toxic chemicals, sugar and obesity, secondhand smoke- these scientists generate studies designed to make dangerous exposures appear harmless. Earlier today we excerpted from the introduction to the book, the excerpt below is from Michaels recommendations to reform the courts’ role in our public health system.

Courts are a repository of large amounts of information that is potentially important in public health protection. Every chapter of this book contains material that was uncovered during the discovery process in a legal proceeding: documents that prove industry campaigns to manufacture uncertainty; others that prove corporate knowledge of significant health hazards years, if not decades, before they were acknowledged; and vital scientific studies that should have been in the literature but were hidden by their corporate sponsors. It is almost always in the public’s interest to place these documents in the public domain, but defendants, who want to avoid bad publicity and the encouragement of additional lawsuits, are often willing to offer the plaintiff a more generous settlement in return for secrecy. Seduced by the larger settlements, plaintiffs and their attorneys have little incentive to oppose the practice, and judges benefit by clearing their dockets of complex, time-consuming litigation. So the deal is done, and the documents are sealed from public view, sequestered forever. The loser is society. Secrecy diminishes our ability to both identify public health and safety hazards and prevent further harm.

Protective orders and secrecy agreements have hidden critical evidence of hazards associated with dozens of materials, products, and processes: automobiles, medicines, child car seats, BB guns, toys, cigarette lighters, school lunch tables, water slides, and many more. No price is paid by the parties involved to the contrary, it is a win-win deal for them—while the public and regulators are left in the dark. Secrecy agreements are a nefarious practice, and the courts have the means of limiting if not eradicating them. Some do so. The judges of the U.S. District Court for the District of South Carolina have issued rules ‘‘disfavoring court-ordered secrecy in cases affecting public safety,’’ but they appear to be in the minority on the federal bench. Judges in toxic tort cases may consider this issue in approving secrecy agreements, but such consideration does not carry the day often enough.

How could the courts put some teeth into rules to discourage the sealing of important documents? Dan Givelber, former dean of the Northeastern University School of Law, and Tony Robbins, former head of NIOSH, the U.S. National Vaccine Program, and two state health departments, have coauthored an intriguing proposal. They suggest that, if harm has been caused by a hazard that was the subject of previously sealed documents, a jury could use that earlier secrecy agreement as good cause for assessing punitive damages in this later case. With such a rule in place, secrecy agreements would not be a risk-free default position; for hiding the truth, the corporation could pay a steep price the next time around.

Ending this practice will come down to the judges and the rules established for them. It is their responsibility to protect the public. They should do so.

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