How California can prevent companies from selling products they know are dangerous
For too long, companies that have been sued over dangerous products have been able to hide the truth from the public through broad court orders and settlement agreements. But legislation pending in Sacramento, the Public Right to Know Act, would greatly limit such secrecy and save countless lives.
Businesses fight hard to keep information about defective products and environmental hazards secret. Companies fear that revealing such information will cause sales to drop and harm their reputation, particularly if they continue to sell dangerous products. Lawyers for businesses routinely ask courts to issue protective orders that prevent plaintiffs from disclosing information, often insisting as a condition of a settlement that the parties remain silent. As a result, dangerous products stay on the market longer, and people needlessly die.
Plaintiffs who receive information during discovery about the hazards of a product and what the company knew about it are prevented by court order from telling anyone what they learned. A recent study by Reuters found that judges sealed evidence relevant to public health and safety in about half of the 115 largest product-defect cases over the past 20 years. Consequentially, evidence of grave dangers is hidden from the public for years while unsuspecting consumers are hurt or killed.
Purdue Pharma, for example, was sued for marketing OxyContin and claiming that it was not addictive while recommending excessive and dangerous dosing. In case after case from 2004 to 2016, state and federal judges imposed protective orders that kept information about the drug and the marketing practices secret. It’s estimated that over 500,000 Americans have died from an opioid-related overdose, many within that 12 year period of secrecy.
Monsanto has been sued for cancers caused by its weed killer Roundup. The company marketed the product as safe despite knowing since 1999 that its main ingredient, glyphosate, is carcinogenic. When Monsanto was sued, a federal judge granted a broad protective order preventing disclosure of what was discovered in litigation. Other judges issued similar protective orders mandating secrecy about Roundup. Over 8,000 plaintiffs have sued Monsanto for harms caused by Roundup, and there’s no way to know how many people — mostly field workers — died as a result.
There are numerous examples of the dangers of certain products — from birth control devices to car seats, prescription drugs to children’s toys — being kept secret.
Senate Bill 1149 would create a presumption against secrecy in civil litigation in cases involving a defective product or environmental hazard that “has caused or is likely to cause significant or substantial bodily injury or illness or death.” This is a commonsense and long-overdue reform.
The law would protect the privacy of civil awards and trade secrets. But a court would be able to issue a protective order only by finding that the presumption in favor of disclosure is “clearly outweighed by a specific and substantial overriding confidentiality interest.” Under the law, a nondisclosure order must be “narrowly tailored to restrict the disclosure of no more information and for no longer a period of time than is necessary to protect the interest.”
Additionally, and importantly, the bill prohibits settlement agreements that restrict the disclosure of information. Companies settling product liability cases often insist on a clause that prohibits disclosure of factual information learned about the risks of a product. SB 1149 would deem such agreements void.
California should join several other states in prohibiting agreements and court orders that keep information about dangerous products and environmental hazards secret. Court records are public documents open to public inspection. Secrecy in litigation is particularly inappropriate if it keeps evidence of a public danger from public scrutiny.
