Lawsuit secrets: you could be hurt.(Memo To Members)(Editorial)

In the vast consumer-safety arena, the game of hide-and-seek, or maybe seek-and-hide, is in full swing. Consumers expect, and rightfully so, that if a manufacturer knows there's something dangerous about a product--a pattern of people being hurt driving in that car, or riding on those tires--the public would be informed. But all too often, that critical information is first discovered through a lawsuit and then hidden from the public.

Why? Although the law presumes the details of a lawsuit are open to the public, the reality is that documents and testimony can be kept from the public at all stages of a court case. Before, during, and even after a trial, the parties may sign protective orders and confidentiality agreements that bar participants from revealing details of a case. Manufacturers frequently make silence a condition of settlement, victims agree to these restrictions because otherwise the manufacturer will refuse to pay damages without a trial, and courts approve them because they are unopposed by either side. Thus, documents and information relating to product-safety issues are hidden from the public.

203 DEATHS, AND COUNTING

Over the last decade--long before last year's recall of millions of tires--Firestone quietly settled lawsuits out of court that set court-approved secrecy orders, effectively keeping the public from learning of the potential dangers linked to the tires.

Some of the 203 deaths in the U.S. associated with those tires might not have happened if manufacturers had not been allowed to conceal dangers this way.

TWO SUCCESS STORIES

Certain states already regulate sealed settlements. Florida and Texas have some of the strongest restrictions on secrecy. They cover not only documents filed with the court, but also those not filed that are part of a settlement agreement. Critics predicted that these new limitations would discourage manufacturers from settling and burden the court system with an increased number of trials, but new tort filings in those two states have actually decreased.