The week of Monday, May 12, 2008

Manhattan Institute’s Latest Industry-Funded Research: “Laughable”

May 12, 2008 (Washington, DC)—The following is a statement from American Association for Justice CEO Jon Haber: “Manhattan Institute’s latest attack on the civil justice system follows the mold of its previous reports: fictitious, imaginative and laughable.

“Look no further than comments by Manhattan Institute Legal Director James Copland for the true intentions of this front group. He ridiculed a Vioxx widower when her husband died one-year after their wedding, calling the marriage ‘profitable,’ followed by, ‘you used to have to marry a billionaire to get that type of kickback from a one-year marriage.’ An FDA scientist testified to Congress that Vioxx contributed to as many as 55,000 deaths in the United States. [U.S. Chamber Institute for Legal Reform Summit, 10/26/05, http://www.uschamber.com/webcasts/2005/051026.htm]

“While Manhattan Institute does the bidding for negligent corporations and CEOs, AAJ will hold them accountable and make sure people have their day in court.”

Background on Manhattan Institute: The Manhattan Institute has received funding from a number of corporations, including Exxon Mobil, Cigna, Aetna, Bristol Myers Squibb, Procter & Gamble, Prudential, Merck and Union Carbide. “The Manhattan Institute is financed with about $6 million a year from conservative foundations and corporations…[a]nd the executives of those companies, as well as top judges, lawyers and media figures, turn up at institute-sponsored luncheons where speakers assail legal rulings holding companies liable for defective products or discrimination on the basis of race, sex or disability.” [Knight-Ridder News Service, 10/19/97]

Federal 'sunshine' bill would bring secret court documents to light

The Sunshine in Litigation Act of 2007 passed the Senate Judiciary Committee in March, meaning that 14 years after the first version of the bill was introduced, the light is finally dawning on Congress.

The bill—S. 2449, sponsored by Sens. Herb Kohl (D-Wis.), Lindsey Graham (R-S.C.), and Patrick Leahy (D-Vt.)—would amend Chapter 111 of the U.S. Code, relating to protective orders, sealing of cases, and disclosures of discovery information in civil actions. It would require judges to consider public health and safety before allowing secrecy agreements.

“Too often, court secrecy agreements are used by powerful corporations to hide public safety hazards from the American people and the public safety agencies responsible for protecting them from dangerous and defective products,” said AAJ President Kathleen Flynn Peterson in a statement when the bill was reintroduced in December.

The bill would not ban all secrecy agreements but “simply says that while litigants may want total confidentiality when resolving their disputes in court, information about public health and safety dangers does not deserve court-endorsed protection,” Kohl said after the Senate committee approved the bill.

In Senate testimony, Johnny Bradley Jr. of Pachuta, Mississippi, said the rollover that injured him and killed his wife could have been prevented because the manufacturer of the tires on his Ford Explorer knew about a series of design defects but kept that information secret. When the tread on a rear tire of the Explorer separated, the vehicle rolled over. Numerous similar incidents had been reported, and Cooper Tire & Rubber Co. faced 200 lawsuits, said Bradley, but none of the information the company had about the hazard was made public.

“I found out through my attorney that almost all of these documents were kept confidential through various protective orders demanded by the tire company and entered by courts around the country, so that vital information that could have saved our family would never be disclosed to the public,” he testified.

Bradley’s attorney, Bruce Kaster of Ocala, Florida, said his client’s compelling story should reinforce the need for openness of court records on a national level. Florida has the strongest sunshine in litigation act of the states that have similar statutes. Like the federal bill, the Florida law provides that if documents disclose a public hazard, the court must open them to the public.

Kaster first invoked the state’s antisecrecy statute in Jones v. Goodyear Tire & Rubber Co., which went to the state supreme court twice before the court ordered the defense to make its documents public. (871 So. 2d 899 (Fla. Dist. App. 2003).) He presented the sunshine argument in a later case, and the judge followed Jones and entered an order to open the documents. (Vaughn v. Goodyear Dunlop Tires, No. 01-2089-CA-B (Fla., Marion Co. Cir. Ct. 2006).)

Kaster thinks Florida lawyers are in a strong position to fight sealed court records. “Now with the Jones decision and the trial judge who applied Sunshine in Litigation afterward, there’s some pretty good ammunition for the plaintiff to get those records opened up,” he said.

Kaster said the bar and the media need to be educated about antisecrecy legislation—both state and federal.

“It’s a tool to help the public; it’s not a tool to help your client—at least not directly. But it helps their peace of mind,” he said. “Someone who’s lost a child is not motivated by money, because it does not do them any good. They’re more motivated to try to prevent the product from injuring someone else’s child.”

San Francisco lawyer Richard Zitrin, who teaches legal ethics at the University of California, Hastings College of Law, noted in Senate testimony that professional ethics require lawyers to put their clients’ interests ahead of society’s—and the client’s interest is to obtain the best settlement possible, even if it means agreeing to secrecy. Because only 15 to 20 states have enacted rules that try to keep discovery information public—and they aren’t uniform rules—the country needs a federal law, he said.

“Until the law is changed to prevent the practice, attorneys believing it to be in their client’s best interest to enter into a secrecy agreement that conditions the return of the ‘smoking gun’ to the defendant will simply do so,” Zitrin said. “The attorney’s perceived duty of zealous advocacy will trump the possibility of disclosure.”

At press time, the House had yet to introduce a companion measure.

Past AAJ Consumer News For Families Articles

Monday, May 05, 2008
Congressional Legislation Targets Foreign Producers Who Skirt U.S. Law
Lawsuit seeks to save car title database—and protect car buyers

Monday, April 28, 2008
AAJ: U.S. Chamber’s Phony “Rankings” Serve Extreme Corporate Agenda
Predatory-lending litigation looms

Monday, April 21, 2008
AAJ Demands FDA Protect Patients Instead Of Industry Marketers
Insurers Continue To Overcharge, Underpay Policyholders, Study Finds

Monday, April 14, 2008
AAJ: FDA Warning to Glaxo Highlights Dangers of Preemption
Wachovia sued for its role in telemarketing fraud

Monday, April 07, 2008
AAJ Demands NHTSA Remove Preemption From Roof Crush Rules
Free expressioncan come at high cost for some workers

Monday, March 31, 2008
AAJ: Latest Medtronic Device Failure Highlights Dangers of Preemption
Arizona high court upholds several-only liability in products cases

Monday, March 24, 2008
AAJ Urges FDA to Put Patient Safety First
Free drug samples fall as a safety net for poor patients, study says

Monday, March 17, 2008
AAJ Seeks Legislative Action to Stop Court Secrecy
Massachusetts doctors liable to third parties for failure to warn patients , Associate Editor