[Congressional Record: March 5, 2009 (Senate)]
[Page S2834-S2835]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KOHL (for himself and Mr. Graham):
S. 537. A bill to amend chapter 111 of tire 28, United States Code,
relating to protective orders, sealing of cases, disclosures of
discovery information in civil actions, and for other purposes; to the
Committee on the Judiciary.
Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in
Litigation Act of 2009, a bill that will curb the ongoing abuse of
secrecy orders in Federal courts. The result of this abuse, which often
comes in the form of sealed settlement agreements, is to keep important
health and safety information hidden from the public.
This problem has been recurring for decades, and most often arises in
product liability cases. Typically, an individual brings a cause of
action against a manufacturer for an injury or death that has resulted
from a defect in one of its products. The injured party often faces a
large corporation that can spend a virtually unlimited amount of money
defending the lawsuit, prolonging the time it takes to reach
resolution. Facing a formidable opponent and mounting medical bills, a
plaintiff often has no choice but to settle the litigation. In exchange
for the award he or she was seeking, the victim is forced to agree to a
provision that prohibits him or her from revealing information
disclosed during the litigation.
Plaintiffs get a respectable award, and the defendant is able to keep
damaging information from getting out. Because they remain unaware of
critical public health and safety information that could potentially
save lives, the American public incurs the greatest cost.
This concern about excessive secrecy is warranted by the fact that
tobacco companies, automobile manufacturers, and pharmaceutical
companies have settled with victims and used the legal system to hide
information which, if it became public, could protect the American
people from future harms. Surely, there are appropriate uses for such
orders, like protecting trade secrets and other truly confidential
company information. This legislation makes sure such information is
protected. But, protective orders are certainly not supposed to be used
for the sole purpose of hiding damaging information from the public, to
protect a company's reputation or profit margin.
One of the most famous cases of abuse of secrecy orders involved
Bridgestone/Firestone tires. From 1992-2000, tread separations of
various Bridgestone and Firestone tires caused accidents across the
country, many resulting in serious injuries and even fatalities.
Instead of owning up to their mistakes and acting responsibly,
Bridgestone/Firestone quietly settled dozens of lawsuits, most of which
included secrecy agreements. It was not until 1999, when a Houston
public television station broke the story, that the company
acknowledged its wrongdoing and recalled 6.5 million tires. By then, it
was too late. More than 250 people had died and more than 800 were
injured as a result of the defective tires.
If the story ended there, and the Bridgestone/Firestone cases were
just an aberration, one might argue that there is no urgent need for
legislation. But, unfortunately, the list of abuses goes on. There is
the case of General Motors. Although an internal memo demonstrated that
GM was aware of the risk of fire deaths from crashes of pickup trucks
with ``side saddle'' fuel tanks, an estimated 750 people were killed in
fires involving trucks with these fuel tanks. When victims sued, GM
disclosed documents only under protective orders, and settled these
cases on the condition that the information in these documents remained
secret. This type of fuel tank was installed for 15 years before being
discontinued.
Evidence suggests that the dangers posed by protective orders and
secret settlements continue. On December 11, 2007, at a hearing before
the Senate Judiciary Committee Subcommittee on Antitrust, Competition
Policy and Consumer Rights, Johnny Bradley Jr. described his tragic
personal story that demonstrates the implications of court endorsed
secrecy. In 2002, Mr. Bradley's
[[Page S2835]]
wife was killed in a rollover accident allegedly caused by tread
separation in his Cooper tires. While litigating the case, his attorney
uncovered documented evidence of Cooper tire design defects. Through
aggressive litigation of protective orders and confidential settlements
in cases prior to the Bradleys' accident, Cooper had managed to keep
the design defect documents confidential. Prior to the end of Mr.
Bradley's trial, Cooper Tires settled with him on the condition that
almost all litigation documents would be kept confidential under a
broad protective order. With no access to documented evidence of design
defects, consumers will continue to remain in the dark about this life-
threatening defect.
In 2005, the drug company Eli Lilly settled 8,000 cases related to
harmful side effects of its drug Zyprexa. All of those settlements
required plaintiffs to agree ``not to communicate, publish or cause to
be published . . . any statement . . . concerning the specific events,
facts or circumstances giving rise to [their] claims.'' In those cases,
the plaintiffs uncovered documents which showed that, through its own
research, Lilly knew about the harmful side effects as early as 1999.
While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and
generated $4.2 billion in sales in 2005. More than a year later,
information about the case was leaked to the New York Times and another
18,000 cases settled. Had the first settlement not included a secrecy
agreement, consumers would have been able to make informed choices and
avoid the harmful side effects, including enormous weight gain,
dangerously elevated blood sugar levels, and diabetes.
This very issue is currently before a Federal judge in Orlando, FL.
There, the court is faced with deciding whether AstraZeneca can keep
under seal clinical studies about the harmful side effects of an
antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News
sued to force AstraZeneca to make public documents discovered in
dismissed lawsuits. Late last month, the court unsealed some of the
documents at question, and is still deciding whether to unseal the
remainder of the documents. This is exactly the sort of case where we
need judges to consider public health and safety when deciding whether
to allow a secrecy order.
There are no records kept of the number of confidentiality orders
accepted by State or Federal courts. However, anecdotal evidence
suggests that court secrecy and confidential settlements are prevalent.
Beyond General Motors, Bridgestone/Firestone, Cooper Tire, Zyprexa and
Seroquel, secrecy agreements have also had real life consequences by
allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other
dangerous products and drugs to remain in the market. And those are
only the ones we know about.
While some states have already begun to move in the right direction,
we still have a long way to go. It is time to initiate a Federal
solution for this problem. The Sunshine in Litigation Act is a modest
proposal that would require federal judges to perform a simple
balancing test to ensure that in any proposed secrecy order, the
defendant's interest in secrecy truly outweighs the public interest in
information related to public health and safety.
Specifically, prior to making any portion of a case confidential or
sealed, a judge would have to determine--by making a particularized
finding of fact--that doing so would not restrict the disclosure of
information relevant to public health and safety. Moreover, all courts,
both Federal and State, would be prohibited from issuing protective
orders that prevent disclosure to relevant regulatory agencies.
This legislation does not prohibit secrecy agreements across the
board. It does not place an undue burden on judges or our courts. It
simply states that where the public interest in disclosure outweighs
legitimate interests in secrecy, courts should not shield important
health and safety information from the public. The time to focus some
sunshine on public hazards to prevent future harm is now.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 537
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sunshine in Litigation Act
of 2009''.
SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF
CASES AND SETTLEMENTS.
(a) In General.--Chapter 111 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 1660. Restrictions on protective orders and sealing of
cases and settlements
``(a)(1) A court shall not enter an order under rule 26(c)
of the Federal Rules of Civil Procedure restricting the
disclosure of information obtained through discovery, an
order approving a settlement agreement that would restrict
the disclosure of such information, or an order restricting
access to court records in a civil case unless the court has
made findings of fact that--
``(A) such order would not restrict the disclosure of
information which is relevant to the protection of public
health or safety; or
``(B)(i) the public interest in the disclosure of potential
health or safety hazards is outweighed by a specific and
substantial interest in maintaining the confidentiality of
the information or records in question; and
``(ii) the requested protective order is no broader than
necessary to protect the privacy interest asserted.
``(2) No order entered in accordance with paragraph (1),
other than an order approving a settlement agreement, shall
continue in effect after the entry of final judgment, unless
at the time of, or after, such entry the court makes a
separate finding of fact that the requirements of paragraph
(1) have been met.
``(3) The party who is the proponent for the entry of an
order, as provided under this section, shall have the burden
of proof in obtaining such an order.
``(4) This section shall apply even if an order under
paragraph (1) is requested--
``(A) by motion pursuant to rule 26(c) of the Federal Rules
of Civil Procedure; or
``(B) by application pursuant to the stipulation of the
parties.
``(5)(A) The provisions of this section shall not
constitute grounds for the withholding of information in
discovery that is otherwise discoverable under rule 26 of the
Federal Rules of Civil Procedure.
``(B) No party shall request, as a condition for the
production of discovery, that another party stipulate to an
order that would violate this section.
``(b)(1) A court shall not approve or enforce any provision
of an agreement between or among parties to a civil action,
or approve or enforce an order subject to subsection (a)(1),
that prohibits or otherwise restricts a party from disclosing
any information relevant to such civil action to any Federal
or State agency with authority to enforce laws regulating an
activity relating to such information.
``(2) Any such information disclosed to a Federal or State
agency shall be confidential to the extent provided by law.
``(c)(1) Subject to paragraph (2), a court shall not
enforce any provision of a settlement agreement described
under subsection (a)(1) between or among parties that
prohibits 1 or more parties from--
``(A) disclosing that a settlement was reached or the terms
of such settlement, other than the amount of money paid; or
``(B) discussing a case, or evidence produced in the case,
that involves matters related to public health or safety.
``(2) Paragraph (1) does not apply if the court has made
findings of fact that the public interest in the disclosure
of potential health or safety hazards is outweighed by a
specific and substantial interest in maintaining the
confidentiality of the information.
``(d) When weighing the interest in maintaining
confidentiality under this section, there shall be a
rebuttable presumption that the interest in protecting
personally identifiable information relating to financial,
health or other similar information of an individual
outweighs the public interest in disclosure.
``(e) Nothing in this section shall be construed to permit,
require, or authorize the disclosure of classified
information (as defined under section 1 of the Classified
Information Procedures Act (18 U.S.C. App.)).''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 111 of title 28, United States Code, is
amended by adding after the item relating to section 1659 the
following:
``1660. Restrictions on protective orders and sealing of cases and
settlements.''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall--
(1) take effect 30 days after the date of enactment of this
Act; and
(2) apply only to orders entered in civil actions or
agreements entered into on or after such date.
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