Firestone not alone in hiding

Pervasive practice allows companies to settle, keep liability suits secret

Davan Maharaj; Los Angeles Times

Last month's recall of 6.5 million Firestone tires has renewed scrutiny of a pervasive and controversial practice whereby parties are allowed to settle product liability lawsuits confidentially and seal the court records, even when hiding these records from public scrutiny could jeopardize lives.

In the case of Firestone, accidents and deaths piled up for eight years before the public became aware that driving on certain Firestone tires could be life-threatening.

Without acknowledging liability, Bridgestone/Firestone Inc. and the Ford Motor Co. quietly settled many lawsuits resulting from crashes caused by tire failures. The settlements typically included secrecy agreements, sometimes barring all parties from discussing aspects of the cases. Key documents in many of the court files were sealed or returned to the two companies, which helped keep the recurring problem out of the public eye.

The pattern has been repeated many times over the years in product liability cases.

McNeil Laboratories' popular painkiller Zomax, linked to a dozen deaths and more than 400 severe allergic reactions, was taken off the market in 1983 only after dozens of settled and sealed lawsuits.

For several years General Motors quietly settled more than 200 cases brought by victims of fiery car crashes involving the auto maker's side-mounted gas tanks before the defect came to light in the early 1980s.

Dow Corning made a confidential settlement in 1984 with a woman who claimed Dow silicone gel implants had caused joint pains and chronic fatigue. Eight years later, the Food and Drug Administration banned silicone implants but only after hundreds of thousands of women suffered the same disorders.

Such secret deals are sought not only by manufacturers accused of making defective products, but by retail giants such as Home Depot and Wal-Mart, which now routinely use them to settle suits brought by shoppers who slip in their stores or are injured by falling merchandise.

"This practice has exploded in the last 20 years," said Arthur Bryant, a senior attorney with the nonprofit Trial Lawyers for Public Justice, which has filed several suits across the country to unseal court records. "Corporations have realized how they can be successful, and it's cheaper to hide the truth from the public."

Support is spreading in Washington for legislation barring manufacturers from sealing court records where public safety is threatened.

Sen. Herb Kohl (D-Wisc.), who in the past unsuccessfully has pushed for such legislation, said he would use the Firestone recall to garner support from other lawmakers.

U.S. Rep. Lloyd Doggett (D-Texas) said the Firestone recall and the injuries and fatalities that preceded it "are the perfect illustration of why the public needs access to defective product complaints."

The Firestone recall, said Richard Zitrin, a legal ethics expert at the University of San Francisco, is another example "where a manufacturer appears to be buying silence at the public's expense."

Consumer activists say some manufacturers are fearful that releasing documents to the public could expose them to liability in future suits. The prime example is the tobacco industry, which for decades safeguarded its secrets, including research linking cigarettes to cancers. That secrecy was broken in the early 1990s after some documents began showing up in court cases, eventually turning the tide against Big Tobacco and costing it billions of dollars.

Self-interest aside, attorneys for corporations and insurers say allowing parties to seal court records helps to promote settlements. It is one reason why more than 90 percent of all civil cases settle before trial, they say.


09/10/2000