“Good vs. evil.” It’s a theme that pops up often. Just consider the movies. The new film Beautiful Creatures almost entirely echoes this theme. Ghost featured that same dynamic. And there have been plenty of others. It’s a popular motif. And it reminds me of today's story.
Back in November 1983, the respected law professor, Tom Lambert, published a groundbreaking (at the time) article called “Suing for Safety.” In it, he outlined some of the ways tort lawsuits have saved lives, like ensuring that toys don’t strangle children, or that clothes washers stop when doors are opened, or that guns don’t fire while being unloaded. So important was this article that it ended up in the Congressional Record years later. And since that time, much else has been written about how tort suits make us all safer, whether or not we are the ones who sue. That's our definition of "good."
Then we have the opposite situation, where a company sues to keep anyone from learning about its dangerous products, presumably allowing it to keep injuring and killing consumers. It’s a variation of a theme with which we’re familiar: companies that insist on settling cases confidentially so no one learns about a dangerous product or practice; or, the medical profession, which goes after reporters who glean information from the National Practioner Data Bank – a databank that identifies the safety record of physicians but which patients are not allowed to see.
Back in 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) after a public health disaster hit this country – toxic toys with dangerous lead levels, causing brain damage in children. See some of our coverage here. The U.S. Chamber of Commerce (which, by the way, sues the U.S. government about 150 times per year, or about 3 times a week), and the National Association of Manufacturers (among other huge corporate lobby groups) tried to kill this law because, among other things, it created a public database of product defects so parents can protect their kids. Here’s what the Chamber said in its letter to Congress: [T]he database “will lead to consumer confusion and give rise to lawsuits based on a rumor repeated through the echo chamber of the Internet.”
Oh, it’s led to lawsuits, alright. But not by “confused consumers" based on “rumors” about product defects. On no. The lawsuits are by companies who do not want to comply with the database law and are suing so they can continue to cover up information. And some courts are cooperating, in the words of FairWarning Reports, which has a great article on this today, “blazing new trails in judicial secrecy.”
In October 2011, just months after the database went public, a company that has only allowed itself to be known as “Company Doe,” brought a case against the Consumer Product Safety Commission, “aimed at a complaint submitted by a local government agency regarding a product from Company Doe that, the local agency said, had harmed a child.” Mind you, the CPSC,
[f]ollowed standard procedure by notifying Company Doe and giving it an opportunity to post a response to the complaint. But the company argued the complaint was inaccurate. The commission responded by writing four different versions of the grievance to eliminate any inaccuracies, but that wasn’t enough to satisfy Company Doe, and it eventually sued to keep the product complaint out of the database altogether. (emphasis added)
[t]hanks to closed-door hearings, sealed records and a 73-page ruling with large sections blacked out, even the most basic details are concealed. That includes the identity of the plaintiff — known only as “Company Doe” –along with its product and the incident that led to the complaint. …
Several legal experts said they know of no other case in which a company was allowed to use a fictitious name to protect its reputation.
“The general price tag for wanting to submit things to a court to get a ruling in your favor is that they become public,” said Richard Marcus, a law professor and expert on civil procedure at the University of California Hastings College of the Law in San Francisco. “We don’t have closed trials in this country,” Marcus said. “ We don’t allow witnesses to come in and testify wearing bags over their heads. Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”
Luckily, Consumers Union, Public Citizen and the Consumer Federation of America, “have asked an appeals court to lift the veil of secrecy by unsealing records in the case.” Whether it’s a veil, or a bag, or any other kind of secretive head gear, they need to be pulled off the heads of companies like Company Doe, and when that happens, look out for the movie cameras. Just sayin’.