The Battle to Save Civil Justice

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Safety secrets keep consumers in the dark

Regulatory agencies, manufacturers, and confidentiality agreements shield the truth about dangerous products for children.

E. Marla Felcher

Brand-name baby products injure tens of thousands of children in the United States each year. Portable cribs and the Graco Converta-Cradle alone are responsible for more than two dozen infant deaths; Safety 1st bath seats are responsible for 20 more. And, yet, many parents remain ignorant about these product dangers.

Why, after so many infant deaths and injuries, do these hazards remain largely unknown to even the most safety-vigilant parents?

Because manufacturers have fought hard for, and won, the right to keep these public matters private. Section 6(b) of the Consumer Product Safety Act (CPSA), in conjunction with a legal system that permits the infant products industry to conduct its business shrouded in a thick veil of secrecy, keep news of hazardous products and corporate wrongdoing from ever reaching the public.

The story of product manufacturers’ concealment of safety data begins 30 years ago, with a secret Federal Trade Commission (FTC) investigation of a new brand of automobile antifreeze. In 1970, DuPont Corp. introduced its revolutionary new antifreeze, Zerex. A notch above its competitors, Zerex was “self-sealing,” a property that prevented the antifreeze from leaking out of car radiators.

DuPont hired top-flight advertising agency BBD&O to create television commercials for Zerex, an extravagant marketing strategy for a product as mundane as antifreeze. Focusing on Zerex’s competitive advantage, the ad showed an ice pick bashing through a can of Zerex. Rather than leaking through the punctured can, the antifreeze sealed it. Consumers were convinced of the company’s claim, and sales of Zerex began an upward trajectory.1

The FTC, however, didn’t buy it. Shortly after the first ads were aired, the commission set out to prove that DuPont’s self-sealing claim was a sham. Regulators investigated quietly, never letting DuPont know what they were up to. In fact, DuPont executives learned of the government’s charges the same way the public did—from an FTC press conference.

The agency accused DuPont of trying to trick consumers into buying a product that fell far short of its advertising claims. Zerex was not self-sealing, the FTC announced, and, in fact, the product was likely to damage a car’s cooling system. BBD&O was named as a co-respondent in the case.2 Zerex sales plummeted.

As it turned out, the FTC had made a mistake. Tests conducted throughout the months following the press conference revealed that Zerex did exactly what its advertising had claimed it would. A year later, the commission dropped its false-advertising charges,3 but by then, DuPont’s profits had taken a beating. The FTC’s original warning got considerably more press than the retraction, and Zerex sales never recovered. The federal agency had annihilated a brand.

The legacy of the Zerex blunder has been long-lasting and pervasive. At the same time this story was playing out, Congress was in the midst of hashing out the details of the Consumer Product Safety Act,4 delegating responsibilities to the U.S. Consumer Product Safety Commission (CPSC). Like the Federal Trade Commission, the CPSC was to be the federal overseer of consumer goods that manufacturers preferred not to be regulated. At the heart of the Consumer Product Safety Act was the question of how much power the CPSC would be given vis-à-vis industry.

With the Zerex debacle still fresh in their minds, the congressional architects of the CPSC vowed to make sure that the new agency would not have the authority to do to any corporation what the FTC had done to DuPont. Section 6(b) of the safety act was Congress’s solution.

Manufacturer control

The Freedom of Information Act (FOIA),5 enacted by Congress in 1966 under the belief that “an informed electorate is vital to the proper operation of a democracy,” provides the public with direct access to documents held by federal agencies.6 The act has some exemptions—primarily to protect the confidentiality of trade secrets and the names of victims—but it has become an invaluable tool for lawyers, consumer advocates, and journalists. The act stipulates that federal agencies must respond to requests for information within 10 days.

Despite the 10-day law, the CPSC can take months to answer an FOIA request. Section 6(b) of the Consumer Product Safety Act is to blame. Called a “reverse-FOIA,” the section grants manufacturers the right to review all product-specific information that the CPSC releases to the public. In other words, before the agency sends anyone information on a product, it must notify the company of the request, then send it the file to review. The company has 30 days to evaluate the request.

If the company disputes the accuracy or fairness of the information in the file, the CPSC must determine whether the concerns are legitimate. When the parties don’t agree, the commission’s general counsel gets involved, and the request for information becomes a federal case.7

Ultimately, the dispute can go to court, but the CPSC has little incentive to take these matters that far. Financially strapped, with never enough resources to do its work, the agency is unlikely to make a §6(b) legal battle a top priority.

The Consumer Product Safety Commission is the only federal health and safety agency with information disclosure restrictions as stringent as §6(b).8 Understandably, CPSC staff resent the time and resources they devote to this obligation. In 1999, the agency spent $1.4 million to process Freedom of Information Act requests, about $400,000 of this amount on §6(b).9

Today, when consumer advocates and regulators are asked what most undermines the CPSC’s ability to disseminate product safety information to the general public, most respond with a resounding, “Section 6(b).”

Safety matters

Imagine that a couple, expecting their first child within the next month, is in the market for both a new car and a slew of infant products. The mother-to-be wants to learn as much as she can about the safety track record of individual cars before visiting a dealer’s showroom. While she is enticed by the roominess of sport utility vehicles (SUVs), she is concerned that some makes may not be as safe as their large, chunky exteriors portray them to be. Where should she begin her search?

Guessing that the government will have the most credible, objective information, she turns to the National Highway Traffic Safety Administration (NHTSA), the federal agency responsible for overseeing motor vehicle safety. Scanning the agency’s Web site ( www.nhtsa.gov), she zeroes in on the data she is after: the federal government’s safety ratings for most brands of SUVs.

The mother-to-be learns that the 1999 Dodge Durango scores only two stars out of a possible five on the driver-side frontal crash test and four stars on the passenger-side test and that it provides no side air bag protection. According to NHTSA, a safer choice would be the Nissan Pathfinder or the Mercury Mountaineer. Both rate four and five stars on all crash tests.

The mother-to-be clicks on a link for the Insurance Institute for Highway Safety ( www.hwysafety.org) and learns the importance of the various crash tests. Ending her search, she sends away for a booklet, “Shopping for a Safer Car,” confident that she has found the information she needs to make a wise purchase decision.

Next, the mother-to-be turns her attention to baby products. She wants to buy a safe baby swing. The woman begins her search with two books she received at her baby shower, Baby Bargains and Consumer Reports Guide to Baby Products.

A sentence in Baby Bargains jumps off the page, heightening her concern: “Remember to observe safety warnings about swings, which are close to the top 10 most dangerous products as far as injuries go.”10 The book doesn’t explain what these dangers are, nor does it say anything about their prevalence. But it does recommend a “best brand”: Graco. She wonders what Consumer Reports has to say about Graco.

Consumer Reports names swing manufacturers—Graco, Evenflo, and Fisher-Price—but falls short of recommending a specific brand. Beneath the manufacturer listings, the expectant mother finds a half-page warning titled “Swings Require Vigilance.”11 It is here that she learns why infant swings can be dangerous: Babies can fall forward in a swing and suffocate, and older babies can pull on a swing leg and topple out. She decides that the government would be the best source for unbiased, objective recommendations on infant products.

The woman logs onto the CSPC Web site ( www.cpsc.gov) and learns that, unlike NHTSA, the commission doesn’t premarket test or rate any of the products it regulates. The site lists infant swings that have been recalled, but there is no information about swings that are currently on the market.

Checking the recall list, the mother-to-be tries to figure out if certain manufacturers have better or worse track records than others. This is when she learns that Graco, the brand Baby Bargains recommended, recalled 7 million infant swings in 2000, after 181 babies had been injured, 9 suffered fractured bones or concussions, 22 had been caught by the swing at the neck or chest, and 6 had died.12 The swing recall occurred after Baby Bargains had been published.

Graco wasn’t the only manufacturer that had sold dangerous infant swings. The mother-to-be discovers from the Web site that over the last several years, an additional 2 million swings have been recalled by Century Products (multiple deaths by strangulation); Little Tikes (cuts, bruises, and a broken elbow); Carlson Children’s Products (suffocation); Newco (cuts and bruises); Playskool (bumps, bruises, and a broken nose); and Cosco (bumps, bruises, and a concussion).13

There must be a safe brand of swings, she thinks. Intent on finding a safe swing, she calls the CPSC for advice. This is when she collides with §6(b).

The Consumer Product Safety Act imbues the commission with one nonregulatory responsibility—to investigate, analyze, and disseminate to the public information on injuries and deaths associated with consumer products. However, §6(b) largely prohibits the agency from carrying out the “dissemination” component of this mandate. Agency regulators know which infant swings are associated with the greatest number of injuries and deaths, but the section prevents them from releasing this information on their Web site or over the phone.

Once a product is recalled, the injury and death count becomes public knowledge. But before a recall notice is issued (by which time hundreds of children may already have been hurt), §6(b) forces anyone who wants this information to jump through hoops to get it.

Freedom of Information requests

A parent seeking safety data on infant swings—or any product regulated by the CPSC—can secure it in one of two ways. Both require a Freedom of Information Act request.

The quickest option is to file a request that asks for “all incidents of injury and death, brand names not necessary” associated with infant swings. Within a few weeks, the commission will send documents describing each infant-swing incident in the time period specified. Incident descriptions will be brief, and brand names will be blacked out.

The full report on incidents occurring between 1990 and 1999 described 94 infant swing incidents, including 25 deaths.14 While information of this sort may help a parent assess dangers posed by the swings in general, it will do little to identify the safest brand.

The second option is to file an FOIA request for “all incidents of injury and death” associated with infant swings “with brands identified.” This request will yield hundreds of pages of data, but by the time it arrives, the child may have outgrown the product. Because §6(b) forces the agency to get the final go-ahead from every company before it can fulfill an FOIA request, the process can take many months to complete. Then, when the data arrive, the effect of §6(b) will be obvious: Pages deleted, sentences blacked out, and entire documents withheld.

Had a parent seeking swing-safety data filed a request for “all incidents associated with the Century ‘Lil Napper infant swing,” the CPSC would have sent hundreds of pages of information. A two-page letter from the commission’s FOIA officer would have explained that the agency had withheld certain documents “where the manufacturer has requested confidentiality.”15

What should a parent make of this data? Is Century a worse brand than others? Does any other manufacturer make a safe swing? Should infant swings be scratched from the shopping list altogether? The CPSC is not permitted to tell.

It takes little more than a few clicks on NHTSA’s Web site for consumers to find out which cars are safe and which are not. In contrast, for parents to learn which infant products are safe, they must master the art of Freedom of Information Act requests, then wade through hundreds of pages of documents. In the end, parents must draw their own conclusions about product safety.

Why doesn’t the CPSC summarize data into a format that would help parents make wiser purchase decisions? Because §6(b) forbids it from doing so. Thanks to the section, the manufacturers of hazardous infant products never have to worry that the commission will one day tell an expectant mother, “Don’t buy that brand, it’s dangerous.”

Court-sanctioned secrecy

The U.S. legal system plays a valuable role in government regulation, particularly in largely unregulated industries like infant products. When a family sues a manufacturer for the wrongful injury or death of a child, or the CPSC sues a manufacturer for failing to self-report product hazards, the courts provide a forum for the truth to be told about the company’s premarket testing and sales practices.

In addition to compensating a family or the federal government monetarily, a judgment against a manufacturer can contribute to public safety. News of a verdict against a manufacturer—particularly a company that sells baby products—will alert consumers not only of the product’s danger, but also of the company’s actions.

To win a lawsuit under the current doctrine of strict liability, a plaintiff must demonstrate that a defective product caused a child’s injury or death.16 During the discovery process, the plaintiff’s lawyers scrutinize the defendant’s internal documents. For manufacturers, this includes notes taken during product-safety review meetings, consumer complaints logged by the company’s customer service department, and reports of product testing labs.

From the start, the discovery process is stacked in favor of the defendant. While the plaintiff desperately needs the manufacturer’s documents, the manufacturer has the most to lose by surrendering them. The discovery process becomes a battle for information as plaintiff lawyers demand internal documents and the company strives to keep the documents to itself.

Ralph Nader and Wesley Smith, authors of No Contest: Corporate Lawyers and the Perversion of Justice in America, describe the process like this:

Over the years, manufacturers have invented an arsenal of stonewalling tactics to prevent plaintiffs from gaining possession of incriminating documents and to keep evidence of corporate wrongdoing from reaching the public. Their tactics are shockingly successful.

Corporate lawyers, generally paid by the hour and equipped with abundant resources, are strongly motivated to resist plaintiff attorneys’ requests for information. Plaintiff attorneys, who usually are compensated only if they win a case and then take a percentage of the monetary award, view the discovery process as “overhead.” It is in their best interest for discovery to move quickly. This rarely occurs.

A lesson in stonewalling

In 1996, the CPSC teamed up with the U.S. Department of Justice to bring suit against Cosco for failing to report hazards associated with its toddler beds and guardrails. Section 15 of the CPSA requires manufacturers to report to the CPSC within 24 hours if they have reason to believe that one of their products presents a hazard.

The Justice Department maintained that Cosco knew its toddler beds and guardrails were hazardous long before the manufacturer reported the danger to the agency. Having recalled the toddler beds in 1992 and the guardrails in 1994, the agency already had well-documented evidence that the products were hazardous. To win the case, the government would have to show that Cosco knew of the products’ dangers and failed to notify the CPSC when dozens of parents complained that their children had been entrapped in the bed and guardrails.

Cosco’s lawyers stonewalled throughout discovery, relying on a number of efficacious tactics—excessive delays, boilerplate objections, and evasive responses.

Department of Justice attorneys William Zoffer and Joseph Gergits sent their first set of interrogatory questions and document requests to Cosco’s lawyers in February 1996.18 Twenty-five pages long, the questions covered a lot of ground. How did Cosco evaluate the products’ safety before they were sold? What kind of internal system did Cosco have in place to relay consumer complaints of entrapment to the company’s executives? What did Cosco do with the recalled toddler beds that had been returned or that had never left the warehouse? To try the case fairly, the Department of Justice needed answers to these questions, as well as the company’s records of product tests, analyses, marketing, consumer complaints, and entrapments.

A month after receiving the interrogatory and document requests, Cosco lawyers Peter Winik and Minh Vu asked for a 30-day extension—the first of many delays.19 When they finally responded in April, their incomplete answers suggested there was much the company wanted to keep secret. Listing 15 boilerplate objections—including the Justice Department’s definitions of “Cosco” and “the original toddler bed”—Cosco’s lawyers quibbled with any question that they considered to be vague or overly broad or any that “would subject Cosco to oppression, harassment, and undue burden and expense.”20

In response to the government’s request for information about the fate of the recalled toddler beds, Cosco’s lawyers complained that the answer would expose the company to “undue burden and expense.”21 Furthermore, they claimed the question was irrelevant to the suit and would not lead to the discovery of admissible evidence. Winik and Vu offered only that some headboards and footboards of the recalled beds had been destroyed, others had been “reworked,” and the mattress platforms had been “salvaged.”22

A week later, Zoffer voiced his annoyance with Cosco’s evasive responses. In a letter to Winik and Vu, he argued that the company’s handling of the recalled toddler beds was relevant to the case, as it bore heavily on Cosco’s credibility, a point central to the suit.23 Cosco’s lawyers had also put off Zoffer’s request for the names of customer service employees who had fielded toddler bed and guardrail complaints, saying only that they would provide the names “upon request and with reasonable notice.”

Zoffer also took issue with the company’s failure to provide the names of those involved in Cosco’s product safety committees. Zoffer needed the names, Cosco’s lawyers knew, to draw up a list of Cosco employees who would be asked to give depositions. By withholding this information, Cosco was unnecessarily delaying the discovery process.

Over the next month, both sides met to try to resolve the discovery disputes. Cosco attorney Winik agreed to supplement some of the company’s original answers. But by the first week of June, Cosco had provided no new information. “These matters have been dragging for some time,” Zoffer wrote to Winik, requesting his supplemental answers by the close of business the next day.24

Cosco responded immediately, but once again produced only a fraction of the information Zoffer had requested. According to Winik’s response, the recalled toddler beds had been “processed through the Returned Goods Department,” but no one at Cosco could remember who exactly had handled them.25 Nor, apparently, could any executives recall what they had done upon learning of the bed and guardrail hazards. The company did, however, furnish a list of executives on its Product Review Committee and Product Safety Task Force, but no one could tell Zoffer what was discussed in these meetings. Why? According to Cosco, no minutes were kept.26

In the Justice Department’s next letter to Cosco’s attorneys, Gergits expressed his displeasure with “continuing shortcomings in Cosco’s responses to . . . interrogatories and document requests.”27 Among the most egregious omissions was Cosco’s obstinate refusal to disclose what had happened to the recalled toddler beds.

For the first time, the Justice Department revealed the source of its continued interest in the issue: The department had documents that suggested the company had diverted the beds to Mexico, where they had been sold, and that this had occurred while the company was reporting to the CPSC that all nonconforming beds were being destroyed.28 Gergits gave Cosco a week to come up with a satisfactory answer. Otherwise, he would ask the judge to order Cosco to respond.

Cosco lawyer Vu responded 10 days later, and again failed to answer the question.

As it turned out, Cosco executives never had to reveal what they had done with the recalled toddler beds. Soon after the Department of Justice took its first deposition, the case was settled out of court. Cosco’s stonewalling had paid off: For $725,000, the company was able to put an end to all the government’s questions.29 By settling the case, Cosco avoided the repercussions that were sure to ensue when the company’s executives answered pointed questions under oath.

Cosco Vice President of Manufacturing Robert Schwartzkopf never had to explain memos that said thousands of recalled toddler beds had been “reworked” for Mexico.30 Quality Control/Product Standards Manager Bob Craig never had to reveal why he had told CPSC Compliance Officer Terri Rogers that he was aware of only two toddler bed entrapments, shortly after being copied on a memo that put the count at 23.31 Nor did Craig, who was identified as Cosco’s “CPSC Representative,” have to explain why he had decided to “fix” the toddler bed entrapment problem by adding a warning label to new units, rather than taking the product off the market and notifying customers of the beds’ hazards.32

Lacking the resources to fight Cosco indefinitely, the Department of Justice and the CPSC were all too willing to settle the case and move on to the next one. The result: Consumers continued to remain in the dark about Cosco’s dismal track record on infant safety and the highly suspect actions of its executives.

Confidential settlements

In March 1989, the car 16-month-old Michael Bancroft was riding in was struck head-on by another car. The crash killed the oncoming car’s driver. Michael broke his neck, was permanently paralyzed from the waist down, and retained only partial use of his arms and hands. He had been strapped into a Kolcraft booster-style car seat.33

Michael’s family sued Kolcraft. During discovery, the family’s lawyers learned that other manufacturers of booster car seats recommended the product for children over 30 pounds. The National Highway Traffic Safety Administration had a more stringent weight limit: over 40 pounds. Kolcraft, however, claimed its seat was safe for children between 20 and 40 pounds. Michael weighed 22 pounds—within Kolcraft’s generous weight recommendation, but not within NHTSA’s or those of most other manufacturers.

The Bancrofts’ attorneys had multiple experts reconstruct the accident and filmed “sled tests” of the car seat ejecting a test dummy the same size as Michael. “Our engineering team quickly came to the conclusion that 20 pounds was inappropriate,” said Stephen Kiely, who led the plaintiffs’ legal team.34

Three months after Michael’s accident, Kolcraft raised the recommended minimum weight for its booster car seats to 30 pounds. The company claimed the change had nothing to do with safety. Rather, it was purely a marketing decision made “to bring them into conformity with other manufacturers.”35

Why did Kolcraft originally choose a car-seat weight restriction that was far more lax than that of its competitors? The answer to this question remains a mystery. The Bancroft case never went to trial, and Kolcraft’s defense lawyers went to great lengths to ensure that no one would ever learn what happened to Michael Bancroft.

In exchange for a settlement payment, Michael’s family and lawyers signed a confidentiality agreement that stipulated they would never reveal Kolcraft’s name to the public. Kolcraft was identified as the car seat’s manufacturer only after journalists tracked down the case through public court records. The records revealed that Kolcraft had offered the Bancroft family $4.25 million, plus scheduled payments for Michael’s ongoing care that could have brought the final settlement to more than $10 million.36

The Bancroft family’s dilemma is played out in lawyers’ offices every day: Should a family push a case to trial, or should they settle quietly and move on with life? A trial can bring public attention to an unsafe product and spotlight corporate wrongdoing. For this reason, many products liability lawyers view the dissemination of product safety information as an important part of their job.

“A lawyer who discovers evidence that a product is designed defectively or is inherently hazardous, or who discovers repeated evidence of neglect causing injury, has an overriding responsibility to see that the information is disseminated as a means of avoiding further injuries,” wrote Kiely, the Bancroft’s lawyer, a year before he settled the Kolcraft car seat case.37

But sometimes when a lawyer wants to take a case to trial, his or her clients feel otherwise. Parents who take the witness stand face the likelihood of being blamed by the manufacturer’s lawyers and their expert witnesses, repeatedly and aggressively, for the injury or death of their child.

Despite Kiely’s statements about the importance of disseminating public safety information, when Kolcraft offered his clients millions of dollars to settle, he allowed them to do so and sign a gag order. Why? Kiely said, “In the end, I agreed because my job is to secure proper care for my client. And I deemed it inappropriate for the confidentiality agreement to stand between my client and the settlement.”38

When a child is not killed by a product but severely injured like Michael Bancroft, the rewards of settling out of court are ratcheted up another notch: The staggering costs of medical care are often overwhelming. An offer of ongoing payments over the rest of the child’s life becomes too important to pass up. Overburdened by the cost of Michael’s medical care, concern for “a larger public interest” was a luxury the Bancroft family simply couldn’t afford.

Confidential settlements have become the norm in industries like juvenile products, where a company’s financial health rests heavily on its ability to project a nurturing, caring, safety-conscious public image. This trend toward secrecy has spawned an intense debate between plaintiff and defense lawyers. Plaintiff lawyers, resentful of being forced to choose between a client’s immediate needs and the safety and welfare of the general public, have been pushing for the past 10 years for legislative solutions.

Since 1990, a handful of states have passed “sunshine” laws that prohibit the courts from keeping secrets from the public. Florida’s 1990 Sunshine in Litigation Act—one of the most stringent—prohibits any confidential settlement that conceals information about public hazards.39 In 1993, Washington passed the Public Right to Know bill, prevailing against the strong opposition of Boeing Aircraft and other local manufacturers. Louisiana passed a similar bill in 1995. But in many states, including California, industry has used its clout to persuade legislators to vote down sunshine laws. Sen. Herbert Kohl (D-Wis.) has introduced right-to-know legislation at the federal level with no luck yet.40

Professor Arthur Miller of Harvard Law School is among the more vocal advocates of settlement secrecy. He argues that courts should remain a place for “private parties bringing a private dispute,” that plaintiffs have no right to force a defendant to disclose information the company considers to be confidential.41

But is it a company’s right to determine what information should remain confidential? Miller’s critics argue that when a company markets a product that endangers public safety, it loses the right to keep product information secret. Miller claims that prohibiting confidential settlements will decrease the incentive for corporations to settle out of court and further burden the already overloaded court system.

In fact, there is no empirical evidence that this occurs. Settlement rates have not decreased in states with strong sunshine laws.42 Why? Companies remain strongly motivated to settle quietly out of court instead of facing public scrutiny with a full-blown trial.

Consumer advocates insist that it is time for the corporate game of “I’ve Got a Secret” to end. Secret settlements conceal safety information that can, quite literally, kill a child. “The time has come to enact a federal antisecrecy law,” argues commentator Andrew Miller. Access to public court records like settlement agreements should be limited only when a judge has determined that the records do not conceal information about public hazards. “Overall, antisecrecy legislation will provide the public with access to information that can be used to foster change and work to safeguard the world in which we live.”43

The unknown

Standing in the infant products aisle at Wal-Mart, parents sizing up a Cosco baby swing or stroller may be able to draw a few conclusions about the product’s manufacturer. The sheer amount of Cosco goods on the shelves could lead them to the correct conclusion that the company sells more car seats, strollers, cribs, and play yards than just about any other company.44 Maybe their friends have Cosco products, or perhaps they were enticed to the store by a Cosco ad while flipping through Childbirth or American Baby magazines in the obstetrician’s office.

It is quite likely, however, that the parents will know next to nothing about Cosco’s safety track record. They will have no idea that since 1990, the company has recalled over 2.5 million product units that caused over 400 injuries and at least three deaths. Parents will have no idea that the U.S. Department of Justice fined the company for withholding safety information from the CPSC. They will have no idea that Cosco employees who were implicated in the safety information cover-up also play a significant role in the voluntary standard-setting process for infant products today.

Why? Because the U.S. regulatory and judiciary systems allow Cosco—and all other infant product manufacturers—to dupe trusting parents and caregivers into believing that their baby products are safe.

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Notes

1. See Robert S. Adler, From ‘Model Agency’ to Basket Case—Can the Consumer Product Safety Commission Be Redeemed? 61 ADMIN. L. REV. 107 (1981).

2. Information Bank Abstracts, N.Y. TIMES, Nov. 26, 1970, at 46.

3. Information Bank Abstract, N.Y. TIMES, Nov. 18, 1971, at 94.

4. 15 U.S.C. §§2051-2084 (2000).

5. 5 U.S.C. §552 (2000).

6. S. REP. NO. 813, 89th Cong., 1st Sess. 3 (1965); see also Note, The Impact of Restrictive Disclosure Provisions on Freedom of Information Act Requests: An Analysis of Section 6(b)(1) of the Consumer Product Safety Act, 64 MINN. L. REV. 1021, 1024 (1980).

7. See generally CONSUMER SAFETY AND INDUSTRY COMPLIANCE WITH THE NEW REPORTING REQUIREMENTS OF THE CONSUMER PRODUCT SAFETY COMMISSION: A BLUEPRINT FOR COOPERATION IN THE ’90S (1992); Frances E. Zollers & David Barry, A Regulation in Search of a Rationale: An Empirical Study of Consumer Product Safety Act Section 6(b) and Its Effect on Information Disclosure Under the Freedom of Information Act, U.S. ADMIN. L. REV. 455 (1991).

8. Adler, supra note 1, at 107.

9. E-mail from Russ Rader, Public Affairs Officer, U.S. Consumer Prod. Safety Comm’n, to Marla Felcher (Mar. 6, 2000) (on file with author).

10. DENISE FIELDS & ALAN FIELDS, BABY BARGAINS 247 (3d ed. 1999).

11. SANDY JONES, CONSUMER REPORTS GUIDE TO BABY PRODUCTS 136 (6th ed. 1999).

12. Press Release, U.S. Consumer Prod. Safety Comm’n, No. 00-098 (Apr. 13, 2000) (on file with author).

13. Press Release, U.S. Consumer Prod. Safety Comm’n, No. 97-180 (Sept. 2, 1997) (on file with author); Press Release, U.S. Consumer Prod. Safety Comm’n, No. 94-037 (Feb. 8, 1994) (on file with author); Press Release, U.S. Consumer Prod. Safety Comm’n, No. 93-095 (July 22, 1993) (on file with author); Press Release, U.S. Consumer Prod. Safety Comm’n, No. 95-121 (May 16, 1995) (on file with author); Press Release, U.S. Consumer Prod. Safety Comm’n, No. 97-110 (Apr. 24, 1997) (on file with author).

14. NAT’L INJ. INFO. CLEARINGHOUSE, U. S. CONSUMER PROD. SAFETY COMM’N, INFANT SWINGS (2000).
15. Letter from Todd Stevenson, Freedom of Information Act Officer, U.S. Consumer Prod. Safety Comm’n, to Marla Felcher (Dec. 15, 1999) (on file with author).

16. See Paula Mergenhagen, Product Liability: Who Sues? AM. DEMOGRAPHICS, June 1995, at 48.

17. RALPH NADER & WESLEY J. SMITH, NO CONTEST: CORPORATE LAWYERS AND THE PERVERSION OF JUSTICE IN AMERICA 60 (1996).

18. Plaintiff’s First Set of Interrogatories and First Request for Production of Documents, United States v. Cosco, Inc., No. IP95-1648-c-H/G (S.D. Ind. Feb. 7, 1996).

19. Letter to William Zoffer, Attorney, U.S. Department of Justice, from Peter L. Winik, Attorney, Latham & Watkins (Mar. 5, 1996) (on file with author).

20. Defendant’s Response to Plaintiff’s First Set of Interrogatories and First Requests for Production of Documents at 2, United States v. Cosco, Inc., No. IP95-1648-c-H/G (S.D. Ind. Apr. 10, 1996).

21. Id. at 6.

22. Id. at 7.

23. Letter to Peter L. Winik and Minh N. Vu, Attorneys, Latham & Watkins, from William Zoffer, Attorney, U.S. Department of Justice (Apr. 19, 1996) (on file with author).

24. Letter to Peter L. Winik and Minh N. Vu, Attorneys, Latham & Watkins, from William Zoffer, Attorney, U.S. Department of Justice (June 3, 1996) (on file with author).

25. Defendant’s Supplemental Response to Plaintiff’s First Set of Interrogatories and First Request for Production of Documents at 2, United States v. Cosco, Inc., No. IP95-1648-c-H/G (S.D. Ind. June 3, 1996).

26. Id. at 8.

27. Letter to Minh N. Vu, Attorney, Latham & Watkins, from Joseph C. Gergits, Attorney, U. S. Department of Justice (June 20, 1996) (on file with author).

28. Id.

29. Settlement Agreement, U. S. Department of Justice and U.S. Consumer Product Safety Commission and Cosco, Inc. (Aug. 30, 1996) (on file with author).

30. Memorandum from Don Dillman, Cosco, Inc., to Roy Schwartzkopf, Vice President of Manufacturing, Cosco, Inc. (May 7, 1992) (on file with author). Other company employees copied on the memo were Ray Hall, Cosco, Inc.; Bob Craig, Quality Control/Products Standards Manager, Cosco, Inc.; and Brenda Smith, Customer Service Manager, Cosco, Inc.

31. Memorandum from Terry Emerson, Cosco, Inc., to Distribution List with following initials: DZ, JR, RS, BS, RH, RK, BC, TF, BS, JF (Dec. 11, 1991) (on file with author).

32. Id.

33. Dick Dahl, Strictly Confidential, MASS. LAW. WKLY., Jan. 11, 1993, at 37.

34. Id. at 45.

35. Id.

36. Id. at 37.

37. Stephen J. Kiely, Public Access to Private Lawsuits, MASS. LAW. WKLY., Feb. 19, 1992, at 18.

38. Dahl, supra note 34, at 37.

39. Richard A. Zitrin, Legal Ethics: The Case Against Secret Settlements (Or, What You Don’t Know Can Hurt You), 115 J. INST. STUDY LEGAL ETHICS 1 (1999).

40. Interview with Anonymous Source, U.S. Consumer Prod. Safety Comm’n (July 19, 1999) (on file with author).

41. Zitrin, supra note 40.

42. Id.

43. Andrew D. Miller, Comment, Federal Antisecrecy Legislation: A Model Act to Safeguard the Public from Court-Sanctioned Hidden Hazards, 20 B.C. ENVTL. AFF. L. REV. 371, 413 (1993).

44. Alison Golub, Industry Insight, SMALL WORLD, Oct. 1999, at 60.

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E. Marla Felcher, a freelance writer, lives in Cambridge, Massachusetts. This article is excerpted with permission from her book It’s No Accident: How Corporations Sell Dangerous Baby Products. © 2001, Common Courage Press.

 

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