Eight Deadly Secrets—How Court Secrecy Harms Families and Children

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Eight Deadly Secrets—How Court Secrecy Harms Families and Children  

(1) Cooper Tires

Johnny Bradley became a widower on July 14, 2002, as a result of a rollover accident caused by tread separation in his Cooper tires. While litigating Johnny’s case, his attorney uncovered documented evidence of Cooper tire design defects. These documents had been kept confidential through protective orders in previous lawsuits against Cooper and Johnny’s attorney had to fight numerous uphill litigation battles to gain access to them. He only knew about these documents in the first place because he specialized in tire litigation. Prior to the end of his federal trial, Cooper Tires settled with Johnny Bradley 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 until the next tragedy. Civil Action No. 4:03cv94LN (S.D. Mississippi).

(2) Zyprexa

In 2005, drug giant Eli Lilly paid $700 million to settle 8,000 state and federal lawsuits filed by patients who had taken Zyprexa, a Lilly medicine used to treat schizophrenia and bipolar disorder. Patients taking Zyprexa experienced inordinate weight gain and developed dangerously high blood sugar levels – some even developed diabetes. Zyprexa only agreed to settle these cases after all discovery documents were returned, and parties to the settlement agreed not to discuss the cases publicly.  The public did not learn about dangerous Zyprexa side effects until two years later, when the New York Times published a related article after receiving some leaked documents. Lilly subsequently settled an additional 18,000 cases for $500 million.

(3)  Seroquel
After two years of expensive and time-consuming litigation, recently released AstraZeneca documents reveal that the pharmaceutical giant had known about the dangerous side effects of its psychiatric drug Seroquel since 2000.  While AstraZeneca continued marketing Seroquel as safe, the corporation buried unfavorable studies linking the drug to diabetes and major weight gain.  According to the previously sealed documents, sales representatives were even directed to assuage doctors’ fears about patient weight gain by emphasizing that study results showed no causal link between diabetes and the drug.  Doctors even switched their patients from Zyprexa to Seroquel, not realizing that Seroquel caused similar harmful side effects.  Meanwhile, Seroquel topped $4.4 billion in 2008 sales. 

(4) Cessna Caravan Airplanes

A trio of successful Texas businessmen died in late 2003 when their Cessna Caravan airplane crashed as a result of the plane’s flawed deicing mechanism.  The almost-new aircraft was being flown by a professional pilot.  Only through litigation did their attorneys fortuitously uncover previously concealed evidence documenting the Cessna deicing defect and the sloppy testing that preceded certification.  All documents were produced under a confidentiality order.  The case ultimately settled in federal court but under the confidentiality order, Cessna demanded return of the key documents which were never made public.  Most of the key internal documents have never been seen by the FAA or the NTSB.  One key document suggested not telling the FAA about certain internal testing data to avoid the risk that the FAA might require recertification of the Caravan.  Shortly after the Texas settlement, Cessna began discussing a change in the deicing design such that new production aircraft would be equipped with a system similar to that advocated by the families and their experts. 

Unfortunately, Cessna has still not addressed the deicing defect in existing aircraft, many of which are still in use today.  Furthermore, subsequent litigation has revealed additional defects in the aircraft's stall warning system that make the aircraft even more susceptible to sudden loss of control when flying in icing conditions.  The families' attorneys believe that the FAA’s restriction of the Caravan to flight in “light" icing misleads consumers about the safety of the plane.  The National Transportation Safety Board reports 6 fatal crashes and 1 serious injury crash since 2003 which, the families' attorneys say, involve the same defect as that in the Texas litigation.  The most recent Cessna Caravan crash which appears to result from the defects in the deicing system occurred October 7, 2007, near Naches, Washington and killed the pilot and 9 passengers.

(5) PPA in OTC Children’s Medicine

Mrs. X gave her 7 year-old-son an over-the-counter children’s medicine to treat an ear infection. Hours after taking the medicine, Mrs. X’s son experienced a sudden hemorrhagic stroke and fell into a permanent coma. Her son died after three years of being on life support and many expensive but failed rehabilitation attempts. The stroke was induced by phenylopropanolamine, an ingredient in the children’s medicine that was later banned by the FDA. Similar lawsuits in state and federal courts had previously been filed against the drug manufacturer, but these lawsuits were settled secretly. Her son’s death occurred in a state that significantly capped damages, which limited Mrs. X’s financial ability to take this case to court and forced her to accept a secret settlement in 2005. The secrecy provision is so broad that she cannot disclose any details related to her lawsuit.

(6) Ford Firestone Tires

19-year-old college scholarship student Daniel Van Etten was killed on March 9, 1997 when the Firestone tire on his vehicle separated. Knowing it would take years to resolve her son’s case in trial, Mrs. Van Etten accepted a settlement with Firestone in federal court that required all of the discovery documents to be kept confidential. Firestone did not recall the 6.5 million defective tires until three years later. By October 2001, the National Highway Traffic Safety Administration (NHTSA) “determined that Firestone shredding tires had caused at least 271 fatalities, most of which involved cases settled secretly.

(7) Defective Baby Crib

Linda Ginzel and Boaz Keysar’s son Danny Keysar strangled to death when his Playskool travel lite crib collapsed in May of 1998. Danny’s parents later learned that three prior lawsuits involving the same product defect had been settled secretly. Crib manufacturers Kolcraft and Hasbro also offered Danny’s parents a settlement with a secrecy provision but they fought successfully to deny the manufacturer’s request for secrecy. Danny’s family reached a $3 million settlement agreement in 2001. 

(8) Clergy Abuse of Children

Prior to the Boston Globe’s 2002 expose on the Boston Archdiocese’s clergy abuse cases, literally thousands of secret settlements and sealed court files allowed religious organizations to conceal incidents of child sexual abuse by their clergy. Attorney Mitchell Garabedian has handled clergy sex abuse since the 1980s, settling as many as 30 of these cases confidentially. Roderick MacLeish, Jr. also estimates that he represented around 400 alleged clergy abuse victims since 1991 – around 200 of these cases were settled confidentially. Some have criticized that signing secret settlements “prevented the scandal from erupting into public view sooner.

 

Sources:
1. Alex Berenson, Lilly Settles With 18,000 Over Zyprexa, N. Y. Times, Jan. 5, 2007,
http://query.nytimes.com/gst/fullpage.html?sec=health&res=9F00E5DB1430F936A35752C0A9619C8B63; Richard Zitrin, Secrecy’s Dangerous Side Effects, L. A. Times, Feb. 8, 2007, http://www.latimes.com/news/opinion/la-oe-zitrin08feb08,0,6742226.story?coll=la-opinion-rightrail. See also Court Secrecy's Drug Connection: Secret Settlements Used to Suppress Information on Public Health and Safety Hazards article on AAJ Web site: http://www.justice.org/pressroom/facts/secrecy/prozac.aspx (recounting how court secrecy was used to conceal the settlement of a Prozac lawsuit).

2. Keith Bradsher, S.U.V. Tire Defects Were Known in ’96 But Not Reported, N.Y. Times, June 24, 2001, http://query.nytimes.com/gst/fullpage.html?res=9A03E2D61230F937A15755C0A9679C8B63 (last accessed Oct. 24, 2007).

3.  Richard Zitrin, The Judicial Function: Justice Between the Parties, Or a Broader Legal Interest?, 32 Hofstra L. Rev. 1573, 1567 (2004).

4.  Jonathan Eig, How Danny Died, Chicago, Nov. 1998, http://www.kidsindanger.org/news/news_detail/1998_chicmag.pdf (last accessed Oct. 24, 2007); Also see Danny’s story on the Kids in Danger website at http://www.kidsindanger.org/pressroom/releases/20011206_pr.pdf (last accessed October 24, 2007).

5. Sacha Pfieffer, Crisis in the church;  Critical Eye Cast on Sex Abuse Lawyers Confidentiality, Large Settlements Are Questioned, The Boston Globe, June 3, 2007.


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