Why secrecy matters in product liability

Should evidence in product liability cases be protected, sealed, and confidential? And does this secrecy put unwitting consumers at risk?

Confidentiality may be a non-negotiable condition for a victim to secure a settlement, so granting it may be your first job if you’re a plaintiff attorney. And confidentiality clearly protects manufacturers’ reputations, so obtaining a protective order may be your first job as a defense attorney.

But keeping the dangers of a product secret can wind up causing the next consumer (and the next and the next) to sustain the same harm as the first.

“Such secrecy leads to deaths and serious injuries as the public and regulators are kept in the dark about unsafe products and toxic conditions,” writes Berkeley law school dean Erwin Chemerinsky. He argues for California to pass Assembly Bill 889, a measure to prevent confidential settlements if they detail defects that endanger the public. (The legislation includes an exception protecting companies from having to divulge trade secrets.)

Where the rubber meets the road

A relevant example involves certain Goodyear tires manufactured between 1996 and 2003 that failed when mounted on RVs. A 2003 case centers on a blowout that led to injuries for four family members on their way to Disney World.

The National Highway Traffic Safety Administration opened an examination of the tire defects only in December 2017 after a court order released Goodyear records to the agency, including reference to one claimed death and 19 claimed injuries related to the particular tires. What took so long? NHTSA’s published summary notes  that ”data produced in litigation [had been] sealed under protective orders and confidential settlement agreements, precluding claimants from submitting it to NHTSA.”

Meanwhile the Center for Auto Safety has filed a freedom of information act request to make “secret” documents related to the tires public.

Jalopnik, an auto industry news and opinion site, did an extensive investigation into the Goodyear issue, counting at least 41 suits filed against the company related to the tire: “Taken together, the lawsuits and court filings lay out an effort by Goodyear that allowed the company to keep a lid on evidence for nearly 20 years of the tire’s deadly misuse.”

Secrecy, of course, goes far beyond tire cases to affect all sorts of products including medicine, weapons, and toxins – as well as seemingly benign products that somehow go wrong.

The flipside

Which brings us to the question: Should all the evidence in product liability cases be public all the time?

Defense lawyers tend not to think so. They caution against plaintiffs “stacking the deck.”

“In the past, defendants in product liability lawsuits generally had a significant advantage in their knowledge of the product, its design, and performance,” write John R. Gerstein and Frederick J. Fein of Clyde and Co. LLP. “Now, plaintiffs have access to extensive databases of documents from prior or existing litigation. Knowledge of the product – and claims alleged in other lawsuits — no longer resides principally with manufacturers.”

They advise defense counsel to avoid the pitfalls of plaintiff information sharing by:

• Seeking protection of proprietary and confidential documents.
• Limiting the scope of discovery to the product, plant, and time frame at issue.
• Ensuring product documentation is complete, organized, and searchable.
• Properly preparing witnesses to tell a clear, consistent story from deposition to trial (and other trials, concurrent, and future).
• Challenging expert witnesses if they try to introduce information from unrelated litigation.

As with so much in the law, the answer lies in balance. The elements that need to be balanced include public safety, plaintiff justice, and due process for the product maker. Where the optimal balance lies depends on who you are – the injured plaintiff, the manufacturer, or the next family headed to Disney.