When federal prosecutors drag corporations into court for business practices that hurt or even kill people, it's routine for corporate counsel to ask to have the evidence in the case sealed, and for prosecutors to agree, and for judges to rubberstamp the deal, meaning that the public never finds out about the risks around them.
Nowhere is this more vivid than in the history of the opioid epidemic, which was first subjected to legal action in 2001, when Purdue Pharma was tried in West Virginia, in a case that revealed that the Oxtcontin manufacturer knew that its products were dangerous, and had gone on to present a fraudulent picture of the safety of opioids in its marketing to doctors and patients.
In 2004, Judge Booker T Stephens reviewed this evidence and accepted Purdue's request to seal it. Purdue settled with prosecutors, but none of the evidence leading to that settlement was made public. The Oxycontin death toll mounted for the next 12 years while, more than a dozen judges repeated Stephens's sin, hearing and then sealing evidence that the public desperately needed to see. 12 years later, the evidence was leaked to the LA Times. By then, 245,000 Americans had died from opioid overdoses.
Reuters has published a must-read report on the widespread practice of sealing court documents relevant to public safety and health in product liability cases, finding that about half of the largest cases heard in the past 20 years had their evidence sealed, in cases involving "drugs, cars, medical devices and other products." This is just the tip of the iceberg, only tracking federal cases -- the problem is likely even worse at the state level.
In most states and most federal divisions, the law requires judges to consider requests to keep information sealed, including for reasons of trade secrecy. Judges are supposed to weigh these requests against the public's right to know, and to publish their reasoning whatever they decide. However, it's far more common for judges to simply agree with these requests, and then to break the law by failing to publish their judicial opinion on the merits of the plea ("In 85 percent of the cases where Reuters found health and safety information under seal, judges provided no explanation for allowing the secrecy"). Stephens did not publish his reasoning for keeping Purdue's damning evidence a secret.
Prosecutors are also part of the problem. They know that the corporations they're trying to bring to justice have deep pockets and can tie up prosecutorial time with lengthy legal challenges over opposition to motions to seal, and so they often accede to these demands. A few states have laws prohibiting this kind of secrecy, but attempts to legislate the limits on the federal level have been stymied by all-out corporate lobbying blitzes.
Some agencies -- like the National Highway Traffic Safety Administration -- have issued guidance to judges about when public safety information should not be sealed, but the FDA has not done so, and insists that there is no need to do so, because the current system has "the tools to keep patients and consumers safe."
Some regulators have made efforts to counter the potential harm of court secrecy. In 2016, the National Highway Traffic Safety Administration (NHTSA) issued guidance for judges on allowing exemptions in secrecy orders so that lawyers can share health and safety records with the agency. The Consumer Product Safety Commission followed suit.
The FDA has not. In a statement to Reuters, the agency said the current regulatory regime gives it “the tools to keep patients and consumers safe.” <> The year after NHTSA issued its guidance, the agency opened an investigation into possible safety defects in Goodyear tires on thousands of motor homes. In its December 2017 announcement, the agency said the inquiry, which is continuing, was made possible, in part, only after an Arizona judge allowed the release of the tire maker’s records, including insurance claims and complaints data.
How judges added to the grim toll of opioids [Benjamin Lesser, Dan Levine, Lisa Girion and Jaimi Dowdell/Reuters]
(via Naked Capitalism)