Sunshine in Litigation Act introduced in the District of Columbia

By Sally Greenberg, NCL Executive Director

Here in the District of Columbia, we have a chance to stop the problem of secret settlements with the introduction of the DC Sunshine in Litigation Act (SILA).

The bill, which is scheduled for a hearing before Councilmember Allen’s Judiciary Committee on December 8, would require DC judges to consider public health and safety before granting a protective order, sealing court records, or approving a settlement agreement. Introduced by consumer champion and DC Councilmember Mary Cheh, the bill will ensure that injuries caused by dangerous or unhealthy products do not any longer get sealed away from the public through legal settlements.

As Councilmember Cheh said in her letter to the Council:

“This presumption in favor of public access is especially important in cases that have implications for individuals beyond the parties to litigation—in particular, cases that involve defective products or dangerous environmental conditions that pose a risk to the general public. Unfortunately, it has become increasingly common in cases like these for parties to undermine the public interest, often with a court’s endorsement, either through sweeping confidentiality clauses in settlement agreements or through protective orders issued by the court.

“Court-sanctioned secrecy in such cases can be a matter of life and death. Perhaps the clearest example of this comes from the high-profile litigation related to the opioid epidemic. As early as 2001, individuals and governments began filing lawsuits alleging that opioid manufacturers had misled doctors about the dangers of prescription opioids. However, because judges in these cases required that court records remain under seal, the compelling evidence of the manufacturers’ wrongdoing and of the dangers of opioids uncovered by the litigants was kept from the public for over a decade.”

This issue of secret settlements has a long and sordid history. Typically, a consumer sues a manufacturer for an injury or death that has resulted from a defect in one of the manufacturer’s products. The victim is suing a large corporation that can spend huge sums of money defending the lawsuit and delaying its resolution. Facing a formidable opponent and mounting medical bills, plaintiffs are discouraged from continuing and often seek to settle the litigation. In exchange for monetary damages, the victim is often forced to agree to a provision that prohibits him or her from revealing information disclosed during the case. While the plaintiff gets a respectable award and the defendant can keep damaging information from being publicized, the public remains unaware of critical health and safety information that could save lives.

Bipartisan federal SILA bills have been introduced since the 1990s, with Senator Herb Kohl (D-WI), now retired, being the prime champion, but sadly, none became law. So, we are left to legislate this important consumer protection matter on the state level.

The witnesses who testified before Congress in past years have developed a strong set of stories that underscores the importance of getting these bills passed. A shameful litany of products that have caused injury and death exists but without public scrutiny, the company continues to market and sell the product and keeps the hazards secret. At the hearings in 1990 and 1994, Congress heard testimony about silicone breast implants, adverse reactions to a prescription pain killer, “park to reverse” problems in pick-up trucks, defective heart valves, dangers from side-saddle gas tanks, playground equipment, IUD birth control devices, tires, and portable cribs.

Fast forward to 2011, the Senate Judiciary Committee hearing included many such stories of dangerous products whose hazards remained a secret, including the following.

  • Phenylpropanolamine – Known as PPA, in 1996 caused a seven-year-old boy in Washington State to suffer a sudden stroke and fell into a coma hours after taking an over-the-counter medicine to treat an ear infection. After three years in a coma, he died. The child’s mother sued the manufacturer of the medicine alleging that the stroke was induced by PPA, an ingredient with deadly potential side effects, which has since been banned by the Food and Drug Administration (FDA). Unknown to the public, similar lawsuits in state and Federal courts had previously been filed against the drug manufacturer, but were settled secretly, with the lawyers and plaintiffs subject to restrictive confidentiality orders.
  • Silicone breast implants – Information about the hazards of silicone breast implants was discovered during litigation as early as 1984, but because of a protective order that was issued when the case settled, the information remained hidden from the public and the FDA. It was not until several years and tens of thousands of victims later that the public learned of potentially grave risks posed by the implants.
  • “Park-to-reverse”’ malfunction – For many years, one car company was aware of problems associated with “park-to-reverse”’ malfunction in its pick-up trucks and quietly settled cases stemming from this alleged defect. It was not until years later that the company made a minimal effort to notify original owners by sending stickers alerting them that there was a problem. The stickers made no mention of the potential risks of severe injury or death. Unfortunately, 2.7 million of these truck owners did not receive the warning. One victim was Tom Schmidt. His parents Leonard and Arleen Schmidt testified before the Subcommittee on Courts and Administrative Practice. During their lawsuit they learned that the company had known about the problem as early as 1970 and had quietly settled cases with strict protective orders concealing information about the problem.
  • Bjork-Shiley heart valve – Over the course of several years, Bjork-Shiley heart valves were linked to 248 deaths. The manufacturer insisted on secrecy agreements when settling dozens of lawsuits before the FDA finally removed the valves from the market. The Subcommittee on Courts and Administrative Practice heard testimony from Fredrick Barbee about how court-endorsed secrecy prevented him and his wife from learning about the potential heart valve malfunction and prevented her from getting the appropriate and life-saving treatment she needed when her valve malfunctioned.
  • Dalkon Shield – In 1974, the FDA suspended use of the Dalkon Shield, a popular intrauterine birth control device. The device was linked to 11 deaths and 209 cases of spontaneous abortion. Prior to the FDA’s action, the maker of the device had settled numerous cases with strict confidentiality agreements. The manufacturer even attempted to include agreements with the plaintiffs’ lawyers that would have prohibited them from taking another Dalkon Shield related case.
  • Side-saddle gas tanks – Over the course of several years, one car company quietly settled more than 200 cases brought by victims of fiery truck crashes involving the automaker’s side-mounted gas tanks before the defect became known. It was not until 1993, when General Motors sued Ralph Nader and the Center for Auto Safety for defamation, that lawyers discovered records showing that GM had been sued in approximately 245 individual gas tank pick-up truck cases. The earliest cases had been filed as far back as 1973. Almost all cases were settled and almost all the settlements required the plaintiffs to keep the information secret.
  • Playground equipment – Miracle Recreation Company manufactured and sold a piece of playground equipment called Bounce Around the World. Dozens of lawsuits were brought against the company alleging that it was dangerous and caused serious injuries to young children, including severed limbs and crushed bones. For 13 years, the public and regulatory agencies remained in the dark about the potentially crippling equipment because the company insisted on settling lawsuits conditioned by confidentiality agreements. Approximately 80 children between the ages of four and five were seriously injured before the CPSC learned about the magnitude of the danger and the company recalled the merry-go-round
  • Collapsing decks – On June 16, 2015, shortly after midnight, five Irish J-1 visa students and one Irish-American died and seven others were injured after a balcony on which they were standing collapsed. The group was celebrating a 21st birthday party in Berkeley, California. One of those injured died of her injuries later that year. Building inspectors later found that the wooden supports holding up the balcony had been eaten away by dry rot, even though the structure was less than 10 years old. It subsequently emerged that the contractors who built the complex, Segue Construction of Pleasanton, California, had paid $26.5 million in settlements for previous defect cases, but that this information had not been available to the state construction licensing authority or to clients.

What needs to be done

Time is of the essence in getting this bill enacted in the District of Columbia. Residents of DC will not know what hazards are lurking out there until this bill passes!

Business interests have typically opposed these bills in other states and in Congress. They claim that the Sunshine in Litigation legislation will slow down the courts, discourage settlements, and launch fights over production of documents. In fact, AK, FL, LA, MT, NV, NC, OR, SC, TX, VA, and WA, have all adopted some form of SILA laws and there has been no such collapse of the legal process.

As Councilmember Cheh noted in her letter introducing the bill, “according to the legal advocacy organization Public Justice, there is no evidence that these anti-secrecy laws have discouraged settlements, exposed proprietary interests or trade secrets, or imposed burdens on the courts.”

We look forward to the December 8 hearing and having residents of the District come forward to tell members of the City Council how especially important the Sunshine in Litigation Act is to their families and communities.

The National Consumers League commends the enactment of the Inflation Reduction Act in increasing Medicare and Medicaid beneficiaries’ access to adult vaccines

August 17, 2022

Media contact: National Consumers League – Katie Brown, katie@nclnet.org, (202) 207-2832

Washington, DC – The National Consumers League (NCL) is tremendously encouraged by the enactment of the Inflation Reduction Act (H.R. 5376), which includes important provisions to increase access to adult vaccines. More specifically, the Act will provide all recommended adult vaccines to Medicare and Medicaid beneficiaries at no cost to patients.

NCL has been a longstanding advocate of expanding vaccine access to consumers, and recognizes the importance of vaccines as a life-saving, preventive public health measure. As a member of the Adult Vaccine Access Coalition (AVAC), NCL supports increasing access to all recommended adult vaccines by eliminating no cost sharing policies, which can place an immense financial burden on patients. As with any other health service, cost burden has kept both Medicare and Medicaid beneficiaries from receiving their recommended adult vaccines. Limiting vaccine access is harmful, and keeps adults from protecting themselves and their communities from preventable disease.

The crucial vaccine provisions within the Inflation Reduction Act include language from both the Protecting Seniors Through Immunization Act, and the Helping Adults Protect Immunity (HAPI) Act, both spearheaded by AVAC and advocated for by NCL. The Act will provide free recommended adult vaccines for both Medicare and Medicaid beneficiaries starting in 2023. It also mandates that under Medicare Part D, there will be no copays or any other out-of-pocket expenses for any adult vaccine that is recommended by the Advisory Committee on Immunization Practices (ACIP). In addition, Medicaid and CHIP will increase access to adult vaccines by improving federal reimbursement for providers that immunize those patients. Expanding access to vaccines through these mandates will promote vaccine uptake through the removal of cost burden for both Medicare and Medicaid beneficiaries.

The inclusion of these provisions in the Inflation Reduction Act is a critical step towards increasing vaccine access and coverage to Medicare and Medicaid beneficiaries nationwide. Its enactment will not only promote better health outcomes for consumers, but also represents a significant step towards expanding health equity. NCL appreciates President Biden’s swift action in signing this landmark piece of legislation yesterday.

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About the National Consumers League (NCL) 

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit www.nclnet.org.

Idaho Patient Act a model for other states for protecting consumers from medical debt

I spent a week last month in Boise with two members of the staff of Melaleuca—a company that makes more than 400 nutritional, cleaning, personal care, and cosmetic products—making lobbying visits to the Idaho legislature. Katie Hart and Jay Cobb work for Frank Vandersloot, CEO of Melaleuca. Vandersloot is a highly successful, conservative businessman who is committed to protecting Idaho residents from abusive medical debt collection practices after discovering that one of his employees was hit with thousands of dollars in bills—including hefty lawyers’ fees and court costs—based on a $294 medical debt that she couldn’t even identify. The stark reality is that 50 percent of bankruptcies in America are caused by medical debt. He was championing a bill called the Idaho Patient Act, House Bill 515.

Many people believe federal law provides broad protections for people in debt. While the federal Fair Debt Collection Practices Act (FDCPA), enforced by Federal Trade Commission, makes it illegal for debt collectors to use abusive, unfair, or deceptive practices when they collect debts, it doesn’t address how debts are calculated or curb predatory fees, penalties and court costs.

NCL has worked with Melaleuca for several years, first to fight a bill in Congress that would have essentially legalized pyramid scheme activity. Last October, I flew to Melaleuca headquarters in Idaho Falls to meet nearly half of the state’s legislators who came to town as part of their tour of businesses in Idaho. At that gathering, Vandersloot discussed his hope to pass a bill to address these predatory collection practices, aiming his fire at the practice of ginning up the cost to patients of medical debts with thousands in lawyers’ and court fees; often patients have no idea where the debt is from and debt collectors aren’t required to provide that information to them. The Idaho Patient Act addresses that issue.

Vandersloot also puts his money where his mouth is: not only did he propose a legislative remedy, he and his wife Belinda created a $1 million fund to provide legal counsel to Idahoans who have been hit with these attorney bills. Consumer advocates like NCL have been working for decades to curb the excesses of this industry. But to see  a conservative CEO take on this issue gives the effort a new push.

Sticking up for the little guy is not out of character for Vandersloot. He spoke with the same fervor when we worked together fighting a bill that would have legalized pyramid schemes. In neither case was there any financial reward coming to Melaleuca—Vandersloot took a stand on this issue because he felt it was the right thing to do. Though we may disagree on a host of other matters, on this we are aligned and that is a good thing for vulnerable consumers. Strange bedfellows are a big advantage when it comes to getting things done in the political arena.

Katie Hart has been wisely deployed to live and work in Boise while the legislature is in session and navigate this important bill through the complicated legislative process. She’s a smart and charismatic lawyer—she and Jay Cobb, an expert strategist, could teach Lobbying 101: they’ve met with the Idaho Hospital Association, Idaho doctors, insurance companies, and the Idaho trial lawyers and revised the bill to address their concerns. 

Specifically, the Idaho Patient Act proposes the following:

  1. All health care providers must submit all charges for procedures performed to an insurance carrier within 45 days.
  2. Within 60 days, the patient must receive a summary of services rendered during treatment and recovery, including the names and contact information for all entities that may be billing the patient separately, such as an individual doctor.
  3. All providers must then send a final statement with a total amount owed by the patient after insurance. The bill must correspond with the original list of services.
  4. Health care providers must wait 60 days after sending the final notice before charging a patient interest on an outstanding bill and hiring a collection agency. They must wait 90 days from the final statement before they take “extraordinary collection actions,” which means a lawsuit, or reporting a patient to a credit bureau for failure to pay.
  5. Finally, in medical debt cases that result in litigation, the legislation limits the amount attorney fees and costs that can be shifted to the patient to $350 for uncontested cases and $750 for contested cases. Currently, there is no official cap for fees that can be charged to delinquent patients by collection agencies and their representing lawyers.

In Boise, my first order of business was to register in the Idaho capitol building as a lobbyist, even though I was only going to be there for the day.  We wanted to do everything by the book! For $11 the Secretary of State’s office put me into the system and off we went.

Jay Cobb explained that Idaho is very conservative where rules or regulations are frowned upon. Of the 70 members of the Idaho House, 56 are Republican and some of those lean far right. 14 are Democrats. Of the 35 members of the Senate, only 7 are Democrat. The Governor is Republican, as is the Secretary of State and the Attorney General.

Katie and Jay have been working for months with elected officials, revising the bill without compromising its impact, and last week the measure was  reported favorably from the House Business Committee by a 15-2 vote (after a 5 hour hearing with many witnesses and terribly sad stories). Adding to the challenge of getting this bill enacted the second Vice Chair of the Republican Party in Idaho, and a member of the Idaho legislature were adamantly opposed to the legislation because as their egregious medical debt collection practices were epicenter of the problem.  Now the bill goes to the full House and over to the Senate.

While in the state house, we met with Senator Grant Burgoyne, a democrat who has provided legal representation to the collections industry. His observation? this bill would rein in “bad actors,” and the collections industry as a whole doesn’t oppose it. Senator Michelle Stennett, a democrat from Ketchum, told us about the challenges of getting what she thought were reasonable measures out of committee in Idaho because members are so loathe to pass any laws. The longest serving Democratic House member told us she believes the bill will pass, and the very smart and entertaining newly elected Boise Representative Steve Berch, who ran five times as a democrat in a red district and finally got elected, also predicts a positive outcome for this bill.  

To cap off the day, both U.S. Senators were in the State House and I had the chance to say hello to one of them, Senator James Risch (R-ID) and meet his DC staff.

The calculus changes when a conservative CEO with political clout backs a bill to offer protections to consumers who -through no fault of their own -have medical debt. Thanks to Frank Vandersloot, Katie Hart and Jay Cobb and the whole team at Melaleuca for making their case to the Idaho legislature so persuasively.

We hope this bill gets enacted in Idaho. If it does, the law will become a template for other states to put reasonable guardrails around collection of medical debt and offer some much-needed consumer protections. And maybe we can even hope that Vandersloot’s willingness to use his clout and bully pulpit to speak out on behalf of those who have no voice will be emulated by other CEOs.

Postscript

On March 9, the Idaho Senate passed the Idaho Patient Act 32-1. On March 16 Idaho Governor Brad Little signed the bill into law.

Congratulations to Frank Vandersloot, Melaleuca’s CEO, to his talented team of Katie Hart and Jay Cobb, and to all the members of the Idaho state legislature, who stood up for consumers and understood that one in seven Idahoans struggle with medical debt.

To quote the words on the Hanukkah dreidel, “A great miracle happened there.”

Florence Kelley is smiling down upon Congress this week

NCL’s Florence Kelley, the towering reformer who headed the League from its first days in 1899 until her death in 1932, is surely smiling upon the U.S. House of Representatives this week.

In her time, Kelley worked tirelessly to pass federal anti-lynching laws in the United States. She was a powerful voice for racial justice and was raised in a fiercely abolitionist Quaker family. But she ran into enormous opposition and was continually angered and frustrated by the inability to get the federal proposal – the Dyer Anti-Lynching Bill – through Congress.  This legislation was first introduced in 1918 by Representative Leonidas C. Dyer, a Republican from St. Louis, Missouri, in the United States House of Representatives; the Act made lynching a federal crime. The Dyer Act did pass the U.S. House of Representatives in 1922, but was halted in the Senate by a filibuster by white supremacist Southern Democrats. In fact, since 1918, there have been 200 attempts to pass federal anti-lynching bills in the U.S. Senate.

But this week something historic took place. In a rare show of bipartisan support, the U.S. House of Representatives passed the federal Emmett Till Anti-lynching Act (H.R. 35), by a landslide 410 – 4 margin, named after 14-year-old Emmett Till, who was lynched in Mississippi in 1955. I’ve been to the Courthouse where his murderers were acquitted and have seen the tiny grocery store in Money, MS where he was accused of his crime: whistling at a white woman. It took nearly 100 years to fully turn around public opinion and gain overwhelming support for the idea that lynching should be—must be—recognized as a federal crime. Something Kelley always knew and supported.

The Senate has already passed its version Justice for Victims of Lynching Act (S. 488). In fact, the Senate bill passed by unanimous consent in December 2018 and again in February 2019, but because the House and Senate bills still have different titles and numbers, additional action is needed in the Senate before the legislation can go to the President’s desk. 

House Majority Leader Steny Hoyer reports that he expects President Trump to sign the bill into law shortly thereafter.    

Lynching plagued and terrorized mainly African Americans – but also Native Americans, Jews, Asians, and many others for so many decades. It’s a form of vigilante “justice” in which victims are kidnapped and executed in public, often by hanging, as punishment for suspected crimes or as a warning to others. According to the NAACP, there were 4,472 lynchings between 1882 and 1968, most of them involving blacks killed at the hands of white mobs. The House bill describes lynching as “a pernicious and pervasive tool that was used to interfere with multiple aspects of life — including the exercise of Federally protected rights,” and prohibits “conspiracies to violate each of these rights.” 

We owe a debt of gratitude to the House sponsor Representative Bobby Rush (D-Il) and Senate sponsors Sen. Cory Booker (D-NJ) Sen. Kamala Harris (D-CA), and Sen. Tim Scott (R-SC) for their leadership.

As Senator Booker noted, “Today brings us one step closer to finally reconciling a dark chapter in our nation’s history.” “Lynchings were used to terrorize, marginalize, and oppress black communities – to kill human beings in order to sow fear and keep black communities in a perpetual state of racial subjugation. If we do not reckon with this dark past, we cannot move forward. But today we are moving forward. Thanks to the leadership of Rep. Rush, the House has sent a clear, indisputable message that lynching will not be tolerated. It has brought us closer to reckoning with our nation’s history of racialized violence. Now the Senate must again pass this bill to ensure that it finally becomes law.”

At the National Consumers League and in honor of our first leader Florence Kelley, we applaud that justice is finally done with the passage of the nation’s first law making lynching a federal crime.