Sunshine in Litigation Act introduced in the District of Columbia

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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.

President Trump’s Executive Order threatens rules that have saved millions of lives – National Consumers League

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The Trump Administration is waging war on regulations. The President signed an Executive Order this week demanding that with every new regulation, two must be rescinded. This is one of the most arbitrary and dangerous edicts ever sprung on Americans. We call on Mr. Trump to rethink this reckless Executive Order.

The premise of this edict is that regulations are red tape inflicted on well-intentioned corporations by bureaucrats who have nothing better to do than entangle business in useless red tape. That premise is false. Regulations ensure the safety and health of the public, including consumers of all ages. They provide critical protections for babies, toddlers, adult consumers, and workers; they protect our marshlands, wetlands, and wilderness; keep our air and water clean and healthy; ensure that we respect animals and wildlife, and so much more. To propose a blanket policy of eliminating two for every new one without knowing why is foolhardy.

A case in point: this week, three people testified at a hearing organized by Senators Richard Blumenthal (D-CT), Ed Markey (D-MA), and Bill Nelson, (D-FL), and moderated by Rachel Weintraub of the Consumer Federation of America. Relatives from two families who had lost a child and another with a near miss caused by dangerously designed products. Regulations are intended to address these gaps.

Think slats in cribs that were so wide that kids heads got caught and they strangled. Not anymore due to regulations.  Think regulations requiring child proof caps on bottles of bleach or medicine . Thousands of kids are alive today because of these regulations. The truth of the matter is–regulations save lives.

One of the witnesses at the hearing rescued his daughter from what could have been a fatal accident. Turns out, the company had already had 80+ incidents, but denied there was a problem when the Dad called to report it.  A mother told of her infant son’s death due to a supplemental mattress in a portable crib that suffocated him. The Grandfather of a girl strangled by a cord in a window blind – a hazard consumer advocates have been in trying to address for years – is one that has killed too many children. He talked about being pro-life, just like VP Mike Pence, but wondered protecting the kids already here isn’t getting the same attention.

Regulations don’t come out of left field. I’ve read and commented on scores of them. They are vitally important, developed in a thoughtful and deliberative manner under the Administrative Procedures Act; they require open comment periods and are frequently revised based on feedback from industry and consumers. Most require a cost-benefit analysis

The National Consumers League has a long record of advocating for consumer protections on products and in the workplace. Safe design of children’s toys and nursery items, such as cribs and high chairs, keep children and teens from working in the fields, where they are exposed to pesticides, heat, and tobacco poisoning. NCL supported regs to reduce worker exposure to coal or silica, which causes illness and sometimes death. We support the CPSC’s proposal for newly designed table saws that will prevent the 35,000 amputations each year from these devices. New technology can prevent nearly 100% of these excruciating injuries that cause lifelong pain and disability. Why wouldn’t we jump at this chance to have this groundbreaking injury prevention?

Let’s imagine a scenario in which we had no regulations to ensure our air quality. Would American cities become like those in India and China where citizens can’t go outside many days? Or imagine that we had no regulations on water quality. Our children might ingest high levels of lead or chemical runoff, leading to high incidences of cancer, which is exactly what happened to the residents of Woburn, MA because of industrial run off in their water. Rather than repealing these vital regulations, Americans should be grateful that we have a democratic process for keeping our families safe.

Below are examples of but a few regulations that save and protect consumers’ and workers’ lives:

Consumer regulations

  • The Refrigerator Safety Act (1956): This rule required all refrigerator doors to open from the inside to prevent children from being trapped and suffocating inside of them. The number of children suffocating in refrigerators has dwindled to almost none since refrigerators were redesigned under this rule.
  • Automatic garage door sensor (1990): A regulation that required garage door sensors preventing children from being entrapped. Since 1982, the Consumer Product Safety Commission (CPSC) had reports of 54 children between the ages of two and 14 who died after becoming entrapped under doors with automatic openers. There have been zero reports of children becoming entrapped under garage doors since this rule went into effect.
  • Trunk Release (2001): During July-August 1998, at least 11 American children died in three separate incidents of car trunk entrapment. Many individuals have died entrapped in trunks over the decades. Consumer advocates succeeded in getting florescent yellow trunk releases required in every vehicle model in the years after 1998. Since trunk releases have been installed, advocates haven’t found a single case of death in cars where those releases were put in. The cost of these trunk releases is de minimus.

Worker regulations

  • Hard hats: An OSHA regulation requires hard hats to be worn in workplaces where there is a potential for injury from falling objects, such as in construction zones or other hazardous locations. There have been many cases in sectors such as industrial, construction, and mining, where hard hats have prevented workers from suffering serious head injuries and sometimes-fatal accidents. According to the Bureau of Labor Statistics, in 2011 almost 393 fatal injuries were caused by exposure to falling or flying objects and equipment at workplaces. Hard hats generally cost less than $10 each.
  • Rule to reduce miners’ exposure to respirable coal dust (2014): According to data from the National Institute for Occupational Safety and Health (NIOSH), coal workers’ pneumoconiosis (also known as black lung) was a cause or contributing factor in the death of more than 76,000 miners since 1968. Caused by breathing unhealthy coal mine dust, this disease has cost more than $45 billion dollars in federal compensation benefits. After the 2014 rule’s enactment, we’ve seen the lowest fatal and injury rates in mining history.
  • OSHA rule requiring safety belts and harness working on stored materials in silos, grain bins, or other similar storage areas: Three workers (from Iowa, Michigan, and North Dakota) were killed in 2011 when they were engulfed (buried or trapped) by grain while on the job. In Texas, a fourth worker was also buried in grain, but was rescued and survived. Suffocation from engulfment is a leading cause of death in grain bins and the number of these deaths continues to rise. In fact, the number of deaths more than doubled between 2006 and 2010. These fatalities are preventable if employers follow work practices and provide training and equipment as required by OSHA’s Grain Handling Facilities standard, 29 CFR 1910.272.

Regulations save lives. Let us not throw the baby out with the bathwater. If there are unnecessary regulations, let the President and his cabinet secretaries tell us why and make their case. No one wants unnecessary red tape, but if this Executive Order is an excuse to repeal safety and health protections, that’s not okay, and all Americans – including the most vulnerable consumers – our children – will pay the price.

While Congress stagnates, your tax dollars are hard at work – National Consumers League

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Here’s a thought. When you’re feeling disheartened about partisan bickering in Congress, think about this: your tax dollars are supporting the work of outstanding, hard-working, and knowledgeable public servants who’ve got your back. Last week, my colleague Kelsey Albright and I met with an EPA staffer who gave us a crash course on food waste. Nearly 30% of the food US agriculture produces is wasted!

Not only is she knowledgeable about the subject, she also helped us understand the part played by each sector in the food-supply chain, including us consumers. NCL is considering what we can do to help address this important problem.

Later that day, Rebecca Burkholder, Ayanna Johnson, and I met with a cheerful and equally hard-working team at FDA to talk about NCL’s Script Your Future medication adherence campaign. FDA supports the campaign, which is complementing its mission of ensuring that the prescription and OTC drugs that Americans take are safe and effective and that consumers understand how to take them properly. They are doing a lot at FDA with very limited staff and resources,

On March 11-12, Rebecca will participate in a two-day meeting convened by CERTs, the Agency for Healthcare Quality and Research’s Centers for Drug Education and Research in Therapeutics. The meeting will focus on what’s working to boost adherence. The AHRQ staffer who organized the meeting, herself a physician, has generously invested time and energy in the issue and in Script Your Future.

We could all list many more federal government employees who exhibit the same traits: strong commitment to public service, deep substantive knowledge coupled with a sophisticated understanding of their issue’s political implications, an enthusiastic willingness to engage with consumers and with stakeholder groups like NCL.

Meet NCL’s new public policy intern – National Consumers League

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Hello readers, my name is Evelyn Wong and I’m the new intern here at NCL. I’m a Political Science major from the University of the Pacific (UOP) in California and I’ve decided to trade sunshine and temperate weather for the snow, wind, and rain of DC. I actually love the weather so far, because I think all Californians are enamored with snow. We’re also very covetous of rain right now!   

I’m here as part of the Washington Semester Program of American University. It’s a program that all my professors extolled as “life changing” and “an unforgettable experience.” I had actually found out about NCL and had met one of the staff, Lucinda Cassidy, at AU’s internship bazaar.

As part of the Justice and Law program at American, I am interested in a wide range of public policy issues, which is why I was drawn towards the internships of advocacy organizations like NCL. In particular, I’m interested in public policy areas that are focused on protecting consumer and workers’ interests . Since everyone is in this category, it is clear that the NCL plays a crucial role that affects everyone’s lifestyles and decisions. I am happy to be a part of such an important mission and I hope to contribute to their efforts while I’m here.

50 years after LBJ declared a War on Poverty, progress but more work to do – National Consumers League

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In his 1964 State of the Union address, President Lyndon Johnson declared a war on poverty. Today, Martin Luther King Day – a day to celebrate equality, justice, and progress – we reflect on the status of struggling families. While there is still much work to do to ensure every American worker has enough money in her pocket to pay the bills, provide for for her family, and guarantee a stable household, we have made great leaps in the last 50 years. 

Johnson put in place a series of anti-poverty programs – VISTA (Volunteers in Service to America), Job Corps, Head Start, Legal Services, and the Community Action Program the likes of which we’ve never seen again. These programs significantly tempered the impact of poverty for millions of Americans. Indeed, in the decade following the 1964 introduction of the war on poverty programs, poverty rates in the U.S. dropped to their lowest level since comprehensive records began in 1958: from 17.3 percent in the year the Economic Opportunity Act was implemented to 11.1 percent in 1973. They have remained between 11 and 15.2 percent ever since.

We can be proud that the legacy of Frances Perkins and the New Deal programs of FDR’s administration – Social Security and Medicare and more recently Medicare Part D which covers the cost of medications – have vastly improved the lives of elderly Americans: the most dramatic decrease in poverty is among Americans over 65, which fell from 28.5 percent in 1966 to 10.1 percent today.

Hubert Humphrey, a Minnesota Senator and the man who served as Vice President to LBJ, talks in his spellbinding book “A Public Man” about making a real dent in poverty with these programs. Sadly, the Nixon administration that came into power after LBJ’s reign dismantled many of them. There was a tide that swept over America that offered a few egregious examples that these programs made people “too dependent on government” and unwilling to work.  Yes, there are some lazy people looking for a handout; but there are far more who use these safety net programs to feed their families and get back on their feet so they can work and be productive members of society.

Today the biggest drag on the economy and the notion that “a rising tide lifts all boats” is that the gains in GDP have landed disproportionately in the wallets of the top 1 or 2 percent whereas in the 60s and 70s these gains were shared far more broadly. The number of union jobs that offer good wages and benefits has fallen dramatically. Unionization of the workforce today is at its lowest level since 1916, when it was 11.2 percent. Sadly, our labor laws do not favor union organizing and there’s been a steady drumbeat by the business community, including the Chamber of Commerce and the National Association of Manufacturers, against ceding any power to unions to organize and negotiate on behalf of workers.

So, the War on Poverty, though successful in offering relief programs to the poor, has been undermined by the lack of decent jobs and poor educational opportunities. There’s a little light at the end of the tunnel, however. I’m personally thrilled and delighted to see the wave of state laws increasing minimum wage and the bipartisan support from red and blue states alike in favoring these increases. More than 70 percent of voters in March of this year told Gallup pollsters they would like to see the minimum wage increase. By November that percentage had risen to 76 percent including 58 percent of Republicans supporting an increase.

If the Fair Minimum Wage Act of 2013 is passed into law, 30 million Americans will see an increase in their paycheck. Providing an increased minimum wage may not be a panacea for these struggling Americans, but it will go a long way toward lifting families out of poverty.  It’s good for kids too, because they suffer the most when there’s not enough food in the cupboard. President Johnson had it right – we have to treat the problem of poverty in America like a war –and many strategies need to be deployed to combat the problem. With the recent gains in minimum wage in states around the country and momentum building, we may indeed be opening the next chapter in President Johnson’s War on Poverty.

Weeding through chatter about the ‘ObamaPhone’ – National Consumers League

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You may have heard about the federal Lifeline subsidy program in the news recently. This program has been under scrutiny by Congress, and many believe that the program should be shut down. Unfortunately, there has been a great deal of misinformation circulating about the program – dubbed by many as the “Obamaphone.”

To help set the record straight about the program, let’s take a look at what people are saying:

“[Lifeline] is a government run, taxpayer-funded program that’s running wild and costing more and more.”

–Official Web site for Congressman Tim Griffin (R-AR).

Fact: Lifeline is managed by the Universal Service Administration Company (USAC), a federally-chartered not-for-profit corporation that administers money for a variety of telecommunications subsidy programs. In addition to Lifeline, USAC manages programs that make telephone service available in rural areas, provide health care in rural areas and connects schools and libraries to broadband.

Fact: Lifeline is funded by telecommunications companies that provide interstate services, including long-distance telephone companies, wireless carriers and VoIP carriers. These companies are allowed to pass along the cost of this program to their end-users through a line-item fee on customers’ bills (usually listed as “USF Fee”).

“This phone program has expanded far beyond its original intent, and as so many middle class Americans struggle underneath this economy, it is really offensive for Washington to make taxpayers pay for free cellphones for others,’”

–Senator David Vitter (Louisiana) in a May 2013 press release.

Fact: The Lifeline program has grown considerably since the program was expanded to subsidize wireless phone service in addition to landline phone service. However, recent reforms have reduced spending by $178 million and the FCC estimates that these reforms will save $2 billion by the end of 2014.

Fact: Whether one considers a fee like the Universal Service Fee to be a “tax,” or not, the Lifeline program helps millions of consumers afford one of the basic necessities of modern life – access to telecommunications. According to a 2011 study by the New Millennium Research Council, (49 percent) of Lifeline subscribers said the cell phone had “improved their financial situation by helping them find or keep work.” For those working or looking for work, the numbers were higher (63 percent); surprisingly, even the retired (39 percent) and disabled (38 percent) said the phone had helped improve their financial situation. Significantly more African Americans (57 percent) than white Americans (43 percent) said the phone had improved their financial situation. According to the NMRC study, the LifeLine wireless subsidy generates a return $1.08 in economic activity for every dollar invested in the program.

“Obama claims a small cut to federal means losing local police and firefighters, but he’s spending $2.2 billion to give away ‘ObamaPhones.’”

—Tweet by Congressman Steve Stockman, Texas (@SteveWorks4You), February 22, 2013

Fact: The Lifeline program is financed by the Universal Service Fee on telephone bills, not by annual budget appropriations. Even if the Lifeline program were ended, it would not affect federal budget appropriations for local police and firefighters not would it reduce the federal budget deficit or the national debt.

“Nobody should be talking about tax hikes when govt is spending taxpayer dollars on free cell phones.”

—Tweet by House Speaker John Boehner, Ohio (@SpeakerBoehner), February 19, 2013.

Fact: The Lifeline program subsidizes telephone service, not the telephones themselves. Companies that offer “free” cell phones recoup the cost of the handset through profits generated by the subsidized cell phone service.