How Secrecy in Courts Affects Product Safety Regulation

An in-depth report by Reuters talks about how the Consumer Product Safety Commission (CPSC), a regulatory federal agency tasked with protecting Americans from dangerous products, allows product manufacturers to be secretive about information that is crucial to consumer safety. This often means that the only way consumers can learn about a defective product that poses a threat to themselves and their families is from the evidence produced in product liability lawsuits. However, that evidence is hidden behind a wall of secrecy, inaccessible to consumers.

While most regulators have their own reporting systems for conducting oversight, their databases can be vast and unwieldy, filled with potentially millions of complaints and reports from manufacturers regarding safety concerns, injuries and deaths. These reports also have inaccuracies and inconsistencies. Not all consumers even know they can file complaints and companies regularly violate reporting requirements mandated by the law.

The ‘Confidentiality’ Excuse

Reuters has commendably documented the thick blanket of secrecy that covers product liability litigation in the United States. In just a handful of cases over the last several decades, hundreds of thousands of people were killed or injured by defective products (cars, drugs, guns, etc.) while information about the risks posed by these products was hidden from consumers and regulators, often for years, behind broad protective orders.

Such orders are meant to protect specific information such as medical records and trade secrets. So companies can designate a lot of material as “confidential” including internal emails, memos, data, research, meeting minutes, sworn depositions, etc. This secrecy continues long after the life of the case even though court documents are supposed to be public.

How GM Held Back Information

In its analysis of some of the largest product defect cases consolidated in federal court over the last two decades, Reuters found 55 in which judges sealed information that would have been relevant to public health and safety. For example, a 2015 deferred prosecution agreement between General Motors and federal prosecutors shows the automaker scrambled to make sense of mounting reports of deaths and injuries in cars with ignition defects and in the process, kept regulators and the public in the dark about the switches even after discovering that they were defective and were causing serious injuries and fatalities.

The National Highway Traffic Safety Administration (NHTSA) received complaints that Saturn Ions were stalling back in 2003 and that their airbags were failing to deploy in collisions. But a recall did not come until 2014. That’s because NHTSA gave automakers a lot of leeway in how they reported certain information regarding safety risks. There were lawsuits and settlements regarding these vehicles, but a lot of the information was sealed because they were confidential settlements, details of which were not available to the public.

Consumers Have the Right to Know

The product defect attorneys at Bisnar Chase have been vigorous advocates of disclosing the truth to the public, especially when it came to information that concerns the safety of consumers. We absolutely understand that business information and trade secrets need to be protected. Businesses have the right to keep some of this information confidential. However, that does not give them the authority to hide crucial information regarding defective products. By doing so, they are withholding critical product safety information from consumers putting us, the consumers, directly in harm’s way. They are putting profits over the safety and well-being of consumers.

Source: https://www.reuters.com/investigates/special-report/usa-courts-secrecy-regulators/