Loophole in the Courts Leaves Dangerous Products on the Market; Car Tires and Contact Lens Solution Just Two Examples

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For Immediate Release: June 4, 2009

Contact: Kerri Axelrod
202-965-3500, ext. 369

Loophole in the Courts Leaves Dangerous Products on the Market; Car Tires and Contact Lens Solution Just Two Examples

Bausch & Lomb Settlement Underscores Need for Sunshine Litigation Act

Washington, DC── Over the past year, Bausch & Lomb has quietly settled over 600 contact solution lawsuits, with more cases still pending.  The contact solution was reported to cause fungus infections, blinding many patients that used the solution. 

As part of the settlement agreement, Bausch & Lomb forced all court documents in the case to remain sealed, keeping contact solution users and doctors without any knowledge of the causes of the infections.  Among the sealed documents are internal investigations into the cause of the fungus infections and details of outdated company testing procedures used for market approval-standards which are widely used by other contact solution manufacturers.

The practice of sealing court documents at the expense of patient safety will be the topic of a hearing before the House Judiciary Subcommittee on Commercial and Administrative Law today.  

Court secrecy, invoked in countless legal settlements and over reaching protective orders, prevents people from finding out about dangerous products.  Corporations use secrecy agreements as a shield when their products or services have caused harm or death.  The Sunshine in Litigation Act would give judges additional discretion to limit secrecy agreements that keep hidden important and life saving information from the public.

“Locking away court documents that contain health and safety information blinds consumers from known product defects.  Consumers have the right to know,” said Linda Lipsen, Senior VP of Public Affairs at the American Association for Justice.  “This important legislation would close the loophole in our courts and ensure life saving information is not kept hidden from the public.” 

In 2005, eight Utah State University students were killed when the rear tire in the van they were riding in separated, causing the vehicle to roll-over and land at the bottom of a 50-foot ravine. For nearly a decade, documents have remained sealed in court records which revealed that in part due to a cost cutting measure, Cooper Tires did away with the basic safety feature that would have prevented the deadly tire separations and associated rollover problems.  Only one document exposing the deadly tire defect became available in 2007, two years after the fatal Utah crash, while scores detailing the extent of the problem still remain secret. 

The attorney representing the families of the Utah crash victims, Bruce Kaster, will testify before the committee urging them to pass H.R. 1508, the Sunshine in Litigation Act, sponsored by Rep. Robert Wexler (D-FL) and Rep. Jerrold Nadler (D-NY).  A companion bill, S. 536, was introduced in the Senate by Sen. Herb Kohl (D-WI) and Sen. Lindsay Graham (R-SC). 

“Secrecy in the courtroom has resulted in unnecessary deaths across this country.  Secrecy kills and it is time to move toward an end to secrecy in American legal proceedings,” said attorney Kaster of Kaster & Lynch P.A. in prepared testimony for the subcommittee hearing. 

The testimony details examples of how manufactures know about product defects and use secrecy to evade responsibility and public accountability.  For a copy of the testimony, visit http://www.justice.org/resources/Kaster_Testimony_to_House_Committee_06_04_2009.pdf.

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