The U.S. Senate Judiciary Committee has reportedly approved bipartisan legislation (S. 623) requiring judges who oversee product liability suits to consider public health and safety concerns before sealing legal agreements and settlements. If such deals had been disclosed, the public would have known about dangers purportedly associated with a variety of products, including medical devices, pharmaceuticals, side-saddle gas tanks, and tires, according to the bill’s sponsor, Senator Herb Kohl (D-Wis.), who first introduced such legislation nearly 20 years ago. Kohl has announced his intention to retire at the end of his fourth Senate term, which will expire in January 2013.
“Had information about these harmful products not been sealed by court orders, injuries could have been prevented and lives could have been saved,” Kohl said to the committee, which approved the “Sunshine in Litigation Act of 2011” in a 12-6 vote. Companion legislation has evidently been introduced in the U.S. House of Representatives.
The legislation has its critics. In a letter to Senators Orrin Hatch (R-Utah) and Chuck Grassley (R-Iowa), L. Joseph Loveland, chair of the American College of Trial Lawyers’ Federal Rules of Civil Procedure Committee, claims that the bill would establish “an undesirable precedent by circumventing the process” Congress established for amending the Federal Rules of Civil Procedure. As drafted, the law “would unduly restrict the discretion of trial judges to regulate civil litigation and would impose substantial new fact-finding burdens on the courts, without a demonstrated need for those changes,” Loveland wrote. He also noted that that protective orders governing discovery or confidentiality are not frequently abused, nor do “they serve to keep private information that is important to protecting public health and safety.” See Senator Herb Kohl Press Release and Product Liability Law 360, May 19, 2011.