Some secrets can kill


What you don't know won't hurt you.

Right?

Wrong, cliché breath.

Take it from someone who used to drive a 1972 Ford Pinto with well-worn Firestone 721 tires. Picture it: Slim Pickens astride a ticking napalm bomb hurtling down the freeway.

Manufacturers have for years been able to conceal from consumers their defective goods with the aid of willing accomplices in government agencies and the courts.

There had been more than 100 lawsuits involving Firestone tires separating and causing accidents, but the standard practice was for the company to settle for some undisclosed amount of money and have the court records sealed, keeping the public and watchdog agencies in the dark.

Only after a Houston television station reported on the number of rollover accidents involving Ford Explorers equipped with Firestone tires did the National Highway Traffic Safety Administration take notice.

Pharmaceutical companies have been known to claim deaths that occur during clinical trails should be confidential to protect company trade secrets. Now, is that a trade secret to keep competitors from stealing the formula for a lethal drug or a trade secret to keep to keep doctors and patients and investors from knowing the death toll?

The Catholic Church secretly settled dozens of cases involving pedophile priests, simply moving the priests from parish to parish and keeping parishioners ignorant of the potential danger.

General Motors secretly settled a number of lawsuits over its side-mounted pickup gasoline tanks that reportedly exploded on impact, causing as many as 750 deaths. The trucks continued to be manufactured for 15 years before the public was made aware.

Comparison to a local court case is unavoidable.

This past week, Clark County District Judge Sally Loehrer refused to unseal testimony given in open court about defective Goodyear Load Range E tires, because the company invoked a claim that the testimony would reveal trade secrets.

NHTSA has said that the series of tires, manufactured between 1991 and 1999, resulted in at least 18 deaths and 158 injuries, many occurring after the company was warned the tires might be defective.

Earlier this year, a jury awarded $30 million in damages in a case in which a Goodyear tire blowout caused a rented van to overturn, killing three of the 11 passengers and leaving one with severe brain damage that will require lifelong medical care.

But when the attorney for the plaintiffs, Matthew Callister, asked the court to unseal the testimony of five Goodyear employees, Judge Loehrer declined, letting stand the company's claim of the need to protect trade secrets.

In his motion to keep the testimony sealed, Goodyear attorney Daniel Polsenberg noted that Nevada court rules allow courts to keep confidential certain trade secrets if the company derives independent economic value from the information not being generally known to the public or competitors who could obtain economic value from its disclosure.

Callister's rather snide but quite on-point argument against that contention was: "Goodyear may argue that the information about the tire defects does derive value, in that by keeping it secret, potential buyers are not scared away and the brokers on Wall Street will not start dumping Goodyear stock. If this argument were to have any force, however, then every bit of information that any company has about its defective products would be privileged 'trade secrets.' Given the overriding health and safety concerns of the public, this cannot be the law."

The company is appealing the damage verdict to the state Supreme Court, and it is possible that court may address the secrecy imposed by Loehrer.

This comes on the heels of a Review-Journal series about 115 civil court cases since 2000 that have been sealed by Clark County judges. The series has prompted the state Supreme Court to appoint a committee to draft rules and criteria for sealing cases. That panel met Monday and assigned a group to draft new court rules with specific directions for openness being the default setting.

Loehrer's ruling is one more grain piled on the scales of justice, tipping them in favor of public access.

Ignorance can kill, and the courts should never be an accomplice before the fact.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and public access to information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.

 

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