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Tire Recall Fuels Drive to Bar Secret Settlements

Although lives may be in jeopardy, court records are often sealed when firms resolve product liability cases. Some lawmakers call for banning the practice when public safety is at risk.

September 10, 2000|DAVAN MAHARAJ | TIMES STAFF WRITER

The pervasive practice of sealing product liability settlements from public view, even when doing so could jeopardize lives, is coming under new scrutiny as a result of last month's Firestone tire recall.

The recall of 6.5 million tires came only after accidents and deaths had piled up for eight years. Many of these cases were kept out of the public eye because Bridgestone/Firestone Inc. and the Ford Motor Co., without acknowledging liability, quietly settled many lawsuits resulting from tire-related crashes.

Typically, these settlements contained confidentiality agreements, sometimes barring all parties from discussing aspects of the cases.

Key documents in many of the court files were sealed or returned to the two companies, which helped keep the recurring problem out of the public eye.

It is a pattern that has been repeated many times over the years in product-liability cases.

McNeil Laboratories' popular painkiller Zomax, linked to a dozen deaths and more than 400 severe allergic reactions, was taken off the market in 1983 only after dozens of settled and sealed lawsuits.

For several years, General Motors quietly settled more than 200 cases brought by victims of fiery car crashes involving the auto maker's side-mounted gas tanks before the defect came to light in the early 1980s.

Pfizer's Bjork-Shiley heart valves were linked to 248 deaths. Pfizer insisted on secrecy agreements in settling dozens of lawsuits before the Food and Drug Administration finally removed the valves from the market in 1986.

Such secret deals are sought not only by manufacturers accused of making defective products such as tires, drugs and medical devices, but by retail giants like Home Depot and Wal-Mart, which now routinely use them to settle suits brought by shoppers who slip and fall in their stores or have been injured by falling merchandise.

"This practice has exploded in the last 20 years," said Arthur Bryant, a senior attorney with the nonprofit Trial Lawyers for Public Justice, which has filed several suits across the country to unseal court records. "Corporations have realized how they can be successful, and it's cheaper to hide the truth from the public."

Support is spreading in Washington for legislation barring manufacturers from sealing court records in cases in which the public safety is threatened.

Sen. Herbert Kohl (D-Wis.), who in the past has unsuccessfully pushed for such legislation, said he would use the Firestone recall to garner support from other lawmakers.

U.S. Rep. Lloyd Doggett (D-Texas) said the Firestone recall and the injuries and fatalities that preceded it "are the perfect illustration of why the public needs access to defective-product complaints."

"The public has a right to protect itself, and information is the best safeguard," he said. "Concealing information when its release would protect public safety is not in our country's best interests."

A Firestone spokesman said the company is still trying to determine what, if anything, caused some tires to fail. He and a Ford spokeswoman declined to say how many suits involving failed Firestone tires the two companies have settled. Both said that asking courts to seal information in such suits is common and that they are only seeking to protect their trade secrets.

But the Firestone recall, said Richard Zitrin, a legal ethics expert at the University of San Francisco, is another case in which "a manufacturer appears to be buying silence at the public's expense."

Indeed, consumer activists say scores of deaths could apparently have been avoided if critical information involving the tires had not been kept under wraps.

Documents released by lawmakers last week showed that Firestone and possibly Ford knew about a pattern of tire failures at least several months before the recall.

What Firestone knew and when is now the subject of a federal investigation.

A Times examination of court records from across the country shows that the company was repeatedly warned in court documents and the deposition testimony of former employees about serious problems with its tires, but chose to shield that evidence from consumers.

Firestone launched a recall of its tires only after information in one of those court files leaked out, triggering a chain of events leading to the investigation by the National Highway Traffic Safety Administration.

That case involved Daniel Paul Van Etten, a West Virginia University football player who was killed in March 1997 after the left rear tire, a Firestone ATX, separated on his family's Ford Explorer, causing the vehicle to flip and roll. Van Etten, 19, was thrown onto Interstate 95 and died from head injuries.

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