This is the first of five blog posts I'll make today regarding the 15 bills I've prime-sponsored that have passed out of committee. A few of them have already passed the Senate; others are lined up for a possible vote on the Senate floor.
The first bill is Senate Bill 5054, which would increase public safety by cutting down the number of “gag orders” used to hide information about public hazards. This legislation would create a presumption against confidentiality agreements (“gag orders”) that seal court records related to public hazards. A “public hazard” is a defective product of any kind (a prescription drug that has abnormally high side-effects, a pickup truck that tends to roll over, a child’s toy with toxic paint) that is still on the market.
Under the current law, gag orders tied to settling lawsuits can undermine public safety. When defendants offer a victim a sum for the damages done to them, the agreement is contingent upon a court order setting the terms of closing the claim. Many times this includes a confidentiality agreement. I believe that members of the public have a right to information necessary to understand the nature, source, and extent of the risk from ongoing hazards. Gag orders and sealed court files should not be allowed to effectively hide this information from the public.
As elected officials, it’s part of our job description to seek a legislative remedy to threats against public safety. What was unique about these threats, however, is that they have already been examined, and - in only isolated instances - remedied. Public hazards inherent in defective products – some of them in common use - have been allowed to remain secret and thus an ongoing danger even after the court trials by which juries found them defective. Files were sealed and the manufacturer allowed buying the silence of the complainants through gag orders.
The problem is that in these cases that come to the courts, such as recent cases where children’s medicine was made with known toxic chemicals that kill or permanently damage users, or environmental contamination that poses ongoing dangers, there are incentives on both sides to get to a resolution of the single incident. Defendants want to close the case without alerting other potential victims, or compel recalls to simply cover it up. Victims, facing catastrophic injuries and commensurate medical bills they can’t pay, along with emotional trauma, desperately need a financial settlement and just want to move on with their lives. Thus when the defendant offers a settlement contingent upon a secrecy agreement, or gag order, they are usually accepted without thought for community safety or the next unwitting victim.
However, this ability to cover up harm is a grievous public threat. It is not a victim’s job to protect any and all who may be endangered by a single bad actor. But our courts are a public institution, and not to be a tool employed to protect those who would harm that very public.
A legislative presumption against these gag orders in these cases is the best way to ensure that major, preventable harms aren’t knowingly perpetrated against the public. One example of this is Vioxx. This prescription arthritis drug was finally banned from the market in 2004 after it was found that it doubled the risk of heart attack and stroke in users. The manufacturer faced thousands of lawsuits, but for years these lawsuits were prevented from serving as a warning because victims and their families were forced into silence. During these years of silence, hundreds more patients on Vioxx suffered strokes and heart attacks.
Our courts are intended to be a place that protects citizens and turns a spotlight against wrong and dangerous acts, not one that leaves innocent victims in harm’s way.
Senate Bill 5752 would create alternatives to costly litigation in defamation lawsuits by providing guidelines for correcting or clarifying the defamatory statements. In defamation lawsuits, courts often have to make a difficult decision between a plaintiff’s defamation claims and a defendant’s First Amendment protections of free press and freedom of speech. In such cases if the plaintiff loses, which happens often, then it appears to the public that the underlying defamatory statement about the plaintiff is true even if is not. Despite the few large defamation lawsuits that get attention in the media every year, correcting or clarifying a defamatory statement in a publication that reaches the same audience as the original defamatory statement is often the way to resolve a defamation action for the average individual. This bill allows a printed (or broadcast) correction or clarification of an alleged defamatory statement, and makes that a factor in damages. If a timely and sufficient correction or clarification is made, the plaintiff may recover only provable economic loss, as mitigated by the correction or clarification.
Senate Bill 6065 would clarify the role of county coroners and inquests. Recently in Lewis County, an inquest jury found what it believed were facts sufficient to make an arrest. It then had to issue an arrest warrant, even though the prosecutor and coroner agreed that the facts were not, in fact, sufficient to warrant an arrest. Both the prosecutors’ and the coroners’ statewide associations support this bill, which requires the coroner to forward the findings along to the prosecutor, who then determines whether criminal charges should be brought, as in all other criminal matters. The coroner would no longer have the power to issue arrest warrants, but may ask for a warrant to be issued by the superior court. The warrant must be supported by sufficient admissible evidence. The bill also clarifies that the costs of coroner inquests are paid by the county that convened the inquest.