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Privacy, Sealed Records and the Public's Right to Know

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Message Janet Parker

There is a public nature to a dispute in front of a court in spite of the dispute starting originally in a private matter. Often private aspects of a case are placed in a sealed record thus the record is on file but are not reported. But what should and should not be considered private is debatable. There has been increasing use of "secret settlements" or agreements between a plaintiff's attorney and the defense attorney to keep certain information from the public. When does the public's right to know, outweigh the privacy rights of the parties involved?

Often these secrecy agreements are done in order to maximize the financial settlement to the plaintiff and to minimize embarrassment to the defendant. But if the plaintiff gets a large (sealed) settlement and the defendant gets silence, the final outcome for the public is silence. No one contests the need for innocent parties to be kept secret, but in many cases such as Firestone tire safety case, the prescription drugs Zomax and Halcion, the Shiley heart valve, and the Dalkon Shield intrauterine device, there were secret settlements and the public was kept in the dark. Thus the dangers of these products were not known to the public in spite of big awards of damages to private parties. But secrecy agreements can also affect many other kinds of cases including criminal cases, where the sealed record affords the guilty party protection from the investigative efforts of law enforcement.

So the responsibility of the judiciary to protect the interests of the public is central to our system of justice, and weighing the privacy rights of the parties versus the public's right to know is a crucial issue. The use of secret settlements to withhold information about a known harm, whether it is a defective product, toxic waste, or a molesting soccer coach, is often not in the public good. No case more adequately represents this than the Fentress case, in which the Kentucky Supreme Court found that lawyers who engaged in an ongoing trial after a secret settlement had already been reached. Judge Potter said their conduct showed "a serious lack of candor with the trial court, and there may have been deception, bad faith conduct, abuse of the judicial process or perhaps even fraud." [Potter v. Eli Lilly & Co., 926 S.W.2d 449, 454 (Ky. 1996).]

In summary the Fentress case was about a violent incident in September 1989. Joseph Wesbecker armed himself with an AK-47, walked into the Louisville printing plant where he had worked, and started shooting his former co-workers. After killing eight people, wounded twelve more, and the man finished matters by committing suicide with his gun. Only one month before, Wesbecker had begun taking Prozac. The known problems of violent behavior of patients on this medication had been withheld from the public, governmental regulators and even medical professionals. The lawyers for the shooting victims soon focused on the drug Prozac, manufacted by Eli Lilly, as the cause for Wesbecker's unexpected violence. With the sales of the drug Prozac at $1.7 billion in 1994 there was a lot at stake in this legal case. The Plaintiff's counsel had information about the withholding of research findings regarding another Eli Lilly drug Oraflex. In 1985, Lilly had pled guilty to twenty-five criminal counts of failing to report adverse reactions to Oraflex, including four deaths, to the Food & Drug Administration. But then suddenly during the trial the Oraflex evidence was no longer going to be presented to the court.

There was an experienced and astute Judge on the case John Potter, who suspected something was afoul despite the lawyers' denials and their references to a damages phase, Potter suspected that a deal had been made before closing argument. When the plaintiffs didn't file a notice of appeal, Potter became suspicious and thus called in the lawyers from both sides for consultation. But the lawyers continued to deny that a settlement had been reached. When the appeals court ruled against Judge Potter saying he no longer had jurisdiction, Potter was not satisfied and appealed the case to the Kentucky Supreme Court. Finally in a Supreme Court hearing, lawyers for both sides finally acknowledged that they had indeed settled all money issues and had agreed to go through only the liability phase of the trial no matter what the result. Judge John Potter took the "high road," acting consistently with the judiciary's responsibility, and protecting the public interest. Thus the role of the judiciary in deciding matters of privacy and sealed records is an important balancing act of sometimes competing interests but which must also take into account the public's right to know especially when there is a compelling public interest.

Private secrecy at the cost of public harm can happen in cases involving criminal intent. When discovery occurs during case, many issues come to light including criminal activity of either party. The consequences of permitting secrecy may be for attorneys to lie to or mislead the court. Privacy issues can be used as a screen to hide criminal activity, to provide a place for incriminating documents that can't be expunged to be hidden from public view and investigation efforts. Under the guise of the duty of attorney's to do zealous advocacy, some attorneys will enter into agreements that benefit the client's best financial interest and the public interest is often not served.

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Medical Whistleblower is an organization dedicated to advocacy and emotional support for those who have bravely stepped forward to "Tell Truth to Power" to the Medical Establishment. Medical Whistleblowers report Medical Fraud, Abuse and (more...)

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