SPECIAL REPORT-How plaintiff lawyers help corporate America keep its secretsReuters | Updated: 07-11-2019 19:49 IST | Created: 07-11-2019 19:26 IST
Paula Lawlor was sifting through piles of internal General Motors Co documents in a hotel room outside of Los Angeles when she hit pay dirt: Company records showing that GM knew for years that stronger roofs on its vehicles could save lives. The year was 2000, and the researcher was helping a lawyer prepare a case on behalf of a young man who had been paralyzed when the Chevrolet Blazer he was driving flipped. It was one of the thousands of lawsuits GM and other automakers faced over the years that claimed that the roofs of their vehicles easily crumpled in rollovers, resulting in severe injury and death.
GM invariably denied the allegations, arguing that roof strength made little difference. Now, Lawlor had in hand evidence to the contrary. Among other documents were 1980s test results showing that people wearing seatbelts in vehicles with stronger roofs were likely to suffer less severe injuries in a rollover. Such evidence helped persuade a jury to award the plaintiff $15.4 million. But something continued to trouble Lawlor. Only a small fraction of the evidence was aired publicly at trial. Worse, to her mind, was that while dozens of plaintiff lawyers suing GM over roof-crush deaths and injuries had seen much of the same evidence over the previous decade, most of it remained hidden under court-mandated secrecy the lawyers had accepted.
In those 10 years, more than 5,000 seatbelt-wearing passengers died in GM rollover accidents, many more were injured, and the company was still pumping out new vehicles with similar roofs. As Lawlor saw it, the plaintiff lawyers should have raised alarms. "If you see something so egregious, don't you think you have a responsibility to do something?" she said.
Lawlor did do something. She embarked on a years-long campaign in and out of the courts to expose the evidence about GM vehicles' roof-strength — a personal mission that culminated in 2016 when tougher federal standards for vehicle roofs took effect. The secrecy that prompted her to action, however, has remained pervasive in U.S. courts. And as Reuters found, plaintiff lawyers in big product liability cases are often complicit in perpetuating it. Their willing participation in a process that hides critical information about potentially harmful and even deadly products prevents consumers from making informed choices and regulators from taking corrective action.
"Far too many plaintiff lawyers miss the big picture about the good that can be done" by pushing for more transparency in court, said Drew Ashby, a plaintiff lawyer with The Ashby Firm in Atlanta. That clashes with the image plaintiff lawyers cultivate as champions of transparency, fighting to hold corporate America accountable for making and selling harmful products. As the then-president of the American Association for Justice, the plaintiff bar's main lobbying group, said in 2014: "Whether it's dangerous cribs, defective drugs or exploding tires, court secrecy endangers consumers and allows corporations to hide wrongdoing. Americans have a right to know about hazardous and defective products."
Dozens of plaintiff lawyers told Reuters they feel compelled to go along with entrenched court secrecy. The main reason, they said, is their duty to their clients, as spelled out in state bar association rules. Many plaintiffs have suffered catastrophic injuries and other hardships and literally can't afford to wait for disputes over what can and can't be made public as bills mount. Of course, such delays can also be costly to the lawyers, who get paid only when a case is settled or decided in their favor.
"You have to balance the need … for an attempt at a prompt resolution for the people who are the victims of the defendants' conduct, and the need for public disclosure," said Ellen Relkin, a New York plaintiff lawyer who has litigated several high-profile product liability cases. Plaintiff lawyers' interests are thus aligned with those of judges who want to keep the wheels of justice moving and of defendants — usually big companies — that prefer to keep details of their inner workings hidden.
As Reuters reported in June, judges regularly allow information pertinent to public health and safety to be filed under seal, even though court documents are, by law, presumed to be public. In nearly all jurisdictions, judges are required to provide an on-the-record rationale for allowing litigants to file information under seal — to protect trade secrets, for example, or an individual's medical records — but they rarely do that. In its analysis, Reuters found that information pertinent to public health and safety was filed under seal in 55 of the 115 biggest product liability cases consolidated in federal courts over the past 20 years. These mega-cases, known as multidistrict litigation (MDL), involved products used by millions of consumers.
The secrecy exacts a heavy toll. In just a handful of cases, Reuters analyzed, hundreds of thousands of people were killed or seriously injured by allegedly defective products – including cars, drugs, and guns – after judges allowed litigants to file under seal evidence that could have alerted consumers and regulators to potential danger. It's a measure of their role in maintaining court secrecy that in nearly all of the 55 big cases, it was plaintiff lawyers who filed the information under seal. That's because of the way secrecy is baked into the process early on.
During pretrial discovery, when the opposing sides request information from each other to prepare their cases, the defendant usually won't give plaintiffs any information until they agree to a protective order. In theory, these agreements are meant to keep under wraps potentially damaging proprietary or personal information. But in many cases, nearly everything ends up being stamped "confidential," and plaintiff lawyers often just agree to the secrecy without complaint. Later, when plaintiff lawyers begin filing motions or presenting their cases in court, the standard for imposing secrecy moves higher. Material obtained through discovery that is later submitted as evidence becomes part of the court record; as a matter of law, litigants must provide a reason for submitting such evidence under seal, and the judge must approve.
In most of the big MDLs, however, plaintiff attorneys cited the defense's earlier claims of confidentiality to justify filing evidence under seal. Since judges rarely ask for a more specific rationale for the secrecy, documents marked as confidential remain so. That's true when the parties settle, which is how most product liability cases end. It can also be true after a jury decides in favor of the plaintiff. Sometimes, plaintiff lawyers even agree to keep evidence confidential that has already been aired in open court in other cases.
Lawyers who do fight secrecy seldom succeed. They challenged defendants' claims of confidentiality for material relating to public health and safety in 23 of the 55 big cases Reuters analyzed. Judges nearly always refused to unseal the evidence.
A FAILED CHALLENGE
In a GM roof-crush case in the 1990s, Donald Friedman, a former GM engineer, served as an expert witness, analyzing the company's crash test data. That and most of the other evidence cited in court was marked confidential. After a jury awarded the plaintiff $8.8 million, Friedman determined that everyone should be able to see what he had seen. Acting on Friedman's request, Thadd Llaurado, a lawyer on the case, challenged the sealing of GM's records. After nearly a year of briefs and hearings, the judge turned down Llaurado's request to lift the protective order.
"GM has shown that the testing information is of value to GM's competitors," the judge said in his 1993 decision. Among the records, the judge kept under seal were about 10 exhibits that had been cited openly in the trial. GM declined to comment on past roof-crush litigation. It said that in general, confidentiality safeguards under the law "have not been an obstacle to continuous improvements in safety."
Yet potentially harmful flaws in many products remain secret years after the first lawsuits are filed. Overly broad protective orders are a big part of the problem, legal experts and plaintiff lawyers said. In 45 of the 55 big MDLs Reuters analyzed, the protective order allowed most any document to be marked as confidential. One solution is for plaintiff lawyers to push for protective orders that more narrowly define what can be kept confidential.
The strategy worked for Eric Holland. In July 2018, his legal team won a huge victory when a St. Louis jury ordered Johnson & Johnson to pay $4.7 billion to 22 women who had alleged that their ovarian cancer was caused by Baby Powder and other J&J talc products tainted with carcinogenic asbestos. J&J has appealed the verdict. Holland told Reuters that many of the documents he thought revealed the full story about talc and asbestos hadn't come out in the trial and were still deemed confidential. He thought they should be made public. In a separate talc case, he negotiated a protective order with J&J that limited what the company could mark confidential to trade secrets, personal information and the like.
The more specific order made public internal J&J documents showing that the company knew its talc had sometimes tested positive for asbestos. Scientists used that information in a presentation to U.S. Food and Drug Administration officials earlier this year. The agency has since said it may consider new rules to improve talc safety. J&J, in a statement to Reuters, noted that it has made thousands of documents available for use in the courts and on its website. The company also said it "has continued to work with plaintiffs' counsel to negotiate appropriate protective orders to protect documents that contain confidential information."
For help drafting the narrower protective order, Holland turned to Public Justice, a nonprofit organization that intervenes in cases to get court records unsealed. The group has developed a model protective order that lays out narrow definitions of what can be marked confidential and makes clear that simply marking a document as confidential is not a sufficient reason to later file the information under seal during court proceedings. As the first and sometimes only people to know that potentially life-saving documents are being sealed, plaintiff lawyers should be the "first line of defense" against harmful secrecy, said Jennifer Bennett, a lawyer with Public Justice.
MASTERING ROOF CRUSH
Court secrecy wasn't on Paula Lawlor's radar when she stumbled into a job as a researcher for Michael Piuze, a Los Angeles personal injury and product liability lawyer who has notched big court victories against cigarette maker Philip Morris. Lawlor had been helping him on several different cases when he asked her in 2000 to focus on roof crush.
Piuze's client was Robbie Lambert, who in 1990 fell asleep at the wheel of his Chevrolet Blazer, which veered off the road and flipped. Lambert was wearing a seatbelt, but the SUV's roof crumpled inward. The then 18-year-old Lambert, who had just been named to the training team for U.S. Olympic hockey, was left a quadriplegic. Lambert's was only the latest among hundreds of lawsuits alleging that roofs on some GM vehicles were too weak to prevent serious injuries and deaths in rollovers. By then, thousands of people had died or been seriously injured in GM rollovers, though it's impossible to determine whether roof crush was responsible.
Lawlor, a then-47-year-old mother of seven with no college degree, set to work transforming herself into an expert on all things roof crush. She networked with lawyers across the country, some of them sending her documents they had obtained in discovery in their lawsuits against GM. Her home became a library of binders. She pulled all-nighters poring over documents. She talked about little else with her family. "Coming home and not thinking about work, that's not for her," said Jennifer Preston, Lawlor's daughter.
As Lawlor pieced together the material, a damning picture emerged: In the 1970s, GM and other automakers persuaded the National Highway Traffic Safety Administration (NHTSA) to weaken its originally proposed roof-strength standards – after GM vehicles failed to meet those standards in crash tests – but by 1990, GM had conducted its tests showing that stronger roofs were safer. The more she read, the more she came to "really understanding how they misled everybody all of those years," Lawlor said.
As the trial date approached, Piuze's team set up a "war room" where they met to discuss strategy, prepare motions and review discovery material to be used as evidence. And thus Lawlor found herself in that hotel room outside of Los Angeles in 2000, going through piles of more GM documents. After her work helped Piuze win the $15.4 million verdicts against GM in 2001, Lawlor still felt she had to do something. "People were dying," she said.
"Paula knew more about roof crush than most experts and almost all lawyers," Piuze said. The two had discussed challenging the protective order in the Lambert case, but "I didn't have time to get involved in the crusade. I had a lot of clients to satisfy," Piuze said. Still, Lawlor "had my blessing" to bring the full story to light, he said. In 2003, she got her chance when she began working on a case for Los Angeles lawyer Garo Mardirossian. In 1999, Bing Lin Duan suffered traumatic head injuries when the Chevy Aerostar van his family had rented for a vacation rolled four times on a road near California's Sequoia National Forest. The roof caved in by 10 inches. Duan persisted in a vegetative state for about two years before dying from his injuries at age 65.
When Lawlor came to the case, NHTSA was seeking public comments on a proposal to strengthen its vehicle roof strength standards. The agency, analyzing its data, had found that rollovers were the most dangerous types of crashes from 1995 to 1999. Lawlor approached Mardirossian about using the Duan case to challenge the secrecy shrouding the GM litigation. He agreed with her plan.
She knew what to request from GM during discovery. She also knew that some of that information had already been used as exhibits in other trials, which should make them public. This included detailed results of tests GM conducted in the 1980s on Chevrolet Malibu cars — film, data, and analysis showing that roofs stronger than the NHTSA standard resulted in less severe injuries in rollovers. In court, GM and other automakers cited summaries of the Malibu tests that GM engineers published in 1985 and 1990 to argue that roof strength doesn't matter in rollovers. The automakers also used the partial summary results to convince NHTSA that roof standard on the books since 1971 were sufficient.
GM continued to mark all of it – the published summaries and the test details – confidential under protective orders issued in other cases across the country. "We all knew in the industry" about the tests, Mardirossian said. "We just couldn't talk about it freely." Under the protective orders, lawyers could discuss the discovery material only with expert witnesses and others involved in the litigation.
In a motion filed in Los Angeles Superior Court in 2004, Madirossian argued for sharing the information with safety advocates and NHTSA. "The documents are fifteen to forty years old and are of no commercial value. Finally, all of them are of such paramount importance to the health and safety of the public as to outweigh any interest GM might have in keeping them confidential," the motion said. Judge Mel Red Recana ruled in favor of Mardirossian's motion. Mardirossian estimates that the months-long effort to challenge the confidentiality to cost about $100,000 in staff time. As the jury entered its second week of deliberation, the two sides settled. Terms weren't disclosed.
Recana declined to comment. The judge's ruling freed Lawlor. With copies of GM's records, she left Los Angeles in 2004 and, with her two youngest children, moved to be near the beach in San Diego to focus on her mission. On one of her frequent seaside walks, it hit her: Take the fight to Washington, D.C.
Money was tight, and she worried about how to pay for her efforts. Then, in 2006, her back was injured in a minor traffic accident, resulting in a legal settlement that paid her $70,000. "When I got the money, I was sure it was meant for me to do something big," Lawlor said.
DELIVERED BY HAND
She flew to the capital to deliver more than 1,000 pages of GM's records in-person to an NHTSA clerk. In 2007 she gathered engineers, politicians, academics, victims, safety advocates and more for a meeting about roof crush in Washington. She launched a public information campaign that included strategically placed billboards. In 2007, she co-wrote "Deadly by Design," a self-published study on how automakers fended off stronger roof-strength standards. She sent it to NHTSA and lawmakers, and it was later quoted in a hearing before a Subcommittee of the Senate Committee on Commerce, Science, and Transportation.
She also volunteered with the Center for Auto Safety, a Washington-based consumer safety group, putting together reports detailing the history of the roof-crush controversy. The center was joined by Public Citizen and other advocacy groups in pushing NHTSA to upgrade roof-strength standards. In 2009, NHTSA published a new minimum standard mandating that the roofs of all passenger vehicles be able to withstand three times their empty weight in tests, doubling the earlier requirement. The agency also changed testing procedures to more closely resemble real-world crashes.
At the time, the agency said the upgraded standard would prevent 135 deaths and more than 1,000 injuries a year. In 2010, the agency published a study that "confirms a relationship between greater roof strength and fewer injuries." In a statement to Reuters, NHTSA did not address Lawlor's efforts or the importance of the documents she shared with the agency. "Safety-related information developed or discovered in private litigation is an important resource for NHTSA," the regulator said.
After the 2009 rule change, Lawlor took some time off and traveled to France, where she had a religious epiphany. These days, she leads pilgrimages to a holy site in southern France. Starting in September 2016 — 16 years after Lawlor first came across the documents that launched her campaign — every passenger vehicle sold in the United States was required to adhere to the new roof-strength standard.