The ‘Public Right to Know Act’ is the first step in staunching trauma and death
By Karen Ocamb, Director of Media Relations
Nothing can assuage the pain of losing a child. But for Amy Cooper, who lost her adult son to an OxyContin overdose, doing nothing to prevent her family tragedy from happening to others would be excruciating. That’s why she stood in her pain and testified on behalf of California Senator Connie M. Leyva’s ‘Public Right to Know Act’ (SB 1149) and shared her story in the San Francisco Chronicle. SB 1149, which would prohibit factual information about defective products and dangerous hazards from being kept secret through overly broad court protective orders and settlement agreements, passed out of the state Senate on Monday and now heads to the Assembly.
“It’s a step forward towards fulfilling the duty we have of caring for one another and putting a stop to preventable deaths and the ripple of trauma that follows. I believe authentic care for humankind must be stronger than greed,” Amy Cooper told Public Justice, a co-sponsor of SB 1149, along with Consumer Reports.
“Secrecy kills,” said Rich Barber, whose son was killed by a Remington Arms gun that fired without the trigger being pulled. For years, Remington had been able to hide the trigger defect on their popular Remington Model 700 and a dozen other Remington models by having court records sealed that showed evidence the company had known about the defect for decades but kept selling the bolt-action rifle anyway, resulting in hundreds of people being maimed or killed. In 2016, Public Justice successfully sued to make public over 118,000 previously-sealed Remington documents. Investigative exposés by 60 Minutes and CNBC based on those documents and others forced Remington into a two-month bankruptcy. Though short-lived, the bankruptcy caused a delay in a wrongful death lawsuit filed by families of nine victims and a teacher who were shot and survived the 2012 Sandy Hook Elementary School shooting with a Remington. The suit was initially dismissed by a state court based on federal immunity protections for firearms manufacturers under the Protection of Lawful Commerce in Arms Act of 2005. But after the Connecticut Supreme Court ruled that the suit’s wrongful marketing claim could proceed under state law, Remington’s insurers reached an astounding $73,000,000 settlement on February 15, 2022.
Public Justice connected the dots from unsealing secret court documents to the historic settlement and accountability (Remington is now defunct) reached by the law firm of Public Justice Board Secretary Preston Tisdale, for whom the case was personal. “Today was a great day for Preston and his firm and all the hard work they did over that unspeakable tragedy. But to hold the gun manufacturers responsible and get a settlement is some very small recompense to those families but it sends a broader signal to those manufacturers and the things that they do,” said Board President Dan Bryson when the settlement was announced.
As co-sponsor of SB 1149, Public Justice also took the lead in calling out the Chamber of Commerce and Big Pharma when they opposed the Public Right to Know Act using “old, inaccurate myths and distortions,” adding some new disinformation. It didn’t work.
“In an open society, court records are presumptively open to public inspection. Even in a dispute between private parties, a court’s resolution of that dispute is a matter of public interest. This is especially true when a case involves a public danger, such as a defective product or environmental hazard. But courts repeatedly issue overbroad protective orders that keep discovery information secret and protect incriminating documents — and lawyers mutually agree to settlements and stipulated orders that prohibit disclosing the very facts that prompted the case. Though secrecy is sometimes necessary to protect personal information or legitimate trade secrets, it is grossly inappropriate when it clearly keeps information about ongoing dangers from the public, which — in a very real way — can threaten health, safety and even lives,” Senator Leyva said in presenting SB 1149 for a Senate floor vote on May 23.
“In the case of Purdue Pharma, the company told outright lies for many years regarding safe dosage levels and the likelihood of addiction from Oxycontin while hiding behind a decade long wall of courthouse secrecy, which ultimately killed hundreds of thousands of people,” Leyva said, before citing how “tens of thousands of women were harmed or died” by using Bayer’s Essure, a supposedly safe metallic nonsurgical form of birth control. She offered to cite scores of other examples.
SB 1149 passed with 26 ‘Yes’ votes to 10 ‘No’ votes.
“Information about defects and hazards created by companies should never be hidden behind a veil of courthouse secrecy that can endanger the lives and safety of Californians,” Leyva said. “The public must have access to this vital information so that they can decide — for themselves — how they can protect themselves and their families from these defective products or toxic hazards. It is unconscionable that any company would ever seek to keep critical information that can lead to injuries or even deaths from the public — and all because of their desire for keep making profits. I thank my Senate colleagues that voted for SB 1149 today, as they are standing on the side of the public by helping to prevent future injuries or deaths.”
“For decades, settlement agreements, stipulations for court orders, and standing protective orders have hidden information that the public has the right to know,” said Professor Richard Zitrin, who brought the bill to Leyva. “Companies keep this information secret not because of legitimate trade secrets but to avoid accountability for their dangerous and defective products that harm the public. Public access to court records is an inherent part of a transparent and fair court system that ensures justice for all.”
Without fairness and transparency, people — including children — are harmed, traumatized and die as the result of a preventable tragedy.
If SB 1149 is approved by the Legislature and signed into law, California would join several other states that have enacted similar anti-secrecy laws, including Florida, Louisiana, Montana, South Carolina, and Washington.
Karen Ocamb serves as Public Justice’s Director of Media Relations.
