Editorial: Safety should not be a secret

Prescription pain pills that cause addiction and death. Cars with defective ignition switches that prevent airbags from working. Hunting rifles with triggers that routinely misfire.

These are all examples of dangerous products that companies continued to sell even after they were sued and forced to turn over documents that showed they were aware of the problems. How did they get away with it? When the companies and the plaintiffs reached settlements that kept the cases from going to trial, judges allowed important evidence to remain secret.

With key documents sealed from the public, there was no outcry for stronger regulations or product recalls. So companies kept selling addictive pills, dangerous cars, faulty rifles and many other harmful consumer products for years, and in some cases even decades. Lawsuits kept piling up, only to be shrouded in more secrecy. And Americans kept dying and being injured from opioid overdoses, car crashes and accidental shootings that might have been prevented if evidence of key problems had not been kept in the dark.

It is unacceptable that factual information about harmful products can remain secret when it involves public health and safety. Several states have passed laws that require information about defective products and environmental hazards be made public when parties to a lawsuit reach a settlement. Now it’s California’s turn to act.

The Legislature should approve Senate Bill 1149, which faces a vote by the full Assembly as soon as Thursday. It limits the ability to keep information secret in civil cases involving a defective product or environmental hazard “that has caused, or is likely to cause, significant or substantial bodily injury or illness or death.” The bill establishes that information turned over in the discovery phase of such lawsuits is presumed to be available to the public unless a judge writes an order keeping it private, which would be allowed only in limited circumstances to protect personal or proprietary information.

Opponents — including pharmaceutical companies and agricultural businesses — argue that proprietary research is fundamental to their industries and that the measure would wind up forcing them to disclose valuable trade secrets. But the legislation allows for privacy in limited circumstances, including to protect trade secrets. And importantly for consumers, it requires that courts tailor privacy orders very narrowly so they don’t become a loophole for maintaining the problematic status quo.

It’s impossible to know how many of the more than half a million Americans who have died from opioid overdoses since 1999 might be alive today if information about the addictive nature and aggressive marketing of OxyContin had been made public 18 years ago. But imagine how differently things could have played out if, in 2004, a West Virginia judge overseeing the first state lawsuit against the maker of OxyContin had not allowed thousands of pages of internal memos, notes from sales calls and marketing plans to be kept secret. Perhaps the information would have led to better regulation of the painkiller, possibly preventing the opioid crisis from gripping the nation and morphing into a fentanyl crisis that claims more lives every year.

Instead, the information from that lawsuit and many others against OxyContin maker Purdue Pharma remained secret until it was leaked to the Los Angeles Times in 2016. The Times investigation found that Purdue knew its painkiller wore off early for many patients, exposing them to increased risk of addiction, and that it advised doctors to up the dose even though that increases the risk of overdose and death.

The courts belong to the public. When they collect evidence that is critical to keeping people safe, that information should also belong to the public. There’s no good reason to continue letting injury and death be side effects of secrecy.