Harmful products don’t deserve shielding by the courts

Over the past two decades, Bayer’s Essure — a nonsurgical birth control device — seriously harmed thousands of women when pieces of the metal coils splintered, leaving shards within the women’s reproductive systems. These Essure implants caused miscarriages and perforated organs — and even the inability to have sexual relations. Worse, despite more than 27,000 lawsuits filed by women against Bayer, a broad court “protective order” favored secrecy over public disclosure. 

Finally, in 2020, Public Justice, a nonprofit legal advocacy organization, intervened and got some of the information out. By then, there had been tens of thousands of serious injuries and at least 23 adult deaths verified by the federal Food and Drug Administration. 

Though Bayer finally stopped selling Essure a few years ago, it was too late for the women killed or permanently injured by this product — and all because Bayer used legal maneuvering to prevent the public from knowing about the dangers of its product so that it could continue selling Essure across the country.

Sadly, the injuries and deaths stemming from Essure are only the tip of the iceberg. 

For years, some companies have worked hard to conceal vital safety information so that they can continue making profits. Earlier this year, I introduced Senate Bill 1149 — the “Public Right to Know Act” — with Public Justice and Consumer Reports as co-sponsors. That bill will stop abuses that conceal information about a defective product or environmental hazard and pose a danger to public health or safety.

As just one more example among many, Purdue Pharma — the manufacturer of OxyContin — used legal schemes to prevent the truth about its opioids from becoming public. The strong prescription pain medication is now known to have caused well more than 100,000 deaths as a result of its manufacturer telling outright lies about safe dosage levels and the likelihood of addiction.

In late 2019, faced with state claims totaling more than $2 trillion, Purdue Pharma declared bankruptcy. But in 2004, when the first case — West Virginia’s claims against Purdue Pharma — was settled, the judge allowed the information proving those claims to remain secret. More than a dozen judges in other cases followed the same course of action. 

The result was that the facts remained hidden for more than a decade, until the Los Angeles Times published an investigative report following its review of scores of internal company documents in 2016. Until then, neither the public nor the regulators knew the truth, which was in the court records but had been sealed by an overbroad confidentiality order.

Clearly, we need to remove these walls of courthouse secrecy that endanger the lives of the public and people we love. 

Not surprisingly, a number of companies and business associations oppose SB 1149 because they would rather pad their bottom line than help protect the public from the very dangers they create. Information about dangerous public hazards should never be hidden behind legal documents and courthouse secrecy — quite the opposite. The public has a right to know information about any defective products or environmental hazards that companies are aware of but choose to keep secret so they can continue with business as usual. 

The premise of SB 1149 is simple: If a lawsuit uncovers factual information about a defective product or environmental hazard, that information will no longer be secret. This important measure will help keep companies accountable and prevent future injuries or deaths. We must finally lift the veil of courthouse secrecy that has hurt countless children and families across the Golden State.

Please let your legislative representative know by phone, Twitter or any other means that you strongly support SB 1149 and would like California to join states across the country — including Florida, Louisiana, Montana, South Carolina and Washington — that have already enacted similar anti-secrecy laws.

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Connie M. Leyva previously has written about California’s backlog of rape kits and the Cal Grant program.