Over the past 25 or 30 years my policy was to reject confidentiality as an imposed condition of settlement. Our settlement agreement memorandum contained the following language:

“Neither the plaintiff nor his or her attorneys agree to any secrecy confidentiality restrictions regarding any aspect of this case or settlement. It is understood that nothing shall be considered secret or confidential regarding this case or settlement.”

Over the years I have been questioned regarding this policy not just by defense attorneys and insurance companies, but plaintiff attorneys who expressed issues about ethics, duty to client, and other matters relating to my policy. I have responded that the evil of secrecy regarding settlements as a condition imposed by a defendant or insurance company outweighs other issues. We  owe fighting secrecy  to public safety.

What brings this to my mind  is a May 17th article in the New York Times regarding the number of lawsuits brought against General Motors for a safety defect linked to some 13 deaths. The article says that a review of internal documents, emails and interviews paint a picture where their legal department with increasing urgency stepped up efforts to keep the facts secret. GM declined to make key people available for interviews and after the recall began senior executives  resigned or left the company.

The editorial says  that to avoid a top engineer being deposed in a lawsuit GM lawyers suddenly settled the case with a secrecy agreement.The day before the engineer was to be deposed , GM’s lawyers offered to mediate and settle the case and met the plaintiff’s  demands, but on condition of confidentiality.  It was the fifth confidential settlement made by GM in fatal accidents involving vehicles equipped with defective ignitions.  Transportation Sec. Anthony Foxx is quoted as saying about GM’s unwillingness to share information: “literally, silence can kill.”

On Sunday the New York Times published an editorial entitled “Secrecy Kills.” The editorial says that for more than a decade GM was aware of the faulty switches that caused cars to accelerate suddenly and deactivate your bags. But, the company kept the dangers hidden from regulators and from the public by reaching legal settlements with families that were conditioned on the families keeping silent. In at least one case involving a fatal crash, the court helped make such secrecy possible with an order sealing records the editorial says.

The editorial says that Sen. Graham, a Republican and Sen. Blumenthal, a Democrat introduced a bill which would require federal judges to consider tje public’s interest before sealing court records in civil actions or approving settlements in cases involving public health and safety. One of the sponsors said: “By sealing court records of lawsuit settlements that show serious safety defects, judges are aiding   and abetting more deaths, injuries and danger.”

The editorial points out that 10 years ago GM had been secretly settling scores of cases involving including side mounted gas tanks at the same time it was publicly denying  any safety concerns about the matter. It says secret settlements allowed Firestone to hide information about tread separating from tires over a long period of time. Secrecy has also delayed removal of hazardous toys and prescription drugs from the market the editorial says.

I recall clearly a settlement I made years ago involving the Bjork-Shiley heart valves that first began to be used  in 1978. The problem was  a defective weld on the support that kept the metal valve in place. They would break, float free and block heart function causing death in most cases. When I negotiated the case of the death of  my client the company was insistent on a confidentiality clause. It turned out they had settled many cases all with confidentiality clause so problem was hidden. I refused and ultimately they reluctantly settled  without the clause, I assume  on the basis trial publicity would be more harmful then my disclosing the case facts. I kept the valve  they removed from the client’s heart at autopsy and mounted it. I kept it at my office as a visual reminder  of the evil of secrecy when it conceals product defects that represent a  public danger.