Court Secrecy Undermines Usefulness of Product Safety Database

In 2008, the Consumer Product Safety Improvement Act established a database to enable consumers to report and become informed about hazardous products. The law was a response to product scandals such as toys made in China that contained unsafe levels of lead.

Two years ago the U.S. Consumer Product Safety Commission (CPSC) launched SaferProducts.gov. It was expected that businesses appearing on the site would try to keep consumer complaints private, but, as reported on the public interest journalism site FairWarning.org, no one really anticipated that the first legal challenge would be a shocking example of judicial secrecy.

Even the most basic details of the case, FairWarning reports, are unknown thanks to private hearings, sealed records and a 73-page ruling with chunks of information blacked out. Shockingly, in a country where legal proceedings are supposed to exemplify transparency and fairness, even the identity of the plaintiff is unknown. It’s referred to only as “Company Doe.” We don’t know what the product at issue is, nor the incident that prompted the complaint.

And why did the CPSC choose not to appeal a federal judge’s ruling blocking the complaint from being posted on the website? Why won’t it say why it accepted the ruling and allowed the company to remain anonymous?

What kind of star chamber deal is this?

Consumer groups have called the court ruling a serious violation of the public’s right to know and have sought to have an appeals court unseal the case records. Company Doe, of course, claims that the Consumers Union, Public Citizen and the Consumer Federation of America have no standing in the lawsuit, and is seeking dismissal of the appeal.

FairWarning interviewed several legal experts who said they had never heard of such a case, in which a company was allowed to use a fake name to protect its reputation.

“The general price tag for wanting to submit things to a court to get a ruling in your favor is that they become public,” Richard Marcus, a law professor and expert on civil procedure at the University of California Hastings College of the Law in San Francisco told FairWarning.

“We don’t have closed trials in this country,” Marcus said. “We don’t allow witnesses to come in and testify wearing bags over their heads. Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”

Joan E. Steinman, a professor at Chicago-Kent College of Law has studied pseudonymous litigation. She told FairWarning that plaintiffs who use pseudonyms in court usually are individuals trying not to disclose details that could embarrass or even endanger them. One of the most well-known examples occurred in Roe v. Wade, when “Jane Roe” was used in 1972 as an alias for Norma L. McCorvey, the woman who started the national debate on abortion rights.

And you don’t see so many court records in one case sealed unless national security is at stake.

Consumer complaints about products-and deficient products generally-are hardly “unusual”; they’re a fact of life in the developed world, and the federal law passed five years ago signifies the importance of shining light into the dark corners of product manufacture and safety.

The CPSC does not investigate every complaint filed; the database, which has about 13,000 incident reports, carries this disclaimer: The agency “does not guarantee the accuracy, completeness, or adequacy of the contents” of the database.

But according to Scott Wolfson, spokesman for the commission, the majority of inaccuracy claims relate to consumers not naming the correct manufacturer for the product, an issue officials usually resolve.

So it’s no wonder that consumer advocates say that the decision in the Company Doe case threatens the integrity of the consumer product database. If allowed to stand, any company whose products are likely to end up as complaint subjects has precedent to seek secrecy.

The Company Doe case against the CPSC started in October 2011, eight months after the database went public. It concerned a complaint submitted by a local government agency that a product allegedly had harmed a child.

The CPSC followed standard procedure. It notified Company Doe and gave it a chance to address the complaint on the site. The company argued that the complaint was inaccurate. The CPSC wrote four different versions of the grievance to eliminate inaccuracies, but none satisfied Company Doe. So it sued to keep the product complaint out of the database altogether.

A federal judge in Maryland issued the ruling in Company Doe’s favor in July, saying that a link between the product and the harm suffered by the child had not been established and enabling secret proceedings through sealed court records. When FairWarning posted its story last week, only about eight of approximately 86 documents filed in the lawsuit were available publicly.

It’s impossible to figure out what allegedly happened to the child involved. So how do we know there’s not a product out there that poses harm to additional children?

The judge justified his favorable ruling for secrecy by saying that revealing Company Doe’s identity and unsealing court papers could harm its reputation, defeating the point of the legal challenge.

At issue, reports FairWarning, is “a company’s ability to keep our court system secret and anonymous in order to protect their brand,” said Rachel Weintraub, senior counsel for the Consumer Federation of America. “It’s all about retaining the status quo that existed before where manufacturers completely controlled information about their product.”

Pamela Gilbert, a lawyer in Washington D.C. who formerly was executive director of the Consumer Product Safety Commission, told FairWarning that even if Company Doe’s identify was revealed, there was little likelihood of significant harm to it.

“As far as I know no one has ever gone out of business because there has been a complaint made against them in a government database,” she said.

To learn more about the Safer Products database, link here. To register your feelings about secrecy in legal proceedings involving product complaints, contact your Congressional representatives; you can find them here.

Patrick Malone speaks out frequently against secrecy in court proceedings involving injuries caused by wrongful conduct or defective products. Read our website page about our stand against secret settlements of lawsuits.

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