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Archive for December 18th, 2009

AAJ clocks in on Court Secrecy & Forced Arbitration….

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And maybe the clock should run out on both of those practices!

I can’t always keep straight the Associations from the Institutes from the Foundations, from the what-nots, but this came up today from the American Association for Justice.    This post is as-is — judge for yourself.  I’m simply relaying the information….

AAJ points out the dangers of (1) COURT SECRECY in settlements, where the defendant is large and influential, and the tort could be “tortuous” to children, adults, and the public at large.  In the family law arena — and believe me, some of my fellow-bloggers know this — it’s a gag order.  Right up there with First Amendment, eh?

Check out the 8th Deadly secret in their list…

and of:

(2)  Forced Arbitration.  While I didn’t look to far into this one, in the family law venue, it’s “mandatory mediation.”  Same principle.  THIS organization spoke up against it. 

Think about it.

American Association for Justice.

Eight Deadly Secrets—How Court Secrecy Harms Families and Children  

(1) Cooper Tires Johnny Bradley became a widower on July 14, 2002, as a result of a rollover accident caused by tread separation in his Cooper tires. While litigating Johnny’s case, his attorney uncovered documented evidence of Cooper tire design defects. These documents had been kept confidential through protective orders in previous lawsuits against Cooper and Johnny’s attorney had to fight numerous uphill litigation battles to gain access to them. He only knew about these documents in the first place because he specialized in tire litigation. Prior to the end of his federal trial, Cooper Tires settled with Johnny Bradley on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark until the next tragedy. Civil Action No. 4:03cv94LN (S.D. Mississippi).

(2) Zyprexa In 2005, drug giant Eli Lilly paid $700 million to settle 8,000 state and federal lawsuits filed by patients who had taken Zyprexa, a Lilly medicine used to treat schizophrenia and bipolar disorder. Patients taking Zyprexa experienced inordinate weight gain and developed dangerously high blood sugar levels – some even developed diabetes. Zyprexa only agreed to settle these cases after all discovery documents were returned, and parties to the settlement agreed not to discuss the cases publicly.  The public did not learn about dangerous Zyprexa side effects until two years later, when the New York Times published a related article after receiving some leaked documents. Lilly subsequently settled an additional 18,000 cases for $500 million.

(3)  Seroquel
After two years of expensive and time-consuming litigation, recently released AstraZeneca documents reveal that the pharmaceutical giant had known about the dangerous side effects of its psychiatric drug Seroquel since 2000.  While AstraZeneca continued marketing Seroquel as safe, the corporation buried unfavorable studies linking the drug to diabetes and major weight gain.  According to the previously sealed documents, sales representatives were even directed to assuage doctors’ fears about patient weight gain by emphasizing that study results showed no causal link between diabetes and the drug.  Doctors even switched their patients from Zyprexa to Seroquel, not realizing that Seroquel caused similar harmful side effects.  Meanwhile, Seroquel topped $4.4 billion in 2008 sales. 

(4) Cessna Caravan Airplanes A trio of successful Texas businessmen died in late 2003 when their Cessna Caravan airplane crashed as a result of the plane’s flawed deicing mechanism.  The almost-new aircraft was being flown by a professional pilot.  Only through litigation did their attorneys fortuitously uncover previously concealed evidence documenting the Cessna deicing defect and the sloppy testing that preceded certification.  All documents were produced under a confidentiality order.  The case ultimately settled in federal court but under the confidentiality order, Cessna demanded return of the key documents which were never made public.  Most of the key internal documents have never been seen by the FAA or the NTSB.  One key document suggested not telling the FAA about certain internal testing data to avoid the risk that the FAA might require recertification of the Caravan.  Shortly after the Texas settlement, Cessna began discussing a change in the deicing design such that new production aircraft would be equipped with a system similar to that advocated by the families and their experts. 

Unfortunately, Cessna has still not addressed the deicing defect in existing aircraft, many of which are still in use today.  Furthermore, subsequent litigation has revealed additional defects in the aircraft’s stall warning system that make the aircraft even more susceptible to sudden loss of control when flying in icing conditions.  The families’ attorneys believe that the FAA’s restriction of the Caravan to flight in “light” icing misleads consumers about the safety of the plane.  The National Transportation Safety Board reports 6 fatal crashes and 1 serious injury crash since 2003 which, the families’ attorneys say, involve the same defect as that in the Texas litigation.  The most recent Cessna Caravan crash which appears to result from the defects in the deicing system occurred October 7, 2007, near Naches, Washington and killed the pilot and 9 passengers.

(5) PPA in OTC Children’s Medicine Mrs. X gave her 7 year-old-son an over-the-counter children’s medicine to treat an ear infection. Hours after taking the medicine, Mrs. X’s son experienced a sudden hemorrhagic stroke and fell into a permanent coma. Her son died after three years of being on life support and many expensive but failed rehabilitation attempts. The stroke was induced by phenylopropanolamine, an ingredient in the children’s medicine that was later banned by the FDA. Similar lawsuits in state and federal courts had previously been filed against the drug manufacturer, but these lawsuits were settled secretly. Her son’s death occurred in a state that significantly capped damages, which limited Mrs. X’s financial ability to take this case to court and forced her to accept a secret settlement in 2005. The secrecy provision is so broad that she cannot disclose any details related to her lawsuit.

(6) Ford Firestone Tires 19-year-old college scholarship student Daniel Van Etten was killed on March 9, 1997 when the Firestone tire on his vehicle separated. Knowing it would take years to resolve her son’s case in trial, Mrs. Van Etten accepted a settlement with Firestone in federal court that required all of the discovery documents to be kept confidential. Firestone did not recall the 6.5 million defective tires until three years later. By October 2001, the National Highway Traffic Safety Administration (NHTSA) “determined that Firestone shredding tires had caused at least 271 fatalities, most of which involved cases settled secretly.

(7) Defective Baby Crib Linda Ginzel and Boaz Keysar’s son Danny Keysar strangled to death when his Playskool travel lite crib collapsed in May of 1998. Danny’s parents later learned that three prior lawsuits involving the same product defect had been settled secretly. Crib manufacturers Kolcraft and Hasbro also offered Danny’s parents a settlement with a secrecy provision but they fought successfully to deny the manufacturer’s request for secrecy. Danny’s family reached a $3 million settlement agreement in 2001. 

(8) Clergy Abuse of Children Prior to the Boston Globe’s 2002 expose on the Boston Archdiocese’s clergy abuse cases, literally thousands of secret settlements and sealed court files allowed religious organizations to conceal incidents of child sexual abuse by their clergy. Attorney Mitchell Garabedian has handled clergy sex abuse since the 1980s, settling as many as 30 of these cases confidentially. Roderick MacLeish, Jr. also estimates that he represented around 400 alleged clergy abuse victims since 1991 – around 200 of these cases were settled confidentially. Some have criticized that signing secret settlements “prevented the scandal from erupting into public view sooner.


1. Alex Berenson, Lilly Settles With 18,000 Over Zyprexa, N. Y. Times, Jan. 5, 2007,
http://query.nytimes.com/gst/fullpage.html?sec=health&res=9F00E5DB1430F936A35752C0A9619C8B63; Richard Zitrin, Secrecy’s Dangerous Side Effects, L. A. Times, Feb. 8, 2007, http://www.latimes.com/news/opinion/la-oe-zitrin08feb08,0,6742226.story?coll=la-opinion-rightrail. See also Court Secrecy’s Drug Connection: Secret Settlements Used to Suppress Information on Public Health and Safety Hazards article on AAJ Web site: http://www.justice.org/pressroom/facts/secrecy/prozac.aspx (recounting how court secrecy was used to conceal the settlement of a Prozac lawsuit).

2. Keith Bradsher, S.U.V. Tire Defects Were Known in ’96 But Not Reported, N.Y. Times, June 24, 2001, http://query.nytimes.com/gst/fullpage.html?res=9A03E2D61230F937A15755C0A9679C8B63 (last accessed Oct. 24, 2007).

3.  Richard Zitrin, The Judicial Function: Justice Between the Parties, Or a Broader Legal Interest?, 32 Hofstra L. Rev. 1573, 1567 (2004).

4.  Jonathan Eig, How Danny Died, Chicago, Nov. 1998, http://www.kidsindanger.org/news/news_detail/1998_chicmag.pdf (last accessed Oct. 24, 2007); Also see Danny’s story on the Kids in Danger website at http://www.kidsindanger.org/pressroom/releases/20011206_pr.pdf (last accessed October 24, 2007).

5. Sacha Pfieffer, Crisis in the church;  Critical Eye Cast on Sex Abuse Lawyers Confidentiality, Large Settlements Are Questioned, The Boston Globe, June 3, 2007.

  • AAJ News


    (A)  A woman was drugged, raped, beaten, and put in a container, and had to FIGHT to get access to justice. 

    If we understand this in a CIVIL format, why should vulnerable populations who are within FAMILIES take on the entire weight of the professional experts (supposedly) to protect themselves, or their children, from rape, abduction, harassment, stalking, and assault & battery issues?

    EVERYONE seems mad at the family court venue, and evaluations/mediations (I refer to litigants, the parents).  Father’s groups AND mothers’ groups. ….  Well, maybe that’s because the entire system is an offence to due process.

    When you consider that the basic premise of this family law venue is (see my last post, history of it) mediation, and reconciliation — not due process — going in the doors to start with is like hoping to find some good apples in a barrelful of those who are profiting off family distress.  It’s a crapshoot!  Children grow up fast, and no one has time for that in their brief childhoods!

  • Sexual Assault & Discrimination Victims Protected From Defense Contractor Forced Arbitrations
    October 6, 2009
    Washington, DC— Jamie Leigh Jones was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq.  Because of a clause placed in her employment contract, KBR forced her to submit to a binding, secret, non-appealable arbitration.  Jamie had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.
  • But an amendment passed today by the U.S. Senate (S.A. 2588), as part of the Department of Defense Appropriations Act (H.R. 3326), will prevent other defense contractor employees from being forced into arbitrations as a result of sexual assault, harassment or other forms of discrimination.  Upon the President’s final signature of the bill, the amendment – sponsored by Sens. Al Franken (D-Minn.) and Mary Landrieu (D-La.) – would bar defense contractors from imposing forced arbitration clauses on their employees for sexual assault claims or Title VII violations.

    “No corporation should ever be able to force their employees or customers into these biased, one-sided proceedings,” said American Association for Justice President Anthony Tarricone.  “But this one amendment goes a long way in protecting the rights of defense contractor employees, who should never endure what Jamie did to receive justice after such a horrific ordeal.”

    Jamie will testify tomorrow at a Senate Judiciary Committee hearing in support of the bipartisan Arbitration Fairness Act (S. 931 / H.R. 1020) at 10am in 226 Dirksen.  Sponsored by Sen. Russ Feingold (D-Wis.) and Rep. Hank Johnson (D-Ga.), the Arbitration Fairness Act would ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen, so corporations cannot manipulate the system in their favor at the expense of consumers and employees.

    As the world’s largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.







  • AAJ Calls on Congress to Restore Americans’ Basic Legal Protections
    November 19, 2009Washington, DC—A bill introduced in the U.S. House of Representatives today will restore standards required to file court cases and strengthen Americans’ basic legal protections.  The “Open Access to Courts Act of 2009,” introduced by Rep. Jerrold Nadler (D-NY), Rep. Hank Johnson (D-GA), and House Judiciary Chairman John Conyers (D-MI), will address recent U.S. Supreme Court decisions – Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) – which irrationally raised the bar for Americans seeking justice in employment, discrimination, and other civil cases.


    Searle Institute Report Shows Mandatory Arbitration Favors Corporations Over Consumers

    A Searle Civil Justice Institute report on mandatory binding arbitration clearly indicates the process is stacked against consumers and overwhelmingly favors the corporations that utilize its services. While the authors try to paint a rosy picture of the mandatory arbitration process, the data actually illustrates otherwise.



  • Business claimants win overwhelmingly more cases than consumers.

  • Searle’s data shows that consumers won some relief in 53.3% of cases they filed; however, business claimants won relief in 83.6% of cases.

  • Business complaints receive drastically higher awards in cases they win compared to consumers.

    1. In 41 of the 51 cases in which a business claimant won, the business recovered between 90 and 100% of the amount they claimed. Conversely, in the 119 cases won by consumers, the individual was awarded only 20% or less of their claim in 36 cases. In only 37 cases did consumers receive between 90 and 100% of the amount claimed. The rest, 46 cases, had the consumer winning anywhere between 11 and 89% of their original claim.
    This data shows that businesses win far more often than consumers in mandatory arbitration and in much higher amounts. Consumers win less, and when they do prevail, receive much lower awards compared to their original claim.


    1. It is likely that consumers have a much lower “win rate” than Searle’s 53.3% result.


  • As stated above, consumers are receiving less than 20% of their claims in a large amount of mandatory arbitration cases. Therefore, if a consumer is to claim $5,000 and only win $10, this counts as a “win” by Searle’s calculation, therefore inflating its 53.3% “win rate” figure.

  • Opponents of making arbitration voluntary, instead of mandatory, wrongly claim that the process is fair for consumers who don’t have an attorney.

    1. When business is the claimant, consumers have virtually no chance of prevailing without an attorney, losing 93% of the time. With an attorney, consumers can defend themselves successfully against business claimants in 38.9% of arbitrations.  Regardless of the statistics above that show how mandatory binding arbitration is stacked against consumers, Searle’s



    data is narrow and hardly representative of all arbitrations. Searle looked at only 301 arbitration cases from one arbitration company (American Arbitration Association). This data is NOT

    accessible to the public; AAA selectively gave Searle data to inspect, which raises questions as to the validity of the sample.  Additionally, if Searle’s determination is that arbitration is fair and a useful remedy for consumers, this does not explain why corporations and their front groups are lobbying for these clauses to be



    MANDATORY in consumer contracts. Arbitration should be VOLUNTARY, not forced upon consumers and hidden in contracts, even before a dispute arises.

    About Searle Civil Justice Institute


    : This institute is a creation of the late conservative philanthropist Daniel Searle. Searle donated to a long list of conservative organizations, including American Enterprise Institute, Manhattan Institute, and the Pacific Research Foundation. All of these groups have worked to undermine the civil justice system and prevent everyday Americans from holding corporations accountable via the legal system. This report from the Searle Institute follows in that same vein.

    For press inquiries, please contact Ray De Lorenzi in AAJ Communications, 202-965-3500 x369


    and, as to an individual:


    Written by Let's Get Honest|She Looks It Up

    December 18, 2009 at 3:27 pm

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