“In the many examples cited above, it is clear that judges do not always consider public health and safety,” the Judiciary Committee concluded in its report. “As a result of the differing interests of judges, plaintiffs, defendants, and the public, current litigation practices do not adequately protect the public from court-endorsed secrecy that conceals public health and safety hazards.”
Kohl, in a statement, argued beyond legalities: “Had information about these harmful products not been sealed by court orders, injuries could have been prevented and lives could have been saved.”
A coalition of consumer groups expressed their thoughts in an April 14 letter. The coalition included the Alliance for Justice, The Center for Justice and Democracy, Consumers Union, Consumer Federation of America, National Consumers League, US PIRG, and Public Citizen.
But a coalition of business groups—whose members include the Pharmaceutical Research and Manufacturers Association of America (PhRMA), the National Association of Manufacturers, and the U.S. Chamber of Commerce—asserts that the bill would severely restrict existing judicial discretion to protect the privacy, property, and confidentiality of litigants by requiring federal judges to make what it deems premature decisions about information produced in civil trials.
“Ultimately, S. 623 would increase the costs and burdens associated with civil litigation while stifling the federal court system,” the Coalition to Protect Privacy, Property, Confidentiality, and Efficiency in the Courts wrote in a May 3 letter to the Judiciary Committee. “Finally, the bill would confer unfair tactical advantages on certain litigants at the expense of others.”
More worrisome for drug and device developers, Sunshine in Litigation will make it harder to protect trade secrets and other intellectual property for products that are the subject of a trial, Matt Webb, director of legal reform policy for the U.S. Chamber Institute for Legal Reform, told GEN.
“If you get sucked into any sort of litigation—which those in the biopharma world always do because of the nature of the products they produce and the research they are doing—your ability to get a protective order to protect your trade secrets and what-have-you is going to be greatly diminished,” Webb said. “The evidentiary burden that’s going to have to be met in order to obtain a protective order is going to be challenging. And the result is that you may basically have your processes and other types of confidential internal information, which any sort of competitor would be very happy to get their hands on, put out for the world to see and your competitors to see.”
With the ability to secure protective orders diminished, Webb said, litigation would become more burdensome and challenging. “The likelihood of both companies as well as individuals being willing to settle litigation if a protective order can’t be put in place is going to be greatly diminished.”
“Basically you’re ‘in for a penny, in for a pound’ as far as litigation is concerned. It may make more sense just to roll the dice and to litigate the case to its fullest extent,” Webb added.
As he correctly notes, that may have the unintended effect of hurting consumers, since many have prevailed in litigation against businesses in and outside of biopharma by compelling defendants to settle cases for significant sums of money. Neither the coalition nor other business groups have come out, however, with any attempt at quantifying the bill’s costs in time and money.
PhRMA referred questions to the U.S. Chamber of Commerce. PhRMA’s biotech counterpart, the Biotechnology Industry Organization (BIO), opposes Sunshine in Litigation, communications director Stephanie Fischer told GEN.