This column, a regular feature, was originally published on Reuters.com.
1. Sealing deadly court files:
In the wake of continuing disclosures about General Motors’ failure to acknowledge critical safety issues related to faulty ignition switches, there’s a looming issue that has not been addressed: How litigation settlements negotiated by private parties can result in court-sanctioned cover-ups that endanger the public.
We now know that there were several cases in which the families of people who died in crashes after ignition switches failed quietly received cash settlements from GM.
In return for the cash, the plaintiffs not only promised to withhold the settlement details but also agreed with GM that the court files would be sealed. In some cases, those sealed records included documents and transcripts of pre-trial deposition testimony that contained evidence gathered about the dangers of the faulty switches.
As this editorial in USA Today points out, “Outrageous as it sounds, such secrecy is routine. Powerful companies and institutions regularly suppress information about public risks, ranging from incompetent doctors to abusive priests to defective products.”
One reason the secrecy is “routine” is that both parties involved benefit. The plaintiff — and the plaintiffs’ lawyers — get a quick cash payout. The defendant gets the case killed without the bad publicity and the wave of suits that could come from a public trial, let alone an adverse jury verdict.
This issue — whether the public interest should trump the interests of private parties that bring suits in public courts — has been around for a long time. But with the stark details of the GM cases now in the headlines — at a time when digital technology would enable the instant distribution of searchable data related to dangers ranging from bad drugs, to killer ignition switches — it’s time for someone to take a new look.
What ethical issues do, or should, judges and lawyers face in sealing records like these? Under what circumstances should the law be changed so as not to allow these legal cover-ups? Have any corporations adopted their own ethical standards about sealing records whose public dissemination might help save lives? Could they face punitive damages in future suits for not doing so and for insisting that records be sealed?
2. Obama and his cabinet:
Knowing that I am writing a book about the trials and tribulations of Obamacare, someone asked me on the day that Health and Human Services Secretary Kathleen Sebelius resigned how close Sebelius’ relationship with President Barack Obama had been.
My quick answer was that I didn’t think they had a close relationship at all. But, I added, I can’t tell if Obama has any kind of close connection with any of his other Cabinet members, either — except perhaps for Arne Duncan, the highly-regarded education secretary, who is a basketball buddy of Obama’s from Chicago, and Attorney General Eric Holder, whose wife, physician Sharon Malone, is reportedly a close friend of First Lady Michelle Obama’s.
Those exceptions aside, it seems that an important, unwritten story of the Obama years may be the shift of power away from the individual Cabinet agencies and into the White House — enabled by the lack of a real connection between the president and his Cabinet secretaries.
At least from the standpoint of watching how the Obama administration’s healthcare policies have developed and been implemented, the president’s Cabinet members do not seem to be lead players. In the diaries and meeting minutes that I have examined, covering the beginning of 2009 through the exhaustive negotiations with Congress in early 2010 to get Obamacare passed, Sebelius and her staff were largely second-tier players. Her staff occasionally contributed technical details and data related to proposed provisions in the law, but even that input was typically vetted through, or contradicted by, staffers at the White House or the Office of Management and Budget.
Once the law was passed, Obama’s White House staff continued to take the lead on everything from the timing and substance of the technical regulations necessary to implement the law, to decisions made over the past year extending deadlines or defining other details of Obamacare.
White House staffers also controlled the messaging — even if the messengers were spokespeople for the Department of Health and Human Services or its Centers for Medicare and Medicaid Services division.
“Still awaiting talking points from WH on this,” was how one HHS spokesperson began an email to me mid-morning on October 1, 2013, when I inquired about the website’s quick crash. The same spokesperson hastened to remind me that “everything is on background,” because the White House had a policy of having people in the Cabinet agencies never talk for attribution about anything outside of prepared press statements.