Tom Toles, Washington Post

Tue November 26, 2002 10:47 AM ET
By Todd Zwillich
From Reuters Health

http://www.reuters.com/newsArticle.jhtml?type=healthNews&storyID=1808546

http://www.medscape.com/viewarticle/445139

WASHINGTON (Reuters Health) - Attorneys for the Bush Administration asked a federal court on Monday to order that documents on hundreds of cases of autism allegedly caused by childhood vaccines be kept from the public.

Department of Justice lawyers asked a special master in the US Court of Federal Claims to seal the documents, arguing that allowing their automatic disclosure would take away the right of federal agencies to decide when and how the material should be released.

Attorneys for the families of hundreds of autistic children charged that the government was trying to keep the information out of civil courts, where juries might be convinced to award large judgments against vaccine manufacturers.

The court is currently hearing approximately 1,000 claims brought by the families of autistic children. The suits charge that the measles-mumps-rubella (MMR) vaccine, which until recently included a mercury-containing preservative known as thimerosal, can cause neurological damage leading to autism.

Federal law requires suits against vaccine makers to go before a special federal "vaccine court" before any civil lawsuit is allowed. The court was set up by Congress to speed compensation claims and to help protect vaccine makers from having to pay large punitive awards decided by juries in state civil courts. Plaintiffs are free to take their cases to state courts if they lose in the federal vaccine court or if they don't accept the court's judgment.

The current 1,000 or so autism cases are unusual for the court. Because it received so many claims, much of the fact-finding and evidence-gathering is going on for all of the cases as a block.

Monday's request by the Bush Administration would prevent plaintiffs who later go to civil court from using some relevant evidence generated during the required vaccine court proceedings.

Plaintiffs' attorneys said that the order amounted to punishment of the families of injured children because it would require them to incur the time and expense of regenerating evidence for a civil suit.

"Wouldn't it be a shame if at the end of the day our policy would be to compensate lawyers," said Jeff Kim, an attorney with Gallagher Boland Meiburger & Brosnan. The firm represents about 400 families of autistic children who received the MMR vaccine.

Kim accused the government of trying to lower "a shroud of secrecy over these documents" in order to protect vaccine manufacturers, who he said were "the only entities" that would benefit if the documents are sealed.

While federal law clearly seals most documents generated in individual vaccine cases, it has never been applied to a block proceeding like the one generating evidence in the autism cases.

Administration lawyers told Special Master George Hastings that they requested the seal in order to preserve the legal right of the Secretary of Health and Human Services to decide when vaccine evidence can be released to the public.

Justice Department attorney Vincent Matanoski argued that to let plaintiffs use the vaccine court evidence in a later civil suit would confer an advantage on plaintiffs who chose to forgo federal compensation.

"There is no secret here. What the petitioners are arguing for are enhanced rights in a subsequent civil action," Matanoski said of the plaintiffs. "They're still going to have unfettered use within the proceedings."

Hastings would not say when he would issue a ruling on whether to seal the court documents, but did say that his decision would be "very prompt."

November 30, 2002

Why Judges Should Make Court Documents Public

By STEPHEN GILLERS

http://www.nytimes.com/2002/11/30/opinion/30GILL.html

he Justice Department asked a federal judge this week to seal documents that might otherwise aid parents in lawsuits against the maker of a mercury-based vaccine preservative called thimerosal, which the parents claim caused their children's autism. The department has the right to make the request, but if the court grants it, parents could be prevented from getting evidence that might prove their claims. The court should refuse.

Courts occupy a borderland between the private and the public. In resolving disputes, they gain control of information that litigants wish to keep private. Some of this information deserves privacy, like trade secrets or details of a divorce. But information that alerts the public to danger or that might help prove responsibility for injuries should be publicly available once it is filed in court.

Similarly, a judge should not suppress information that enables the public to evaluate the performance of the courts, government officials, the electoral process and powerful private organizations. A federal appeals court was correct to unseal a letter that prosecutors had submitted to a trial judge last May in support of a lenient sentence for a political contributor who had aided their investigation of Senator Robert G. Torricelli of New Jersey. The letter, which contained evidence supporting the contributor's claims that he had given Mr. Torricelli thousands of dollars in cash and gifts, was initially sealed at the request of the prosecutors and the senator, who was seeking a second term. Within days after the court unsealed the letter, Mr. Torricelli was forced to withdraw from the race.

This is how things are supposed to work. In 1978, the Supreme Court noted that it was "clear that the courts of this country recognize a general right to inspect and copy . . . judicial records and documents." Yet judges often seal records and order litigants to conceal what they may have learned in discovery before trial. By doing so, judges give the parties protection from public scrutiny that they could not get at a trial in open court. This benefits defendants by shielding possible misconduct. Plaintiffs benefit, too, because the prospect of court-imposed secrecy makes it more likely that defendants will offer more generous settlements. And courts benefit because cases are resolved more quickly.

Of course, the public pays for secrecy by losing the information that the trial would have revealed. Worse, even the request for sealing documents occurs in secret.

There is evidence that court-ordered secrecy is increasing, especially in defective products cases. A study in Dallas County, Tex., found that between 1920 and 1980, only 80 cases had sealed records. Between 1980 and 1987, the study found 200 sealed cases.

Not all judges comply with the wishes of the litigants. This week, Constance M. Sweeney, a state judge in Massachusetts, rejected the Boston archdiocese's motion to suppress 11,000 documents concerning the church's responses when priests were accused of sexually abusing children. The archdiocese had been ordered to give the documents to a lawyer representing four men suing the church, but it wished to keep them from public view while it sought to have the case thrown out. But Judge Sweeney properly refused to hide documents that contained information about a scandal involving serious harm and a powerful institution.

Defenders of court-imposed secrecy argue that it encourages settlements and avoids the costs of a trial. Some even argue that the courts' only job in private disputes is to help the parties resolve their differences and that the public interest enters the equation hardly at all. But when, as with thimerosal, a court is asked to suppress information that might help vindicate legal claims, or that reveals a continuing public danger or unethical behavior by powerful people or institutions, secrecy is intolerable. The harm is made worse when a judge, a public official, is asked to use public power to inflict it.

Stephen Gillers, vice dean of New York University School of Law, teaches legal ethics.

Pat Oliphant, Universal Press Syndicate, 11/19/02

November 27, 2002

Justice Dept. Seeks to Seal Vaccine Papers

By SHERYL GAY STOLBERG

http://www.nytimes.com/2002/11/27/politics/27VACC.html

ASHINGTON, Nov. 26 — The Bush administration asked a federal claims court today to seal documents relating to hundreds of claims that a mercury-based preservative in vaccines, thimerosal, has caused autism and other neurological disorders in children.

Lawyers for the Justice Department asked for the protective order on behalf of Tommy G. Thompson, the secretary of health and human services, whose department administers a government fund to compensate people injured by vaccines.

A department spokesman said that the law creating the fund gives the secretary control over what information is released and that the government was merely trying to preserve that right.

About 1,000 families have filed claims under the program, asserting that their children suffered mercury poisoning from the vaccines, which until recently included the preservative. The claims are being heard by a special master, George Hastings, in a so-called vaccine court that was created in 1986, when Congress passed the measure setting up the government fund.

Lawyers for the families said they were outraged by today's move. They said the government was trying to prevent families from obtaining damaging information about the preservative, which could later be used against drug companies in civil courts.

"We're dealing with real injury to real children in a program that is funded by taxpayer dollars," said Michael R. Hugo, a Boston lawyer. "It is unbelievable to me that the president of the United States, in the name of trying to help the drug industry, would put the interests of the drug industry over the interests of neurologically impaired sick children and their parents."

Today's move comes on the heels of another controversy involving thimerosal.

Congressional Republicans inserted a provision into the domestic security bill, signed into law on Monday by President Bush, that is intended to protect Eli Lilly, thimerosal's manufacturer, from lawsuits over the preservative. The provision would force families to seek compensation through the vaccine court instead of civil courts.

Michael Bender, a spokesman for the Mercury Policy Project, a nonprofit advocacy group that is helping the families, said today's move "amounts to insult on injury" for children whose parents have filed claims.

"Suppressing these documents," Mr. Bender said, "flies in the face of an open and transparent court system."

http://www.mercurypolicy.org/

12/3/02 Newsday ran an editorial today urging denial of the US Department of Justice's recent request for secrecy to seal court documents related to thimerosal and autism lawsuits.

11/27/02 Consumers Union wrote a letter to Attorney General John D. Ashcroft, requesting that the Justice Department "immediately" withdraw from asking a federal court to seal documents in lawsuits examining links between thimerosal and autism. Consumers Union sent similar letters to Senators McCain, Hatch, Gregg, Grassley, and Shelby, requesting congressional hearings into the issue.

On Monday, Department of Justice lawyers asked a federal court "task master" to withhold from the American public documents on hundreds of lawsuits filed by parents of injured children claiming mercury-induced autism resulting from childhood vaccines. Safe Minds and the Mercury Policy Project expressed outrage at this legal maneuver by the Bush Administration. "This cover-up attempt by the Bush Administration at the apparent behest of Eli Lilly and others is appalling," said Michael Bender director of the Mercury Policy Project. The groups believe that corrective action is needed. "We want Congress to investigate why the Bush Administration is bending over backwards to help thimerosal vaccine makers and Eli Lilly to the point that they would grant them total immunity from civil action. We didn't let 'Big Tobacco' of the hook, why are we letting the drug makers?" said Lyn Redwood, president of Safe Minds.

Representative John Conyers, Jr., the Ranking Democrat on the House Judiciary Committee, issued a press release and letter to Attorney General John Aschcroft and HHS Secretary Tommy Thompson regarding their decision to seal records relating to potential links between thimerosal and autism and other neurological disorders in children.

Also see press coverage in the New York Times, Justice Dept. Seeks to Seal Vaccine Papers.