With Product Liability, What you Don't Know can Hurt You

The combination of litigation and journalism usually is cast in a criminal context - the O.J. Simpson trial immediately comes to mind.

But what about in a civil context?

The proliferation of news-magazine shows, television gab fests and radio talk shows with an unquenching thirst for new material have publicized a seemingly endless stream of dangerous products on the airwaves.

One cannot turn on the tube without hearing one of these self-proclaimed consumer watchdogs begging the viewer not to touch that dial without hearing the latest on fad diets, funky hair loss treatments or fiery automobiles.

But think about it. What better way to warn the public about a product's known risks than through the media? After all, how else would the public find out about the dangers in asbestos, baby formulas, commuter aircraft and arthritis remedies?

Critics, including LeHigh University Professor Carole Gorney, who coined the phrase "litigation journalism," attack trial lawyers for being too activist in "generating publicity favorable to plaintiffs." Instead, though, it could be considered a way to level the playing field.

Jury Verdict Research, a court-watching group, recently reported that a plaintiff's chances of winning product liability lawsuits declined to 43 percent from 54 percent from 1987 to 1992. This 1994 study also found that consumers won only about 39 percent of product liability cases against product manufacturers in 1992, down from 55 percent in 1987.

And what about big business' using the media in the 1980s to convince the public of a so-called insurance crisis, threatening the foothold on which many Americans had come to rely in conducting their everyday business? Legislators in some states, such as Indiana and Colorado, bought into such rhetoric and implemented wide-ranging changes in the civil justice system, only to find insurance premiums in their states continuing to rise 10 years later.

Defense attorneys representing large corporations also have long been manipulating the media to generate a sympathetic public. It is clear that companies use their pocketbooks in their own form of "litigation journalism," with some companies threatening to withhold advertising from a media outlet after experiencing adverse publicity.

And with some 90 percent of all lawsuits settled before a final verdict, it is clear cases are often settled by companies in an effort to keep certain products out of the spotlight. Many of these are settled on the condition that such agreements be kept confidential. The more damaging the material, the earlier the settlement is reached, thereby minimizing the risk of the discovery material being leaked as well as the risk of adverse public sentiment.

Such action has led some states, such as Texas and Florida, to enact "sunshine" laws that prohibit protective orders from concealing documents that relate to public health and safety.

Of course, critics of the trial bar point to the celebrated General Motors case on "Dateline" where NBC officials admitted rigging the fiery destruction of a side-saddled pick-up truck. Any reasonable person would think this unfair, particularly with the case pending in court against GM at the time the program aired.

But what about products that threaten the safety and security of the general public to which it has a legitimate right to know before a case is closed? The American Bar Association's Rules of Professional Conduct recognize in the comment to Rule 3.6 that "vital social interests" are served in the free flow of information on judicial proceedings concerning matters of general public concern. Such publicity "is often of direct significance in debate and deliberation over questions of public policy," according to the ABA comments.

What it all boils down to in a civil trial is balancing the constitutional right of a corporate defendant to a fair trial with an injured party's right of free expression.

Protections for the defendant long have been a part of the civil justice system in guaranteeing a fair trial not influenced by the media. The examination of a juror's potential bias, change of venue and admonitions to jurors by the judge not to follow the press on the particular case are some of the procedures used in assuring parties a fair trial as an alternative to restricting access to the press.

And where is the unfairness when the identity and the stakes of these whistle-blowing plaintiffs are made known, often at the risk of personal privacy? In exposing such hazards, litigation and journalism - together - serve as catalysts for providing a safer environment for everyone, thereby preventing future litigation against these same companies.

When attorneys attempt to litigate their case in the courts of public opinion - as in the GM case - it is time for the judge to step in and correct the plaintiff or his lawyer with proper sanctions. But in the case of a plaintiff's making the public aware of legitimate dangers, then, in fact, an obligation exists to inform the public about such known hazards. If a company fears its product will be tried in the court of public opinion, it has nothing to fear if it has manufactured a safe product.

And think of all that free publicity.