Monday, Aug. 04, 2008

Courts’ ‘sunshine’ might spread

S.C.’s openness in settlements might become U.S. rule

When the sad case of the food poisoning death from undercooked turkey eaten at Camden’s Old South restaurant ended, the settlement amount made public was $719,131.

That 2006 news might not seem like a big deal.

But in most states, settlements in state and federal courts often are secret. Lawyers for the defendants seek and get gag orders and sealed records.

But in South Carolina, thanks to U.S. Judge Joe Anderson and State Supreme Court Chief Justice Jean Toal — the main advocates for court openness — settlement records in cases involving public safety have been open for several years.

“This state has kind of pioneered the effort,” said Anderson, who hopes the rest of the nation will follow South Carolina’s lead.

Last week, Anderson was in Washington testifying before a U.S. House subcommittee on the virtues of openness. A bill would require federal courts in all states to be as open as those in South Carolina.

“I knew of a judge who restricted access to case information where a child died while riding an allegedly defective go-kart,” Anderson told the subcommittee.

“The settlement was $1.4 million, and the judge imposed a strict obligation of secrecy on the parties. I later learned that the model go-kart which the child had been riding was still being sold and marketed,” he testified.

Richard Gergel, attorney for the estate of James Arledge of Lugoff, who died from salmonella bacteria in the restaurant’s turkey, said knowing the settlement’s size is important.

“It gives an idea of the size of the transgression,” Gergel said, “and whether there may be other related cases.”

Gergel said, in the past, South Carolina lawyers — whose first obligation is to see that their client gets a fair settlement — would agree to keep the amount secret so their client would get paid. The client also would agree never to reveal how much he got.

No one represented the public’s right to know just how dangerous a product might be, Gergel said.

“Now, in South Carolina, the judges have stepped in to protect the public’s right to know,” Gergel said.

A bill similar to the House bill is in the Senate Judiciary Committee and is co-sponsored by Sen. Lindsey Graham, R-S.C.

Both bills, called “Sunshine in Litigation” acts, would prohibit federal courts from sealing settlements in matters of public interest.

Speaking against Anderson’s view at last week’s House hearing was U.S. Judge Mark Kravitz, who told the subcommittee that even though openness might be desirable, federal judges — not Congress — should make reforms.

Also testifying was University of South Carolina Law School ethics professor emeritus John Freeman of Columbia. He said most judges rubber-stamp secrecy agreements.

“The system is broken, and, unfortunately, judges cannot be counted on to fix it,” Freeman said in prepared remarks.

It is late in Congress’ session, and neither the House bill nor the Senate bill is expected to pass this year.

Ironically, Gergel declined to talk in specifics about the case. But in the Kershaw County courthouse, open court records spell out how much was paid.

Duke Manufacturing, the Missouri company that made an allegedly defective stove, paid $458,666. A complaint in the case said the stove didn’t work properly, resulting in undercooked food. Sufficient heat is necessary to kill harmful bacteria.

The stove did not contain any warning devices to alert the cook that it wasn’t heating properly.

Old South restaurant, which served the turkey, paid $260,435.

More than 170 people fell ill after eating at the restaurant in one of the state’s worst food poisoning outbreaks.

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