Tom Toles, Washington Post
November 26, 2002 10:47 AM ET
By Todd Zwillich
From Reuters Health
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
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
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
By STEPHEN GILLERS
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
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
November 27, 2002
Justice Dept. Seeks to Seal
By SHERYL GAY STOLBERG
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
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
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
"Suppressing these documents," Mr. Bender
said, "flies in the face of an open and transparent
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
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
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.