Most product liability lawsuits against manufacturers never go to trial. For obvious reasons, companies don’t want regulators or the public to know that some of their products have injured or killed someone. Therefore they will often reach a confidential settlement agreement with the injured plaintiff or Estate. In this secret pact the plaintiff usually agrees to keep the lawsuit secret as part of the settlement agreement. Such settlements may be perceived as a win win situation for both parties as the plaintiff is being compensated for his loss and avoiding a costly trial while the manufacturers can deal with the defective product internally, avoiding expensive recalls and other profit killing consequences. However concealing important information about dangerous products may put the public at risk of an accident with more people being injured or killed. Some manufacturers simply put profit ahead of safety and find it cheaper just to pay for a lawsuit rather than correct a defective product. This type of reasoning is especially true with the automobile industry and the National Highway Traffic Safety Administration recently published a notice entitled “Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation” to try to fight this very disturbing problem. In a recent article in Fair Warning, Ben Kelley a board member of the Center for Auto Safety, and author of “Death By Rental Car: How the Houck Case Changed The Law,” comments on the vicious consequences of such contracts. However many manufactures refuse to settle absent such an agreement. An attorneys first obligation is to the client. In very strong liability cases it is often possible to successfully refuse to include a confidentiality clause. If the defendant refuses to settle and the offer is a good one the plaintiff’s attorney should , obviously, only proceed to trial with the client’s consent. In our experience in such cases the manufacturer will often back down.
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