was modified. But since sealing a case limits information, it is difficult to know how many similar cases exist.

Of course, the primary purpose of our civil justice system is to resolve disputes between private parties. On this basis, some argue that the public has no right to information derived from a civil case. But while protective orders are warranted in many circumstances, some demand closer scrutiny. A court shouldn't simply check off on an agreement that conceals information affecting public health and safety. More than that, it is troubling when such agreements prevent State or Federal regulators from obtaining the information they need to do their job.

We recognize that there is no quick fix to this problem, but we hope that this hearing will help answer some preliminary questions. Is there a growing use of court secrecy in civil litigation, and if so, does it prevent disclosure of information that raises safety concerns? Do the demands of the court system encourage indiscriminate use of secrecy, and how can these competing interests best be resolved? Finally, would it be appropriate for the Federal courts to amend their rules or for Congress to legislate in this area?

We will not be able to resolve all these questions today, but we will begin to bring court secrecy out of the shadows and into the public light.

Today, we are fortunate to have three panels of outstanding witnesses. I want to extend particular thanks to the judges on panel three. They agreed to forego normal procedure and testify last in order to comment on our other witnesses and help us build a more complete record.

Our first panel today is composed of two very courageous people, Fred Barbee and Dr. Devra Davis. Mr. Barbee is here from Minong, WI, and we are pleased that he could make it here today all the way from Washburn County. He is accompanied by his lawyer, Bruce Finzen. Dr. Davis is a scholar in residence at the National Academy of Sciences, and the author of several books, including an upcoming work on worldwide trends in cancer.

We thank you both for appearing here this afternoon, and we would appreciate if you could limit your testimony to about 7 minutes. Your written statements in their entirety will be made part of our record.

At this point I like to submit for the record a letter from Robert Abrams, attorney general, State of New York.

Re: Judiciary Committee Hearing on Sealing of Court Records

Dear Senator Kennedy and Senator Kohl:

Thank you for the opportunity to submit this letter to the Judiciary Committee on the troublesome practice of sealing court records in matters that affect public health and safety. Unfortunately, plaintiffs are often pressured by defendants into agreeing to confidentiality as part of the price of settling their personal injury litigation. In cases where the personal injury results from environmental contamination, information which is of tremendous importance to the community at large, concerning chemical contamination and public health, may end up shrouded in secrecy.

My office has been involved in one such case where personal injury actions resulted in a secret settlement. In that case, the Xerox Corporation settled with two families who sued Xerox alleging that exposure to toxic chemicals from its plant in Rochester, New York had damaged their health. Xerox reportedly paid several million dollars to the families in exchange for a promise of complete secrecy. The court approved the settlement and sealed the court records upon the request of the parties. New York State authorities learned of the settlement only after its disclosure in the Washington Post.

The Xerox case is a stark example of how the public interest is ill-served by the unnecessary sealing of settlement agreements in private litigation. My office went to court on behalf of the New York State Department of Health because of concern that

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public health authorities. Leaking toxic chemicals may affect not only those who sued, but other persons in the community as well. These secret settlements and the corresponding lack of information, however, make it very difficult for government officials to determine links between environmental exposure to toxic chemicals and health effects.

Although the court in the Xerox case ultimately ruled that the State Health Department could have access to epidemiological and environmental data and reports, it later became apparent that critical documents were not in fact part of the court file. Nevertheless, had the state been given notice of the settlement at the time it was entered, documents might have been made available to appropriate state authorities from the outset.

As with settlements involving environmental contamination, secrecy in product liability cases deprives the public of important safety information. Several state courts are now moving to alter the systematic approval of such secret settlements. The Texas Supreme Court has imposed a new rule which requires public notice of any attempt to seal records in lawsuits involving public health and safety. In New York, the Administrative Board of Courts has been asked to consider a similar rule endorsed by New York's Trial Lawyers Association.

Federal and state legislation may, nonetheless, be necessary to prohibit a court's blanket approval of settlements which place a veil of secrecy around vital information regarding hazardous products or exposure to dangerous chemicals. One such bill, which would prohibit courts from entering secrecy agreements in cases relating to product safety, has been introduced in Congress by Representative Cardiss Collins of Illinois. The approach might well be broadened to cover all cases which may affect public health and safety, including environmental matters and medical malpractice, another area in which secret settlements are common. Such legislation is also being considered in several states, including Florida, Missouri and Rhode Island.

I am gratified that this Committee is investigating the ramifications of these secret settlements. The privacy of individual plaintiffs can be protected adequately without blanket secrecy. I look forward to working with the Committee to insure that important records in private settlements are not sequestered from public view in matters clearly affecting public health and safety.

Respectfully submitted,

Robert Atrame

Senator KOHL. Mr. Barbee, if you would like to start.

PANEL CONSISTING OF FREDERICK R. BARBEE, MINONG, WI, ACCOMPANIED BY BRUCE FINZEN, COUNSEL; AND DEVRA LEE DAVIS, BETHESDA, MD

STATEMENT OF FREDERICK R. BARBEE

Mr. BARBEE. Thank you, Senator. Mr. Chairman, my name is Fred Barbee. I am from Minong, WI. My wife, Carol, had a Bjork Shiley Convexo-Concave heart valve implanted on May 26, 1982. After 6 years, the heart valve failed due to a strut fracture. She died approximately 48 hours after she first showed symptoms of what we now know was a valve failure, after great efforts were made to keep her alive.

The symptoms of this valve fracture are much like a heart attack, and that unfortunately led to an incorrect decision on my part to take her to a closer but limited facility that could treat a heart attack, but not a broken valve. That incorrect decision caused Carol to slip into clinical death before we could get her to the appropriate facility. We may not have been able to prevent her strut fracture, but given half a chance and information that had been secret, we could have prevented her death.

I believe that she would be alive today if we had obtained information about the potential of a total malfunction of her heart valve, upon which she was totally dependent for life.

However, the manufacturer of the valve, Shiley, Inc., and its parent company, Pfizer, Inc., made a conscious effort not to directly provide information to us, and made the decision not to provide that information to my wife's regular treating doctors, deciding instead only to provide some information about the valve malfunction to heart surgeons.

However, my wife, like most open-heart surgery patients, had not seen her heart surgeon since the valve was implanted in 1982. The only other source of information available to us, the media and the press, was absent, I believe, because of secrecy orders and confidentiality agreements.

I believe my story will help you to understand two things. We who have been touched by the catastrophic event of a valve fracture are not nameless, faceless people incapable of making rational decisions in the face of a catastrophe, and we can be and must be educated. We cannot be kept ignorant about the potential failure of a medical device, whether it be a heart valve or anything so vital to life.

Our tragedy began around 5 p.m. on April 24, 1988. I found my wife, Carol, on the floor having difficulty breathing. She said that she did not think her mechanical heart valve was working right anymore. I immediately put my ear to her chest and, unlike any other time that I had done this, there was indeed no standard clicking of the valve.

I had stated I had better call the ambulance right away. Carol said that I should not take time to do that, as a wait for the ambulance would probably mean that it would not get there as fast as we could drive there ourselves.

I immediately called the Spooner Community Hospital, which was the closest hospital emergency receiving room, requested the emergency receiving area, and informed them that I was bringing in my wife and that it was an emergency situation where we felt there was a problem with her heart or the heart valve.

I estimated that it took me approximately 20 minutes to drive to the emergency receiving room. I asked them to get oxygen going right away because she could not seem to get her breath. Carol told the doctor that she felt she was having a heart attack, and felt that her valve was not operating correctly.

The doctor observed her heart rate, which was about 141 beat per minute, and he stated that he believed the problem was that the heart was beating too fast for it to be efficient, and that would also account for the lack of the valve sound.

He told Carol, "We will have you feeling fine in a moment, just as soon as we get your heart rate down to normal again." She had to take some deep breaths in order to speak, and then it was with great difficulty that she was able to utter anything loudly enough to really clearly be understood.

A syringe of Verapamil, a medication which slows the heart rate, was prepared. As Carol's condition was being monitored, her coughing had increased, the rattle in her throat was more obvious. Her heart fought to maintain its rate, but eventually her heart did react to the Verapamil and began dropping.

As her heart rate dropped, the doctor said, "Well, you should be feeling a lot better now." Carol replied that everything was worse and it was harder than ever for her to breathe. By this time, she was badly coughing and gasping all of the time, almost totally unable to get any sort of a breath.

The doctor remarked, "You should be feeling much better by now." Again, the look on her face was bad; she had gone unconscious and there was no response. At this time, there was some urgent reaction on one of the machines or pieces of test equipment that were hooked up to her, and they rushed me out of the room. They started CPR on her and pulled the curtain around, but before they pulled the curtain, I could see that she was in a position flat on her back, making no sign of trying to get up. After about half an hour, the doctor came out. Once again, he seemed quite calm, stating that the problem was that the artificial heart valve was apparently not working.

I said, "Where do we go from here?" He said the only chance was to get her someplace where they could open her up and get to the heart. I said, "Where would the quickest place be from here?" The doctor answered "Duluth," and I said, "Well, let us do it."

The doctor stated that he would get the ambulance ready, arrange to go with the nurses and continue CPR all the way there, stating, "I don't know if she will be alive when we get there, but we will try."

We arrived at Duluth's St. Mary's Hospital where I was taken to the fourth floor, ushered to the surgical area, and I had high hopes because I had received news about her good blood pressure and pink, warm condition when she arrived there at the hospital.

However, news came from the operating room soon that things