Why Are Judges Sealing Court Evidence Related To Opioid Settlements?

By Kelly Burch 06/27/19

Experts are calling into question the unexplained decisions to seal evidence surrounding opioid settlements with Big Pharma companies. 

judge deciding to seal court evidence

Eighteen years ago, West Virginia Judge Booker T. Stephens saw evidence that Purdue Pharma had engaged with misleading and aggressive marketing practices that were getting people hooked on opioids in his state. But instead of allowing that information to become public, Stephens sealed the evidence. Purdue settled with the state, and the damning information was never made public. 

“This case was sealed because both sides agreed and asked me to seal it," he said to Reuters recently. "Obviously when you settle a case of this magnitude and of this nature, Purdue Pharma would not want to let the world know they had engaged in deceptive marketing practices.”

State and federal laws allow court evidence to be sealed when there is a privacy concern, but a recent Reuters analysis found that the practice has become widespread. Although federal law mandates that most evidence be made public, Reuters found that over the past 20 years judges have sealed evidence in about half of multidistrict litigation cases, often without explanation. 

This is alarming in cases like that of Purdue, where making the evidence public would have raised awareness of a public safety issue, and potentially saved lives. 

"Information that could have really made a difference sometimes doesn't come to light,” Judge and judicial educator Jeremy Fogel said. 

Judges are supposed to explain why they seal evidence, and only seal the documents that contain sensitive information, like medical records or trade secrets. But as sealing evidence has become more common, judges like Stephens simply seal evidence without explanation. 

In 1991, Arthur Miller, a New York University law professor, wrote a paper claiming there was no proof that sealing evidence could result in public harm. Reached recently, however, he said that the opioid epidemic and the Reuters analysis of how evidence is handled show that there is a public interest in keeping evidence open.

"Certainly, anything relating to public health or things tied to social policy, you would want to have an explanation as to why something is sealed," he said.

The question is particularly relevant as a federal judge in Ohio sorts through 2,000 lawsuits against the drug manufacturing industry. Judge Dan A. Polster has sealed most of the evidence in those cases. 

A recent court case in Massachusetts has made public reams of internal documents from Purdue, which have highlighted the unscrupulous practices at the company. The outcry shows the importance of having transparency around evidence in the judicial system. 

Stephens, the judge who sealed the Purdue evidence 18 years ago, still sees the affects of opioids in his courtroom today. Yet, West Virginia University College of Law professor Jennifer Oliva said that Stephens could have helped fuel earlier awareness of the opioid epidemic if he had not sealed the case. 

"That's bananas," Oliva said. "He's not allowed to do that without providing reasons."

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.