The air is going out of the tires on the plaintiffs' bar's quest for legislation to eliminate legitimate confidentiality in civil lawsuits.

The lawyers started their campaign last December, announcing two identical bills (SB 11 - Escutia and AB 36 - Steinberg) that would let them "fast track" the legislative process. These proposals said that in all lawsuits alleging a product defect, toxic hazard, insurance misdeeds, or financial fraud, the results of essentially all discovery would be public information and settlements could no longer be confidential.

Today SB 11 and AB 36 bills are disparate, confusing solutions searching for a problem.

What happened? Here's a checklist:

[ ] A major news story revealed that a group of personal injury lawyers kept information about a pattern of tire failures from federal regulators for four years rather than risk an investigation that might have weakened their cases.

In late June the New York Times quoted a trial lawyer consultant who said he identified 30 cases of tire failures in 1996 but that he and his trial lawyer clients decided not to tell the National Highway Traffic Safety Administration about the problem. Plaintiffs' lawyers in California had been highlighting Firestone tire failures in their campaign for AB 36 and SB 11. So the Times documentation of a number of these lawyers intentionally withholding public safety information understandably raised questions about their true motivation in seeking legislation to shift considerable power over civil litigation confidentiality from judges to themselves.

[ ] People began realizing that Congress has already passed a tough law inspired by the tire/rollover problem.

In the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act signed by President Clinton last November, Congress mandated increased requirements for reporting to the National Highway Traffic Safety Administration (NHTSA) and bigger penalties for failures to report incidents and complaints related to autos, auto parts, and tires. As Congressman Billy Tauzin, who often sides with the plaintiffs' bar, described the law:

"We gave NHTSA all kinds of new authority. We mandated the sharing of information by insurance companies, and claims agents, and tire companies, and automobile companies. And we also gave NHTSA the money and the authority to put in better data systems to track those trends. We also instructed them to do a lot more testing."

Even though regulations implementing the act are not final, NHTSA has added 20 more defect investigators and more are on the way. Its testing and research budget has been boosted by $9 million and another $16 million could be added next year. The act's early data reporting requirements are being universally welcomed.

Joan Claybrook, head of Public Citizens and a former NHTSA administrators says, "It will be a massive change because if the agency gets data early it will be able to make calls about safety and not just wait until the manufacturer decides it is time."

[ ] Bills like AB 36 and SB 11 bills have failed in other states.

With trial lawyers nationally launching a coast-to-coast "drive for documents," it's not surprising that California is only one of many states where the plaintiffs' bar began the year by sponsoring anti-protective order legislation. The scorecard: bills introduced in16 states; dead in 7, enacted in none. State-by-state, law makers are concluding what the non-partisan Federal Judicial Conference told Congress in 1998 after an objective study: "There is no evidence that protective orders in fact create any significant problem in concealing information about public hazards or in impeding efficient sharing of discovery information."

[ ] A separate bill was introduced that responds directly to the data delay problem found in tire failure investigations.

Hearings and research in the Ford/Firestone saga showed that more data should have been collected faster, giving safety experts the facts they needed to zero in on causal information which could lead to warnings and recalls.

A new bill (AB 881 - Simitian) responds to this need by enabling rapid delivery to public agencies any important hazard information developed in the course of a civil lawsuit. It would allow a litigant who discovers documents relating to a possible defective product or environmental danger to get the court's permission to deliver this information to the appropriate state or federal regulatory and enforcement agency � even when the information is covered by a protective order designed to protect privacy. The bill also voids any portion of a settlement agreement limiting a party's ability to provide information to regulators.

The bill is attractive to many legislators because it beefs up early public safety reporting without the AB 36/SB 11 downsides of unfairly harming reputations or disclosing the private or businesses information of innocent individuals and businesses named in a lawsuit.

[ ] Health care researchers have shown how they and patients could be hurt by SB 11 and AB 36.

Legislators at an Assembly hearing heard how San Diego's Alliance Pharmaceutical Corp. spent $2 million to defeat a suit then had to go back to court to prevent the law firm that sued it from using the company's proprietary information in a seminar for other plaintiffs' lawyers. The litigation cost Alliance valuable time and money in its research to develop a blood substitute for emergency room use and a liquid breathing product for critically ill patients.

The situation is summarized by Dr. David L. Gollaher, President and CEO of the California Healthcare Institute: "With its potential to expose biomedical companies to substantial economic risk without improving public health and safety, AB 36 would be a large step backward for the industry that promises most for the future health of our state."

[ ] Policy makers are recalling that California already has the toughest penalties in the nation for withholding information about dangerous products.

Considerable attention has been given the TREAD Act's strong provision imposing criminal penalties for auto and tire makers who mislead federal agencies about product defects. And the separate Consumer Product Safety Act enacted earlier in 2000 requires fines and prison time for anyone who not only makes but imports, distributes, or sells any product that does not meet safety standards or intentionally withholds information about a product's defects.

But guess what: California already has its own Corporate Criminal Liability Act that makes companies and managers criminally liable if they don't report a product's serious concealed defects.

Finally, California legislators have been exposed to numerous debates this year about threats to privacy in the Internet world. They know that protecting privacy and protecting public safety by increasing the flow of information are twin goals, each with constitutional implications, and that balancing them is a complex venture. At this point, it is unlikely that legislators are going to be "fast tracked" into an AB 36/SB 11 "solution" that is simplistic and wrong.

*John H. Sullivan is president of the Civil Justice Association of California in Sacramento, a non-profit association representing businesses, professionals, and local governments. Information on the association and civil justice issues is at www.cjac.org.