Amid court secrecy, guns continued to kill: Our view
The hunting trip in 2000 was like others the Barber family had enjoyed in the mountains near their Montana home — until Barbara Barber released the safety to unload her Remington rifle.
The rifle fired, grievously wounding her 9-year-old son, Gus. He died at a hospital less than 90 minutes later.
Within days, his father, Rich Barber, learned of other deaths and injuries linked to allegations that Remington's popular Model 700 rifles had inadvertently fired. He heard of lawsuits against Remington, one filed by a Montana family living an hour away.
"If I had only known, my son would be alive," Barber later told his lawyer.
But how could he have known?
In 2010, CNBC reported that internal company documents showed Remington had grappled with the problem for decades but did not recall rifles or warn the public. By then, Remington had been sued at least 75 times. More than 100 people had been injured and two dozen killed.
But clever use of court secrecy — confidential settlements and "protective orders" to seal documents — helped keep evidence of the rifle's potential dangers under wraps. Had court documents been public, injuries might have been prevented and lives saved.
Along the way, Remington confidentially settled a key case in Montana, and judges signed orders sealing documents in Missouri, Montana, Oklahoma and Texas.
The most shocking thing about secrecy in the public courts is how often it is sought and how easily judges grant it. The Catholic Church kept settlements secret for decades, protecting pedophile priests.
Secrecy has shielded negligent doctors. It has hidden dangerous drugs, gas tanks that ignited in collisions and, most recently, exploding air bags.
Early on, Remington won most trials or settled for small amounts. But its luck changed in 1994, when for the first time, a Texas jury saw damaging internal company documents undercutting Remington's assertion that the rifles were free of any defect.
The jury awarded $17 million to a Texas man whose foot had been amputated after an inadvertent discharge. Rather than appeal, Remington settled for a confidential amount.
The Montana case, in 1995, was settled with the proviso that "all settlement conditions are to be confidential."
Recent developments show how fiercely Remington guards secrecy. In 2011, when Rich Barber and Public Justice, a lawyers' group that advocates for open courts, fought to unseal the Montana case, Remington unsuccessfully opposed them. A judge wrote that "substantial evidence reveals that a portion of the trigger mechanism ... is defective."
Thanks to Barber's activism, Montana now has an anti-secrecy statute that prohibits state courts from concealing information about public hazards. Just four other states have similar rules. Federal anti-secrecy legislation has stalled on Capitol Hill.
This month, Remington — which declined to answer our questions — proposed settling nationwide class action suits by installing new triggers in some rifles. Both Remington and plaintiffs' lawyers sought to seal documents turned over in the cases. This time, finally, federal Judge Ortrie Smith of Kansas City, Mo., refused to just go along.
If more judges realized their duty is to the public — not to corporations or lawyers — there would be fewer tragedies such as the one that killed Gus Barber.
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