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Florida's "Sunshine" would rain on Colorado business


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Based on a Florida law, a bill in the Colorado Legislature seeks to turn upside down an important aspect of Colorado’s civil justice law concerning product liability.  Should the bill become law, Colorado’s business climate and economic development efforts would take a severe hit.

SB-153 essentially would put into the public domain the sensitive, proprietary information of a company about a product—and then require the company to make the legal argument--a “rebuttable presumption”—that the product is not a “public hazard.”

And what products could be considered “public hazards”?  According to the bill, a “public hazard” means “ . . . any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future.”

The bill’s summary states that the purpose of the bill is to “ensure that, in any civil or administrative action in any state or federal court or tribunal in this state, information concerning public hazards is not concealed.”

In other words, it appears that the Napoleonic Code undergirds SB-153: the defendant is presumed guilty by the state and must prove his or her innocence to the state.  Under Anglo-Saxon common law, by contrast, the defendant is presumed innocent and the state must try to prove its case with evidence to a jury of the defendant’s peers.

The bill would forbid a court from keeping confidential, during the discovery phase of a civil lawsuit, information from the company about its product if the company cannot prove that the information is not related to a “public hazard.”  In other words, a company could be sued and its trade secrets, proprietary information and intellectual property would be released into the public domain.  Anyone—including the news media or consumer groups—could insert themselves into the discovery process and make public whatever company secrets he or she finds.

During the discovery phase of a lawsuit, the judge would have to rule on whether or not a product is a “public hazard.”  This judicial ruling would precede the trial where the jury would hear evidence about the product, which would clearly taint how jurors would view the product.

And what products could be considered “public hazards”?  According to the bill, a “public hazard” means “ . . . any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future.”

The bill summary states that Colorado courts now can seal court records, issue protective orders and enter into confidentiality agreements about “hazards to public health, welfare and safety.”  Consequently, the bill’s summary asserts that the purpose of the SB-153 is to “ensure that, in any civil or administrative action in any state or federal court or tribunal in this state, information concerning public hazards is not concealed.”

SB-153 is sponsored by Senate Majority Leader John Morse (D-Colorado Springs) and is reportedly being pushed by the Colorado Trial Lawyers Association.  Entitled “The Sunshine in Litigation Act,” the bill has been assigned to the Senate Judiciary Committee, whose chair is Senator Morgan Carroll (D-Aurora).

The CACI Governmental Affairs Council has agreed to make the defeat of SB-153 a top priority. 

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