The Palm Beach (Florida) Post is reporting that Ag-Mart has settled a civil suit filed by a migrant farmworker family who alleged their son’s serious birth defects were associated with the company’s improper handling of pesticides. Earlier reporting in March 2005 by the PB Post exposed the working and living conditions of this family and other farmworkers, and birth defects among some of their children.
At the same time this settlement was reported, another Florida newspaper wrote that violations against Ag-Mart for failure to comply with the State’s pesticide use rules had nearly all been dropped by an administrative law judge. Oddly, these violations (e.g., failing to provide protective equipment for employees working with pesticides, allowing workers to harvest crops too soon after chemicals were sprayed, burning pesticide containers) all seem like the type of practices that might have contributed to the workers’ exposure and possible link with the infants’ malformations. This development, coupled with the fact that the Ag-Mart case settlement is protected by a confidentiality agreement, creates serious obstacles for public health prevention.
In fall 2004, the Project on Scientific Knowledge and Public Policy (SKAPP) sponsored a symposium entitled “Sequestered Science: the Consequences of Undisclosed Knowledge.” Our objective was to explore the competing values and interests in both science and the law of knowledge disclosure. As Givelber and Robbins noted in their paper:
“Public health practice—the prevention of disease and injury and the protection of the population—relies on access to information. Legal practice treats information very differently; it is a weapon; has power and value, and it is rarely yielded without getting something in return.”
“Civil litigation uncovers a great deal of otherwise unavailable information about practices and products which may cause disease and injury. However, common practices in and related to lawsuits, trails, and courts, such as protective orders, sealing orders and confidential settlments, can deprive public health authorities and the public itself of information that might be helpful to prevent disease, injury, disability, and death.”
The Ag-Mart case involves this precise issue: a confidential settlement. I wonder what we might have learned about the types of pesticides used by the company, their chemical-application processes, and their worker-protection systems. As Givelber and Robbins note:
“Protective orders and secrecy agreements have shielded many patterns of injury and disease associated with dozens of materials, products, and processes, such as pharmaceuticals, truck and automobile designs, child car seats, cigarette lighters, school lunch tables, and water slides. Three well-known examples illustrate the problem: asbestos, Dalkon Shield, and Bridgestone/Firestone tires.”
We cannot say whether the products or practices identified in the Ag-Mart case rise to the same level as these examples exactly because we are not privy to any details. Some documents, such as the monetary amount that Ag-Mart agreed to provide these parents, should remain confidential. (The parents’ attorney says: “any care this child will require over the course of his lifetime will be provided by the settlement of this case” which will alleviate a huge emotional and economic burden for them.) To the extent, however, that information gathered in the course of the litigation exposed information which might prevent future harm to public health or safety, it should not be “sealed” from public access. As the PB Post articles remind us, other children of workers employed at Ag-Mart field were also born with birth defects. Why doesn’t the knowledge-generation exercise from the first case freely inform us about other potential cases of harm?
During our preparation for the “Sequenced Science” symposium, we learned of the rule adopted by the U.S. District Court for the district of South Carolina, which says:
“No document (including court orders) may be sealed in this district if the documents contain information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” (An article by the chief judge here.)
For those interested in health and safety issues of vulnerable populations such as the farmworkers, the Occupational Health and Safety Section of the American Public Health Association will be hosting a Health Disparities Institute at its annual meeting this year (October 25-29 in San Diego, California.)