Protecting Confidential Information and Avoiding ‘Public Hazard’ Labeling Under the Florida Sunshine in Litigation Act

“Public hazard” is not a label that any company would want associated with its product. Such a label can have far-reaching consequences for product manufacturers, especially if a product is involved in mass litigation. Unfortunately, Florida law provides unique challenges to product manufacturers who wish to maintain the confidentiality of business and proprietary documents and not have their product labeled as a “public hazard.” Under the Florida Sunshine in Litigation Act (FSLA), as it currently stands, a trial court may enter a publicly available order classifying a product as a “public hazard” if it merely “has caused and is likely to cause an injury.” This impermissibly vague standard could arguably cover countless products used on a daily basis — from bicycles to high-heel shoes to playground equipment. Are these products inherently a public hazard? Common sense would say no, but under the FSLA, the answer is not always clear.

Florida Sunshine in Litigation Act: Background

The FSLA broadly defines a “public hazard” as an “instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.” Fla. Stat. § 69.081(2) (2018). This vague and ambiguous standard is problematic for product manufacturers. An argument could be crafted to fit almost any product under this far-reaching definition.

The statute also requires public disclosure of confidential information related to a public hazard. It states that “no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard” or concealing “information which may be useful to members of the public in protecting themselves from injury which may result from [a] public hazard.” Fla. Stat. § 69.081(3). Further, any “portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful to members of the public in protecting themselves from injury . . . , is void, contrary to public policy, and may not be enforced.” Id. § 69.081(4). Essentially, if a product has caused and is likely to cause injury, a confidentiality order related to the product may be void and unenforceable.

Standing under the FSLA is granted for any “substantially affected person” to “contest an order, judgment, agreement, or contract” violating the FSLA “by motion in the court that entered the order or judgment, or by filing a separate action for declaratory judgment under the statute.” Id. § 69.081(6). Based on our interpretation, the FSLA is triggered once a substantially affected person (including non-parties) files a motion or initiates a declaratory judgment action claiming a product is a public hazard. This may include a plaintiff, the media or anyone else claiming to be substantially affected. It is also likely that the statute can be invoked by a judge sua sponte. Once the FSLA is triggered, a party attempting to protect confidential information must file a motion and establish good cause to prevent disclosure.

Cases Interpreting the FSLA

Only a handful of Florida courts have addressed the FSLA since its 1990 enactment, with differing outcomes. Florida courts have held defendants are entitled to a trial-like evidentiary hearing before a “public hazard” determination is made. See Ford Motor Co. v. Hall-Edwards, 21 So. 3d 99, 103 (Fla. 3d DCA 2009) (reversing trial court for failing to conduct a formal, trial-like evidentiary hearing with witness lists, exhibits lists and designation of testimony); Goodyear Tire & Rubber Co. v. Jones, 929 So. 2d 1081, 1085 (Fla. 3d DCA 2005) (recognizing a “right to a hearing” on whether “documents contain trade secrets; whether any of the documents should be protected because they are not related to [a public hazard]; or whether disclosure of the documents was necessary or could be useful to the public”); E.I. DuPont De Nemours & Co. v. Lambert, 654 So. 2d 226, 227-28 (Fla. 2d DCA 1995) (reversing trial court for failing to conduct an evidentiary hearing on FSLA issues, even after jury trial on merits of underlying litigation).

The trial-like evidentiary hearing should allow for testimony of witnesses, including experts, and the presentation of documentary evidence. See Ford Motor Co., 21 So. 3d at 103. If the court finds after the evidentiary hearing that documents and materials, or portions thereof, consist of information “concerning a public hazard” or “information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard,” the court shall allow for public disclosure of the documents. Fla. Stat. § 69.081(7). The FSLA, however, states the disclosure should be limited to portions of documents “necessary or useful to the public regarding the public hazard.” Id.

In E.I. Dupont De Nemours v. Lambert, plaintiff alleged ornamental plants were harmed by the chemical Benlate. 654 So. 2d at 227. After a protective order was entered, several non-parties filed motions contending Benlate was a public hazard under the FSLA. Id. A trial was set on the FSLA issues, but a trial of the underlying suit occurred first. Id. at 228. The jury in the underlying case rendered a verdict in plaintiff’s favor. Id. Based on the verdict, the court entered an order declaring Benlate a public hazard and vacating the protective order. Id. On appeal, a Florida appellate court reversed the decision, finding the FSLA entitled defendants to proper due process, which called for a trial-like evidentiary hearing. Id.

The plaintiff in Jones v. Goodyear Tire filed claims alleging he was injured when a Goodyear tire exploded. 871 So. 2d 899 (Fla. 3d DCA 2003). The trial court entered a confidentiality order over plaintiff’s objection, which prohibited the parties from publicly disclosing Goodyear’s documents obtained during discovery. Id. at 905. The case proceeded to trial, where the jury found in plaintiff’s favor. Id. at 906. On appeal, the court deemed the tire a public hazard based on the jury’s verdict. Id. The appellate court remanded the case with instructions to vacate the confidentiality order. Id.

Jones was appealed years later for a second time. See Goodyear Tire & Rubber Co. v. Jones, 929 So. 2d 1081 (Fla. 3d DCA 2005) (Goodyear II). Goodyear appealed the trial court’s decision to vacate the confidentiality order and deny its motion requesting an in-camera inspection of documents to determine if FSLA disclosure was necessary. Id. at 1082. Goodyear also raised, for the first time, that the FSLA is unconstitutional. Id.

Based on the jury verdict against Goodyear, the appellate court again declared the product a public hazard and affirmed its decision vacating the confidentiality order. Id. at 1086. The appellate court also ruled that Goodyear waived its right to FSLA due process when the trial court entered the protective order over plaintiff’s objection and assertion that the product was a public hazard. Id. at 1085. Moreover, the court rejected Goodyear’s arguments that the FSLA is unconstitutional, finding these issues were not raised in the trial court, the FSLA is not arbitrary or unreasonable, and the FSLA is rationally related to a reasonable government objective. Id. at 1086.

Several years after Goodyear II, Goodyear petitioned a Florida appellate court in a different case. See Goodyear Tire & Rubber Co. v. Schalmo, 987 So. 2d 142 (Fla. 2d DCA 2008). In Schalmo, “there [was] a suggestion that the tires constitute a ‘public hazard.’” Id. at 145. Goodyear was concerned that the trial court entered a confidentiality order without first conducting an in-camera inspection of documents sought in discovery. Id. at 143-44. Based on the result in Goodyear II, Goodyear wanted to ensure it did not waive its due process rights. The court stated that “when [the FSLA] is raised, the possible existence of a public hazard can limit the use of confidentiality or protective orders.” Id. at 145. “Therefore, the possible existence of a public hazard must be determined upfront.” Id. The appellate court quashed the confidentiality order and directed the trial court to conduct an in-camera inspection of the documents at issue. Id. at 146.

In the most recent opinion analyzing the FSLA, an appellate court quashed a trial court’s order declaring a Ford Explorer a public hazard. See Ford Motor Co. v. Hall-Edwards, 21 So. 3d 99 (Fla. 3d DCA 2009). In this case, plaintiff filed a motion requesting that the trial court declare the Ford Explorer a public hazard under the FSLA and preemptively hold that no order would be entered concealing information about the alleged public hazard. Id. at 100-01. Notably, no confidentiality order had been entered in the case. Id. at 101. The trial court held a one-hour hearing where no evidence was presented and, thereafter, entered an order declaring the Ford Explorer a public hazard. Id.

The appellate court reversed the order, emphasizing “the label ‘public hazard’ is not to be affixed to an allegedly-dangerous product ‘like you would buckle a collar on a bird dog or post a tag on an express package that is being forwarded to a friend.’” Id. at 103 (citation omitted). Instead, “[a]ttention to a proper evidentiary hearing and due process are plainly required.” Id. The court also admonished plaintiffs who “wasted no time in disseminating the order;” the FSLA “was intended to preclude the concealment of specific information about a ‘public hazard,’ not simply to provide a tactical pejorative for counsel to use in other cases.” Id.

FSLA Takeaways

There are several key takeaways from the FSLA and related cases:

• Federal courts in Florida have determined the FSLA does not apply in federal court.
• Protective orders in product liability lawsuits are disfavored in Florida state courts and are at risk of being vacated at any stage of litigation.
• If a party to a lawsuit, third party, or presiding judge triggers the FSLA by alleging the product at issue is a “public hazard,” the defendant must: (1) engage in the full-blown trial-like evidentiary hearing, (2) agree to waive confidentiality of the information or (3) risk having the product declared a public hazard and the protective order vacated without due process.
• A trial-like evidentiary hearing to determine whether a product is a “public hazard” will likely proceed alongside the underlying lawsuit and will require substantial resources to litigate, especially where a large number of documents fall under the confidentiality order.
• A “public hazard” determination could be catastrophic for the case and other matters alleging defects in the same product. A defendant may therefore need to decide whether to voluntarily waive confidentiality and avoid an FSLA determination or risk the product being branded a public hazard and the protective order nonetheless being vacated.
• Although there are substantial questions as to the FSLA’s constitutionality, no Florida court has held the FSLA is unconstitutional.
• Plaintiffs who are familiar with the FSLA may attempt to use it as leverage.