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By Paul Power Jr. ITampa Thibune

The Sunshine-in-Litigation Act prohibits sealing records if they are produced in court and pertain to a "public hazard." The law was adopted in the spirit of the state's Sunshine Law, which allows broad public access to government records.

Big business opposed the law in part because companies want to shield information from disclosure, protecting their investments in costly research and development programs.

On the other side are trial lawyers, who see the law as a possible tool to pry lose information from a defendant, as well as the state attorney general, who argues that people have a right to know if products are harmful.

In 1993, Commissioner of Agriculture Bob Crawford and a media company went to a Hardee County circuit judge to unseal thousands of records in a Benlate DF plant injury case. They used the law as the basis for their action.

Benlate's manufacturer, Dupont, objected, and the net result of the dispute was that thousands of records never were released en masse. Many of them - memorandums, scientific evaluations and lab tests - did emerge through the Hardee trial and in other trials around the country.

However, when it came time to apply the Sunshine-in-Litigation Act in the Benlate DF case, Dupont resisted, calling the law "unprecedented legislative hostility to manufacturers."

It added: "The statute does not create an open search through a manufacturer's files merely because a product is alleged... to be a public hazard."

In February 1994, Circuit Judge Oliver Green upheld the constitutionality of the law and ordered the records released. Green did not have the last word, though. Dupont appealed to the 2nd District Court of Appeal in Lakeland. That court reversed Green's decision.

"We had argued that certainly Judge Green was well-equipped to make that decision,'said Holland & Knight attorney Beth Johnson, who helped represent The Ledger, a Lakeland newspaper, in a legal challenge to obtain the records.

Attorney General Bob Butterworth said at the time that. the law was defensible because 'the state has a compelling interest in protecting the public."

The appeal court ruled that Dupont was not given an adequate Opportunity to respond in the Hardee case. So the case was referred to Circuit judge Susan Roberts, where the issue is pending.

Since the law is relatively new, there have not been many challenges to it or rulings by judges on its scope, Johnson said.

The Florida case that spawned the underlying dispute over the Sunshine-in-Litigation Act involved an ornamental plant business. Sunshine Foliage World sued Dupont in a 1993 Benlate crop damage complaint. A jury awarded the owners $3.15 million. Dupont is appealing the verdict.

Former state Sen. Richard Langley, R-Clermont, an attorney and rancher, was one of the bills Sponsors. He said it was necessary because legal settlements between manufacturers and consumers are often sealed, leaving the public in the dark.

'Part of the settlement will be that the plaintiff will not discuss the settlement, will not disclose the hazard, there is no admission of the hazard... and other people out in the public have no knowledge of what happened.'

Langley said that initial settlements involving the Dalcon shield, an intrauterine birth control device linked to fatalities, as well as exploding Ford Pinto gasoline tanks, were two examples of a public harm that was not made public because of confidentiality orders.

Dupont is not alone in its position that the litigation law is anti-business.

In a separate Leon County action, a group of corporations failed to kill the act in 1992 after they challenged its constitutionality.

Plaintiffs included Associated Industries of Florida, which represents 7,000 businesses; the National Association of Manufacturers; the Florida Hospital Association; the Harris Corp., Piper Aircraft Corp., and Sun Banks.

Paul Jess, general counsel for the Tallahassee-based Academy of Trial Lawyers, a trade group, said another impact of the law could be that existing confidentiality agreements can be nulllied by a judge's decision that the issue involves a public harm.

"It's a very common scenario for those agreements to be made secret by agreement of the parties, and no one is ever told about it, sometimes not even that the agreement itselfwas reached," said Jess, who worked for approval of the act five years ago.

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