[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                  H.R. 1787, H.R. 3369, and H.R. 1084


                             JULY 20, 2004


                             Serial No. 107


         Printed for the use of the Committee on the Judiciary

    Available via the World Wide Web: http://www.house.gov/judiciary


94-918                      WASHINGTON : 2004
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel

                            C O N T E N T S


                             JULY 20, 2004

                           OPENING STATEMENT

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress From the State of Wisconsin, and Chairman, Committee 
  on the Judiciary...............................................     1
The Honorable John Conyers, Jr., a Representative in Congress 
  From the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3


Chief Philip C. Stittleburg, Chairman, National Volunteer Fire 
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Robert F. Kanaby, Executive Director, National Federation of 
  State High School Associations
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Mr. Edward R. Boyer, P.E., President and CEO, Mercy Medical 
  Airlift, and Vice Chairman, Angel Flight America
  Oral Testimony.................................................    12
  Prepared Statement.............................................    14
Mr. Andrew F. Popper, Professor of Law, American University and 
  Washington College of Law
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19

               Material Submitted for the Hearing Record

Statement of the Honorable Michael N. Castle, a Representative in 
  Congress From the State of Delaware............................    37
Statement of the Honorable Ed Schrock, a Representative in 
  Congress From the State of Virginia............................    37
Statement of the Honorable Mark Souder, a Representative in 
  Congress From the State of Indiana.............................    38



                         TUESDAY, JULY 20, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in Room 
2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. 
Good morning.
    The Committee on the Judiciary is holding a legislative 
hearing today on three bills: H.R. 1787, H.R. 3369, and H.R. 
    Each of these bills are intended to remedy specific 
liability problems in particular areas of volunteer and non-
profit activities. I would like to thank the sponsors of these 
bills: Representative Mike Castle of Delaware, Representative 
Mark Souder of Indiana, and Representative Ed Schrock of 
Virginia, respectively. They are to be praised for their good 
work on legislation designed to protect and encourage those who 
do so many good works.
    The overall objective of today's hearing is to explore the 
effects of liability fears on volunteer and non-profit 
organizations generally and on whether Congress might provide 
appropriate legal relief that will encourage activities which 
benefit society. An even broader theme of this hearing and a 
central concern of this Committee is how institutions that are 
vital to the functions of a decent society, such as the 
volunteer and non-profit organizations before us today, have 
been damaged by the development of the lawsuit culture.
    The witnesses before us today will describe some of the 
specific failings of our civil justice system because they, 
their organizations, or those they serve have been the direct 
victims of it. But in a larger sense, all Americans have 
already been victimized by the lawsuit culture. The economic 
consequences of the lawsuit culture are severe, but pale in 
comparison to the overall societal cost. The lawsuit culture 
has already fundamentally altered the behavior of average 
Americans without their ever making a conscious choice in the 
matter. It pervades our thinking and has changed who we are and 
what we do, and not for the better.
    In the lawsuit culture, teachers are afraid to teach or 
discipline students; doctors are afraid to practice medicine; 
recreation departments are so afraid of liability that they 
remove standard playground equipment, happily enjoyed by 
millions of children for decades. And as we will hear today, in 
the lawsuit culture volunteer organizations and those who give 
time and resources to them are increasingly fearful of legal 
exposure that might arise from their efforts to help others.
    It is difficult to quantify the overall damage to American 
society done by the lawsuit culture, but easy to see the 
results anecdotally and in our own changed thinking. Philip 
Howard recently catalogued these consequences in his thought-
provoking book ``The Collapse of the Common Good.'' Mr. Howard 
observed that the law is supposed to be an instrument of 
freedom, allowing us to act freely, confident that the law will 
defend reasonable conduct. ``By letting everybody know where 
they stand, law liberates people to make free choices,'' writes 
Howard. But instead of law providing freedom today, Mr. Howard 
notes, and I quote, ``Social relations in America, far from 
being steadied by law's sure hand, are a frayed tangle of legal 
nerves. Any dealings in public, whether in hospitals, schools, 
offices, or in the ebb and flow of daily life, are fraught with 
legal anxiety. An undertow pulls at us constantly, drawing us 
away from choices we think are reasonable. Legal fear has 
become a defining feature of our culture.''
    How can we restore personal responsibility in the law as 
the guardian of freedom rather than a subconscious, pervasive, 
paralyzing fear of all risk? Perhaps what is most in need of 
fundamental change is our own perception of the law as a system 
of individual rights disjoined from any conception of fairness 
to society as a whole.
    As Mr. Howard again writes, ``Law serves a social function 
as well as an individual one. The social function used to be 
considered its main function. The rule of law was the main 
concern of our Founders, but not because they were expecting 
America to sue its way to greatness.''
    We can take a small step today in restoring that balance of 
social function of the law by examining the deterrent effect 
that legal fear is having in some very specific areas that 
otherwise benefit society. By curbing the worst excesses of the 
lawsuit culture, Congress can do something to see that 
volunteer firefighters are better equipped without spending a 
dime of the taxpayers' money. We can make sure that those who 
teach our children sports are more concerned about fair play 
and good sportsmanship than their insurance rates or getting 
sued. And we can ensure that volunteers who give of their own 
time and resources to transport ill patients hundreds of miles 
for life-saving medical treatments concentrate on flying planes 
instead of hiring a defense team.
    It's hard to imagine today, but there was a time in the not 
too distant past when no one in our society would have 
considered bringing a lawsuit for an accident against some 
charity seeking to do good. We must keep in mind that the 
lawsuit culture is a fairly recent departure from our 
traditional legal foundation. It does not have to be a 
permanent departure, and the rational changes we seek should 
not be viewed as new or radical or impossible but, rather, as a 
return to legal normalcy.
    I thank the witnesses before us today and look forward to 
their testimony. And I also look forward to America's swift 
return to making judgments based upon what's right rather than 
upon fear of legal risk.
    I now recognize the gentleman from Michigan for his opening 
    Mr. Conyers. Thank you, Chairman Sensenbrenner. I take this 
opportunity to welcome the witnesses, in particular, Professor 
Popper, who has been before the Judiciary Committee before on 
this and related matters.
    It's true that there are people that are afraid of lawsuits 
in America. But it may not be true that teachers are afraid to 
teach. It may not be accurate to say that doctors are afraid to 
practice medicine. And it may be misconceived that people doing 
good are afraid to do good because they are afraid that they 
may be held accountable for negligent acts that might flow out 
of their doing good.
    So we begin with the appreciation of all those that help--
the firefighters, the good Samaritans, the athletic 
organizations, the volunteer pilots. But the question is: Is 
this a Federal matter to determine the liability of, say, a 
fire department? We now are deciding that the State laws and 
the local laws are insufficient and it's very important that 
the national legislature weigh in on this.
    I must say that in my entire career in the Congress, I have 
never received--not just I have not received any letters, I 
have never been advised by any of these organizations about any 
problem they've had in terms of being sued or having to go into 
court or having to litigate.
    So I wonder if this is--is this a real monster we are 
attacking, or is it a continuation of the limiting of the 
rights of people who seek redress in a system which is rife in 
many instances with abuses which are uncorrected? Are we trying 
again to limit recovery? Are we trying to make it as hard as 
possible for those who do have a meritorious claim to come 
before the court? Or is this preparation for Lawsuit Abuse Week 
that our distinguished leader, Tom DeLay of Texas, has declared 
will happen in September when we come out of the August recess, 
in which all of these things will be orchestrated to form a 
part of this continuing assault on the legal system as if 
judges and State legislatures don't have the same good, common 
sense that we have?
    I'd like to ask the Chairman of the Committee, Mr. Smith, 
whether or not there have been Subcommittee hearings on, let's 
see, one, two, three measures that are being brought all 
together before us to the full Committee this morning, and I 
would yield to the gentleman.
    Mr. Smith. I thank the gentleman for yielding. To my 
knowledge, there has not been a Subcommittee hearing, but if I 
were the gentleman, I would be impressed by the fact that we're 
having a full Committee hearing on these three particular 
pieces of legislation.
    Mr. Conyers. Well, do you plan to hold----
    Mr. Smith. I think that is the----
    Mr. Conyers. Do you plan to hold any Subcommittee hearings?
    Mr. Smith. That is not my decision, Mr. Conyers.
    Mr. Conyers. Okay. Well, was it your decision to skip the 
Subcommittee hearings? And I yield to the gentleman.
    Mr. Smith. Well, I think there is good reason to do so 
because I think this points out the importance of the 
legislation to the Chairman and to the full Committee that we 
would have a hearing by the full Committee and not just limit a 
hearing to the relevant Subcommittee. So I think today's 
hearing is going to be a good one and very instructive for all 
of us.
    Mr. Conyers. Well, then, why don't we just eliminate 
Subcommittees and hold everything at the full Committee if 
everything's so important?
    By the way, I will be looking--and I ask our distinguished 
witnesses to please produce any empirical evidence, studies, 
lawsuits that have come to your attention that require action 
on not only this bill but on three completely--not completely 
different, but three similar bills to protect the firefighters, 
to assist athletic organizations, and to help volunteer pilots 
against litigation. If you have any studies, if you know 
anything about this, because I must say, only when you come 
before me am I told that this is a pressing problem, or is it 
because the distinguished Majority Leader Tom DeLay of Texas 
wants to aggregate all of these hearings in a Lawsuit Abuse 
Week? I'm not quite sure what it is we're trying to do here.
    I thank the Subcommittee Chairman.
    Mr. Smith. [Presiding.] Thank you, Mr. Conyers.
    Without objection, all Members' opening statements will be 
made a part of the record, and I will proceed to introduce the 
    Our first witness on the panel this morning is Chief Philip 
C. Stittleburg, of the great State of Wisconsin. He has been 
Chairman of the National Volunteer Fire Council, NVFC, since 
2001. Chief Stittleburg joined the Volunteer Fire Service in 
1972 and has served as Chief of the LaFarge, Wisconsin, Fire 
Department for 27 years. He is also Legal Counsel to the NVFC, 
the LaFarge Fire Department, and the Wisconsin State 
Firefighters Association, and has represented the NVFC on 
numerous National Fire Protection Association standards-making 
committees, including ones that set industry standards on 
firefighter health and safety. He served as the NVFC Foundation 
President for 12 years, and just recently completed his second 
term on the NFPA Board of Directors.
    Chief Stittleburg earns his livelihood as an attorney, but 
we won't hold that against him on this Committee. His legal 
career includes serving as an Assistant District Attorney on a 
half-time basis for the last 30 years. Welcome, Chief 
    Our next witness is Robert F. Kanaby, the Executive 
Director of the National Federation of State High School 
Associations. Before serving as Executive Director of the 
NFSHS, he spent 13 years as the Executive Director of the New 
Jersey State Interscholastic Activities Athletic Association 
and 19 years in the public schools of New Jersey. Mr. Kanaby 
has been instrumental in creating a stronger national presence 
for the NFSHS, stressing citizenship issues in high school 
activity programs and imparting the values of respect and 
sportsmanship in high school sports lesson plans. Mr. Kanaby is 
also a member of the board and Executive Committee of USA 
Basketball and the Board of the Naismith Basketball Hall of 
Fame. We welcome you as well, Mr. Kanaby.
    Our third witness is Andrew F. Popper. Mr. Popper is a 
tenured full professor at American University and Washington 
College of Law in Washington, D.C. He teaches torts, product 
liability, administrative law, and a seminar in government 
litigation. In 1996, he was honored nationally as the recipient 
of the American Bar Association Robert B. McKay Award for 
Excellence in Tort Law. In 1999, he was named University 
Teacher of the Year. He has served as Chair of the 
Administrative Law Section of the Federal Bar Association and 
was Vice Chairman of the ABA Committee on Government Relations 
Section on Legal Education and Admission to the Bar. Professor 
Popper is the author of more than 100 published articles, 
papers, and public documents.
    I am now going to recognize the gentleman from Virginia, 
Mr. Forbes, to introduce our last witness.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Chairman, I'm honored to introduce the final member of 
our panel today, Edward R. Boyer of Virginia Beach, VA. Mr. 
Boyer is a retired senior career Federal employee with 29 years 
of service at the U.S. Department of Health and Human Services 
and 44 years as a pilot in single- and multi-engine aircraft. 
Mr. Boyer has served in various capacities in the military, 
from an active-duty Army officer responsible for the Advanced 
Nike Air Hercules Air Defense System to an Air Force civilian 
employee managing the design and construction of U.S. air 
bases. Mr. Boyer is the founder of Mercy Medical Airlift, a 
charitable medical air transportation system, and Angel Flight 
America, a public benefit aviation program that offers no-cost 
access for ill patients to distant, specialized medical 
evaluation, diagnostic, and treatment centers.
    Mr. Boyer, it's a pleasure for us to have you with us this 
    Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Forbes.
    Let me swear in the witnesses, and if you all would stand 
and raise your right hand.
    [Witnesses sworn.]
    Mr. Smith. Thank you all. Please be seated.
    Let's see. Chief Stittleburg, if you'll proceed, we will 
start with you.

                     VOLUNTEER FIRE COUNCIL

    Mr. Stittleburg. Thank you, sir. Good morning. I appreciate 
the opportunity to address this Committee. I represent the 
National Volunteer Fire Council, and I am here to speak on 
behalf of the ``Good Samaritan Volunteer Firefighters 
Assistance Act of 2003'' and to explain to you why the NVFC 
supports this bill.
    About 75 percent of the fire departments in our country are 
volunteer, about 15 percent more are predominantly volunteer, 
and we protect about 45 percent of the population of this 
country. Volunteer fire departments run the gamut in terms of 
size from very, very small to very large. Most communities that 
have 25,000 population or less are probably going to be 
protected by a volunteer fire department.
    Some of these departments are extremely well equipped; 
others struggle on a daily basis to try to get equipment that 
allows them to carry out their mission.
    In 2001, the National Fire Protection Association made a 
study of the needs of the volunteer fire service and have found 
that one-third of all firefighters per shift lacked adequate 
breathing apparatus; half of all of them lacked PASS devices, 
and the list goes on. One of the sources for less well equipped 
departments to obtain equipment is from larger, better equipped 
fire departments and from industrial fire brigades.
    The role that volunteer fire departments play in homeland 
security is immense. I think this is finally being recognized 
since the events of 9/11.
    The Federal Government has provided financial help to us in 
the form in the past of the Assistance to Firefighters Grant 
program, which you are all familiar with, or what we frequently 
refer to as the Fire Act, which has distributed now more than 
$1 billion to the fire service over just the past several 
years. This is a greatly needed resource for which we are very 
grateful. But I can tell you that it's only a small start 
toward what we actually need.
    The bill that's before you today actually relates to this 
Fire Act because, as some departments receive new equipment 
with their Fire Act funds, they will be in a position to donate 
their old equipment, and this bill would facilitate that.
    What that means, in effect, is that Government gets more 
bang for its Fire Act buck. We provide more protection with 
that buck, and we are better able to protect our own members 
with that very same buck.
    Today's appearance is a bit different for me. I have the 
privilege of appearing on occasion before congressional 
committees, and I'm typically there asking for something, for 
the Federal Government to give us something.
    Today is different. Today I am not asking for the Federal 
Government to give us something. I am asking for the Federal 
Government to enable us to take care of ourselves.
    Now, one potential question that may arise is: Would 
legislation such as this encourage the use of gear that may 
possibly be unsafe? I have two responses to that question. Both 
of them are no.
    First of all, we have standards in the fire service that 
designate how we use our equipment. We have standards that 
relate to use, maintenance, inspection on a periodic basis, 
repair, taking care of the equipment according to the 
manufacturer's instructions. So we don't simply pick up a piece 
of equipment and use it. It is constantly being maintained and 
    The second point I would make is that the gear that's being 
donated is not being donated because it's no longer 
serviceable. It's being donated frequently because the 
department that is the donor is able to upgrade their 
equipment. So what this means is that the donee is much better 
off with older-model equipment than without equipment at all.
    Another objection I hear mentioned is, you know, shouldn't 
this be a State issue? Why would the Federal Government be 
involved in liability legislation at the Federal level? Well, I 
can tell you that right now there are about 10 States in the 
Union that have passed legislation similar to this. This 
problem first became apparent to us about 10 years ago. Now, at 
that rate we will never get it done. We don't have the time to 
fight this battle 40 more times.
    But, in addition to that, there is now an urgency to this 
matter. 9/11 has greatly expanded the demands made on the fire 
service, and particularly on the volunteer sector of the fire 
service. It's more important than ever that we be properly 
equipped so that we may discharge that mission that we are 
called upon to fulfill.
    The Fire Act has created a lot more fire departments that 
are now able to donate equipment. This didn't exist before. To 
lose serviceable equipment at this juncture when the mission of 
the fire service has so greatly expanded would be needless, 
unforgivable. It would be detrimental to the fire service. It 
would be detrimental to the protection that we provide to the 
American public.
    I thank you, sir.
    [The prepared statement of Mr. Stittleburg follows:]

              Prepared Statement of Philip C. Stittleburg

    Chairman Sensenbrenner, Ranking Member Conyers and members of the 
committee, my name is Chief Phil Stittleburg and I am Chairman of the 
National Volunteer Fire Council (NVFC). The NVFC represents the 
interests of the more than 800,000 members of America's volunteer fire 
and emergency services community, who provide staffing in over 90 
percent of America's fire departments. I joined the volunteer fire 
service in 1972 and have been the Chief of the LaFarge Volunteer Fire 
Department in Wisconsin for the last 27 years. I have had experiences 
in all phases of the first responder community, including chemical and 
hazardous materials incidents, EMS, rescue and fire.
    In addition to serving as the NVFC Chairman, I have represented the 
NVFC on a variety of standards-making committees, including ones that 
set industry standards on firefighter health and safety. I serve on the 
National Fallen Firefighters Foundation Board of Directors and have 
just completed two terms on the Board of Directors of the National Fire 
Protection Association. I have also served as an adjunct instructor for 
the National Fire Academy. I earn my livelihood as an attorney, which 
includes serving as an Assistant District Attorney on a half-time basis 
for the last 30 years. These positions give me an excellent opportunity 
to serve and lend my expertise in a wide array of professions in the 
public safety arena.
    According to the National Fire Protection Association (NFPA), 
nearly 75 percent of our nation's firefighters are volunteers. In any 
given year, more than half of the firefighters that are killed in the 
line of duty are typically volunteers. In addition to the obvious 
contribution that volunteer firefighters lend to their communities as 
the first arriving domestic defenders, these brave men and women 
represent a significant cost saving to taxpayers, a savings sometimes 
estimated to be as much as $37 billion annually.
    On behalf of our membership, I appreciate this opportunity to 
comment on H.R. 1787, the Good Samaritan Volunteer Firefighter 
Assistance Act, which would limit the liability of companies and fire 
departments that want to donate surplus equipment to volunteer fire 
departments. This legislation, introduced on April 11, 2003 by Rep. 
Michael Castle (DE), has a bipartisan group of 66 cosponsors. The NVFC 
strongly supports passage of this legislation.
    The fire service responds to nearly 21 million calls annually 
involving structural fire suppression, emergency medical response, 
hazardous materials incidents, clandestine drug labs, search and 
rescue, wildland fire protection, natural disasters and terrorism. Many 
of these incidents can damage America's critical infrastructure, 
including our interstate highways, railroads, bridges, tunnels, 
financial and agriculture centers, power plants, refineries, and 
chemical manufacturing and storage facilities.
    Many of these responding departments are rural, volunteer 
departments that struggle the most to provide their members with 
adequate equipment to protect their communities. In these difficult 
times, while volunteer fire departments are already struggling to 
handle their own needs and finances, they are now forced to provide 
more services.
    In recent years, the Congress has begun to respond to the enormous 
need in America's fire service by creating the Assistance to 
Firefighters Grant program, created in 2000. To date the program has 
distributed over $1.1 billion to almost 16,000 fire departments across 
the country for apparatus, personal protective equipment, hazmat 
detection devices, improved breathing apparatus, wellness and fitness 
programs, fire prevention and education programs and interoperable 
communication systems. This is the basic equipment our fire departments 
need to effectively respond to all hazards. While we greatly appreciate 
this support, we feel the Congress can do more for the fire service at 
no additional cost to the taxpayers.
    The volunteer fire service was built on a tradition of giving. 
Volunteer firefighters give hundreds and thousands of hours each year 
in service to their community. Moreover, well equipped fire departments 
have made it a tradition to give used equipment to those departments 
that are less fortunate or in dire need of equipment. However, in 
recent years, the fear of getting sued if the gear later turns out to 
be faulty has made these donors think twice about giving.
    In fact, every year, quality fire equipment, including hoses, fire 
trucks, protective clothing and breathing apparatus, with an estimated 
worth in the millions of dollars, are destroyed instead of being 
donated to volunteer fire departments in order to avoid civil liability 
lawsuits. The fear of litigation has forced heavy industry and 
wealthier fire departments to waste surplus equipment, which in some 
cases has never been used to extinguish a single fire. They are chopped 
up or sent to the dump while volunteer fire departments remain in 
desperate need of quality equipment to protect themselves and their 
    Consequently, volunteer firefighters must spend large amounts of 
time raising money, time that could be better used training for 
emergency responses. In addition, local taxpayers spend millions of 
dollars for operating expenses and for purchasing replacement equipment 
for their volunteer fire companies.
    Congress can contribute by removing liability barriers that keep 
volunteer firefighters from receiving perfectly safe equipment. To be 
sure, this act takes measures to protect firefighters from faulty 
donated equipment by continuing to hold organizations liable if they 
act with malice, gross negligence, or recklessness in making the 
donation or are the manufacturer of the donated equipment. A donor may 
still be found liable under a negligence standard. Like other Good 
Samaritan laws, this bill proposes to raise the standard from 
negligence to gross negligence.
    H.R. 1787 is modeled after state law that has been passed in 
Alabama, Arizona, Arkansas, California, Florida, Illinois, Indiana, 
Missouri, South Carolina and Texas. In fact, since this bill was signed 
into law in Texas in 1997, donations in excess of $10 million worth of 
equipment for volunteer fire departments has been distributed.
    Prior to the law being put in place, large oil refineries such as 
Union Carbide with their own fire brigades would not make any donations 
to the volunteer fire departments in the communities in which they 
operate. They cut up hundreds of thousands of dollars worth of fire 
equipment and buried it so it could not be used and traced back to 
them. This is not an isolated situation. There are other instances 
where equipment is donated in a secret fashion and anonymously dropped 
off at a specific location with a blind eye turned.
    While I understand there is limited case law against these types of 
donors, it is quite clear from my experience that the fear of these 
lawsuits is having a very real impact. It is our hope that passage of 
this legislation will send a clear signal to corporations and wealthier 
fire departments that they can donate their surplus fire equipment with 
a reduced risk of being sued for their act of kindness.
    It is unfortunate that the fire service of our country is forced to 
search for serviceable used equipment to enable it to carry out its 
vital mission. However, until the day dawns when society accepts its 
role in providing proper support to those who protect them, legislation 
such as this will be necessary.
    Mr. Chairman, I thank you for your time and your attention to the 
views of America's fire service, and I would be happy to answer any 
questions you may have.

    Mr. Smith. Thank you, Mr. Stittleburg.
    Mr. Kanaby.


    Mr. Kanaby. Thank you, Mr. Chairman. Good morning, Members 
of the Committee as well. We appreciate the opportunity to come 
here and provide some information regarding the House 
Resolution 3369, the ``Non-Profit Athletic Association 
Protection Act.'' I represent the National High School 
Federation. We represent some 51 State associations throughout 
this Nation, those of--each one in each of the States that are 
represented here on this Committee, as well as the District of 
Columbia. They in turn represent services that we provide to 
more than 18,000 secondary schools across the United States in 
the areas of sports and activities such as speech, music, 
debate, and theater. In total, our services reach more than 7 
million participation opportunities for student athletes and 
more than 4 million participation opportunities in the areas of 
the activities that I mentioned.
    We're here to talk about those activities as a means to 
deal with a situation that we are encountering that's making it 
extremely difficult for us to fulfill our mission and to 
fulfill our responsibilities to those schools and to those 
young people. We are extremely thankful to Representative 
Souder for introducing this bill, which is also cosponsored by 
Representative Smith. It is our pleasure to be able to provide 
you with any information that you would seek regarding this.
    We come to you today because we are threatened with a 
situation that may prohibit our ability to continue to write 
playing rules for those sports that we have mentioned, some 17 
sports. We publish the playing rules for 17 sports which are 
utilized by our Nation's high schools throughout the country. 
The reason why we are in danger or imperiled is because of this 
is, quite frankly, because we cannot--we are reaching a 
situation where we cannot afford to pay the insurance premiums 
that are occurring.
    Within the past 10 years, we have dealt with this 
situation, but are finding it more and more difficult to do so. 
We have seen our insurance premiums more than triple. They are 
now approaching the $1 million mark on an annual basis, and 
that represents a tremendous strain on the organization when we 
have a total budget of only $9 million.
    We come here to explain to you what it is that we do 
specifically. We write rules for playing sports here in this 
country. The rules-writing process is extremely open. It is 
representative of people from all over the Nation. It's 
representative by educators who are teacher coaches, officials, 
athletic administrators from all walks of life. It is gender-
sensitive, and it is racially sensitive. It truly represents 
America and those individuals who are working on these 
    But there is a realization that we are having more and more 
difficulty dealing with, and that is, sport requires an element 
of risk. You cannot participate in sports and eliminate the 
element of risk. When you have bodies flying through the air, 
when you have young people doing extremely--talented young 
people doing all kinds of stunts and activities, and you have 
less talented young people doing those same kinds of things or 
developing skills to do those same kinds of things, accidents 
are going to occur. And each of those accidents has now been 
representative to our being sued because we have either passed 
a rule or failed to pass a rule, because we have developed a 
rule or failed to develop a rule. And we are in a logjam 
situation where, no matter what we do, every time there's an 
accident or a difficulty that occurs, we are embroiled in a 
    Let me underscore the point that this bill does not--does 
not attempt to grant immunity over issues regarding 
discrimination, whether it be gender, racial, or disability. 
This merely is a bill to try to attempt to provide some level 
of immunity for individuals, all volunteers, who are developing 
playing rules for high school sports. We could easily offer why 
we should not have just one playing rule. But that's not the 
case. This organization, which is more than 80 years old, has 
been writing high school rules since the 1930's because the 
rules in the professional leagues do not apply to 13- and 14-
year-olds. They basically need a certain set of circumstances 
and rules that basically are done by the educators who are 
doing that teaching.
    Let me sum up by saying it's important to protect this 
organization that promotes these activities for young people 
because, should we go away or fail to start--to keep writing 
playing rules and provide the services that we do, we are going 
to lose a tremendous opportunity for young people to continue 
to learn through the spirit of sport, not just necessarily the 
skill of sport. And the spirit of sport is that which evolves 
around sportsmanship activities, it evolves around teaching 
young people citizenship skills--all the kinds of things that 
make the difference between a good citizen who contributes to 
our society and a citizen who becomes a detriment to it.
    Thank you very much for your attention. I'll be happy to 
answer any questions you might have.
    [The prepared statement of Mr. Kanaby follows:]

                 Prepared Statement of Robert F. Kanaby

    Thank you Mr. Chairman and members of the Committee for the 
opportunity to testify in support of HR 3369, the Non-Profit Athletic 
Association Protection Act. My name is Robert Kanaby and I have served 
as the Executive Director of the National Federation of State High 
School Associations for the past 11 years. Prior to that I served 13 
years as the Executive Director of the New Jersey State Interscholastic 
Athletic Association. I have also been a high school teacher, coach, 
vice principal and principal.
    The High School Federation is the national service organization and 
administrative organization for high school athletics and fine arts 
programs in speech, debate, theater and music. Our purpose is to 
provide leadership and coordination of these activities to enhance the 
educational experiences of high school students and reduce the risks 
incident to their participation. We promote inclusiveness and 
sportsmanship, and our paramount goal is to develop good citizens.
    I am here today to talk about our activities with respect to high 
school sports. Specifically, I am here to ask you support and pass 
legislation that will provide some immunity for claims of negligence 
for us and other non-profit amateur sports rule makers resulting from 
passing or adopting sports competition rules for sanctioned or approved 
    The National High School Federation develops and publishes playing 
rules for 17 sports for boys and girls competition. These rules govern 
virtually all high school competition in the United States for 
baseball, basketball, cross country, field hockey, football, boys 
gymnastics, girls gymnastics, ice hockey, boys lacrosse, soccer, 
softball, spirit, swimming and diving, track and field, volleyball, 
water polo and wrestling. To give you an example of our product, I 
included with my written testimony a copy of the rule book for 
    We have come to Congress because we have a situation that threatens 
our ability to pursue our mission. This legislation introduced by 
Representation Mark Souder would shield these organizations, their 
directors, officers, employees, representatives, and agents from 
liability for claims of negligence involving the passage, failure to 
pass, adoption, or failure to adopt rules concerning athletic 
    Before going into the details of our problem it is important to 
understand what we do and the service we provide to communities 
throughout this country. The rules writing program, which stresses 
``grassroots'' input, was initiated in order for high schools, coaches, 
athletic administrators and interscholastic officials to have direct 
influence in developing rules. NFHS rules are written specifically by 
and for the high school level of participation and are intended to 
promote and preserve the sound traditions of the sport and to minimize 
the risk of injury for participants.
    It is important to understand how these rules are developed. The 
two primary rules organizations for education-based athletics are the 
NCAA and NFHS. These two non-profit organizations publish rules for 
most education-based athletics across the country. They organize rules 
committees which are comprised of experienced practitioners (i.e., 
coaches, officials and administrators) who volunteer their time. As 
rule makers, they are involved in a predictive endeavor, which means 
that unintended consequences are always a possibility. Committee 
members observe trends in their sports, seek input from a spectrum of 
sources, and then measure possible rules changes against three 
principal standards, all of which are subjective. The three standards 
include: preservation of each sport's sound traditions; risk 
minimization; and maintenance of an appropriate balance between offense 
and defense. Each set of rules is a work in progress as players get 
bigger and stronger, coaching methods change, and technology advances. 
Each sport is an ever-moving target for rules makers, and no set of 
rules can ever make participation in sport, as we know it, completely 
    This is not a new process and this is not a new organization. The 
High School Federation is over 80 years old. We published our first 
rules in 1930 for football. On the basis of our track record of service 
to over 7 million students each year we have done a pretty good job.
    Education based sports are an important and essential part of our 
society. These activities provide great benefits for participants and 
spectators alike. It is widely acknowledged that interscholastic sports 
are a tremendous asset to America's young people. They help to build 
character and they promote important social qualities such as 
leadership, teamwork, discipline, and goal setting.
    A study conducted by the Department of Health and Human Services 
(Adolescent Time Use, Risky Behavior, and Outcomes: An Analysis of 
National Data Issued in September of 1995) found that students who 
spend no time in extra-curricular activities are 57% more likely to 
have dropped out of school by the time they would have been seniors; 
49% more likely to have used drugs; 37% more likely to have become teen 
parents; 35% more likely to have smoked cigarettes; and 27% more likely 
to have been arrested than those who spend one to four hours per week 
in extra-curricular and sporting activities.
    High School sports provides an important outlet for celebrating 
human achievement. Sport is an activity where competitors and 
spectators alike can come together to applaud athletic achievement 
without regard to politics, race, gender or ethnic origin. Next month 
the 2004 Summer Olympic games will take place in Athens, Greece. This 
event brings spectators and athletes together from over 100 countries 
to witness the performance of the world's best. For 17 days, political 
and social barriers will fall to the side as the world celebrates the 
achievement of these athletes. Similar examples take place in high 
schools every day.
    There is no question that interscholastic sports contributes to the 
health and social well being of all of the participants and helps to 
lift the spirits of spectators who watch these events. Preserving 
amateur and interscholastic sports is essential in our society, 
particularly with respect to the development of our children. However a 
situation exists that is a threat to the continuation of our ability to 
facilitate this important part of our culture.
    Sport is not without an element of danger. The nature of 
aggressive, competitive, contact-permissive physical activity entails a 
small risk of serious harm. For a few, the risk becomes a
    reality. It is only in the last decade or so that this has become a 
threat to the larger good afforded by amateur sports. As I mentioned at 
the beginning of my testimony, rule makers have increasingly become the 
target of liability claims alleging negligence due to the passage or 
adoption of rules. These allegations have resulted in an increase in 
the number of liability claims against our organization and are 
beginning to have a detrimental financial impact on the organization 
and will eventually affect our ability to continue to provide rule 
making services to our nation's high schools. Therefore we are seeking 
legislative relief through immunity for claims of negligence resulting 
from the rule making process.
    While these claims are believed to be without merit, the cost of 
defending claims and the uncertainty of judicial proceedings have 
caused us significant financial harm and have forced us to reconsider 
whether we should continue to provide rules.
    The progression of the problem for us is fairly simple. With an 
increase in liability claims, comes and increase in insurance premiums 
and with an increase in risk we find fewer companies willing to offer 
this type of coverage.
    Our position is quite simple. Catastrophic injuries while tragic, 
are not the fault of the rule maker. Sports involve a certain element 
of risk. Rule making is anticipatory and even if rule makers 
successfully anticipate problems during competition, injuries will 
occur. In deciding to partake in competition, athletes assume risk, and 
allowing suits based merely on the good faith development of the rules 
is wrong and unfair.
    Over the last three years, the annual liability insurance premiums 
for the National High School Federation have increased three-fold to 
about $1,000,000. We have been advised by experts that given our claims 
experience and the reluctance of insurers to offer such coverage to an 
organization ``serving 7,000,000 potential claimants,'' the premiums 
will likely increase significantly in years to come. Since we operate 
on a total budget of about $9,000,000, such an increase would be, to 
put it mildly, problematical.
    The proponents of this legislation do not seek protection for rule-
makers and administrators who act with malice or gross negligence. Such 
people should answer for their actions. However, we believe that 
ordinary negligence is a liability standard that simply doesn't work 
for non-profit amateur sport rule-makers. Given the inherent nature of 
sport and the massive numbers of participants, some injuries and deaths 
inevitably ensue from rule-makers decisions. To subject them to 
litigation is distracting, expensive, unfair and counterproductive. 
Rule-makers are not insurers, and the Congress should act to protect 
them and to promote the larger societal benefits they provide.
    Everyone who plays or watches high school sports or sports, at any 
level, understands that the possibility of injury is inherent in all 
sports. Any activity that involves speed, collisions, objects and 
humans to travel through the air has risks. Nor are sports stagnant. 
They are subject to ongoing redefinition as rule makers act to minimize 
risk factors and to deal with new coaching methods and technology. 
Because rule making is an anticipatory function, the consequences of 
any change takes time to play out. Even if a new rule works as 
intended, there will be adverse consequences for some athletes. As a 
nation, we recognize that such individual costs are outweighed by the 
social, educational and public health benefits that sports provide.
    For these sports to continue to grow and prosper, the development 
and enforcement of rules is essential. However, the increased expense 
of defending litigation is endangering the future of these socially 
beneficial activities. Without rules specifically written for this 
level of play, the risks will be come greater as programs throughout 
the country adopt rules written for others.
    Amateur athletics are integral to the health and well being of 
society. While non-profit organizations put their best efforts forward 
by passing rules in the best interest of the athletes and competition, 
injuries will occur as a result of the inherent risk involved in sport. 
This risk, however, should not be work to the detriment of amateur 
athletics generally. Legislation is necessary to protect rule makers so 
funds may be allocated to expanding competition, not legal fees.
    Thank you again for the opportunity to be here today and I look 
forward to answering any questions.

    Mr. Smith. Thank you, Mr. Kanaby.
    Mr. Boyer.


    Mr. Boyer. Thank you very much for this opportunity to 
present information.
    Last year, volunteer pilot organizations facilitated long-
distance, no-cost transportation for over 40,000 patients and 
their escorts in times of special need. This year, that figure 
will likely grow to 54,000 people. H.R. 1084 is essential to 
allow this unique and grass-roots form of volunteerism to 
achieve even greater growth into the future.
    Volunteer pilot organizations and the pilots themselves are 
involved in many different activities in what is generally 
called ``public benefit aviation.'' This activity can range 
from environmental observation flights to the compassionate 
transport of a widow, to the operation of the large and 
sophisticated charitable medical air transportation system in 
the United States.
    The mission and purpose of volunteer pilot organizations 
involved in the patient transport is to ensure that no needy 
patient is denied access to distant specialized medical 
evaluation, diagnosis, or treatment for lack of a means of 
long-distance medical air transportation. It's a safety net, as 
it were, for those that are bypassed by the system and can't 
get to the treatment they need. The goal is to see geographic 
distance and/or family resources removed as a factor denying 
access to specialized medical care--for all Americans.
    Patient families learn about the availability of no-cost 
transportation through disease organization letters, from 
physicians' offices, from medical centers, and, indeed, from 
constituent service staff in congressional offices. The 
volunteer pilots themselves pay all the costs of owning and 
operating their own aircraft, including fuel, maintenance, and 
landing fees, and they're not paid or reimbursed for any of 
these expenses.
    Okay. How many organizations? How many pilots? There are 
upwards of 60 volunteer pilot organizations flying for public 
benefit, but only perhaps 30 of them are separate entities and 
part of this medical air transportation system. The largest of 
the regional organizations function together as Angel Flight 
America, which has about 6,000 volunteer pilots all over the 
United States. Each organization, however large or small, 
contributes to the general public benefit, and no one group has 
an edge on doing good.
    The non-profit volunteer pilot organizations that organize, 
coordinate, and facilitate this process themselves are diverse. 
Some operate with no paid staff. Some have very small paid 
staffs. All, however, have boards of directors and they all 
have large numbers of non-flying volunteers.
    In recent years, liability issues have come to the 
forefront and now are dampening the effort.
    What are these issues? First, any organization or 
individual related to or involved with airplanes or aviation is 
perceived to have deep pockets and thus can be a tempting 
target of a lawsuit.
    Secondly, aviation insurance has skyrocketed in cost, and 
certain key aviation insurance products are no longer 
available. The one in particular here that we're dealing with 
is called ``non-owned'' aircraft liability insurance. Prior to 
9/11, a volunteer pilot organization could purchase same for 
under $2,000 annually for coverage of $5 million. Now virtually 
all volunteer pilot organizations have no non-owned aircraft 
liability insurance, meaning that their organizations, their 
boards, their paid staff, their other volunteers have no 
liability protection.
    Volunteer pilot organizations have a difficult time 
recruiting professional persons for board positions because of 
the exposure to liability. In fact, the fear of liability means 
that hospitals, doctors, medical institutions, and disease 
organizations such as the American Cancer Society are unwilling 
to refer their patients to a volunteer pilot organization. This 
is why the Shriner system, hospital system, for example, 
recently sent a letter to the Congress asking for passage of 
this bill, which would allow them to work with volunteer pilot 
organizations to move their patients to the Shriner Hospitals 
where they give free care to the children.
    On the matter of safety, the history of volunteer flying 
goes back 32 years, although most of it has arguably been done 
in the last 10 to 15 years. The safety record is exemplary.
    By way of example, Angel Flight America this year will fly 
40 million passenger miles, representing 120,000 flying hours. 
Angel Flight America, which was formed as an association in 
2000 and its seven-member agencies, some of them go back all 
the way to the 1970's. Neither Angel Flight America nor any of 
its member agencies have ever in this entire history had a 
fatal accident throughout this time. The same is true for 
virtually all the groups.
    The fear of liability is thus far greater than the reality 
of liability in history. That's a fact. The entire public 
benefit volunteer pilot world is to be commended for this 
outstanding and wonderful safety record.
    I thank you very much for this opportunity to share with 
    [The prepared statement of Mr. Boyer follows:]

                 Prepared Statement of Edward R. Boyer


    Thank you very much for the opportunity to present this information 
regarding the need for and impact of H.R. 1084, the Volunteer Pilot 
Organization Protection Act of 2003.
    Last year public benefit flying non-profit volunteer pilot 
organizations provided long-distance, no-cost transportation for over 
40,000 patients and their escorts in times of special need. This year 
that figure will likely grow to approximately 54,000 people. H.R. 1084 
is essential to allow this unique and grass-roots form of volunteerism 
to achieve even greater growth on into the future.
    Volunteer pilot organizations and the volunteer pilots themselves 
are involved in many different activities in what is called public 
benefit aviation. This activity can range from environmental 
observation flights to compassionate transport of a son to the distant 
bedside of his dying mother or to the operation of the very large and 
sophisticated charitable medical air transportation system in the U.S.. 
Indeed the very lifeblood of the nation is in the hands of volunteer 
pilots who are organized to respond to the call for emergency transport 
of blood and blood products when commercial means of transport are 
either not available or cannot deliver the blood in the time required. 
(See Note 1 below).
    Note 1. Post 911 activities saw significant quantities of blood and 
blood products transported by volunteer pilots. To streamline and pre-
plan the process for future small or large-scale emergency transport 
needs, Angel Flight America (the largest volunteer pilot organization 
in the country) and the American Association of Blood Banks 
Interorganizational Task Force on Domestic Disasters and Acts of 
Terrorism have a written Memorandum of Understanding (MOU) detailing 
how Angel Flight America volunteer pilots will provide blood 
transportation nationwide in future emergencies.
    Public benefit aviation has become so important in our society that 
the National Aeronautic Association instituted a series of Public 
Benefit Flying Awards in 2003. They annually present awards to 
volunteer pilots and volunteer pilot organizations along side their 
more famous awards including the Robert J. Collier Trophy and the 
Wright Brothers Memorial Trophy. Because they understand the critical 
role of volunteer pilot organizations the National Aeronautic 
Association recently wrote the Congress encouraging the passage of H.R. 

                         IN THE UNITED STATES?

    What today is a rather large sophisticated system of cooperating 
volunteer pilot organizations had its beginnings in the early 1970s 
with a couple of small and very ``grass-roots'' groups of pilots 
helping neighbors and friends travel to and from distant medical care. 
Unknown to each other, one group started in Sacramento, California and 
the second group right here in the Washington, DC area. While it all 
started with a few pilots and a few flights a year--it has now become a 
major public service operation functioning throughout the United 
States--indeed the concept has now spread and is being initiated in 
Europe, Canada and Australia.
    The mission and purpose of public benefit non-profit volunteer 
pilot organizations involved in patient transport is to ensure that no 
needy patient is denied access to distant specialized medical 
evaluation, diagnosis or treatment for lack of a means of long-distance 
medical air transportation. The goal is to see geographic distance and/
or family financial resources removed as factors denying access to 
specialized medical care--for all Americans.
    The scope of long-distance patient travel in the U.S. is greatly 
increasing as medicine becomes increasingly specialized and much more 
able to deal with the thousands of rare and other debilitating diseases 
heretofore only nominally treated. The Rare Disease Act of 2002 and the 
resulting new Rare Disease Centers of Excellence around the country are 
becoming places of hope for patients and families--but only if 
transportation is available. Specialized care or even access to a 
promising new clinical trial that is three states away can mean nothing 
to a patient and family that has no means for the long-distance 
travel--often required multiple times during the course of a clinical 
trial or treatment. Volunteer pilot organizations are multiplying on a 
scale that is targeted to meet this need. This is a true demonstration 
of what is best about America.
    Simply put, patients or patient family members--or members of the 
medical community--may call and tap into and seek help with no-cost, 
long-distance medical air travel for ambulatory outpatients. This 
travel is almost always needed to go to pre-planned medical 
appointments with disease specialists and/or to specialized medical 
facilities. Even if the medical care itself is free or covered by 
insurance, the matter of travel is up to the patient family and is most 
often not covered by insurance. If a family cannot afford the travel--
they are effectively denied access to what is often life-saving or 
quality of life improving specialized treatment. Such treatment often 
takes months of time and many round-trips for the patient and patient 
escort. Even ``middle America'' who might afford one round trip can 
rapidly become financially depleted and find themselves without the 
money needed to complete the specialized course of treatment or the 
clinical trial. The provision of charitable transportation in these 
situations becomes ``the shortest distance between home and hope.''
    Patients and patient families learn about the availability of no-
cost transportation through disease organization newsletters and web 
sites, from physicians offices, from medical centers around America 
and, indeed, from constituent service staff in Congressional offices. A 
phone call to one of these volunteer pilot organizations, such as the 
National Patient Air Transport HELPLINE or to an Angel Flight office, 
can start the process for a patient. The volunteer pilot organizations 
most often have a small paid staff who, in cooperation with the 
patient's doctor, screen the patients for both medical and financial 
need and then serve as mission coordinators--matching the patient and 
patient/escort needing transportation with a willing FAA qualified 
volunteer pilot who is able to provide the help for the mission at 
hand. Flights only out to about 1,000 miles are accepted for small 
aircraft travel as most volunteer pilots are operating 4 to 6 place 
small aircraft with the obvious limitations of range. Flights in excess 
of 400 miles usually involve the pre-planned linking of two or three 
different planes/pilots to complete the trip.
    The volunteer pilots themselves pay all the costs for owning (or 
renting) and operating their own aircraft including fuel, maintenance 
and landing fees. The pilots are not paid or reimbursed for any of 
these expenses. Pilots are not limited to flying for only one volunteer 
pilot organization. Indeed, many do fly for two or more such 


    There are upwards of 60 volunteer pilot organizations flying for 
public benefit--but only perhaps 30 of them are separate entities and 
part of the national charitable medical air transportation system. The 
largest of the regional organizations function together in Angel Flight 
America, which has about 6,000 volunteer pilots. Organizations other 
than AFA tend to either not be involved in the charitable medical air 
transportation system or are smaller organizations with a restricted 
geographical focus. Each organization contributes to the general public 
benefit and no one group has an ``edge'' on doing good.
    These 30 non-profit organizations together likely have about 8,000 
volunteer pilots. Some pilots only fly one or perhaps two public 
benefit flights per year--others may fly as many as 50 missions a 
year--all at their own expense. The most active and even the less 
active all play an important role in serving the public. The non-profit 
volunteer pilot organizations that organize and coordinate/facilitate 
the process themselves are diverse. Some operate with no paid staff at 
all. Some have small paid staffs to handle the larger more diverse 
workload they face. All these organizations have boards of directors--
and all of these organizations have large numbers of non-flying 
volunteers who do everything from stuffing envelopes to driving 
patients from airports to the medical facility. All of these 
organizations must raise the funds they need to operate from private 
donations. The ``organizational health'' of these volunteer pilot 
organizations directly affects the level of public benefit their 
volunteer pilots can provide.
    In recent years liability issues have come to the forefront and now 
are dampening the effort. H.R. 1084 is designed to address these issues 
as they are being experienced at this time.

                     AND HOW CAN H.R. 1084 ASSIST?

    All of the issues discussed here relate to one of two realities 
that have come upon the aviation community, and to a certain extent, 
onto us all.
    First, any organization or any individual related to or involved 
with airplanes or aviation is perceived to have deep pockets and thus 
could be the target of a lawsuit.
    Secondly, aviation insurance has skyrocketed up in price and 
certain key products are no longer reasonably available to volunteer 
pilot organizations. The product in question here is what is called 
``non-owned'' aircraft liability insurance. Avemco Insurance Company, 
which insures a major part of the general aviation fleet of aircraft, 
had traditionally provided this coverage for volunteer pilot 
organizations--but stopped marketing same about four years ago and 
never expects to return to that market. Prior to 911, a volunteer pilot 
organization could purchase same for under $2,000 annually for coverage 
of $5 million. Now virtually all volunteer pilot organizations have no 
non-owned aircraft liability insurance.
    (Note that this should not be confused with Directors and Officers 
insurance that is available but specifically excludes aviation 
liability. Many volunteer pilot organizations do carry D&O as well as 
general office liability insurance.)
    This ``insurance reality'' means that most non-profit volunteer 
pilot organizations, their boards of directors, their paid staff and 
their non-flying volunteer staff persons have no liability protection. 
Should an accident occur with a volunteer pilot using his own aircraft, 
the resulting lawsuit could come right on through to the organization 
and these people even though they have nothing to do with the operation 
of the flight, the pilot or the aircraft. Volunteer pilot organizations 
have a difficult time recruiting professional persons for board 
positions because of the lack of non-owned aircraft liability insurance 
    (Note: The pilot, his aircraft and the conduct of the flight are 
under the jurisdiction of the Federal Aviation Administration that 
administers the Federal Aviation Regulations. The volunteer pilot 
organization does not in any way stand between the volunteer pilot and 
the FAA and the volunteer pilot organization does not ``dispatch'' the 
flight as would be the case if it were a commercial aviation venture).
    Insurance companies report to me that they will not underwrite non-
owned aircraft liability insurance for organizations because they say 
there is no way to measure the extent of their exposure to loss.
    H.R.1084 will provide this liability protection.
    More importantly, the second result of the ``insurance reality'' is 
that referring hospitals and clinics are becoming unwilling to inform 
their patients that charitable medical air transportation help is 
available for fear of a liability against them should something happen 
in a subsequent volunteer pilot flight. This means that hospitals, 
doctors, medical institutions and even disease organizations such as 
the American Cancer Society are unwilling to refer their patients to a 
volunteer pilot organization for fear of liability. This is why the 
Shriner Hospital System recently sent a letter to the Congress asking 
for passage of H.R. 1084 so they can work with volunteer pilot 
organizations to move their patients from hometown communities to their 
hospitals--all of which provide free medical care for child patients. 
H.R. 1084 solves the ``referral agency'' liability problem. (Note: 
There would be no practical way for thousands of ``referral agencies'' 
to purchase liability insurance for this even if it were available.)
    And, lastly, most pilots do not carry high liability insurance 
limits because they normally only carry their own families or close 
business associates in their aircraft. Opening their aircraft to needy 
patients and patient escorts has the effect of expanding the ``window 
of opportunity'' for a liability lawsuit and thus H.R. 1084 provides 
for liability protection for the pilot only over and above the 
liability protection in the insurance, which he/she must carry to 
participate in a volunteer pilot organization program. This means that 
some pilots, who have the means to contribute with their time and their 
talent, do not fly for a volunteer pilot organization because of their 
fear of liability. These pilots are afraid of how their families would 
cope if they were involved with a crash with a patient with them--so 
this fear paralyzes them from helping others.
    Congressional staff is to be commended for providing the legal 
wording in H.R. 1084, which is an amendment to the highly regarded 1997 
Volunteer Protection Act. Four different aviation law attorneys who 
advise and help the efforts of volunteer pilot organizations nationally 
have reviewed the wording and find it acceptable. I thank each of these 
professionals for their kind encouragement and support.


    The history of volunteer pilot organizations goes back about 32 
years even though a largest portion of the flying has taken place 
within the last 10 to 15 years.
    Research into the safety record of this major volunteer effort 
shows that safety record is exemplary.
    By way of example, Angel Flight America this year will fly nearly 
40 million passenger miles. This represents about 120,000 flying hours. 
Angel Flight America (an association) was formed in the year 2,000 
though some of its' member agencies go back to the early 1970s. Neither 
Angel Flight America nor any of its seven member agencies have ever had 
a fatal accident throughout this entire history. The same is true for 
most other volunteer pilot organizations.
    I am personally aware of three fatal accidents since the 1970s 
involving patients while being transported with the assistance of a 
volunteer pilot organization. In two cases the lawsuit was dropped and 
one was settled out of court for a very modest amount. The fear of 
liability is thus far greater than the reality of liability in history. 
The entire public benefit volunteer pilot world is to be commended for 
an outstanding and wonderful record of safety.

                               IN SUMMARY

    With the kind help of Congressman Ed Schrock of Virginia, his able 
staff person Jeff Palmore and other Congressional staff resources it 
has been a pleasure and a learning experience to work with this 
legislation through its development, writing and process. I thank the 
House Judiciary Committee for considering this legislation. It will 
make the well respected 1997 Volunteer Protection Act much better, 
indeed--a shield and encouragement to our professionally qualified 

    Mr. Smith. Thank you, Mr. Boyer.
    Mr. Popper.


    Mr. Popper. I have just heard impressive testimony from 
remarkably impressive people, and I'm reminded of the George 
Gobel line: ``I feel like all the world's a tuxedo, and I'm a 
pair of brown shoes.'' [Laughter.]
    In my view, this legislation looks and carries the impact 
of all tort reform legislation, and I use the word ``reform'' 
advisedly. Laws that provide no protection for consumers, no 
incentive for greater safety, and limit significantly the 
rights of those who lack power are hardly the stuff of reform.
    On June 22, 2004, Professor Theodore Eisenberg presented to 
this Committee testimony in which he said, ``Tort reform 
proposals are based on questionable views of the operation of 
the tort system. The United States is not the most litigious 
country, tort awards are not increasing, punitive damages are 
rare and in line with compensatory damages [and] estimates of 
tort system costs supplied to Congress and the media are deeply 
    I agree wholeheartedly. The tort system should not be set 
aside in any field unless there's unequivocal evidence of its 
failure, of perverse incentives that outweigh the corrective 
justice effect of tort law. I am not aware of any evidence that 
exists for the bills that are the subjects of today's hearings.
    Let me be clear. First, only a fool would deny the 
immeasurable value of the individuals and organizations who are 
backing this legislation. But recognizing that volunteers are 
of great value is entirely different from immunizing 
volunteers--and their organizations--when those volunteers or 
their organizations engage in behavior that breaches 
fundamental duties of care. When one engages in an act that 
violates basic standards of care, the harm they cause is not 
assuaged on the premise that, done properly, such acts would 
have been the essence of decency.
    Second, while each of these bills affects only a small part 
of the tort system, this type of piecemeal tort reform is 
devastatingly dangerous. In my written testimony, I said the 
pattern that emerges reminds me of the hunting practices of a 
wolf pack. Rather than taking their prey with a single bite, 
wolves begin with a series of bites, disabling and weakening 
their victims before coming in for the kill.
    The ``bites'' proposed in these bills, in isolation, are 
minor and understandable. It's easy to see why they're 
supported by such passionate testimony. But taken in 
conjunction with the stream of endless attacks of tort reform, 
they are dangerous and threaten the model of civil litigation 
that I believe in deeply.
    The immunity provided to athletic organizations, were this 
bill to pass, as I read this legislation, would block 
discrimination actions. I understand the testimony I've just 
heard. I simply don't read the legislation that way. It does 
preempt State law for no discernible reason. It does take away 
organizations that were supposed to be defendants after the 
Volunteer Protection Act of 1997 and eliminates that source for 
those who have been affected adversely.
    The firefighter bill likewise doesn't seem to me to have a 
premise for the preemption that is the predicate of the bill. 
If there's a problem in this area--and I don't know whether 
there is or there isn't; there certainly isn't if you look at 
cases and litigation in this field--then informed consent and 
waivers would certainly do the trick. It's hard to see why 
Congress would favor a bill that removes liability from those 
who foreseeably place firefighters at risk. We're talking about 
negligence. Not every gift where the product goes wrong 
constitutes the basis for a lawsuit. It's only those cases 
where you can prove a breach of a duty of care. You would be 
rewarding people who put firefighters at risk. I don't get it.
    Finally, the act regarding the airlines, the Angel 
organization, you're talking about affecting those who are in 
need of emergency air service, who have to rely on volunteers, 
who are without bargaining power in the market, who would be in 
the hands of individuals and organizations who are 
unaccountable legally for negligent acts. It's troubling to 
think that Congress would pass a law that reduces standards for 
    The individuals touched by these laws, those served by 
volunteers, are victims of disaster, students, patients, and 
countless others in need of help, compassion, and diverse 
skills these volunteers provide. This is a highly vulnerable 
group, often without the power to select a person who will 
assist them. It is worth asking why in this situation, 
involving those least able to bargain in the marketplace for 
assistance, one would relieve actors of the beneficial pressure 
of a legal system that asks them to act reasonably.
    A fundamental predicate of the tort system involves the 
belief that the potential of liability creates accountability 
and improves the likelihood of enhancing the quality of goods 
and services. It is difficult to imagine how the removal of 
liability advances that objective.
    Thank you.
    [The prepared statement of Mr. Popper follows:]

               Prepared Statement of Andrew F. Popper \1\
    \1\ Professor of Law, American University, Washington College of 
Law. This testimony draws heavily from a draft of my article, Popper, 
``A One Term Tort Reform Tale: Victimizing the Vulnerable,'' 35 Harvard 
Journal on Legislation, 123 (1998). For those interested in the 
documentation for assertions made in this testimony, please refer to 
that article.
    The tort reform movement has done little to strengthen laws that 
protect consumers from harm and even less to stimulate essential civil 
liability pressures that compel higher quality in the production of 
goods and services. While the term ``reform'' suggests affirmative 
changes that do some good, the goal of tort reform has been to limit 
civil litigation options, reduce exposure to civil liability, and 
create laws that allow defendants to calculate their exposure in 
advance and then breed those costs into the price of the goods or 
services they provide. Laws that provide no protection for consumers, 
no incentive for greater safety, and limit significantly the rights of 
those who lack power are hardly the stuff of reform.
    The very premise of tort reform is flawed. On June 22, 2004, 
Professor Theodore Eisenberg provided testimony to this Committee in 
which he contended that the foundation for tort reform is specious. 
Professor Eisenberg summarized his remarks as follows:

        ``Tort reform proposals are based on questionable views of the 
        operation of the tort system. The United States is not the most 
        litigious country, tort awards are not increasing, punitive 
        damages are rare and in line with compensatory awards. . . . 
        Estimates of tort system costs supplied to Congress and the 
        media are deeply flawed and provide no basis for sound 

    I agree wholeheartedly with Professor Eisenberg's conclusions. The 
tort system should not be set aside in any field unless there is 
unequivocal evidence of its failure, of perverse incentives that 
outweigh the corrective justice effect of tort law. I am not aware that 
such evidence exists for the bills that are the subject of today's 
hearings, H.R. 3369, H.R. 1787, and H.R. 1084 and I oppose them.
    Two preliminary comments are in order before discussing these 
proposals. First, firefighters, pilots who volunteer to assist those in 
need, and those who make charitable gifts are appropriately honored and 
supported. Only a fool would deny the immeasurable value of these 
individuals. Recognizing that volunteers are of great value is entirely 
different from immunizing volunteers' and their organizations' when 
volunteers or their organizations engage in misconduct tantamount to 
negligence. When one engages in acts that violate basic standards of 
due care, the harm they cause is not assuaged on the premise that, 
properly done, such acts would have been the essence of decency.
    Second, while these bills target singular and narrow segments of 
tort liability, they represent a threat to the whole of the civil 
liability system. Since broad proposals such as abolishing punitive 
damages, strict liability, or joint and several liability have not yet 
succeeded, tort reformers have followed a strategy of pursuing isolated 
aspects of civil liability law. Biomaterials, vaccines, charities, 
airlines, tobacco, fast foods, and other fields are presented to be in 
desperate need of federally imposed limits on liability, purportedly to 
insure industry survival. The pattern that emerges resembles the 
hunting practices of a wolf pack. Rather than taking their prey with a 
single bite, wolves begin with a series of bites, disabling and 
weakening their victims before coming in for the kill. The ``bites'' 
proposed in these bills, in isolation, may not seem all that 
devastating. Taken in conjunction with the stream of endless targeted 
tort reform attacks, they are dangerous and threaten our model of civil 
justice and legal accountability.

                  H.R. 3369, H.R. 1787, AND H.R. 1084

    H.R. 3369, the ``Nonprofit Athletic Organization Protection Act'' 
would give immunity to non-profit athletic organizations. The bill 
covers rules an organization might adopt but also seems to grant 
general immunity to such organizations. If passed, the bill would block 
anti-discrimination cases that have been used to address race, 
disability and gender discrimination. In addition to destroying the 
opportunity for an athlete to challenge discriminatory practices (while 
placing no limit on an organizations ability to use the courts), the 
bill would preempt state laws for no discernible reason.
    In addition, the bill undercuts one of the stated reasons that 
allegedly justified the 1997 Volunteer Protection Act. During the 
debates regarding that law, supporters contended that while the 
legislation liberated coaches and volunteers from the risk of 
liability, even when they were negligent, it left the organizations as 
viable defendants in the event a plaintiff could fashion a respondeat 
superior theory or a general vicarious liability claim under state law. 
H.R. 3369, would destroy that protection.
    The second bill before the committee today is H.R. 1787. This bill 
would give immunity to those who donate fire fighting equipment. I am 
hard pressed to see why a federal bill that preempts state law is 
needed in this field. I don't claim to have knowledge of every tort 
case filed, but I do try to keep up with major areas of litigation and 
judicial trends. I am unaware of meaningful case law imposing liability 
on donors of equipment used in firefighting. I have no information 
regarding a shift in willingness to make donations and could not 
identify a single comprehensive study or professionally documented 
article, or other form of ``evidence'' (taking Daubert in its broadest 
light) to justify a federal law that would destroy the rights of an 
injured party to pursue a tort claim. If there is a problem in this 
area, I would think a waiver of liability, assuming the parties are 
reasonably informed of risk, would make more sense than an overly broad 
law that would be at odds with the most basic notions of federalism. 
What could be more local (i.e. subject to state law) than a fire 
department? If a state wants to facilitate donations (to and from fire 
departments) it can do so. It hardly seems a federal matter.
    Finally, without putting too fine an edge on this, it is hard to 
see why Congress would favor a bill that removes liability from those 
who foreseeabily place fire-fighters at risk. It is nonsensical to 
protect one who knows or reasonably should know of the risk they are 
    The third bill, H.R. 1084, if passed, protects pilots, pilot 
organizations, hospitals and others (including for-profit entities) 
involved in the transport of those who are injured or ill. As with my 
critique of H.R. 3369, H.R. 1084 undercuts a fundamental premise of 
exiting federal law, the 1997 Volunteer Protection Act. That 
legislation immunized negligent coaches, lawyers and doctors engaged in 
malpractice, and others who have trusting contact with vulnerable 
populations, on the premise that victims of such misconduct would still 
have recourse against the organizations who sponsored the immunized 
defendant-volunteers. If this bill passes, that protection will vanish. 
Under this bill, the pilots, as well as their organizations and 
sponsoring entities, would all be immunized. In short, those who are in 
need of emergency air service and must rely on volunteers would be in 
the hands of individuals and organizations who are unaccountable for 
negligent acts.
    The 1997 Volunteer Protection Act of 1997 explicitly excluded from 
its coverage motor vehicles and aircraft, presumably on the premise 
that the operation of cars, trucks, ambulances, and aircraft presented 
a foreseeable risk for which tort immunity was inappropriate. This bill 
would undo that protection.
    It is troubling to think that Congress would pass a law that 
reduces the standard of care for pilots, particularly when they are 
transporting those who are in the most vulnerable condition imaginable.
    I confess, as with the fire fighter bill, I do not know every case 
in the field of pilot or airline organization liability. I do follow 
case-law and try to observe trends--and I am unaware of litigation, 
appellate cases, or credible documented literature that justifies this 
    The bills discussed above are based in part on the premise that 
without the risk of tort liability, more people will volunteer or make 
donations, and presumably, the quality and frequency of charitable work 
will be enhanced. Putting aside the fact that there is no meaningful 
study to support the claim that tort immunity would improve the number 
or quality of volunteers, there is a deeper problem: these laws would 
eliminate the existing right to expect others to exercise due care.
    The individuals who will be touched by these laws, those served by 
volunteers, are victims of disaster, students, patients, and countless 
others in need of the help, compassion, and diverse skills the 
volunteers can provide. This is a highly vulnerable group, often 
without the power to select the person who will assist them. It is 
worth asking why in this situation, involving those least able to 
``bargain'' in the marketplace for assistance, one would relieve actors 
of the beneficial pressure of a legal system that asks them to act 
    A fundamental predicate of the tort system involves the belief that 
the potential of liability creates accountability and improves the 
likelihood of enhancing the quality of goods and services. It is 
difficult to imagine how the removal of personal and organizational 
accountability advances that objective. Further, the common law has 
never been particularly generous to those in need of competent 
assistance. Outside of statutes, contracts, or certain special 
relationships, there is no generic duty to come to the aid of another. 
However, once a person has made the decision to volunteer, there must 
be conformity with a minimum level of due care. The bills under 
consideration today change that standard.
    Volunteers who reach out to others are to be accorded support, 
respect, and encouragement. That should not mean abandoning the 
conventional responsibilities of due care.

    Mr. Smith. Thank you, Mr. Popper, and let me thank all the 
witnesses for keeping their remarks roughly within 5 minutes. 
That's a new precedent, I think.
    Mr. Stittleburg, let me address my first question to you, 
slightly esoteric, and I hope you know the answer or are aware 
of the question. Several years ago, my home State of Texas 
passed legislation that made it easier for individuals, 
encouraged individuals to donate firefighters' equipment. Could 
you tell us how that has worked or hasn't worked, particularly 
as it might relate to the legislation that we're considering 
    Mr. Stittleburg. Well, sir, it has worked tremendously, and 
I do, in fact, have some numbers that will verify that. That 
legislation that you referred to, which I believe they called 
the ``Helping Hands'' legislation, if memory serves me, became 
effective September 1st of 1997, so it's been around for 
approximately 7 and a half years now.
    In that 7 and a half years, there have been donations 
passed through that program of approximately $13 million, and 
that donated equipment has assisted in excess of 1,000 
volunteer fire departments during that period of time.
    Now, that legislation got passed in Texas because the 
problem was recognized there. Union Carbide, for instance, was 
a prime example of a potential donor that was destroying very 
valuable equipment that could certainly have been of great 
assistance to volunteer fire departments simply because of its 
fear of liability.
    In fact, you know, as attorneys, we tend to look to the 
reporting of lawsuits to determine if there's a problem. And, 
in fact, the reason that that--the reason that the problem is 
not documented in lawsuits I believe is twofold:
    One, it's because of the chilling effect of the perception 
of the liability. In other words, the donor's perception of 
liability becomes the donor's reality. The equipment simply 
doesn't get donated, and so there is no suit at all because the 
donation didn't happen.
    I think there's a second reason, too, and that's because 
the donated property is properly inspected and maintained and 
used and, therefore, doesn't malfunction.
    Mr. Smith. Okay. Thank you, Mr. Stittleburg.
    Mr. Kanaby, suppose someone is injured who the volunteer or 
the volunteers are trying to help. Who should be responsible if 
there's an injury? Who should be responsible if there's gross 
negligence, for example?
    Mr. Kanaby. Certainly those individuals who would 
contribute to a gross negligence situation should be held 
accountable. This bill does not remove the factors of gross 
negligence from litigation.
    Mr. Smith. Either gross negligence or willful misconduct.
    Mr. Kanaby. That is absolutely correct, Mr. Smith. The sole 
purpose of this for the National Federation and for other 
organizations, amateur organizations that write playing rules, 
is to simply remove the fact that we write playing rules simply 
as one of those particular means. Let me give you a classic 
example of what I'm talking about.
    There was a lawsuit filed against the National Federation 
of State High School Associations over an incident that 
occurred in practice. It wasn't even a game situation for which 
we write the rules. But a coach, unfortunately, was working 
with an athlete in wrestling and dropped the wrestler on his 
head and he suffered neck injuries that left him--that rendered 
him in a paralysis state.
    Well, we were sued because the idea was offered that we 
should have anticipated those kinds of situations and placed 
that in the rules. And were we excused from that lawsuit? Yes. 
But we were excused from that lawsuit after about $25,000 worth 
of legal bills, which were paid by our insurance broker or our 
insurance company, and then our company at the end of the years 
says, ``Your claims record is terrible. Therefore, your rates 
are going to increase exponentially in that regard.''
    That's our concern. We are not looking to protect anyone 
who is malfeasant or does not do their job or is grossly 
negligent of anything. This bill does not do that.
    Mr. Smith. I understand. Thank you, Mr. Kanaby.
    Mr. Boyer, Mr. Popper, let me squeeze two quick questions 
in. Mr. Boyer, speaking of $25,000 in legal fees, speaking of 
the threat of lawsuits, what does that do to insurance? And why 
did you, as well as Mr. Kanaby, mention the threat of high 
insurance premiums as being one of the adverse results? And 
give me a quick answer, if you can.
    Mr. Boyer. The aviation insurance world seems to lump all 
aviation things together. When a 747 crashes in the middle of 
the desert somewhere or great, huge, expensive things happen, 
all insurance rates goes up, even for the guy who flies a four-
seater airplane out of Manassas Airport. I can't explain why 
the industry acts that way, but it does. But the fear of that 
liability is just driving everything. That's why the non-owned 
aircraft liability insurance has just virtually disappeared as 
a reasonable insurance issue for volunteer pilot organizations.
    Mr. Smith. Okay. Thank you, Mr. Boyer.
    Mr. Popper, real, real quickly, do you support any tort 
reform at all in regard to volunteers or volunteer 
organizations? Just a quick yes or no. We can go into more 
details later on.
    Mr. Popper. As currently constructed in the legislation, 
    Mr. Smith. Okay. Thank you, Mr. Popper.
    The gentleman from Michigan, the Ranking Member of the 
Judiciary Committee, Mr. Conyers, is recognized for his 
    Mr. Conyers. Thank you, Mr. Chairman, and thank all of you 
for being here. I appreciate the leadership you've given among 
the firefighters, the school athletics activity, and, Mr. 
Boyer, with the pilots and those who in those seven groups help 
get people in need and in emergency back and forth.
    Have you recognized, Mr. Boyer, that part of the reason for 
your high and increasing insurance rates since 9/11 is due to 
the fact that flying is one of those areas that attract the 
attention of terrorists and those who would do us harm and that 
those premiums have gone up throughout the whole industry?
    Mr. Boyer. Certainly I recognize that.
    Mr. Conyers. Certainly you recognize that, okay. Now, do 
you also recognize the fact that the Angel Flights have 
absolutely nothing to do with the increases in the insurance 
rates that you're paying?
    Mr. Boyer. That's absolutely true.
    Mr. Conyers. Okay. Now we're getting somewhere.
    Now, let us examine the number of people that have been 
sued in those seven groups that do what we generally term ``the 
Angel Flights.'' I would suggest that the answer to that 
question is zero. What do you suggest?
    Mr. Boyer. Among the 30 or so organizations involved in 
this, of which Angel Flight was just 7, but among the 30, 
historically I am personally aware of three lawsuits in the 
last 15 years.
    Mr. Conyers. Okay.
    Mr. Boyer. Two were dropped. A third one was settled out of 
court for a very nominal sum.
    Mr. Conyers. Thank you very much for that information.
    Now, let me ask, you made a statement, I thought, that 
carried a lot of weight here, Mr. Boyer, and I am going to ask 
Chief Stittleburg about it. Mr. Boyer said that the fear of 
liability is much greater than the actual--the actuality of 
lawsuits in his industry. Do you agree with that as it applies 
to yours?
    Mr. Stittleburg. Yes, sir.
    Mr. Conyers. Okay.
    Mr. Stittleburg. I believe that is the reason donations do 
not occur, sir.
    Mr. Conyers. Wait a minute. Let me ask the question, and I 
don't need you to modify it. Do you agree with Mr. Boyer's 
statement that the fear of lawsuit liability, tort liability 
lawsuits, is much greater than the actual bringing of the 
    Mr. Stittleburg. Yes, sir----
    Mr. Conyers. Psychological.
    Mr. Stittleburg. Yes, sir, I do.
    Mr. Conyers. I can understand that.
    Now, Mr. Kanaby, do you have a similar reaction? Or how do 
you respond to that question?
    Mr. Kanaby. Whether the fear of lawsuits--I'm sorry. Would 
you repeat the question again, Mr. Conyers?
    Mr. Conyers. Sure.
    Mr. Kanaby. Because I want to----
    Mr. Conyers. Is it true that for many the fear of being 
sued is much greater than the actuality of getting sued?
    Mr. Kanaby. I believe that would be true in all walks of 
life, yes.
    Mr. Conyers. Of course. And then among the general 
citizenry that's a fear. The people are worried about getting 
    Now, here's the problem that we on the Judiciary Committee 
face, and I know you're here to tell us about your problem, but 
I want to tell you about ours because we've got something in 
common. What we've found is that when you--when you limit tort 
liability and create exemptions, guess what happens? The 
premiums don't go down. So what are we supposed--you know, we 
can create all the exemptions we want, and your high premiums, 
Mr. Boyer, if historical precedence in any guide, the premiums 
aren't going to go down after you get exemptions. Yes, sir?
    Mr. Boyer. Actually, the product that we need, non-owned 
aircraft liability insurance, is no longer available in the 
    Mr. Conyers. It's not even available.
    Mr. Boyer. No.
    Mr. Conyers. Well, I think that you should have it.
    Let me ask you all a question, and I will start with you, 
Mr. Kanaby, and this is my last question. Why not use a 
liability waiver for incidents that you think are going to be 
difficult rather than come to the Federal legislature to have 
us intervening in literally hundreds of thousands of local 
activities for which we have, frankly, little record of any 
actual lawsuit problem? Mr. Kanaby?
    Mr. Kanaby. Yes, sir. Because traditionally the courts have 
not recognized that you can waive the rights of minors, sir, 
and most of our participants are minors. And parent permission 
slips for field trips or athletic events, et cetera, once they 
are--once they are implemented, have not been held up 
traditionally in the courts as being reasonable.
    Mr. Conyers. Well, I don't think you're going to find many 
Members in the House or the Senate at the Federal level that 
are going to give you a law that would allow us to exempt them 
from waiver of liability when the State and local courts and 
traditional legal practice won't let you do it. To me, I can't 
do it because it would be unconscionable for me to tell kids 
that it's too bad that the coach was negligent or that 
something happened that shouldn't have happened, but we've got 
a Federal law that exempts them from liability. That would be 
    Mr. Kanaby?
    Mr. Kanaby. I would agree with that. If we were to look for 
immunity from those kinds of acts, this bill does not attempt 
to free us from holding people accountable. This bill is merely 
designed to protect groups who in all good faith through 
volunteer efforts develop a set of guidelines and rules under 
which a program is going to be held by people who have great 
years of experience at that level of play. That is what this 
legislation is about.
    If I might also, with your permission, sir, respond to the 
earlier question to Mr. Boyer, 2 years ago this organization 
could not find a single insurance carrier who was willing to 
provide it liability insurance.
    Mr. Conyers. Let me ask if you've ever heard--I just want 
    Mr. Smith. The gentleman's time has expired, but he's 
recognized, without objection, for an additional minute.
    Mr. Conyers. Thank you.
    Have you ever heard of PGA Tour vs. Martin in the Supreme 
Court of the United States?
    Mr. Kanaby. Yes, sir.
    Mr. Conyers. Okay. Have you ever heard of the Michigan High 
School Athletic Association vs. Communities for Equity?
    Mr. Kanaby. Yes, sir.
    Mr. Conyers. And have you ever heard of Cureton vs. NCAA?
    Mr. Kanaby. Yes, sir.
    Mr. Conyers. Well, then, would you kindly--and I have no 
more questions. Would you kindly tell me what your 
understanding of any one of those three cases or all of them 
    Mr. Kanaby. My understanding basically is that the bill 
that you have before you now does not involve any of those 
situations. The Michigan situation involved the placement of 
sports within a specific season. The Martin case obviously is a 
disability case. And as earlier stated, this bill has nothing 
to do with discrimination cases for race, gender, or 
disabilities or the like.
    Mr. Conyers. Well, then, that means I need to get rid of my 
whole legal staff on the Judiciary Committee. [Laughter.]
    Who have been failing me badly in this hearing, and I thank 
you for your advice.
    Mr. Smith. Thank you, Mr. Conyers.
    The gentleman from Texas, Mr. Carter, is recognized for his 
    Mr. Carter. Thank you, Mr. Chairman.
    Mr. Kanaby, let me ask, my son's a high school baseball 
coach, and so I have a real interest in what you're talking 
about here. So if you pass a rule for 14-year-olds, a slide 
rule, you must slide into second base, and somebody breaks a 
leg sliding into second base, they sue--they would sue you 
because you said they had to slide.
    Mr. Kanaby. That would be correct.
    Mr. Carter. And yet you--so then you could have a no-slide 
rule, and there would be a collision at second base, and 
somebody would get hit in the back of the head with a baseball, 
and they would sue you for having a no-slide rule.
    Mr. Kanaby. That is also correct.
    Mr. Carter. So basically you don't have the ability--
there's only two things you can really do there, either--well, 
I guess the third thing is just stop on first base and be out. 
But other than that, you're damned if you do and damned if you 
don't in that rule.
    Mr. Kanaby. Which is the real threat to us, sir, yes.
    Mr. Carter. And people do get sued for when their kid flat 
slides into second base and breaks his leg.
    Mr. Kanaby. That is correct.
    Mr. Carter. And they do get sued when they don't slide into 
second base or when they collide and hurt the second baseman.
    Mr. Kanaby. Also likely, yes, sir.
    Mr. Carter. Right. And what you're telling us here, you're 
just writing rules that are the safest rules you can, and yet 
your liability extends across the Nation as every time the kid 
takes the field in amateur sports in this country.
    Mr. Kanaby. That's absolutely correct, yes.
    Mr. Carter. I see that as a real problem. I mean, I don't 
see why liability should extend to that level.
    Mr. Popper, you are a lawyer, I assume. You are teaching 
law school, and I'm a lawyer and I've been in the courtroom for 
20 years. I listen to these tort reform arguments, and I have 
been on both sides of the docket. I like a level playing field 
and fairness in the law, and I'm not an anti-lawyer judge. What 
do you see as the solution to the problem that these three 
organizations have here? These three organizations are trying 
to do good. They are way extended generally from the injuries 
that occur, and yet they're being put out of business because 
of the cost of insurance or the inability of insurance. What do 
you see as the solution to the problem?
    Mr. Popper. That's an awfully broad question, sir.
    Mr. Carter. Well, narrow it down. Should we put 
everything--every pilot, should he be an indigent? I know 
lawyers don't sue indigents. Should we put an indigent in the 
cockpit of every airplane that flies and let him have ownership 
so they won't be sued? What do you see as the solution?
    Mr. Popper. I hardly think putting an unqualified person in 
the cockpit of an airplane provides any kind of meaningful----
    Mr. Carter. No, I didn't mean unqualified. He may be a 
qualified pilot, but he doesn't have any money.
    Mr. Popper. Okay.
    Mr. Carter. You're not going to sue anybody that doesn't 
have any money or insurance.
    Mr. Popper. Well, you're not making the distinction between 
the imposition of liability after a finding of negligence and 
the ability to file a lawsuit. Everything that I've heard in 
your question and everything that I've heard thus far talks 
about people filing lawsuits. Well, people file lawsuits. It's 
part of our access to the civil justice system. The question 
isn't whether they can file lawsuits or not, unless you want to 
talk about jurisdiction and venue and standing. The question is 
whether, once lawsuits are filed, judges and juries in the 
United States, State legislatures in the United States, those 
entities that have the ability to control and affect the 
outcome of lawsuits, are doing their job. And in my opinion, 
they are.
    You're not hearing--or at least I'm not hearing about 
findings of liability. I'm hearing about people exploring 
whether their rights have been violated, and from these 
organizations hearing that they effectively defend themselves. 
I cannot, however, tell you--and I think this is your 
question--what to do about the fact that insurance companies 
mismanage funds, choose not to provide insurance for certain 
high-risk activities, when the risk is filing a lawsuit. That's 
a problem for insurance regulation. To me, that's at the heart 
of tort reform, not the ability to file a lawsuit and not 
providing immunity to somebody who overtly breaches a duty of 
    Mr. Carter. From a judge's perspective, we have a saying; 
you know, anybody with $150 in their pocket and directions to 
the courthouse can file a lawsuit. And we know because we've 
got lots of them that come in there that have no credibility 
    But the issue here is--and all three of these witnesses 
have said it--the perception. And the perception is that they 
are liable and they've got this long, extended liability that 
extends to them. And, therefore, when they try to do good, they 
are punished for their good.
    We used to have Good Samaritan laws in this country that 
we--in the history of our law protected Good Samaritans. Those 
things have long since gone away. Doctors no longer stop on the 
side of the road to help people. And, you know, ultimately kids 
are not going to play baseball or they're not going to wrestle 
or play football. I have a volunteer fire department in my 
district that covers 50 percent of Harris County, our most 
populous district. And yet, they are important to the people 
that live in that--the millions of people that live in that 
area. And why shouldn't we have some sort of protection for 
them? And if you've got a better solution, I want to hear it. I 
keep hearing this is not a good solution, but we have a 
problem. What is the better solution? And that's what lawyers 
need to step up and start telling us.
    Mr. Popper. With all due respect, I think if we continue to 
focus on having hearings where we stimulate fear, then there 
will be a lot of fear. If instead we had a hearing where we 
could focus on rule 11 sanctions, if, in fact, people are 
bringing lawsuits, lawyers are bringing lawsuits without a 
legitimate basis, then the lawyer gets sanctioned. And that's 
fine. That was asked earlier: Are there parts of tort reform 
that make sense? Well, sure, that's a great part. And if people 
are bringing lawsuits and the lawsuits are being thrown out and 
the lawyer is doing it just to see if he can squeeze something 
out of the insurance company, like you, I would agree that 
that's an abuse.
    Mr. Carter. Well, we've had those hearings this year----
    Mr. Smith. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott, is recognized for 
his questions.
    Mr. Scott. Thank you, Mr. Chairman.
    We've had--generally, our policy has been to consider Good 
Samaritan laws in there, but they're done on a State-by-State 
basis, and they're balanced with other State laws. You consider 
whether or not there's indigent health care in Medicaid. You 
consider whether they have the collateral source rule, damage 
caps, what the jury award history is. And after all that 
balancing, you put the Good Samaritan laws in that mix. Here 
we're doing a Federal law, and it has a one-way exemption, so 
it's not part of that balance at all.
    I also want to point out that what I've heard sounds like 
an insurance policy, not a tort policy. But let me ask a 
couple--a few specific questions.
    Mr. Stittleburg, is a waiver of liability effective in 
cases of donations?
    Mr. Stittleburg. In my view, sir, it can be effective. The 
problem is in obtaining it. Frequently, you have the situation 
where the donor simply wants to donate equipment. They don't 
want to be involved in having to hire an attorney to draw a 
    Mr. Scott. Wait a minute. And the donor wants to make a 
donation, and the donee doesn't want to do a waiver?
    Mr. Stittleburg. The donee----
    Mr. Scott. Wait a minute. The waiver is effective. That was 
your answer? Because I have a lot of different questions.
    Mr. Stittleburg. I believe that's correct, sir.
    Mr. Scott. Okay. This bill, does it protect a manufacturer 
making donations? You said--talked about different Governmental 
agencies. Does it immunize a manufacturer giving defective 
    Mr. Stittleburg. No, sir. Manufacturers are excluded in the 
    Mr. Scott. Okay. I missed that.
    Mr. Stittleburg. If the person's a manufacturer of fire 
control or fire rescue equipment, they do not enjoy the 
    Mr. Scott. Okay. Do you have a--can you cite the number of 
claims and the amount of actual payouts in cases involving 
    Mr. Stittleburg. No, sir, I cannot. And, in fact, just to 
distinguish this bill from the other bills, this is not a bill 
basically that relates to insurance claims. This bill is 
designed to facilitate and encourage the donation.
    Mr. Scott. Well, wait a minute. You are not aware of any 
claims paid as a result of these kinds of donations?
    Mr. Stittleburg. That's correct, sir.
    Mr. Scott. Mr. Kanaby, I'm a little concerned about the 
kinds of cases we're talking about. You indicated that the 
cases that the gentleman from Michigan mentioned were not 
covered. You have inferred that the injury cases are what we're 
talking about. Is that right?
    Mr. Kanaby. That is correct.
    Mr. Scott. Other kinds of cases are not to be covered, just 
injury cases?
    Mr. Kanaby. Gross negligence, including injuries. If 
injuries involve gross negligence----
    Mr. Scott. The definition says non-profit athletic 
organizations shall not be liable for harm caused by an act or 
omission by the non-profit organization for adoption of rules. 
That doesn't say anything about injuries.
    Mr. Kanaby. That is correct, but it is not our intent to 
    Mr. Scott. Your intent is just to cover the injury cases?
    Mr. Kanaby. Our intent is just to cover the fact that we 
write the playing rules in a specific sport. The issue of gross 
negligence, even within those playing rules--it is not our 
intention to have them excluded if someone is grossly negligent 
in terms of implementing their responsibilities.
    Mr. Scott. How about racial discrimination cases?
    Mr. Kanaby. Absolutely no inclusion of that as well, nor 
gender, nor race, or disabilities.
    Mr. Scott. I mean, are you talking about injury cases 
alone? Or are you talking about all kinds of litigation?
    Mr. Kanaby. No, just injury cases alone basically whereby 
that would involve negligence. Other cases might involve us, 
for example, a discrimination case, we don't--if we're pulled 
into a discrimination case, then I--well, a good example would 
be the Martin vs. NCAA. If there was a local school, for 
example, that prohibited a youngster from participating because 
of AIDS, and that to us basically is a situation between that 
local school and the individual parties. It would be our intent 
that we should not be brought into that kind of a situation 
simply because we write the playing rules for that sport. Our 
position is always that all youngsters----
    Mr. Scott. So you're not--that's not an injury kind of 
    Mr. Kanaby. That's correct. But our position----
    Mr. Scott. You're talking about all kinds of different 
litigation you want to be exempt from.
    Mr. Kanaby. That's correct. But the situations that I'm 
describing such as--in the Martin case, our position basically 
to our member State associations and they to their member 
schools basically is that anything that would involve ADA, et 
cetera, reasonable accommodation should be made, the letter of 
the law should be following, a hearing should be held on an 
individual basis, and cases decided on that basis.
    Mr. Scott. Mr. Chairman, I ask unanimous consent for an 
additional minute.
    Mr. Smith. Without objection, the gentleman is recognized 
for an additional minute.
    Mr. Scott. Mr. Boyer, I welcome you to Washington.
    Mr. Boyer. Thank you. I spent 29 years here.
    Mr. Scott. You've indicated a problem with non-owner access 
to insurance with planes. That cannot be just a problem for 
charitable donation situations.
    Mr. Boyer. No. It's a case of any organization unable to 
get non-owner insurance.
    Mr. Scott. If you've got a non-owner doing commercial work, 
borrowing somebody's plane to fly, other kinds--a personal 
vacation kind of stuff.
    Mr. Boyer. Individual pilots, non-commercial entities, can 
buy non-owned liability insurance. Only organizations no longer 
can buy it.
    Mr. Scott. So if somebody's a pilot doing charitable work, 
they can't get insurance----
    Mr. Boyer. Yes, they can. The pilots--the pilots can get 
insurance. In fact, the pilots are--it's their insurance that 
is the redress for a patient that might be injured or killed. 
The issue of willful or criminal behavior is a non-issue here. 
The issue of lowering the standards for the pilots or their 
pilotage is not an issue because the pilots can get insurance, 
have insurance, are required to have insurance. And the----
    Mr. Scott. If I could just ask one quick follow-up. Is that 
a per flight insurance or an annual----
    Mr. Boyer. No. It's usually an annual. If I am a plane 
owner, I have insurance on my airplane, including liability. If 
I rent airplanes--and some of that is done--I can buy as an 
individual pilot a non-owned aircraft liability policy. But the 
organizations cannot.
    Mr. Smith. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Forbes, is recognized for 
his questions.
    Mr. Forbes. Thank you, Mr. Chairman. I thank all of you 
gentlemen for being here today. And, Mr. Chairman, thank you 
for holding this hearing. I think we're talking about really 
today what kind of society that we want to live in, and you 
heard it, I think, mischaracterized earlier that this was an 
attack on the legal system. This is no more an attack on the 
legal system than anything that I hear, you know, coming down. 
It makes good political spin, but it's not an attack on the 
legal system.
    I was a partner in one of the largest law firms in 
southeastern Virginia. We had over 100 lawyers. And I can tell 
you, there are a lot of judges and there are a lot of attorneys 
in the legal system who don't like what we sometimes see with a 
handful of lawyers who keep good, ordinary citizens from doing 
things we want them to do in society.
    We heard earlier that there were all these abuses that are 
uncorrected, and I would just ask also that in the record 
anybody place in the record this list of abuses that all of 
your organizations are doing right now that have not been 
corrected, because I don't think they exist either.
    And the real question for us is this: We live in a society 
where we see somebody in need and people walk by them because 
they don't have time to help that individual. And you represent 
organizations where people have the time and the willingness to 
give--to help, but what they don't want to do is lose their 
homes and lose everything else they have. And that discourages 
them sometimes from taking these activities.
    And I've been in the position over the years of having to 
look at people that would want to help you and tell them you 
can't do that because of the exposure that you might have.
    Mr. Boyer, let me ask you first of all, have you had 
volunteers not wanting to help or potential directors not 
wanting to serve because of the potential liability or 
    Mr. Boyer. Absolutely. It puts a dampening effect on 
recruiting board members. It puts a dampening effect on 
recruiting perhaps a wealthy individual who has an airplane 
who'd like to help but all of a sudden feels that his net worth 
is in a sense put out there for exposure.
    Mr. Forbes. Now, you mentioned in your testimony that 
groups that would like to refer people in need to your 
organizations are hesitant to do so out of exposure to 
liability. What effect would this legislation have on the 
ability of these groups to recommend people to you, if any?
    Mr. Boyer. Yes, what you're mentioning is that just even in 
many cases the simple act of recommending to a patient that 
they explore the possibility of this free transportation, 
groups such as the American Cancer Society, the Shriners, and 
the others, are reluctant to do that because of the fear of 
liability. If that fear is done away with, if the referral 
portion of H.R. 1084 is passed, then those organizations will 
be providing--referring patients and their job will get done a 
lot better because the organizations will be able to cooperate 
and work together.
    Mr. Forbes. In times of disaster or emergency, does the FAA 
allow your volunteer pilots to fly, or are they grounded such 
as the situation we had with September----
    Mr. Boyer. Volunteer pilots through this program were 
flying on September 12th. No restriction. Airlines grounded, 
everybody else grounds. The volunteer pilots were flying. We 
have a very good, close working relationship with the Federal 
Aviation Administration, and that was no problem at all.
    Mr. Forbes. And if they're not flying, is there some of 
these patients that aren't going to get the treatment that they 
need and medical care that they need in that particular 
    Mr. Boyer. Well, in many instances, a patient or a 
patient's family's ability to travel long distances to 
specialized medical care--if they can't afford it, they can't 
get the care. It's that simple.
    Mr. Forbes. And if they don't get the care, that's because 
you didn't have people that were willing to volunteer because 
of the threat of lawsuits that we've heard today aren't showing 
up because there are these abuses that need to be corrected, 
apparently, that are even taking place. Is that correct?
    Mr. Boyer. That's absolutely correct. It's the relationship 
between the pilot and the Federal Aviation Administration that 
sets the standards for professional conduct of the pilot. The 
volunteer pilot organizations do not get in between a pilot and 
the Federal air regulations. So this has nothing to do with 
standards of how pilots will operate.
    Mr. Forbes. Are there services that groups such as yours do 
not currently provide that you would be likely to provide if 
this change took place and referrals were more likely?
    Mr. Boyer. There's a good case in point there. The American 
Red Cross, with whom we're in discussions, negotiations, 
whatever the right term is, has been very, very reluctant to--
as part of their disaster preparedness--say that their 
volunteers, their disaster volunteers, could be flown by a 
volunteer pilot organization to the point of a disaster. If 
this law passes, it removes that obstacle.
    Mr. Forbes. And if this legislation were in place and you 
had an accident, what sort of recourse would the injured 
families have?
    Mr. Boyer. Their recourse is to the pilots and the pilots' 
insurance. And to the extent that there is willful or criminal 
activity, obviously that insurance doesn't apply, and it's with 
the pilot totally, because the organizations are nothing more 
than matchmakers between the volunteer pilot who wants to help 
and the needy patient that needs the help. The organization 
puts the two of them together. The organization has nothing to 
do with the conduct of the flight per se. That's the 
relationship between the pilot and the Federal air regulations 
as administered by the FAA.
    Mr. Smith. The gentleman's time has expired. Thank you.
    The gentlewoman from Texas, Ms. Jackson Lee, is recognized.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. I would 
say to my colleagues and to the witnesses, this is certainly a 
very important hearing. I question the wisdom of the hearing, 
and I'm hoping to be able to peruse the testimony of all of the 
witnesses so that we can come to a common good, and that is, to 
promote volunteerism and to enhance opportunities for our 
    At the same time, I would raise the specter of an existing 
legislation, the Volunteer Protection Act, that is in 
existence. And as I understand it, the Volunteer Protection Act 
is--merely permits but does not require States to provide 
adequate measures to ensure that non-profit organizations 
operate in a safe manner. And it goes on to suggest a variety 
of aspects of this particular legislation.
    It has its weaknesses, even though it has good intentions, 
and the legislation that is coming forward raises concerns that 
I think we should answer if we're trying to be helpful.
    One of the points that I find a concern is that it looks as 
if all of these laws would preempt State law, and I cite, for 
example, a law in Texas under the Texas Education Code that 
talks about the idea of cooperating in securing volunteer 
equipment. However, the language here that is not in the 
Federal bill specifically states the equipment being donated in 
good faith, and I think it also has some language in here about 
malice and a number of other provisions that would seemingly be 
protective of innocent persons. Also, the language, the Federal 
language, does not have any language of good faith or bad 
faith, and I think that's extremely important as a measure of 
protection to the recipient of this wonderful largesse.
    Let me ask Chief Stittleburg, again, if he could explain to 
me what would happen if a volunteer is seriously injured or 
killed because of the malfunction of old, used equipment. Who 
then should be held accountable? Could you be more precise on 
    Mr. Stittleburg. In the event that were to occur, there 
would still be the opportunity to make claims against the 
manufacturer, if indeed the product was defective. There would 
also be the workers' compensation benefits available to the 
injured employee, assuming this was a line-of-duty injury.
    Ms. Jackson Lee. Then what you're saying is that that 
particular individual would have to go--stair-step up to a 
third party. Is there some understanding in the workmens' 
compensation laws that would not preclude that individual who 
was not using authorized equipment or equipment associated with 
his public responsibility because it was volunteer equipment, 
how do we know that the workmen compensation laws--have you 
reviewed State compensation laws to know that there would not 
be a preclusion?
    Additionally, on the manufacturing end, there is questions 
as to whether the manufacturers would have a bar if they 
thought that the equipment was not being used properly.
    Mr. Stittleburg. That issue will always be there regardless 
of whether it's been donated by another department or whether 
it's an initial purchase. The use to which that equipment was 
then put is always going to be raised by the manufacturer.
    Ms. Jackson Lee. Well, I think the point, Chief, is that if 
there are already known bars that are not being made clear to 
the users of those vehicles, unlike a circumstance where you 
are using a manufactured product for its right reason, if the 
manufacturer determines that I had nothing to do with it being 
transferred for free to someone, et cetera, and there's a bar 
or there may be something in place about secondhand, thirdhand 
users, that may put a more onerous burden on proving and 
getting relief for the injured people or the killed--or the 
individual that lost their life.
    Mr. Stittleburg. Well, ma'am, I have a different reading of 
it. The bill, of course, specifically exempts protection to the 
manufacturer of the fire control or fire rescue equipment.
    Ms. Jackson Lee. I didn't hear what you said.
    Mr. Stittleburg. The bill specifically exempts protection--
in other words, does not apply to the manufacturer of the fire 
control or fire rescue equipment.
    Ms. Jackson Lee. Are you suggesting that it doesn't apply 
to provide them with cover?
    Mr. Stittleburg. Yes, sir--yes, ma'am, I am. That's my 
reading of the bill.
    Ms. Jackson Lee. That they can sue the manufacturer?
    Mr. Stittleburg. That is correct, ma'am.
    Ms. Jackson Lee. My reading is not such, and when I was 
raising questions, they would contravene that, and that's what 
I'm saying, making their own argument.
    Let me ask Mr. Popper----
    Mr. Smith. The gentlewoman's time has expired. Without 
    Ms. Jackson Lee. I'd ask 1 minute additional time.
    Mr. Smith. Without objection, she's recognized for one more 
    Ms. Jackson Lee. Thank you very much.
    Professor Popper, what is the downside, if you will, of, 
one, removing the State protection, meaning usurping State laws 
that may pertain to this kind--these kinds of generous 
activities? And what would be the outcome of preempting State 
laws that may be more--may be more strict?
    Mr. Popper. You have 200 years of history of tort law in 
virtually all of the affected States that would suddenly be 
swept aside were these bills to be adopted. You have specific 
provisions regarding warranty. You have the manufacturers' 
claims provision. You have the developed history of strict 
liability and tort. All of that would be swept under the table, 
would no longer be applicable, because at the Federal level, 
none of that, at least at the present time, would be available 
for cause of action and tort. It would change the dynamic of 
tort law. And perhaps the most profound change is that you 
would be sweeping away State law without creating concomitant 
Federal court jurisdiction. So you're not moving into Federal 
court for some Federal set of claims under legislation that 
Congress could pass. You would be giving back to the State a 
system where its own law has been removed, inserting nothing in 
its place. That's the downside of preemption. Unless there's 
something in its place federally, you're literally adrift in 
terms of the tort system.
    Ms. Jackson Lee. So any language in this bill that says we 
can go against the manufacturer could be thwarted on the State 
level by--or be thwarted by the manufacturer by some other 
    Mr. Popper. Yes, that's true. The bill seems to 
specifically exempt manufacturers, but once it preempts State 
law, it leaves a void.
    Ms. Jackson Lee. It leaves a void.
    Mr. Smith. The gentlewoman's time has expired.
    Ms. Jackson Lee. That's the point I wanted to make. Thank 
you very much, Mr. Chairman.
    Mr. Smith. The gentleman from Michigan----
    Mr. Conyers. Mr. Chairman, I rise to strike----
    Mr. Smith.--is recognized for a unanimous consent request.
    Mr. Conyers. I'd rather just strike the requisite number of 
words, because I want to add a question to it.
    Mr. Smith. Okay. The gentleman is recognized.
    Mr. Conyers. Thank you very much. Thank you, Mr. Chairman. 
I wanted to thank the witnesses, first of all, and I want to 
ask a unanimous consent request. But before I do, I wanted to 
ask this question: Is it true--well, I going to make a 
statement, and then you can tell me if it's--if it's true or 
false or that you don't know.
    Poorer return on insurance investments cause premiums to go 
up: true or false or I don't know. Chief Stittleburg?
    Mr. Stittleburg. I don't know. That's not a part of the 
bill that we're interested in.
    Mr. Conyers. Of course.
    Mr. Kanaby?
    Mr. Kanaby. I would concur with Mr. Stittleburg's response.
    Mr. Conyers. In other words, you don't know either?
    Mr. Kanaby. I think it's a myriad of factors. I don't think 
that it can be held within the constriction of the question 
    Mr. Conyers. Okay. Mr. Boyer?
    Mr. Boyer. I do not know enough about the insurance 
industry to respond.
    Mr. Conyers. Okay. The reason we have to all look at this 
together is because that's what much of the testimony in these 
hearings before the Committee have demonstrated, is that you 
can create all the restrictions on tort liability you want, but 
if the insurance companies have generally had a poor year, the 
returns are poor, the premiums go up. And it's not--it's not 
connected to how many people file the lawsuit, nor even how 
much--how many recovered after the lawsuit was filed.
    But, Mr. Kanaby, the book that you published, the 2004 
Wrestling Rules Book, was very fascinated. I--fascinating. I 
was particularly drawn to the officials' wrestling signals, 
high school and college, which I always wondered what those 
things meant when I was watching them. And then from pages 55 
to 72, you illustrate all of the kinds of violations in 
wrestling that referees have to be aware of.
    Was there any other reason that this was distributed to all 
of the Members of the Committee?
    Mr. Kanaby. No, sir. We just wanted to provide the 
Committee with an example of one of the 17 rule books that we 
publish in various sports. We just happened to pick wrestling, 
but we're pleased that we were able to pick the one that helped 
you in terms of your understanding of the signals. But we 
publish 16 other sports' rules in this form.
    Mr. Conyers. Well, as long as you're not sending us some 
quiet signal about wrestling in the Congress.
    Mr. Kanaby. No, sir. But if there are other sports you----
    Mr. Conyers. We have enough inter-college--intercollegiate 
sports activities going on here without adding wrestling to the 
    Mr. Kanaby. Well, perhaps some of those holds would be of 
assistance, sir. [Laughter.]
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Conyers. And your choice of this 
particular brochure had nothing to do with the fact that our 
speaker's a former wrestling coach, I presume, either.
    Mr. Conyers. Yes.
    Mr. Kanaby. No comment.
    Mr. Smith. Oh, maybe there's something there.
    Mr. Scott. Mr. Chairman, could I ask one additional 
    Mr. Smith. Mr. Scott, you will be recognized to ask an 
additional question. We are expecting a vote momentarily, and 
some of us were hoping to get to the House floor before that 
vote occurred. But the gentleman is recognized for 1 minute for 
an additional question, without objection.
    Mr. Scott. To Mr. Popper, of all the bills, Mr. Boyer's 
bill involving pilots has a provision that it only kicks in if 
the pilot is licensed and has insurance, so that if there is an 
injury, the injured party has recourse. Does that make that 
bill different from the other two?
    Mr. Popper. I think these bills are different in many 
respects, one to the next, and that is a distinguishing feature 
in that bill, yes.
    Mr. Scott. Okay. Thank you.
    Mr. Smith. All right. Thank you, Mr. Scott.
    Mr. Carter. Mr. Chairman?
    Mr. Smith. Also, I'd like to ask unanimous consent that 
written statements by the sponsors of the three pieces of 
legislation that we're considering today be made a part of the 
record as well.
    Mr. Carter. Mr. Chairman, may I be recognized for one 
additional comment?
    Mr. Smith. The gentleman from Texas is recognized for an 
additional minute.
    Mr. Carter. Mr. Popper, I was picking on you a little while 
ago. There's a reason for that. I honestly believe that we 
lawyers have some solutions that we're not--we're not willing 
to talk about, and I'm really coming to every one of these 
hearings hoping that I will hear the bar step forward and start 
offering some solutions for some of these problems that we're 
seeing that may be different from the tort reform problems that 
we're looking at.
    So I think we have a responsibility, and that's why I 
raised--I wasn't picking on you individually. I look for that 
every time we have a hearing, and I don't hear it, and I would 
really like to hear it. And that's why I was asking those 
questions. I would like to see us try to solve some of these 
    Mr. Popper. I agree, and I'd just make one final comment in 
response, which is there are areas, obviously, there are 
situations where lawyers are charging 50-, 60-percent fees. 
It's outrageous. There has been, in terms of the legal system 
itself, a downplay of classical doctrines like res ipsa 
loquitur, which, if properly understood at the State level, 
could avoid a lot of the problems we have with tort reform. And 
I'd be happy to have a dialogue with you about that, and I 
appreciate your comment.
    Mr. Forbes. Yes, sir. Well, thank you. I'd welcome that.
    Mr. Smith. That's an encouraging response, Mr. Popper. 
Thank you for that. Thank you, Mr. Carter.
    I thank all the Members for being present today, and we 
thank our four witnesses for contributing a lot of information, 
insight, and expertise on the subjects at hand.
    We stand adjourned.
    [Whereupon, at 11:25 a.m., the Committee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Michael N. Castle, a Representative 
                 in Congress From the State of Delaware

    Mr. Castle. Mr. Chairman, I rise today in support of legislation I 
introduced, the ``Good Samaritan Volunteer Firefighter Assistance 
Act.'' This legislation removes a barrier which has prevented some 
organizations from donating surplus fire fighting equipment to needy 
fire departments. Under current law, the threat of civil liability has 
caused some organizations to destroy fire equipment, rather than 
donating it to volunteer, rural and other financially-strapped 
    We know that every day, across the United States, firefighters 
respond to calls for help. We are grateful that these brave men and 
women work to save our lives and protect our homes and businesses. We 
presume that these firefighters work in departments which have the 
latest and best firefighting and protective equipment. What we must 
recognize is that there are an estimated 30,000 firefighters who risk 
their lives daily due to a lack of basic Personal Protective Equipment 
(PPE). In both rural and urban fire departments, limited budgets make 
it difficult to purchase more than fuel and minimum maintenance. There 
is not enough money to buy new equipment. At the same time, certain 
industries are constantly improving and updating the fire protection 
equipment to take advantage of new, state-of-the-art innovation. 
Sometimes, the surplus equipment may be almost new or has never been 
used to put out a single fire. Sadly, the threat of civil liability 
causes many organizations to destroy, rather than donate, millions of 
dollars of quality fire equipment.
    Not only do volunteer fire departments provide an indispensable 
service, some estimates indicate that the nearly 800,000 volunteer 
firefighters nationwide save state and local governments $36.8 billion 
a year. While volunteering to fight fires, these same, selfless 
individuals are asked to raise funds to pay for new equipment. Bake 
sales, pot luck dinners, and raffles consume valuable time that could 
be better spent training to respond to emergencies. All this, while 
surplus equipment is being destroyed.
    In states that have removed liability barriers, such as Texas, fire 
companies have received millions of dollars in quality fire fighting 
equipment. The generosity and good will of private entities donating 
surplus fire equipment to volunteer fire companies are well received by 
the firefighters and the communities. The donated fire equipment will 
undergo a safety inspection by the fire company to make sure 
firefighters and the public are safe.
    We can help solve this problem. Congress can respond to the needs 
of fire companies by removing civil liability barriers. This bill 
accomplishes this by raising the current liability standard from 
negligence to gross negligence. Mr. Chairman, I thank you for holding 
this hearing today and calling attention to this important issue and I 
look forward to continuing to work with the Chairman and the Judiciary 
Committee in helping our nation's firefighters.


  Prepared Statement of the Honorable Ed Schrock, a Representative in 
                  Congress From the State of Virginia

    Thank you, Chairman Sensenbrenner for holding this hearing today on 
tort reform and on H.R. 1084, the Volunteer Pilot Organization 
Protection Act. I am grateful that the Judiciary Committee is taking 
this opportunity to examine ways to improve to improve the Volunteer 
Protection Act in order to bring protection to these worthwhile 
    The charitable flying community is facing a crisis, and if action 
is not taken, I am afraid the community is on the brink of a breakdown. 
Escalating insurance costs have become prohibitively expensive for 
these groups that survive through donations of both time and money and 
operate on small margins. Increasing insurance costs have forced many 
volunteer pilot organizations to operate without insurance coverage, 
and a single incident with one of the volunteer pilots could shut down 
the entire charitable flying sector.
    For many years volunteer pilot organizations have helped those in 
need to get the medical care they require. Thousands have relied on 
these groups to provide free transportation to get specialized medical 
treatment when they otherwise could not have afforded transportation 
costs. Every year, thousands of pilots with years of experience and 
hundreds of flight hours under their belt volunteer their time to fly 
these missions. It is essential that we keep these lines of 
transportation open to the people who need it the most. It would 
certainly be a tragedy if one lawsuit, or even the threat of a lawsuit, 
were to bring down this network. This is the crisis we are facing 
    H.R. 1084, the Volunteer Pilot Organization Protect Act, will 
ensure that these organizations can continue to fly without this threat 
of collapse surrounding them. The list of groups supporting this 
legislation is extensive, including:

        National Air Transportation Association

        Children's Organ Transplant Association

        National Association of Hospital Hospitality Houses

        Health and Medical Research Charities of America

        National Organization of Rare Disorders

        National Foundation for Transplants

        Independent Charities of America

        Shriners Hospitals for Children

        US Airways

    I thank the Judiciary Committee for holding this hearing, and I 
look forward to working with the Committee for further consideration of 
this legislation.


Prepared Statement of the Honorable Mark E. Souder, a Representative in 
                   Congress From the State of Indiana

    I would like to take this opportunity to thank Chairman 
Sensenbrenner for conducting today's hearing and, in particular, for 
considering H.R. 3369, the Non-Profit Athletic Association Protection 
Act of 2003.
    As today's witnesses will attest to, volunteer organizations across 
the nation are under attack by overreaching personal injury lawyers. 
Notably, in the past decade there has been an extraordinary increase in 
legal attacks against the rule-making bodies who determine the rules of 
play that govern amateur athletic competition. These cases rely on the 
curious presumption that rules themselves should eliminate ALL risk in 
athletic competition. Objectively, however, all athletic activities 
involve an element of risk, and rulemaking bodies can merely anticipate 
risk--they can not prevent every injury that could result from 
participation in athletic competition. Repeatedly defending against 
claims based on this assumption has resulted in astronomical legal 
bills for amateur and education-based athletic organizations.
    As a direct result of the increased frequency of these legal 
attacks, the insurance industry has exhibited a reluctance to offer 
policies covering non-profit athletics. Moreover, those few insurance 
companies that do continue to offer such policies have drastically 
increased premiums and deductibles, thus placing a strain on the non-
profits' financial status. For example, sports governing authorities 
have seen outrageous percentage increases in liability insurance rates 
from 121 percent to 1000 percent. Moreover, as Robert F. Kanaby will 
testify, in the past three years the cost of liability insurance for 
the National Federation of State High School Associations (NFHS) has 
risen threefold, to in excess of $1 million annually. This is greater 
than 10 percent of the organization's $9 million budget, and this 
unaffordable premium is certain to rise. Amateur sports rule-making 
organizations like NFHS can neither afford such continued premium 
increases, nor can they operate without liability insurance.
    Without action, the escalation in abusive lawsuits and the 
attendant costs to rule-making organizations will affect the ability of 
amateur and education-based athletic leagues to continue operating 
competitively. The Non-Profit Athletic Association Protection Act seeks 
to insure the continued viability of amateur and education based 
athletics by shielding rulemaking bodies from the devastating 
consequences of continued abusive lawsuits. Millions of children and 
young adults across America rely on organizations like the NFHS, Little 
League baseball and the NCAA in their athletic pursuits, and their 
sporting endeavors should not be imperiled because of the excesses of 
trial lawyers.
    I urge my colleagues to support H.R. 3369.