[Congressional Record Volume 140, Number 85 (Wednesday, June 29, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     PRODUCT LIABILITY FAIRNESS ACT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of S. 687, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (S. 687) to regulate interstate commerce by 
     providing for a uniform product liability law, and for other 
     purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Dorgan-Moseley-Braun Amendment No. 1895, to eliminate 
     provisions limiting punitive damages concerning certain drugs 
     and medical devices and certain aircraft and components.

  The ACTING PRESIDENT pro tempore. The time until 10 a.m. shall be 
equally divided and controlled by the Senator from South Carolina [Mr. 
Hollings] and the Senator from West Virginia [Mr. Rockefeller], or 
their designees.
  Mr. GORTON addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Washington.
  Mr. GORTON. Madam President, I will be the designee, and I ask 
unanimous consent to have printed a letter to me from Mothers Against 
Drunk Driving with respect to the debate on the amendment adopted 
yesterday approving that amendment withdrawing any objections that 
organization might otherwise have had to the bill.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                Mothers Against Drunk Driving,

                                        Irving, TX, June 28, 1994.
     Re: S. 687.
     Hon. Slade Gorton,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Gorton: In my letter of June 22 to you and all 
     Senators, I expressed MADD's concern about the potential 
     adverse impact of S. 687 on dram shop actions in state 
     courts. While MADD has not taken a position in support of, or 
     opposition to this bill as a whole, we were concerned about 
     what we perceived as unintended consequences of the bill. Our 
     Public Policy department at the National Office has been in 
     contact today with Senator Danforth's staff concerning 
     proposed amendments to the bill, aimed at clarifying that the 
     bill does not preempt dram shop laws or dram shop actions. We 
     have also reviewed the proposed amendment submitted by you, 
     Senator Rockefeller and Senator Lieberman.
       Subject to introduction and adoption of an amendment(s) 
     setting forth that civil actions seeking recovery under dram 
     shop laws/statutes, or seeking recovery from a seller of 
     alcohol products on the theory of common law negligence, are 
     not subject to this act; MADD withdraws its objections to 
     Senate consideration of S. 687.
       MADD greatly appreciates your response to our concerns.
           Sincerely,
                                                 Rebecca A. Brown,
                                               National President.

  Mr. HEFLIN addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Alabama.
  Mr. HEFLIN. Madam President, I suggest the absence of a quorum and 
ask that the time be equally divided.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the 
Senate proceed to vote on the Dorgan amendment to Senate bill 687.
  Mr. HEFLIN. We object.
  The ACTING PRESIDENT pro tempore. There is objection.
  Mr. ROCKEFELLER. There being objection, and since we cannot proceed 
to the amendment, I suggest the absence of a quorum and ask unanimous 
consent that the time be equally divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HEFLIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. MURRAY. Madam President, I rise today in opposition to S. 687. 
This is a very complex piece of legislation which could have a harmful 
effect on the lives of millions of Americans. If enacted, the bill 
would hurt consumers in Washington State, and throughout the Nation.
  I am not a lawyer and do not wish to discuss the legal intricacies of 
the bill. However, I do want to raise some very serious, commonsense 
problems I have with this legislation.
  I am deeply concerned about the bill's potential to 
disproportionately harm women. It would restrict their ability to 
recover for injuries caused by defective products. Women have been the 
victims of many of our Nation's most severe drug and medical device 
disasters. DES, Dalkon shield and Copper-7 IUD's, and silicone breast 
implants are just three examples.
  S. 687 would eliminate the possibility of punitive damages if the 
Food and Drug Administration approved the drug or device. The courts 
would be forced to treat FDA approval as a guarantee of product safety. 
Given that drugs and devices with FDA approval have killed and injured 
consumers, relying on FDA regulation alone is inadequate consumer 
protection. The threat of punitive damages is an important mechanism to 
keep dangerous products off the market.
  S. 687 also would abolish joint and several liability for noneconomic 
damages--compensation for intangible losses such as fertility, 
disfigurement, and pain and suffering. By making noneconomic damages 
more difficult to recover, S. 687 places less importance on a women's 
loss of her ability to bear children, or the disabling of a child, than 
on a corporate executive losing his salary.
  It is not fair to only require the victims of noneconomic damages to 
bear the burden of pulling all the defendants who caused them harm into 
court. Joint and several liability allows injured victims to receive 
full compensation, and leaves it to the guilty defendants to divide the 
damages appropriately among themselves. It is much fairer to place this 
burden with the guilty parties than with those who are injured.
  Madam President, Senator Kohl attempted to introduce more fairness 
into this bill earlier today. Restricting the ability of Federal courts 
to sanction secrecy in cases affecting public health and safety is a 
noble goal. I was proud to join him as a cosponsor of his antisecrecy 
amendment, and I am sorry that the amendment was not adopted.
  The settlement of the Stern case in 1985 by Dow Corning is 
illustrative of why such change is necessary. As a result of a secret 
settlement agreement, Dow Corning was able to hide its decade-old 
knowledge of the serious health problems its silicon breast implants 
could cause for 6 additional years. The damaging information did not 
become public until the FDA launched a breast cancer implant 
investigation in 1992. In the interim, nearly 10,000 women received 
breast implants every month, and countless women were harmed.
  Madam President, S. 687 would not only disproportionately harm women, 
it would also deprive injured consumers in my home State of Washington 
of rights they currently have. This is significant because Washington 
has one of the most conservative tort law scheme's in the Nation.
  This bill would reduce the statute of limitations in my home State of 
Washington from 3 years to 2 years. Injured consumers would have less 
time in which to file lawsuits when they are harmed by dangerous 
products.
  The bill would reduce the number of situations in which product 
sellers can be held liable in Washington State.
  And, the bill would abolish joint and several liability for 
noneconomic damages currently available in Washington when the injured 
person has not contributed to her injury.
  Madam President, I have serious concerns about S. 687 and cannot 
support passage of this bill as currently drafted. I urge my colleagues 
to think long and hard about consumer health and safety, as well as the 
potential impact of this bill on women.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. HEFLIN. Madam President, I yield myself such time as I may take.
  The ACTING PRESIDENT pro tempore. Is the Senator the designee of the 
Senator from South Carolina?
  Mr. HEFLIN. Yes.
  The ACTING PRESIDENT pro tempore. So we may proceed, and the Senator 
from Alabama is recognized.
  Mr. HEFLIN. Madam President, this debate has gone on for a good 
while, and there has been almost every conceivable subject discussed as 
it would relate to the issue at hand. I do not want to be repetitious 
and redundant and repeat a lot of things. But, nevertheless, there are 
some things that, maybe put in a different perspective, ought to be 
considered.
  We have had a lot of discussion on women's rights involved in this 
legislation. I think it would be appropriate to consider what has 
happened in the judicial system in the civil arena of the courts over 
the years relating to women's rights.
  When I first started practicing law not too many years ago, 
relatively speaking, there were no women on the juries. There were very 
few women lawyers. I was in law school in 1946 through 1948 at the end 
of World War II. Most of the students were veterans of World War II and 
had returned. I believe that probably out of 600 that were in law 
school with me at the time, there were probably six women. Today you go 
to law schools and you will find that probably 50 percent or more are 
women.
  Certainly as to juries, the average jury you see in the box, if it is 
not a majority of women, there are a goodly number there that are in 
the jury box. There are many women trial lawyers, and as to the judges 
today many judges are women.
  But somehow or another relative to product liability, there seems to 
be a much larger number of women who are affected by certain defective 
products. We have had a list presented here, the Dalkon shield, high-
absorbent tampon linked to toxic shock syndrome, and numerous others.
  When I look at this bill, I do not think it was intended necessarily 
by the authors of the bill, not certainly the Members of the Senate or 
their staffs, because this thing has been drafted and redrafted over 
the 16 or 17 years that it has been here. Nevertheless, there are 
numerous instances that affect women probably more so than men.
  Of course, the one that has caused such a debate among the various 
women's groups has been the approval of the language in there dealing 
with FDA and the premarket approval, giving a complete excuse against 
punitive damages. But the joint and several liability issue on 
noneconomic damages likewise affects women much more so than men in 
regards to activities that would go on.
  It just seems that what has happened really, this bill has not grown 
with the changes. It has inherent things that you do not always 
articulate or see exactly that have stayed in it since it was first 
drafted 16 and 17 years ago, and there has not been an evolution and 
recognition of women's rights and women's protection that should be 
included or how it might affect women. These things are built in, and 
every time I read it I keep finding language that seems to discriminate 
against children, the elderly, or women involved in it.
  I think that mindset took place years ago, 16 or 17 years ago, or 18 
or 19 years ago. I think Senator Hollings indicated that there was the 
first effort in drafting this when it was presented, which was about 
1974 or 1975, or something like that, I just do not think it has 
evolved as we have moved forward.

  There are other aspects of this that I do not want to go through a 
lot of repetition dealing with. There are things that I have not 
articulated, but nevertheless I think are important that we consider. 
Other people may have, and maybe I can give a little different 
viewpoint to it relative to some of the matters pertaining to it.
  Some of these deal with the issue of whether or not it is going to 
lower any cost to business. There have been hearings numerous times in 
which there have been representatives of the American Insurance 
Association and they have clearly made known that this bill is not 
going to affect insurance rates. There have been studies over the years 
that indicate that really product liability costs are a negligible part 
of the overall cost relative to business.
  The Conference Board survey of risk managers of corporations show 
that product liability costs for most businesses are 1 percent or less 
of the final product. A Rand Corp. study found that only 9 out of every 
1,000 manufacturers were named in any product liability suits in any 
given year. The survey states that available evidence does not support 
the notion that product liability is crippling American business.
  I am going to talk a little further. I want to reserve the time for 
some of the others that will be coming to the floor, so I suggest the 
absence of a quorum.
  I ask unanimous consent that the time be equally charged for the 
quorum call.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GORTON. I ask unanimous consent that the Senator from 
Pennsylvania be permitted to speak as if in morning business. For how 
long?
  Mr. SPECTER. Ten minutes.
  Mr. GORTON. To be equally divided on this current debate.
  The ACTING PRESIDENT pro tempore. Is there objection? There being 
none, the Senator from Pennsylvania is recognized to speak in morning 
for 10 minutes.
  Mr. SPECTER. I thank the Chair and I thank my colleague from 
Washington for permitting this 10 minutes as if in morning business in 
the absence of any proceeding pending before the Senate on the issue of 
product liability.

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