[Congressional Record Volume 140, Number 137 (Tuesday, September 27, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: September 27, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
LOOSENING THE GRIP OF LAWYERS ON AMERICA
______
HON. CARLOS J. MOORHEAD
of california
in the house of representatives
Tuesday, September 27, 1994
Mr. MOORHEAD. Mr. Speaker, each day in America, hundreds of lawsuits
are filed by lawyers against fellow citizens, businesses, civic
institutions, government entities, and countless other targets. This
seemingly endless series of legal attacks has practically numbed
America to the fact that, as a nation, we have become the most
litigious society on Earth and that an onsluaght of lawsuit abuse has
had damaging and lasting effects on the standard of living of all
Americans. We need to loosen the grip of lawyers on America.
While most legal actions brought in the United States seek legitimate
redress for harm caused, unfortunately many are groundless, frivolous,
and the result of lawyers who abuse the system and seek to claim
lottery-sized dollar awards from both their adversary and their client.
It is these types of abuses that bring discredit to the American legal
system, damage the U.S. economy, and drain precious national resources
into the black hole of endless litigation.
The current system creates fear among Americans that they will likely
be the victim of an unjust lawsuit; it chills their desire to volunteer
and participate in many aspects of ordinary life and it prevents the
introduction of new and beneficial products and services for the
American people.
There should be clear guidelines for determining who shall be
responsible for harm caused in an accident. Today, standards of
liability vary from State to State, and sometimes even from court to
court within a State. Neither the injured individual, the product
manufacturer, nor the seller has any idea what liability standard will
be applied, and all are subjected to conflicting rules on their
responsibility in the use, design, production, and sale of products.
Uniformity is essential in a Federal bill in order to provide fairness
and predictability to consumers, manufacturers, and sellers.
Increasingly, Americans are realizing that some commonsense reforms
are in order to stem the tide of unnecessary, harmful lawsuits. While
tort law is generally considered a matter for the States, it has been
clear for quite some time that, due to the interstate nature of the
sale of products, liability reform should be dealt with at the Federal
level. I believe there is an urgent need to address these issues in the
104th Congress, and I intend to work toward that goal.
1. Discouraging Frivolous Lawsuits
In order to prevent the abuse of our legal system, sanctions should
apply to those attorneys who are found to have brought lawsuits in bad
faith for the purpose of harassment, or solely to cause delay and
increase the cost of litigation.
The American public is getting fed-up with the abuse of the U.S.
legal system. The fear of someone filing a groundless lawsuit is
harbored by virtually all citizens, and reforms should seek to prevent
frivolous and unwarranted lawsuits. The courts should be given the
power to determine whether or not a lawsuit is frivolous at anytime
during the course of litigation. If the court determines that a
pleading is in fact frivolous, the objecting party should receive from
the filing party all expenses incurred as a result of the filing of the
frivolous lawsuit, including costs such as attorneys fees, witness
fees, expert fees, and deposition expenses.
2. requiring truth in attorney's fees
In the interest of full disclosure and competitive legal fees,
attorneys for injured victims should be required to disclose to their
clients the actual number of hours worked and the duties performed
instead of simply taking a flat percentage from a recovery.
Most liability cases are undertaken by trial attorneys on a
contingency-fee basis of between 25 to 40 percent. This percentage can
result in any attorney collecting a share of an award that far exceeds
the normal hourly fee charged, leaving the attorney overcompensated and
his client undercompensated. Effective liability reform should require
trial attorneys to disclose the actual hours worked for a client and
the duties performed in detail. Such disclosure would help the consumer
determine the true cost of counsel in each case and allow the consumer
to make better decisions in their choice of counsel.
3. encouraging product safety
Product safety should be encouraged by a Federal law which prohibits
the use of subsequent design changes or remedial measures to show that
a manufacturer's early design of a product was unsafe.
In order to encourage manufacturers to continually improve their
products and the safety of their products, courts should prohibit trial
attorneys from using a manufacturer's product improvements as evidence
that an earlier product design was unsafe. Not only is using evidence
of such safety improvements irrelevant to the case against an earlier
product and unfair to the manufacturer, who has since improved his
product, but it is detrimental to consumers. Currently, a manufacturer
may be reluctant to make a design change that might offer marginal
improvement in the safety of his product due to fears that such an
improvement may be used against him to prove that an earlier product
design was defective. Our laws should encourage improvement in product
safety not discourage them.
The public policy reason behind this suggested evidentiary rule
change has been recognized by many courts, and Federal product
liability reform should include such a limitation on the use of
evidence of remedial measures.
4. Preventing Abuse of ``Expert'' Opinion
Expert, scientific, or medical opinions should not be considered
sufficient evidence to establish any fact unless such opinion has
support in peer-reviewed scientific or medical studies.
There clearly is a problem in our court system with the use of so-
called expert testimony from expert witnesses. These experts can be
found one day in an Atlanta courtroom testifying as an expert on
aircraft components and the next day in New York or California
testifying as an expert on machine punch presses. These experts seem to
be able to testify on anything as long as there is a fee involved, and
they do a real disservice to America's judicial system. Abuses by such
expert witnesses should be curbed. This can be accomplished by stricter
qualification of experts, and by limiting their testimony to theories
and principles which have at least some support in the relevant
scientific or medical community about which they testify.
5. A Reasonable Statute of Repose
A Federal statute of repose between 8 and 15 years--representing the
shortest and longest statutes of repose currently in State law--should
be enacted to provide an outer time-limit on the liability of a
manufacturer for injuries allegedly caused by a product which is a
capital good.
One of the most serious impediments to U.S. competition and the
creation of new manufacturing jobs in America is the lack of a uniform
statute of repose which sets an outer-limit on the number of years for
which a product manufacturer may be held liable for his product. Suits
in the United States have been brought against products built 40, 50,
and 70 years ago. As most of our foreign competitors do not have
products this old in use in the United States, such suits are brought
almost exclusively against American companies. As these products have
proved their value and use for decades prior to any accident having
occurred, they are often good products made by the best American
companies. The cost to U.S. companies of defending these lawsuits
increases the price of domestic products and makes American products
less competitive here and abroad. This ``long-tail of liability'' can
only be ended by a clear, definite, and uniform Federal statute of
repose.
Thirty States have enacted statutes of repose of between 8 and 15
years. A good Federal policy would adopt the average time period
specified in the States' statutes as a uniform Federal standard. While
such a time period would be longer than the 10-year statute of repose
applied in the European Community, it would nevertheless provide a
strong boost to domestic product manufacturers and would help increase
U.S. competitiveness and domestic jobs.
6. restoring personal responsibility for accidents involving
intoxicating alcohol or drugs
Where an accident is caused by an individual who was under the
influence of intoxicating alcohol or drugs, that individual should not
be allowed to recover for his injuries by suing a product manufacturer
or seller.
A claimant who causes, or is involved in, an accident in which their
alcohol or drug use was the principal cause of injury, should not be
allowed to shift liability from himself to someone else. Public policy
should discourage the use of alcohol and drugs, which are dangerous not
only to the abuser, but to all of society. It makes no sense to allow
someone who voluntarily becomes intoxicated and causes his own injury
to recover compensation for that injury from others. The determination
of whether or not an individual is under the influence of alcohol or
drugs should be made pursuant to applicable State law.
7. eliminating unfair suits against product sellers
Product seller liability should be limited to the harm caused by the
product seller's own negligence. Those who merely sell products are
often sued for injuries caused by the manufacturer of a product.
Defending these suits imposes substantial costs on product sellers, but
does nothing to provide incentives for product safety. Fair standards
for the liability of a product seller should provide that the seller be
liable only for injury caused by his own negligence or where an express
warranty on the product has been made and the product has failed to
conform to the warranty. A standard like this would eliminate needless
litigation expense and help lower consumer prices for many products.
8. prevent abuse of punitive damages
Punitive damages are quasi-criminal in nature and should be used
sparingly.
Punitive damages go beyond mere compensation of a victim and are
designed to punish and deter outrageous conduct. Since the imposition
of punitive damages is similar to criminal sanctions, the burden of
proof should be clear and convincing evidence, and should only be
awarded in a situation where the harm caused was a result of a
conscious, malicious, and flagrant indifference to the safety of
product users.
Plaintiffs should be required to request punitive damages by motion
and further required to establish, at a hearing, that there is a
reasonable likelihood of proving facts to support a punitive damage
award. Such a motion should not be filed with the original complaint
but should be made after the close of discovery. Furthermore, the trail
court should be authorized to determine whether a jury award for
punitive damages is excessive and, if so, reduce it or require a
rehearing on the motion. The court should also decide whether or not
the plaintiff's attorney is to receive any portion of a punitive damage
award, and, if so, to what extent.
9. Restoring Fairness in Damage Awards
Under this provision, each defendant would be liable only for that
portion of damages determined to be its proportionate share of
responsibility for the harm.
Responsibility for causing damage must be fairly apportioned among
those responsible for the harm. Too often, individuals and businesses
are left entirely responsible for an accident which they had very
little to do with only because they are in a position to pay a claim
since they have the deepest pockets. This is unfair and in every case,
damages should be paid by the wrong-doers involved only to the extent
of their responsibilities for those damages.
10. Restoring Personal Responsibility for Product Alteration and Misuse
A productmaker should not be held responsible for accidents caused by
a product that has been altered or misused.
It is unfair to allow a claimant in a lawsuit to recover damages from
a product manufacturer or seller where the claimant's injuries were a
result of the misuse or alternation of a product. If the use of a
product is in violation of the manufacturer's express warnings or
instructions, that manufacturer's liability should be reduced by the
percentage of responsibility which was attributable to the alternation
or misuses of the product. Further, if the misuse of the product or its
alteration involved a risk of harm which should have been known by the
ordinary person, damages assigned to the manufacturer should be reduced
by the percentage of responsibility attributable to the misuse or
alteration.
Mr. Speaker, enactment of the above 10 proposals will form the basis
of strong and effective legal reform which will help loosen the grip of
lawyers on America. These commonsense reforms are necessary to ensure
that American consumers, manufacturers, product sellers, employers and
employees alike receive fairness and justice under our civil justice
system.
The time has come to end lawsuit abuse in America. I look forward to
working with my colleagues on both sides of the aisle to ensure that
these reforms are adopted as soon as possible.
____________________