[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.

                          ____________________