[Congressional Record Volume 141, Number 34 (Thursday, February 23, 1995)]
[House]
[Pages H2163-H2168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                              TORT REFORM

  The SPEAKER pro tempore (Mr. Largent). Under the Speaker's announced 
policy of January 4, 1995, the gentleman from Ohio [Mr. Hoke] is 
recognized for 60 minutes as the designee of the majority leader.
  Mr. HOKE. Mr. Speaker, tonight, along with the gentleman from 
Tennessee [Mr. Bryant] and the gentleman from Omaha, NE [Mr. 
Christensen], we are going to engage in a special order that is going 
to focus primarily on tort reform and what the need is for that reform, 
what the Republican conference is going to do about that, how that fits 
into the Contract With America, and what the American public can expect 
to see on the floor of Congress in the next 2 to 6 weeks with respect 
to that.
  But before we start talking about tort reform and the need for it, I 
want to just take a couple of minutes to review what we have done here 
in the first 50 days, because we are really at the halfway point. I 
think it is not improper or incorrect to take some time, take a deep 
breath. We could call this half time. Normally at half time what we get 
to do is we get to go into the other room and pop open a beer or a soda 
and take a little time. Because we are on such a fast track here, we 
really do not have much time.
  Mr. Speaker, I yield to the gentleman from Tennessee [Mr. Bryant].
  Mr. BRYANT of Tennessee. I am not sure what kind of sports you have 
played where at half time you pop a can of beer open, but----
  Mr. HOKE. This would be the sport of couch potato watching football.
  Normally you get a little breather. Well, we are not going to get 
much of a breather here, but we would like to take just a moment to 
celebrate what has been absolutely the most productive 50 days in the 
entire history of the U.S. Congress.
                              {time}  2230

  What have we done exactly? First of all, America faces a brighter 
future today than it did 50 days ago. Because we took an important step 
forward, toward ending the immoral practice of piling up debt for 
future generations by doing two things.
  First of all, we passed the balanced budget amendment and we passed 
the line-item veto. Right now it is up to the Senate, where I 
understand we have got two more that are going to be on our team, and 
we are within one vote, maybe we are at that vote even now as we speak, 
to pass the balanced budget amendment there.
  Once again, we are earning America's trust. We have more than doubled 
the approval rating of the Congress. We are no longer down in the dumps 
with lawyers. I happen to be a lawyer, along with my two colleagues 
tonight. We are no longer rated below used car salesmen. Actually we 
have crossed the 50 percent threshold if you can imagine that in terms 
of an approval rating overall.
  Before we can go forward with the reforms that we want to change in 
America, we have to reform the way this place works, change Congress 
itself, and that is exactly what we did on our opening day with the 
opening day reforms. We cut committees, we cut committee staffs by one-
third, and we actually cut two standing committees in this House. It 
had not been done since World War II. In addition, we cut about 20-plus 
standing subcommittees. Most importantly, Congress is now required to 
live under the same civil rights and employee protection laws as 
everyone else is.
  We have made Washington a more accountable place than it was 50 days 
ago. The Federal Government can no longer pass legislation, however 
worthy it might be, that sticks States and communities with the tab. We 
have restricted the Federal Government's ability to do that. That is 
the unfunded mandates reform. We are listening a lot more today than we 
were 50 days ago.
  What we are doing in the way of personal security is that we have 
said we do not know best in terms of crime control. We believe that the 
local communities do. We have made a block grant approach to this in 
the Committee on the Judiciary that has been passed on the floor where 
we are saying that one-size-fits-all government is not the way to go. 
We want to give our
 local communities, the police chiefs, the mayors, and citizens boards 
the opportunity to make their own decisions about how best to combat 
crime.

  The Federal Government had failed to make families safe and more 
secure, and these new crime measures are fixing that by giving 
communities the tools that they need.
  Finally, we are restoring common sense to Washington with respect to 
a more rational national security strategy, making it harder for the 
President to send U.S. troops off on U.N. missions, and we have created 
a commission to ensure that America's most important national security 
resources, the men and women in uniform, are going to be able to do the 
jobs that we ask of them.
  There is a lot more work to be done, welfare reform, regulatory and 
legal reform, Congress' first-ever vote on term limits, something that 
I strongly support, family tax relief, economic growth tax measures and 
the spending restraints that are required to pay for all of this.
  While the agenda is very daunting, American families have placed a 
tremendous amount of trust in the 104th Congress. We met the challenge 
of the 
[[Page H2164]]  first 50 days, and we are going to meet the challenge 
of the second 50 days as well.
  One of the areas in which we need to meet that challenge is clearly 
in the area of becoming more accountable and bringing some common sense 
and sanity to our legal system.
  I wonder if I might ask the gentleman from Nebraska [Mr. Christensen] 
to talk about where we are in terms of the legal system today and what 
we need to do, what kind of a challenge we face in reforming that.
  Mr. CHRISTENSEN. Mr. Speaker, I believe that the debate we will soon 
have over our legal system is among the most important national 
discussions we can have. Our laws, after all, are what define us as a 
society. When there is something awry with our legal system, then we 
should view it as a threat to our Nation.
  I am proud of my colleagues for helping to make legal reform one of 
the priorities in the Contract With America. As we all know, the impact 
of frivolous lawsuits is felt far beyond the courtrooms and the law 
offices. Over the last 25 years or so, we have developed a system in 
which any American who has been
 wronged, no matter who he or she is, no matter how much he or she 
earns, can seek justice in an impartial court. That is a tremendous 
achievement, rare in the annals of human history. There are other 
western countries that even today do not have legal systems as open and 
as accessible as ours. Yet during the same past 25 years, our legal 
system has gone astray.

  The bill in the Contract With America is called the Common Sense 
Legal Reform Act, because most Americans believe our legal system 
defies common sense, and they are right. The system is an affront to 
common sense. Only the organized trial lawyers and their lobbyists do 
not recognize it.
  What has happened to bring us to this condition? Our legal system, 
once the envy of the world, is now the object of parody on late-night 
television.
  Mr. HOKE. Would the gentleman yield for a comment?
  Mr. CHRISTENSEN. Yes.
  Mr. HOKE. As I understand it, you are an attorney.
  Mr. CHRISTENSEN. Yes, I am.
  Mr. HOKE. And you practiced law in Nebraska?
  Mr. CHRISTENSEN. I have never practiced, but I am licensed to. I have 
been in the business world.
  Mr. HOKE. Ah. And my colleague from Tennessee is also an attorney?
  Mr. BRYANT of Tennessee. That is right.
  Mr. HOKE. Do you say that with pride, because it sounds like there is 
an awful lot of criticism of the legal system going on here.
  Mr. BRYANT of Tennessee. I do. I think it is time some people do 
stand up for the legal profession, as I tried to do on the campaign 
trail. There are an awful lot of good lawyers out there. Like again in 
any job or profession, there are a few that I think stretch the system 
somewhat and maybe cause us all to have a bad reputation. I have 
practiced a number of years both as a Federal prosecutor but more often 
as a defense attorney in civil litigation, and this subject of a 
reasonable, commonsense tort reform is something that is very near and 
dear to me.
  Mr. HOKE. I think just in the interest of full disclosure, the 
Speaker probably would be interested in knowing that I am both a 
businessperson as well as having practiced law for the better part of a 
decade. The gentleman from Nebraska [Mr. Christensen] has a law degree 
but did not practice, and was in the
 private sector, and the gentleman from Tennessee [Mr. Bryant] has the 
greatest problem on this because he apparently has done only law both 
as a U.S. attorney in a distinguished capacity and also in the private 
sector. We are clearly all three lawyers but we see real problems with 
the legal system.

  Mr. CHRISTENSEN. If the gentleman would yield back, please, the real 
problem with this system, I believe, lies with fault. I think that we 
have got a system to where everyone thinks it is someone's fault and 
they ought to have a right to sue. Fault once used to be the bedrock of 
our legal system. The tort system was designed to find who was at fault 
and who was wronged. The tort system helped define responsibility and 
make the proper redress to the injured party.
  Today, however, fault rarely enters into the equation. If an 
individual acts carelessly, he can still use the tort system to get 
compensation. If an individual intentionally breaks a contract, he can 
still seek payment through the tort system, and if an individual 
behaves foolishly, he can still blame others for his injuries and get a 
handsome reward through the courts.
  Tort law was once about right and wrong, blame and responsibility. 
But today trial lawyers have twisted that original meaning and turned 
tort law into some form of social insurance. That is where the Contract 
With America comes into play.
  What we are talking about is restoring some common sense back to our 
legal system. If something goes wrong in today's society regardless of 
who is at fault, they hire a lawyer. Their message is always the same. 
You can be compensated.
  I have seen so many TV commercials and we have all seen the 
advertisements.
  ``If you've got a phone, you've got a lawyer.''
  ``Have you been injured in an accident lately? Call me, because we're 
on your side.''
  The trial lawyers make out very well in this no-fault system. They 
always collect their fee, but the rest of the American people are 
paying for it. We are paying for it in our cities because, little to 
the public's knowledge, there have been times where little league has 
had to be canceled because of the high insurance cost. We are paying 
for it when law-abiding companies have to pay tens of thousands of 
dollars simply to dismiss a nuisance lawsuit. We are paying for it in 
medical devices which are kept off the market and innocent lives are 
lost. We are paying for it when legitimate grievances cannot be 
resolved because our courts are clogged with million-dollar suits, 
where the defendants have only a distant and indirect relationship to 
the injury that occurred.
  Restoring a sense of fault to the entire system is the only way we 
can restore the sense of right and wrong. That is exactly what our 
Contract With America, the Common Sense Legal Reform Act, does. It 
restores some balance to the system.
  For 14 years, they have had it their way. For 14 years, we have been 
trying to address this issue. Now finally we have started the process 
forward.
                              {time}  2240

  You know, if we can continue to process and continue to expand this 
tort reform not just to include product liability but all civil tort 
reform, we will have made a good first step.
  I yield.
  Mr. BRYANT of Tennessee. The gentleman from Ohio and myself both have 
the extremely high privilege and honor to serve on the House Committee 
on the Judiciary, the committee that has been primarily responsible for 
the taking of testimony and conducting the hearings, marking up the 
bill and reporting it out to the floor, which we anticipate it will 
arrive in the House within the next few days for full consideration. 
Over that period of time, we heard testimony from a number of witnesses 
and conducted hearings that I understand have been built in the past on 
past hearings. And I think we have a very good bill. I always am a 
proponent of balance. I talked so much about this when we talked about 
the crime bill and how I felt on the crime side the pendulum had swung 
too far in favor of the criminal, and now I think we see it coming back 
more into proper balance with society and victims. I think the same can 
be said about the civil side, the Tort Liability Act we are talking 
about now, and I think it is important we bring that back into a more 
common sense environment. I think the bills we will be reporting out to 
the floor bring that, particularly in the area of product liability and 
punitive damages. Certainly a former businessman, and the gentleman 
from Nebraska has alluded already how in many cases the fear of 
lawsuits and large lawsuits hamper, stifle growth, development of 
products. We have talked about not-for-profit organizations like Little 
League Baseball, churches, anytime you have an activity where somebody 
could possibly be injured and sometimes they are put on by not-for-
profit organizations that have to go out and take insurance for fear of 
somebody 
[[Page H2165]]  getting hurt and large lawsuits being filed and 
punitive damages being awarded, and something is out of kilter there.
  I am all for, as I think we all are keeping the courthouse doors open 
for those good lawsuits, those fair lawsuits, the ones where people are 
indeed injured and deserve a hearing and a consideration for 
consultation.
  Mr. HOKE. Would you yield for a thought? I do not think anybody, I do 
not hear anybody talking about
 trying to in any way foreclose a person's right to access to the 
court, to justice in America. But there is an overwhelming sense, there 
is a very strong sense, a visceral sense that we have gone too far in a 
way that does not protect individuals, in a way that they are getting 
redress for grievances for real damages, but in fact people who are not 
at fault are being victimized themselves by a legal system run amok. 
And I have to tell the gentleman I was astounded when the executive 
director of the Girl Scouts of America for Washington, DC, who was 
participating in a meeting about a week and one-half ago I was at, and 
I believe the gentleman was there also, 87,000 boxes of cookies is the 
answer, 87,000 boxes of Girl Scout cookies is the answer. The question 
is how many Girl Scout cookies do the girls in the Washington, DC area 
of the Girl Scouts of America have to sell just to pay their annual 
liability insurance premium: 87,000 boxes. That is stunning. And she 
went on to say that they do not allow the Scouts to ride horses 
anymore, they will not allow the girls to ride in cars that have been 
rented. They have changed the way that they do business as a result of 
this liability problem.

  So tell me what are we going to do? What is the direction here we are 
going in to try to get a handle on that?
  Mr. BRYANT of Tennessee. I think we started out with the idea of 
bringing forth a good, fair product liability act, one that would apply 
across the country. You know so many of our products, probably all of 
the products travel interstate. Rarely would you find something that 
stays within one State, and I think we all see a Federal involvement, a 
need for a Federal role in regulating product liability to that extent, 
and what we have come forth with is a bill that does set some clear 
standards for products in terms of what you can do. It limits liability 
to sellers who often times are brought in along with the manufacturers 
of the products just because they are in the chain.
  Mr. HOKE. What is the distinction there?
  Mr. BRYANT of Tennessee. Of course people that have been in small 
business know that when you go into the stores most of the time you do 
not buy your product directly from the manufacturer, you go through a 
retailer. When there is an allegation that a product is defective and a 
lawsuit filed, it is not
 uncommon that what I call the shotgun approach is taken and everybody 
out there that possibly could be sued is brought into the lawsuit, and 
that normally not only involves the manufacturer of the alleged 
defective product but the people in the chain that bring it to the 
store even. And what we do is we now require there actually be some 
actual negligence on the part of the seller before they can remain in a 
lawsuit.

  Mr. HOKE. You mean you could buy perhaps a lantern at a hardware 
store, a lantern that has been manufactured in a defective way, but say 
that the manufacturer is in another State or hard to find or something 
like that?
  Mr. CHRISTENSEN. Would the gentleman yield? Here is a perfect example 
I ran into earlier today, and we all heard about McDonalds because of 
the patron who ordered the cup of coffee and she spilled it, and it 
caused injury to her and she sued. But there is another McDonalds story 
that I think people that are watching tonight should be aware of and it 
is very interesting because it causes very much a concern with where we 
are headed with this litigious society. There was an individual who 
pulled up to a McDonalds drive-thru outlet and ordered some chocolate 
shakes and some fries. He put the chocolate shake between his legs, 
drove off, reached over to grab something on the other side of his car. 
The chocolate shake spilled over his legs and caused him to hit the car 
in front of him. But what did the plaintiff's lawyers do when they got 
ahold of this little case? Not only did they sue the car in front of 
him, but they sued McDonalds because they said the McDonalds restaurant 
should have had a sign that said, ``Do not eat and drive.''
  Now, fortunately for McDonalds, they won this case. But the example 
here is that they had to pick up the fees for defending themselves from 
a frivolous lawsuit, and there are a lot of examples out there like 
this that we all know about that we are trying to get corrected through 
this common sense legal reform act.
  Mr. HOKE. I thank the gentleman.
  Mr. BRYANT of Tennessee. That is a great example and of course there 
are many more. But again we are talking about trying to bring some 
common sense to this ground. We set forth a reasonable standard also in 
terms of the length of time that a product
 manufacturer can be sued, what is called a statute of repose for 15 
years. We set out a distinction for removal of what is called joint and 
several liability.

  Mr. HOKE. Maybe we can talk about what that statute of repose means 
because the first time I heard that I had no idea what it meant.
  Mr. BRYANT of Tennessee. In most lawsuits already there is separate 
from that a statute of limitation in which a person has some years from 
when they are injured in which to file a lawsuit, but particularly in 
the area of product liability, since machinery and products have a 
lifetime of X number of years or whatever, it has generally grown over 
the years in a lot of the States that already have these laws this 
statute of repose, which simply means that at some point in time, and 
in this case 15 years, I think it is 18 years in the General Aviation 
Act, that a product manufacturer cannot be sued after that period of 
time, after 15 years, now this product bill for 18 years, just as a 
matter of public policy and so forth.
  Mr. HOKE. In other words, if something is wrong with this piece of 
equipment that was manufactured 15 years ago, we would have found out 
about it in that period of time? It would have become obvious.
  Mr. BRYANT of Tennessee. Right, the defect would have become obvious.
  Mr. HOKE. The defect would have become obvious and either there would 
have been a lawsuit over it or corrections made to it, but after a 15-
year period, absent an updating or change or some sort of a design 
change in it, there will not be any lawsuits allowed alleging a defect 
in the manufacturing of that product; is that correct?
  Mr. BRYANT of Tennessee. That is the gist of it. And I think, too, 
probably the biggest thing we bring in through this commonsense bill is 
the limitation, so-called cap on punitive damages.
                              {time}  2250

  And that is probably the most, I guess, controversial aspect of this. 
I know we have got an outpouring of information from both sides, I 
guess, or all sides on whether they are for or against this cap.
  In essence, what that simply does is in the area of punitive damages, 
and we talked about this the other night, and I do not intend to go 
into great detail, but there are generally two types of damages that 
are available to an injured plaintiff. One is compensatory damages 
where they are simply paid, fairly compensated, for their injuries, 
loss of wages, future earning capacity, medical bills, funeral bills if 
they are killed, pain and suffering, those types of things. Those are 
compensatory damages, and what, again in a real injury case, someone is 
fairly entitled to receive.
  The other angle to damages, the second part of it, punitive damages, 
that is simply the way that society has created to send a message to 
potential defendants, whether they are product manufacturers or 
individuals like you or I; we can also be sued for punitive damages if 
our conduct reaches a certain level of misbehavior, and that message is 
if you do this, you could get stuck with punitive damages. We are going 
to punish you. We are going to try to deter you. But there is no limit 
in the law on these.
  It is like committing a crime almost, but not having any limit on 
what you can be sentenced to.
  Mr. CHRISTENSEN. In the past what you are saying is you could have 
had a judgment against someone, say, for 
[[Page H2166]]  $100,000, but then they could get slapped with a $5 
million punitive fine, and one of the things that the jury will always 
be hearing from the lawyer is, ``We are trying to send a message. We 
are trying to send a message that this will not happen again.'' But 
that message has gotten very, very clouded, because that $5 million, 
and I am not sure that they could not have received a message for say 
$500,000, and that is what this commonsense reform is going to do is 
going to reform that area.
  Mr. BRYANT of Tennessee. That is exactly right. It is a situation 
where society is trying to tell somebody and deter by this potential 
for a judgment. What we have done, perhaps the purest view of this 
would be to take this type of punitive damage and not give it to the 
plaintiff, the victim, because again they have already been fairly 
compensated, but, rather, take this money and, you know, we have talked 
about some things in our Judiciary Committee about sending it to the 
Federal Government to reduce the national debt or to a third party not-
for-profit corporation. Little League, Girl Scouts or something to help 
them out, a city, or a county, or whatever, society, if you will. But 
we have taken a more of a middle ground at this point and just simply 
put a cap on it, set out the maximum punishment, if you will, and in 
essence what that is is three times the compensatory damages or 
$250,000, which ever figure is greater so that money under our bill 
still goes to the injured plaintiff, but it does begin to set some 
reasonable limits on that so that you can forecast and make some 
reasonable valuation.
  When I was a trial attorney, we used to get into these kinds of 
cases. I could usually evaluate, which helps us and helps the judicial 
system, because we can evaluate the case early. We can make somewhat 
overtures and perhaps avoid a trial. I could always do that on 
compensatory damages, because I could look at the amount of money they 
lost from work, the type of injuries they had, the type of permanent 
disability
 and give a reasonable ballpark figure on what I thought the case was 
worth.

  But where I had no clue as to how to evaluate a case was this issue 
of punitive damages, because that is again there is no measure, there 
is no standard out there, a lot of times there is no rationality 
between compensatory damages and the punitive damages. It is an 
emotional issue. That particular day the jury gets fired up by some 
good lawyering and gives a huge verdict, a pie in the sky is what I 
call it, and there is no way I can evaluate that which actually 
deterred me from settling some cases that probably could have been 
settled had it not been for that.
  Mr. HOKE. Is not this whole notion of the doctrine of punitive 
damages a relatively modern doctrine, a relatively new doctrine in our 
legal history, and does not that probably just on its own cry out for 
at least relooking at its until we get it right? I would, as you know, 
because we have worked very late last night and then we came back early 
this morning to finish marking this bill up in the Judiciary Committee, 
and there will be a bill or an amendment that I am pretty confident is 
going to pass that will in fact award 75 percent of the punitive damage 
award to the State in which the case was heard and 25 percent of it to 
the plaintiff, but we have to remember that the idea of this is to 
punish the wrongdoing of a tort feasor, of a defendant, who is then 
going to be himself or herself or itself deterred in the future.
  But more importantly, it sets an example for society, and the one 
part of this that I get confused about, and I would particularly like 
the insight of a U.S. attorney who has prosecuted criminal cases. I 
know you did not do a lot of criminal work, but who has done criminal 
cases, you know, normally we think of punishment as being within the 
realm, within the purview of the criminal code, not the civil code, and 
yet we have gone, with respect to punitive damages, to a system where 
we are supplanting and substituting punitive damages for criminal 
prosecution. And I would be very interested in knowing your insights on 
this, because it seems to me that you have probably given a lot of 
thought to that.
  Mr. BRYANT of Tennessee. Well, of course, the concept of punitive 
damages, I am not sure of the historical background on that.
  But I think it has become even more important, as I am sure the 
gentleman can attest to, over the last years because the judgments 
have, I think, been so numerous and in large amounts.
  I say this as a general rule, whenever you are reading your morning 
newspaper and you see this article about this case over in some other 
State that has given this huge verdict, multimillion-dollar verdict, 
you can just about guarantee that most of that is composed of punitive 
damages. I think the McDonald's coffee case was one. I do not know the 
exact figures. Another problem there is you get up to that level, I 
think in the McDonald's case, for example, it was over a $3 million 
verdict, even when the judge revisits that and reduces that award, and 
a judge can come in behind a jury verdict and say that is just 
outrageous, they still do not reduce it down to a level perhaps it 
ought to be. I think perhaps in that case it ended up still being in 
excess of a million dollars for spilled coffee.
  Perhaps we overstate the McDonald's case. There are many, many other 
illustrative cases out there, but I certainly think it is, and I know 
our committee thought it was. I know a number of people who testified 
in our hearings thought it was time to come back and look at this issue 
of punitive damages and bring some, as the gentleman says, some common 
sense to this.
  Again, we are not eliminating punitive damages. We are not 
encouraging misconduct by individuals or companies. We are simply 
trying to bring some reasonableness to this system of justice which we 
think has gotten out of hand.
  Mr. CHRISTENSEN. There are States that are already way ahead of us on 
this issue. I have to brag on Nebraska for a second, because Nebraska 
does not have punitive damages. It is a very friendly environment to do 
business in.
  We also capped medical malpractice at $1,250,000, so when we are 
looking at what we are doing at the Federal level, it is just a start. 
I mean, there are already a lot of States out there that are way ahead 
of us in reform and are a friendly environment for those pro groups, 
those businesses that want to buy a product.
  Mr. HOKE. Could I ask you a question? What is the unemployment rate 
in Nebraska?
  Mr. CHRISTENSEN. Two percent; 2 percent.
  Mr. HOKE. What is the bottom line? Who is most
   served by all of this?

  Mr. CHRISTENSEN. It is the taxpayer, the Nebraska taxpayer. We have a 
great environment, a great quality of life, less than 2 percent 
unemployment. People are coming to town. We are extracting businesses. 
It is definitely a very vibrant economy.
  Mr. HOKE. It means there are jobs there for people who want to work, 
and it means that everyone, everyone in the entire society has a shot, 
has the opportunity to do what we all want to do, which is have a 
decent job.
  Mr. CHRISTENSEN. One of the largest chip makers in the country, 
Micron Industries, is right now seriously looking at Omaha, NE, because 
of the things that we offer, quality of life, the threat to the 
business as far as protection from liability, punitive damages. There 
are so many things that we have, but we are just starting as a Federal 
Government to get to where Nebraska is. So it is exciting to see us 
moving in that direction.
  And we have had a lot of grassroots support. There are a lot of 
people out there that are behind us. The American people want 
commonsense legal reform.

                              {time}  2300

  The want to end the frivolous lawsuits. We need the help of the 
American people. We need the help of that business owner out there that 
needs to let his Congressperson know how he feels about reform, to let 
us know about certain cases that have affected the people personally. 
Because this is a team atmosphere, just like here tonight. We need to 
have the American people enjoined in this fight, because it is a fight 
that the American people can and will win.
  Mr. HOKE. You are absolutely right. We do need a team approach, and 
we 
[[Page H2167]]  need people to let the folks here in the Congress know 
what they want. And we need working men and women to phone in and let 
their Congressperson know that it means their job, that that is what we 
are talking about, and that we have got to have a reform, so that one 
of the things that is going to happen is everybody, when we finally get 
this done and get it right with respect to tort liability reform, 
common sense legal reform, we are going to find a dramatic reduction 
in, for example, automobile insurance. We are going to find a dramatic 
reduction in health insurance. We are going to find that these costs 
that are so significantly borne right now by working men and women are 
going to go down, and to everyone's benefit.
  I have to say there is one group that might not benefit by this kind 
of reform, and since we are all members of that profession, I think it 
is fair to say that this is probably not great for some aspects of the 
legal profession. But, you know, at the same time we have created a 
system where we have got more lawyers per capita than any other 
developed nation on Earth.
  I think of the numbers with respect to Japan, and I will probably get 
this wrong, but I think we have got something like 100 times the number 
of lawyers per capita here in the United States than in Japan.
  Mr. CHRISTENSEN. Here in Washington, DC, I believe there are over 
30,000 lawyers, just here in Washington, DC. Over 30,000 lawyers. 
Goodness knows why we have all the problems in Congress. Sixty percent 
of the elected Members are lawyers. Finally there has been a reform 
group that has come, that even though some of us have law degrees, we 
have not allowed that to be a stumbling block.
  Mr. BRYANT of Tennessee. I have to step in here before Jon defeats us 
all here. I was joking, I think I said this last time I was up here, 
about during the course of the campaign people always wanted to know 
what you did for a living. I always mumbled that I was a lawyer, but I 
was looking forward to doing something better and going into politics.
  Let me say this much: As good as this tort reform legislation is, it 
is not the silver bullet by itself. It is a very important piece of a 
puzzle I think that fits in in solving America's woes, America's 
problems, as is this Contract with America.
  I think if we get this common sense tort reform-legal reform done, 
combine that with real serious tax reform, capital gains tax cuts that 
we talk about in our Contract with America, stir up the economy, get 
more money into the system creating more private sector jobs, and then 
concurrent with all this, again as part of our Contract with America, 
reform our welfare system and quit paying people more not to work than 
we pay them to work, that we create these jobs out there, that the 
people on welfare can move into and begin to get that type of self-
esteem and the type of lifestyle that they deserve, like everyone else, 
and they can meet the American dream, and not have a career of drawing 
welfare.
  That is what we are shooting for, and that is why I am so pleased to 
be able to come in here and talk about how we are performing, how we 
are honoring our promises, our commitments we made during the campaign. 
We are fulfilling the Contract With America. Martin, as you said 
earlier, we are halfway through this. And we have made tremendous 
progress. We have almost gotten lost, some of our accomplishments have 
been lost in this shuffle.
  The balanced budget amendment, that is incredible in and of itself. 
But again, unfunded mandates taken away from the counties and cities 
and states, a line item veto, effective crime legislation. You know, I 
campaigned on limiting death row inmate appeals. We have done that. I 
campaigned on modifying the exclusionary rule. We have done that. I 
campaigned that the real bad guys, the violent criminals, ought to be 
locked up in jail for at least 85 percent of their sentence. We have 
done all we can to encourage the states to do that.
  They are getting lost. And not that we are up here begging for proper 
credit. I think the proof will be in the pudding over the next few 
years as to what we have done. But we have accomplished a lot. We have 
got a lot of work to do. We have got the tough bills to go, term 
limits, welfare reform, tax reform, this bill on tort reform. But I am 
just excited to be up here and share being a part of Congress with 
folks like you who are just as committed.
  Mr. CHRISTENSEN. I was wondering if you would take a moment today, 
since you came out of the Judiciary, and the last amendment that came 
through, and explain to everybody that the joint and several liability 
aspect of H.R. 956.
  Mr. BRYANT of Tennessee. That is an aspect of the law that I have 
always thought was unfair. I know in Tennessee we recently had a change 
a couple of years ago that was not by the legislature, but rather by 
the courts. In essence, what this joint and several liability means is 
that again using the shotgun approach, which is often used in these 
kinds of cases, you have a number of defendants out there. And over the 
course of a trial, the jury eventually reaches a verdict that some of 
these folks are maybe liable more than other folks. Usually there is 
one defendant that is most liable and others that are less liable. 
Under the concept of joint and several liability, regardless of the 
percentage of the liability, regardless of whether it is small or 
large, if you have the deep pockets, and usually some of these 
defendants are people that don't have deep pockets, the one that has 
the deep pockets has to pay the whole judgment. They have a right to go 
back and collect against the codefendants, but in reality there is 
nothing there.
  Mr. CHRISTENSEN. What you are saying is someone is 1 percent, 2 
percent, 5 percent at fault, he could get stuck or she could get 
stuck--
  Mr. BRYANT of Tennessee. With 100 percent of the judgment. Their only 
relief is to go back against folks that don't have any money to begin 
with.
  What this does is simply bring back common sense, what the average 
personal might think about, why not just pay in proportion to what you 
are liable for. That is what we tried to do here. I think we have done 
an effective job in that.
  Mr. HOKE. You know, I love the Florida case against Disney World, I 
think you heard it in the committee the other day. This is a great 
case. The plaintiff is with her husband on dodgin' cars, and something 
happens and she is injured. She is found by the trier of fact, that 
means the court, I know you guys know that, but she is found by the 
trier of fact to be 85 percent responsible for the injuries she 
received as a result of this dodgin' car accident. Her husband is found 
to be 14 percent liable, or responsible, and Disney World is found to 
be 1 percent responsible. She cannot collect from her husband because 
he is her husband. Under Florida law, she obviously doesn't collect 
from herself, because she is the injured party, and Disney World, with 
1 percent of the liability, was given 100 percent of the damages.
  Now, that just flies in the face of anybody's sense of what is fair. 
And what happens in these cases is them that has got the deep pockets 
ends up paying the piper many, many times more than what would pass a 
fairness test.
  Mr. CHRISTENSEN. Also, a good example of the frivolousness of 
lawsuits is all the lawsuits that come right out of our prisons. I 
mean, you might have had some experience with this in Tennessee, where 
there are prisoners that have the opportunity to file endless lawsuits 
and endless appeals and the processes have just become rampant. I had a 
staff member out of my staff today tell me that he represented a 
convicted felon because he was asked by the court to represent this 
convicted felon who is serving time in the
 Nebraska State Prison. The man sued the State of Nebraska, demanding 
that the State pay him to have a plastic surgery, to have plastic 
surgery on his nose. He claimed it was cruel and unusual punishment for 
him to have to go through life with less than a perfect nose.

  Eventually the court dismissed this case, but not until after 
thousands of dollars in legal fees had been expended, tax dollars, our 
money going out the window for frivolous lawsuits, and there are 
thousands of them all across the country through the prison system.
  Mr. HOKE. Well, Jon, I want to thank you for bringing us together 
this evening. Ed, I want to thank you for 
[[Page H2168]]  participating and look forward to working a lot more 
with you on the Committee on the Judiciary.
  I know we have not used all our time, but I see our good friend from 
California with a lot of great props. Bob, those are wonderful props, 
and we are looking forward to seeing them. I know there is not a lot of 
time left this evening, so I want to give you your opportunity.
  Anything else that anybody wants to add?
  Mr. CHRISTENSEN. I appreciate the time that the gentleman from Ohio 
has given us tonight, and look forward to working with you on this 
legal reform and bringing common sense to the civil justice system.
  Mr. HOKE. I yield the balance of the time.

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