[Congressional Record Volume 141, Number 44 (Thursday, March 9, 1995)]
[Extensions of Remarks]
[Pages E563-E564]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          LIABILITY LAW REFORM

                                 ______


                         HON. BRIAN P. BILBRAY

                             of california

                    in the house of representatives

                        Thursday, March 9, 1995
  Mr. BILBRAY. Mr. Speaker, I submit the following article from the 
Washington Post because it encapsulates a unique perspective that I 
believe I bring to the debate we are having today on product liability 
reform.
                [From the Washington Post, Mar. 7, 1995]

 Getting Personal on Product Liability--Two Lawmakers' Opposing Views 
                Stem From Their Own Painful Experiences

                         (By Caroline E. Mayer)

       To Rep. Brian P. Bilbray (R-Calif.), product liability 
     legislation is ``a personal blood and guts issue''--a measure 
     needed to protect women and children who otherwise wouldn't 
     be able to get the drugs they need.
       ``It's actual flesh and blood that we're talking about,'' 
     said the freshman lawmaker, who saw his wife go into shock 
     during a pregnancy 10 years ago because a drug she needed to 
     help her deal with severe morning sickness had been pulled 
     off the market by its manufacturer for fear of product 
     liability suits.
       But to Rep. Patsy T. Mink (D-Hawaii), legislative efforts 
     to make it harder to sue for damages from defective products 
     is ``a great offense'' to women and children, especially DES 
     mothers--among them herself--who, by taking a drug thought to 
     prevent miscarriages, exposed her child to a greater risk of 
     cancer.
       ``Having had the personal experience, I want to make sure 
     the people who are voting for the bill will understand that 
     justice is being thwarted for millions of Americans,'' said 
     Mink, who collected a $250,000 settlement from a lawsuit over 
     the medication.
       It should be no surprise that these two lawmakers--on 
     different sides of the political aisle--have divergent views 
     about the product liability legislation before the House this 
     week. But it is the personal experience and intensity each 
     brings to
      the debate that makes their positions stand out in the 
     battle to overhaul the nation's tort laws.
       Mink's vociferous opposition stems from her use of DES, 
     diesthylstilbestrol, when she was pregnant 43 years ago. 
     ``Knowing the agonies that women in other kinds of product 
     liability lawsuits went through, I have a special 
     responsibility to speak out,'' she said.
       Approved by the Food and Drug Administration in 1947 to 
     prevent miscarriages, DES was discovered, decades later, to 
     cause significant damage to the babies born to mothers who 
     used DES. In some cases, DES children have severely deformed 
     sexual organs, cannot have children, have impaired immune 
     systems or a high risk of developing a rare from of cancer.
       Mink was given DES as part of an experiment testing the 
     drug's effectiveness, but did not know it until 25 years 
     later, when she received a ``blunt letter'' from the 
     university where she had been treated. The university asked 
     if she or her daughter had developed cancer.
       Mink sued the university and company that supplied the DES, 
     winning a $250,000 settlement. In addition, the university 
     promised to care for all DES daughters of mothers 
     [[Page E564]] it treated at no cost if the daughters 
     developed a certain type of cancer of the vagina or cervix at 
     any time before they are 70.
       ``Under the legislation under consideration, it is unlikely 
     that any DES mother or child would have been able to recover 
     any damages,'' Mink said.
       Bilbray has not been as eager to discuss his experience. 
     ``It's not something I prefer to talk about.'' he said after 
     a House Commerce Committee meeting last month. But that's 
     what Bilbray did when the committee drafted its version of 
     the product liability bill.
       ``Women and children are dying as a result of existing 
     laws,'' Bilbray told his colleagues at the drafting session. 
     ``Products that are needed are being pulled off the shelves 
     because of lawsuits.'' Some people may think lawsuits may 
     make all the pain better, he said. But, he added, ``please do 
     not think there's any amount of money that's ever going to 
     pay a parent back by never being able to hug their child.''
       ``Listening to all these members stand up and talk about 
     how consumer products have done all these terrible things, it 
     was like a knife cutting into me * * * Sometimes you just 
     have to stand up and scream,'' he said in an interview 
     afterward.


                     key facets of the legislation

       Product liability legislation to be considered by the House 
     would:
       Preempt state laws and set a national standard for product 
     liability lawsuits.
       Bar any lawsuit for damage incurred from products more than 
     15 years old unless they cause a chronic illness, such as 
     cancer caused by asbestos or DES.
       Limit punitive damages to the greater of $250,000 or three 
     times the economic damages.
       Require ``clear and convincing evidence'' that a 
     manufacturer either intended to cause harm or acted with 
     conscious, flagrant indifference for punitive damages.
       Bar damages if the person bringing the suit was intoxicated 
     or under the influence of drugs when the harm occurred and if 
     alcohol or drug use was the principal cause of the accident.
       Make retailers liable only if they engaged in intentional 
     wrongdoing, negligence or if the product failed to comply 
     with an express warranty made by the retailer. The retailer 
     also would be liable if the manufacturer went bankrupt or 
     could not be sued in the claimant's state.
       Sanction attorneys for filing frivolous pleadings in 
     product liability actions.
       Separate legislation would require the loser of any lawsuit 
     to pay the winner's legal costs if the loser rejected a 
     settlement before the jury verdict. Even if a jury found in 
     favor of the person bringing the suit, that person could 
     still be required to pay the other side's legal fees if the 
     jury award is less than a rejected settlement.
       Ten years ago, Bilbray's wife had to go into the intensive 
     care unit ``when she couldn't get access to the drug she 
     desperately need,'' he said.
       In three earlier pregnancies in a previous marriage, Karen 
     Bilbray had taken a drug called Bendectin to control severe 
     morning sickness. But in 1984, when she was pregnant with 
     Bilbray's child, Bendectin was no longer available.
       The manufacturer, Merrell Dow Pharmaceuticals Inc., had 
     removed the drug from the market after several women 
     successfully sued the company, alleging that the drug 
     produced birth deformities. Even though scientific data never 
     proved it was harmful, Merrell stopped selling the drug.
       ``My wife was not allowed to make a decision on what she 
     wanted to put into her body; it was made by a lawyer suing, 
     maybe well-intentioned but misguided and very critical to her 
     well-being,'' Bilbray said.
       Without Bendectin, Bilbray's wife became so sick she went 
     into shock, he said. ``If it wasn't for a doctor willing to 
     take the risk [and give her some Bendectin], I probably would 
     have lost her.'' A son, Brian, was born several months later, 
     to live only three months before he died of crib death. 
     Bilbray is convinced that the trauma of his wife's first 
     three months of pregnancy contributed to the child's death.
       ``People are going to suffer no matter what you do'' to 
     reform the civil justice system, Bilbray said. But Congress 
     ``needs to be more sensitive to the damage that these 
     lawsuits create by denying benefits'' to people who may need 
     them.
     

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