[Congressional Record Volume 141, Number 44 (Thursday, March 9, 1995)]
[House]
[Pages H2914-H2923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMON SENSE LEGAL STANDARDS REFORM ACT OF 1995
The SPEAKER pro tempore. Pursuant to House Resolution 109 and rule
XXIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the further consideration of the bill,
H.R. 956.
{time} 1225
in the committee of the whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the further consideration of
the bill (H.R. 956) to establish legal standards and procedures for
product liability litigation, and for other purposes, with Mr. Dreier
in the chair.
The Clerk read the title of the bill.
THe CHAIRMAN. When the Committee of the Whole rose on Wednesday,
March 8, 1995, all time for general debate pursuant to House Resolution
108 had expired.
Pursuant to House Resolution 109, no further general debate is in
order.
The amendment in the nature of a substitute consisting of the text of
H.R. 1075 is considered as an original bill for purposes of amendment
and is considered as having been read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 1075
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Common
Sense Product Liability and Legal Reform Act of 1995''.
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title and table of contents.
TITLE I--PRODUCT LIABILITY REFORM
Sec. 101. Findings and purposes.
Sec. 102. Applicability and preemption.
Sec. 103. Liability rules applicable to product sellers.
Sec. 104. Defense based on claimant's use of intoxicating alcohol or
drugs.
Sec. 105. Misuse or alteration.
Sec. 106. Frivolous pleadings.
Sec. 107. Several liability for noneconomic loss.
Sec. 108. Statute of repose.
Sec. 109. Service of process.
Sec. 110. Definitions.
TITLE II--PUNITIVE DAMAGES REFORM
Sec. 201. Punitive damages.
Sec. 202. Definitions.
TITLE III--BIOMATERIALS SUPPLIERS
Sec. 301. Liability of biomaterials suppliers.
Sec. 302. Procedures for dismissal of civil actions against
biomaterials suppliers.
[[Page H2915]] Sec. 303. Definitions.
TITLE IV--EFFECT ON OTHER LAW; EFFECTIVE DATE
Sec. 401. Effect on other law.
Sec. 402. Federal cause of action precluded.
Sec. 403. Effective date.
TITLE I--PRODUCT LIABILITY REFORM
SEC. 101. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) the manufacture and distribution of goods in interstate
commerce is to a large extent a national activity which
affects national interests in a variety of important ways;
(2) in recent years, the free flow of products in
interstate commerce has been increasingly burdened by product
liability law;
(3) as a result of this burden, consumers have been
adversely affected through the withdrawal of products and
producers from the national market, and from excessive
liability costs passed on to them through higher prices;
(4) the rules of product liability law in recent years have
evolved rapidly and inconsistently within and among the
several States, such that the body of product liability law
prevailing in this nation today is complex, contradictory,
and uncertain;
(5) the unpredictability of product liability awards and
doctrines are inequitable to both plaintiffs and defendants
and have added considerably to the high cost of liability
insurance, making it difficult for producers and insurers to
protect their liability with any degree of confidence;
(6) product liability actions and punitive damage awards
jeopardize the financial well-being of many industries and
are a particular threat to the viability of the nation's
small businesses;
(7) the extraordinary costs of the product liability system
undermine the ability of American industry to compete
internationally, and is costing the loss of jobs and
productive capital; and
(8) because of the national scope of the manufacture and
distribution of most products, it is not possible for the
individual states to enact laws that fully and effectively
respond to these problems.
(b) Purposes.--Based upon the powers contained in Article
I, clause 3 of the United States Constitution, the purposes
of this title are to promote the free flow of goods in
interstate commerce--
(1) by establishing certain uniform legal principles which
provide a fair balance between the interests of product
users, manufacturers, and product sellers,
(2) by placing reasonable limits on product liability law,
(3) by ensuring that product liability law operates to
compensate persons injured by the wrongdoing of others,
(4) by reducing the unacceptable transactions costs and
delays which harm both plaintiffs and defendants,
(5) by allocating responsibility for harm to those in the
best position to prevent such harm, and
(6) by establishing greater predictability in product
liability actions.
SEC. 102. APPLICABILITY AND PREEMPTION.
(a) Preemption.--This title governs any product liability
action brought in any State or Federal court, on
any theory for harm caused by a product. A civil action
brought for commercial loss shall be governed only by
applicable commercial or contract law.
(b) Relationship to State Law.--This title supersedes State
law only to the extent that State law applies to an issue
covered by this title. Any issue that is not governed by this
title shall be governed by otherwise applicable State or
Federal law.
SEC. 103. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS.
(a) General Rule.--Except as provided in subsection (b), in
any product liability action, a product seller other than a
manufacturer shall be liable to a claimant for harm only if
the claimant establishes that--
(1)(A) the product which allegedly caused the harm
complained of was sold by the product seller; (B) the product
seller failed to exercise reasonable care with respect to the
product; and (C) such failure to exercise reasonable care was
a proximate cause of the claimant's harm; or
(2)(A) the product seller made an express warranty
applicable to the product which allegedly caused the harm
complained of, independent of any express warranty made by a
manufacturer as to the same product; (B) the product failed
to conform to the warranty; and (C) the failure of the
product to conform to the warranty caused the claimant's
harm; or
(3) the product seller engaged in intentional wrongdoing as
determined under applicable State law and such intentional
wrongdoing was a proximate cause of the harm complained of by
the claimant.
For purposes of paragraph (1)(B), a product seller shall not
be considered to have failed to exercise reasonable care with
respect to the product based upon an alleged failure to
inspect a product where there was no reasonable opportunity
to inspect the product in a manner which would, in the
exercise of reasonable care, have revealed the aspect of the
product which allegedly caused the claimant's harm.
(b) Exception.--In a product liability action, a product
seller shall be liable for harm to the claimant caused by
such product as if the product seller were the manufacturer
of such product if--
(1) the manufacturer is not subject to service of process
under the laws of any State in which the action might have
been brought; or
(2) the court determines that the claimant would be unable
to enforce a judgment against the manufacturer.
SEC. 104. DEFENSE BASED ON CLAIMANT'S USE OF INTOXICATING
ALCOHOL OR DRUGS.
(a) General Rule.--In any product liability action, it
shall be a complete defense to such action if--
(1) the claimant was intoxicated or was under the influence
of intoxicating alcohol or any drug when the accident or
other event which resulted in such claimant's harm occurred;
and
(2) the claimant, as a result of the influence of the
alcohol or drug, was more than 50 percent responsible for
such accident or other event.
(b) Construction.--For purposes of subsection (a)--
(1) the determination of whether a person was intoxicated
or was under the influence of intoxicating alcohol or any
drug shall be made pursuant to applicable State law; and
(2) the term ``drug'' means any controlled substance as
defined in the Controlled Substances Act (21 U.S.C. 802(6))
that has been taken by the claimant other than in accordance
with the terms of a lawfully issued prescription.
SEC. 105. MISUSE OR ALTERATION.
(a) General Rule.--Except as provided in subsection (c), in
a product liability action, the damages for which a defendant
is otherwise liable under State law shall be reduced by the
percentage of responsibility for the claimant's harm
attributable to misuse or alteration of a product by any
person if the defendant establishes by a preponderance of the
evidence that such percentage of the claimant's harm was
proximately caused by--
(1) a use or alteration of a product in violation of, or
contrary to, the defendant's express warnings or instructions
if the warnings or instructions are adequate as determined
pursuant to applicable State law, or
(2) a use or alteration of a product involving a risk of
harm which was known or should have been known by the
ordinary person who uses or consumes the product with the
knowledge common to the class of persons who used or would be
reasonably anticipated to use the product.
(b) Workplace Injury.--Notwithstanding subsection (a), the
damage for which a defendant is otherwise liable under State
law shall not be reduced by the percentage of responsibility
for the claimant's harm attributable to misuse or alteration
of the product by the claimant's employer or any co-employee
who is immune from suit by the claimant pursuant to the State
law applicable to workplace injuries.
SEC. 106. FRIVOLOUS PLEADINGS.
(a) General Rule.--
(1) Signing of pleading.--The signing or verification of a
pleading in a product liability action in a State court
subject to this title constitutes a certificate that to the
signatory's or verifier's best knowledge, information, and
belief, formed after reasonable inquiry, the pleading is not
frivolous as determined under paragraph (2).
(2) Definitions.--
(A) For purposes of this section, a pleading is frivolous
if the pleading is--
(i) groundless and brought in bad faith;
(ii) groundless and brought for the purpose of harassment;
or
(iii) groundless and interposed for any improper purpose,
such as to cause unnecessary delay or needless increase in
the cost of litigation.
(B) For purposes of subparagraph (A), the term
``groundless'' means--
(i) no basis in fact; or
(ii) not warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law.
(b) Determination That Pleading Frivolous.--
(1) Motion for determination.--Not later than 60 days after
the date a pleading in a product liability action in a State
court is filed, a party to the action may make a motion that
the court determine if the pleading is frivolous.
(2) Court action.--The court in a product liability action
in a State court shall on the motion of a party or on its own
motion determine if a pleading is frivolous.
(c) Considerations.--In making its determination of whether
a pleading is frivolous, the court shall take into account--
(1) the multiplicity of parties;
(2) the complexity of the claims and defenses;
(3) the length of time available to the party to
investigate and conduct discovery; and
(4) affidavits, depositions, and any other relevant matter.
(d) Sanction.--If the court determines that a pleading is
frivolous, the court shall impose an appropriate sanction on
the signatory or verifier of the pleading. The sanction may
include one or more of the following:
(1) the striking of a pleading or the offending portion
thereof;
(2) the dismissal of a party; or
(3) an order to pay to a party who stands in opposition to
the offending pleading the amounts of the reasonable expenses
incurred because of the filing of the pleading, including
costs, reasonable attorney's fees, witness fees, fees of
experts, and deposition expenses.
[[Page H2916]] (e) Construction.--For purposes of this
section--
(1) a general denial does not constitute a frivolous
pleading; and
(2) the amount requested for damages does not constitute a
frivolous pleading.
SEC. 107. SEVERAL LIABILITY FOR NONECONOMIC LOSS.
In any product liability action, the liability of each
defendant for noneconomic loss shall be several only and
shall not be joint. Each defendant shall be liable only for
the amount of noneconomic loss attributable to such defendant
in direct proportion to such defendant's proportionate share
of fault or responsibility for the claimant's harm, as
determined by the trier of fact.
SEC. 108. STATUTE OF REPOSE.
(a) General Rule.--A product liability action shall be
barred unless the complaint is served and filed within 15
years of the date of delivery of the product to its first
purchaser or lessee, who was not engaged in the business of
selling or leasing the product or of using the product as a
component in the manufacture of another product. This
subsection shall apply only if the court determines that the
claimant has received or would be eligible to receive full
compensation from any source for medical expense losses.
(b) Exception.--Subsection (a)--
(1) does not bar a product liability action against a
defendant who made an express warranty in writing as to the
safety of the specific product involved which was longer than
15 years, but it will apply at the expiration of such
warranty,
(2) does not apply to a physical illness the evidence of
which does not ordinarily appear less than 15 years after the
first exposure to the product, and
(3) does not affect the limitations period established by
the General Aviation Revitalization Act of 1994.
SEC. 109. SERVICE OF PROCESS.
This title shall not apply to a product liability action
unless the manufacturer of the product or component part has
appointed an agent in the United States for service of
process from anywhere in the United States.
SEC. 110. DEFINITIONS.
As used in this title:
(1) The term ``claimant'' means any person who brings a
product liability action and any person on whose behalf such
an action is brought. If such an action is brought through or
on behalf of an estate, the term includes the claimant's
decedent. If such action is brought through or on behalf of a
minor or incompetent, the term includes the claimant's legal
guardian.
(2) The term ``commercial loss'' means any loss of or
damage to a product itself incurred in the course of the
ongoing business enterprise consisting of providing goods or
services for compensation.
(3) The term ``economic loss'' means any pecuniary loss
resulting from harm (including the loss of earnings, medical
expense loss, replacement services loss, loss due to death,
and burial costs) to the extent recovery for such loss is
allowed under applicable State law.
(4) The term ``harm'' means any physical injury, illness,
disease, or death or damage to property caused by a product.
The term does not include commercial loss or loss or damage
to a product itself.
(5) The term ``manufacturer'' means--
(A) any person who is engaged in a business to produce,
create, make, or construct any product (or component part of
a product) and who (i) designs or formulates the product (or
component part of the product), (ii) has engaged another
person to design or formulate the product (or component part
of the product), or (iii) uses the design or formulation of
the product developed by another person;
(B) a product seller of the product who, before placing the
product in the stream of commerce--
(i) designs or formulates or has engaged another person to
design or formulate an aspect of the product after the
product was initially made by another, or
(ii) produces, creates, makes, or constructs such aspect of
the product, or
(C) any product seller not described in subparagraph (B)
which holds itself out as a manufacturer to the user of the
product.
(6) The term ``noneconomic loss'' means subjective,
nonmonetary loss resulting from harm, including pain,
suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of
consortium, injury to reputation, and humiliation.
(7) The term ``person'' means any individual, corporation,
company, association, firm, partnership, society, joint stock
company, or any other entity (including any governmental
entity).
(8)(A) The term ``product'' means any object, substance,
mixture, or raw material in a gaseous, liquid, or solid state
which--
(i) is capable of delivery itself or as an assembled whole,
in a mixed or combined state, or as a component part or
ingredient;
(ii) is produced for introduction into trade or commerce;
(iii) has intrinsic economic value; and
(iv) is intended for sale or lease to persons for
commercial or personal use.
(B) The term does not include--
(i) human tissue, human organs, human blood, and human
blood products; or
(ii) electricity, water delivered by a utility, natural
gas, or steam.
(9) The term ``product liability action'' means a civil
action brought on any theory for harm caused by a product or
product use.
(10) The term ``product seller'' means a person who, in the
course of a business conducted for that purpose, sells,
distributes, rents, leases, prepares, blends, packages,
labels a product, is otherwise involved in placing a product
in the stream of commerce, or installs, repairs, or maintains
the harm-causing aspect of a product. The term does not
include--
(A) a seller or lessor of real property;
(B) a provider of professional services in any case in
which the sale or use of a product is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(C) any person who--
(i) acts in only a financial capacity with respect to the
sale of a product; or
(ii) leases a product under a lease arrangement in which
the selection, possession, maintenance, and operation of the
product are controlled by a person other than the lessor.
(11) The term ``State'' means any State of the United
States, the District of Columbia, Commonwealth of Puerto
Rico, the Northern Mariana Islands, the Virgin Islands, Guam,
American Samoa, and any other territory or possession of the
United States, or any political subdivision of any of the
foregoing.
TITLE II--PUNITIVE DAMAGES REFORM
SEC. 201. PUNITIVE DAMAGES.
(a) General Rule.--Punitive damages may, to the extent
permitted by applicable State law, be awarded in any civil
action for harm in any Federal or State court against a
defendant if the claimant establishes by clear and convincing
evidence that the harm suffered was result of conduct--
(1) specifically intended to cause harm, or
(2) conduct manifesting a conscious, flagrant indifference
to the safety of others.
(b) Proportional Awards.--The amount of punitive damages
that may be awarded in any civil action subject to this title
shall not exceed 3 times the amount of damages awarded to the
claimant for the economic loss on which the claimant's action
is based, or $250,000, whichever is greater.
(c) Applicability and Preemption.--Except as provided in
section 401, this title shall apply to any civil action
brought in any Federal or State court on any theory where
punitive damages are sought. This title does not create a
cause of action for punitive damages in any jurisdiction that
does not authorize such actions.
(d) Bifurcation.--At the request of any party, the trier of
fact shall consider in a separate proceeding whether punitive
damages are to be awarded and the amount of such award. If a
separate proceeding is requested, evidence relevant only to
the claim of punitive damages, as determined by applicable
State law, shall be inadmissible in any proceeding to
determine whether compensatory damages are to be awarded.
(e) Consideration.--In determining the amount of punitive
damages, the trier of fact shall consider all relevant,
admissible evidence, including--
(1) the severity of the harm caused by the conduct of the
defendant,
(2) the duration of the conduct or any concealment of it by
the defendant,
(3) the profitability of the specific conduct that caused
the harm to the defendant,
(4) the number of products sold, the frequency of services
provided, or the type of activities conducted by the
defendant of the kind causing the harm complained of by the
claimant,
(5) awards of punitive damages to persons similarly
situated to the claimant,
(6) possibility of prospective awards of compensatory
damages to persons similarly situated to the claimant,
(7) any criminal penalties imposed on the defendant as a
result of the conduct complained of by the claimant,
(8) the amount of any civil and administrative fines and
penalties assessed against the defendant as a result of the
conduct complained of by the claimant, and
(9) whether the foregoing considerations have been a factor
in any prior proceeding involving the defendant.
SEC. 202. DEFINITIONS.
As used in this title:
(1) The term ``claimant'' means any person who brings a
civil action and any person on whose behalf such an action is
brought. If such action is brought through or on behalf of an
estate, the term includes the claimant's decedent. If such
action is brought through or on behalf of a minor or
incompetent, the term includes the claimant's legal guardian.
(2) The term ``clear and convincing evidence'' is that
measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established. The level of
proof required to satisfy such standard is more than that
required under preponderance of the evidence, but less than
that required for proof beyond a reasonable doubt.
(3) The term ``economic loss'' means any pecuniary loss
resulting from harm (including the loss of earnings, medical
expense loss, replacement services loss, loss due to death,
and burial costs), to the extent recovery for such loss is
allowed under applicable State law.
(4) The term ``harm'' means any legally cognizable wrong or
injury for which punitive damages may be imposed.
[[Page H2917]] (5) The term ``punitive damages'' means
damages awarded against any person or entity to punish or
deter such person or entity, or others, from engaging in
similar behavior in the future.
(6) The term ``State'' means any State of the United
States, the District of Columbia, Commonwealth of Puerto
Rico, the Northern Mariana Islands, the Virgin Islands, Guam,
American Samoa, and any other territory or possession of the
United States, or any political subdivision of any of the
foregoing.
TITLE III--BIOMATERIALS SUPPLIERS
SEC. 301. LIABILITY OF BIOMATERIALS SUPPLIERS.
A biomaterials supplier may, to the extent required and
permitted by any other applicable law, be liable for harm to
a claimant caused by a medical device, only if the claimant
in a product liability action shows that the conduct of the
biomaterials supplier was an actual and proximate cause of
the harm to the claimant and--
(1) the raw materials or component parts delivered by the
biomaterials supplier either--
(A) did not constitute the product described in the
contract between the biomaterials supplier and the person who
contracted for delivery of the product; or
(B) failed to meet any specifications that were--
(i) provided to the biomaterials supplier and not expressly
repudiated by the biomaterials supplier prior to acceptance
of delivery of the raw materials or component parts:
(ii)(I) provided to the biomaterials supplier;
(II) provided to the manufacturer by the biomaterials
supplier; or
(III) contained in a master file that was submitted by the
biomaterials supplier to the Secretary of Health and Human
Services and that is currently maintained by the biomaterials
supplier of purposes of premarket approval of medical
devices; or
(iii)(I) included in the submissions for the purposes of
premarket approval or review by the Secretary of Health and
Human Services under section 510, 513, 515, or 520 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360, 360c,
360e, or 360j); and
(II) have received clearance from the Secretary of Health
and Human Services, if such specifications were provided by
the manufacturer to the biomaterials supplier and were not
expressly repudiated by the biomaterials supplier prior to
the acceptance by the raw materials or component parts;
(2) the biomaterials supplier intentionally and wrongfully
withheld or misrepresented information that is material and
relevant to the harm suffered by the claimant; or
(3) the biomaterials supplier had actual knowledge of
prospective fraudulent or malicious activities in the use of
its supplies where such activities are relevant to the harm
suffered by the claimant.
SEC. 302. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST
BIOMATERIALS SUPPLIERS.
(a) Motion To Dismiss.--
(1) General rule.--Any biomaterials supplier who is a
defendant in any product liability action involving a medical
device which allegedly caused the harm for which the action
is brought and who did not take part in the design,
manufacture, or sale of such medical device may, at any time
during which a motion to dismiss may be filed under an
applicable law, move to dismiss the action on the grounds
that--
(A) the claimant has failed to establish that the supplier
furnished raw materials or component parts in violation of
applicable contractual requirements or specifications agreed
to by the biomaterials supplier; or
(B) the claimant has failed to comply with the requirements
of subsection (b).
(2) Exception.--The biomaterials supplier may not move to
dismiss the action if--
(A) the biomaterials supplier intentionally and wrongfully
withheld or misrepresented information that is material and
relevant to the harm suffered by the claimant; or
(B) the biomaterials supplier had actual knowledge of
prospective fraudulent or malicious activities in the use of
its supplies where such activities are relevant to the harm
suffered by the claimant.
(b) Manufacturer of Medical Device Shall Be Named a
Party.--The claimant shall be required to name the
manufacturer of the medical device to which the biomaterials
supplier furnished raw materials or component parts as a
party to the product liability action, unless--
(1) the manufacturer is subject to service of process
solely in a jurisdiction in which the biomaterials supplier
is not domiciled or subject to a service of process; or
(2) an action against the manufacturer is barred by
applicable law.
(c) Proceedings on Motion to Dismiss.--The following rules
shall apply to any proceeding on a motion to dismiss filed
under this section:
(1) Affidavits relating to status of defendant.--
(A) Defendant affidavit.--The defendant in the action may
support a motion to dismiss by filing an affidavit
demonstrating that defendant is a biomaterials supplier and
that it is neither the manufacturer nor the product seller of
the medical device which caused the harm alleged by the
claimant.
(B) Response to motion to dismiss.--In response to a motion
to dismiss described in this section, the claimant may submit
an affidavit demonstrating why it asserts that--
(i) the defendant who filed the motion to dismiss is not a
biomaterials supplier with respect to the medical device
which caused the harm alleged by the claimant;
(ii) on what basis it asserts that the supplier furnished
raw materials or component parts in violation of applicable
contractual requirements or specifications agreed to by the
biomaterials supplier;
(iii) the biomaterials supplier intentionally and
wrongfully withheld or misrepresented information that is
material and relevant to the harm suffered by the claimant;
or
(iv) the biomaterials supplier had actual knowledge of
prospective fraudulent or malicious activities in the use of
its supplies where such activities are relevant to the harm
suffered by the claimant.
(2) Effect of motion to dismiss on discovery.--If a
defendant files a motion to dismiss, no discovery shall be
permitted in connection with the action that is the subject
of the motion, unless the affidavits submitted in accordance
with this section raise material issues of fact concerning
whether--
(A) the supplier furnished raw materials or component parts
in violation of applicable contractual requirements or
specifications agreed to by the biomaterials supplier;
(B) the biomaterials supplier intentionally and wrongfully
withheld or misrepresented information that is material and
relevant to the harm suffered by the claimant; or
(C) the biomaterials supplier had actual knowledge of
prospective fraudulent or malicious activities in the use of
its supplies where such activities are relevant to the harm
suffered by the claimant.
Any such discovery shall be limited solely to such material
facts.
(3) Response to motion to dismiss.--The court shall rule on
the motion to dismiss solely on the basis of the affidavits
filed under this section and on the basis of any evidence
developed in the course of discovery under paragraph (2) and
subsequently submitted to the court in accordance with
applicable rules of evidence.
(d) Attorney Fees.--The court shall require the claimant to
compensate the biomaterials supplier for attorney fees and
costs, if--
(1) the claimant named or joined the biomaterials supplier;
and
(2) the court found the claim against the biomaterials
supplier to be without merit and frivolous.
SEC. 303. DEFINITIONS.
For purposes of this title:
(1) The term ``biomaterials supplier'' means an entity that
directly or indirectly supplies, or licenses another person
to supply, a component part or raw material for use in the
manufacture of a medical device--
(A) that is intended by the manufacturer of the device--
(i) to be placed into a surgically or naturally formed or
existing cavity of the body for a period of at least 30 days;
or
(ii) to remain in contact with bodily fluids of internal
human tissue through a surgically produced opening for a
period of less than 30 days; and
(B) suture materials used in implant procedures.
(2) Notwithstanding paragraph (1), the term ``biomaterials
supplier'' excludes any person, with respect to a medical
device which is the subject of a product liability action--
(A) who is engaged in the manufacture, preparation,
propagation, compounding, or processing (as defined in
section 510(a)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(a)(1)) of the medical device, and has
registered with the Secretary of Health and Human Services
pursuant to section 510 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360) and the regulations issued under
such section, and has included the medical device on a list
of devices filed with the Secretary of Health and Human
Services pursuant to section 510(j) of such Act (21 U.S.C.
360(j)) and the regulations issued under such section; or
(B) who, in the course of a business conducted for that
purpose, has sold, distributed, leased, packaged, labeled, or
otherwise placed the implant in the stream of commerce after
it was manufactured.
(3) The term ``harm'' means any physical injury, illness,
disease, or death or damage to property caused by a product.
The term does not include commercial loss or loss or damage
to a product itself.
(4) The term ``product liability action'' means a civil
action brought on any theory for harm caused by a product or
product use.
TITLE IV--EFFECT ON OTHER LAW; EFFECTIVE DATE
SEC. 401. EFFECT ON OTHER LAW.
Nothing in title I, II, or III shall be construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any law;
(2) supersede any Federal law;
(3) waive or affect any defense of sovereign immunity
asserted by the United States;
(4) affect the applicability of any provision of chapter 97
of title 28, United States Code;
(5) preempt State choice-of-law rules with respect to
claims brought by a foreign nation or a citizen of a foreign
nation; or
(6) affect the right of any court to transfer venue or to
apply the law of a foreign nation or to dismiss a claim of a
foreign nation or of a citizen of a foreign nation on the
ground of inconvenient forum.
[[Page H2918]] SEC. 402. FEDERAL CAUSE OF ACTION PRECLUDED.
The district courts of the United States shall not have
jurisdiction pursuant to this Act based on section 1331 or
1337 of title 28, United States Code.
SEC. 403. EFFECTIVE DATE.
Titles I, II, and III shall apply with respect to actions
which are commenced after the date of the enactment of this
Act.
The CHAIRMAN. No amendment to the amendment in the nature of a
substitute shall be in order except the amendments printed in House
Report 104-72 or in section 2 of House Resolution 109, as amended. Each
amendment may be offered only in the order printed in the report, may
be offered only by a Member designated in the report, shall be
considered as read, shall not be subject to amendment, and shall not be
subject to a demand for division of the question.
Debate time on each amendment will be equally divided and controlled
by the proponent and an opponent of the amendment.
It is now in order to consider amendment number 1 printed in section
2 of House Resolution 109, as amended.
AMENDMENT OFFERED BY MR. PETE GEREN OF TEXAS
Mr. PETE GEREN of Texas. Mr. Chairman, I offer an amendment made in
order under the rule.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment offered by Mr. Pete Geren of Texas: Page 7,
insert after line 3 the following:
(c) Notwithstanding any other provision of law, any person
engaged in the business of renting or leasing a product shall
be subject to liability under subsection (a) but shall not
liable to a claimant for the tortious act of another
involving a product solely by reason of ownership of such
product.
The CHAIRMAN. Pursuant to the rule, the gentleman from Texas, Mr.
Pete Geren and a Member opposed will each be recognized for 5 minutes.
The Chair recognizes the gentleman from Texas, Mr. Pete Geren.
Mr. PETE GEREN of Texas. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, this amendment is in fact a clarifying amendment to
title I of H.R. 1075. Our amendment would clarify that companies that
rent or lease products are covered by the provisions of title I.
Currently under title I it is clear that product liability actions
against companies that sell products are subject to section 103.
Section 103 provides that a product liability action cannot be pursued
against a product seller unless the seller has been negligent, has
offered an express warranted offer, or has engaged in intentional
wrongdoing. Simply stated, there should be no liability without fault.
That is the intention of this clarifying amendment.
Mr. HYDE. Mr. Chairman, will the gentleman yield?
Mr. PETE GEREN of Texas. I yield to the gentleman from Illinois.
Mr. HYDE. Mr. Chairman, this amendment amplifies and is consistent
with an amendment offered in the committee by the gentleman from
Illinois [Mr. Flanagan]. We find it perfectly acceptable, and I am
pleased to accept the amendment.
Mr. PETE GEREN of Texas. Reclaiming my time, Mr. Chairman, I yield
such time as he may consume to the gentleman from Texas [Mr. Bryant].
(Mr. BRYANT of Texas asked and was given permission to revise and
extend his remarks.)
Mr. BRYANT of Texas. Mr. Chairman, I thank the gentleman for yielding
me the time, and I rise in support of the amendment.
Mr. PETE GEREN of Texas. Mr. Chairman, I yield 1 minute to the
gentleman from Minnesota [Mr. Ramstad].
Mr. RAMSTAD. I thank the gentleman for yielding me the time.
Mr. Chairman, I too rise in strong support of this amendment.
Vicarious liability is plain and simple: liability without fault. Every
month car dealers, rental companies and leasing firms are held liable
under these vicarious liability laws for harm to third parties that
they in no way could prevent. There is no negligence whatsoever, and I
believe that this clarifying amendment is essential because of the cost
to American consumers literally equaling tens of millions of dollars in
higher prices for car rental leases and also we are paying a price in
terms of competition in these industries.
This bill has the support of the auto manufacturers, the new and used
car dealers and the car rental industry. If there is any opposition, it
comes from those who have used the vicarious liability laws to coerce
companies into unfair and inequitable settlements.
This reform is long overdue. I commend the gentleman from Texas for
bringing this amendment to the floor. I urge my colleagues to support
it.
The CHAIRMAN. The Chair would inquire if there is any Member who
wishes to speak in opposition to the amendment.
Mrs. SCHROEDER. Mr. Chairman, I rise in opposition.
The CHAIRMAN. The gentlewoman from Colorado [Mrs. Schroeder] is
recognized for 5 minutes.
Mrs. SCHROEDER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I do not rise in strong opposition to this but I must
say I rise with great concern because there were so many amendments
that were really very, very substantive and they were not allowed, and
here we are with the first amendment, one that was basically adopted by
the committee. I do not think there is a tremendous amount of dissent
about it, and I think it just shows what a lot of us have been trying
to say during the rules debate.
{time} 1230
Really critical issues about which there is a lot of debate and a lot
of concern have been moved aside, and they made room instead for
amendments like this which were really more like a love-in. Basically,
this amendment too goes to the issue a little bit more of tort. I think
it is a little bit more of concern to some that it is kind of squeezed
into the product liability, and I have some question as to how it may
have moved into the torts area, and it is not quite clear. But
nevertheless, my position at this point, and the committee's position
on this side of the aisle would be that it is a shame we could not have
substituted some of the amendments that there was much more dissent
about than spending precious time on the floor on this.
Mr. Chairman, I reserve the balance of my time.
Mr. PETE GEREN of Texas. Mr. Chairman, I yield 30 seconds to the
gentleman from Florida [Mr. Deutsch].
Mr. DEUTSCH. Mr. Chairman, I rise in support of this amendment. This
amendment clarifies what the committee tried to do in terms of making
sure that a renter of a product is not automatically liable in that
situation, and I urge the adoption of the amendment.
Mr. PETE GEREN of Texas. Mr. Chairman, I yield 30 seconds to the
gentleman from Illinois [Mr. Flanagan].
(Mr. FLANAGAN asked and was given permission to revise and extend his
remarks.)
Mr. FLANAGAN. Mr. Chairman, I also rise in support of this amendment.
During the Committee on the Judiciary markup of the product liability
bill I offered an amendment which was adopted by voice vote to assure
that companies who rent products were covered under the definition of
product seller. This amendment is a further improvement on the
Judiciary Committee bill, and it expressly states that a company that
rents and leases products is to be treated as a product seller under
title I of the bill. It makes clear that those companies will not be
held liable for injuries they do not cause.
This amendment deserves the support of every Member of the body, and
I urge my colleagues to support it overwhelmingly.
Mr. Chairman, among the problems H.R. 1075 is designed to address is
the tort doctrine of vicarious liability for motor vehicles. The
amendment, which I have coauthored with Messrs. Geren, Ramstad, and
Cox, is a mere clarification of the bill's scope. It would assure that
vicarious liability--or liability without fault--is covered under the
product liability legislation before us today.
Mr. Chairman, 11 States and the District of Columbia currently have
these vicarious liability laws on the books--laws which hold the owners
of motor vehicles liable for damages caused by their vehicles even
though the owners were not negligent and there is no defect in their
automobiles.
[[Page H2919]] Many businesses, such as car rental companies,
automobile dealers, and leasing companies are being held strictly
liable in these vicarious liability States for injuries they did not
cause and could not prevent. These companies have not been negligent,
and yet they are being forced to pay for the negligence of others.
For example, in my neighboring State of Iowa, a renter of an
automobile fell asleep at the wheel. The vehicle he was driving left
the road and struck a parked truck. Unfortunately, the renter's wife
and child were killed in the accident. Although there was no negligence
on behalf of the car rental company, the court still imposed a $800,000
judgement on the rental company. Mr. Chairman, is this fair?
To cite one more example, this time in New York, where a renter,
allegedly using the vehicle for drug trafficking, struck a pedestrian
on a downtown Manhattan street. The pedestrian received severe head
injuries from the accident. The settlement by the car rental company
was set at $1.226 million. Again, the car rental company had to pay-out
$1,226,000 although it was not negligent. Surely, in this instance, the
car rental company should not have been held at fault.
The Geren-Ramstad-Cox-Flanagan amendment will provide relief in these
circumstances and would assure that companies that rent or lease
products are not held liable for damages caused by rented or leased
products if the company could not have prevented the harm.
This provision would not exempt these companies from liability if the
company is negligent and would not exempt these companies from State
financial responsibility laws for vehicle owners in each State.
In addition, this amendment would not, as has been alleged, cover all
automobile accidents. Such a statement ignores the plain wording of the
amendment. The amendment would cover only civil actions involving
product sellers, not civil actions against all drivers of motor
vehicles. Again, this amendment only covers product sellers as defined
in section 110 of the bill.
Mr. Chairman, I believe it is appropriate to include the Geren-
Ramstad-Cox-Flanagan provision in H.R. 1075 because vicarious liability
impacts the car rental industry in the same fashion that product
liability impacts other product sellers.
Vicarious liability claims cost car rental companies over $75 million
annually--costs which drive up rental and leasing rates for all
Americans.
In addition, vicarious liability has driven smaller companies out of
business or forced them to refrain from doing business in States with
vicarious liability laws. This leads to decreased competition,
increased rates, and limited choice for consumers.
In sum, Mr. Chairman, section 103 of H.R. 1075 states that a product
seller shall not be held liable without fault. This amendment simply
extends this principle to companies that rent or lease products.
Therefore, Mr. Chairman, I urge my colleagues to support the
amendment.
Mrs. SCHROEDER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I continue my protest that we had amendments that were
very, very critical that were shut out. One of the ones that I had
wanted to offer that had everybody from the Right to Life Committee to
NARAL joining in consensus on was a very critical one.
It dealt with people's reproductive organs, and the fact that it
should be removed from this bill because people feel very, very
strongly, and especially women who have had incident after incident
after incident of people manufacturing things that did affect their
reproductive organs. We really felt we wanted to make it very clear we
thought that that should not be covered by this bill. That was not
allowed.
I find that pretty amazing when we have this consensus from right to
left, and it is rather historic, I do not think we have had that kind
of consensus in this body for a very long time, that that amendment was
not allowed, and yet we have this as an amendment that was adopted by
voice vote, as the gentleman from Illinois said, in the committee, and
here we are just continuing to perfect it a little bit and taking up
time.
There are many other amendments similar to mine in the 82 that were
there, and of course many fell off the table. And then of course many
of the ones that we had, such as the one I will have next, has been
limited to 20 minutes. We got hardly any time to discuss very serious
legal principles that have been established in this country since the
beginning of the Republic that we are now changing today, and it seems
to me that we should have taken the precious time that we have and
allocated it to many more of the serious issues about which there is
real contention than this, which is really more of a cosmetic,
housekeeping amendment about which there really has not been a lot of
disagreement.
Mr. Chairman, I reserve the balance of my time.
Mr. PETE GEREN of Texas. Mr. Chairman, I yield myself such time as I
may consume, and I yield to the gentleman from Louisiana [Mr. Tauzin]
for the purposes of a colloquy.
The CHAIRMAN. The gentleman from Texas, Mr. Pete Geren, has 1\1/2\
minutes remaining.
Mr. TAUZIN. Mr. Chairman, will the gentleman yield?
Mr. PETE GEREN of Texas. I yield to the gentleman from Louisiana.
Mr. TAUZIN. Mr. Chairman, I thank the gentleman for yielding. It is
my understanding that this amendment is intended only to preempt the
State laws in a small minority of jurisdictions that impose unlimited
financial liability on owners of motor vehicles for harm caused by the
permissive users of their vehicles, and that nothing in this amendment
should be construed to excuse any motor vehicle owner from meeting the
minimum financial responsibility laws required by each State.
Mr. PETE GEREN of Texas. The gentleman's understanding of this
amendment is correct, and that is an accurate characterization of it. I
appreciate the gentleman helping us to clarify the intent of this
amendment.
Mr. TAUZIN. I thank the gentleman, and I urge support for the
amendment.
Mr. PETE GEREN of Texas. Mr. Chairman, borrowing from the wisdom I
picked up from the gentleman from Louisiana over my years here, and
drawing on the comments of the gentlewoman from Colorado, when the
package is sold, you wrap it up.
Mr. Chairman, I yield back the balance of my time.
Mrs. SCHROEDER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, obviously I have a lot to say on my next amendment, and
whatever time I have left, if I could just use it for that I would be
very, very appreciative.
In my next amendment I am going to be talking about noneconomic
damages, and it is called the family values amendment. I think even the
gentleman from Texas would join me in saying that this body should
stand up for this next family values amendment that hopefully will be
coming up almost immediately after a voice vote on this, because it is
a very serious amendment. We are talking about we cannot talk family
values and say they do not amount to anything, and unless we pass this
amendment that is exactly what we will be saying. So I apologize to the
gentleman from Texas for using our 5 minutes to talk about some of the
problems we have in trying to deal with this because of the rule, but I
felt that that was really the only fair thing to do since we were not
allowed to offer many of the amendments that really, really were coming
up. So what I will be able to do then, hopefully, is find a way to get
people's attention as to how patched together this is, how uncertain
many of us are, and the concerns we have.
The CHAIRMAN. The time of the gentlewoman from Colorado [Mrs.
Schroeder] has expired. All time has expired.
The question is on the amendment offered by the gentleman from Texas,
Mr. Pete Geren.
The amendment was agreed to.
The CHAIRMAN. It is now in order to consider amendment No. 2 printed
in section 2 of House Resolution 109.
AMENDMENT OFFERED BY MRS. SCHROEDER
Mrs. SCHROEDER. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment offered by Mrs. Schroeder: Page 11, strike lines
17 through 24, and redesignate succeeding sections
accordingly.
Page 17, line 25, insert ``and noneconomic'' before
``loss''.
The CHAIRMAN. Pursuant to the rule, the gentlewoman from Colorado
[Mrs. Schroeder] and a Member opposed will each be recognized for 10
minutes.
[[Page H2920]] The Chair recognizes the gentlewoman from Colorado
[Mrs. Schroeder].
Mrs. SCHROEDER. Mr. Chairman, I yield myself 2 minutes.
Mr. Chairman, this amendment I have called the family values
amendment, and I think it is very critical. I was very pleased when I
offered it in the committee that it had a very large vote, and we had
votes from both sides of the aisle.
Americans value this families. We talk family values. Here is a
chance to put our money where our mouths are, because under this bill
noneconomic damages are discriminated against very, very much, and I do
not think that is fair.
Noneconomic damages mean if you do not get a paycheck, you do not
count. So the fact that you were staying home and taking care of your
family, no matter which parent you are, that does not matter. That is
noneconomic damages. You do not count.
Let me tell my colleagues, every parent is a working parent, whether
they are working in the house or out of the house, so I think that is
ridiculous.
Second, if you are a child obviously you are not getting a paycheck,
so that does not count.
Third, if a woman is working outside the home, they are still,
unfortunately, very apt to be discriminated against, so any paycheck
they would get still reflects the discrimination we have in society.
Finally, one of the areas I feel strongest about is the whole area of
people's reproductive organs, because we have seen so many problems in
this area in the past, with the Dalcon shield and all sorts of other
issues that people are more and more familiar with. If we do not deal
with this noneconomic damage issue in this bill, then we are really
saying those do not matter. And we will not have joint and several
liability on those issues, which means even if you get some kind of a
judgment, it is very apt that you will not be able to collect it, you
cannot collect it nearly as easy as you can with economic damages.
And this bill discriminates on punitive damages by not allowing
noneconomic damages to count. So we are really saying you are only
valued for your paycheck. There is no other value to you, and any other
value that you have, whether it is about your reproductive organs or
not, it does not count.
The CHAIRMAN. Does any Member seek recognition in opposition to the
amendment?
Mr. HYDE. Mr. Chairman, indeed there is. I rise in opposition to the
amendment.
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] is recognized
for 10 minutes.
Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the amendment offered by the gentlewoman from Colorado
eliminates the protection against disproportionate liability for
subjective, nonmonetary losses and weakens the protection of the
punitive damages cap. For these reasons I urge the defeat of the
pending amendment. It was offered in committee and was defeated in
committee.
Section 107, in the interests of fairness, protects a defendant from
being held liable for noneconomic losses that are attributable to the
fault or responsibility of another individual or entity. The concept of
a defendant paying for its own proportionate share of fault or
responsibility sounds self-evident to most people. Many States,
however, give expression in their law to the principle of joint and
several liability, which in its unrestricted form means that a party
with relatively nominal responsibility, perhaps 1 percent, can be held
liable for the fault attributable to the others, perhaps 99 percent.
The result of the principle of joint and several liability is that
litigation imposes severe risks for solvent businesses, often
necessitating excessive settlement offers, increasing liability
insurance costs, and making goods more expensive for consumer. All of
these factors have negative implications for our competitiveness in
international markets and our ability to keep enterprises, with all of
the jobs involved, in the United States.
Section 107 essentially is a compromise between the principle of
joint and several liability with its disproportionate attendant costs,
and the concept of liability limited to degree of fault or
responsibility. Under section 107, a defendant can only be held liable
for noneconomic losses in proportion to its share of the total fault or
responsibility, but can continue to be held liable to the extent
authorized by State law for economic losses that exceed its
proportionate share.
This bill does not impinge on the rights of claimants to recover
noneconomic damages from a defendant for the harm it inflicts, but
appropriately safeguards one party from having to pay for the harm
others inflict. Disproportionate liability for noneconomic damages not
only is unfair, but results in expenses that are passed on to all
Americans.
I strongly recommend defeat of this amendment.
Mr. Chairman, I reserve the balance of my time.
Mrs. SCHROEDER. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I just wanted to quickly answer my chairman. If joint
and several is so terrible, then joint and several liability should be
removed for both compensatory and noneconomic damages, and it is not.
They are keeping it for one and taking it away for another, which is
saying that family values do not count.
Mr. DOGGETT. Mr. Chairman, will the gentlewoman yield?
Mrs. SCHROEDER. I yield to the gentleman from Texas.
Mr. DOGGETT. Mr. Chairman, if I understand the focus of the
gentlewoman's amendment, this bill as written discriminates against the
young child who has a limb severed or is decapitated, really, as a
result of playground equipment, a senior citizen who is burned horribly
in a fire with a defective heater, a student who is exposed to toxic
substances and is impaired for life, a homemaker, be that male or
female, but usually it ends up being female, a woman who is at home
providing for her family but not a wage earner at that time? All of
these people are treated as second-class citizens under this piece of
legislation unless the gentlewoman's amendment is adopted.
{time} 1245
Mrs. SCHROEDER. The gentleman is absolutely correct. That is why we
call it family values. I think we respect something besides just a
paycheck.
The paycheck is raised to a much higher level in this bill. It is
going to be much easier to collect if you can show a paycheck. If you
cannot, then you do not get the options of joint and several liability,
you do not get the punitive damages. You are in real trouble. Those are
the people that we are saying that do not count. We say, ``We like you,
but good luck getting any damages on that.''
Mr. HYDE. Mr. Chairman, I am pleased to yield 3 minutes to the
gentleman from Wisconsin [Mr. Sensenbrenner], a valued member of the
committee.
Mr. SENSENBRENNER. I thank the gentleman for yielding.
Mr. Chairman, this amendment is a killer amendment, and it is a
killer amendment because it goes back from the principles stated in the
bill that the party who is at fault pays and the party who is not at
fault does not pay.
The bill provides for several liability for noneconomic losses. That
means that if a person or a party is determined by the jury to be 1
percent at fault, that party will pay 1 percent of the noneconomic
losses, not 100 percent, if the party who is found more negligent by
the jury ends up not having any assets or not having any insurance to
pay for the judgment.
Mrs. SCHROEDER. Mr. Chairman, will the gentleman yield?
Mr. SENSENBRENNER. I have a limited amount of time. I think it is
only fair, the gentlewoman from Colorado, that the opponents use their
time to lay out the case and not horn in on the opponents' time and
take all of the time in support of it.
Second, what the gentlewoman from Colorado's amendment also proposes
to do is to limit the cap on punitive damages. Punitive damages are not
compensation for anything. It is designed to be punishment for the
party or the parties that are at fault. And the bill provides an
elastic ceiling on punitive damages of $250,000, or three times the
actual damages, whichever is greater.
[[Page H2921]] So if there is more than $83,000 or $84,000 of actual
damages, then the punitive damages cap goes up.
Punitive damages are not compensation for anything, whether it is an
economic loss or a noneconomic loss.
So the gentlewoman is now trying to increase punitive damages awards,
which will end up, of course, enriching not only a plaintiff for not
what they actually lost but also manufacture's attorney.
I would hope, for these two reasons, that this killer amendment would
be defeated.
Mrs. SCHROEDER. Mr. Chairman, I yield 2 minutes to the gentleman from
Texas [Mr. Bryant].
Mr. BRYANT of Texas. I thank the gentlewoman for yielding this time
to me.
Mr. Sensenbrenner, as we all know, the purpose of punitive damages is
to deter manufacturers of dangerous products from being willing to put
the dangerous products on the market because they might hurt somebody.
As we all know, because we are all human beings, some companies have
done this, there will always be someone willing to do that, and we want
them to be afraid to do it because if they do do it, they could get
socked with punitive damages. That is the purpose of punitive damages.
You are taking these out of the bill. Basically, you are saying the
cap on punitive damages is $250,000, which is not enough to frighten
any major company, or three times earnings.
Once again, this is a bill basically for rich folks and it is bill
that is going to hurt poor folks, poor working people. Why? Because
under the Republican bill, you could get three times your economic
damages for punitive damages. So, for a wealthy fellow who is making a
lot of money, it is going to be three times a whole lot of money. But
for a working person who is not making very much money, it is going to
be three times not much, even though they both lost the same thing--
that is, their ability to live a normal life and to make a living for
their families.
So the rich are going to get plenty of money under your bill, the
poor folks are not going to get much at all.
Or the regular folks, the working folks, the retired folks, or women
who work in the home, for example, who cannot show great economic loss
because they cannot work anymore, they are going to get very little.
Your friends are going to get a whole lot. Why? Because your friends
make a lot of money.
That is the bill you brought out to the House here today.
In 1966, 24 American young men were killed playing football. In 1990,
none were killed playing football. Sports Illustrated reported that
that is because of the fear of the manufacturers of football equipment
that if they did not make the stuff safer, they would get sued and get
a punitive damage award.
You are taking the punitive damage awards out of this bill, for all
practicable purposes. You are saying the cap is $250,000, or three
times economic damages, and you know that for 99 percent of the
American people economic damages will not amount to very much. Well,
they certainly will not amount to enough to deter one of these big
companies from putting a bad product on the market.
I urge a vote for the amendment of the gentlewoman from Colorado
[Mrs. Schroeder].
Mr. HYDE. Mr. Chairman, I am pleased to yield 2 minutes to the
distinguished gentleman from Ohio [Mr. Oxley].
Mr. OXLEY. I thank the chairman for yielding this time to me.
Mr. Chairman, let me say first of all that I hope we could have
avoided some of the class war rhetoric that we have heard in debating
this legislation. The fact is that in many cases in Europe, for
example, where they probably have the safest automobiles in the world,
there is no provision for punitive damages over there. The fact is that
the American automobile manufacturers could not have child safety seats
for about 7 years after Europe had introduced them because of the
concern for product liability suits over here.
I suspect there are a number of young people who were killed in auto
crashes before these child restraint seats were made available in the
United States because of the fear of excessive litigation in this
country versus Europe.
The idea behind our system was to make the plaintiff whole. It was
basically to provide that the plaintiff be made whole. That is whole
system that we talk about. Joint liability was created as a risk
distribution insurance mechanism to insure that valid claimants would
receive at least some compensation. However, no insurance program, not
any workers' compensation program in any State, provides benefits or
coverage for noneconomic damages.
The voters of California passed a State initiative in 1986 which
eliminated joint liability for noneconomic damages. California trial
attorney Suzel Smith, who practices for both defendants and plaintiffs,
testified twice last year in the Senate that the elimination of joint
liability for noneconomic damages in California has been fair and that
there has been no effort to repeal or modify the law.
I think it is fundamentally unfair to have a situation where you have
got a defendant who is found to be 1 percent responsible and yet,
because they may have deep pockets, they will get 100 percent of the
judgment.
Mrs. SCHROEDER. Mr. Chairman, I now yield 2 minutes to the
distinguished gentleman from Virginia [Mr. Scott].
Mr. SCOTT. I thank the gentlewoman for yielding.
Mr. Chairman, we have already heard the outrage that this bill has,
by discriminating against children, retirees and homemakers who may
lose limbs, suffer blindness or others, without the economic loss. And
they do not receive the same kind of treatment under this bill as
someone with a big fat paycheck.
I want to talk a minute about joint and several liability. Mr.
Chairman, we have heard the scare tactics of 1 percent fault having to
pay the full damage. Well, Mr. Chairman, the majority saw an amendment
proposed that would have said that only those with a substantial amount
of participation, 20 percent, would be forced to pay the full freight,
not those with 1 percent. That amendment was ruled out of order.
Mr. Chairman, if we have a situation where there is a problem with
the design and the manufacture and the possible misrepresentation at
sale, why should the victim have to sort all this out, getting three
separate verdicts and having to chase down three separate defendants?
The fact is that in the business community you can insure for that
loss and apportion it before it happens, and you ought not have to have
that done by the defendant.
Mr. Chairman, there is a case, Gray versus Dayton Hudson Corp., where
the manufacturers of children's pajamas had a product that the court
found the manufacturer was uniquely aware that the product was
flammable. The court noted that the pajamas in question burned almost
as quickly as newsprint.
Mr. Chairman, this company could have, economically, feasibly treated
the pajamas so they would not burn. This company would benefit if this
amendment were not passed.
Children sleep safely tonight, Mr. Chairman, because punitive damages
removed these from the market.
Let us not turn the clock on consumer protection.
Mr. HYDE. Mr. Chairman, does the gentleman from Illinois have the
right to close debate?
The CHAIRMAN. The gentleman is correct. The chairman of the committee
has the right to close.
Mr. HYDE. I have only one speaker left, Mr. Chairman, and I reserve
the balance of my time.
Mrs. SCHROEDER. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, I must say this has been frustrating because we have
not been able to have a debate and all the artificial time limits on
here have made this all really kind of a charade.
When you listen to people stand up and talk about how terrible it is
we have punitive damages, there are no punitive damages and punitive
damages are terrible. OK. But this bill does not do away with punitive
damages, it just leaves it for economic interests. So if you guys think
punitive damages are so bad, then be fair and do away with all of them.
But you are leaving them for your fat cat friends. If you happen to
have a paycheck, you get
[[Page H2922]] economic damages and punitive damages. If you do not
have a paycheck, if you are a child who has been burned by pajamas, it
is tough bunchies, you do not get anything because they just burn a
child who is not worth anything because a child is not working and does
not have a paycheck.
Listen to what the gentleman from Virginia is saying. If that were
your child, America, you would be angry.
Now, if we are going to do away with all punitive damages, fine. But
this bill does not do it. It puts a fence around wage earners and fat
cats, and it allows them joint and several liability. You heard the
gentleman from Wisconsin saying how terrible joint and several
liability is. Yes; this does not do away with it, it just limits it to
people with a paycheck. So if you have a paycheck, America, we love
you. If you have a paycheck, you get both joint and several liability,
which means even if they are only 1 percent liable, they will pay your
whole paycheck. And you also get punitive damages. But if you do not
get a paycheck, you are nothing.
So, if you are staying home taking care of your children, you do not
get punitive damages and you do not get joint and several liability. If
you are a child, you do not get that. If you take a drug and it ruins
your reproductive organs, too bad. If you are caught up with breast
implants, too bad. On and on and on.
I thought in America we had a few values left for things other than
just paychecks. So, before you listen to this rhetoric that, ``That is
right, we don't need punitive damages and we don't need joint and
several,'' you are not getting the whole picture. This does not do away
with those. It only does away with those for noneconomic damages. If
you vote ``yes'' on this amendment, you will have a level playing
field.
Mr. Chairman, this amendment can be called the family values
amendment, because it amends two provisions in this bill that have the
effect of discriminating against families and family values.
When I offered this amendment in committee, although it failed
narrowly, it received votes from both sides of the aisle. This
amendment should receive bipartisan support from everyone in this body
who believes, as I do, that we Americans value our families more than
their jobs, and that our ability to have children is more valuable than
any paycheck could ever be.
Without my amendment, the bill before us today will establish into
law the notion that the paycheck is valued more in our system of civil
justice than our families, and our right to bear children. The bill
divides compensatory damages into two categories, economic and
noneconomic, and says that the type of loss that includes our
paychecks--wages that a victim loses because of an injury--are to be
given first class treatment, while family-related losses, including
loss of reproductive capacity, are to be given second-class treatment.
My amendment would make sure that economic and noneconomic losses are
treated equally for purposes of joint and several liability--which in
many cases means the difference between collecting or not collecting
your damages. My amendment also makes sure that all compensatory
damages could for purposes of calculating the cap on punitive damages,
and not just economic losses. Noneconomic losses reflect real injury,
and that is no reason to give them second-class status.
The two-class system of justice this bill would establish hurts women
and children in several ways. First, because of the enduring wage gap
between women and men in the workforce, any provision that gives
preferential treatment to ``economic'' losses, and gives second-class
treatment to ``noneconomic'' losses, will have a disproportionately
harsh impact on women, as well as on children and lower-income workers.
This second-class treatment will be particularly evident in the case of
women who are housewives, and women who are staying home with their
children, because the damages they suffer are strongly weighted toward
``noneconomic'' losses.
The second way this bill devastates families has to do with
reproductive harm. Many of the most infamous, dangerous products ever
sold have been products like DES and the Dalkon Shield that inflicted
terrible reproductive injuries upon their victims. DES exposed
approximately 10 million women and men to reproductive damage. The
Dalkon Shield caused injuries to the reproductive systems of thousands
of women. Accutane, an anti-acne medication, caused birth defects when
women used it while they were pregnant.
Harm to the reproductive system is an extremely devastating form of
loss. I feel very confident that if you surveyed Americans about
whether they would consider the loss of their reproductive capacity to
be of less importance to them than the loss of wages, you would find
very few people who would say, as this bill does, that lost wages are
more highly valued than loss of reproductive capacity. Yet, unless my
amendment is adopted, this bill will write into the law of this land
that lost wages are deserving of better treatment under the law than is
loss of reproductive capacity.
Mr. Chairman, this amendment is truly a family values amendment. It
makes sure that our justice system values the family as much as it
values the paycheck. It eliminates the harsh, discriminatory impact
this bill has on women, children, and lower income individuals. I urge
the adoption of this family values amendment.
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] is recognized
for 3 minutes to close debate.
Mr. HYDE. Mr. Chairman, we have heard for the last 2 days capping
noneconomic damages and liability suits would hurt women. The reason
given is that women stay at home, so juries cannot calculate economic
damages for them in the way they can for men who work. This is a
strange argument, even a bizarre argument, coming from women who have
spent their political careers telling us the traditional family is dead
and we had better get used to it. I never thought I would hear the
gentlewoman portray an ``Ozzie and Harriet'' view of America.
The facts are, in fact, just the opposite. Many women now, of course,
work. There is no problem in calculating the economic damages there.
But even more striking, juries now regularly calculate what the market
value of a woman's services to a household would cost on the open
market. Every woman has done this calculation in her head. I dare say
the gentlewoman from Colorado has: chauffeur, cook, nanny,
housecleaner, manager of the family budget, child care professional;
the list goes on and one.
I am told that when juries make this calculation, they regularly come
up with six figures; in other words, more than what most families make
through their jobs. Juries respect and honor the economic role of
women, including homemakers.
Mr. Chairman, I am amazed that those in this Chamber who have been so
self-righteous for so long about their role in defending women would
make arguments that essentially demean the role of women in our
society.
This amendment severely weakens the much-needed punitive damages
reform.
{time} 1300
It will undermine the punitive damages reform contained in the bill
by lumping in highly speculative, noneconomic damages such as pain and
suffering, and emotional distress, into the basis for determining
punitive damages. This will result in a continuation of inflated
punitive damages awarded, exactly what this bill is seeking to contain.
Mr. Chairman, I respectfully request my colleagues to vote no on the
amendment offered by the gentlewoman from Colorado [Mrs. Schroeder].
Mrs. SCHROEDER. Mr. Chairman, will the gentleman yield?
Mr. HYDE. Of course, I yield to the gentlewoman from Colorado.
Mrs. SCHROEDER. Would the gentleman like to talk about children?
Would he like to talk about the elderly? Would he like to talk about--
--
Mr. HYDE. I am one of each.
Mrs. SCHROEDER. Reproductive organs?
I also think the gentleman knows that economic damages for women in
the workplace are very severely limited--who are not in the workplace,
and I think----
Mr. HYDE. Reclaiming my time, Mr. Speaker, I respectfully disagree
with the gentlewoman from Colorado [Mrs. Schroeder].
Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentlewoman from Colorado [Mrs. Schroeder].
The question was taken; and the Chairman announced that the noes
appeared to have it.
recorded vote
Mrs. SCHROEDER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
[[Page H2923]] The vote was taken by electronic device, and there
were--ayes 179, noes 247, not voting 8, as follows:
[Roll No. 219]
AYES--179
Abercrombie
Ackerman
Andrews
Baldacci
Barcia
Barrett (WI)
Bateman
Becerra
Beilenson
Bentsen
Berman
Bevill
Bishop
Bonior
Borski
Boucher
Browder
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Cardin
Chapman
Clay
Clayton
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
Cramer
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Diaz-Balart
Dicks
Dingell
Dixon
Doggett
Doyle
Durbin
Engel
English
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gonzalez
Gordon
Green
Gutierrez
Hall (OH)
Harman
Hastings (FL)
Hefner
Hilliard
Hinchey
Holden
Hoyer
Jackson-Lee
Jefferson
Johnson (SD)
Johnson, E.B.
Johnston
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kleczka
Klink
LaFalce
Lantos
Levin
Lewis (GA)
Lincoln
Lipinski
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martinez
Mascara
Matsui
McCarthy
McDermott
McHale
McKinney
McNulty
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Minge
Mink
Moakley
Morella
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Peterson (FL)
Poshard
Rahall
Reed
Reynolds
Richardson
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schiff
Schroeder
Schumer
Scott
Serrano
Skaggs
Skelton
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tejeda
Thompson
Thornton
Thurman
Torres
Torricelli
Towns
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Williams
Wilson
Wise
Woolsey
Wyden
Wynn
Yates
NOES--247
Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Bonilla
Bono
Brewster
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chambliss
Chenoweth
Christensen
Chrysler
Clement
Clinger
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Crane
Crapo
Cremeans
Cubin
Cunningham
Danner
Davis
Deal
DeLay
Dickey
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Ensign
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Fox
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Goss
Graham
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hamilton
Hancock
Hansen
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Jacobs
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Laughlin
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Linder
Livingston
Longley
Lucas
Manzullo
Martini
McCollum
McDade
McHugh
McInnis
McIntosh
McKeon
Metcalf
Meyers
Mica
Miller (FL)
Molinari
Mollohan
Montgomery
Moorhead
Moran
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Orton
Oxley
Packard
Parker
Paxon
Payne (VA)
Peterson (MN)
Petri
Pickett
Pombo
Pomeroy
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stearns
Stenholm
Stockman
Stump
Talent
Tanner
Tate
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Tiahrt
Torkildsen
Upton
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer
NOT VOTING--8
Boehner
Gibbons
Istook
LoBiondo
McCrery
Pelosi
Rangel
Watts (OK)
{time} 1320
The Clerk announced the following pair:
On this vote:
Mr. Rangel, with Mr. Watts of Oklahoma for against.
Mr. CLEMENT changed his vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
____________________