Congressional Record, Volume 141 Issue 44 (Thursday, March 9, 1995)

[Congressional Record Volume 141, Number 44 (Thursday, March 9, 1995)]
[House]
[Pages H2923-H2940]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PERSONAL EXPLANATION

Ms. PELOSI. Mr. Chairman, I was unavoidably absent for rollcall No.
219, the amendment offered by the gentlewoman from Colorado, Mrs.
Schroeder. Had I been present I would have voted ``aye''.
I support the Schroeder amendment which would strike from the bill
the section which abolishes joint and several liability and would
modify the bill's cap on punitive damage.
As written, this bill will discriminate against women, children, and
the elderly by placing greater value on economic losses over
noneconomic losses. Similarly, placing a cap on punitive damages awards
also discriminates against these groups.
Women, for example, will suffer because noneconomic losses such as
reproductive capacity and physical disfigurement are much harder to
qualify than annual earning capacity. In addition, women's earning
capacity is historically and currently less than men and would be
punished by this bill.
The Schroeder amendment acknowledges this legal discrimination and
deserves our support.
The CHAIRMAN. It is now in order to consider amendment No. 3 printed
in House Report 104-72.

amendment offered by mr. hyde

Mr. HYDE. 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 Mr. Hyde: Page 12, strike lines 8
through 11.

The CHAIRMAN. Pursuant to the rule, the gentleman from Illinois [Mr.
Hyde] will be recognized for 10 minutes, and a Member opposed will be
recognized for 10 minutes.
The Chair recognizes the gentleman from Illinois [Mr. Hyde].
Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, every State has statutes of limitation that prescribe
the period of time within which a law must be brought. Similar but not
identical is a statute of repose. Statutes of repose specify the period
of time after which a manufacturer may not be sued for an alleged
injury caused by its product. Consequently, a statute of limitations
specifies when an existing right to bring a suit expires, while
statutes of repose specify the period of time after which no right to
sue will be recognized at all.
Seventeen States have enacted statutes of repose, but they vary in
length and in their applicability to various products. A uniform
statute of repose is needed in order to provide certainty and finality
in commercial transactions. Section 108 of H.R. 956 would establish a
15-year Federal statute of repose in product liability cases. Thus, a
product liability action against a manufacturer would be barred 15
years after the date of first delivery of the product.
To be fair to plaintiffs, the provision would not apply in instances
involving a latent illness--a physical illness the evidence of which
does not ordinarily appear less than 15 years after the first exposure
to the product. In addition, the statute of repose 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
where the express warranty given was longer than 15 years.
This legislation is similar to legislation that passed the Congress
last year known as the General Aviation Revitalization Act of 1994
(Public Law 103-298). That Federal statute created an 18-year statute
of repose for general aviation aircraft.

[[Page H2924]]

Section 108 is intended to reflect the view that, after a reasonable
length of time, manufacturers should be free from the burden of
disruptive litigation and potential liability. It recognizes that
difficulty that exists in locating reliable evidence and defending
claims many years after a product has been manufactured. It also
prevents the unfairness that occurs when manufacturers are held liable
for goods that have been beyond their control and subject to misuse or
alteration, perhaps for decades. A statute of repose also helps to
avoid the possibility of juries unfairly imposing current legal and
technological standards on products manufactured many years prior to
suit.
Even though manufacturers of older products frequently are successful
in defense of these lawsuits they nevertheless must invest time and
money into legal and transactional costs. These costs are wasted costs
that could be better applied to create jobs and assist American
companies in competing globally.
My amendment is aimed in ensuring that this statute of repose section
does what it is intended to do. As part of the effort to combine the
Judiciary Committee's legal standards bill with a product liability
measure reported by the Commerce Committee, new language was inserted
into the statute of repose section. It says ``(T)his 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 losses.'' Though unintended, this new language could
effectively render the statute of repose provision useless.
My amendment is directed at deleting this one sentence because it
would create a giant loophole for trial lawyers and would reverse the
work of both committees in seeking a fair and effective statute of
repose. Under the language I would strike, all a trial lawyer would
have to show--to avoid the statute of repose--is that his client did
not receive or was ineligible to receive full compensation for medical
expenses. So, if there was any insurance copayment provision, if there
was any insurance deductible, if reimbursed medical expenses are
limited in any way, such as ordinarily and customary expense
limitations--the statute of repose might not apply. Once the statute of
repose is successfully evaded, a litigant could then seek additional
economic damages, noneconomic damages and punitive damages. This is
certainly not the result that the Judiciary Committee intended.
Unless this sentence is stricken, it will prompt further lawsuit
abuse. Under this exception language, a manufacturer seeking to invoke
the statute of repose would first have to litigate the issue of whether
or not a claimant has received full compensation from medical losses.
That is, has every medical test, prescription, bandage or Band-Aid been
fully covered by insurance? This loophole would encourage a plaintiff
to continue to claim medical expenses for as long as possible and to
the maximum degree possible, so as to prevent full payment from
triggering the statute of repose and its protections.
It is important to point out that the European Economic Community has
a 10-year statute of repose with no such language contained within its
provisions. Japan has a 10-year statute of repose with no such
language. Again 17 States currently have statutes of repose, none has
language like this in it. No such language was contained in the General
Aviation Revitalization Act.
This language is an unwise, unfair and unworkable addition to an
otherwise good strong and effective statute repose section. It must be
removed if this House is to have the opportunity to vote for a statute
of repose that really helps American manufacturers and encourages
American productivity.
I strongly urge the adoption of my amendment. It will ensure that
section 108 will be effective and provide manufacturers with the kind
of certainty and finality that they deserve.
The CHAIRMAN. Is there a Member in opposition to the amendment?
Mr. BERMAN. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN. The gentleman from California is recognized for 10
minutes.
Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Virginia [Mr. Scott].
Mr. SCOTT. Mr. Chairman, will the chairman of the committee respond
to a question? Mr. Chairman, I would ask, the language in the bill is
changed in one of the sections. I ask a question during the hearings as
to whether or not asbestos cases would be exempted from this bill. In
committee I was told that asbestos cases would not be affected by the
passage of this bill.
With the change and with this amendment, is that still the case?
Mr. HYDE. Mr. Chairman, if the gentleman will yield, this amendment
does not change that.
Mr. SCOTT. So asbestos cases are not changed as a result either of
the amendment or the passage of the bill?
Mr. HYDE. That is correct.
Mr. BERMAN. Mr. Chairman, I yield myself 2 minutes.
Mr. Chairman, we are dealing here probably with the only amendment I
think on the status of repose. When I saw the language as it came out
of the two committees and was reintroduced in this new bill, H.R. 1075,
I said, well, this is not a bad effort. We are federalizing the product
liability law in this one title. We will not even talk about what we
are doing in the rest of the bill. We are providing the manufacturers
with a certainty in terms of the amount of years. We are exempting it
based on an amendment that the gentleman from Illinois, the chairman,
accepted in committee for express warranties. If we could just get the
Bryant amendment, to deal with a manufacturer who intentionally
conceals problems with his product. We have a provision in the bill
that says 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.
I thought with the addition of the Bryant amendment, which the
Committee on Rules prevented him from offering, you could have a
reasonable statute of repose as part of this federalization of the
product liabilities scheme.
Lo and behold, the Committee on Rules does not grant Mr. Bryant's
amendment, but instead grants an amendment that says when the person is
injured by the defective product, if it occurs after the period of the
statute of repose, even if he has no insurance, no other way of paying
any of his medical bills, we are going to put him off on the county,
put him into indigency, make him go on the dole in order to pay for the
injuries which he suffered, which could be very extensive, because of
this amendment.

{time} 1330

What you looked like you were giving, you now, in substantial part,
have taken away with this amendment. I think this is the wrong
amendment. I am surprised that gentleman is offering it. It was a
balance, it was a nice balance to the proposal. It is being totally
thrown out of whack.
Mr. HYDE. Mr. Chairman, I yield myself 30 seconds.
I am equally surprised that the gentleman is opposing this amendment.
The language I seek to strike was not in the bill in our committee. It
was put in by the Committee on Commerce, and I think upon mature
reflection it undoes the purpose of the statute of repose. It would
leave it open-ended, almost impossible to predict or fulfill, and,
therefore, if you are for a statute of repose, I should think you would
be for having it a definite, time-certain.
Mr. BERMAN. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, it is a balance. We are not talking about punitives. We
are not talking about pain and suffering. We are not talking about wage
loss. We are talking about the medical bills this injured person has to
pay to get treatment. In this small set of cases, which side do we come
down on? Do we come down on the manufacturer of the machinery, the
product, or do we come down on the side of plaintiff who has no medical
insurance, who has no way of paying his medical bills?
Mr. Chairman, I yield 3 minutes to the gentleman from Texas [Mr.
Bryant].
Mr. BRYANT of Texas. Mr. Chairman, a moment ago, the gentleman from
Illinois [Mr. Hyde] talked about the European Community statute of
repose. As always, the other side likes
[[Page H2925]] to quote sources for their purposes but leave out the
more relevant facts about the sources that might say something about
the other side. The European Community provides cradle to grave medical
care for all of its citizens. We do not do that in the United States.
So the statute of repose which says that after 15 years you cannot sue
somebody for making a defective product has a provision attached to it
that says that does not count if the person would be made unable to get
their medical care paid for.
Only if they have been able to cover their medical care does the
manufacturer have a defective product escape liability 15 years after
it is manufactured. It is a great irony. The gentleman from California
[Mr. Berman] referred to it a moment ago. Of all things, we ask for
time to offer amendments to make an extremely unreasonable bill a
little more reasonable. They do not grant time on the reasonable
amendments. They grant time to the chairman of the committee, who could
have written the bill any way he wanted to, to make the bill worse for
the average person.
A 15-year statute of repose is a new addition to American law. We
have one reasonable exception in here. It does not stop a guy that
manufactured a bad product that blew up and hurt somebody from being
held liable unless the victim gets their medical care taken care of.
The gentleman from Illinois [Mr. Hyde] would say, forget the victim. It
does not matter whether he gets his medical care taken care of or not.
After 15 years even if the product was totally defective, totally
responsible for hurting or killing somebody, you are not going to be
able to recover anything.
I think that is absurd. It is, in my view, completely opposite of
what the American people would want us to be doing.
I had an amendment which was designed to make this statute of repose
a little more workable and a little more reasonable. What it would have
said is, OK, we have a 15-year statute of repose. At the end of 15
years, you cannot sue somebody even if their product is defective
unless that person who made the product knew the product was defective
at the time it was made. In that case, they do not get the benefit of
the 15-year cutoff. But the Republicans would not let us offer that
amendment today. Instead they let the gentleman from Illinois [Mr.
Hyde] offer an amendment that says, too bad if you cannot cover you
medical care. After 15 years, you are out of luck.
Unfortunately, for you so-called conservatives, you phony
conservatives on the other side, what that is going to mean most of
time is that taxpayers are going to have to pay for that guy's medical
care while you let your rich friends off the hook.
Mr. HYDE. Mr. Chairman, I yield myself 1 minute. The gentleman
objected last night to mentioning the American Trial Lawyers. You
thought that was an invidious comparison. I did not yield to the
gentleman. I did not yield to you.
The gentleman has no problem attacking us and linking us with rich
friends and that sort of thing. The gentleman ought to do and practice
what he preaches.
Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr.
Moorhead].
Mr. MOORHEAD. Mr. Chairman, I rise in support of the Hyde amendment.
The statute of repose currently in H.R. 956 has been threatened by
language that has been added to the bill after it left the Committee on
the Judiciary that has created a giant loophole in the statute of
repose. This one provision in the law says that unless, unless all
possible damages or health care is met by the insurance policy or by
the health care program, that the statute of repose will not be
effective. There are no insurance policies that provide that kind of
protection.
Certainly the Federal policies that many of us are under do not
provide that kind of protection. It gives the trial lawyers a giant
loophole that will enable them in almost every instance to open up the
issue of whether the statute of repose is to be effective or not.
The loophole will prolong litigation because we will first have to
try the issue of whether all the possible damages, health care needs
have been met before we ever go on to the basic issue that is involved,
the language that will destroy one of the major goals of the product
liability reform legislation in having finality of an issue 15 years
after the product was issued.
The Hyde amendment is supported by many national organizations. It is
necessary to make this bill effective.
Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Texas [Mr. Doggett].
Mr. DOGGETT. Mr. Chairman, there is considerable irony in the fact
that the distinguished chair of the Committee on the Judiciary should
lead off the presentation of this amendment by pointing to the example
of what 17 States do with their statutes of repose, because the whole
theory of this bill is to junk States' rights.
If the people in Illinois in their constitution want a statute of
repose with or without this, I say that is fine. If the people in Texas
want it, that is fine. It is not our job to come along and junk States'
rights and say, you have to do it the way we say do it in Washington.
That is what is the theory and the approach of this bill, is not to
rely on the States but rather to consider and argue and to contend that
we have this terrible patchwork of States' laws that pose a great
burden.
There was a time in this country, my colleagues, when that terrible
patchwork that is criticized here on this floor today was called
something a little different. It was called the laboratory of
democracy, the fact that each State might look at the laws of its civil
justice system and decide what is most appropriate. And it is that
laboratory of democracy with reference to our State civil justice
system that is being thrown out the window of this capitol building by
this piece of legislation.
There is a second problem, of course, alluded to by my friend, the
gentleman from Texas [Mr. Bryant]. And that is that this amendment
takes a blame the victim approach. The problem here with this whole
statute of repose is that it allows every manufacturer in America, and
that is really all that the section does, to write on its product after
15 years, do not look to us, buddy. It says, we will not be responsible
no matter how defective our product for anything after 15 years.
And that would be fine and proper, except for the fact that they
allow the manufacturer to do that in invisible ink. The same
manufacturer can advertise on the Home Shopping Network this afternoon
that you get a lifetime guarantee with our product. Indeed, you do. It
is just that you do not get any right to recover after 15 years. So
there is no burden placed on the manufacturer to identify the fact that
in invisible ink we have limited the rights of the victim.
I say blame the victim because the choice with
this specific amendment is between those who put defective products
in the stream of commerce throughout this country and those who do not
have the insurance even to cover their own medical bills, because that
is what this very good language took care of.

One of the problems in the consideration of this entire week's
legislative work in this Capitol is our failure to listen to the
victims, to the people that have lost life and their family, a limb,
those people have been excluded in this debate.
The CHAIRMAN. The gentleman from California [Mr. Berman] has 30
seconds remaining, and the gentleman from Illinois [Mr. Hyde] has the
right to close debate.
Mr. HYDE. Mr. Chairman, I yield 30 seconds to the gentleman from Ohio
[Mr. Oxley].
Mr. OXLEY. Let me respond, first of all, there is an expressed
warranty provision in that that would cover the situation the gentleman
mentioned. Let me say to my colleagues that when working on the statute
of repose, we were looking for a particular length of time for the
statute of repose. we found, to our amazement, that the longest statute
of repose of any State is the State of Texas, the Lone Start State. And
basically the statute of repose that is in this statute or in this bill
copies almost word for word the Texas statute.
Mr. BERMAN. Mr. Chairman, I yield myself the balance of my time.
[[Page H2926]] Let the body just remember, the product liability bill
that the Committee on Energy and Commerce over several years has been
passing and promoting on a bipartisan basis, the one that the gentleman
from Ohio [Mr. Oxley] always supported, was a product liability bill
limiting the statute of repose to capital goods and providing 25 years.
This is any product, any manufactured product, any manufactured product
15 years. And now you are taking out the medical benefit.
Mr. CHAIRMAN. All time in opposition to the amendment has expired.
The Chair recognizes the gentleman from Illinois [Mr. Hyde].
Mr. HYDE. Mr. Chairman, I yield such time as me may consume to the
gentleman from Wisconsin [Mr. Sensenbrenner], a member of the
committee, to close debate.
Mr. SENSENBRENNER. Mr. Chairman, I think to close debate it is
important for us to focus on what a statute of repose is. A statute of
repose is a limit during which period a lawsuit can be filed alleging
negligence in the manufacture of that product.
The statute of repose here that is proposed is 15 years. That means
that the product will have to be on the market and be used for 15
years, during which period of time a lawsuit can be filed and the
manufacturer exposes himself to liability.
Is not 15 years long enough? If the product is defective, should not
that defect become apparent within a 15-year period of time? I think
the answer to that question is yes.
The gentleman from Ohio [Mr. Oxley] has correctly stated that the 15-
year statute of repose that is proposed in this bill is the longest of
the State statutes of repose. So by federalizing this issue, we are in
effect extending the time for which lawsuits can be filed in most
States.
The amendment that the gentleman from Illinois is proposing is one
that is very important, and that is taking out this last sentence,
which was put in the statute of repose section by mistake, that says
that if there is a penny of copayment or a penny of a deductible, then
there is no statute of repose whatsoever, no limitation on when the
lawsuit can be brought.

{time} 1345

That will mean much higher product liability insurance premiums that
manufacturers will have to pay. Who pays those product liability
insurance premiums? We all do, as consumers, because those premiums are
a cost of doing business. They are folded into the cost of the product.
By passing this amendment and establishing a standard of repose, we
can lower those premiums, and thus lower the cost to our constituents.
I urge an ``aye'' vote.
The CHAIRMAN. All time has expired.
The question is on the amendment offered by the gentleman from
Illinois [Mr. Hyde].
The amendment was agreed to.
The CHAIRMAN. It is now in order to consider amendment No. 4 printed
in House Report 104-72.

amendment offered by mr. schumer

Mr. SCHUMER. Mr. Chairman, I offer an amendment.
The Clerk read as follows:

Amendment offered by Mr. Schumer: Page 13, redesignate
section 110 as 111 and insert after line 3 the following:

SEC. 110. SUNSHINE, ANTI-SECRECY, CONSUMER EMPOWERMENT, AND
LITIGATION AVOIDANCE.

(a) In General.--To empower consumers with the information
to avoid defective products, court records in all product
liability actions are presumed to be open to the general
public. No court order or opinion in the adjudication of a
product liability action may be sealed. No court record,
including records obtained through discovery, whether or not
formally filed with the court, may be sealed, subjected to a
protective order, or otherwise have access restricted except
through a court order based upon particularized findings of
fact that--
(1) such order would not restrict the disclosure of
information which is relevant to public health or safety; or
(2)(A) the public interest in disclosure of potential
health or safety hazards is clearly outweighed by a specific
and substantial interest in maintaining the confidentiality
of the information or records in question; and
(B) the requested order is no broader than necessary to
protect the privacy interest asserted.

No such order shall continue in effect after the entry of
final judgment or other final disposition, unless at or after
such entry the court makes a separate particularized finding
of fact that the requirements of paragraph (1) or (2) have
been met.
(b) Burden.--The party who is the proponent for the entry
of an order, as provided under subsection (a), shall have the
burden of proof in obtaining such an order.
(c) Agreement.--No agreement between or among parties in a
product liability action filed in a State or Federal court
may contain a provision that prohibits or otherwise restricts
a party from disclosing any information relevant to such
product liability action to any Federal or State agency with
authority to enforce laws regulating an activity relating to
such information.
(d) Intervention.--Any person may intervene as a matter of
right in a product liability action for the limited purpose
of participating in proceedings considering limitation of
access to records upon payment of the fee required for filing
a plea in intervention.

The CHAIRMAN. Pursuant to the rule, the gentleman from New York [Mr.
Schumer] and a Member opposed will each be recognized for 10 minutes.
The Chair assumes the gentleman from Illinois [Mr. Hyde] will manage
the time in opposition to the amendment.
The Chair recognizes the gentleman from New York [Mr. Schumer].
Mr. SCHUMER. Mr. Chairman, I yield myself 3 minutes and 15 seconds.
Mr. Chairman, I have been so used to open rules that I have forgotten
how a closed rule functions.
Mr. Chairman, if there ever was a commonsense legal reform, this
amendment is it. Every year hundreds of manufacturers who know their
products are dangerous hide behind court secrecy orders to conceal the
truth from the American public.
As a result, thousands of innocent, men, women, and children are
maimed, poisoned, injured, and even killed simply because they never
learn the truth. The truth and their fates are sealed in secret by
lawyers behind closed doors. In some cases, secrecy order follows
secrecy order, year after year, while the list of mutilated and dead
grows longer and longer.
Let me just give one case, because this has been so much a battle of
the anecdotes, that shocked me. It ought to shock everybody.
There is no more innocent activity than little kids going out to
play. Yet, for over 13 years, an equipment manufacturer of playground
equipment sold a merry-go-round that it knew was causing serious injury
to scores of small children, mostly around 5 or 7 years old, children
like little Rebecca Walsh, who had two fingers chopped off; like Larry
Espinosa and Dale Lukens, whose bones were crushed; other children who
had their hands and feet cut off. These kids were hurt and their lives
forever twisted.
In spite of dozens of lawsuits against the manufacturer, because
those lawsuits were settled in secret, the parents of these kids never
had a chance to protect their children, and their children never had a
chance to grow up whole.
The sad truth is that the history of product liability litigation is
full of cases like that.
Mr. Speaker, I do not know what goes on in the minds of the men and
women who sell these products, even after they know they are killing
and injuring innocent people, but I do know one way to stop it. That is
to open up the courthouse doors and shine the bright light of day on
these dangerous products. That is all this amendment does. I hope we
could get bipartisan support it. It bars courts from sealing their
orders in product liability cases. It prohibits any other record in a
product liability case from being restricted, unless, and there is
indeed an exception, the court specifically finds that the order will
not restrict information relating to public health or safety, or that
some specific secrecy interest clearly outweighs the public interest in
disclosing public health and safety.
In other words, there can be sealed orders, but the burden of proof
ought to be the other way. When health and safety are at stake, the
burden of proof ought to be that the order be open.
Finally, Mr. Chairman, it permits product liability settlement
agreements that restrict parties from giving information to regulatory
agencies. This is real common sense. I urge my colleagues to vote for
this amendment. It is a vote against secrecy, for openness, and for the
right of all Americans to know the truth about dangerous products.

[[Page H2927]]

Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I think this is a very dangerous amendment. It is one
that should be defeated. It would impair litigants' rights to maintain
their privacy, protect valuable property interests, and interfere with
settling legal disputes.
Massive amounts of private information are produced through the
modern discovery process. The amendment requires the court to weigh the
value of confidentiality versus the public interest in disclosure. To
conduct such a weighing process on every document that is private would
indeed weigh the courts down in endless disputes. Disputes over
discovery issues would skyrocket, and further clog our courts.
The amendment would restrict judicial discretion in protecting
confidential information, and would create lawsuit abuse, not eliminate
it. The courts would have to conduct extensive and complex factual
inquiries, which could include extensive hearings on and in camera
review of thousands of documents. Such in camera review could result in
an unfair and prejudicial prejudgment of the case.
This amendment would make it much more difficult to settle cases. It
would prevent the mutual agreement between parties on issues of
confidentiality, and would result in more contentious trials, consuming
more time and attention than ever before.
There is no need for this amendment. The proponents of this amendment
may trot out some tragic anecdotes allegedly supporting forced
disclosure, but in each case the proponents of this amendment should be
asked whether or not such information relating specifically to the
alleged defect was not available to the public prior to the protective
order, and in many cases, long before the lawsuits were even filed.
There is proprietary information, private information, information
that does not belong in the public domain, and the judge now has ample
authority to rule on whether this information shall be sealed or
whether it should be made public. It is something that is best handled
by court rules, not legislation.
Mr. Chairman, I do not know what else to call this but the Ralph
Nader amendment, because it would permit any citizen at any time to
intervene to get information that it wants, and that may or may not be
helpful, but as a rule of law, it is the sort of thing that would
obstruct the settlement of cases. It would make people very reluctant
to disclose information on a nonconfidential basis.
I would sincerely hope that this gutting amendment would be defeated.
Mr. Chairman, this amendment represents a mischievous effort to
compromise confidential information with potential adverse consequences
for both businesses and injured parties. The amendment raises a new
subject we did not consider in the Committee on the Judiciary.
The amendment can be interpreted as including a flat prohibition on
sealing a court order or opinion in a product liability case. This
prohibition--in contrast to the prohibition relating to a court
record--apparently admits of no exception and may result in
compromising trade secrets of American firms if the court order or
opinion refers to such secrets.
By providing for public access to material obtained through
discovery, we place in the public domain information that may have no
relevance to pending litigation. The evidentiary standards for
obtaining information through discovery are much broader than those
applicable in a trial--a fact that renders inappropriate treating the
discovery process like a public proceeding. The need to obtain a court
order to restrict public access to records obtained through discovery
can be expected to add immeasurably to the transaction costs of
litigation--as parties go to court to safeguard the confidentiality of
the discovery process. Alternatively, parties to litigation can be
expected to resist discovery in order to keep irrelevant material from
reaching the public domain. Efforts to avoid discovery or limit its
scope may also add greatly to the transaction costs of litigation.
Providing that orders protecting confidentiality do not remain in
effect after final disposition unless separate particularized findings
are made by the court also complicates and prolongs the litigation
process. Courts will be bogged down in considering such matters, and
attorneys will invest considerable time and effort at additional costs
to the litigants. Consumers will end up paying higher prices because of
increased legal fees.
The amendment also discourages settlements by barring agreements
between parties that purport to restrict disclosure of information to
Government agencies.
Finally, this amendment adds to the costs of litigation--and
exacerbates problems of delay--by allowing any person to intervene in a
product liability action to participate in proceedings considering
limitation of access to records. Although facilitating opportunities
for some third parties to intervene in limited circumstances may be
justifiable, the unlimited intervention mechanism this amendment
establishes needlessly encumbers the litigation process.
Although I am committed to facilitating public access to relevant
safety-related information, this shotgun approach to a complex subject
is not the answer. Issues of confidentiality implicate not only the
public's right to know but also the rights of victims to lead private
lives and the rights of American corporations to protect proprietary
information from foreign competitors; American jobs may depend on it.
Next week, the Judicial Conference of the United States will be
considering proposed changes in rule 26(c) of the Federal Rules of
Civil Procedure relating to protective orders. We should not
precipitously preempt that process today.
I urge my colleagues to vote against this amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. SCHUMER. Mr. Chairman, I yield 3 minutes to the gentlewoman from
Illinois [Mrs. Collins], a coauthor of the amendment and ranking member
of the former Committee on Government Operations, which is now the
Committee on Government Reform and Oversight.
(Mrs. COLLINS of Illinois asked and was given permission to revise
and extend her remarks.)
Mrs. COLLINS of Illinois. Mr. Chairman, one of the most questionable,
if not unethical practices in product liability suits today is the use
of court orders to bar public disclosure of manufacturer's information
concerning product safety.
These orders result where, in a claim involving a defective product,
the plaintiff's attorney, for example, needs documents and other
evidence to establish a claim. Often, the manufacturer-defendant will
seek a court order that requires the plaintiff, at the end of the case,
to destroy or return to the manufacturer the evidence, without making
it public. Since the plaintiff's attorney has a duty to protect the
interests of his or her client--as opposed to those of the public at
large--that attorney acquiesces to this request and agrees to seek the
court order. The agreements are blessed by the court and then the
documents are placed under confidential seal. Thus, access to product
information comes at a heavy price.
In an interesting book describing litigation of asbestos cases, these
bargaining tactics and their consequences that are harmful to the
general public were graphically illustrated. After a Federal judge
literally locked the lawyers in a room for 16 hours a day, 5 days a
week, for 3 weeks, the parties agreed to a financial settlement of
certain worker claims. In exchange, the plaintiff's attorneys agreed
that whatever evidence they obtained from discovery could not be passed
along to subsequent claimants. All papers were then sealed by the
court.
One of the plaintiff's lawyers, acknowledging he had made a serious
mistake in agreeing to the settlement terms, later said of the court's
action:

As a result, the disposition of Richard Gaze--a company
physician--which provided powerful evidence of what the
Pittsburgh Corning people really knew about asbestos disease,
and when they knew it, remained under wraps for the next 5\1/
2\ years.

Indeed, during that time period, the company denied to hundreds of
claimants that it had any knowledge of this hazard until the mid-
1960's, a contention that plaintiff's lawyers obviously could not
rebut.
Unfortunately, this is not an isolated case. A serious design defect
in the heating systems of Chevy Corvairs, first discovered in the mid-
1960's, was not disclosed until 1971 because of a protective order. In
another instance, involving the crash of several Pan Am 707's an
attorney said that if certain in-house and FAA reports had not been
sealed, ``no one would have ever gotten on a Pan Am plane again.''
Similar orders were also entered into in Dalkon Shield cases. The list
goes on and on.
It is time we put a halt to these orders, Mr. Chairman. The Schumer-
[[Page H2928]] Doggett-Collins amendment before you would do just that.
Our amendment would prevent the sealing of court records in all
product liability actions, except under limited circumstances. Such
court records could be sealed only through a court order in those
instances in which, first, the order would not restrict the disclosure
of information which is relevant to public health or safety, or second,
the need to maintain confidentiality would substantially outweigh the
public interest in disclosing potential health or safety hazards, and
the order would be no broader than necessary to protect the privacy
interest asserted.
The benefits of this amendment are numerous. First, it will promote
greater public safety. If repeated litigation demonstrates that a
product has a serious design flaw, or contains inadequate warnings, the
public will be appraised of this information and can take appropriate
action. Similarly, liberal disclosure will put pressure on a
manufacturer to correct dangerous aspects of a product which might not
be changed if the manufacturer could easily avoid the responsibility
for its flaws.
The amendment will streamline the litigation process. Parties and
courts involved in the trial of subsequent cases over the safety of a
product will no longer face timeconsuming and costly discovery
procedures. They will not have to re-create the same information or
relocate identical documents, starting from scratch. Consequently,
attorney's fees will be reduced, and the chose of whether or not to
bring a product liability claim to court will not be based on the
ability to afford one.
The backlog of cases often faced by courts would be reduced and
fairer and more consistent verdicts may result since juries would have
the same facts before them.
Mr. Chairman, this issue's importance is reflected by the American
Bar Association's recommendations, stemming back to 1986, that courts
allow disclosure of relevant product information. The Schumer-Doggett-
Collins amendment offers many positive benefits to the public, foremost
of which is enhancement of public safety.
I urge support for this amendment, Mr. Chairman. It is time we let
the sun shine in on corporate secrecy.
Mr. HYDE. Mr. Chairman, I am pleased to yield 3 minutes to the
gentleman from Wisconsin [Mr. Sensenbrenner], a member of the
committee.
Mr. SENSENBRENNER. Mr. Chairman, I would like to make two points.
First, under the present procedure, whether or not court records are
sealed is a matter of judicial discretion. I believe it ought to be
kept that way. The judge who presided over the case, and assuming that
there is a settlement offer that is coming before the court for
approval, makes a determination on whether or not sealing the records
is a reasonable request, and I think we ought to, in this instance,
trust the judges to represent what is in the public interest.
This has to be done on a case-by-case basis. That is not to say that
all records should be sealed, but it also is not to say that all
records should be open, which is what the gentleman from New York is
proposing.
The second problem with this amendment is, I think, what the
gentleman from New York is trying to do is to do the work for lawyers
in subsequent lawsuits on the same issue. Rather than doing their own
discovery and findings out their own facts, they can simply go to the
courthouse and rummage through the records that are already on file.
Consequently, they end up not having to do as much work.
Mr. Chairman, we all know that most of these types of cases are taken
on a contingency fee basis. By opening up the records and not having
the lawyers do the work that they would have to do, they are going to
end up spending less time, but their fees are not going to be reduced,
because the fees are a certain percentage of the amount that is
recovered.
For all these reasons, I think this amendment is a bad one, and ought
to be defeated.
Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The gentleman yields back 1 minute to the gentleman
from Illinois.
Mr. SCHUMER. Mr. Chairman, I yield the remainder of my time to the
gentleman from Texas [Mr. Doggett], who has been a leader on this
issue, and has provided invaluable help and assistance on this
amendment.
The CHAIRMAN. Based on the 15 seconds consumed by the gentleman from
New York [Mr. Schumer], the gentleman from Texas [Mr. Doggett] is
recognized for 3\3/4\ minutes.
Mr. DOGGETT. Mr. Chairman, the philosophy of this amendment is
embodied in the first sentence, which is to empower individual
consumers with the information to avoid defective products; court
records in all product liability actions are presumed to be open.
The thrust of this amendment is that if we empower people to be
responsible, to have the information to avoid defective products, they
avoid litigation, and trial lawyers and all the problems that the
authors of this legislation say their legislation is designed to
resolve.
It is rather shocking to hear a series of contradictions from those
who oppose the amendment. First they tell us that we should trust the
judges. Mr. Chairman, if we trusted the judges of the 50 States, we
would not be here this afternoon with this piece of legislation in the
first place. The whole theory of House Resolution 1075 is that this
body does not trust the judges of the 50 States, nor the 50
legislatures.
If we are going to address the problem as they see it, as they see
fit to do it, why do we not try to do something constructive? That is
what this amendment does. It says secrecy is not in the interests of
the American people.
In fact, court records across this country, and this is not an
anecdote, it is based on fact, court records across this country hide
facts that literally kill and maim thousands of people in this country.
Two States have done something about it. The State of Florida passed
a statute on the subject, and they have done a great deal to focus a
little Florida sunshine, which is what we are trying to copy in this
piece of legislation, so people are not deceived by facts that are
sealed and hidden away in some dusty file drawer from the people that
it could protect.

{time} 1400

The second State is my own State of Texas, where we chose to do it by
trusting the judges in a court rule of procedure to deal with this
problem.
Of course what we do in this amendment does relate to court rules of
procedure just as the rest of the bill does in dealing with bifurcation
of punitive damages which is a rule of procedure that the majority has
not the least bit of concern about interfering with the States on that.
The suggestion that this particular amendment would open all records
belies the very words of the amendment. It does not do that. There are
legitimate privacy interests in every lawsuit. There are legitimate
trade secrets. All that we ask is that the better law of the Federal
jurisdictions, the law that prevails I think in most Federal courts
today, be codified in this statute as we are codifying other law, and
require the trial judge to do what only judges can do if they act in
their proper role, and, that is, to balance the interest. Is the
public's interest in avoiding more deaths and more injuries? Does it
outweigh whatever interest is claimed by the manufacturer?
Let me give Members some specific examples of where this kind of
amendment, if it had been the law of this land, would have made the
difference and would have prevented the destruction, interference and
harm of thousands of lives.
One of these examples is the whole problem with breast implants. In
1984, 8 years before the major crisis over breast implants, there was
information available concerning the danger of these implants and it
was locked up in San Francisco in a vault, sealed in the first places
of this litigation. That information could have been there so that
those women avoided those breast implants in the first place. Instead,
we have the literal and physical scars on many American women that
would have never been there had they known the dangers that were locked
up in those file drawers.
Another good example comes from the State of Florida, where it
enacted this statute, where one pharmaceutical manufacturer of an
arthritis medication actually convinced a court judge to prohibit any
of the documents, not from being shared with Ralph Nader
[[Page H2929]] but from being shared with the Federal Food and Drug
Administration so that they could do something about
it. Indeed, the Food and Drug Administration learned much of the
problems with breast implants, not from anything filed there but from
what was sealed and secreted away in that vault in San Francisco.

That is the kind of thing that is happening in this country ever
single day where people come in with one price to settle a lawsuit if
the documents are open and one price if they are sealed.
Of course the person who is facing large medical bills, a serious
threat to their earnings stream, many times is encouraged to take the
higher price. But somewhere in all this the public interest gets left
out. The role that we could play is by empowering citizens across this
country to protect their own interests by knowing of the dangers that
they face in the marketplace, making an informed decision, not locking
this away but opening it up.
I would trust the judge to use this statute as we propose it through
this amendment to carefully balance the interest, but to assume and
presume that this Government operates best when it operates in the
sunshine, when it operates in the open. That is what this amendment is
all about, against secrecy, in favor of empowering the people of this
country to protect themselves.
It is incredible that it would not be accepted because it represents
true commonsense legal reform.
Mr. HYDE. Mr. Chairman, I yield such time as he may consume to the
distinguished gentleman from Ohio [Mr. Oxley], and I ask that the
gentleman yield to me briefly.
Mr. OXLEY. I yield to the gentleman from Illinois.
Mr. HYDE. I thank the gentleman for yielding. I would simply like to
state the rule 26(c) of the Federal Rules of Civil Procedure has to do
with protective orders and it provides the trial judge with authority
in an appropriate case to seal documents or not to seal them. I prefer
to leave it to the trial judge who is on the firing line and has the
case before him or her and can make these decisions based on the type
of case, the type of information, the demands of privacy, the
embarrassment, the humiliation, the revelation of proprietary
information or not. These are tough decisions, they are difficult
decisions, and why should we make it for the judge and require the
disclosure of these things?
I personally would like to know the formula for making Coca-Cola. I
would suggest that has some monetary value. I would suggest the Coca-
Cola people want to keep it quiet. In a lawsuit, why require its
disclosure, if it is not essential to the litigation?
I yield to my friend, the gentlewoman from Chicago, IL.
Mrs. COLLINS of Illinois. I thank the gentleman for yielding. But,
you know, if it were found that there was something in Coca-Cola that
was killing folk, I certainly would want everybody to know about that.
Mr. HYDE. I certainly would expect our counsel or the plaintiff's
counsel to urge the trial judge to disclose that if it was----
Mrs. COLLINS of Illinois. And I would urge them not to----
The CHAIRMAN. The Chair observes that the gentleman from Ohio [Mr.
Oxley] controls the time.
Mr. HYDE. The Chair is correct. I certainly should not have yielded,
but she looked at me and I could not say no.
Mrs. COLLINS of Illinois. I know I have great charm. I thank the
gentleman for recognizing it.
Mr. HYDE. I thank the gentleman for yielding.
Mr. OXLEY. Mr. Chairman, I had a judge tell me one time that a poorly
settled lawsuit is much better than a well-tried one. I found in my
experience that that was the case.
Indeed this provision, if it were to be adopted, the Schumer
amendment, would clearly discourage the parties from considering
whether that case should be settled. It seems to me that our public
policy ought to be encouraging settlements, not discouraging
settlements.
Judge Higginbotham, from the fifth circuit, testified on the Senate
side as the chairman of the Advisory Committee on the Federal Rules of
Practice and Procedure. He testified that his advisory committee had
studied this particular idea and had found that no change was needed to
the basic approach to the issuance and the use of protective orders.
In particular he stated that the results of these studies had shown
that there was no need for these provisions and that they would create
more burdensome and costly discovery as well as greater burdens on the
court system.
Mr. Chairman, this amendment makes a mockery of our system of justice
by allowing third-party special interests unlimited access to private
corporate documents.
The gentleman previously had stated that one of the States that he
pointed out that had changed the rules was Florida. In Florida, a trial
lawyer recently testified that it has resulted in negative and
confusing experiences that have discouraged out-of-court settlements.
I would suggest that the reason why 39 out of 41 State legislatures
have rejected the type of change that the gentleman from New York would
ask for is precisely because it would discourage the ability of
companies and people involved in a lawsuit, to encourage them to come
to a conclusion and to settle out of court.
I would think the gentleman from New York would want to have these
kinds of settlements and not discourage those kind of settlements out
of court and having to go to a trial and use up a lot of the resources
of the court.
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. OXLEY. I yield to the gentleman from New York.
Mr. SCHUMER. I thank the gentleman for his courtesy in yielding.
Does the gentleman not think that if these records were opened,
particularly in some of the egregious cases, it would actually reduce
litigation because you would not have to go through the same discovery
and the same process over and over and over again?
First it would reduce it in that people would not use the product,
but second, once they did, it would greatly shorten whatever kind of
trial time we would need. Why go over it 100 times?
The only other point I would make to the gentleman is that we are not
opening all records. We are just changing the burden of proof when the
health and safety, in effect changing the burden of proof when the
health or safety of someone is at stake.
I await, I am sure, the gentleman's thoughtful and carefully
considered answer.
Mr. OXLEY. Let me just simply respond by saying that Judge
Higginbotham's advisory committee that did a serious study on exactly
what the gentleman from New York would try to do came to the very solid
conclusion as he testified in the other body that it would have a
deleterious effect on the litigation system and it would in fact
discourage out-of-court settlements. This is somebody who has studied
the issue, who has been a Federal judge, a well-regarded Federal judge,
and I think that we ought to take his advice very carefully, as well as
the 39 out of the 41 States that have essentially rejected the
gentleman from New York's recommendations.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from New York [Mr. Schumer].
The question was taken; and the Chairman announced that the noes
appeared to have it.

recorded vote

Mr. SCHUMER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN. This will be a 17-minute vote.
The vote was taken by electronic device, and there were--ayes 184,
noes 243, not voting 7, as follows:
[Roll No. 220]

AYES--184

Abercrombie
Ackerman
Baldacci
Barcia
Barrett (WI)
Becerra
Beilenson
Bentsen
Berman
Bevill
Bishop
Bonior
Borski
Boucher
Brewster
Browder
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Bunn
Cardin
Chapman
Clayton
Clement
Clyburn
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
Cramer
Danner
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Dicks
Dixon
Doggett
Dooley
Doyle
Duncan
[[Page H2930]] Durbin
Edwards
Engel
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Fox
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gibbons
Gonzalez
Gordon
Graham
Green
Gutierrez
Hall (OH)
Hamilton
Harman
Hastings (FL)
Hayes
Hefner
Hilliard
Hinchey
Holden
Hoyer
Jackson-Lee
Jacobs
Jefferson
Johnson (SD)
Johnson, E.B.
Johnston
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kleczka
Klink
Klug
LaFalce
Lantos
Lewis (GA)
Lipinski
Lofgren
Luther
Maloney
Manton
Markey
Martinez
Mascara
Matsui
McCarthy
McDermott
McHale
McNulty
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Minge
Mink
Moakley
Moran
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Payne (VA)
Pelosi
Peterson (FL)
Pomeroy
Poshard
Rahall
Reed
Reynolds
Richardson
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
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--243

Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Brownback
Bryant (TN)
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chambliss
Christensen
Chrysler
Clinger
Coble
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Crane
Crapo
Cremeans
Cubin
Cunningham
Davis
Deal
DeLay
Diaz-Balart
Dickey
Dingell
Doolittle
Dornan
Dreier
Dunn
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Goss
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hancock
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Istook
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King
Kingston
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Laughlin
Lazio
Leach
Levin
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
Livingston
Longley
Lucas
Manzullo
Martini
McCollum
McCrery
McDade
McHugh
McInnis
McIntosh
McKeon
Metcalf
Meyers
Mica
Miller (FL)
Molinari
Mollohan
Montgomery
Moorhead
Morella
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Orton
Oxley
Packard
Parker
Paxon
Peterson (MN)
Petri
Pickett
Pombo
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schiff
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
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer

NOT VOTING--7

Andrews
Chenoweth
Clay
LoBiondo
Lowey
McKinney
Rangel

{time} 1428

Mr. BARTLETT of Maryland changed his vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
personal explanation

Mrs. LOWEY. Mr. Chairman, I unavoidably missed rollcall vote No. 220.
Had I been there, I would have voted ``aye.''
The CHAIRMAN. It is now in order to consider amendment No. 5 printed
in House Report 104-72.

Amendment Offered by Mr. Conyers

Mr. CONYERS. 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 Mr. Conyers: Page 13, redesignate
section 110 as section 111, and insert after line 2 the
following:

SEC. 110. FOREIGN PRODUCTS.

(a) General Rule.--In any product liability action for
injury that was sustained in the United States and that
relates to the purchase or use of a product manufactured
outside the United States by a foreign manufacturer, the
Federal court in which such action is brought shall have
jurisdiction over such manufacturer if the manufacturer knew
or reasonably should have known that the product would be
imported for sale or use in the United States.
(b) Admission.--If in any product liability action a
foreign manufacturer of the product involved in such action
fails to furnish any testimony, document, or other thing upon
a duly issued discovery order by the court in such action,
such failure shall be deemed an admission of any fact with
respect to which the discovery order relates.
(c) Process.--Process in an action described in subsection
(a) may be served wherever the foreign manufacturer is
located, has an agent, or transacts business.

The CHAIRMAN. Pursuant to the rule, the gentleman from Michigan [Mr.
Conyers] and a member opposed will each be recognized for 5 minutes.
The Chair recognizes the gentleman from Michigan [Mr. Conyers].
{time} 1430

Mr. CONYERS. Mr. Chairman, this is a very important amendment. I
apologize for having such little time.
This amendment makes sure that foreign manufacturers comply with the
U.S. Court rules if they choose to have their goods sold in this
country, and that includes discovery, which is one of the most
important parts of court rules, if there is a lawsuit against a foreign
manufacturer.
Our hearings revealed that many times our liability laws are of
little use against foreign companies because it is so difficult to
obtain jurisdiction over them and obtain discovery of the documents
necessary to establish legal liability. And that is why within my 5
minutes I have asked the former chairman of the Committee on Energy and
Commerce, the gentleman from Michigan [Mr. Dingell], and the gentleman
from Illinois [Mr. Durbin] to share this time with me.
Mr. Chairman, I think my amendment will make sure that foreign firms
can be brought to justice in this country just as American companies
can be.
Mr. Chairman, I yield 2 minutes to the gentleman from Michigan [Mr.
Dingell].
Mr. DINGELL. I thank the gentleman for yielding this time to me.
Mr. Chairman, this is a fair amendment. It treats American
corporations and foreign corporations in American courts exactly the
same way. If you are interested in fairness, this is an amendment to
vote for because it says foreign corporations must make the same
disclosures in American courts under discovery process that must be
made by American corporations.
If you are interested in competitiveness, this is an amendment on
which you should vote. The argument for this legislation is that it is
going to contribute to competitiveness. Well, if it is going to do so,
it should do it fairly and completely. This says that foreigners do not
get a greater advantage in dealing with American courts and American
litigants than the foreign corporation. It says they have got to make
the same discovery. Discovery is absolutely essential to the judicial
process. Without fair discovery, there can be no fair judicial process,
and without discovery in product liability suits, there can clearly be
no discovery.
Without this amendment, what the bill will say is American
corporations in court on product liability suits involving perhaps the
same matter that might be involved with the litigation by a foreign
corporation, have to disclose their whole case, but foreign
corporations do not.
If you want American corporations to be competitive in a market in
which foreigners sell better than $500 billion
[[Page H2931]] worth of goods, my suggestion is that you should then
vote for this amendment. It is fair, it protects American corporations,
it contributes to competitiveness, and it is in the interest of the
United States.
Vote for the Conyers amendment.
The CHAIRMAN. The Chair inquires, is there a Member who wishes to
manage time in opposition to the amendment?
Mr. HYDE. I do, Mr. Chairman.
The CHAIRMAN. The distinguished gentleman from Illinois [Mr. Hyde],
chairman on the Committee of the Judiciary, is recognized for 5
minutes.
Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I oppose the amendment offered by the gentleman from
Michigan because it raises significant constitutional and international
law questions, represents a serious potential irritant in our bilateral
relations with other countries, and raises the specter of foreign
retaliation against American firms. For the United States to take
unilateral action that is likely to be perceived as overbearing in
character and constituting an affront to other nations is shortsighted
and counterproductive.
The due process clause of the fifth amendment and principles of
international law are implicated when we purport to confer jurisdiction
on a U.S. court over a foreign manufacturer based merely on the fact
that the manufacturer knew or reasonably should have known that the
product would be imported into the United States. The criteria for U.S.
jurisdiction in the amendment would even embrace situations where a
manufacturer might not want its product imported into this country but
knew or reasonably should have known that that eventuality would
materialize in spite of its wishes.
The extent to which American statutes apply to foreign nationals
already is a point of contention in our relations with other countries.
Prudence dictates that we proceed cautiously in this arena rather than
act precipitously without adequate consideration. Although the author
of this amendment offered another amendment in the Committee on the
Judiciary markup relating to service of process on a foreign
manufacturer, our committee did not have the opportunity to give any
consideration to the proposal now presented to this body.
There are internationally recognized procedures for Americans,
litigating matters in the United States, to obtain relevant information
or material from foreign countries. These procedures involve going
initially to an American court--with the discovery request eventually
being presented to the appropriate foreign court.
Many countries react negatively to U.S. discovery procedures--and
efforts to give extraterritorial effect to discovery orders of U.S.
courts, by deeming failure to comply as an admission, fail to show
appropriate deference to the sensibilities and prerogatives of other
countries. Our own discovery practices have been subject to severe
criticism even within the United States--and efforts to export them in
circumvention of the courts of a foreign country are unjustified. The
extent to which failure to furnish material is deemed an admission
under proposed section 110(b) is overbroad, in any event, because the
admission embraces any fact with respect to which the discovery order
relates even though the testimony, document, or other thing that is
sought may turn out to be irrelevant.
The potential for foreign retaliation cannot be overlooked when we
contemplate the possibility of foreign countries taking the position
that American firms must respond in foreign courts--under foreign law--
when the particular product is sold or used there.
The new proposed section also raises significant interpretive
problems when we try to give content to the term ``foreign
manufacturer.'' U.S. manufacturers, for example, often have affiliates
in other countries that manufacture component parts. The ambiguity of
the reference to foreign manufacturer in proposed section 110
undoubtedly would precipitate much litigation.
It makes much more sense, in my judgment, to place primary emphasis
in resolving this type of issue on international conventions and
bilateral agreements. This body is not in a position today to
contribute in a helpful way to addressing this subject.
I urge the defeat of the amendment.
Mr. CONYERS. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, what we just heard explained as the reason for opposing
this amendment is absolutely astonishing. We are saying we should not
subject a foreign manufacturer to our legal process because of free
trade considerations. Now, ladies and gentlemen, if we are prepared to
say that they should have a more lenient way in our courts than our own
manufacturers, I will be astounded to hear such a statement.
Mr. Chairman, I yield the balance of my time to the distinguished
gentleman from Illinois [Mr. Durbin].
Mr. DURBIN. I thank the gentleman for yielding this time to me.
Mr. Chairman, the position taken by the Republicans in opposition to
the Conyers amendment is going to give free trade a bad name. If
foreign corporations want to sell their products to Americans in
America, they should be subject to our laws.
Consider this possibility: There is a collision in my hometown of
Springfield between a car made in Detroit and one made in Tokyo. People
are severely injured. There is a suspicion that one of these cars had
some type of defect in its brakes, for example, but we are not sure
which one. So the person who is injured goes to court and sues both the
American car company and the Japanese car company. Guess what? You can
discover all the documents in the world from the American car company
to find out whether you have a claim. But as soon as you try to get the
Japanese car makers to supply this information, they say, as the
gentleman from Illinois [Mr. Hyde] said, ``No, no, no, it is a matter
of international treaty. You can't find this out. You have to go to
Tokyo.''
We bought the car in Springfield, but you have to go to Tokyo for
discovery. Let me tell you what we are talking about here is
concealment and evasion. If my colleagues want to get up here, wave
their American flags, and vote ``Buy American'' day in and day out, for
goodness sakes, take a look at what this amendment says. If foreign
corporations want to sell products to American consumers, why in the
world should they not comply with American law?
The CHAIRMAN. In order to close debate, the gentleman from Illinois
[Mr. Hyde] is recognized for 1 minute.
Mr. HYDE. Mr. Chairman, this amendment is unfair, it violates due
process by allowing suits against corporations that ``should have
known'' their products would be sold in the United States. It violates
the fundamental principles of fairness, and it subjects corporations to
suits that might never have intended to do business over here.
I know the distinguished gentleman from Illinois [Mr. Durbin] who
just spoke is familiar with the Hague Convention on the taking of
evidence abroad. He would not intentionally want to violate those rules
of discovery of foreign corporations which already exist. The amendment
is unnecessary. It casts too large a net. We are subject to
retaliation. There is no definition of a foreign manufacturer.
There are just so many things wrong with this that I urge a ``no''
vote.
The CHAIRMAN. All time has expired on this amendment.
The question is on the amendment offered by the gentleman from
Michigan [Mr. Conyers].
The question was taken; and the Chairman announced that the ayes
appeared to have it.

Recorded Vote

Mr. HYDE. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 258,
noes 166, not voting 10, as follows:

[Roll No. 221]

AYES--258

Abercrombie
Ackerman
Allard
Andrews
Bachus
Baesler
Baldacci
Barcia
Barrett (WI)
Bateman
Becerra
Beilenson
Bentsen
Bereuter
Berman
Bevill
Bishop
Blute
Boehlert
Bonior
Borski
Boucher
Brewster
Browder
Brown (CA)
Brown (FL)
Brown (OH)
Brownback
Bryant (TX)
Bunn
Cardin
Chambliss
Chapman
Chenoweth
Clay
Clayton
Clement
Clinger
Clyburn
[[Page H2932]] Coleman
Collins (IL)
Collins (MI)
Condit
Conyers
Cooley
Costello
Coyne
Cramer
Crapo
Danner
de la Garza
Deal
DeFazio
Dellums
Deutsch
Diaz-Balart
Dicks
Dingell
Dixon
Doggett
Dooley
Doolittle
Doyle
Duncan
Durbin
Edwards
Emerson
Engel
Ensign
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Foglietta
Forbes
Ford
Fowler
Fox
Frank (MA)
Frost
Furse
Gallegly
Gejdenson
Gephardt
Geren
Gibbons
Gillmor
Gilman
Gonzalez
Gordon
Graham
Green
Gunderson
Gutierrez
Hall (OH)
Hamilton
Harman
Hastings (FL)
Hayes
Hayworth
Hefley
Hefner
Hinchey
Hobson
Holden
Horn
Hostettler
Hoyer
Hunter
Jackson-Lee
Jacobs
Jefferson
Johnson (SD)
Johnson, E. B.
Johnston
Jones
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kildee
Kleczka
Klink
LaFalce
Lantos
Laughlin
Levin
Lewis (GA)
Lincoln
Lipinski
Lofgren
Longley
Lowey
Luther
Maloney
Manton
Markey
Martinez
Mascara
Matsui
McCarthy
McDade
McDermott
McHale
McInnis
McIntosh
McKinney
McNulty
Meehan
Meek
Menendez
Metcalf
Meyers
Mfume
Miller (CA)
Mineta
Minge
Mink
Moakley
Mollohan
Montgomery
Murtha
Nadler
Neal
Ney
Oberstar
Obey
Olver
Ortiz
Orton
Owens
Pallone
Parker
Pastor
Payne (NJ)
Payne (VA)
Pelosi
Peterson (FL)
Peterson (MN)
Petri
Pickett
Pombo
Pomeroy
Poshard
Pryce
Rahall
Ramstad
Reed
Regula
Reynolds
Richardson
Riggs
Rivers
Roberts
Roemer
Rohrabacher
Rose
Roth
Roukema
Roybal-Allard
Royce
Rush
Sabo
Sanders
Sawyer
Scarborough
Schiff
Schroeder
Schumer
Scott
Serrano
Shuster
Sisisky
Skaggs
Skelton
Slaughter
Smith (MI)
Spratt
Stark
Stearns
Stenholm
Stokes
Studds
Stupak
Tanner
Tate
Tauzin
Taylor (MS)
Tejeda
Thompson
Thornton
Thurman
Torres
Torricelli
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Walsh
Wamp
Ward
Waters
Watt (NC)
Waxman
Weldon (PA)
Williams
Wilson
Wise
Wolf
Woolsey
Wyden
Wynn
Yates

NOES--166

Archer
Armey
Baker (CA)
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bilbray
Bilirakis
Bliley
Boehner
Bonilla
Bono
Bryant (TN)
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Christensen
Chrysler
Coble
Coburn
Collins (GA)
Combest
Cox
Crane
Cremeans
Cubin
Cunningham
Davis
DeLay
Dickey
Dornan
Dreier
Dunn
Ehlers
Ehrlich
English
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Ganske
Gekas
Gilchrest
Goodlatte
Goodling
Goss
Greenwood
Gutknecht
Hall (TX)
Hancock
Hansen
Hastert
Hastings (WA)
Heineman
Herger
Hilleary
Hoekstra
Hoke
Hutchinson
Hyde
Inglis
Istook
Johnson (CT)
Johnson, Sam
Kasich
Kelly
Kim
King
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Linder
Livingston
Lucas
Manzullo
Martini
McCollum
McCrery
McHugh
McKeon
Mica
Miller (FL)
Molinari
Moorhead
Morella
Myers
Myrick
Nethercutt
Neumann
Norwood
Nussle
Oxley
Packard
Paxon
Porter
Portman
Quillen
Quinn
Radanovich
Rogers
Ros-Lehtinen
Salmon
Sanford
Saxton
Schaefer
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Skeen
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stockman
Stump
Talent
Taylor (NC)
Thomas
Thornberry
Tiahrt
Torkildsen
Upton
Vucanovich
Waldholtz
Walker
Watts (OK)
Weldon (FL)
Weller
White
Whitfield
Wicker
Young (AK)
Young (FL)
Zeliff
Zimmer

NOT VOTING--10

Baker (LA)
DeLauro
Flake
Hilliard
Houghton
Kennelly
LoBiondo
Moran
Rangel
Towns

{time} 1504

Messrs. PAXON, COBLE, and CHRYSLER changed their vote from ``aye'' to
``no.''
Messrs. BLUTE, WAMP, JONES of North Carolina, CHAMBLISS, POMBO,
GALLEGLY, ROTH, PETRI, HORN, HAYWORTH, RAMSTAD, RIGGS, ROHRABACHER,
HOBSON, McINTOSH, ROYCE, BEREUTER, CRAPO, CLINGER, and BACHUS, Ms.
PRYCE, Mrs. CHENOWETH, and Mrs. FOWLER changed their vote from ``no''
to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
personal explanation
Mr. MORAN. Mr. Chairman, during rollcall vote No. 221 on H.R. 956 I
was unavoidably detained. Had I been present I would have voted
``aye.''
The CHAIRMAN. It is now in order under the rule to consider amendment
No. 6 printed in House Report 104-72.

amendment offered by mr. watt of north carolina

Mr. WATT of North Carolina. 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. Watt of North Carolina: Page 17,
lines 16-17, strike ``by clear and convincing evidence''.
Page 20, lines 4-11, strike the section in its entirety and
renumber the subsequent sections accordingly.

The CHAIRMAN. Pursuant to the rule, the gentleman from North Carolina
[Mr. Watt] will be recognized for 10 minutes, and a Member opposed will
be recognized for 10 minutes.
The Chair recognizes the gentleman from North Carolina [Mr. Watt].
Mr. WATT of North Carolina. Mr. Chairman, I yield myself 4 minutes.
Mr. Chairman, let me put this in perspective for my colleagues,
because this started out to be a part of a three-amendment package.
Unfortunately, two of the three amendments the Committee on Rules did
not see fit to make in order. So I want to talk a minute about the
other two amendments and put this in context.
No. 1, this bill clearly preempts State law insofar as substantive
law is concerned on products liability and in the area of punitive
damages. But the bill actually goes beyond that to preempt State law,
procedural law, by not only telling the States what standard of proof
will be required, but also what the burden of proof will be in their
courts.
The bill then, after it has preempted both procedural and substantive
State law, says you cannot have access to the Federal courts under any
circumstances to do any of this, so in effect it mandates the State
courts not only the substance of what they shall apply as law, but the
procedure by which they must apply the substantive law.
In North Carolina, in punitive damages cases, the burden of proof is
beyond a preponderance of the evidence. That is the standard you must
meet to win a case in North Carolina and in most State courts. This
bill takes the standard and raises it to a standard of clear and
convincing evidence, and by doing so not only preempts the substantive
law of the State, but also preempts the procedural law of the State.
For my colleagues who have any respect for States' rights, it is one
thing to say we will tell you what law to apply. It is an entirely
different thing to say to the States we will tell you how to apply that
law and how much of the evidence will be required to win a case and how
you should try the case.
My colleagues, what I am trying to do by striking this clear and
convincing evidence standard which is in this bill is to protect the
integrity of our law in North Carolina insofar as we can do so to make
sure that we at least begin to maintain the integrity of our procedural
laws in North Carolina, even if my colleagues will not respect the
substantive law in North Carolina.
Mr. Chairman, I reserve the balance of my time.
Mr. HYDE. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN. The gentleman is recognized for 10 minutes.
Mr. HYDE. Mr. Chairman, I thank the chairman for yielding me this
time.
The amendment offered by the gentleman from North Carolina would
strike section 201 of the bill, the clear and convincing evidence
standard in punitive damages cases. This is an intermediate burden of
proof that is higher than preponderance of the evidence, the general
rule in civil cases, and a lower standard than proof beyond
[[Page H2933]] a reasonable doubt, which is the burden in criminal
cases. Because punitive damages are not designed to compensate injured
parties, but rather to punish or to deter egregious conduct, a higher
threshold than that required for establishing a right to compensation
seems entirely appropriate. It is inconsistent with our concept of
fairness to impose punishment in the form of punitive damages merely on
the basis of showing a probability, perhaps a 51-percent likelihood.
The discussion of this subject in the American Law Institute
Reporters' Study on Enterprise Responsibility for Personal Injury in
1991 has this to say:

In the case of punitive damages, the immediate victim's
interests are not as important as society's need for optimal
care, which includes avoiding overdeterrence and undue risk
aversion by defendants to the detriment of people who need
their goods and services. While the full-blown retributive
rationale for punitive damages might suggest imposition of
the criminal law standard of proof ``beyond a reasonable
doubt,'' what is at issue here is a civil monetary penalty
against an organization, not the criminal condemnation and
deprivation of liberty (or even life) of an individual.
Consequently, we endorse the emerging consensus among legal
scholars, practitioners, and state legislators in favor of an
intermediate ``clear and convincing evidence'' burden of
proof.

That is exactly what we have in this bill.
The report of the Special Committee on Punitive Damages of the
American Bar Association, its section on litigation, reached the same
result. What they said in their report:

Because one of the purposes of punitive damages is
punishment, the committee feels that it is important that
persons who are not guilty of conduct warranting an award of
punitive damages should not be punished. The value in
ensuring that innocent defendants are not held liable for
punitive damages overrides the effects of a small number of
instances where guilty defendants might not be held liable.
The committee concludes, therefore, that the ``clear and
convincing'' burden of proof is appropriate for an award of
punitive damages.

That is what we have in this legislation. If we allow punitive damage
awards based on too loose an evidentiary standard, we risk punishing
defendants unfairly, and exacerbate pressures to offer settlements in
cases of tenuous liability. Consumers of goods and services often end
up paying the cost of inappropriate awards of punitive damages. For
these reasons, I believe the standard of clear and convincing evidence
is fair and reasonable. It is not a mere preponderance; it is not
beyond a reasonable doubt; it is right in the middle, clear, and
convincing evidence. The American Bar Association, recommends it; the
American Law Institute recommends it; and I recommend it.
Mr. Chairman, the amendment offered by the gentleman from North
Carolina would strike from section 201 of the bill the ``clear and
convincing evidence'' standard in punitive damages cases. This is an
intermediate burden of proof that is a higher standard than
``preponderance of the evidence,'' the general rule in civil cases, and
a lower standard than ``proof beyond a reasonable doubt,'' the burden
in criminal cases.
Because punitive damages are not designed to compensate injured
parties but rather punish or deter egregious conduct, a higher
threshold than that required for establishing a right to compensation
seems entirely appropriate. It is inconsistent with our concept of
fairness to impose punishment, in the form punitive damages, merely on
the basis of showing a probability--perhaps a 51-percent likelihood.
The discussion of this subject in the American Law Institute
Reporters' Study on Enterprise Responsibility for Personal Injury
[1991] is particularly pertinent:

[I]n the case of punitive damages, the immediate victim's
interests are not as important as society's need for optimal
care, which includes avoiding overdeterrence and undue risk
aversion by defendants to the detriment of people who need
their goods and services. While the full-blown retributive
rationale for punitive damages might suggest imposition of
the criminal law standard of proof ``beyond a reasonable
doubt,'' what is at issue here is a civil monetary penalty
against an organization, not the criminal condemnation and
deprivation of liberty (or even life) of an individual.
Consequently, we endorse the emerging consensus among legal
scholars, practitioners, and state legislators in favor of an
intermediate ``clear and convincing evidence'' burden of
proof.

The Report of the Special Committee on Punitive Damages of the
American Bar Association Section of Litigation [1986] reached the same
result. That report concludes:

Because one of the purposes of punitive damages in
punishment, the committee feels that it is important that
persons who are not guilty of conduct warranting an award of
punitive damages should not be punished. The value in
insuring that innocent defendants are not held liable for
punitive damages overrides the effects of a small number of
instances where guilty defendants might not be held liable.
The committee concludes, therefore, that the ``clear and
convincing'' burden of proof is appropriate for an award of
punitive damages.

If we allow punitive damages awards based on too loose an evidentiary
standard, we not only risk punishing defendants unfairly but also
exacerbate pressures to offer settlements in cases of tenuous
liability. Consumers of goods and services often end up paying the
costs of inappropriate awards of punitive damages.

For all these reasons, I believe the standard of ``clear and
convincing evidence'' is fair and reasonable. I urge the defeat of the
pending amendment.
{time} 1515

Mr. BERMAN. Mr. Chairman, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from California.
Mr. BERMAN. The gentleman makes a very good, well-documented case for
the appropriateness of the clear and convincing standard.
Mr. HYDE. I thank the gentleman.
Mr. BERMAN. But what he has not said one word about is why we should
be pushing our judgment onto a State in an area of which there is no
Federal interest in deciding whether it wants a higher standard or a
lower standard.
Mr. HYDE. Reclaiming my time, Mr. Chairman, there is a great interest
in standardizing the elements of proof. We are trying to have a
products liability and litigation standard that transcends the 50
boundaries, so as to not have 50 separate standards. It seems to me,
when you get to the subject of punitive damages, which can affect the
entire stream of commerce, it is beneficial to have a standard level of
proof.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, I yield 2 minutes to the
gentleman from Virginia [Mr. Scott].
Mr. SCOTT. Mr. Chairman, I think we need to put this amendment and
others into context, because this is not the only bill that we have
passed regarding this subject. We have the loser pays bill that is
designed to get rid of frivolous lawsuits, but it also has an impact on
lawsuits like this.
If you had a case, for example, that you could win under the present
law and this change comes about, you had a case that was previously a
winner, now is a loser on the punitive damages. And if you failed to
settle the case for what was offered and because of this higher
standard, you come in a little bit under what was offered, you now have
a frivolous lawsuit, in which case you have to pay both sides
attorney's fees.
Mr. Chairman, there is a case in 1984 where a plaintiff presented
evidence in a case involving bandages that had been contaminated and
they had bought the bandages, the warehouse, they had already been
notified about the contamination. The quality control advisor had told
them that the bandages were contaminated. And they were used, sold
anyway, and a person was injured. Damages totaled, medical damages of
only $4,200. But if that case had not been settled, and they received
punitive damages under the present law, if this amendment is not
adopted and they lost the case because of the higher standard, that
would now be a frivolous case and they could be in a situation where
they are paying not only their attorney's fees but the other attorney's
fees.
Mr. Chairman, I would hope that we would leave it up to the States,
not change the standard and not turn the clock back on consumer
protection, because the fact that these cases can be brought means that
other consumers can have bandages that are not contaminated, because
the companies have not had to pay the punitive damages.
Mr. Chairman, this is a very valuable amendment. I hope we leave it
up to the States to decide what the standard ought to be.
Mr. HYDE. Mr. Chairman, would the Chair advise how much time I have
left?
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] has 5 minutes
remaining, and the gentleman from North Carolina [Mr. Watt] has 4
minutes remaining.
[[Page H2934]] Mr. HYDE. Mr. Chairman, I yield myself 1 minute.
I just wish to say, we are talking about punitive damages, which can
have a serious impact on the economy, on jobs. They can extend, and do
extend, well beyond the borders of a State. The purpose of this
legislation is to standardize, as much as possible, in a fair way, the
elements of proof that impact on our economy. If we want to have 50
patchwork sets of laws to deal with the economy and deal with products
liability, why, I suppose we can. But the purpose of this legislation
is to assist manufacturers, to give some certitude, some
predictability, to do away with lawsuit abuse, forum shopping.
Therefore, I must resist the gentleman's amendment.
Mr. WATT of North Carolina. Mr. Chairman, I yield 1\1/2\ minutes to
the gentlewoman from North Carolina [Mrs. Clayton].
Mrs. CLAYTON. Mr. Chairman, I rise in support of the Watt amendment.
The bill before us would take certain legal standards in a direction
that is inconsistent with our system of justice. First, under the bill,
the burden of proof in awarding punitive damages would be imposed by
the Federal Government, thereby preempting the States from regulating
this area. And, second, the bill imposes an awkward standard of proof
in civil litigation that would make it unusually and unfairly difficult
for victims to recover.
The Watt amendment corrects these imperfections.
The bill establishes a standard of ``clear and convincing'' evidence
as the burden of proof for the award of punitive damages. A victim
would have to show that the defendant, first, specifically intended to
cause harm and, second, manifested a conscious, flagrant indifference
to the safety of others.
These new requirements would totally change the punitive damages
burden of proof in each of the 50 States. It has been my understanding,
Mr. Chairman, that the majority has been pressing to return power to
the States, not to take it away. The bill language takes power from the
States and imposes a federally created standard.
More importantly, however, the bill creates a new standard in civil
litigation. Currently, the standard is ``preponderance of the
evidence.'' Apparently, under the bill, the preponderance standard
would apply in the case in the main, but the ``clear and convincing''
standard would apply in assessing punitive damages. That is an awkward
way to proceed and, in my view an unfair and unequitable way to
proceed.
If you support the rights of States, and if you support a level
playing field among litigants, support the Watt amendment.
Mr. HYDE. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Ohio [Mr. Hoke], a member of the committee.
Mr. HOKE. Mr. Chairman, I think we have forgotten again what the
basis is of punitive damages. Punitive damages comes from the doctrine
of punishment which is really a quasi-criminal remedy. It is not
strictly a civil remedy. That is the whole purpose of raising the
standard of proof.
As we all know, lawyers on this committee know that the standard of
proof, when it comes to proving a crime, is one of ``beyond a
reasonable doubt.'' And when you are merely proving a civil case, it is
the ``preponderance of the evidence.'' Well, ``clear and convincing''
is in between.
We are not talking about compensation here. We are talking about
punishment. If we are going to go to a standard of proof that is going
to mete out punishment, then we should require that that standard of
proof be higher than the normal standard of proof that you find in a
civil case.
While you can talk about States' rights or you can make other
arguments until your heart is content, the fact is that what is really
going on here is the need to have a standard of proof which meets the
remedy. And the remedy is punitive, punishing--punishing the
wrongdoer--if we are going to go to that point, after having
compensated the victim for either his or her personal injuries or for
property damages, to have a higher standard of proof. Otherwise, it is
simply not fair and it is a way of using the civil justice system as a
substitute for the criminal justice system in a way that is completely
unintended, never was intended by our justice system and simply will
not work.
Finally, it will undermine the confidence of the public in a system
when they cannot predict what the outcomes are going to be, when they
do not know what is going to happen and when they know that it is
easier to get a punitive damage award for punishment at the civil bar
than it is to actually convict someone of a crime at the criminal bar.
For all those reasons, I very strongly urge that we defeat this
amendment.
Mr. WATT of North Carolina. Mr. Chairman, I yield 1 minute to the
gentleman from California [Mr. Berman].
Mr. BERMAN. Mr. Chairman, I listened to the gentleman from Ohio and I
finally got it. New Jersey has a law that provides punitive damages
uncapped for suits against sexual predators. They have a standard of
``preponderance of the evidence.''
How can we allow 50 different States to have 50 different standards
against sexual predators? Sexual predators should know what the
uniform, nationwide, 50-State standard is for punitive damages. This is
a punitive kind of a thing. We have to protect these people against
actions against them. Stream of commerce? Come on. Give me a break.
Mr. WATT of North Carolina. Mr. Chairman, I yield 1 minute to the
gentleman from Texas [Mr. Doggett] .
Mr. DOGGETT. Mr. Chairman, at the same time last year I sat on the
highest State court in the State of Texas, struggling with this very
issue. Our court looked at what the standard should be on the question
of punitive damages. It looked at ``clear and convincing evidence.'' It
looked at burden by ``a preponderance.'' It looked beyond ``a
reasonable doubt,'' and it chose not to pursue this standard.
Other States have chosen to pursue the ``clear and convincing''
standard. There are some good arguments for it. But the one thing that
is clear and very convincing about this debate is that our States are
being denied that right and that people that come here praising the
10th amendment are shredding it in the course of this debate and are
saying that State jurists and legal scholars and State legislators
around this country shall not have the right to set the standard that
will apply to their citizens.
So much of this debate is build on the theory that we not only need
trickle-down economics, that what we need is trickle-down government
and that it ought to trickle down from Washington instead of gushing up
from the people and their State and local leaders.
I reject that, as this amendment does.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself the balance
of my time.
The CHAIRMAN. The gentleman from North Carolina [Mr. Watt] is
recognized for 1 minute.
Mr. WATT of North Carolina. Mr. Chairman, it is clear that this is
not about what the appropriate standard should be for burden of proof
for punitive damages. The issue is not what that appropriate standard
should be. The issue is, who ought to be setting that standard? If
Members believe that the States have a place in our federation, which
is what I have heard over and over and over again, I submit to my
colleagues that the States ought to be determining for themselves what
their own burdens of proof are and that we ought not at this level, at
the Federal level, to be telling them that.
Regardless of whether we think it ought to be one thing or the other,
higher or lower, the States have the right to make this decision, not
my colleagues here in this body.
Mr. HYDE. Mr. Chairman, I yield the balance of my time to the
distinguished gentleman from Wisconsin [Mr. Sensenbrenner].
The CHAIRMAN. The gentleman from Wisconsin [Mr. Sensenbrenner] is
recognized for 2 minutes.
Mr. SENSENBRENNER. Mr. Chairman, I am shocked at listening to the
argument from the gentleman from North Carolina [Mr. Watt] and the
gentleman from Texas [Mr. Doggett]. That was the same argument that was
used 30 years ago in this Chamber by those who were opposed to the
civil rights legislation that revolutionized our society.
[[Page H2935]] This Congress, 30 years ago used the commerce clause
for passing the Civil Rights Act of 1964, one which opened up public
accommodations, lunch counters, mom and pop cafes, local city buses to
people of all races without discrimination. And that is one of the
things that this Congress can take pride in doing.
What we are proposing to do here is to use the commerce clause for
something that is just as much interstate commerce as the civil rights
legislation. And that is to try to have a uniform standard throughout
the country on punitive damages so that there will not be forum
shopping in a State that has a lower standard on what has to be proven
in order to get punitive damages.
There are a number of States that have adopted the clear and
convincing standard, including California, and Colorado has adopted the
beyond a reasonable doubt standard for punitive damages.
What will happen in the States that have adopted a higher standard
than preponderance of the evidence is that those manufacturers will end
up paying much higher product liability insurance premiums even though
the people in that State will not be able to enjoy what they are paying
for.

{time} 1530

Consequently, you are going to be seeing people in California, which
has passed a clear and convincing evidence standard, through their
higher consumer prices, benefiting the people in the other States that
have not. This issue should be federalized, and the amendment should be
defeated.
The CHAIRMAN. All time has expired.
The question is on the amendment offered by the gentleman from North
Carolina [Mr. Watt].
The question was taken; and the Chairman announced that the noes
appeared to have it.

recorded vote

Mr. WATT of North Carolina. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN. This is a 17-minute vote.
The vote was taken by electronic device, and there were--ayes 150,
noes 278, not voting 6, as follows:

[Roll No. 222]

AYES--150

Abercrombie
Ackerman
Andrews
Baldacci
Becerra
Beilenson
Bentsen
Berman
Bevill
Bishop
Bonior
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Cardin
Chapman
Clay
Clayton
Clyburn
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
de la Garza
Deal
DeFazio
DeLauro
Dellums
Deutsch
Dicks
Dingell
Dixon
Doggett
Doyle
Engel
Eshoo
Evans
Farr
Fattah
Fields (LA)
Filner
Flake
Foglietta
Ford
Frost
Furse
Gejdenson
Gephardt
Gibbons
Green
Gutierrez
Harman
Hastings (FL)
Hayes
Hefner
Hilliard
Hinchey
Holden
Hoyer
Jackson-Lee
Jefferson
Johnson (SD)
Johnson, E.B.
Johnston
Kanjorski
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kleczka
Klink
LaFalce
Lantos
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Maloney
Manton
Markey
Mascara
Matsui
McCarthy
McDermott
McKinney
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Minge
Mink
Moran
Nadler
Oberstar
Olver
Ortiz
Orton
Owens
Pallone
Pastor
Payne (NJ)
Payne (VA)
Pelosi
Reed
Reynolds
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schroeder
Schumer
Scott
Serrano
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tejeda
Thompson
Thornton
Thurman
Torres
Towns
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Williams
Wise
Woolsey
Wyden
Wynn
Yates

NOES--278

Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Borski
Boucher
Brewster
Browder
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chambliss
Chenoweth
Christensen
Chrysler
Clement
Clinger
Coble
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Cramer
Crane
Crapo
Cremeans
Cunningham
Danner
Davis
DeLay
Diaz-Balart
Dickey
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Durbin
Edwards
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fazio
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Fox
Frank (MA)
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Gonzalez
Goodlatte
Goodling
Gordon
Goss
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hamilton
Hancock
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Horn
Hostettler
Hunter
Hutchinson
Hyde
Inglis
Istook
Jacobs
Johnson (CT)
Johnson, Sam
Jones
Kaptur
Kasich
Kelly
Kim
King
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Laughlin
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
Livingston
Longley
Lucas
Luther
Manzullo
Martinez
Martini
McCollum
McCrery
McDade
McHale
McHugh
McInnis
McIntosh
McKeon
McNulty
Metcalf
Meyers
Mica
Miller (FL)
Moakley
Molinari
Mollohan
Montgomery
Moorhead
Morella
Murtha
Myers
Myrick
Neal
Nethercutt
Neumann
Ney
Norwood
Nussle
Obey
Oxley
Packard
Parker
Paxon
Peterson (FL)
Peterson (MN)
Petri
Pickett
Pombo
Pomeroy
Porter
Portman
Poshard
Pryce
Quillen
Quinn
Radanovich
Rahall
Ramstad
Regula
Richardson
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schiff
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skaggs
Skeen
Skelton
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
Torricelli
Upton
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wilson
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer

NOT VOTING--6

Cubin
Graham
Hall (OH)
Houghton
LoBiondo
Rangel

{time} 1548

The clerk announced the following pairs:
On this vote:

Mr. Rangel for, with Mrs. Cubin against.

Mr. POMEROY changed his vote from ``aye'' to ``no.''
Mr. FOGLIETTA changed his vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
personal explanation

Mr. LoBIONDO. Mr. Chairman, I was granted a leave of absence through
4 o'clock this afternoon. I would like the Record to reflect that had I
been present I would have voted ``Yes'' on rollcall No. 217, ``Yes'' on
rollcall No. 218, ``No'' on rollcall No. 219, ``No'' on rollcall No.
220, ``Yes'' on rollcall No. 221, and ``No'' on rollcall No. 222.
The CHAIRMAN. It is now in order under the rule to consider amendment
No. 7 printed in House Report 104-72.

amendment offered by ms. furse

Ms. FURSE. 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 Ms. Furse: Page 17, strike line 22 and
all that follows through line 2 on page 18 and redesigate the
succeeding subsections accordingly.

The CHAIRMAN. Pursuant to the rule, the gentlewoman from Oregon [Ms.
Furse] and a Member opposed will each be recognized for 15 minutes.
The Chair recognizes the gentlewoman from Oregon [Ms. Furse].
Ms. FURSE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, my amendment lifts this bill's caps on punitive damages
because the cap in this bill discriminates against women, children,
retirees, and low-wage workers. My amendment does not change the high
standards of proof needed to get punitive damages.
[[Page H2936]] What are punitive damages? They are damages the court
sets as a punishment for conscious, flagrant indifference to the safety
of others. In the few cases where they have been awarded, just 15
nationwide in 1994, they have proved to be effective. They have caused
important changes in articles that people use or come in contact with,
and these changes have saved lives.
This Republican bill for the very first time ties punitive damages to
economic damages in such a way that it discriminates because it sets
these punitive damages in such a way that injuring a rich person is
punished more heavily than injuring a poor person. I ask Members, is
that fair? Is that the American way of justice?
Under the Republican bill, the punishment of a conscious indifference
to the safety of a person whose economic damages were $1 million could
be capped at $3 million. Yet the punishment for the same conscious,
flagrant indifference to the safety of a person whose economic damages
were only $10,000 would be capped at $250,000.
Why? Why would we do that? I want to remind my colleagues that women,
children, retired persons, people who earn less money than others would
all have far smaller economic damages than a person who makes a great
deal of money, $1 million a year, say.
I am in favor of some cap on punitive damages, but not a cap that
discriminates against women and children and low-wage workers.
My amendment is simply a fair amendment. It believes that when we
punish people for their flagrant disregard for the safety of the people
who use a product that they will be punished fairly. I ask a ``yes''
vote on the Furse-Mink amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. HYDE. Mr. Chairman, I rise in opposition to the Furse amendment.
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] will be
recognized for 15 minutes to manage the opposition to the Furse
amendment.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, this amendment eliminates one of the most
important features of this bill: the cap on punitive damages. Under
section 201(b), a punitive damages award cannot exceed three times the
award for economic loss, or $250,000, whichever is greater. Without a
cap on punitive damages, our ability to compete in international
markets is compromised, the settlement value of cases is inflated,
consumers pay higher prices, and defendants face risks out of
proportion to injuries sustained.
U.S. competitiveness is compromised because many countries of the
world do not recognize the concept of punitive damages at all. We, in
the United States, allow virtually unlimited punitive damages. The
settlement value of cases is greatly inflated because defendants feel
pressure to settle cases with very tenuous liability rather than face
the possibility of high punitive damages awards. American consumers pay
higher prices because American businesses, from manufacturers to
service providers, factor their punitive damages exposure into their
costs.
Punitive damages are not designed to compensate for losses. They are
designed to punish wrongdoers, not compensate victims. The provisions
in H.R. 956 do not affect, in any way, a victim's full recovery of
complete economic damages, such as medical costs and lost wages, or
noneconomic damages, such as for pain and suffering and emotional
distress.
Even, would you believe, the Washington Post editorial staff supports
punitive damages reform. Just last Wednesday they wrote that punitive
damages reform is ``long overdue, guidelines and limits must be set.''
Due process must limit States' authority to impose punitive damages.
In a recent case, Pacific Mutual Life Insurance versus Haslip, the U.S.
Supreme Court held that the due process clause limits the ability of
States to impose punitive damages. The Court expressed concern about
punitive damages, which have run wild, and made it clear that this was
an area calling for reasonable and rational reform.
Punitive damages impede quick settlements. Under today's system,
punitive damages vary so greatly and are so uncertain they get in the
way of quick settlements.
These damages are a total wild card in today's lawsuits. Because
under the current system, no one has any idea of what a final punitive
damage verdict might be, both sides find it difficult to reach the
agreement necessary for speedy resolution.
I urge a ``no'' vote on the Furse amendment which removes from the
bill the reasonable limits on punitive damage awards.
Mr. Chairman, I reserve the balance of my time.
Ms. FURSE. Mr. Chairman, I yield 5\1/2\ minutes to the gentlewoman
from Hawaii [Mrs. Mink].
(Mrs. MINK of Hawaii asked and was given permission to revise and
extend her remarks.)
Mrs. MINK of Hawaii. Mr. Chairman, I thank the gentlewoman for
yielding me time.
I am very proud to rise in support of the Furst amendment which I
also submitted to the Committee on Rules for consideration. Under our
system of justice, individuals who are injured have the absolute right
to go to court to seek compensation for damages that they have
suffered. This is a basic right under our American system of law and it
is a right that has to be defended, and that is why the gentlewoman
from Oregon [Ms. Furse] and I are here today, defending the basic
fundamental right of all Americans to have the same equal provisions of
justice applied to all of us irrespective of whether we work or do not
work, whether we are men or women, poor or rich, young or old. The
system of justice has to be equal. This section that we are seeking to
strike from the bill is an absolute discriminatory provision which goes
against women who are homemakers or women who are low-wage earners,
children, elderly, and the poor in our society.
I find it very difficult to understand why this provision was added
to the bill except perhaps it helps insurance companies. Because as I
understand the majority party and those that I have worked with over
the years, they are champions, absolute champions of individual rights.
Besides that, they belabor the point that they do not want interference
from the Federal Government of the rights and prerogatives of State
governments. This is exactly what we are trying to strike out of the
bill, an absolute invasion on the prerogatives of the State to decide
how they want to apply this concept of punitive damages under State
law.
I believe that punitive damages are appropriate and that the State
statutes ought to govern how they are to be applied. States have
enacted them. They have worked under punitive laws setting up standards
and whatever. I do not understand where the justification is for now
coming in and overturning all of these State statutes. In fact, when
you look at the records of the number of punitive awards that have been
made in the last 25 years, there have been only 355 such punitive
damage awards. Half of them have been either reduced or overturned. So
where is this overwhelming necessity to supplant the State laws with
now the wisdom of the Congress of the United States? I submit that the
case has not been made for such intervention.

{time} 1600

The courts ought to be allowed to determine whether punitive damages
ought to be leveled and what the damages should be dependent on the
egregiousness of the injuries sustained by the victims. There should be
no limits and if there has to be one, certainly it has to be
nondiscriminatory.
Limits that are discriminatory should be banned under any concept of
equal justice in America. Where people are allowed to receive more
damages, punitive damages because of their economic status, because
they are a CEO or they are a rich attorney, is simply not fair. The
economic standing of the individual who has gone to court and supported
the concept of punitive damages and won that concept by the court
should not have those damages limited because they are poor, because
they do not work, because they are children, because they are women or
because they are retired. Unfortunately this bill sets a punitive
damage cap which is unfair and only allows the rich to have the kind of
award as indicated here in the chart.
[[Page H2937]] Mr. DOGGETT. Mr. Chairman, will the gentlewoman yield?
Mrs. MINK of Hawaii. I yield to the gentleman from Texas.
Mr. DOGGETT. A couple of questions that the gentlewoman's comments
have raised. The first one is I believe every Member has received today
a package of old fashioned Girl Scout cookies. Does the gentlewoman
have any understanding of why these special interests keep hiding
behind the skirts of the Little League and outfits like the Girl Scouts
instead of fighting their own battles?
Mrs. MINK of Hawaii. I think it is basically because they cannot
stand up on their two feet and defend what they are doing to the women
and children of this country, so they are using mischievous allegations
that the Girl Scouts support this.
Mr. DOGGETT. Will the gentlewoman yield for another question?
Mrs. MINK of Hawaii. Yes, I yield to the gentleman from Texas.
Mr. DOGGETT. If the young women who are pictured on this box of Girl
Scout cookies, if they get injured and they are scarred or maimed for
life, will they get less unless the amendment is adopted than the
corporate lobbyists who sent these boxes of cookies to every Member?
Mrs. MINK of Hawaii. Unless they can prove economic damages, which
children cannot do, they will get nothing, no matter how egregious the
injury and suffering of the children, and I urge this amendment be
adopted.
Mr. HYDE. Mr. Chairman, I am pleased to yield 3 minutes to the
distinguished gentleman from Ohio [Mr. Hoke], a member of the
committee.
Mr. HOKE. Mr. Chairman, we have heard repeatedly over the past
several days of debate that there have been only 350 cases in all of
American history that have resulted in the assessment of punitive
damages and we have just heard that in fact this movement to try to put
some sort of cap on punitive damages is being brought by special
interests. But what we are not hearing about from the other side is the
biggest special interest of all in the U.S. Congress, and that is the
special interest of the trial lawyers. Two million dollars was spent by
the trial lawyers in the 1993-94 cycle supporting Democratic
candidates.
Let us look at the truth about this outrageous claim there have only
been 350 cases in all of American history resulting in the assessment
of punitive damages. That is complete hogwash and they know it is
hogwash. They know there is no central list of punitive damages
nationwide and they can pay for studies that will say whatever the
lawyers want to say.
The case the trial lawyers mentioned represents a fraction of the
type of cases in which punitive damages have been recovered. In just
the last 4 years in the State of California alone there have been 253
jury verdicts in punitive damages cases to the tune of $1.6 billion,
and in the past 2 years in four other States there have been 158
punitive damages alone. That is all punitive damage awards in just five
States since 1990.
In order to understand the rationale for capping punitive damages we
have to first look at the doctrine that underlines punitive damages
themselves. Punitive damages are meant to be punishment for wrongdoing,
the civil analog to a criminal fine. As we all know they are in
addition to compensatory damages, those are the damages that are meant
to compensate the victim for personal injury or damage to property.
Punitive damages are a civil remedy that in many ways take on the
qualities of a criminal remedy, and it is where the civil and the
criminal law intersect.
This is why there is a fundamental problem with not having some outer
limit on what the jury can render as punitive damages.
In order for our system of justice to inspire confidence in the
public, it has to be meted out in a dispassionate and evenhanded and
fairminded way which is consistent with respect to all parties in all
situations or at least as consistent as possible. But the development
of the doctrine of punitive damages in the past several decades has
actually moved us in the opposite direction and it has moved us in the
direction of unpredictability, not evenhandedness and is very much
subject to passions which can be aroused by vigorous and inflammatory
representation and counsel. To ensure public confidence in our justice
system justice cannot be subject to capricious and unpredictable
results. This is why in criminal cases we have never given juries the
unfettered ability to set maximum fines.
Ms. FURSE. Mr. Chairman, I yield 1\1/2\ minutes to the distinguished
gentleman from Oregon [Mr. DeFazio].
Mr. DeFAZIO. Mr. Chairman, in case Members have not been following
the debate closely, it has been a great break for Wall Street and the
advice of the day is buy insurance company stocks because this
legislation is a tremendous gift to the insurance companies. The
gentleman who preceded me talked about generous contributions of the
Democrats to the trial lawyers and consumers groups but what he forgot
was that more than 12 times as much money flowed from insurance
companies and other corporations to the Republican Party. And they are
getting their payoff here today.
We are going to preempt the judgment of every jury in America on this
floor today. The judgment of that side of the aisle is better than
those 12 or 10 men and women who sit in judgment of their peers. We are
throwing equal justice out the window. We are imposing caps, we are
imposing discriminatory caps, caps that say, well, if you are a middle-
income worker or you are a spouse or you are a child or a college
student, you are worth a lot less in terms of punitive damages than a
corporate executive.
That is what this amendment would overturn. Otherwise we will impose
that discrimination, we will give that benefit to the better off,
enshrine it in Federal law. We always knew the wealthy have done better
in court. Now we are going to mandate that the wealthy do better in
court.
What about the Ford Pinto? There has not been much discussion of that
down here today. Do my colleagues not think there is a place for
punitive damages when one of the largest corporations in the world
willfully, it knows that its product is defective and it will cause
death, and it willfully hides that.
Mr. HYDE. Mr. Chairman, I am pleased to yield 4 minutes to the
gentleman from Virginia [Mr. Goodlatte], and I would hope the gentleman
could tell us some insurance companies that cover punitive damages. My
understanding is they will cover negligence, but they do not cover
punitive. But apparently they do; the gentleman from Oregon said so.
Mr. GOODLATTE. I thank the chairman for yielding me this time and I
think he makes an excellent point.
This is a very important amendment to defeat, and the reason it is is
that it is going to effectively limit our ability as a country to have
a due process, a due course for setting public policy in this country.
The problem we have is that only in recent decades has it become
popular to offer up through juries multimillion dollar punitive damage
awards that have the effect of going well beyond what juries were
selected to do. And the jury system in this country is an excellent
one. It works very well when it is working to resolve disputes between
two or more people in court.
But when you arbitrarily have a system in this country where a jury
in one community in the country can impose a multimillion dollar
punitive damage award and have the effect of changing public policy in
this country, sometimes good, sometimes not so good, as in the case of
a Mercedes Benz scratch on a vehicle where a multimillion-dollar award
is made.
And how about this case that Justice Lewis Powell wrote about
involving an insurance company that appealed a jury's punitive damage
award of $3.5
million on its alleged bad faith failure to pay $1,650.22 on a $3,000
insurance claim. Now where is the predictability and fairness of this
to anybody doing business in this country, large business or small, to
say that when you have a $3,000 insurance policy, and one of your many
thousands of employees screws up and does not pay $1,650, that somebody
should be liable for $3.5 million? What kind of windfall is that to the
plaintiff in that case? It is absolutely inappropriate and it should
not be allowed. That is why these caps are important.

The gentlewoman makes a point that there is discrimination in the way
this
[[Page H2938]] is imposed, because somebody who has larger economic
damages will receive more than somebody who has smaller economic
damages.
In point of fact it could be the reverse, though, because an
executive could have very small economic damages and a janitor could
have very high medical bills and lost income and so on if it goes for
many years.
But notwithstanding that point, let me point out this: We can cure
this problem by adopting the amendment that is coming up shortly. Why
should the plaintiff receive punitive damages in the first place? The
plaintiff is rewarded for economic damages. That is the lost income
they have. That is the lost future income they have. That is the
medical bills they have and other out-of-pocket expenses. In addition,
though, they are entitled to noneconomic damages for pain and
suffering.
This is something that is beyond what the plaintiff has lost, both in
terms of their pain and in terms of their actual loss, and it ought to
be going to a public good, if it is indeed intended to punish somebody.
We can solve this by adopting the Hoke amendment which gives the
preponderance of punitive damage awards to the State, to the State
Treasury for the general public good. That is what should be done with
the punitive damage awards we allow underneath the caps and that will
solve the problem of discrimination, because plaintiffs are given
compensation based on economic damages and noneconomic damages and not
based upon punitive damage awards.
That is what Justice Powell pointed out when he wrote that
``Alabama's system,'' that is where that award was made, ``like that
employed by other States that permit punitive damages, invites
punishment so arbitrary as to be virtually random: In each case, the
amount of punitive damages is fixed independently, without reference to
any statutory limit or the punishment applied in any other case.''
Jurors award punitive damages cases, they determine the dollar amount
between zero and infinity. ``This grant of standardless discretion to
punish has no parallel in our system of justice. In the Federal system
and in most States criminal fines are imposed by judges,'' and I oppose
the amendment.
Ms. FURSE. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from
New York [Mr. Hinchey].
Mr. HINCHEY. Mr. Chairman, there is no doubt that our legal system
can and should be improved. But this measure like so much of the
Contract With America, goes too far. It is extreme, it is radical and
it is unfair. It would deny people their opportunity to go to court to
get justice.
Let me tell you a story of a person who lives near my district. Alice
Hayes, 57 years old, worked on an assembly line all her life, went to
work one day in the plastics molding factory, stuck her hands in the
machine to remove the plastic mold, and the machine came down on those
hands and severed them and her forearms as well. Alice Hayes no longer
has her hands and no longer has her forearms; she will never get those
hands back. But under the present law in New York, she at least has the
opportunity to get justice. Under this bill she will lose both, her
hands and the opportunity for justice.
This amendment at least provides some opportunity for punitive
damages, so that she could be somewhat compensated for the loss that
she has sustained. This bill will deny that opportunity.
This amendment should be passed.
Furthermore, this bill ought to be defeated.
There was another instance, an elementary school in Coldenham in
which one day the cafeteria wall collapsed and the roof came crashing
down on the children in that school. A number of them lost their lives,
others were injured.
This bill will prevent them from getting the opportunity for justice.
The amendment should be passed.
The bill should be defeated.
Ms. FURSE. Mr. Chairman, I yield 1 minute to the gentlewoman from New
York [Ms. Velazquez].
Ms. VELAZQUEZ. Mr. Chairman, I thank the gentlewoman for yielding
time to me.
Mr. Chairman, I rise in strong support of the amendment. The cap on
punitive damages is one of the most antiwomen extreme Republican
measures introduced this year. It must be removed.
Contraceptives, breast implants, and other pharmaceutical products
have been put on the market, and later found to cause very serious
injury to millions of women. Punitive damages are often the only thing
that saves millions of others.
A. H. Robbins implanted over 2 million women with Dalkon Shields--
even though the company knew that they could develop a life-threatening
uterine infection. After large punitive damage awards, they quickly
pulled the IUD from the market.
Juries award punitive damages when manufacturers act with extreme
recklessness, or conscious disregard of harm. Large awards encourage
companies to quickly pull dangerous products from the shelves. They
deter others from selling harmful devices.
Punitive damages save lives--often women's lives. I urge my
colleagues to vote for this amendment, and remove one of the worst
antiwomen measures considered by this Congress.

{time} 1615

Ms. FURSE. Mr. Chairman, I yield 1 minute to the gentlewoman from
Texas [Ms. Jackson-Lee].
Ms. JACKSON-LEE. I thank the gentlewoman for yielding this time to
me.
Mr. Chairman, I rise to ask the real question as to what we are doing
here today. First of all, because I think that we are misleading the
American people by saying that by this amendment we are removing the
element of protection under punitive damages. The States are already
handling this.
What this amendment does is it recognizes needs of women and
children, and it particularly helps me to address the questions of
Marilyn, a loving grandmother in my district in my hometown of Houston,
TX, whose faulty silicon breast implants have caused her total
disability and agony.
Marilyn's daughter, Theresa, also suffers from severe neurological
disorders that have been passed on to her by her mother. And as Theresa
breast-fed her three children, Marilyn's 5-year-old granddaughter now
shows symptoms of silicon poisoning.
Do we not realize that since 1965 to 1990 there have only been
approximately 358 punitive damages cases, and most of them have been
overturned? The real question is that we must look at whom we are
trying to address, business to business? We are willing to do tort
reform and help them, but we are also going to abuse our women and
children in the process.
Ms. FURSE. Mr. Chairman, I yield such time as he may consume to the
distinguished gentleman from Michigan [Mr. Conyers].
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Chairman, I rise in strong support of this important
Furse amendment.
Mr. Chairman, one of the most revealing features in the Republican
Contract With America is the limit on punitive damages. Because this
limit will take away one of the most effective means of protecting
Americans from the products that will kill, maim, induce sterility, or
otherwise injure.
Of course, the most profound lie being told about punitive damages is
that they are awarded too often. The truth is that punitive damages are
awarded only in rare cases. Between the years 1965 and 1990, there were
just 355 punitive damage awards in product liability cases. Excluding
asbestos cases, there were an average of only 11 such awards each year,
many of which were reduced on appeal.
In exchange for the rare egregious cases that punitive damages are
assessed, there are immeasurable gains in public safety. That's right,
this limit on punitive damages to three times economic loss or $250,000
is a massive assault on public safety. I ask you to listen closely and
I will tell you why.
Parents of America listen to this. In 1980 a darling 4-year-old girl
was permanently maimed with second and third degree burns when her
highly flammable pajamas caught fire. She merely reached across the
kitchen stove to turn off a timer. Company officials were quoted as
saying they new the pajamas were unreasonably flammable, and that
making them flame retardant was economically feasible. But they failed
to take the steps needed to protect the little girl. It took the
[[Page H2939]] sanction of punitive damages to get the company to act
responsibly and make children's pajamas safe.
Women of America remember the crime of super-absorbent tampons and
toxic shock. The manufacturers of Playtex's super-absorbent tampons
knew, according to the 10th Circuit Court's findings, that their
product could increase the risk of toxic shock but, according to the
10th Circuit Court, ``deliberately disregarded studies and medical
reports linking high absorbance tampons fibers with increased risk of
toxic shock.'' Countless of innocent women suffered. It took $10
million in punitive damages to force Playtex to take the deadly product
off the market. This is the type of crime the Republican contract would
allow to go unchecked.
Women of America will also remember breast implants that
manufacturers knew were not safe. Women were left in wheelchairs, weak,
ill, and disabled for life. Punitive damages got these off the market.
And for anyone who likes the outdoors, listen to this. Had this bill
been law during the Exxon Valdez, the punitive damage limit would have
shielded Exxon's liability to just $860 million, the equivalent of 4
minutes of Exxon's annual revenues.
And even worse, the punitive damages limit preempts all State
punitive damages laws. This bill will limit punitive damages in State
actions for sexual abuse of children [New Jersey Stat. Ann Sec. 26:5C-
14], Drunk Driving [Minnesota], for the selling of drugs on minors
[Illinois], and for much else at the State level.
This bill's obnoxiousness does not end there. It is patently
discriminatory against women as well as middle and low wage earners.
That's because punitive damages are calculated by economic damages
alone, with noneconomic damages like the loss of reproductive ability
being totally discounted. If an insurance executive making $1 million
and a middle-class housewife who stays at home taking care of her
family are both injured by the same product, the insurance executive
would be eligible for $3 million in punitive damages, whereas the
housewife eligible for only $250,000, less than 10 percent. This would
be so even if the injury resulted in the woman's sterility.
Where is this new majority's commitment to fighting these types of
crime. Why such the rhetoric when it comes to stopping crime that
occurs in the streets, but not crimes that occur in our commercial
relations.
Without this amendment, this bill will severely limit the rights of
States trying to stop child sexual abuse, of women whose reproductive
organs will be vastly undervalued, of average working Americans who
depend on our laws to deter the biggest corporations from injuring us
with defective products. I urge support of the amendment.
Ms. FURSE. Mr. Chairman, I yield 1 minute to the gentleman from
Massachusetts [Mr. Markey].
Mr. MARKEY. I thank the gentlewoman for yielding this time to me.
Mr. Chairman, if we take the case which is before us and we change it
just slightly, the business executive who was mowing the lawn and his
15-year-old son or daughter was mowing the lawn and the engine of the
lawnmower exploded, blinding the executive, blinding the daughter, the
measure of damages now would be, under this punitive new standard, that
the executive could collect his $3 million as a punitive damage. The
girl, the daughter, could only collect whatever the jury might think
she might be entitled to, but capped at her economic worth, which is $5
an hour, which is what her mother or father was paying her to mow the
lawn.
The point of a punitive suit being to send a signal to the entire
lawnmower industry to fix this engine. Now, who should collect? It
should be that little girl, not some socialistic scheme that gives the
money back to the States. It should be to that girl who had the courage
to bring the case.
Mr. HYDE. Mr. Chairman, I yield 3 minutes to the gentleman from Iowa
[Mr. Ganske].
While Mr. Ganske is approaching the well, I might add that the case
that the gentleman from Massachusetts [Mr. Markey] mentioned, the
lifetime diminution of earnings for the young girl, would amount to a
lot more than what the gentleman has on the chart.
Mr. GANSKE. I thank the Chairman for yielding this time to me.
Mr. Chairman, I rise to speak against the amendment and in support of
the bill.
For 2 days now, the opponents of this bill have brought up the issue
of breast implants.
Now, although I disagree with their interpretation of the facts, I
think the issue of silicon silastic is a good example of why we need a
product liability bill.
There has been a tremendous amount of disinformation on this issue. I
can speak from personal experience. My mother had breast cancer when
she was 23 years old. She had a breast reconstruction about 8 years
ago.
I have personally reconstructed over 200 women who have had
mastectomies for cancer.
The science shows a couple of things: First, there is no correlation
between silicon implants and cancer. There is no correlation between
silicon implants and autoimmune diseases, as attested to by the recent
statement by the American College of Rheumatology.
But I think a bigger issue--and we can disagree with these things--
but the bigger issue is this: If you get into a situation where a jury
is making this kind of decision as to whether a whole class of products
will be available or not, then that jury is legislating. And what we
have is a situation then where, if we lose, a type of class of medical
products, silicon silastic, for example, is the basic material for such
things as in-dwelling catheters for cancer patients. It covers cardiac
pacemaker batteries, for example. It is a material that makes cerebral
spinal fluid shunts for babies who have hydroencephalitis.
The point is that if you have a disagreement on a material, the
proper procedure would be for this to go through a regulatory agency
process, have a cost-benefit scientific analysis, and if there is a
disagreement, then you bring that on to the floor of the legislature to
be debated.
I think the issue is really this: that when we get involved with some
of the scientific issues, let us go through a regulatory process,
debate it on the floor of Congress. But the situation with the punitive
damages is that one jury out of 100 will make such a huge award that
their action, then, is making a determination for the whole rest of the
country in terms of a whole class of products.
That is why I would urge my colleagues to reject this amendment and
to vote for the bill.
Ms. FURSE. Mr. Chairman, I would like to close by saying that this is
such a simple amendment. In this amendment we are not talking about
whether there should be punitive damages. The Speaker who came before
me I do not think realizes that for punitive damages you have to prove
conscious, flagrant indifference to the safety of others.
What my amendment says is, if you have two cases, two cases with the
same injury, the same guilt, you should have the same punishment.
But under H.R. 956, the Republican bill, if you have two cases with
the same injury, the same guilt, you get different punishments. Why is
that? That is not justice as we know it in America.
I ask people to vote for my amendment. What my amendment says is that
every person injured has the right to the same treatment under the law.
I thank the gentleman and yield back.
Mr. HYDE. Mr. Chairman, I yield the remainder of the time to the
distinguished gentleman from Wisconsin [Mr. Sensenbrenner].
Mr. SENSENBRENNER. Mr. Chairman, the people who support this
amendment would have everyone believe that unless the amendment is
adopted, we are taking away peoples' rights to sue. That is not the
case. There is a constitutional right to sue, and even if we wanted to
take that away, which we do not, that could not be taken away under the
Constitution.
Second, those who support the amendment would have everyone believe
that there is a different standard of justice that is applied. That is
not true either. The jury makes the determination of economic damages
based upon the evidence that is placed before it. That jury cannot
discriminate based upon race, based upon age, or based upon gender. It
is based upon the evidence that is introduced in that trial and
admitted into evidence. And they make the determination on what the
economic damages are, and they issue a verdict that will make a
plaintiff who has been a victim of the negligence of another, whole.
What we are talking about here is punitive damages which are over and
above making the injured party whole,
[[Page H2940]] in placing a cap on those punitive damages. Punitive
damages are not intended as compensation, they are intended to be
punishment. In the case of Browning Ferris Industries versus Kelso,
1989, all nine members of the Supreme Court of the United States
expressed concern regarding punitive damages. Those justices are not
extremists, those justices are not Republicans, those justices look at
the law in the cases that come before them.
Justice Brennan, who is hardly a rightwing extremist, and countless
other members of the Court have stated time and time again that
punitive damages are for punishment of aggravated conduct and are a
windfall to the plaintiffs.
The impact of such a windfall recovery is both unpredictable and at
times substantial, said the court in Newport versus Fall Concerts,
1981. ``Juries assess punitive damages in wholly unpredictable amounts
bearing no necessary relation to the actual harm caused,'' said the
Supreme Court in Gertz versus Robert Welsh, Inc., 1974.
Let us put some sense in this area. Let us reject the Furse
amendment.
The CHAIRMAN. All time has expired.
The question is on the amendment offered by the gentlewoman from
Oregon [Ms. Furse].
The question was taken; and the Chairman announced that the ayes
appeared to have it.

recorded vote

Ms. FURSE. Mr. Chairman, I demand a recorded voter.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 155,
noes 272, not voting 7, as follows:

[Roll No. 223]

AYES--155

Abercrombie
Ackerman
Andrews
Baldacci
Barcia
Becerra
Beilenson
Bentsen
Berman
Bishop
Bonior
Borski
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Clay
Clayton
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Dicks
Dingell
Dixon
Doggett
Doyle
Durbin
Engel
English
Eshoo
Evans
Farr
Fattah
Fields (LA)
Filner
Flake
Foglietta
Ford
Fox
Frost
Furse
Gejdenson
Gephardt
Gibbons
Gonzalez
Green
Gutierrez
Hall (OH)
Hastings (FL)
Hefner
Hilliard
Hinchey
Holden
Hoyer
Istook
Jackson-Lee
Jefferson
Johnson (SD)
Johnson, E. B.
Johnston
Kanjorski
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Klink
LaFalce
Lantos
Laughlin
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Mascara
Matsui
McDade
McDermott
McHale
McKinney
Meehan
Meek
Mfume
Miller (CA)
Mineta
Minge
Mink
Moakley
Murtha
Nadler
Neal
Oberstar
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Pelosi
Pomeroy
Poshard
Rahall
Reynolds
Richardson
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schroeder
Schumer
Scott
Serrano
Skaggs
Skelton
Slaughter
Stark
Stokes
Studds
Stupak
Tejeda
Thompson
Thurman
Torres
Traficant
Tucker
Velazquez
Vento
Visclosky
Ward
Waters
Watt (NC)
Waxman
Williams
Wilson
Wise
Woolsey
Wyden
Yates

NOES--272

Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Bereuter
Bevill
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Boucher
Brewster
Browder
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cardin
Castle
Chabot
Chambliss
Chapman
Chenoweth
Christensen
Chrysler
Clement
Clinger
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Cramer
Crane
Crapo
Cremeans
Cunningham
Danner
Davis
Deal
DeLay
Diaz-Balart
Dickey
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Ensign
Everett
Ewing
Fawell
Fazio
Fields (TX)
Flanagan
Foley
Fowler
Frank (MA)
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Gordon
Goss
Graham
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hamilton
Hancock
Hansen
Harman
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
Kaptur
Kasich
Kim
King
Kingston
Kleczka
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
LoBiondo
Longley
Lucas
Manzullo
Martinez
Martini
McCarthy
McCollum
McCrery
McHugh
McIntosh
McKeon
McNulty
Menendez
Metcalf
Meyers
Mica
Miller (FL)
Molinari
Mollohan
Montgomery
Moorhead
Moran
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Obey
Orton
Oxley
Packard
Parker
Paxon
Payne (VA)
Peterson (FL)
Peterson (MN)
Petri
Pickett
Pombo
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Reed
Regula
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schiff
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Spratt
Stearns
Stenholm
Stockman
Stump
Talent
Tanner
Tate
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Thornton
Tiahrt
Torkildsen
Torricelli
Towns
Upton
Volkmer
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Wynn
Young (AK)
Young (FL)
Zeliff
Zimmer

NOT VOTING--7

Cubin
Forbes
Kelly
Livingston
McInnis
Morella
Rangel

{time} 1646

The Clerk announced the following pairs: On this vote:

Mr. Rangel for, with Mr. Forbes against.

Mr. CHAPMAN and Mr. TORRICELLI changed their vote from ``aye'' to
``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

____________________