[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.
  

                          ____________________