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

[Congressional Record Volume 141, Number 44 (Thursday, March 9, 1995)]
[House]
[Pages H2940-H2967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PERSONAL EXPLANATION
Mr. McINNIS. Mr. Chairman, I was unable to vote on rollcall Vote No.
223 because I was serving as the chairman pro tem of the Committee on
Rules, during this vote. Had I been present, I would have voted ``no''
on the amendment offered by Representative Furse.
The CHAIRMAN. It is now in order to consider amendment No. 8 printed
in House Report 104-72.

amendment offered by mr. hyde

Mr. Chairman, I offer an amendment at the desk, 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. Hyde: Page 3, line 12, strike
``are'' and insert ``is''.
Page 3, line 15, strike ``protect'' and insert ``project''.
Page 3, line 23, strike ``and is costing'' and insert
``causing''.
Page 4, line 18, strike ``transactions'' and insert
``transaction''.
Page 8, beginning in line 2, strike ``Except as provided in
subsection (c) in'' and insert ``In''.
Page 8, line 11, strike ``the'' and insert ``a''.
Page 18, redesignate subsection (e) as subsection (f) and
insert after line 16 the following:
(e) Exception.--
(1) Reasonable care.--A failure to exercise reasonable care
in selecting among alternative product designs, formulations,
instructions, or warnings shall not, by itself, constitute
conduct that may give rise to punitive damages.
(2) Award of other damages.--Punitie damages may not be
awarded in a product liability action unless damages for
economic and noneconomic loss have been awarded in such
action. For purposes of this paragraph, nominal damages do
not constitute damages for economic and noneconomic loss.
Page 18, line 17, strike ``Consideration'' and insert
``Considerations''.
Page 29, in lines 8 and 12, strike ``has'' and insert ``has
or should have''.

[[Page H2941]]

modification to amendment offered by mr. hyde

Mr. HYDE. Mr. Chairman, I ask unanimous consent to delete lines 1
through 9 on page 1 of my amendment in subparagraph E, and on page 2,
lines 1 through 4.
The CHAIRMAN. The Clerk will report the modification.
The Clerk read as follows:

Modification to amendment offered by Mr. Hyde: Strike out
``Page 18, redesignate'' and all that follows through the
proposed new subsection (e) of section 201.

The CHAIRMAN. Is there objection to the request of the gentleman from
Illinois?
Mr. CONYERS. Mr. Chairman, reserving the right to object, I want to
commend the gentleman from Illinois [Mr. Hyde] for this modification,
which has come about as a result of the discussions between our staffs.
I think this is a very important deletion, because it makes the
amendment more technical and takes out the part that was giving us a
lot of trouble. I commend the gentleman.
Mr. Chairman, I withdraw my reservation of objection.
The CHAIRMAN. Is there objection to the request of the gentleman from
Illinois?
There was no objection.
The CHAIRMAN. The amendment is modified.
The text of the amendment, as modified, is as follows:

Amendment offered by Mr. Hyde, as modified: Page 3, line
12, strike ``are'' and insert ``is''.
Page 3, line 15, strike ``protect'' and insert ``project''.
Page 3, line 23, strike ``and is costing'' and insert
``causing''.
Page 4, line 18, strike ``transactions'' and insert
``transaction''.
Page 8, beginning in line 2, strike ``Except as provided in
subsection (c), in'' and insert ``In''.
Page 8, line 11, strike ``the'' and insert ``a''.
Page 18, redesignate subsection (e) as subsection (f) and
insert after line 16 the following:
Page 18, line 17, strike ``Consideration'' and insert
``Considerations''.
Page 29, in lines 8 and 12, strike ``has'' and insert ``has
or should have''.

The CHAIRMAN. Pursuant to the rule, the gentleman from Illinois [Mr.
Hyde] is recognized for 5 minutes, and a Member in opposition will be
recognized for 5 minutes.
The Chair recognizes the gentleman from Illinois.
Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment consists primarily of technical
corrections to the text of H.R. 1075. It is almost exclusively
technical in nature.
In section 101, Findings and Purposes, the amendment changes the
tense of words, corrects typographical errors, and makes a plural word
singular.
In section 105, Misuse or Alteration, it removes the reference to a
nonexistent subsection (c) and says ``a'' defendant, rather than
``the'' defendant.
In the heading for subsection 201(f) the amendment makes the word
``Consideration'' plural, because there is a list of nine different
factors that the jury is directed to consider.
In section 303 which is the Definitions section of the Biomaterials
Suppliers title, the amendment makes it clear that a person would not
be a ``biomaterials supplier'' within the meaning of title III, if it
has ``or should have'' registered with the Secretary of Health and
Human Services pursuant to section 510 of the Federal Food, Drug, and
Cosmetic Act, or has ``or should have'' included a medical device on
the list of devices filed with the Secretary of HHS pursuant to section
510(j) of the same law.
Mr. CONYERS. Mr. Chairman, I move to strike the requisite number of
words.
The CHAIRMAN. Without objection, the gentleman from Michigan [Mr.
Conyers] can claim the 5 minutes in opposition to the amendment.
There was no objection.
Mr. CONYERS. Mr. Chairman, I do so, and I yield myself such time as I
may consume. Mr. Chairman, I agree that the interpretation given by the
chairman of the Committee on the Judiciary is correct. I think the
gentleman has facilitated this, with a lot of time being saved by his
having made the deletion. We have no objection to the technical
amendment, and urge support of the amendment.
I yield back the balance of my time.
Mr. HYDE. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Illinois [Mr. Hyde] as modified.
The amendment, as modified, was agreed to.
The CHAIRMAN. It is now in order to consider amendment No. 9 printed
in House Report 104-72.

amendment offered by mr. oxley

Mr. OXLEY. Mr. Chairman, I offer an amendment made in order pursuant
to the rule.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment offered by Mr. Oxley: Page 19, insert after line
19 the following:
(f) Drugs and Devices.--
(1)(A) Punitive damages shall not be awarded against a
manufacturer or product seller of a drug (as defined in
section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 321(g)(1)) or medical device (as defined in
section 201(h) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 321(h)) which caused the claimant's harm where--
(i) such drug or device was subject to pre-market approval
by the Food and Drug Administration with respect to the
safety of the formulation or performance of the aspect of
such drug or device which caused the claimant's harm or the
adequacy of the packaging or labeling of such drug or device,
and such drug was approved by the Food and Drug
Administration; or
(ii) the drug is generally recognized as safe and effective
pursuant to conditions established by the Food and Drug
Administration and applicable regulations, including
packaging and labeling regulations.
(B) Subparagraph (A) shall not apply in any case in which
the defendant, before or after pre-market approval of a drug
or device--
(i) intentionally and wrongfully withheld from or
misrepresented to the Food and Drug Administration
information concerning such drug or device required to be
submitted under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.) or section 351 of the Public Health
Service Act (42 U.S.C. 262) that is material and relevant to
the harm suffered by the claimant, or
(ii) made an illegal payment to an official or employee of
the Food and Drug Administration for the purposes of securing
or maintaining approval of such drug or device.
(2) Packaging.--In a product liability action for harm
which is alleged to relate to the adequacy of the packaging
(or labeling relating to such packaging) of a drug which is
required to have tamper-resistant packaging under regulations
of the Secretary of Health and Human Services (including
labeling regulations related to such packaging), the
manufacturer of the drug shall not be held liable for
punitive damages unless the drug is found by the court by
clear and convincing evidence to be substantially out of
compliance with such regulations.

The CHAIRMAN. Pursuant to the rule, the gentleman from Ohio [Mr.
Oxley] will be recognized for 20 minutes, and a Member opposed to the
amendment will be recognized for 20 minutes.
The Chair recognizes the gentleman from Ohio [Mr. Oxley].
Mr. OXLEY. Mr. Chairman, I rise to offer the bipartisan FDA defense
amendment, along with my colleagues Mr. Coburn, Mr. Burr, Mr. Tauzin,
Mr. Brewster, and Mr. Stenholm.
Mr. Chairman, the amendment states simply that when the manufacturer
of a drug or medical device receives pre-market approval from the FDA
and complies with all post-approval reporting requirements, the
manufacturer will not be liable for punitive damages in a civil suit.
The amendment protects the rights of plaintiffs to receive full
compensatory damages, including pain and suffering. Punitive damages
are not compensatory. They are intended to punish malicious conduct. To
bring a drug from the laboratory to the marketplace takes on average
9\1/2\ years and costs manufacturers $350 million. The sponsors and
supporters of this amendment believe that compliance with the process,
and post-approval reporting requirements, clearly demonstrate a lack of
malice. Punitive damages are quasi-criminal in nature, and careful
adherence to an expensive 10-year process is certainly not criminal.
Members have asked me, what if the manufacturer knows the drug is
dangerous, but still goes through the process and gets FDA approval?
The defense is denied in that case, as it is when a manufacturer
discovers a problem after approval. The defense only applies when the
maker of the drugs or device acts in good faith and discloses all
relevant information.
[[Page H2942]] This amendment is needed to provide some
predictability for liability in the development of life-saving drugs
and medical devices. Because of our liability lottery, drugs are more
expensive in the United States than almost anywhere on Earth. Products
are kept off the market, or withdrawn after introduction. The effect of
our liability system on drugs and medical devices was recently
summarized by the American Medical Association:

Innovative new products are not being developed or are
being withheld from the market because of liability concerns
* * * Certain older technologies have been removed from the
market not because of sound scientific evidence indicating
lack of safety or efficacy, but because product liability
suits have exposed manufacturers to unacceptable financial
risks.

Mr. Chairman, writing on punitive damage damages, Justice Lewis
Powell said, ``* * * punitive damages invite punishment so arbitrary as
to be virtually random.''
Faced with a threat of random punishment, many manufacturers are
understandably reluctant to put a new drug or device on the market. Our
amendment says to them invest $350 million, wait 9\1/2\ years, obtain
FDA approval, observe all reporting requirements, disclose fully, and
we will say you did not act wantonly or maliciously. If your product
causes injury, you are responsible for compensation. That determines
the difference between economic and noneconomic and punitive damages.
The plaintiff will be able to recover economic and noneconomic damages.
This amendment is common sense and deserves the support of this body.
I urge my colleagues to support this amendment.
Mr. Chairman, I reserve the balance of my time.

{time} 1700

The CHAIRMAN. Is there a Member who wishes to manage opposition to
the amendment?
Mr. DINGELL. Mr. Chairman, I do.
The CHAIRMAN. The gentleman from Michigan [Mr. Dingell] is recognized
for 20 minutes.
Mr. DINGELL. Mr. Chairman, I yield myself 4 minutes.
Mr. Chairman, the FDA defense has been a topic of considerable
discussion and controversy over the years. In the past I have supported
the adoption of provisions affording the FDA defense. This was done
based on my belief that strong support and appropriate oversight by the
Congress would enable the FDA to provide thoughtful, careful review for
drug and medical device approvals and scrupulous post-market
surveillance, all of which are essential to the protection of the
American consuming public.
If this were to be the case, there would be no question but what
Congress should afford the FDA approval as a defense against punitive
damages. Regrettably, that appears not, however, to be the case. Times
have changed and it appears that congressional support for FDA and
support for a strong, viable, adequately-funded, well-staffed agency is
at risk at this particular time.
We have been hearing about privatizing, cutting back, reducing and
eliminating FDA. It is my strong belief that until these questions have
been satisfactorily resolved and until we are satisfied that FDA
approval really means something, that we should not then afford a
weakening of the civil suit process which affords protection to the
American consumer from misbehavior by manufacturers of devices and
prescription pharmaceuticals.
The ability of FDA to properly process the business before them, to
see to it that the new drugs are properly approved, that all
information necessary is produced, to see to it that there is no deceit
or duplicity in the offer, to see to it that there are no changes in
the drugs as manufactured, to see to it that the Food and Drug
Administration's requirement for good manufacturing practices be met
during the manufacturing of the drugs is absolutely essential to
consumer safety. If that is to be tampered with or impaired with
through the budget process or through actions of Congress or through
less than vigorous enforcement by the administration because of lack of
adequate funds or because of congressional pressure, then clearly this
kind of amendment is not in the public interest.
I would urge, therefore, that until we have seen more fully the state
of affairs with regard to the strength and the adequacy of FDA
supervision of new drugs, new drug applications, and with regard to the
safety and adequacy of supervision by FDA of devices, that this
Congress should not relax the supervision that is given to
manufacturers of both devices and prescription pharmaceuticals until we
are more sure that the protections of FDA are meaningful and have not
been impaired by budget cuts, by reductions in the authority of the
agency, by roll back of the abilities of the agency to carry out its
responsibility or by actions like those taken more recently by the
Congress in setting up cost-benefit analyses and things of that kind.
Those are actions which are inimical to good protection of the consumer
and to assurances of adequate safety, because if FDA must take that
length of time to do these things, they will not be looking at the
question of safety of prescription pharmaceuticals or devices from the
standpoint only of health and safety of the individual who purchases
that commodity.
Mr. Chairman, I reserve the balance of my time.
Mr. OXLEY. Mr. Chairman, I yield 1 minute to the gentleman from North
Carolina [Mr. Burr].
Mr. BURR. Mr. Chairman, I rise today in support of the FDA exemption
amendment. In the past several weeks, we have made many efforts to
streamline government and to eliminate unnecessary duplication. This is
another area where we can effectively do just that.
The Food and Drug Administration has been charged with scientifically
weighing the risks and benefits that go along with the development of
pharmaceuticals and medical devices. Anyone would be hard pressed to
successfully argue that randomly selected tort juries are more
qualified to reach these difficult, scientific conclusions.
Progress comes with a certain degree of risk. Opponents of this
amendment have argued that it will limit the ability of those harmed by
a minimal risk factor to receive compensatory and non-economic damages
such as pain, suffering, and lost wages.
This amendment does not preclude their right to just compensation.
By offering this exemption from punitive damages, our amendment will
allow many people to reap the benefits of drugs and devices that
companies have not manufactured, for fear of litigation.
Support life drug research. Support a scientific balance between
benefits and risk. Support the Oxley-Burr-Coburn-Tauzin-Brewster-
Stenholm amendment to H.R. 1075.
Mr. DINGELL. Mr. Chairman, I yield 2 minutes to the gentleman from
Virginia [Mr. Scott].
Mr. SCOTT. Mr. Chairman, I just wanted to cite a case of corporate
wrongdoing that would benefit by the passage of this amendment as an
example of why it should not pass. This is the O'Gilvie versus
International Playtex case from Kansas, 1985, where Playtex voluntarily
removed from the market tampons linked to toxic shock syndrome after a
Federal court jury awarded compensatory and punitive damages. A Kansas
woman died from toxic shock syndrome using the company's super-
absorbent tampons.
Playtex had complied with FDA regulations. It had gotten that
approval fair and square. However, the jury found that the FDA
requirements only set minimum standards and mere compliance with those
standards had been inadequate under the circumstances.
Mr. Chairman, the 10th circuit, in reviewing the case on appeal,
found that there is an abundance of evidence that Playtex deliberately
disregarded studies and medical evidence linking high-absorbency tampon
fibers with increased risk of toxic shock at a time when other
manufacturers were responding to this information by modifying or
withdrawing their product. Moreover, there is evidence that Playtex
deliberately sought to profit from this situation by advertising the
effectiveness of its high-absorbency tampons when it knew that other
manfacturers were reducing the absorbencies of their products due to
the evidence of casual connection between high absorbency and toxic
shock.
Mr. Chairman, consumers are now protected from this product. With
the
[[Page H2943]] passage of this amendment, we will be turning the clock
back on consumer protection. Unfortunately, it is consistent with the
loser pays and limits on awards and other discouragements from people
bringing these meritorious suits to protect the consumer from these
products.
I hope we will defeat the amendment.
Mr. OXLEY. Mr. Chairman, I yield 1 minute to the gentleman from
Oklahoma [Mr. Coburn].
Mr. COBURN. Mr. Chairman, I want to thank the gentleman from Virginia
for bringing this up for in fact that is a misconception on the case
against the Playtex. And under this bill, they would be fully liable.
They would not be excluded under this amendment from full prosecution,
and they would have been exposed to FDA clearance and punitive damages.
This bill would not have excluded that agreement from punitive damages.
Because, in fact, they have knowledge or did have knowledge of the
worsening condition which was required to be reported to the FDA.
Mr. SCOTT. Mr. Chairman, will the gentleman yield?
Mr. COBURN. I yield to the gentleman from Virginia.
Mr. SCOTT. Mr. Chairman, if they complied and provided all of the
information and FDA approved it anyway, when there were studies that
the FDA just approved it, when the jury found that only minimum
standards were set----
The CHAIRMAN. The time of the gentleman from Oklahoma [Mr. Coburn]
has expired.
Mr. DINGELL. Mr. Chairman, how much time remains on both sides,
please?
The CHAIRMAN. The gentleman from Michigan [Mr. Dingell] has 14
minutes remaining, and the gentleman from Ohio [Mr. Oxley] has 14
minutes remaining.
Mr. DINGELL. Mr. Chairman, I yield 3 minutes to the gentleman from
California [Mr. Berman].
Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding time to
me.
Just on this last point, the exemption from immunity for punitive
damages is the defendant before or after premarket approval of a drug
or device intentionally and wrongfully withheld from or misrepresented
to the FDA information concerning such drug or device. It is not
whether or not the party knew that harm could come from the product,
whether there was any of that kind of conduct. It is withholding of
information from the FDA. That is the only escape clause here.
I disagree, from what I have heard about this case, with the
gentleman.
The point I would like to make follows up a little bit on the
gentleman from Michigan's point. We are getting, sometimes there is a
great deal of pressure on the FDA to loosen up its regulatory process
to allow drug approval quicker. In my own area where the medical device
manufacturers, they are furious and being driven crazy by the delays
they have in getting products on the market. But never one has ever
said to me that they should be able to get away from accountability and
responsibility for their negligence or avoid punitive damages for the
conduct, intentional or wanton disregard, conduct, or reckless conduct
from tort liability.
I just find it very strange that the same party that is promoting the
concept of deregulation so strongly now wants to undermine the other
way in which we can keep parties responsible to a high standard of
conduct, which is the accountability through the judicial process. When
you do both, I promise you the consequence is going to be greater
negligence, greater harm, less willingness to take the kinds of
precautions necessary to avoid danger. That is why I think this is a
bad situation.
I would like to read about one case myself. In 1980 the drug Zomax, a
painkiller, was marketed by the McNeil Drug Co. Reports in 1982 of
allergic reactions causing death and severe illness came to McNeil.
McNeil reported those adverse drug reactions to the FDA as required,
thereby not getting out of avoiding that problem of the punitive damage
suit if this were to be in effect, and the company embarked on a
massive selling campaign to get rid of the supply before the word
spread about the negative side effects. The salesmen were instructed to
not bring up the subject.
During the McNeil sales campaign 14 people died and over 400 suffered
life-threatening allergic reactions. Incidentally, McNeil
Pharmaceutical called its Zomax campaign one-eleven, representing the
$111 million sales target by McNeil.
When you have this law in place, FDA has approved it, FDA had all the
information, but Zomax acted wrongfully and in an intentional--McNeil
acted wrongfully and in an intentional fashion to market a product they
knew had adverse reactions without advising the consumers of this and
without letting the FDA know that they were increasing their marketing.
Mr. OXLEY. Mr. Chairman, I yield 1 minute and 30 seconds to the
gentlewoman from New York [Ms. Molinari].
Ms. MOLINARI. Mr. Chairman, I rise today in strong support of the
amendment of the gentleman from Ohio [Mr. Oxley], and I urge my
colleagues to include it in the bill.
The purpose of the amendment is very simple. If the FDA has approved
a drug or a device, then the manufacturer cannot be held liable for
punitive damages, unless, as in the case of the tampons and the toxic
shock syndrome, the company withheld information regarding potential
damages. This amendment in that case clearly would not apply.
Mr. Chairman, I find it disturbing that some opponents of this
amendment claim it is antiwoman. This is a provision that is prowomen.
I will tell you why.
Last year $600 million was spent on cosmetic research, $30 million
was spent on contraceptive research. Only two companies currently
perform contraceptive research. The reason why is they fear huge
punitive damages. Research in this area and in the larger area of
reproductive health is too risky for companies. And it is not just
reproductive health research. It is research on other diseases, too.
One in nine women will get breast cancer in her lifetime, and
although there are treatments, there are no cures. It frightens me that
there may be a cure out there but companies will not find it, because
the risk liability is too great. We cannot afford to let this happen,
not for breast cancer, not for uterine cancer, not for any disease that
strikes predominantly men or women.
It is a tragedy, but we should not punish companies that play by
FDA's stringent rules. If you ask me, I think it is a far greater
tragedy that young men and women die because drug companies are afraid
to pursue research.

{time} 1715

Mr. DINGELL. I yield 4 minutes to the gentleman from California [Mr.
Waxman].
(Mr. WAXMAN asked and was given permission to revise and extend his
remarks.)
Mr. WAXMAN. Mr. Chairman, let us understand that this legislation
before us today sets a very high threshold before punitive damages can
be awarded. I think what this amendment is doing is using the FDA as a
cover for manufacturers whose products have caused real harm to
consumers. Even in cases where the manufacturers' behavior has been
egregious, malicious, or knowingly negligent, there is a high standard
for collection of awards. Title II of the bill states that in order to
collect punitive damages, a claimant must be able to show by clear and
convincing evidence that a manufacturer specifically intended to cause
harm or engage in conduct that illustrated a conscious, flagrant
indifference to the safety of others.
If a plaintiff who is injured can maintain that threshold and show
that a company acted with flagrant disregard for the safety of others,
why should a drug company be protected because of the FDA approval? The
FDA approval does not mean that the FDA is there as a watchdog, to be
sure that the company, after it has that approval, is doing everything
it properly should. The FDA may never know about the complaints that
the company has had that the product that they
manufacture is now causing a lot of harm to people, yet they continue
to sell it. Should an injured consumer be punished if a company
continues to sell a product which it knows or suspects is not
performing properly, when the company was in possession of numerous
consumer complaints or other
[[Page H2944]] kinds of reports that it may, technically, not have been
``required to submit'' to the FDA?
Mr. Chairman, the FDA has very limited independent legal authority to
demand documentation from manufacturers, nor does the agency have the
resources to police these manufacturing facilities. The agency relies
on the manufacturers to be honest and to follow the rules. The majority
of them, no doubt, do that.
However, what about those cases where they do not, but they still
technically meet the test of this amendment; that is, they submitted
what was required to FDA, they have not bribed an official, they have
not lied to the FDA during the product review in order to receive an
approval? What about those cases where there is harm and that harm is a
result of the company's misconduct, or of the company's taking chances
on safety, of a company's operating just on the razor's edge of
legality?
For those cases, this bill establishes, elsewhere, a high standard
under which consumers would seek punitive damages. That standard is
sufficient to protect ethical, honest, careful companies. Such
companies do not need to hide behind the shield of this FDA defense
that this amendment would provide.
Mr. Chairman, I would like to point out that we do not have a crisis
of high punitive damages being awarded in these cases. The reports
about this kind of national crisis traceable to outlandish and numerous
awards of punitive damages are not supportable by actual data. Contrary
to what the supporters of this amendment would like us to believe,
punitive damages are not common in product liability lawsuits. In the
cases where such damages are awarded, they are not excessively high.
A number of scholarly legal studies published between 1987 and 1991
concluded that punitive damages in a variety of State jurisdictions was
awarded in no more than 8 percent of the cases. In those cases, awards
were on the average comparable in size to amounts awarded for
compensatory damages.
Mr. OXLEY. Mr. Chairman, I yield 6 minutes to my good friend, the
gentleman from Texas [Mr. Stenholm].
Mr. STENHOLM. Mr. Chairman, I thank the gentleman for yielding me
this time, and I yield to the gentlewoman from California [Ms. Harman].
Ms. HARMAN. Mr. Chairman, as a woman, mother of four, and corporate
lawyer, my life experience intersects the issues involved in this
amendment in many ways. My decision to support it was a close one for
me, and I thank my colleagues on both sides for giving me the time to
explain my views.
On the one hand, all of us are horrified by the stories of
individuals, many of them women, injured by drugs and medical devices.
However, on the other hand, there is a fundamental fairness argument,
and real evidence that our present system chills research and
development on new drugs and medical device breakthroughs which could
be enormously helpful to various at-risk communities, especially women.
This amendment is based on the view that if a drug manufacturer is in
full compliance, and I stress, full compliance with Federal regulatory
requirements, it should not be liable for damages designed to otherwise
punish that behavior. I agree. To be sure, the FDA is not all-knowing
when it comes to assuring product safety, but it is the best mechanism
we have available in balancing the social values associated with drugs
and medical devices and the unfortunate injuries which may result from
known or unknown side effects. If there are ways to improve the FDA's
performance, let us do it.
There are risk living in a modern, technologically advanced society.
I hope we can minimize those risks, but I give a very high priority to
the development of a predictable and fair system where pharmaceutical
and biotechnology firms can rely on Government approval and reasonable
limits on liability, and thus, invest the millions of dollars it takes
to develop medical breakthroughs that will benefit all our citizens.
Without these breakthroughs, women really will not have choice, none of
us will have choice. None of us will have the opportunities that our
first-rate and first-in-the-world medical system could offer.
I urge support of this amendment, and would make three related
comments about this legislation. First, I hope as it moves through the
Congress, two things will change. First, I think the noneconomic
damages, which are extremely important to women, will be brought to a
parity with economic damages, and, second, I think the cap on punitive
damages should be raised at least to $1 million. I know many of us
would have supported an amendment in this body to do so.
And third, my colleagues from California, Mr. Waxman, who preceded me
to the well, was correct in pointing out that the explosion of civil
suits has not been in the personal injury area. In California, at
least, the number of personal injury suits has been level if not on the
decline. Indeed, the number of such suits declined from 132,000 in 1988
to 88,000 in 1992. Still the bill before us is important in that it
replaces the costly patchwork of state laws with a uniform law that
speeds recovery and provides certainty to manufactures.
Mr. STENHOLM. Mr. Chairman, I yield to the gentleman from Oklahoma
[Mr. Brewster].
(Mr. BREWSTER asked and was given permission to revise and extend his
remarks.)
Mr. BREWSTER. Mr. Chairman, I rise this afternoon to support this
legislation. As a pharmacist, I know firsthand the need for the passage
of the Oxley amendment. Our country has the most rigorous drug approval
process in the world. A company which has researched and developed a
new drug spends an average of $359 million to get that drug from the
laboratory to the market.
They undertake exhaustive clinical trials involving thousands of
individuals, spanning many years, before they are able to sell the
product on the market. Often during the course of the trials problems
arise and the project is stopped. Often a treatment has been in the
research and development pipeline for many years before warning signs
or problems have arisen and the trials are halted. Such clinical trials
are similar to the gut-wrenching dry holes those of us in the oil patch
are all too familiar with.
This amendment puts no limits on actual or noneconomic damages. It
simply protects companies who have, in good faith, invested many years
of work and millions of dollars in a product, from the fear of
frivolous lawsuits and out-of-sight jury awards. I encourage my fellow
Members on both sides of the aisle to vote ``yes'' on the amendment.
Mr. STENHOLM. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I thank the gentleman from Ohio [Mr. Oxley] for his
generosity with time. I rise in strong support of the amendment. This
is an attempt to put some common sense back into our public liability
system, and to allow technology in America to move forward.
Most of the criticisms of this amendment have to be balanced with a
commonsense statement of saying that our current system is broken.
Perhaps there are weaknesses by moving forward, but in my judgment,
adopting this amendment, allowing technology to move forward, and
saying to any individual company that if you in fact have a product
that is approved under the best technology possibly available, and then
something goes wrong because Charles Stenholm uses it, at that time no
punitive damages should be allowed because you have followed the rules.
If we cannot bring ourselves to adopt this kind of legal law, we are
going to have a difficult time competing in the future marketplace.
Mr. Chairman, I rise in strong support of the Oxley-Burr-Coburn-
Tauzin-Brewster-Stenholm amendment to H.R. 956, the Common Sense
Product Liability and Legal Reform Act.
Our amendment offers a limited exemption from punitive damages for
Food and Drug Administration [FDA] approved products. Manufacturers of
drugs and medical devices are already subject to the agonizing delays
and costly bureaucratic scrutiny of the FDA approval process, in order
to determine if the benefits of a product outweigh the risks--not to
assert that the use of a product carries no risk, or that all uses,
under any circumstances are completely safe. In doing so, the FDA and
medical community decide if the risks that a product poses are socially
acceptable.
Under our current liability system, a jury second guesses this
scientific evaluation done by the medical community and can punish
manufacturers because their products are inherently risky.
[[Page H2945]] Our amendment is simple, if a manufacturer or product
seller of a drug or medical device which caused the claimants harm was
pre-market approved by the FDA, punitive damages shall not be awarded.
Opponents of this measure have said that it will prevent plaintiffs
from suing drug and device manufacturers, and that it will hurt the
consumer. This is simply not true. Punitive damages can still be sought
in appropriate cases--those where the manufacturer was at fault, either
by withholding or misrepresenting information or through participation
in fraudulent activities. More importantly, injured parties will still
be able to sue for compensatory damages. This amendment in no way
limits compensation for loss, damages, pain and suffering.
The Oxley-Burr-Coburn-Tauzin-Brewster-Stenholm amendment makes good
sense. I urge my colleagues to support this important amendment.
Mr. DINGELL. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from North Carolina [Mr. Watt].
Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for
yielding time to me.
Mr. Chairman, I rise in reluctant opposition to the amendment,
reluctant because one of the sponsors is my colleague, the gentleman
from North Carolina [Mr. Burr].
However, I have concerns about this amendment on three counts. First,
the FDA's responsibility is to set minimum standards for bringing a
product to the market, and we should note that while we are setting a
clear and convincing standard in our courts of law to win these cases,
no such standard applies to the FDA.
Second, the regulatory process is subject to political pressures,
economic pressures, and pressures that hopefully the jury system is not
subject to. We factor out all of these things in the court, we hope, to
the best extent possible, and get a fair and impartial verdict in the
process.
The third point I want to make, Mr. Chairman, is when all else fails,
I have started to read the fine print in these amendments that are
being offered. I would submit to my colleague, the gentlewoman from
California [Ms. Harman], that I do not see anything in this amendment
which talks about full compliance.
I do see a second provision in the bill that goes beyond simply FDA
approval, which says that the producer or manufacturer is exempt if the
drug is generally recognized as safe and effective, pursuant to
conditions established by the Food and Drug Administration. I have no
idea, and I would submit to my colleagues that they have no idea, what
kind of Pandora's box that opens up for litigation, because every kind
of product or drug which comes to the market that ever gets through the
process is going to be recognized, we hope, as generally safe and
effective.
Mr. Chairman, I think when we start setting one standard, clear and
convincing, to win cases, we ought to at least be holding the
regulatory bodies to that same standard if we are going to say that
compliance with their regulations will make the manufacturer immune
from liability.
Mr. OXLEY. Mr. Chairman, I yield 1 minute to the gentleman from
California [Mr. Bilbray], a valuable member of the Committee on
Commerce.
Mr. BILBRAY. Mr. Chairman, tonight we are speaking a lot about
lawyers, a lot about corporations, a lot about pharmaceutical
companies, but we are talking about consumers only as victims. However,
the victimization goes both ways, Mr. Chairman. We hear a lot about the
things that go wrong in our society when people use products. We hear
about the bad things that the consumer products do.
However, Mr. Chairman, we do not talk about the fact, about the woman
who goes to her pharmacist to be able to get a drug that she has used
for years, but that drug no longer is available to her, not because the
FDA found it not safe, not because a court found that it was not safe,
but because of the huge liability that was being created by lawsuits
that were being brought forward without merit, but with substantial
resources, to the point where they were driving these products off the
market.
Mr. Chairman, for years Bendectin has been used by pregnant women for
a long time, and it is not available today for one reason, and that is
because of lawsuits.

{time} 1730

Mr. DINGELL. Mr. Chairman, I yield 1 minute to the gentleman for
Louisiana [Mr. Tauzin], a member of the committee.
Mr. TAUZIN. I thank my good friend, the gentleman from Michigan [Mr.
Dingell], for yielding me the time.
Mr. Chairman, let me just say that when we talk about punitive
damages, we are talking about quasi-fines. Quasi-fines. It is one thing
to say that you are going to fine somebody for doing something wrong.
It is another thing to say that we are going to first authorize you to
do it as a Government agency and then allow you to be fined for doing
it even though we said it is OK to do it. That is the issue in this
debate.
The FDA goes through an extraordinary process of approving drugs for
the American public. It is a lengthy, complicated process. Once they
approve something for us, they put their stamp of approval on it,
should we as a government say now we are going to allow somebody to sue
you and collect a fine after we have authorized you to sell that
particular drug or product to the American public?
It seem a bit ludicrous. I suggest to Members that if the speed limit
says you can go 35, you ought not have to pay a fine if you have stayed
under that speed limit. That is essentially what this argument is all
about. I urge Members to adopt the amendment and make this bill a
better bill.
Mr. OXLEY. Mr. Chairman, I yield 1 minute to the gentleman from
Georgia [Mr. Norwood], a member of the committee.
(Mr. NORWOOD asked and was given permission to revise and extend his
remarks.)
Mr. NORWOOD. Mr. Chairman, I rise to strongly support the Oxley-Burr
amendment.
Mr. Chairman, I know the FDA is not perfect, I will admit that, but
if we have to choose between the FDA and tort juries, the FDA is
obviously better suited to make judgments as to what products should be
on the market. This amendment is intended to prevent tort juries from
second-guessing and overriding often very, very difficult but essential
and scientific conclusions and risk-benefit assessments the FDA must
make in approving a drug and deciding what warnings must and must not
accompany a drug.
We must pass this amendment, Mr. Chairman, for the health of our
Nation. When juries are permitted to punish defendants for conduct
approved by the FDA, substituting their amateur scientific judgment and
cost-benefit analysis for the judgment of the FDA's professional
scientists, it makes drug manufacturers very wary of producing new
products.
Mr. OXLEY. Mr. Chairman, I yield 1 minute to the gentleman from
Florida [Mr. McCollum].
(Mr. McCOLLUM asked and was given permission to revise and extend his
remarks.)
Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding me the
time.
I rise to strongly support this amendment today. It is very clear
from the work we did in the Committee on the Judiciary that this is
essential. What we are talking about is only application to punitive
damages and it is obvious that if a pharmaceutical company gets the
approval of the Food and Drug Administration for a pharmaceutical
product, then the Government has gone through about 12 years of
processing to determine if that product is indeed sound and safe.
No product is 100 percent safe, but for gosh sakes if the FDA has
approved it and sanctioned it, why should we be subjecting a
pharmaceutical company to the threat of punitive damages for something
that goes awry in that product that comes out later? We are only
stifling the opportunity to develop the diversity of new products that
we need for the health of America.
I urge in the strongest of terms that this amendment be adopted
today. It is a good, sound exemption and safeguard for the
pharmaceutical industry, for the health of the future of this country
if we give this particular protection in those cases, those limited
punitive damage cases where the FDA has approved a pharmaceutical
product.
[[Page H2946]] Mr. OXLEY. Mr. Chairman, I yield 1 minute to the
gentleman from Oregon [Mr. Cooley].
Mr. COOLEY. Mr. Chairman, before coming to Congress and being in the
cattle business for a few years, I spent 10 years as director of
regulatory affairs for an international pharmaceutical company. Our
company literally spent millions and millions of dollars in complying
with the FDA approval process. This process is the most rigorous
process in the entire world to prove safety and efficacy of a drug. If
we have no confidence in the FDA to do this, then we should find
another agency to do this job for us.
As long as a company complies with the licensing requirements and
continues the research after a drug is introduced on the market, I
cannot believe that we can have punitive damages which should be only
directed toward those companies who have reckless misconduct in the
selling and administering of the drug. Currently prices of important
drugs and medical devices are artificially high because of the cost of
the liability insurance. Under this amendment plaintiffs still will
have full compensation.
I urge passage of this amendment.
Mr. OXLEY. Mr. Chairman, I yield 30 valuable seconds to the gentleman
from Ohio [Mr. Chabot].
Mr. CHABOT. Mr. Chairman, I strongly support this amendment. It makes
no sense to allow punitive damages against companies that have acted in
good faith and gotten the FDA's approval. Most importantly, this
amendment will help those who truly need help the most, those who need
drugs which otherwise would probably not come on the market at all to
relieve agonizing pain and those who need drugs which may preserve life
itself.
The CHAIRMAN. The Chair will inform the committee that the gentleman
from Ohio [Mr. Oxley] is entitled to close debate.

parliamentary inquiry

Mr. WATT of North Carolina. Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentleman will state his inquiry.
Mr. WATT of North Carolina. My inquiry has to do with why the
gentleman on that side has the right to close debate. We are defending
the committee position on this side this time.
The CHAIRMAN. If the Chair might respond to the inquiry, the
gentleman from Ohio is the author of the amendment and there is no
official committee position that is being represented here by
opposition to the amendment. So the gentleman from Ohio is entitled to
close debate on the amendment.

point of order

Mr. WATT of North Carolina. Mr. Chairman, I make a point of order.
The CHAIRMAN. The gentleman will state the point of order.
Mr. WATT of North Carolina. Mr. Chairman, I make this point of order,
and I have already gone through this with the parliamentarian today.
The CHAIRMAN. The Chair is aware of that.
Mr. WATT of North Carolina. Any time that anyone makes a position
that is contrary to the committee's position which in this case is the
bill, and the amendment is contrary to the bill, I was told earlier
today that whoever is defending the committee's position would be
entitled to close.
The CHAIRMAN. In response to the gentleman's question, this amendment
does not strike language from the bill at all.
Mr. WATT of North Carolina. Mr. Chairman, pursuing my point of order,
the amendment on which I made the inquiry this morning did not strike
any language from the bill. It was Mr. Schumer's amendment----
The CHAIRMAN. The Chair is not aware of exactly what amendment it was
that was being discussed with the parliamentarian.
The gentleman may proceed.
Mr. WATT of North Carolina. I thank the Chair. I thought we had
gotten to the point in this body that a Member cannot even make a point
of order anymore.
The inquiry that I made this morning was on Mr. Schumer's amendment
which struck nothing from the bill, and I was told at that time by the
parliamentarian that any amendment that was contrary to the position,
and it was presumed that the position of the bill was that it would not
be amended at all, it would be the party that was defending the
committee's position, which in this case is presumed to be the bill
itself, not the amendment, that would be allowed to close.
The CHAIRMAN (Mr. Dreier). The Chair has perceived that the gentleman
from Michigan [Mr. Dingell] is not necessarily carrying the position of
the committee.
The Chair will acknowledge that it is a difficult call, but that is
the determination of the Chair.

parliamentary inquiries

Mr. FRANK of Massachusetts. I have a parliamentary inquiry, Mr.
Chairman.
The CHAIRMAN. The gentleman will state his parliamentary inquiry.
Mr. FRANK of Massachusetts. Are there any standards by which the
Chair perceives? This is a very disturbing statement the Chair has just
made.
The gentleman from Michigan is the ranking minority member, I
believe, of one of the two committees of jurisdiction over this bill,
and when we have had stated that there is nothing in the bill one way
or the other, are we totally dependent----
The CHAIRMAN. The gentleman offers a very good parliamentary inquiry.
The issue is addressed as follows:
It is the call of the Chair and it is the determination of the Chair
that the gentleman from Michigan [Mr. Dingell] does not represent the
position of the committee. It is for that reason that it has been
determined that the gentleman from Ohio [Mr. Oxley], the author of the
amendment, would be entitled to close debate on the amendment.
Mr. FRANK of Massachusetts. I have a parliamentary inquiry, Mr.
Chairman.
The CHAIRMAN. The gentleman will state his inquiry.
Mr. FRANK of Massachusetts. Mr. Chairman, we have a very important
point here, and I must say I am distressed by the tone of these
rulings. By what standards can Members know how a chairman is going to
divine whether or not someone represents the position of the committee?
Is there no objective standard as to who
represents the position of the committee when the ranking minority
member defends the position of the committee? I would point out this
amendment as I understand it was considered at least in one of the
committees and rejected by one of the committees. What are the
standards?

The CHAIRMAN. Under the rules of the House, the proponent of the
amendment has the right to close unless the committee position is being
offered by another member.
Mr. FRANK of Massachusetts. I have further parliamentary inquiry, Mr.
Chairman.
Anytime there is silence in the bill on an amendment, can we safely
assume that the proponent of an amendment will then be allowed to
close?
The CHAIRMAN. The Chair does not take that position.
Mr. FRANK of Massachusetts. Or does the chairman take the position
whatever he wants will be the case and if he wants to give his party an
advantage, he will do it?
The CHAIRMAN. The Chair has stated that the proponent of the
amendment has the right to close unless the committee position is being
represented by another Member.
Mr. FRANK of Massachusetts. But the question is, by what standard do
you determine that? My parliamentary inquiry is, are there any
standards by which you determine that? Or is it just arbitrary as it
appears to be in this case?
The CHAIRMAN. There is not an absolute objective standard that exists
for making that determination.
Mr. FRANK of Massachusetts. Is there a relative standard?
The CHAIRMAN. It is the prerogative of the Chair to make that
determination and the Chair has determined that in this case, the
proponent of the amendment, because a position of the committee is not
being represented by another Member, has the right to close.
Mr. FRANK of Massachusetts. I have another parliamentary inquiry.
The CHAIRMAN. The gentleman will state his parliamentary inquiry.
Mr. FRANK of Massachusetts. Mr. Chairman, if the Chair decides to
give partisan advantage, is there any recourse?
[[Page H2947]] The CHAIRMAN. The gentleman will state his inquiry.
Mr. FRANK of Massachusetts. If the chairman decides then to simply
follow partisan instincts, does the Member have any recourse?
The CHAIRMAN. This is the discretion of the Chair, and this is the
ruling of the Chair.
Mr. WATT of North Carolina. A parliamentary inquiry, Mr. Chairman.
The CHAIRMAN. The gentleman will state his inquiry.
Mr. WATT of North Carolina. My inquiry is, is the Chair expecting to
consult with the parliamentarian? Because the parliamentarian clearly
gave me this morning a completely contrary opinion. Is the Chair
planning to consult with the parliamentarian?
The CHAIRMAN. It is the determination of the Chair that in this
instance, the proponent of the amendment will close debate as the
committee position is not being represented by another Member.
Mr. WATT of North Carolina. I have parliamentarian inquiry, Mr.
Chairman.
My inquiry is, is the Chair planning to consult with the
parliamentarian?
The CHAIRMAN. The Chair will consult with the parliamentarian. It is
the determination, having consulted with the parliamentarian, that in
this instance the gentleman from Ohio, the proponent of the amendment,
has the right to close as the committee position is not being
represented by another Member.
Mr. WATT of North Carolina. A parliamentary inquiry Mr. Chairman.
The CHAIRMAN. The gentleman will state his parliamentary inquiry.
Mr. WATT of North Carolina. Does the Chair have some psychic
connection with the parliamentarian since nobody here has seen him
consult?
The CHAIRMAN. That is not a parliamentary inquiry.
Mr. SENSENBRENNER. Regular order, Mr. Chairman.
The CHAIRMAN. The gentleman knows that is not a parliamentary
inquiry.
Mr. OXLEY. Mr. Chairman, I yield 30 seconds to the gentleman from
Minnesota [Mr. Ramstad].
Mr. RAMSTAD. I thank the gentleman for yielding me time.
Mr. Chairman, I rise in strong support of the Oxley amendment as
cochair of the bipartisan House Medical Technology Caucus.
Why in the world, Mr. Chairman, should any manufacturer be deemed
malicious if it has complied with all regulations, reported all
relevant information, and received FDA approval to market a product?
Mr. Chairman, let's quit stifling medical innovation. Let's quit
stifling research and development, drugs and medical devices. Let's
adopt the Oxley amendment.
Mr. Chairman, I rise in strong support of the Oxley amendment, as
cochair of the bipartisan House Medical Technology Caucus. This
amendment is needed because manufacturers are currently being forced to
withhold life-saving drugs and medical devices rather than face
unlimited liability.
Why in the world should any manufacturer be deemed malicious if it
has complied with all regulations, reported all relevant information,
and received FDA approval to market a product?
The FDA defense was originally in H.R. 917 and should be part of this
important tort reform legislation. Let's quit stifling research and
development in drugs and medical devices. Let's quit stifling medical
innovation. Let's help those consumers and patients who need life-
saving drugs and medical devices.
Let's adopt the Oxley FDA amendment.
Mr. OXLEY. Mr. Chairman, I yield 30 seconds to the gentleman from
Indiana [Mr. McIntosh].
(Mr. McINTOSH asked and was given permission to revise and extend his
remarks.)
{time} 1745

Mr. McINTOSH. Mr. Chairman, I rise in support of this amendment. It
is vitally needed.
In talking with one of the leading medical device industry
specialists, Mr. Dane Miller of Indiana, he has told me it is becoming
extremely difficult if not impossible for that industry to provide
lifesaving devices because of the threat of liability. The reason: I
think liability risks are forcing the suppliers of raw materials,
companies such as DuPont and Dow Chemical which have an outstanding
record will not take the risk of providing the materials because of the
threat of liability.
I urge Members to vote in favor of this amendment.
Mr. OXLEY. Mr. Chairman, may I inquire how much time I have
remaining?
The CHAIRMAN. The gentleman from Ohio [Mr. Oxley] has 2 minutes
remaining, and the gentleman from Michigan [Mr. Dingell] has 3 minutes
remaining.
Mr. OXLEY. Mr. Chairman, I yield 30 seconds to the gentleman from
North Carolina [Mr. Heineman].
(Mr. HEINEMAN asked and was given permission to revise and extend his
remarks.)
Mr. HEINEMAN. Mr. Chairman, the FDA defense is simple and it is fair.
If the Food and Drug Administration approves a drug, then the
pharmaceutical company which manufactures that drug should not be
liable for punitive damages.
Currently the fear of unnecessary litigations stifles innovations and
limits the types of drugs which are available to the American consumer.
Without the FDA defense, beneficial drugs will be driven out of the
marketplace and manufacturers will continue to be discouraged from
developing new drugs to treat illnesses such as AIDS and cancer. I urge
my colleagues to support the amendment.
Mr. DINGELL. Mr. Chairman, I yield 3 minutes, my remaining time, to
the distinguished gentleman from Michigan [Mr. Conyers].
Mr. CONYERS. Mr. Chairman, I thank the gentleman from Michigan for
yielding me this time. He has worked on this matter for many years, and
I have noted his change of position, his reluctance now to allow FDA
approval to reign superior in this instance; we now have those who are
seeking this amendment, many of them are at the same time holding FDA
in a suspended state of animation, which could result in an important
diminution of its powers and resources and ability to do the job.
I have heard it said here on the floor several times, if there are
ways to improve the FDA's ability to get the job done, then let us do
it. But we may be going in the opposite direction. As badly as the FDA
needs support, the problem right now is whether it is going to be able
to continue funding at its present level.
So I rise in clear opposition to an amendment which will ultimately
have the effect of immunizing manufacturers of defective products who
happen to obtain FDA approval.
This amendment would provide a complete defense to liability for any
drug or medical device that received premarket approval from the FDA.
In other words, if
the FDA for whatever reason allows a defective product on the market,
the victims would not be able to sue at all. Even if both the
manufacturer and the FDA have evidence of the dangers of a product but
permitted it to be marketed anyway, the innocent, injured victim would
be left without any opportunity for compensation whatsoever.

Do the authors of this amendment really want us to place that much
faith in an underfunded Federal regulator?
It goes without saying that the amendment would have a
disproportionate impact on the ability of women in particular to
recover punitive damages which could occur from grossly negligent
conduct, since many of the cases that involve large awards involve
defective medical products placed inside women's bodies, the very
products likely to need FDA approval.
These are products such as the Dalkon Shield, the Cooper-7 IUD
device, high-absorbency tampons linked to toxic shock syndrome and
silicone breast implants. For each of these products, the manufacturer
had information indicating the dangers posed by the product.
So join me and the gentleman from Ohio in opposing this amendment.
The CHAIRMAN. The gentleman from Ohio [Mr. Oxley] is recognized for
1\1/2\ minutes to close debate.
Mr. FRELINGHUYSEN. Mr. Chairman, I strongly support this amendment
which will strengthen H.R. 956, the Common Sense Product Liability and
Legal Reform Act and address what I see as a deterrent to research and
development of lifesaving pharmaceuticals and medical devices.
[[Page H2948]] The out-of-control tort situation in our country is
forcing companies that research and develop medical equipment and
lifesaving drugs to back away from developing important new treatments
for diseases such as AIDS or cancer.
The United States has the most rigorous drug and medical device
approval process in the world. Companies which research and develop new
medical treatments spend millions, sometimes billions of dollars, on
developing and testing these products in order to meet FDA standards
and approval, before they are able to make these important products
available to the public. In addition to the money spent, the time
involved with the process of FDA approval can take up to 10 years.
The proposed limitation on punitive damages makes sense. Even when
every effort is made to ensure the safety and efficacy of the drug for
the illness or condition it is designed to treat, no drug is 100
percent risk free. The FDA recognizes this and in making its approval
decision must weight the risks and benefits of each new pharmaceutical
in order to minimize, if not eliminate, risk of injury. If injury does
occur, despite all the companies research and the government's review,
and the manufacturer has complied with all relevant federal
requirements, it should not then be held liable for ``punitive
damages.''
Without this amendment, there remains a powerful disincentive to
certain types of pharmaceutical research. Enacting the government-
standards defense will encourage new research and development.
I am pleased to support this amendment which I believe offers a fair
balance of protection for consumers and businesses alike.
Mr. ROEMER. Mr. Chairman, I rise today to support the amendment to
H.R. 956 offered by the gentleman from Ohio [Mr. Oxley]. This amendment
will bar punitive damages for the sale or manufacture of drugs or
devices which have been approved by the Food and Drug Administration.
Our medical device and pharmaceutical companies must be able to
continue to pioneer life-saving, cost-effective products. The explosion
of litigation and the skyrocketing costs that are attendant to such
lawsuits are in great part responsible for the high costs of healthcare
in the United States. They also dampen our enthusiasm for innovative
and breakthrough research that produces products that enhance our
quality of life. This amendment would produce a ``government
standards'' defense where companies that adhere to strict government
regulations designed to preserve safety would not be held liable for
punitive damages involving a product.
New medicines and medical devices increase life expectancy and make
life better for those who need it most: people afflicted with disease
or people with disabilities. Our approval process for these items is
the most stringent in the world, and require huge investments of
funding and human resources. The testing process is rigorous and
complete. Clinical trials are exhausting. Paperwork substantiating
these processes usually runs 100,000 pages or more for a single
product.
Clearly the decision to allow such products on the market prove that
their benefits outweigh any risk that may be involved. Punitive damages
were designed to punish businesses or individuals for willfully
negligent or harmful behavior. Companies that submit products for FDA
review do not do so in bad faith.
Mr. Chairman, in my Indiana District we are the home of three
important producers of biomedical products. The Biomet, Zimmer and
DePuy Corporations are the makers of orthotic and prosthetic devices
that are critical to the health and well-being of people throughout the
world. They invest constantly in improving their products, and in turn
create good jobs and contribute heavily to our trade balance. The work
they do is only for the common good, and their contribution to modern
health and quality of life must be acknowledged in this legislation.
This amendment provides a level of protection for these companies
while protecting the rights of individuals to seek damages for
expenses, pain or suffering. I commend the gentleman from Ohio for
offering this measure and encourage my colleagues to support this
important provision.
Mr. OXLEY. Mr. Chairman, this has been a very worthwhile debate. I am
only sorry we did not have more time. This has been a worthwhile and
edifying debate.
Let me conclude by answering some questions that have been raised
during the debate and particularly from some conversations I have had
with my good friend from New York, Mr. Towns, as to what this amendment
does or does not do.
First of all, this amendment applies only to punitive damages.
Second, the amendment does not cap noneconomic damages in any way, so
that the plaintiff would be entitled to receive economic and
noneconomic damages; only punitive damages would not be permitted.
Thirdly, the FDA is the agency we rely on to regulate food and drug
purity and the only agency authorized to give premarket approval.
This amendment encourages innovations, it protects consumers and it
makes good common sense.
Mr. Chairman, this was a bipartisan effort on this amendment, and we
think it goes to the heart of the entire process of approving medical
devices and drugs. It is in the best interests of our consumers and of
our constituents that we have a system that we can rely on and that
provides adequate protection against voracious punitive damage awards
against drug companies or other manufacturers of medical products.
The Oxley bipartisan amendment is an amendment that all Members can
and should support.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Ohio [Mr. Oxley].
The amendment was agreed to.
The CHAIRMAN. It is now in order to consider amendment No. 10 printed
in House Report 104-72.

amendment offered by mr. hoke

Mr. HOKE. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.

Amendment offered by Mr. Hoke: Page 19, redesignate section
202 as section 203 and insert after line 19 the following:

SEC. 202. DEPOSIT OF DAMAGES.

If punitive damages of more than $250,000 are awarded in a
civil liability action, 75 percent of the amount of such
damages in excess of $250,000 shall be deposited--
(1) if the action was in a Federal court, in the treasury
of the State in which such court sits, and
(2) if the action was in a State court, in the treasury of
the State in which such court sits.
This section shall be applied by the court and shall not be
disclosed to the jury.

The CHAIRMAN. Pursuant to the rule, the gentleman from Ohio [Mr.
Hoke] will be recognized for 10 minutes and a Member in opposition to
the amendment will be recognized for 10 minutes.
The Chair recognizes the gentleman from Ohio [Mr. Hoke].
Mr. HOKE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this punitive damages amendment is fairly simple and
straightforward. What it does is it restores the original intent of
punitive damages awards which is namely to punish wrongdoers, it is not
to compensate plaintiffs.
Every day in courtrooms across America, plaintiffs are compensated
for lost wages, for medical and rehabilitation costs, loss of the use
of property, emotional distress, injury to their reputation,
humiliation, and loss of companionship or consortium. These are the
awards that are intended to make the defendant whole or complete. These
are compensatory awards.
But in addition to these economic and noneconomic damages, plaintiffs
are receiving themselves windfalls that were never meant to play part
in making them whole. This windfall comes in the form of punitive
damages that by their very definition are intended to be punishment for
wrongdoing defendants. This punishment is intended to deter future
wrongdoing.
The key to a fine's effectiveness is not who receives it but who is
forced to pay. That is why I am proposing that 75 percent of punitive
damages in excess of $250,000 be paid to the State in which the action
is litigated. In other words, plaintiffs will still receive 100 percent
of any punitive damages up to $250,000 and will receive 25 percent of
any amount awarded in excess of $250,000.
I believe this arrangement strikes a very good balance between
maintaining the plaintiff and the plaintiff's attorney's incentive to
seek punitive damages, and emulating the model of a criminal fine.
This amendment also stipulates that the arrangement is to be applied
by the court and is not to be disclosed to the jury. This provision
safeguards against juries using punitive damages to finance State
initiatives in a way that would improperly bias their outcome.
Ten States have adopted laws sending a portion of punitive damages to
their State for a variety of purposes.
[[Page H2949]] The Georgia Supreme Court has upheld its law sending a
portion of punitive damage awards directly to the State.
This has broad support, Mr. Chairman. It is supported by people from
former Attorney General Griffin Bell to the State legislatures of 10
States across this country.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. Is there a Member who wishes to manage the opposition
to the Hoke amendment? Does the gentleman from Michigan [Mr. Conyers]
wish to manage the opposition to the Hoke amendment?
Mr. CONYERS. I do, Mr. Chairman.
The CHAIRMAN. The gentleman from Michigan [Mr. Conyers] is recognized
for 10 minutes.

parliamentary inquiry

Mr. CONYERS. Mr. Chairman, on a point of procedure, would I have the
right to close on this since this is an amendment against the bill?
The CHAIRMAN. As a member of the reporting committee, the gentleman
has the right to close.
Mr. CONYERS. Mr. Chairman, I yield myself 3\1/2\ minutes.
Mr. Chairman, this amendment continues chipping away at the entire
concept of punitive damages by reducing punitive damages over $250,000
by an additional 75 percent and giving it to the Federal or State
treasury rather than to the individual who sued.
Do State treasuries want these awards? New York said, ``No thanks,''
and repealed its apportionment law. In Colorado, the supreme court held
that giving punitive awards to a State fund was an unconstitutional
``taking.''
Who benefits? The corporations who will simply build economic damages
into their costs of doing business, without fear of facing large
punitive damages that would have deterred them from knowingly selling
products that cause devastating injury to the buyer.
Who loses? Those at the lower end of the economic scale who will have
less incentive to sue, especially when their recovery is determined by
how much they earn rather than the outrageousness of the defendant's
conduct.
Some Members on the other side will argue that punitive damages
should punish wrongdoers and are not intended to compensate plaintiffs,
but they should know better. Lawsuits brought by victims, not
Government regulation, brought about safety improvements like
restricting asbestos use, like beepers on reversing garbage trucks that
had resulted in numerous injuries to children, like recalling the
Dalkon Shield. Punitive damages put an end to the exploding fuel tank
and the heart by-pass drug that resulted in amputation caused by
gangrene.
The likely result if this amendment passes is more dangerous products
on the market and less incentive for the victims to sue, a prospect
that does not advance the common good but will only please the sponsors
of this Contract with Corporate America.

{time} 1800

Please reject the Hoke amendment.
Mr. HOKE. Mr. Chairman, I point out once more, while we are talking
about our punitive damages, not compensatory damages, compensatory
damages are already paid to compensate a victim for his economic and
noneconomic losses.
Mr. Chairman, at this time I yield 1 minute to the gentleman from
Illinois [Mr. Hyde], the chairman of the committee.
Mr. HYDE. I thank the gentleman for yielding this time to me.
Mr. Chairman, the amendment offered by the gentleman from Ohio [Mr.
Hoke] provides for 75 percent of punitive damages awards in excess of
$250,000 to be deposited to the treasury of the State in which the
particular Federal or State court sits. Since punitive damages are
limited under Section 201(b) to $250,000 or 3 times the damages awarded
for economic loss--whichever is greater--punitive damages can exceed
$250,000 only if the damages for economic loss exceed $83,333.33. I
support this proposal because it effectuates the public interest in
allowing large punitive damages awards to benefit the appropriate State
without either compromising the rights of claimants to full
compensation for injuries sustained or eliminating incentives to seek
punitive damages.
Punitive damages are designed to punish or deter egregious
misconduct--in contrast to compensatory damages that compensate
claimants for both economic and non-economic losses. Compensatory
damages cover such monetary items as medical expenses and lost wages
and such non-monetary items as pain and suffering. Claimants who are
fully compensated for both monetary and non-monetary losses receive
windfalls when they also collect punitive damages. It makes eminent
good sense for punitive damages to be allocated for public purposes--
which essentially is what we accomplish by directing such funds to
state treasuries. The States in turn can decide on the best uses to be
made of these funds.
Although in theory all of these awards should go to the appropriate
State, we recognize the practical need to retain incentives for
claimants to seek such awards. For that reason, the amendment leaves
untouched State law schemes that allow claimants to collect punitive
damages up to $250,000. The claimant's share of amounts in excess of
$250,000 will equal 25 percent provided the law of the particular State
permits the claimant to collect it. The amendment includes sufficient
incentives for claimants to continue seeking punitive damages in
appropriate cases while recognizing the public interest in retaining
benefits from large punitive damages awards.
The amendment is meritorious and represents a positive contribution
to this legislation.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the gentleman from
New York [Mr. Nadler].
Mr. NADLER. I thank the gentleman for yielding this time to me.
Mr. Chairman, I recognize the intention of the gentleman from Ohio
[Mr. Hoke]. I had a similar amendment, similar but different, in
committee, which I am sorry that the Committee on Rules did not make in
order.
The purpose of punitive damages, the main purpose, is to deter, to
deter egregious, terrible conduct. When we are dealing with a
malefactor of great wealth, as the Republican President once put it,
you need a large punitive award.
But why should the individual victim be unjustly enriched just
because the tort feasor was a very wealthy individual or a big
corporation.
So I do not mind the limit of $250,000 or 3 times the economic
damage, whichever is greater, as the recovery for the victim. But that
will totally limit the deterrent effect against the large tort feasor.
So I suggested let the victim get the $250,000 or 3 times economic
damage, whichever is greater, and let government, for deficit
reduction, get any award in excess of that.
So you still get the deterrent effect, but not unjust enrichment.
The gentleman from Ohio turned it around, and he says let us give 75
percent to the government of the excess over $250,000 below 3 times
economic damages. So if the economic damage was $400,000, 3 times
economic damages would be $1.2 million. Mr. Hoke says limit what the
victim gets to $250,000 plus a quarter of that difference.
So this is reducing below what the bill said the possible recovery
is. I think this is wrong because the victim is entitled to some
reasonable recovery of punitive damages in relation to economic
damages.
Mr. HOKE. Mr. Chairman, will the gentleman yield?
Mr. NADLER. I yield to the gentleman from Ohio.
Mr. HOKE. I thank the gentleman for yielding.
Mr. Chairman, I ask the gentleman, is it not true what his amendment
would have done would have been to eliminate the cap on punitive
damages?
Mr. NADLER. Yes. Reclaiming my time, that is exactly the point. There
should not be a cap on punitive damages necessary as a deterrent but to
avoid unjust enrichment. I can understand the cap on the recovery to
the victim. But to cap the total award and then to say underneath that
cap we are going to say the victim cannot get it all, that I think is
wrong to the victim and does not provide an adequate deterrent to the
tort feasor.
Mr. HOKE. Would the gentleman not agree that it is true that we just
rejected that concept by rejecting soundly the First Amendment in this
Congress? We just rejected that idea.
[[Page H2950]] Mr. NADLER. Well, I think the majority is wrong.
Mr. HOKE. But we had a vote on what the gentleman wanted.
Mr. NADLER. But what the gentleman is doing goes further. What the
gentleman is saying is the cap of 3 times economic damages $250,000,
and we are going to deny part that have to the victim.
If you want to say we should not have any cap at all, then it makes
sense to say to the victim he should not unjustly enrich himself to any
extent.
I urge defeat of the amendment.
Mr. HOKE. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from Virginia [Mr. Goodlatte].
Mr. GOODLATTE. I thank the gentleman for yielding and commend him for
what I think is a very good amendment.
In fact, it is an amendment that helps to cure one of the objections
raised on the other side to the fact that there is a cap on punitive
damages. The cap is important in order to keep juries from becoming
legislators. They are not elected. They do a very good job of resolving
disputes between individuals, but when you have multimillion-dollar
awards, you have a problem with juries imposing rules on society that
ought to be imposed by State legislatures.
In this case, you are now dealing with the problem that they observe
once you impose the cap, and that is that it is discriminatory because
they said somebody with a very wealthy background might have high
economic losses, they got 3 times that and recover far more than
somebody with a poorer background who could only have a $250,000 cap.
So I compliment the gentleman because he is saying that everybody up
to $250,000 is equal. Once you get beyond $250,000, we have gone
already beyond the purpose of punitive damages. They are not to reward
an individual or even compensate an individual for loss they get from
the economic loss and the noneconomic loss.
That is medical bills that they are entitled to be reimbursed for,
lost income, pain and suffering, all of that is not affected by
punitive damages.
So, by saying that 75 percent of the amount above $250,000 will go to
the public treasury where it should go because it is, in effect, a fine
is a very good idea. And that is exactly the parallel to fines.
The standard for punitive damages is a very high one. It is only for
people who do serious wrong.
So when we impose a fine on people and it is a serious wrong meeting
a high standard, it ought to go into that public treasury just as a
fine imposed on a criminal wrongdoer.
That was exactly the point made by former Supreme Court Justice Lewis
Powell, who said that the private windfall aspects of punitive damages
aggravates the problems that we have with the whole rack of standards
in punitive damages because, unlike fines, which go to the public
treasury, punitive damages go to the private plaintiffs. To a limited
extent, that is fine, and your bill does it. Beyond that, it goes into
the public treasury.
I commend the gentleman for a very good amendment.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 2 minutes to the
gentleman from Virginia [Mr. Scott], a member of the Committee on the
Judiciary.
Mr. SCOTT. Mr. Chairman, we keep hearing these generalities about
excessive awards, but we do not hear specific cases that outraged
juries so much that they actually awarded punitive damages.
We have to put this amendment in the context of the other amendments
that we have already had and recognize punitive damages are designed to
be high enough to protect society from a corporate calculation that it
is easier to pay the damages for somebody injured, maimed or killed,
than it is to correct the situation.
Earlier today we talked about the situation with flammable pajamas
where the court found that the corporation knew that the pajamas--that
newsprint burned only slightly faster than the pajamas. Because of the
punitive damages, children can now go to bed safely knowing they are
not wearing these things.
In the context of loser pays and a separate trial for punitive
damages, this amendment would essentially remove any incentive that a
plaintiff would have to go after punitive damages, thereby removing the
safety valve that others will enjoy by virtue of the fact that
corporations are afraid of these punitive damages. The loser pays, you
can win the case, on the compensation, you could even win punitive
damages. But if you come in under the offer, you end up paying your
attorneys' fees, the other peoples' attorneys' fees, and you are
therefore discouraged from bringing these cases.
This amendment is another discouragement in protecting society from
corporate wrongdoing and ought to be defeated.
Mr. HOKE. Mr. Chairman, I would just like to respond to the last
speaker by saying that clearly when you still have a $250,000 amount of
money, I do not know why that is not considered to be an incentive, not
to mention that in terms of criminal fines that is a tremendous fine.
If somebody is fined for criminal negligence or felonious activity, a
$250,000 fine is disproportionate to almost anything you will find in a
State legislature's code of criminal penalties.
Mr. Chairman, I yield 1 minute to the gentleman from California [Mr.
Bilbray].
Mr. BILBRAY. I thank the gentleman for yielding this time to me.
Mr. Chairman, frankly, I think if you tried to explain this to the
average citizen in the United States, they would think it is absurd
that somebody is going to be given a fine and that fine is going to be
given to the plaintiff. With fines and forfeitures in criminal cases,
we do not have those fines and forfeitures going to the victim of the
crime. That may be more logical than what we have here because at least
in the criminal case they have not been made whole.
By definition, they should have been made whole before punitive is
ever considered.
I think what we have to do is get the lottery out of this. I would
ask that we support this amendment. I would prefer that all punitive
damages go to a public fund because that is where penalty fees should
be going. They go to a public fund in a criminal case. By definition,
they should be going to such a fund.
Mr. HOKE. Mr. Chairman, I yield 1 minute to the gentleman from
Tennessee [Mr. Bryant].
Mr. BRYANT of Tennessee. Mr. Chairman, I rise in strong support of
this amendment.
I think the concept has oft been repeated today about compensatory
and punitive damages and the purposes of each. Clearly, we have
established today that punitive damages are to punish and deter. We
have a parallel concept in the criminal code when we have restitution
and fines. In that instance, the court may award restitution; that is
to the victim of the crime. But the fine that they punish that criminal
with goes to the State.
In the instance of the civil justice system, punitive damages are
used in a civil case to deter conduct. In our civil justice system,
punitive damages are used to deter conduct for the good of society as a
whole. Under those circumstances it is only right that society as a
whole should reap the benefit of the punitive damages. For that reason
I strongly support and commend the gentleman from Ohio for his
amendment.
Mr. HOKE. I thank the gentleman for those kind words.
I will close with two thoughts. First of all, I want to thank the
gentleman from California [Mr. Bilbray] for wanting to speak on this
subject. He has been walking around with pneumonia for 3 days. He felt
so strongly enough, he said he wanted to come down and speak on this,
and I think that says a great deal.
Mr. Chairman, this is not a farfetched amendment, by any means. What
you are going to hear from the other side is somehow this is taking
rights away, money away, dollars away from people. Nothing could be
further from the truth than that.

{time} 1815

The fact is that a punitive damage award is meant to take the place
of a criminal fine. We are saying that the first $250,000 of that can
go to the victim. After that, it still goes 25 percent to the victim
and 75 percent to the
[[Page H2951]] State. It was never intended to make a plaintiff whole.
We have already done that with economic and noneconomic compensatory
damages. That is not what this is intended to do, never has been, never
will be. But what we have to do is we need to put the money back to the
State. That is where criminal fines go. That is where this, the
punitive damage awards should go.
That is what this bill is all about; it is a common sense balancing
approach to this problem.
The CHAIRMAN. The Chair recognizes the gentleman from Michigan [Mr.
Conyers] for 1\1/2\ minutes to close debate.
Mr. CONYERS. Members of the Committee, we have seen a chipping-away
effect that has now reached the point that I think Members on the other
side will begin to be repelled by it. The entire concept of punitive
damages are now being reduced by an additional 75 percent when they
exceed $250,000 by giving it to the Federal or State treasury rather
than to the individual who sued.
When is this going to end? What reason does a person have to come
into court with a lawyer, to risk his all, under the accentuated costs
and risks that he must not attend, and then, if he recovers, it goes
not to him, but it goes to the State or to the Federal Government
itself? What kind of nationalistic scheme are we talking about?
I say to my colleagues, ``You don't have to be a supporter of states
rights to take exception to this.''
Where will we draw the line? What are we doing? Has each citizen
become an apparatchik for the State even when he or she goes to court
and recovers?
The New York State court has said ``no,'' the Supreme Court of
Colorado has said ``no,'' and now we should say ``no'' to the gentleman
from Ohio [Mr. Hoke].
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Ohio [Mr. Hoke].
The question was taken; and the Chairman announced that the noes
appeared to have it.

recorded vote

Mr. HOKE. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 162,
noes 265, not voting 7, as follows:
[Roll No. 224]

AYES--162

Andrews
Archer
Armey
Baker (CA)
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bereuter
Bevill
Bilbray
Bliley
Boehner
Bonilla
Browder
Brownback
Bryant (TN)
Bunn
Buyer
Calvert
Camp
Chenoweth
Christensen
Chrysler
Coburn
Collins (GA)
Condit
Cox
Crane
Cremeans
Cunningham
Deal
DeLay
Doggett
Doolittle
Dornan
Dreier
Dunn
Ehlers
Ehrlich
Emerson
English
Ewing
Fawell
Fields (TX)
Flanagan
Fowler
Frisa
Funderburk
Gallegly
Ganske
Geren
Gilchrest
Gillmor
Goodlatte
Goodling
Goss
Greenwood
Gunderson
Gutknecht
Hancock
Hastert
Hastings (WA)
Hefley
Heineman
Hilleary
Hobson
Hoke
Hostettler
Houghton
Hunter
Hyde
Inglis
Jacobs
Johnson, Sam
Jones
Kanjorski
Kasich
Kim
Kingston
Klug
Knollenberg
Kolbe
LaFalce
Laughlin
Leach
Lewis (KY)
Lincoln
Linder
Luther
Maloney
Martinez
McCollum
McCrery
McInnis
McKeon
McNulty
Metcalf
Mica
Miller (CA)
Miller (FL)
Moorhead
Neumann
Norwood
Orton
Oxley
Packard
Parker
Paxon
Payne (VA)
Peterson (MN)
Petri
Pombo
Pomeroy
Porter
Portman
Pryce
Regula
Roberts
Rogers
Rohrabacher
Roth
Royce
Sabo
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schumer
Seastrand
Sensenbrenner
Shaw
Shuster
Skeen
Smith (MI)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stenholm
Stump
Talent
Tanner
Tauzin
Taylor (NC)
Thomas
Thornberry
Thurman
Towns
Upton
Vucanovich
Walker
Watts (OK)
Weldon (FL)
Weller
Williams
Wolf
Young (FL)
Zimmer

NOES--265

Abercrombie
Ackerman
Allard
Bachus
Baesler
Baker (LA)
Baldacci
Barcia
Barrett (WI)
Bass
Bateman
Becerra
Beilenson
Bentsen
Berman
Bilirakis
Bishop
Blute
Boehlert
Bonior
Bono
Borski
Boucher
Brewster
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Bunning
Burr
Burton
Callahan
Canady
Cardin
Castle
Chabot
Chambliss
Chapman
Clay
Clayton
Clement
Clinger
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Combest
Conyers
Cooley
Costello
Coyne
Cramer
Crapo
Danner
Davis
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Dixon
Dooley
Doyle
Duncan
Durbin
Edwards
Engel
Ensign
Eshoo
Evans
Everett
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Foley
Ford
Fox
Frank (MA)
Franks (CT)
Franks (NJ)
Frelinghuysen
Frost
Furse
Gejdenson
Gekas
Gephardt
Gilman
Gonzalez
Gordon
Graham
Green
Gutierrez
Hall (OH)
Hall (TX)
Hamilton
Hansen
Harman
Hastings (FL)
Hayes
Hefner
Herger
Hilliard
Hinchey
Hoekstra
Holden
Horn
Hoyer
Hutchinson
Istook
Jackson-Lee
Jefferson
Johnson (CT)
Johnson (SD)
Johnson, E. B.
Johnston
Kaptur
Kelly
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
King
Kleczka
Klink
LaHood
Lantos
Largent
Latham
LaTourette
Lazio
Levin
Lewis (CA)
Lewis (GA)
Lightfoot
Lipinski
Livingston
LoBiondo
Lofgren
Longley
Lowey
Lucas
Manton
Manzullo
Markey
Martini
Mascara
Matsui
McCarthy
McDade
McDermott
McHale
McHugh
McIntosh
McKinney
Meehan
Meek
Menendez
Meyers
Mfume
Mineta
Minge
Mink
Moakley
Molinari
Mollohan
Montgomery
Moran
Morella
Murtha
Myers
Myrick
Nadler
Neal
Nethercutt
Ney
Nussle
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Pelosi
Peterson (FL)
Pickett
Poshard
Quillen
Quinn
Radanovich
Rahall
Ramstad
Reed
Reynolds
Richardson
Riggs
Rivers
Roemer
Ros-Lehtinen
Rose
Roukema
Roybal-Allard
Rush
Sanders
Sawyer
Schiff
Schroeder
Scott
Serrano
Shadegg
Shays
Sisisky
Skaggs
Skelton
Slaughter
Smith (NJ)
Spratt
Stark
Stearns
Stockman
Stokes
Studds
Stupak
Tate
Taylor (MS)
Tejeda
Thompson
Thornton
Torkildsen
Torres
Torricelli
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Waldholtz
Walsh
Wamp
Waters
Watt (NC)
Waxman
Weldon (PA)
White
Whitfield
Wicker
Wilson
Wise
Woolsey
Wyden
Wynn
Yates
Young (AK)
Zeliff

NOT VOTING--7

Cubin
Forbes
Gibbons
Hayworth
Rangel
Tiahrt
Ward

{time} 1838

Messrs. ZELIFF, TATE, BUNNING of Kentucky, BREWSTER, HANSEN, VENTO,
BONO, BARCIA, DICKS, KENNEDY of Massachusetts, OBERSTAR, CALLAHAN,
WAMP, MONTGOMERY, CHAMBLISS, EVERETT, and SISISKY, and Ms. BROWN of
Florida changed their vote from ``aye'' to ``no.''
Messrs. PAYNE of Virginia, PAXON, GREENWOOD, McINNIS McCRERY, and
DORNAN changed their vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN. It is now in order to consider amendment No. 11,
printed in House Report 104-72.

amendment offered by mr. cox of california

Mr. COX of California. 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. Cox of California:
Page 1, strike line 7 and all that follows through the
matter that precedes line 1 on page 2, and insert the
following:
(b) Table of Contents.--The table of contents is as
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Findings and purposes.

TITLE I--PRODUCT LIABILITY REFORM

Sec. 101. Applicability.
Sec. 102. Liability rules applicable to product sellers.
Sec. 103. Defense based on claimant's use of intoxicating alcohol or
drugs.
Sec. 104. Misuse or alteration.
Sec. 105. Frivolous pleadings.
Sec. 106. Several liability for noneconomic loss.
Sec. 107. Statute of repose.
Sec. 108. Definitions.
[[Page H2952]] TITLE II--LIMITATION ON SPECULATIVE AND ARBITRARY DAMAGE
AWARDS

Sec. 201. Treble damages as penalty in civil actions.
Sec. 202. Limitation on additional payments beyond actual damages.
Sec. 203. Fair share rule for noneconomic damage awards.
Sec. 204. Definitions.

TITLE III--BIOMATERIALS SUPPLIERS

Sec. 301. Liability of biomaterials suppliers.
Sec. 302. Procedures for dismissal of civil actions against
biomaterials suppliers.
Sec. 303. Definitions.

TITLE IV--LIMITATIONS ON APPLICABILITY; EFFECTIVE DATE

Sec. 401. Application limited to interstate commerce.
Sec. 402. Effect on other law.
Sec. 403. Federal cause of action precluded.
Sec. 404. Effective date.
SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--The Congress finds that--
(1) the civil justice system, which is designed to
safeguard our most cherished rights, to remedy injustices,
and to defend our liberty, is increasingly being deployed to
abridge our rights, create injustice, and destroy our
liberty;
(2) our Nation is overly litigious, the civil justice
system is overcrowded, sluggish, and excessively costly, and
the costs of lawsuits, both direct and indirect, are
inflicting serious and unnecessary injury on the national
economy;
(3) excessive, unpredictable, and often arbitrary damage
awards and unfair allocations of liability have a direct and
undesirable effect on interstate commerce by increasing the
cost and decreasing the availability of goods and services;
(4) the rules of law governing product liability actions,
damage awards, and allocations of liability have evolved
inconsistently within and among the several States, resulting
in a complex, contradictory, and uncertain regime that is
inequitable to both plaintiffs and defendants and unduly
burdens interstate commerce;
(5) as a result of excessive, unpredictable, and often
arbitrary damage awards and unfair allocations of liability,
consumers have been adversely affected through the withdrawal
of products, producers, services, and service providers from
the national market, and from excessive liability costs
passed on to them through higher prices;
(6) excessive, unpredictable, and often arbitrary damage
awards and unfair allocations of liability jeopardize the
financial well-being of many individuals as well as entire
industries, particularly the Nation's small businesses, and
adversely affects governments, taxpayers, nonprofit entities
and volunteer organizations;
(7) the excessive costs of the civil justice system
undermine the ability of American companies to compete
internationally, and serve to decrease the number of jobs and
the amount of productive capital in the national economy;
(8) the unpredictability of damage awards is inequitable to
both plaintiffs and defendants and has added considerably to
the high cost of liability insurance, making it difficult for
producers, consumers, and individuals to protect their
liability with any degree of confidence and at a reasonable
cost;
(9) because of the national scope of the problems crated by
the defects in the civil justice system,
it is not possible for the several States to enact laws that
fully and effectively respond to those problems;
(10) it is the constitutional role of the national
government to remove barriers to interstate commerce; and
(11) there is need to restore rationality, certainty, and
fairness to the civil justice system in order to protect
against excessive, arbitrary, and uncertain damage awards and
to reduce the volume, costs, and delay of litigation.
(b) Purposes.--Based upon the powers contained in Article
I, Section 8, Clause 3 of the United States Constitution, the
purposes of this Act are to promote the free flow of goods
and services and to lessen burdens on interstate commerce
by--
(1) establishing certain uniform legal principles of
product liability which provide a fair balance among the
interests which provide a fair balance among the interests of
product users, manufacturers, and product sellers;
(2) placing reasonable limits on damages over and above the
actual damages suffered by a claimant;
(3) ensuring the fair allocation of liability in civil
actions;
(4) reducing the unacceptable costs and delays of our civil
justice system caused by excessive litigation which harm both
plaintiffs and defendants; and
(5) establishing greater fairness, rationality, and
predictability in the civil justice system.
Page 2, strike line 3 and all that follows through line 24,
and page 4 (and redesignate subsequent sections accordingly).
Page 11, strike lines 17 through 24 (and redesignate
subsequent sections accordingly).
Page 12, strike line 24 and all that follows through line 2
on page 13 (and redesignate the subsequent section
accordingly).
Page 17, strike lines 10 through 12 and insert the
following:

TITLE II--LIMITATION ON SPECULATIVE AND ARBITRARY DAMAGE AWARDS

SEC. 201. TREBLE DAMAGES AS PENALTY IN CIVIL ACTIONS.

Page 17, line 21, insert ``rights or'' before ``safety''.
Page 17, beginning in line 25, strike ``for the economic
loss on which the claimant's action is based'' and insert
``for economic loss''.
Page 18, insert after the period in line 2 the following:
``This section shall be applied by the court and shall not be
disclosed to the jury.''.
Page 18, line 3, strike ``and Preemption''.
Page 18, strike ``title'' in lines 4 and 6 and insert
``section''.
Page 18, beginning in line 7, strike ``in any jurisdiction
that does not authorize such actions'' and insert after the
period in line 8 the following: ``This section does not
preempt or supersede any State or Federal law to the extent
that such law would further limit the award of punitive
damages.''.
Page 19, after line 19, insert the following new sections
(and redesignate the subsequent section accordingly):

SEC. 202. FAIR SHARE RULE FOR NONECONOMIC DAMAGE AWARDS.

(a) Fair Share of Liability Imposed According to Share of
Fault.--In any product liability or other civil action
brought in State or Federal court, a defendant shall be
liable only for the amount of noneconomic damages
attributable to such defendant in direct proportion to such
defendant's share of fault or responsibility for the
claimant's actual damages, as determined by the trier of
fact. In all such cases, the liability of a defendant for
noneconomic damages shall be several and not joint.
(b) Applicability.--Except as provided in section 401, this
section shall apply to any product liability or other civil
action brought in any Federal or State court on any theory
where noneconomic damages are sought. This section does not
preempt or supersede any State or Federal law to the extent
that such law would further limit the application of the
theory of joint liability to any kind of damages.
Page 19, after line 21, insert the following new paragraph:
(1) The term ``actual damages'' means damages awarded to
pay for economic loss.
Page 19, line 22, strike ``(1)'' and insert ``(2)''.
Page 20, line 4, strike ``(2)'' and insert ``(3)''.
Page 20, line 12, strike ``(3)'' and insert ``(4)''.
Page 20, line 18, strike ``(4)'' and insert ``(5)''.
Page 20, after line 20, insert the following new paragraph
(and redesignate subsequent paragraphs accordingly):
(6) The term ``noneconomic damages'' means damages other
than punitive damages or actual damages.
Page 20, line 21, strike ``(5)'' and insert ``(7)''.
Page 21, line 1, strike ``(6)'' and insert ``(8)''.
Page 30, strike lines 6 and 7, and insert the following:

TITLE IV--LIMITATIONS ON APPLICABILITY; EFFECTIVE DATE

SEC. 401. APPLICATION LIMITED TO INTERSTATE COMMERCE.

Titles I, II, and III shall apply only to product liability
or other civil actions affecting interstate commerce. For
purposes of the preceding sentence, the term ``interstate
commerce'' means commerce among the several States or with
foreign nations, or in any territory of the United States or
in the District of Columbia, or between any such territory
and another, or between any such territory and any State or
foreign nation, or between the District of Columbia and any
State or territory or foreign nation.
Redesignate subsequent sections accordingly.

The CHAIRMAN. Pursuant to the rule, the gentleman from California
[Mr. Cox] and a Member opposed will each be recognized for 20 minutes.

parliamentary inquiry

Mr. FRANK of Massachusetts. Mr. Chairman, I have a parliamentary
inquiry.
The CHAIRMAN. The gentleman will state it.
Mr. FRANK of Massachusetts. As a member of the reporting committee, I
wonder, by whatever process of mental divination the Chair uses, if he
would decide that I had the right to close on this.
The CHAIRMAN. The gentleman is correct, he will have the right to
close.
Mr. FRANK of Massachusetts. I thank the Chair.
The CHAIRMAN. The Chair recognizes the gentleman from California [Mr.
Cox].
Mr. COX of California. Mr. Chairman, I yield myself 2\1/2\ minutes.
Mr. Chairman, the tenor of the debate on this entire bill and all of
the amendments to this bill is pretty clear: We have too many lawsuits
in America. We have become too litigious. It costs too much money, and
simple justice is not being served.
The amendment that I am proposing, along with my colleague, Mr. Pete
Geren from Texas, advances a simple rule that will go a long way to
making
[[Page H2953]] sure that fair justice exists once again in our courts.
Our simple rule is called the fair-share rule.
Under this provision, a person will be made to pay for the damages
that he, she, or it caused, but no person will be made to pay for
damages that someone else caused. Our rule will hold wrongdoers
responsible for their actions, and our rule will permit people who are
not responsible for that damage to understand that their conduct will
have been rewarded faithfully by the law.
The so-called joint and several liability doctrine is really the
fair-share rule stood on its head. If you are adjudged 1 percent
liable, you can be required to pay under the current system 100 percent
of the damages caused by someone else if it turns out that you are the
only one in the picture that has any money. It is known to plaintiffs'
trial lawyers as the deep-pockets opportunity. Find somebody, not
necessarily a rich person, perhaps just a small business person or an
individual who has an insurance policy, who you think can therefore be
made to pay, or just from whom a settlement can be extorted, and bring
them into the lawsuit.
Take the case of a drunk driver going down the street, goes off the
sidewalk onto the front lawn and kills someone. If that person is sued
and the jury were to find, and this is approximately the facts in a
real case in California, the jury finds that the drunk driver is 95
percent liable for the damage that the drunk driver caused, but the
city is 5 percent liable because there was a pothole on the way, and
the drunk driver does not have any money, then the taxpayers are stuck
for all of the damage caused by the drunk.

{time} 1845

That is our current system. Under the fair share rule, someone
adjudged 5 percent liable will pay 5 percent of the damage. That is the
fair share rule.
I urge support for this amendment.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield 4 minutes and 30
seconds to the gentleman from Michigan [Mr. Conyers], the ranking
member of the full Committee on the Judiciary.
Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding time to
me.
We are confronted with a very strange amendment here, because what
has not been mentioned by the author of it is that it seeks to exclude
foreign manufacturers from the service of process requirement that
American manufacturers are subject to. And so members of the committee,
we are back to the same amendment on the other end that we voted only a
few hours ago, where we said that a foreign manufacturer was subject to
the same discovery proceedings that a national manufacturer, a domestic
manufacturer is subject to.
We said that we should not be able to have them avoid litigation
because their discovery may take them to Europe or to Japan, that they
must subject themselves to discovery. And this amendment, although
strangely enough it has not been said yet, and you are going to have to
read pretty carefully to find it anywhere, is that this is going to
change the service of process in suits brought against foreign
manufacturers.
It is another way to let them out of playing the game on a level
playing field with domestic manufacturers.
I think we all know what some of them are doing. They sell their
goods, freight on board, in Japan or Germany, just so they will not be
treated as having contacts in this country which could subject them to
suit there. They know that this makes U.S. citizens go through repeated
hurdles to bring suit against them, ranging from translating the
complaint into another language and asking the State Department to
serve action, and even then the foreign business may elect to ignore
the action.
This is another backdoor way of giving a foreign manufacturer a leg
up. To make sure that everybody knows what the gentleman is doing, I do
not know why the gentleman did not just come out, the gentleman from
California did not just come out and say what this is going to do. It
is going to change the way service of process is implemented by a
foreign manufacturer, and that is just the front door way of getting
around the discovery amendment that would have given them a break that
we just rejected.
Why do you want to give different rules in court to foreign
companies? What benefit do you see in that? I know there are a lot of
foreign companies
here, but do you not see, my friend, that citizens that are sued and
want to sue will need to have service of process. And if you try to
take this out, we are going to be doing ourselves a grave disservice to
all of our constituents?

Mr. COX of California. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from California.
Mr. COX of California. Mr. Chairman, the gentleman makes a very fair
point. In fact, the effect of gentleman's just having won on his
amendment is that the provisions of this amendment that would otherwise
have dealt with service of process will have no effect. The gentleman
has carried the day, and the gentleman's amendment will in fact be
successfully included in this bill.
Mr. CONYERS. Reclaiming my time, the current language in this bill is
carefully balanced. It offers a carrot and a stick. The end result is a
substantially more balanced playing field.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. My sense would be, in most parliamentary
situations, that the last enactment would supersede the previous one.
So the notion that by a prior action we could somehow control a
subsequent action is a dubious proposition at best. The gentleman has
got a drafting problem. He cannot solve it by something that we did a
couple of hours ago, because by a subsequent action we would be deemed
to have amended or modified the previous action.
Mr. CONYERS. Mr. Chairman, this amendment strikes a blow against U.S.
citizens, the same as the other discovery amendment tried to do.
Mr. COX of California. Mr. Chairman, I yield 3 minutes to the
gentleman from Texas, Mr. Pete Geren.
(Mr. PETE GEREN of Texas asked and was given permission to revise and
extend his remarks.)
Mr. COX of California. Mr. Chairman, will the gentleman yield?
Mr. PETE GEREN of Texas. I yield to the gentleman from California.
Mr. COX of California. Our amendment dealt with section 109 and
struck it. The gentleman from Michigan added a new section 110. Our
amendment has no effect on it. So the gentleman has carried the day.
Mr. PETE GEREN of Texas. Mr. Chairman, I thank the gentleman for
yielding time to me.
Mr. Chairman, I rise in support of this amendment. The amendment in
front of us applies to noneconomic damages known to most people as pain
and suffering, emotional distress. Joint and several liability for
noneconomic damages is a system that asks Peter to pay for Paul's sins.
The bill currently remedies this inequity for all products cases.
However, our amendment extends this much-needed reform to all civil
actions. This means that each defendant will be liable for damages for
pain and suffering in an amount proportional to his fair share.
When joint and several liability was first developed, plaintiffs had
to be found completely blameless to recover damages. Now with few
exceptions, plaintiffs can recover damages even if they are partially
or mostly at fault. In a recent case involving Walt Disney and a woman
injured on bumper cars, Walt Disney was found 1 percent at fault in an
accident, yet the trial court held and the Florida Supreme Court
affirmed that Disney had to pay 86 percent of the plaintiff's damages.
It may make sense to require that a single defendant be held
accountable for all economic damages to make sure that the defendant is
made financially whole to the extent that dollars can account for the
problems suffered by the plaintiff, but there is little justification
for allocating liability in this manner for highly subjective
noneconomic damages.
I urge my colleagues to join me in voting for this amendment. The
problems of joint and several liability are not limited exclusively to
the product liability area. Excessive noneconomic damages are not
commmonplace in all types of cases, including claims against
[[Page H2954]] citizen, small businesses, charities, and the Little
League.
Let us ask each citizen to pay his or her fair share of the damages,
no more, no less. That is fair.
Mr. Chairman, I ask my colleagues to support this amendment.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield 4 minutes to the
gentleman from Michigan [Mr. Dingell].
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Chairman, the House a little earlier rejected an
amendment which would have denied discovery to American firms which
were involved in product liability cases where foreigners were taking
advantage of them and where they were receiving shelter under the bill.
Note that the vote was 258 in favor of that amendment, an overwhelming
win. This amendment would, and language of section 109, eliminate the
requirement that foreign companies inside this country appoint an agent
for purposes of receiving service in the case of product liability
suits.
I say that the House has once rejected that principle and should
again reject it. Under the previous amendment, you could not get
discovery. Now you cannot even get into court under this amendment.
Let us talk about something other. In eliminating the joint and
several liability, a man hires two hoodlums to kill his mother-in-law.
The woman is horribly disfigured. Judgment is collected ultimately by
the woman against the husband and the two hoodlums. She can only
collect approximately a third because no longer is there joint and
several liability.
Another case: A Member of Congress is liabled by his local newspaper,
charged with contributing to the delinquency of a minor. No longer
under this amendment is there joint and several liability. He sues the
newspaper and the two reporters. Because joint and several liability is
no longer there, we can only collect approximately a third of the
damages which would have been appropriately assessed against the
wrongdoers.
This is a bad amendment. It is an admirable reason for why we ought
not write legislation of this kind on the floor. It carries the
question of liability. It carries the question of compensation well
beyond the question of product liability.
It carries it into all civil wrongs and all civil litigation.
The amendment should be rejected. It favors foreigners, it favors
wrongdoing. It puts the innocent at risk. It denies people proper
recovery for serious wrongs, intentional or otherwise.
I urge the amendment be rejected.
Mr. DOGGETT. Mr. Chairman, will the gentleman yield?
Mr. DINGELL. I yield to the gentleman from Texas.
Mr. DOGGETT. Mr. Chairman, the section that is being deleted by the
Cox amendment requires the foreign manufacturer to appoint an agent for
service or process. The prior amendment of the gentleman from Michigan
[Mr. Conyers] did not touch that issue at all. So what this is doing is
something very inconsistent with the spirit of the Conyers amendment,
but if this amendment should pass, contrary to the author's
representations, it would do great damage just as the gentleman has
suggested.
Mr. DINGELL. Reclaiming my time, Mr. Chairman, it strikes the
provision relative to service of process. It strikes the proper
requirement that foreign companies appoint an agent for purposes of
receiving service.
Mr. DOGGETT. Mr. Chairman, if the gentleman will continue to yield,
the House, previously, by an overwhelming margin adopted the amendment
of the ranking Member, the gentleman from Michigan [Mr. Conyers]. It
does deal with trying to assure parity that we, for once, do not give
all the advantages to the foreign manufacturers, that we realize the
importance of American manufacturers and now the spirit and the
principle of that amendment is being undermined by the amendment being
offered at this point, because it deletes the section in this
particular provision that requires these foreign manufacturers to have
an agent for process, something that every American manufacturer has to
do.
Mr. DINGELL. The House has already spoken. Foreigners should respond
in discovery. But this amendment strikes the ability to even get them
in court. It takes away the ability of an American injured by foreign
misbehavior in the area of product liability to even get service,
because no longer must the foreigner appoint an agent for purposes of
receiving service under this legislation.
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume.
It is very interesting to note that the fair share rule that we are
proposing in this amendment is apparently so unobjectionable that the
minority chooses not even to debate it, but rather to debate the red
herring, first, that the Conyers amendment that we earlier passed might
be stricken by this amendment. They have now conceded that the Conyers
amendment is protected, is part of this bill. We have just passed it.
It is not stricken.
But the argument is raised that the service of process provisions in
another part of the bill, which are required in order to make the
Conyers amendment work, would be stricken. That is neither here nor
there because the Hague Service Convention already provides procedures
consistent with our international agreements that will permit the
Conyers amendment to work perfectly fine.
Mr. Chairman, I yield 3 minutes to the gentleman from Nebraska [Mr.
Christensen].
Mr. CHRISTENSEN. Mr. Chairman, I thank the gentleman for yielding
time to me.
I rise in support of the Cox-Geren-Ramstad-Christensen bill under
debate here. This is an important piece of legislation that will ensure
small businesses and volunteer organizations, to make sure that they
are brought under the umbrella of protection that we have sought to
provide other American manufacturers.
This amendment will extend the prohibition against the unjust
application of joint and several liability to all civil cases involving
interstate commerce.
{time} 1900

The litigation explosion is having an adverse affect, not only on our
manufacturing, but also on the Nation's start-up businesses and other
small businesses. Frivolous and excessive litigation has an especially
destructive affect on small businesses.
We all know these sorts of businesses. They are undercapitalized and
understaffed, which means they cannot afford either the lawyer bills or
the ridiculous amounts of time it takes for an individual to deal with
a legal matter.
Under the rule of joint and several liability, a small business can
find itself literally driven out of business by a jury in search of a
pocket, and a pocket with money in it. It is usually the deep pocket
they are looking for.
But small businesses are not alone in being threatened by joint and
several liability. We have all heard the horror stories about the
vastly increased insurance premiums that volunteer organizations and
municipalities across the country are being forced to pay because of
the ridiculous rulings against them.
Those rulings, based on the doctrine of joint and several liability,
based on the idea that you can be held entirely responsible for the
injury if you are only 1 percent or 2 percent at fault, are absolutely
wrong. When trial lawyers go looking for a State that has been very
kind to them, and sympathetic juries, they go to States like Alabama
and Texas. I will tell the Members, it is time to restore some common
sense back to this rule.
That is why Congress needs to exercise its authority to serve as the
arbiter on the issues that are involving interstate commerce, so that
we have cases that are judged similarly in New York and in Texas and in
Alabama and in Omaha, NE, where I am from.
We need to end the arbitrary doctrine of joint and several liability,
and we need to end it today. I urge my colleagues to vote for this Cox-
Ramstad-Geren-Christensen amendment, and to do it today.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes to the
gentleman from Virginia [Mr. Bateman].
Mr. BATEMAN. I thank the gentleman for yielding time to me.
[[Page H2955]] Let me say first of all, Mr. Chairman, there is
bipartisan support for this amendment, but my opposition I hope will
demonstrate that there is indeed some bipartisan opposition to this
amendment. I wish there were more than 2 minutes in order for me to
explain all of the variety of reasons why I do so.
Fundamental to it is, No. 1, the recitations of the findings and
purposes of the amendment I think are inordinately broad. They
represent a conclusion by this Congress that we think there are too
many lawsuits being brought in America, and plaintiffs are winning too
many of them. That may or may not be the case, but I suggest it is not
even the function of this Congress to make that judgment. The function
of this Congress is as to Federal law, to set forth the ground rules,
the parameters, and the substantive law for the Federal courts in cases
where there is Federal jurisdiction.
I complain of this amendment because it federalizes a significant
aspect of the law which, until now, has been relegated to the State
courts and to a State court system in which most of the litigation is
brought. I would suggest that we make a mistake to federalize civil
justice in this United States from this Congress, and would say to my
colleagues, especially on this side of the aisle, if we do it today in
this fashion, under these findings, for these purposes, it can be done
tomorrow for entirely different purposes.
Mr. Chairman, let me finally say that this notion of joint and
several liability is bottomed on principles, principles that were part
of the common law of England, brought to America in the 13 original
colonies, and a part of the law of all of those 13 original colonies
forming the Union, and have been a part of the law of all of the States
for all of the years since.
I wish there was time for me to discuss with the Members, and I hope
someone else will, the principle on which that rule regarding joint and
several liability is bottomed. There is a principle involved.
Mr. COX of California. Mr. Chairman, I yield 3 minutes to the
gentleman from Minnesota [Mr. Ramstad].
Mr. RAMSTAD. I thank the gentleman for yielding time to me.
Mr. Chairman, I rise in strong support of this amendment to extend
the fair-share rule to all civil actions.
Mr. Chairman, other than the vote on final passage, make no mistake
about it, this will be the most important vote we will have on tort
reform. The bottom-line question for each of us to answer is this: Why
on earth should a defendant with 1 percent or 2 percent of liability be
held 100 percent responsible for payment of noneconomic damages. That
is the question each of us has to answer. That is not fair, and
everyone knows it.
Let me stress what this amendment will not do. It will not end joint
liability for medical expenses. Thus, even though a party may be only 1
or 2 percent at fault, such a defendant could still be held 100 percent
liable for the plaintiff's medical expenses and other economic damages,
such as lost wages.
While this also may not be fair to such a defendant, it would be more
unfair to deny an injured plaintiff the means to be made whole again,
and that is what our tort system is all about, to make an injured
plaintiff whole.
Mr. Chairman, let us make it perfectly clear that this amendment
simply limits noneconomic damages in proportion to each defendant's
share of fault. This, Mr. Chairman, is just common sense. Let me give
Members an idea of an actual case involving the problem that joint
liability can cause.
Those of the Members who have been there or lived there know that in
Minnesota we have two seasons, winter and road construction. We see
signs for most of the year ``Slow down, give them a break, under
construction.''
Now, picture among these signs a drunk driver careening at an
excessive speed through detours posted at 45 miles an hour. The end
result is a crash. Next comes a lawsuit brought by the drunk driver.
Who does the drunk driver sue? For starters, he sues the State highway
department, but the State in this case imposes limits on its
liabilities, so the driver's attorney sues every deep pocket
imaginable: in this actual case, not only the State but the road
contractor, the utility company who owned the adjoining property, the
engineering firm who designed the detour through which the drunk driver
plowed his car, and so forth.
In the end, the defendants decided to settle out of court for $35,000
each. This was after a 15-member engineering firm spent over $200,000
in legal fees over 5 years, and 100 hours of work that should have been
spent on engineering. Clearly, the drunk driver's attorney would have
thought twice about suing all possible deep pockets if joint liability
were not available.
I urge all of my colleagues to support this amendment to restore
common sense to our legal system, to restore proportionate liability
and the fair share rule.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield 3 minutes to the
gentleman from California [Mr. Berman].
Mr. BERMAN. Mr. Chairman, the intellectual weakness of the arguments
of the proponents is really quite amazing, if you take just a couple of
moments to think about it. First, every case they cite talks about the
1-percent negligent party, but the vast majority, I believe all the
Republicans, voted for a rule which prohibited amendments to eliminate
any minor wrongdoer, anyone below 20 percent, from having joint
liability, while keeping the major wrongdoers in the case, because in
the end, the issue is who is going to get shafted. Either it is the
plaintiff, or it is one of the wrongdoers.
We concede, at least in my amendment that I offered, and it was
denied, that minor tort feasor should not have to pay the entire
judgment. Second, a great deal is made about how important and logical
this is, and it is only fair, but it does not apply to economic
damages.
The gentleman from Massachusetts [Mr. Frank] had an amendment to
exclude anybody who is under for economic or noneconomic damages. If it
is unfair to pay the pain and suffering, why is it fair to pay the
economic damages?
I know why you did not do it that way, because it looked too cruel,
because the proponents of the amendment talk about ``We are just
dealing with the feelings part of this.'' If a person becomes a
quadriplegic because of the negligence of another, and they say ``You
pay the medical bills and the wage loss and that is it, everything else
is just about feelings,'' you amputate the wrong leg because of the
negligence of the hospital or the doctor, you pay whatever wage loss
there is, there may be none, you pay the medical bills, and then
everything else is just feelings, we are talking about compensating the
person and making them whole.
Get rid of the minor tort feasors by excluding the 1 percent, 2
percent, 5 percent, 10 percent case. Do not let off the major
wrongdoers, and leave the plaintiff without being made whole, without
compensation. You talked about the drunk driving case. What you have
passed with title II in this bill is a punitive-damages statute which
keeps a person who is injured by a drunk driver from suing the drunk
driver for punitive damages on State remedies.
The amendment is so broad it reaches into the typical automobile case
in a neighborhood in any city in America. It is not limited to product
liability. It is not limited to interstate commerce. It is the most
far-reaching, intrusive kind of amendment imaginable.
The best comments I have heard today were from the gentleman from
Virginia [Mr. Bateman], a true conservative, who wanted to know what
business is it of Congress' whether in an automobile accident case at
an intersection, there is joint and several liability or not?
We can make arguments either way, but the State legislature and the
Governor, they are the people to decide. They are the ones closest to
the voters. There is no Federal question involved in this, but there
are some economic interests and some insurance companies who want it,
and I do not believe that is the motivation, because I am not into
attributing motivations to people; some people see that perspective,
but they do not see what is going to be left for the plaintiff or for
the concept of Federalism.
[[Page H2956]] Mr. COX of California. Mr. Chairman, I yield myself
such time as I may consume.
Mr. Chairman, the gentleman who just spoke stated ``It isn't limited
to interstate commerce.'' Were that true, I would not support this
amendment, but of course, it is expressly limited to interstate
commerce, which is precisely the role of this Congress under Article 1,
section 8.
Mr. Chairman, I yield 2 minutes to the gentleman from Illinois [Mr.
Hyde], the distinguished chairman of the Committee on the Judiciary.
Mr. HYDE. Mr. Chairman, I shall have to talk fast.
Mr. Chairman, 33 States have abolished joint and several liability.
That is the problem. There are 33 different laws, different methods of
avoiding and evading joint and several liability, which is very unfair.
The serious problem of inconsistency in the tort laws of the 50 States
is there. This seeks uniformity, which makes legal common sense.
Mr. Chairman, let me briefly address the federalism aspect that I
have heard so much about today. I have heard from Members on our side
of the aisle who are troubled by our preempting of State laws. They
insist that the States are important and should not be administrative
districts of the Federal Government.
I just want them to know what the passing of time has done to that
notion. We have the Environmental Protection Agency, Food and Drug
Administration, Occupational Safety and Health Administration, Consumer
Product Safety Commission, Equal Employment Opportunity Commission,
National Labor Relations Board, Federal Trade Commission, Federal
Energy Regulatory Commission, the Securities and Exchange Commission,
the Commodities Futures Trading Commission. Every aspect of life is
regulated by the Federal Government. I have not mentioned the Americans
with Disabilities Act, ERISA.
The only facet of our great economy that is left untouched is the
multibillion-dollar litigation industry. It seems to me it is eminently
justified that we try to put some common sense and rationality,
predictability, into this big business of lawsuits. That is what the
gentleman is trying to do. I support it wholeheartedly.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield 1 minute to the
gentleman from Virginia [Mr. Scott].
Mr. SCOTT. Mr. Chairman, in these cases, all the victim knows is that
he was injured. If you have a doctor who is clearly negligent, the
doctor can escape some liability by saying it was 5 percent the nurse's
fault, 10 percent the anesthesiologist's, 10 percent the hospital, 10
percent the product, and now where are we in the lawsuit?
The plaintiff has to have five different defendants, five different
sets of lawyers, five different judgments, five different collections,
some insolvent. This consumer just has to, I guess, get over it. They
are not going to be able to become whole.
Mr. Chairman, we have always had loser pays. Even if they win, they
might be having to pay opposing counsel. We have limited damages. We
have come up with new defenses.
Mr. Chairman, this reduces the accountability of wrongdoers. It
allows wrongdoers to escape responsibility for their actions, at the
expense of the innocent victims. Consumer protection is taking another
giant step backward. I would hope that we would defeat this amendment.
Mr. COX of California. Mr. Chairman, I yield 2 minutes to the
distinguished gentleman from Connecticut [Mr. Shays].
Mr. SHAYS. Mr. Chairman, I thank the gentleman for yielding time to
me.
Mr. Chairman, 50 States, 50 different State laws affecting interstate
commerce, and we have for so long allowed a tremendous ripoff. It blows
my mind that we have tolerated this for so many years.
Mr. Chairman, I rise in support of Common Sense Product Liability and
Legal Reform Act of 1995, and I rise in support of the amendment of the
gentleman from California [Mr. Cox] and the gentleman from Texas [Mr.
Pete Geren] the fair share amendment.
It is so simple. It does not take a lot of words, a lot of legalese.
The bottom line is so simple. If you are responsible, you should pay
your proportionate share of whatever problem you caused, but if you are
not responsible, you should not be held liable.
When I hear of the outrageous awards that are given to an individual
plaintiff, and then I learn of the liability that company had, which
was 100 percent, when in fact they only caused 5 or 10 percent of the
action, and then I think ``Who pays?'' I pay, you pay. We all pay for
this outrage. This outrage needs to end.

{time} 1915

The bottom line is so simple, it is so clear and maybe it is just one
has to be an attorney to find it confusing. If you are in fact
responsible, you should pay. If you are 50 percent responsible, you
should pay 100 percent of your 50 percent. But you should not have to
pay when you are not responsible in the vast majority of the cases.
I urge my colleagues to vote this amendment and vote this bill. I
consider it of all the bills coming before this Chamber the most
important bill that we will vote on in this entire 2 years.
Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my
time.
Mr. COX of California. May I inquire of the Chair how much time
remains on each side?
The CHAIRMAN. The gentleman from California [Mr. Cox] has 3 minutes
remaining and the gentleman from Massachusetts [Mr. Frank] has 5\1/2\
minutes remaining.
Mr. DOGGETT. Perhaps the gentleman might yield on section 109.
Mr. COX of California. As I indicated, I would like to reserve time
at the end for such purpose.
Mr. Chairman, I yield 2 minutes to the gentleman from Tennessee [Mr.
Bryant].
Mr. BRYANT of Tennessee. I thank the gentleman for yielding me the
time.
I rise in strong support of this bill to abolish the doctrine of
joint and several liability. The core of our judicial system, I think,
is one of fairness and has been repeated so often today.
In this context, it just seems to me the fairest thing, that a person
at fault have to pay and if a person is not at fault, then they should
not have to pay, that it ought to be grossly unfair for this system to
require a defendant to pay the full judgment, 100 percent of a
judgment, when a jury has decided that they are not 100 percent liable,
perhaps as little as 1 percent liable.
The example that I have seen used so many times, you have got 3
defendants, X, Y, and Z, and X is held to be 10 percent at fault and Y
and Z 45 percent at fault each for a total of 100 percent. If 10
percent is the deep pockets in the case and they are going to have to
pay 100 percent of the judgment, they may have a right to go back
against the other two defendants, Y and Z, but if Y and Z have no
money, which is usually the case, it is worthless.
Let me address just briefly before I sit down two
examples that have been brought forward from the other side. One had
to do with the doctor who might be 5-percent liable and point the
finger at the nurse and this nurse and this doctor and this hospital
and that the lawsuit would result in more defendants coming in. Let me
assure the gentleman from Virginia that the lawsuit will certainly
include all of those people, anyway. There is a shotgun approach that
is used so often in litigation to sue anybody that might be at fault
and that is what happens in the type of system we are working under.

Under another example cited by the gentleman from Michigan, he used
the example of a husband hiring two hoodlums to beat up his wife and
somehow that the husband might escape 100-precent fault on that because
of the actions of the hoodlums. I would suggest that the legal theory
of principal and agent would be at work there and certainly whatever
the hoodlums did to his wife, he would be held 100-percent accountable
and I would assume a jury would so find him and he would be 100-percent
liable for the judgment to his wife. Again I think this is the only
fair thing to do under the circumstances, and I strongly support the
bill.
Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my
time for the purpose of closing.
Mr. COX of California. Would the gentleman from Massachusetts who
[[Page H2957]] has significantly more time be willing to yield to the
gentleman to ask a question?
Mr. FRANK of Massachusetts. No.
Mr. COX of California. Mr. Chairman, I yield 1 minute to the
gentleman from Wisconsin [Mr. Roth].
Mr. ROTH. Mr. Chairman, I just learned something this evening. O.J.
Simpson does not have the most creative lawyers in the world; the most
creative lawyers in America are right in this Chamber.
Did Members hear some of these arguments? One fellow from Michigan
who I admire a great deal got up and said, ``Don't vote for this
amendment, people in Congress, because if you do, you can't sue your
local newspaper if they wrong you.''
Have you ever heard of a Congressman winning a case against a local
newspaper? In fact, Sullivan versus New York Times says you cannot sue
your local newspaper.
The reason that this is a great amendment comes not from this body
but from George McGovern. Remember him? After he left the Senate, he
went into business, and here is what he said in the New York Times. He
said,

America is in the midst of a new Civil War, a war that
threatens to undercut the civic basis of our society. The
weapons of choice are not bullets and bayonets but abusive
lawsuits brought by an army of trial lawyers subverting our
system of civil justice while enriching themselves.

That is why this is a good amendment. The Manhattan Institute says it
costs $100 billion a year. Vote for this amendment. It is a great
amendment.
The CHAIRMAN. To close debate, the Chair recognizes the gentleman
from Massachusetts [Mr. Frank].
Mr. FRANK of Massachusetts. To begin, Mr. Chairman, there is not the
remotest evidence that George McGovern was talking about this
particular amendment, because this amendment is not about product
liability. The restriction on joint and several liability for
noneconomic damages on product liability is in the bill. This bill, and
I was glad to hear the gentleman from Illinois proclaim the death of
States rights, because what this bill says is, ``This section shall
apply to any product liability or other civil action brought in any
Federal or State court on any theory where noneconomic damages are
sought.''
This is an amendment that does not deal with product liability but
that is already covered. This says any lawsuit anywhere in America
where people are looking for noneconomic damages, we will tell the
States how to run things. People said, ``Well, we've got to protect our
manufacturing. We do a lot of exports.'' Then they mentioned the Little
League. Well, it is not my impression we export that many little
leaguers. I know the kids go overseas to play ball, but most come home.
They rarely leave but one or two behind. The fact is that this is a
statement by the Republican Party on the whole, not all of them,
saying, ``We don't trust local juries, we don't trust local
legislatures, we don't trust local judges. We will tell you how to run,
not manufacturing, not interstate commerce, any civil lawsuit.''
Someone falls down the steps, someone is sued for libel, someone claims
alienation of affection, anyone, so it is the most arrogant grab from
the States by the Federal Government. Because it is not about
manufacturing. We do not need that. The amendment is about every single
lawsuit and it says we cannot trust the juries and we cannot trust the
States.
As to the noneconomic damage thing, I offered an amendment that said
if you are less than 20 percent responsible, you do not get joint
liability for economic or noneconomic damages. That must have been a
good amendment. How do I know? The Committee on Rules would not let it
in. The Committee on Rules is for openness on any amendment they think
they can beat.
The argument made is that it is unfair to the small tort-feasor to
give that person joint liability. It is unfair economically and it is
unfair in the noneconomic. The distinction is not between economic and
noneconomic damages in a logical world
but between the large and the small degree of responsibility.
So I said all right, let's not discriminate between economic and non-
economic with the gender bias and the class bias that that implicates,
let's cut off the small versus the large. But the Republican Committee
on Rules said, ``Oh, no, that's too logical and we can't have that,
because if we're going to tell every State court in America how to deal
with every lawsuit in America where anybody alleges noneconomic
damages, then we better do it the other way.''
Plus we also have the gentleman's amendment which does weaken the
amendment of the gentleman from Michigan. Under the amendment of the
gentleman from Michigan, a foreign manufacturer must name an agent to
be served here. The gentleman strikes that in this amendment. We would
still theoretically have jurisdiction if we can find them to serve
them.
I mean in Croatia, they have jurisdiction over Serbian war crimes but
they are not going to try many Serbs and we will still have technical
jurisdiction over foreign manufacturers but if the gentleman from
California's amendment passes and they do not have to designate an
agent for accepting process, we will not get many of them into court.
It is an abstract discussion and what he is saying is to every State
court in America, every State court in America, if there is a foreign
manufacturer, you can't require them to serve process and if you want
to sue them in State court, good luck to you. Maybe the United Nations
can pick them up on the way to try and find some Serbs in Croatia,
because they will have about as much chance.
This belies the notion that the Contract is about empowering the
States. This says when we feel that the economic interests with which
we are in most sympathy will be better served by nationalizing matters
that have been State law for 200 years, we will do so. And we will
claim it is according to interstate commerce, that will be the entering
wedge. Then we will give you an amendment which says any civil action
in any Federal or State court on any theory.
This is the ``anys'' amendment. Every ``any'' that applies got put
into this amendment. Any case, any State, any cause of action, any
reason they want, congratulations, you are now under Federal law.
This amendment brings back Selective Service. You have just drafted
every State court and every State
jury and every State cause of action and it has nothing to do with
interstate commerce. Maybe the Republican party has adopted the theory
that there is no more interstate commerce.

Mr. COX of California. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. No, no more than the gentleman would
yield to the gentleman from Texas.
Maybe you have now adopted a theory that there is no more interstate
commerce, that we are all one big unitary society. I think you are
going a little far myself, but I take it after we heard the gentleman
from Illinois who said everything in American life has been
nationalized except this, that you have now conceded that everything is
now fair game nationally and we will not hear the States rights
arguments again.
Fifty different State laws, is that not terrible? Of course where
poor children are concerned, 50 different State laws is a good idea.
Where school lunches are concerned, 50 different low levels of State
nutrition, that is a good idea. Where Aid to Dependent Children 3- and
4-year-olds who need economic support, let's give it back to the
States.
I have never seen such selectivity about what goes to the States and
what does not.
I yield to my friend the gentleman from Texas.
Mr. DOGGETT. This amendment deletes section 109 from the bill.
Section 109 of this bill requires that a foreign manufacturer to
benefit from this bill at all, to get any benefit from it, appoint an
agent for service of----
The CHAIRMAN. The time of the gentleman has expired.
The question is on the amendment offered by the gentleman from
California [Mr. Cox].
The question was taken; and the Chairman announced that the noes
appeared to have it.

recorded vote

Mr. COX of California. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN. This will be a 17-minute vote.
[[Page H2958]] The vote was taken by electronic device, and there
were--ayes 263, noes 164, not voting 7, as follows:

[Roll No. 225]

AYES--263

Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Baldacci
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Brewster
Browder
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cardin
Castle
Chabot
Chambliss
Chenoweth
Christensen
Chrysler
Clement
Clinger
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Cramer
Crane
Crapo
Cremeans
Cunningham
Danner
Davis
Deal
DeLay
Dickey
Dicks
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fazio
Fields (TX)
Flanagan
Foley
Fowler
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)
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Holden
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kennelly
Kim
King
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
Livingston
LoBiondo
Longley
Lucas
Maloney
Manzullo
McCarthy
McCollum
McCrery
McDade
McHugh
McInnis
McIntosh
McKeon
McNulty
Metcalf
Meyers
Mica
Miller (CA)
Miller (FL)
Molinari
Montgomery
Moorhead
Morella
Myers
Myrick
Neal
Nethercutt
Neumann
Ney
Norwood
Nussle
Ortiz
Packard
Parker
Paxon
Payne (VA)
Peterson (MN)
Petri
Pombo
Pomeroy
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Richardson
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schumer
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
Taylor (MS)
Taylor (NC)
Tejeda
Thomas
Thornberry
Tiahrt
Torkildsen
Torricelli
Traficant
Upton
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer

NOES--164

Abercrombie
Ackerman
Andrews
Barrett (WI)
Bateman
Becerra
Beilenson
Bentsen
Berman
Bevill
Bishop
Bonior
Borski
Boucher
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Chapman
Clay
Clayton
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Diaz-Balart
Dingell
Dixon
Doggett
Doyle
Durbin
Engel
Eshoo
Evans
Farr
Fattah
Fields (LA)
Filner
Flake
Foglietta
Ford
Fox
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gonzalez
Green
Gutierrez
Hall (OH)
Hastings (FL)
Hayes
Hefner
Hilliard
Hinchey
Hoyer
Istook
Jackson-Lee
Jacobs
Jefferson
Johnson (SD)
Johnson, E. B.
Johnston
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kildee
Kleczka
Klink
LaFalce
Lantos
Laughlin
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Manton
Markey
Martinez
Martini
Mascara
Matsui
McDermott
McHale
McKinney
Meehan
Meek
Menendez
Mfume
Mineta
Minge
Mink
Moakley
Mollohan
Moran
Nadler
Oberstar
Obey
Olver
Orton
Oxley
Pallone
Pastor
Payne (NJ)
Pelosi
Peterson (FL)
Pickett
Poshard
Rahall
Reed
Reynolds
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schiff
Schroeder
Scott
Serrano
Skaggs
Skelton
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tauzin
Thompson
Thornton
Thurman
Torres
Towns
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Williams
Wilson
Wise
Woolsey
Wyden
Wynn
Yates

NOT VOTING--7

Cubin
Forbes
Gibbons
Murtha
Owens
Rangel
Tucker

{time} 1945

Messrs. POSHARD, HAYES, and COLEMAN changed their vote from ``aye''
to ``no.''
Messrs. HOLDEN, MILLER of California, FAZIO, TEJADA, and Mrs.
KENNELLY changed their vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
{time} 1945

The CHAIRMAN. It is now in order to consider amendment No. 12,
printed in section 2 of House Resolution 109, as modified.

amendment offered by Mr. Cox of california

Mr. COX of California. 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. COX of California:
Page 19 redesignate section 202 as section 203 and after
line 19 insert the following:

SEC. 202. LIMITATION ON NONECONOMIC DAMAGES IN HEALTH CARE
LIABILITY ACTIONS.

(a) Maximum Award of Noneconomic Damages.--In any health
care liability action, in addition to actual damages or
punitive damages, or both, a claimant may also be awarded
noneconomic damages, including damages awarded to compensate
injured feelings, such as pain and suffering and emotional
distress. The maximum amount of such damages that may be
awarded to a claimant shall be $250,000. Such maximum amount
shall apply regardless of the number of parties against whom
the action is brought, and regardless of the number of claims
or actions brought with respect to the health care injury. An
award for future noneconomic damages shall not be discounted
to present value. The jury shall not be informed about the
limitation on noneconomic damages, but an award for
noneconomic damages in excess of $250,000 shall be reduced
either before the entry of judgment or by amendment of the
judgment after entry. An award of damages for noneconomic
losses in excess of $250,000 shall be reduced to $250,000
before accounting for any other reduction in damages required
by law. If separate awards of damages for past and future
noneconomic damages are rendered and the combined award
exceeds $250,000, the award of damages for future noneconomic
losses shall be reduced first.
(b) Applicability.--Except as provided in section 401, this
section shall apply to any health care liability action
brought in any Federal or State court on any theory or
pursuant to any alternative dispute resolution process where
noneconomic damages are sought. This section does not create
a cause of action for noneconomic damages. This section does
not preempt or supersede any State or Federal law to the
extent that such law would further limit the award of
noneconomic damages. This section does not preempt any State
law enacted before the date of the enactment of this Act that
places a cap on the total liability in a health care
liability action.
(d) Definitions.--As used in this section--
(a) The term ``claimant'' means any person who asserts a
health care liability claim or brings a health care liability
action, including a person who asserts or claims a right to
legal or equitable contribution, indemnity or subrogation,
arising out of a health care liability claim or action, and
any person on whose behalf such a claim is asserted or such
an action is brought, whether deceased, incompetent or a
minor.
(b) The term ``economic loss'' has the same meaning as
defined at section 203(3).
(c) The term ``health care liability action'' means a civil
action brought in a State or Federal court or pursuant to any
alternative dispute resolution process, against a health care
provider, and entity which is obligated to provide or pay for
health benefits under any health plan (including any person
or entity acting under a contract or arrangement to provide
or administer any health benefit), or the manufacturer,
distributor, supplier, marketer, promoter, or seller of a
medical product, in which the claimant alleges a claim
(including third party claims, cross claims, counter claims,
or distribution claims) based upon the provision of (or the
failure to provide or pay for) health care services or the
use of a medical product, regardless of the theory of
liability on which the claim is based, or the number of
plaintiffs, or defendants or causes of action.
Page 17, line 10, insert ``and other'' after ``punitive''.

The CHAIRMAN. Pursuant to the rule, the gentleman from California
[[Page H2959]] [Mr. Cox] will be recognized for 20 minutes, and a
Member in opposition will be recognized for 20 minutes.
The Chair recognizes the gentleman from California [Mr. Cox].
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, we are coming to the conclusion of our debate about
reform of our civil justice system in America so that the courts will
once again earn the maxim ``Equal justice under law,'' and no longer
will people have to fear the courthouse and think it is not a place for
them and think it merits rather the admonition from Dante's Inferno,
``Abandon hope, all ye who enter here.''
It is impossible, it is unthinkable, to handle lawsuit reform in the
Congress without considering health care, because nowhere in our
American life have the skyrocketing costs of lawsuits done more damage
than in our health care system.
For the last 2 years, in 1993 and 1994, we debated health care in
this country. And during that last 2 years of debate, in 1993 and 1994,
through all the hearings, we all know the story. The American people
came to the essential realization that we need to control health care
costs so that we can increase access for those who are least able to
afford basic care from doctors and good hospitals.
We decided we did not want a government-run
system, but we decided if we can, we would like to get rid of all of
the extra costs that lawsuits and lawyers suck out of our health care
system, to get rid of all of the extra costs that defensive medicine
imposes on our health care system, that is all the unnecessary tests
that all doctors perform. Three-quarters admit they do this because of
the threat of liability, if for no other good reason, $9 billion in
extra malpractice premiums attributed to defensive medicine. Another
$20 or $30 billion according to various estimates are attributed to
this defensive medicine, which is doctors behaving not in the best
interests of the patients, but lawyers, so Ralph Nader and Joel Hyatt
seem to have more to say about the kind of health care we have in this
country than doctors and patients.

We have a system in place in several States in this country, in
particular my home State of California, that has worked very well,
called MICRA. It has limited our health care premiums for the average
Californian from somewhere between 33 percent and over 50 percent less
than other States without these reforms. That is what I propose in this
amendment today. The only change that this makes is in health care
cases; not all civil cases like the last one, just health care cases.
We believe that we should have a system in America that compensates
without limit, 100 percent of all of the damages that somebody might
suffer. They should be able to claim these through a lawsuit, all of
the damages for their medical expenses, for their doctors' expenses,
for their hospital expense, without limit, all of their rehabilitation
expenses, all of their future estimated lost income and earnings. All
of these things called economic damages should be compensable without
limit.
We have already decided that on top of that, they should be able to
multiply all of their real, actual damages times three and get that in
punitive damages. In our country uniquely we have something called
noneconomic damages. That means things we cannot really monetize, we
cannot figure out how much it is worth, but we just want to add extra
on top of all the real damages and punitive damages.
Only four other countries in the world allow this kind of damage. For
the rest of the world it is zero, and for the other countries that
allow it limit it sharply. In Canada this type of damage award is
limited to $180,000. In California we limit it to $250,000. That is
what we would do in this amendment.
Mr. Chairman, I urge my colleagues to vote for this vitally important
health care reform. We know we need it. I hope that Members will act
upon it.
Mr. Chairman, I reserve the balance of my time.
Mr. BERMAN. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN. The gentleman from California [Mr. Berman] is
recognized for 20 minutes.
Mr. BERMAN. Mr. Chairman, I yield myself two minutes.
Mr. Chairman, let me initially correct some of what I am sure are the
inadvertent misrepresentations of the gentleman from California. No. 1,
California's health care premiums did not go down 33 percent over what
they would have been. The gentleman is referring to the malpractice
premiums paid by physicians, not the health care premiums paid by
citizens.
Second, this bill is not in any fashion limited to medical
malpractice. It covers, with a $250,000 limit on pain and suffering,
any health care liability action which is defined in this bill under
any theory, tort, or contract, that a contractor could have a provision
for liquidated damages, anything like that that goes beyond the medical
costs and the lost wages, and it seeks to put this $250,000 limit on
that.
The anomaly is when this day is done, if this amendment passes, and
you ride in a car which is manufactured defectively, it explodes, and
you are paralyzed, there is no limit on what you can get for pain and
suffering. Difficult to quantify, but very real. You are paralyzed for
the rest of your life, you are a quadriplegic, the wrong leg is
amputated, there is something there beyond wage loss, and there is
something there beyond just the simple cost of your medical treatment.
If you are injured in that explosion by that defective car, no limit.
If you are injured because of the negligence in a defective medical
device and it results in your being paralyzed, you are capped at
$250,000.
What is the logic of the distinction? I do not know. I will be
interested in hearing the gentleman speak to that particular issue.
Once again, we have gone way beyond the issue of product liability
and gone way beyond the issue of medical malpractice. In California
there are a series of damage remedies for bad faith insurance
practices. If it is a health insurance policy and the health insurance
company does not pay and the result is serious injury to the person, if
he is arbitrarily canceled and there are massive losses and a breach of
contract, under that theory, no matter what the contract provision
provides for damages, this comes in and caps the pain and suffering
with those limitations.
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I would like to respond to the gentleman from
California by saying he is correct that as a result of the health care
lawsuit reform passed in California, by a Democratic legislature I
should add, medical liability premiums are 33 percent to 50 percent
lower on average than those in other States that do not have these
reforms.
Mr. Chairman, I yield to the distinguished coauthor of this
amendment, the gentleman from Texas [Mr. Pete Geren], 2 minutes.
(Mr. PETE GEREN of Texas asked and was given permission to revise and
extend his remarks.)
Mr. PETE GEREN of Texas. Mr. Chairman, I rise in support of this
amendment, and I want to direct Members' attention to the change that
has been made in this amendment. This was an amendment that was the
subject of the rules change earlier today in the printing in DSG that
describes it as a limit on noneconomic damages for all civil actions.
That is no longer correct. This is limited to health care liability
actions. It is patterned after the MICRA system in California.
The Office of Technology Assessment reported in 1993 that limits of
this type that will come about as a result of this amendment are the
single most effective reform in containing medical liability premiums.
Ohio is a good example of a State in which a cap on noneconomic damages
had a substantial impact on costs until it was struck down. Prior to
the enactment of the cap, Ohio's payment of medical malpractice claims
was 3.7 percent of the total nationwide. That declined to 2.9 percent
while the reforms were in force. In 1982, the Supreme Court invalidated
the claim, and by 1985 the percentage of nationwide claims had almost
doubled to 5.4 percent.
California had the highest liability premiums in the Nation prior to
its enactment of a cap of this type. Since its
[[Page H2960]] enactment, cap premiums are now one-third to one-half of
those in New York, Florida, Illinois and other States that do not have
these kind of limits.
Contrary to what many are saying, a ceiling on noneconomic damages
will not in any way restrain the ability of an injured party to recover
medical expenses, lost wages, rehabilitation costs, or any other
economic out-of-pocket loss suffered. It only limits those damages
awarded for pain and suffering, loss of enjoyment, and other intangible
items. These items routinely account for 50 percent of the total
payment of a suit and are highly subjective.
Mr. Chairman, this system has worked in California, it is an
important planning in any health care reform we consider as a country,
and it will help us hold down the skyrocketing costs of health care in
this country.
Mr. Chairman, I urge my colleagues to support this amendment.

{time} 2000

Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Illinois [Mr. Durbin].
Mr. DURBIN. Mr. Chairman, I do not profess to be an expert on any
subject. But I come to this debate with some experience. Prior of my
election to Congress, I spent 10 years practicing law, specializing in
medical malpractice. I defended doctors, and I brought suit against
them.
Let me ask my colleagues, if they can for a few moments, to forget
the lobbyists, forget the companies, the insurance companies, and
forget all of the special interests and listen to one simple tragic
story.
One of my first cases involved a baby girl. I would say to the
gentleman from California, Mr. Cox, and to the gentleman from Texas,
Mr. Pete Geren, that like most parents in America, these parents took
their baby girl to the pediatrician for her baby shots. Unfortunately,
this little girl has suffered from a rash called roseola a few days
before she went for her shots. Because of the doctor's failure to ask
and examine, the little girl suffered a devastating reaction to the
vaccination. The brain damage was so severe she was left in a permanent
vegetative state. She would never speak, never walk, never go to
school. She would be in diapers as long as she lived.
For 5 years or 50 years or more, she and her loving parents would
suffer from the negligent act of that doctor.
Mr. Cox and his amendment would decide that no matter how long she
lived, no matter how long she suffered, her maximum recovery for pain
and suffering would be $250,000. Mr. Cox would take away from any court
or jury in America the right to decide that she and her parents deserve
1 penny more.
My Republican colleagues call this common sense legal reform.
Limiting a deserving victim's right to recover for pain and suffering
does not even reach the threshold of common decency.
We are not talking about frivolous lawsuits. We are talking about
parents facing a lifetime of caretaking because of a doctor's
negligence. We are not talking about verdicts that we giggle about when
we hear about them on the radio. We are talking about verdicts that
when you hear about them you say, it could not be enough. You could not
pay me enough money to live with that injury to myself or my baby.
But Mr. Cox is prepared to say no matter what your injury, no matter
what your pain, no matter how many years you will be crippled and
broken, your right to recover will be limited.
Our system of justice is far from perfect, but this Cox amendment
would invite tragic, unjust results which would be visited on the lives
of innocent victims and their families for decades to come.
This amendment is mean in the extreme. Vote ``no.''
Mr. COX of California. Mr. Chairman, I yield 2 minutes to the
gentleman from Nebraska [Mr. Christensen].
(Mr. CHRISTENSEN asked and was given permission to revise and extend
his remarks.)
Mr. CHRISTENSEN. Mr. Chairman, do not be confused about the opponents
that I just heard visit on this, this little child will be compensated
for those damages for the rest of her life. The plaintiffs bar are
going to try to confuse the issue here, but in Omaha, NE, an ob/gyn
pays 20,000 in medical malpractice insurance. Just across the river
that same ob/gyn pays 60,000 in medical malpractice insurance. Why?
Because of the reason we have tort reform in Nebraska. We have a cap on
medical malpractice in Nebraska. And that is why we need to continue to
enforce this State by State so other States can enjoy what we have in
my home State.
Because of the litigation explosion, the cost of insurance to
obstetricians jumped 350 percent between 1982 and 1988. In some areas a
doctor will spend over 100,000 on medical malpractice insurance. Faced
with these numbers, many doctors cannot afford to deliver babies in
rural areas and poor areas. We need to put a reasonable ceiling on
health care liability so it will open the way for lower insurance
costs. Too many personal injury lawyers are making their careers out by
waging war on doctors these days. Because of their activity, men and
women and children across this land are going to suffer each and every
day. This bill restores some common sense to what we need to restore in
our civil justice system.
I yield to the gentleman from Georgia [Mr. Barr].
Mr. BARR. Mr. Chairman, I thank the gentleman for yielding to me.
Mr. Chairman, this begins an important process that is not
independent of the process but it begins an important process, this
legislative proposal, in curbing the worst excesses of the current tort
system. In the future, I propose that we address additional amendments
that will take into account extraordinary circumstances warranting
adjustments to these otherwise generous caps.
Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Oklahoma [Mr. Istook].
Mr. ISTOOK. Mr. Chairman, I thank the gentleman for yielding time to
me.
Mr. Chairman, I rise in opposition to this amendment. I believe this
is a deadly amendment. I believe it is a damaging amendment. I think it
is an amendment that fails to take stock of reality. Under this bill,
your losses must be one of two types: either they must be economic
damages, as defined on page 20 of the bill, something that is a
financial loss. Everything else is noneconomic damage.
If you lose your sight, it is noneconomic damage. If you lose any
other organ, your ears, your hearing, it is noneconomic damage. If you
lose your arm, if you lose both legs, if you are paralyzed for the rest
of your life, it is noneconomic damage. And it is capped; it is treated
under the same cap as intangibles such as pain and suffering.
Mr. SKELTON. Mr. Chairman, will the gentleman yield?
Mr. ISTOOK. I yield to the gentleman from Missouri.
Mr. SKELTON. Mr. Chairman, what does this do to the nature and extent
of the injuries such as someone with an amputated foot?
Mr. ISTOOK. This means that if you can still make a living with your
amputated foot, then you are restricted in what you can recover, even
if you can no longer play football with your kids or soccer or
baseball. If you lose your sight, you cannot even go to a movie or
watch a TV program. You cannot see your children. You cannot see a
family picture. You cannot check out and watch a video. Whatever it may
be, that is what we are restricting if this amendment is adopted.
Mr. SKELTON. I thank the gentleman for yielding to me.
Mr. ISTOOK. I want to urge my fellow Republicans, those of us who
have been supporting tort reform, to vote down this amendment. I do not
think a lot of Members realize what you are lumping in. The reference
in the text of the amendment to pain and suffering is only by way of
example and inclusion. It is not the complete definition of noneconomic
damages. It does not pretend to be. Do not tell me that there is no
difference between having a lifetime where you may have perpetual pain.
I had a young man that I hired in my office as a staff member that
was a paraplegic in a wheelchair. Do not tell me that because he was
still able to work, which he did, tremendous young man, tremendous
worker, but do not tell me because of that, the accident that cost him
his feelings from below the waist, is not worth anything more than
someone that says, I hurt or I have emotional distress. Do not treat
those as the same. Do not treat someone that
[[Page H2961]] has this type of disability as no different than someone
who just says, I have pain or I have emotional distress.
This amendment does that. I urge my colleagues, even those who
support tort reform, vote down this amendment.
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume.
I am sure that the gentleman from Oklahoma did not mean to
mischaracterize in his statement. He said that there are only two types
of damages, economic and noneconomic. He inadvertently left out
punitive damages which has been the subject of much debate here. Under
our legislation, punitive damages are allowed, in addition, up to three
times all of the actual damage.
I should also point out that there is another more important reason
that we need to do health care lawsuit reform tonight. It is that the
poor and the disadvantaged who use our public hospitals, our free
clinics and our community clinics are the worst injured by the high
liability costs today.
Qualified doctors increasingly are refusing to do high-risk
procedures. And where do these high-risk procedures occur but in our
public hospitals.
The front page of the New York Times last Sunday is a great example.
The bottom line for babies weighing over 5\1/2\ pounds, the cutoff they
use as a general gauge of good health for babies, the death rate the
first 4 weeks after birth in New York City's public hospitals is 80
percent higher than for babies born at private hospitals. New York's
unlimited tort liability system has not stopped malpractice cases.
They hired as an obstetrician a man who had failed for 14 years his
national exams. Just a few months after he was hired by the city
hospitals of New York, he became another one of their malpractice
cases. New York, unlike California, does not have this kind of health
care reform.
They have thousands of lawsuits. Over the past two decades those
lawsuits have not stopped malpractice. They have made it worse. A 1992
report studied lawsuits of 64 children in those New York hospitals who
have been left brain damaged or permanently crippled because of
negligence in the delivery room. These 64 lawsuits alone cost city
hospitals $78 million and another 793 lawsuits were still pending. What
is seen is that more and more lawsuits lead to ever higher liability
premiums and this leads to even fewer qualified doctors willing to
handle the kinds of higher-risk cases that typify low-income health
care.
That in turn leads to less and less access to quality care for the
poor. The patients suffer.
Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr.
Thomas].
(Mr. THOMAS asked and was given permission to revise and extend his
remarks.)
Mr. THOMAS. Mr. Chairman, I want to thank the gentleman from
California [Mr. Cox] and the gentleman from Texas [Mr. Pete Geren] for
having the courage to bring this amendment to the floor.
I just wanted to tell my colleagues that the high point in the last
Congress for me was as ranking member of the health subcommittee in
discussing the President's health care plan. Democrats and Republicans
together in a bipartisan way passed a medical malpractice reform
provision out of the subcommittee. It was, of course, denied in the
full committee, and we went on not to do anything at all on the floor
of the 103d Congress about health care reform.
And 3 months into this Congress, on the floor of the House, is the
key to health reform.
A yes vote on this amendment will, of course, lower health care costs
by lowering malpractice insurance rates. A yes vote on this amendment
will remove the defensive medicine costs and lower health care rates. A
``yes'' vote on this amendment will get rid of the ridiculous border
games now played between States and doctors because of the
nonuniformity of malpractice laws across this country.
But more important and fundamentally, get your eyes off of this
amendment and look up. This vote is on health care reform. It this
amendment loses, the chances of meaningful health care reform in this
Congress are virtually gone. This is the time and this is the moment.
I also might add, we maybe need truth in packaging around here. I
want to confess, I am not an attorney. And I am for this amendment,
because in passing this amendment, we have laid the fundamental
groundwork for real health care reform in this Congress. Three months
into this Congress, we will have made a statement to everybody. This
Congress intends to be bipartisan, not just in subcommittees, not just
in committees, but on the floor. Pass this amendment, and we can pass
health care reform. Vote ``yes'' on this amendment.
Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from
California [Mr. Waxman].
Mr. WAXMAN. Mr. Chairman, I am astounded at the comments of my
colleague from California, new chairman of the Subcommittee on Health
of the Committee on Ways and Means. Our State of California has these
limits that this proposal would impose upon the whole country. Is that
health care reform? The State of California has 3 million people who
are uninsured. It has not solved our problems. Has it led to any less
defensive medicine? There is no evidence of that whatsoever. Has it
reduced the premiums the doctors pay? Perhaps, somewhat, it is
stabilized. It may have had that value. But this is not health reform.
If you are being told we have to keep somebody who is injured and
maybe even butchered in surgery from recovering to make them whole so
that we have health reform, this is not what health reform is all
about.
Mr. THOMAS. Mr. Chairman, will the gentleman yield?
Mr. WAXMAN. I yield to the gentleman from California.

{time} 2015

Mr. THOMAS. Mr. Chairman, I ask the gentleman, is he an attorney?
Mr. WAXMAN. Mr. Chairman, I would say to the gentleman, I am an
attorney. What is that supposed to mean?
Mr. THOMAS of California. Thank you.
Mr. WAXMAN. Mr. Chairman, is the gentleman a doctor?
Mr. COX of California. Mr. Chairman, I yield 2 minutes to the
distinguished gentleman from Florida [Mr. Bilirakis].
Mr. BILIRAKIS. Mr. Chairman, in the previous Congress I coauthored
consensus health reform legislation with our former colleague, Dr. Roy
Rowland of Georgia, health reform that sought to bring to the table
issues upon which broad agreement existed in the Congress and among the
public. It became one of the leading health reform proposals at that
time, and it was the one truly bipartisan health bill considered by the
103d Congress.
One of the consensus issues in our bill was medical malpractice
reform. It was an issue upon which many Members of this body on both
sides of the aisle agreed. In fact, it was a consensus item addressed
in most of the health reform bills introduced in the previous Congress.
I have no reason to believe that medical malpractice reform is any less
of a priority in this Congress. All of these bills included a $250,000
cap on noneconomic damages, just as does this amendment.
Did the 98 Members who signed onto our legislation, 36 of them
Democrats, support this cap because they wished to deny an individual
the full legal redress to which he or she was entitled? The answer, of
course, is no. Opponents of this amendment
today claim that we cannot quantify the pain and suffering of a victim
of injury. I tell them this, I cannot agree with them more. I believe
that our legal system should pay the complete costs of injury,
including lifetime medical costs, rehabilitation, disfigurement, or
other forms of actual damage, without limit.

But the very fact that noneconomic pain and suffering damages cannot
be quantified has led us into a swamp of astronomical awards that
amount not to judgments but to windfalls. No other country in the
world, Mr. Chairman, allows these kinds of windfall awards. Is that
because they have any lack of feeling or sympathy for the victims of
injury? Again, the answer is, of course not. The true reason for
limiting these
[[Page H2962]] awards is that it is the single most effective method of
reducing medical liability costs. This, in turn, leads to reduced
health care costs for everyone. I strongly urge my colleagues to vote
for the Cox-Geren-Ramstad-Christensen amendment today.
Mr. BERMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
North Dakota [Mr. Pomeroy], a nonlawyer.
Mr. POMEROY. Mr. Chairman, I would tell the gentleman from California
[Mr. Berman], I do have a law degree, and practiced for 5 years. I
never brought a medical malpractice action. More recently, I regulated
insurance for 8 years. I am the only former State insurance
commissioner in Congress, and it is in connection with this that I
rise.
My friend, the gentleman from California [Mr. Thomas], urged you to
take your eyes off the amendment and look at the health care issue and
pass this bill. The health care issue is not before us; the amendment
is. I urge Members to go back and look at the text, because we could
embarrass ourselves by passing this amendment as drafted.
Mr. Chairman, on page 2, between lines 13 and 16, it says ``This
shall apply to any health care liability action brought on any
theory.'' I wish the sponsor of the amendment would have yielded to my
question, because I was going to ask him, does that mean you cannot sue
for noneconomic loss in excess of $250,000 a psychologist that was
abusing his patients? I believe yes, under the strict terms of the text
you have offered.
On page 3 of the bill, health liability action is
defined as more than the providing of health care, but also the
paying for health care. In connection with this, I have a lot of
experience, because I adjudicated claims that were unfairly denied by
health insurers. I am aware of people who have had bills, hospital
bills they have owed, bill collectors hounding them on those bills, and
yet they have not been paid by their insurance company.

Clearly, Mr. Chairman, we do not want to protect that. There is a lot
of noneconomic loss that can flow from that, but that is covered under
the bill, the liability is capped under the bill on any theory. No
matter how egregious the conduct of the health insurer, no matter how
blatant, how cruel, the liability is capped.
This bill may address a very important concept, one we need to work
on. We did not have a hearing on it, we did not discuss it. The
language brought before us in this amendment overreaches and would put
you in the position of protecting the abusing psychologist and the
claim-denying health insurer. You do not want to be in that position.
The CHAIRMAN. The Chair would inform the committee that the gentleman
from California [Mr. Berman] has the right to close debate.
The Chair recognizes the gentleman from California.
Mr. BERMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Michigan [Ms. Rivers].
Ms. RIVERS. Mr. Chairman, I thank the gentleman for yielding time to
me.
Mr. Chairman, I offer the committee the words of one Frank Cornelius,
who says ``I think tort reform as we know it is totally bad. We have a
judicial system that I find quite adequate, if allowed to function in
its own way;'' so you have to ask, who is Frank Cornelius? Is he some
parasitic trial lawyer? Is he some rabid consumer rights advocate? No,
Frank Cornelius is a lobbyist for the insurance industry. He was part
of an effort in Indiana to cap noneconomic damages. What happened to
Frank Cornelius? Soon after these caps were put in place, major
malpractice was worked upon him. He expects to die within the next 2
years from those problems. He has a different point of view now that he
sees the problem from the side of a patient, as opposed to the side of
the insurance industry. He acknowledges there is a certain poetic
justice to the injury that he suffered, but he adds ``If there is a
God, and I believe there is, what happened to me has a purpose. It
changed my way of thinking and looking at things.'' He says ``Medical
negligence cannot be reduced by simply restricting consumers' legal
rights.'' That is what is being proposed here. Mr. Cornelius found this
out the hard way.
Mr. Chairman, how many other citizens will have to learn this
selfsame lesson? Not many, I hope.
Mr. BERMAN. Mr. Chairman, I yield 1 minute and 30 seconds to the
gentleman from Michigan [Mr. Dingell].
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Chairman, I want Members to look at what this
amendment says, at page 13. It covers anything of a medical character.
It caps pain and suffering and noneconomic damages at $250,000.
Let us look at some of the things for which a person will get
$250,000 maximum for pain and suffering and other noneconomic damages.
A person is blinded, a person is rendered a paraplegic, loss of a leg
or an arm, loss of reproductive capacity. A woman can never have a
child again, she gets $250,000.
How can this body justify the enactment of a proposal which has this,
on which there has been no hearings whatsoever; no hearings, no
testimony, nobody knows what this does. It springs like Hebe from the
brain of Jove, without the faintest appreciation of what is done,
without the least awareness of what it acccomplishes.
Think of the hurt and pain and suffering that you are not properly
compensating with this outrageous amendment. This is an outrageous
amendment. I cannot in conscience see how I can vote for it, and I
cannot imagine anybody else who could contemplate voting for this kind
of outrage. No hearings, capping pain and suffering, without the
faintest acknowledgment of what it will in fact cost.
Let me remind the Members, a citizen can get more on workmen's
compensation, on railroad compensation, or on maritime compensation
than they could get under this.
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the gentleman from Michigan suggests that it is
outrageous to propose health care reform on this floor because health
care reform has not had hearings in this Congress. I think that is
something, after 2 years of hearings on health care, the American
people would find outrageous.
Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Iowa [Mr.
Ganske].
Mr. GANSKE. Mr. Chairman, I rise to support this amendment. I am a
doctor. I would like to talk about three things. I would like to talk
about the economic costs of medical malpractice, I would like to talk
about the noneconomic costs to the patient, and let us talk for just a
second about how lawsuits have limited care.
Twenty years ago when I was in medical school, when we would make
rounds we would talk about the patient's illness and we would talk
about the solutions. Today when you make hospital rounds you talk about
the patient's illness and solutions, and how those solutions may cause
a lawsuit.
What happens? You practice defensive medicine. What happens with
defensive medicine? Additional tests get ordered that you would not
naturally do to cover your backside, and unfortunately, this results in
tremendous increases in expense to the total system.
This is real, Mr. Chairman. When I get called to the emergency room
to take care of somebody with a scalp laceration, if I did not tell the
emergency room doctor ``Do not order that series of x-rays until I see
the patient,'' there would be $400 worth of facial or scalp x-rays
sitting there, whether it is needed or not.
The funny thing about this issue is that the noneconomic costs to
patients by invasive tests that sometimes are ordered to prevent a
lawsuit actually cause a paradox. Every type of invasive test has a
small chance of injury, so what are we doing? We are taking and making
an increased chance of injury. I urge my colleagues to support this
amendment.
Mr. BERMAN. Mr. Chairman, I yield such time as he may consume to the
gentleman from Maryland [Mr. Cardin].
(Mr. CARDIN asked and was given permission to revise and extend his
remarks.)
Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Texas [Mr. Bryant] for purposes of a dialog.
[[Page H2963]] Mr. BRYANT of Texas. Mr. Chairman, I wonder if I could
ask the gentleman, the doctor, who just spoke, a question.
Mr. GANSKE. Mr. Chairman, will the gentleman yield?
Mr. BRYANT of Texas. I yield to the gentleman from Iowa.
Mr. GANSKE. Mr. Chairman, I would be happy to respond.
Mr. BRYANT of Texas. Mr. Chairman, last week a member of the
gentleman's profession did some surgery down in Florida. I heard on the
radio, he was supposed to cut off a person's foot. He amputated it, and
when that person woke up, they had cut off the wrong foot.
How much money does the gentleman think that fellow ought to get for
pain and suffering and noneconomic damages? He woke up and he lost the
wrong foot, which means he is going to lose both his feet, because a
fellow in your profession made a mistake.
How much money do you think he ought to get for noneconomic damages,
an open-ended question?
Mr. GANSKE. If the gentleman will continue to yield, it is inevitable
that mistakes are going to be made.
Mr. BRYANT of Texas. Yes, it is.
Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from New
York [Mr. Nadler].

{time} 2030

Mr. NADLER. Mr. Chairman, in 1986 I and a number of other Members of
this House were members of the New York Legislature and we took up the
issue of medical malpractice. We made so-called tort reforms, we
limited joined and several liability, we limited ability of continent
fees, and did a number of other things. But we also ordered a study to
see what was really going on, what would really work to reduce
malpractice premiums.
Several years later, the Harvard study that we had ordered came down.
What it showed is this: It showed that limiting damages for pain and
suffering to a quarter of a million dollars would not reduce insurance
premiums. It showed that 2 percent of the doctors were responsible for
80 percent of the claims and 80 percent of the awards, that the real
answer to this problem of insurance premiums overwhelming the doctors
is to tell the States to crack down on the 1\1/2\ percent or 2 percent
of the doctors who are killing and maiming people because they are
incompetent and are driving up everyone else's insurance rates.
Victimizing the victim further by this amendment is not the answer.
Cracking down on incompetent doctors is the answer.
Mr. COX of California. Mr. Chairman, I yield myself such time as I
may consume to say that earlier in the debate, one of the Members on
the other side put a question to one of our Members but then did not
yield him sufficient time to respond to that question. The question
that was put was what ought to be the recompense for someone who has
lost a foot due to the negligence of a doctor or a hospital, and the
answer to that question is quite clear. Replacing someone's lost foot
is very expensive in today's world. It involves a great deal of
technology, a great deal of doctors and professional care, probably
lifelong rehabilitation and hospitalization, and in a fair system, 100
percent of those costs without limit would be paid by the people who
were responsible, and that is exactly what will obtain when we pass
this amendment. Nothing in this amendment will change that.
Mr. Chairman, I yield the balance of my time to close the debate to
the distinguished gentleman from Texas [Mr. Stenholm].
The CHAIRMAN. The gentleman from Texas is recognized to close debate
for 2\3/4\ minutes.
(Mr. STENHOLM asked and was given permission to revise and extend his
remarks.)
Mr. STENHOLM. Mr. Chairman, status quo is not acceptable. This debate
today is about changing the status quo. Everyone agrees that patients
must be reasonably protected against malpractice and against undue harm
for medical devices, drugs and other medical products. Unfortunately,
our current system is not working, and to all of those who have spoken
so eloquently against all of the faults of this amendment, none of
those comments have been addressed to changing the status quo.
As one Member who has wanted to have hearings last year, the year
before, the year before, of reasonably getting into debating this
question, we were denied. We were never able to bring this discussion
to the floor as we are doing today. I wished we had not brought that
point up, because that is a sore point to this man.
Patients and physicians all are losing under our current system. That
is what some of us want to change tonight, the status quo. Numerous
reforms must be enacted if we are going to control health care costs.
My colleague from California, a classmate from the 96th Congress, said
it very eloquently and very truthfully and very factually. If we want
to reform our health care system, we must start with malpractice
reform. We must begin to honestly deal with the problems of health
system reform by changing first the malpractice system. That alone will
not solve it.
It is ironic that in one of our largest States, what we are now
saying will not work has been working. This is puzzling to me. The case
for medical liability relief is overwhelming. Lawsuit abuse is driving
up the cost of health care for all of us. As one who represents a rural
district in which we can no longer get doctors to come to our rural
hospitals to deliver babies, how in the world can anyone stand here
today and say the current system is adequate, the current system cannot
be changed, we cannot dare to try something new, that we have to
preserve that which we are doing today?
I strongly urge the support of the Cox-Geren amendment. Change the
status quo. Let us make our system better.
Mr. BERMAN. Mr. Chairman, to close the debate, I yield the balance of
my time to the gentleman from Texas [Mr. Doggett].
The CHAIRMAN. The gentleman from Texas [Mr. Doggett] is recognized
for 4\3/4\ minutes.
Mr. DOGGETT. I thank the gentleman for yielding me the time.
Mr. Chairman, perhaps it is a peculiar observation at a time when we
focus so much attention on lawyers and lawsuits to suggest that maybe a
little bitty part of the problem of malpractice in this country,
malpractice litigation, is malpractice itself. The statistics from the
Harvard Medical School study conducted by a group of doctors in 1990
suggest that every 7 minutes in this country, someone dies in a
hospital from medical malpractice. Maybe that has something to do with
why we have a medical malpractice problem in this country. But the
suggestion that, well, there will be mistakes completely avoids the
question, because the question is, who is going to bear the burden of
that mistake, and the suggestion by the author of this amendment that
we can somehow give back a foot through medical technology suggests the
ability to do something that only God can do.
Mr. WAXMAN. Mr. Chairman, will the gentleman yield?
Mr. DOGGETT. I yield to the gentleman from California.
Mr. WAXMAN. I want to make the point that this amendment which was
just thrown together on the floor last night, revised again today,
never had a day of hearings, it does not apply just to mistakes. It
applies to intentional conduct. A doctor who comes in, a surgeon who
comes in drunk and butchers somebody would be protected under this
amendment to no more than $250,000 in damages. It has no relationship
to the kind of conduct that might have been involved, like a
psychiatrist raping an individual patient and harming that person for
life. That is a psychological damage. If you say they are $250,000 in
total noneconomic damages, there may be no economic damages for that
kind of case. But to say that somebody should get $10,000 a year, when
their lives are destroyed, for 25 years, that is good enough? I find
that tremendously offensive. If you cannot create a leg to put on
somebody whose leg was amputated improperly, then the pain and
suffering and the humiliation means nothing more than some limited
damage. I just want to point that out to the gentleman.
Mr. DOGGETT. This is as the gentleman suggests a poorly crafted
amendment that applies not only to careless conduct but to grossly
careless conduct, to intentional conduct. It applies not only to the
family physician
[[Page H2964]] that drags this legislation along in the speeches but to
the nursing home that intentionally abuses older Americans. But to
suggest that this has something to do with health care reform is
frivolous in and of itself. The studies have shown that all the medical
malpractice insurance and litigation in this country amounts to a big
63 cents out of every $100 spent on medical care. If that is where you
want to start health care reform, I would submit that we start with the
other 99-plus dollars out of health care and not focus on the part that
relates to protecting people who are harmed by those who are careless
or in this case engaged in intentional misconduct.
Mr. WAXMAN. If the gentleman will permit, medical malpractice and
defensive medicine is a real problem. We need to address it. We need to
look at a lot of different alternatives, alternative dispute
mechanisms, some ways to compensate people who can never find an
attorney to allow them to get some access to some reward for the pains
that they have suffered. But this does not address these issues. The
committees have never held hearings on it. This is an amendment dropped
on us this morning in this latest form and I am sure that as they read
through how poorly drafted it is, with the unintended, I assume
unintended consequences, that it is an embarrassment to those who are
supporting it.
Mr. DINGELL. Mr. Chairman, will the gentleman yield?
Mr. DOGGETT. I yield to the gentleman from Michigan.
Mr. DINGELL. This amendment does absolutely nothing to deter
litigation. It simply cuts the amount that can be paid to a person who
has been wronged by medical malpractice or by other unfortunate
improper practices. It denies them proper recovery. If that is medical
reform, I do not know what it is.
I urge the rejection of the amendment. I thank the gentleman.
Mrs. SEASTRAND. Mr. Chairman, we need to institute a phrase from the
NFL when they were still using instant replay called, ``Upon further
review.'' Because upon further review, it is clear our judicial system
is filled with inconsistencies and arbitrary decisions. The
``feelings'' or non-economic damage claims lead the pack. These claims
result in unlimited damage awards and turn our system into a virtual
lottery. The lawyers get rich while the system is brought to its knees.
Make no mistake. Our system should and will pay for the full cost of
injury, medical costs, property damage and income, without limit. I
will fight for that. But we simply must do something to cap the
unlimited and arbitrary damage claims to pay for someone's feelings.
The way our system currently operates brings a whole new meaning to the
Clinton phrase ``I feel your pain.'' Do we ever.
However, there is a model for reform. The state of California. Our
state set in place a cap of $250,000 for non-economic damages and that
is what this amendment does. It says the defendant is responsible for
all medical costs, all past and future income and all real economic
damages. Then they can also be held accountable for up to a quarter of
a million dollars in non-economic or pain and suffering damages. And
this model works. In fact this model is credited with being the most
effective reform in containing medical liability costs.
Mr. Chairman, we will never be able to put a price tag on someone's
feelings or pain, but this amendment does try to place a reasonable
limit on the awards so those involved in suits won't have to play the
lawsuit lottery.
Mr. BARR. Mr. Chairman, I strongly believe along with many of my
colleagues that tort reform must address the serious abuses that occur
in the area of punitive awards for non-economic damages. On this
subject, I seek a balance that takes into account important but diverse
interests. We must protect against awards that bear no reasonable
relation to the injury and threaten the economic integrity of our
profit and non-profit enterprises. We must also permit sufficient
discretion to ensure that injuries are compensated in full. In this
regard, I continue to believe that while arbitrary caps on punitive
damages in all instances are to be avoided, this legislation begins an
important process in curbing the worst excesses of the current tort
system. In the future, I propose that we address additional amendments
that will take into account extraordinary circumstances warranting
adjustments to those otherwise generous caps.
Mr. NORWOOD. Mr. Chairman, we have gone too far in the area of non-
economic damages. No other country in the world awards non-economic
damages at or even near the levels of awards in the United States. It
is almost impossible for anyone to put a dollar figure on such non-
economic terms as pain and suffering; yet, our legal system continues
to allow unlimited awards for pain and suffering. No other nation in
the world comes close to placing economic burdens on society through
non-economic damages the way we do in this country.
Mr. Chairman, this amendment is particularly important to our
constituents. It is a major factor in the cost of health care today.
This amendment will provide one of the best weapons possible in
reducing the cost of health care. Forty percent of all MD's will find
themselves party to a lawsuit, 50 percent of all surgeons will be party
to a lawsuit, and 75 percent of all obstetricians will be party to a
lawsuit. The problems of our tort system are not
insignificant in the medical profession--they threaten the health of
this nation by tying the hands of doctors. Doctors should not be forced
to practice defensive medicine because they are terrified of $30
million lawsuits. The practice of medicine is not perfect. It is the
science and art of the practice of medicine. No matter how good a
doctor you are, when dealing with the human body, things do not always
turn out perfect--as we would like.

Of course, neither is the legal profession perfect. In fact, writing
laws is not perfect. Each law we write hurts some people--but the goal
should be to pass laws that help the most people possible. This
amendment is not perfect, but it will greatly help the majority of
people in this country by reducing the cost of health.
Our physicians are being forced to practice defensive medicine. To
perfect their own families. We have taken away one of the most
important things you want in your doctor--to use good judgment in the
practice of medicine. But when every decision is being watched over by
suit-minded lawyers just waiting for the less than perfect outcome so
they can get rich, it forces the doctor to make his or her first
decision ``How can I not be sued?'' The thought process goes like
this--I know we do not need this test or this x-ray for the patients
benefit--but I must order this test or this x-ray in case I am sued,
because some lawyer will make it appear I did not do all I can do.
There is a limit to how much malpractice one can pay for, but there
is no limit to how much a jury of our peers can award. Some physicians
pay as much as $150,000 per year for malpractice insurance. That
increases the cost of medicine. And with jury verdicts in the tens of
millions of dollars, one can never carry enough insurance to be sure
you aren't ruined by a lawsuit. There must be a cap if you wish this
country to continue to have the best health care system in the world--
There must be a cap if you want the cost of health care to come down.
We have listened so long to the half-truths about protecting the
middle class put out by the other side, it is time to lower the veil of
ob-fus-cation and look at the costly reality that our tort system has
become. We must no longer endanger the health of this Nation--we must
place limits on all non-economic damages.
We should pass this amendment today.
Mr. Chairman, Congress has recognized this problem before. In 1992,
Congress created the Federal Tort Claims Act in response to
skyrocketing malpractice insurance premiums from federally funded
community health centers. Under this act, judges rather than juries
decide damages. Attorney's fees are limited and punitive damages are
disallowed altogether. Why would the Federal Government institute such
a restrictive system? Because the Federal Government, that is of course
the taxpayers has to pay for the cost of these suits. If it is good
enough for the government, it ought to be good enough for the rest of
the health care industry. Let's give the rest of the medical industry
that same relief.
Mr. Chairman, I end my remarks with one simple thought for your
consideration. The Office of Technology Assessment recently identified
a ceiling on non-economic damages as the single most effective reform
in containing medical liability costs. We should do the same.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from California [Mr. Cox].
The question was taken; and the Chairman announced that the noes
appeared to have it.

recorded vote

Mr. COX of California. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 247,
noes 171, not voting 16, as follows:
[Roll No. 226]

AYES--247

Allard
Archer
Armey
Bachus
Baker (CA)
Baker (LA)
Baldacci
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Bevill
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Brewster
Browder
Brownback
Bryant (TN)
Bunn
[[Page H2965]] Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cardin
Castle
Chabot
Chambliss
Chapman
Chenoweth
Christensen
Chrysler
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Cramer
Crane
Crapo
Cremeans
Cunningham
Davis
DeLay
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Ensign
Eshoo
Everett
Ewing
Fawell
Fazio
Fields (TX)
Foley
Fowler
Fox
Franks (CT)
Franks (NJ)
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Goodlatte
Goodling
Gordon
Goss
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hamilton
Hancock
Hansen
Harman
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Holden
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Johnson (SD)
Johnson, Sam
Jones
Kasich
Kelly
Kim
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
Laughlin
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Linder
Livingston
Longley
Lucas
Manzullo
McCollum
McCrery
McHale
McHugh
McInnis
McIntosh
McKeon
McNulty
Metcalf
Meyers
Mica
Miller (FL)
Minge
Molinari
Montgomery
Moorhead
Moran
Morella
Myers
Myrick
Neumann
Ney
Norwood
Nussle
Oxley
Packard
Pallone
Parker
Paxon
Payne (VA)
Peterson (FL)
Peterson (MN)
Petri
Pickett
Pombo
Porter
Portman
Poshard
Quillen
Quinn
Radanovich
Ramstad
Regula
Richardson
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Seastrand
Sensenbrenner
Shaw
Shays
Shuster
Sisisky
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
Traficant
Upton
Volkmer
Vucanovich
Waldholtz
Walker
Wamp
Watts (OK)
Weldon (FL)
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer

NOES--171

Abercrombie
Ackerman
Andrews
Baesler
Barrett (WI)
Becerra
Beilenson
Bentsen
Berman
Bishop
Bonior
Borski
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Clay
Clayton
Clement
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
Danner
de la Garza
Deal
DeLauro
Dellums
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Dixon
Doggett
Doyle
Durbin
Edwards
Engel
Evans
Farr
Fattah
Fields (LA)
Filner
Flake
Flanagan
Foglietta
Ford
Frank (MA)
Frelinghuysen
Frost
Furse
Gejdenson
Gephardt
Gilchrest
Gillmor
Gilman
Gonzalez
Graham
Green
Gutierrez
Hastings (FL)
Hefner
Hilliard
Hinchey
Hoyer
Istook
Jackson-Lee
Jacobs
Johnson, E. B.
Johnston
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
King
Kleczka
Klink
LaFalce
Lantos
LaTourette
Levin
Lewis (GA)
Lincoln
Lipinski
LoBiondo
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martini
Mascara
Matsui
McCarthy
McDade
McDermott
McKinney
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Mink
Moakley
Mollohan
Nadler
Neal
Nethercutt
Oberstar
Obey
Olver
Ortiz
Orton
Pastor
Payne (NJ)
Pelosi
Pomeroy
Pryce
Rahall
Reed
Reynolds
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schiff
Schroeder
Schumer
Scott
Serrano
Shadegg
Skaggs
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tejeda
Thompson
Thornton
Thurman
Torres
Towns
Tucker
Velazquez
Vento
Visclosky
Walsh
Ward
Waters
Watt (NC)
Waxman
Weldon (PA)
Wilson
Wise
Woolsey
Wyden
Wynn

NOT VOTING--16

Boucher
Clinger
Cubin
DeFazio
Forbes
Gibbons
Hall (OH)
Jefferson
Johnson (CT)
Martinez
Murtha
Owens
Rangel
Weller
Williams
Yates

{time} 2057

Messrs. JACOBS, GILCHREST, and de la GARZA changed their vote from
``aye'' to ``no.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Mr. RICHARDSON. Mr. Chairman, product liability legislation has been
debated in Congress for several years now and I would like to express
some thoughts on past efforts to rectify problems with our legal
system.
In 1987, I introduced H.R. 1115, the Uniform Product Safety Act of
1987, to establish standards in determining product liability lawsuits.
This legislation was the subject of 22 hearings and mark-ups which
enabled manufacturers, sellers and consumers to offer their views. My
bill had 96 cosponsors from both sides of the aisle. Comparatively,
today's bill H.R. 956, the Common Sense Legal Standards Reform Act has
received little bipartisan input and leans heavily in favor of business
interests.
My legislation clearly defined reasonable standards of liability for
manufacturers that would have reduced excessive lawsuits without
infringing on State laws or the rights of consumers. H.R. 1115 did not
try to restructure technical provisions of the legal code such as
abolishing joint and several liability for noneconomic loss. With
congressional prodding, legislators in New Mexico have enacted reforms
that meet the needs of both consumers and business groups.
Today's short-sighted debate is discouraging to Members who believe
such broad measures are not only unnecessary but potentially dangerous.
Among my concerns for today's legislation is the 15 years statute of
repose for all products. I am hesitant to support such an all-knowing
directive.
Furthermore, my legislation exempted from the new standards
industrial waste, pollutants or contaminants released into air or
water, tobacco and tobacco products, alcoholic beverages, and any drug
or device which is used as a contraceptive or abortifacient or which
interferes with human reproduction under certain circumstances. Have we
really considered the long-term ramifications of today's bill?
Finally, H.R. 1115 contained provisions to increase the availability
of information in product liability actions. The 1988 bill allowed
courts to disclose information that presented a risk to the public
health and safety. It is hypocritical for Congress to place the burden
of proof on consumers as H.R. 956 does while allowing companies to
withhold information that could educate consumers.
My efforts to enact responsible legislation in the 100th Congress are
indicative of my support for product liability reform. In the light of
current research used by the U.S. Supreme Court which claims that there
is no epidemic of punitive damage awards, I remain hesitant to support
the broad, precedent-setting legislation before us today. It is
unfortunate that we have not been able to craft a responsible piece of
legislation.
Mr. BEREUTER. Mr. Chairman, this Member rises in support of this
measure and to express his pleasure at seeing this much needed
legislation finally brought before this body.
This Member introduced the first product liability legislation in the
Nebraska Unicameral Legislature in 1977. During this process this
Member realized that this issue must be dealt with on the Federal
level, because the vast majority of products and services move through
interstate commerce. Addressing product liability at the state level is
like patching one hole in a tire with fifty holes.
Now, finally, this issue is being debated on the House floor after
years of being bottled-up in committee by the trial attorneys and the
former chairmen of the respective committees.
Mr. Speaker, all Americans are paying much higher prices for consumer
goods and services because this legislation has been delayed for so
very long. The insurance costs incurred by companies protecting against
and paying for outrageous and unreasonable product liability suits are
passed along to the consumer each and every day, in nearly every
product and service purchased.
Perhaps even more outrageously, the current system unfairly imposes
upon the American public product design standards, which are created in
response to penalties awarded in a few states with the highest punitive
and compensatory damages. Those States get to impose their juries'
ideas of appropriate design and safety standards on the rest of the
Nation. That is a perversion of Federalism. National standards should
be set by the national legislature. That is what this bill will do.
Mr. Chairman, this Member has been a long-time co-sponsor of product
liability reform, dating back to at least 1986. This Member is pleased
that this long delayed measure is finally being debated on the House
floor and urges his colleagues to support it.
Ms. PELOSI. Mr. Chairman, I rise today to voice my opposition to H.R.
956, the Common Sense Product Liability Reform Act of 1995. This bill
is an undisguised assault on the safety of the American people that
will result in more unsafe products, more injuries, and less
compensation for those who are hurt by corporate misconduct and
negligence.
Mr. Chairman, this bill contains two provisions that are particularly
harmful to women: The punitive damages cap and the provision
[[Page H2966]] that shields FDA-approved products from full liability.
Punitive damages in our Legal System Act as a powerful incentive for
companies to make safety improvements to their products.
A punitive damages award as little as $250,000 will fail to serve as
an effective deterrent in many cases. In addition, capping punitive
damages awards at $250,000, or at three times the amount of economic
damages, whichever is greater, discriminates against women and others
who may not have large incomes.
Economic damages were generally not as high in the products liability
cases of women who developed endometriosis, pelvic inflammatory
disease, toxic shock syndrome, and other illnesses that left them
sterile when they used copper-7 intrauterine devices or super
absorbency tampons.
A punitive damage award cap is less harmful to those with higher
salaries and discriminates against those who have lower incomes, many
of whom are women. Justice would be meted out very differently for two
people injured by the same defective Ford Pinto. The corporate CEO
could seek a large punitive award based on economic damages, while the
homemaker would be severely limited by the provisions of this bill.
Second, Mr. Chairman, this bill shields products from liability that
have been previously approved by the FDA in spite of the fact that the
record is filled with examples of drugs that have been approved or
underregulated by the FDA only to cause immense physical harm once
authorized for sale on the open market.
For example, the FDA approved high estrogen birth control pills which
caused renal failure. It also approved the copper-7 intrauterine device
which caused sterility in young childless women. The FDA defense
shields negligent manufacturers at the expense of our nation's women
and should be rejected.
Mr. Chairman, there is no national crisis in products liability
litigation, nor is there any epidemic in punitive damages awards. To
the contrary, the facts demonstrate that our current State-based
products liability system works well.
It allows our citizens to seek redress when they have been injured by
corporate negligence and it provides ample incentives to correct
defective products when cause harm.
This bill favors powerful corporations at the expense of women, the
elderly, the young, and all working Americans.
I urge my colleagues to reject these ill-advised reforms and to vote
against H.R. 956.
Mr. RUSH. Mr. Chairman, I rise today in strong opposition to H.R.
956, the so-called Common Sense Product Liability and Legal Reform Act.
There is nothing even vaguely common-sensical about this bill. On the
contrary, this bill is nothing more than a thinly disguised, let's kill
all the trial lawyers bill.
Mr. Chairman, unlike so many of my colleagues on both sides of the
aisle, I am not an attorney. But, unlike many who support this bill, I
do not view the trial lawyers to be inherently greedy or evil.
Instead, it is my strong and considered opinion that a good lawyer
can be a wronged party's only friend just when he or she needs one the
most.
The overwhelming majority of our nation's products liability
plaintiffs are not just nameless, faceless individuals but hard-working
Americans with mortgages and families. Their right to seek compensation
for faulty or defective workmanship in consumer products cannot and
should not be denied.
Many States are also moving to harm consumers and working Americans
by placing arbitrary limits on monetary damage awards in product
liability suits. The Governor of my State, for example, signed into law
today a measure that caps punitive and pain and suffering awards while
making it harder for wronged citizens to see justice served in Illinois
State Courts. My colleagues, this is an outrage. We must work ever
harder to see that these efforts are defeated at all levels of
government.
The bill before us today would make sure that many of these persons
will have nowhere to turn to redress their injuries. The rights of
working-class American consumers have never been more under threat than
they are now. I therefore implore my fellow Members on both sides of
the aisle to oppose this extremely underhanded and reckless bill. We
must work together to see that it is defeated.
Mr. MOORHEAD. Mr. Chairman, I rise in strong support of the Common
Sense Legal Reform Act of 1995. Civil justice reform is an extremely
important part of the Contract with America. The time for enacting
effective product liability reform is now. The first comprehensive
product liability bill was introduced in the House of Representatives
six Congresses ago by former Representative Jim Broyhill. I was proud
to be an original cosponsor of this legislation. Since that time we
have been blocked from action time and time again. During this long
wait for federal action, the situation has only deteriorated.
The average American is confronted with a civil justice system that
is too costly, too protracted and oftentimes seems to work better for
the attorneys than for their clients. Each day in America, hundreds of
lawsuits are filed by lawyers against fellow citizens, businesses,
civic institutions, government entities, and countless other targets.
This seemingly endless series of legal attacks has practically numbed
America to the fact that, as a nation, we have become the most
litigious society on Earth and that an onslaught of lawsuit abuse has
had damaging and lasting effects on the standard of living of all
Americans. While most legal actions brought in the United States seek
legitimate redress for harm caused, unfortunately many are groundless,
frivolous and the result of lawyers who abuse the system and seek to
claim lottery sized dollar awards from both their advisory and their
client. It is these types of abuses that bring discredit to the
American legal system, damage the U.S. economy, and drain precious
national resources into the dark hole of endless litigation. The
current system creates fear among Americans that they will likely be
the victim of an unjust lawsuit. It chills their desire to volunteer
and participate in many aspects of ordinary life, and it prevents the
introduction of new and beneficial products and services to the
American people. Companies in many industries across the 50 states have
discontinued product lines, closed plants, shut down divisions, been
forced overseas and, in some cases, have been bankrupted by the current
product liability system in this country. We should ask the men and
women who have lost their jobs in these industries whether or not we
need to change the current system. When the House Judiciary Committee
considered this legislation, we heard testimony from a medical
equipment manufacturer that it will soon be unable to get raw materials
to make pacemakers and other implantable medical devices because of
liability concerns of its suppliers. We have been warned specifically
that the current product liability system is stifling innovation and
preventing newer and more effective lifesaving medical devices from
ever coming to market. Biomedical and pharmaceutical executives have
testified repeatedly before Congress that they are not developing
vaccines and medicines because of fear generated by the current
unpredictable liability lottery they face in this country. We should
ask the millions of Americans suffering from heart disease, AIDS,
cancer and other deadly illnesses whether there is an urgent need to
unleash medical innovation and discovery by reforming the current
system.

Today, standards of liability vary from State to State, and sometimes
even from Court to Court within a State. Neither the injured
individual, the product manufacturer, nor the seller has any idea what
liability standard will be applied, and all are subjected to
conflicting rules on their responsibility in the use, design,
production, and sale of products. The legislation before us establishes
clear guidelines for determining who shall be responsible for harm
caused by an accident. Uniformity is essential in order to provide
fairness and predictability to consumers, manufacturers, and sellers.
Although tort law is generally considered a matter for the States, it
has been clear for quite some time that, due to the interstate nature
of the sale of products, liability reform should be dealt with at the
Federal level.
It is time to recognize that America will never be the best place in
the world to create a job until we reform our current product liability
system. It is time we provide the reform necessary to unleash American
ingenuity in the development of new and more effective products, create
jobs, increase our international competitiveness, and provide fairness
to product consumers, sellers and manufacturers alike. Enactment of the
proposals put forth in H.R. 956 will form the basis of strong and
effective legal reform which will loosen the grip of lawyers on
America. These common sense reforms are necessary to ensure that
American consumers, manufacturers, product sellers, employers and
employees alike receive fairness and justice under our civil justice
system. The time has come to end lawsuit abuse in America.
Mrs. COLLINS of Illinois. Mr. Chairman, I am dumbfounded that this
bill to restrict the rights of victims and consumers to adequate
compensation for and reasonable protection from injury caused by
unsafe, down right dangerous, and sometimes even deadly products has
been named the Common Sense Legal Reforms Act. This bill absolutely
turns common sense on its head.
Tell me, Mr. Chairman, is it common sense that the greatest leniency
will be reserved for manufacturers of products that hurt children?
That's what this bill will do. Is it common sense that a pharmaceutical
company could face lower penalties if its product kills a senior
citizen rather than a middle-aged man? That's what this bill will do.
Is it common sense that victims of hazardous and unsafe products will
have less of a chance to recover damages if
[[Page H2967]] they are women, or poor? That's right--this bill will do
that too.
Most importantly, do the American people really think that it's
common sense to take away the power of our most democratic
institution--the citizen jury--to impose deterrents against unsafe
products and practices? I think not.
It's not hard to sell common sense reforms to the American people but
supporters of this bill should be ashamed to put that label on a
package of tricks that are crafted to increase corporate profits at the
expense of the most vulnerable in our society. Perhaps the most
dangerous product around these days is this bill, and when people get a
chance to look inside the box and see what's really there they will be
outraged. The Members of Congress who vote for it, however, will
ultimately have to answer to the consumers, which is more than you can
say for negligent manufacturers if this bill passes.
One of the most troubling aspects of H.R. 956 is the rule for
calculating punitive damages, setting a cap at three times the amount
of economic loss, or $250,000, whichever is greater. This bill
establishes appallingly unequal penalties based not on the severity of
the harm caused or the extent of negligence or even malice, but on the
income of the victim.
Punitive damages have a positive impact on decisions made by product
manufacturers and sellers. The Conference Board, a business-funded
research organization, surveyed companies about the effect of strong
product liability penalties on their operations. They reported,
managers say that products have become safer, manufacturing procedures
have improved, and labels and use instructions have been more explicit.
Yet by tying the amount of punitive damages to monetary loss alone,
and not noneconomic damages like pain and suffering, this bill takes
away the threat of heavy punitive damages for products that severely
hurt people with low-income, or no-income, like kids.
Think about it. Under this bill, if a product kills a child, punitive
damages, regardless of the situation, will be capped at $250,000 since
there will be no lost earnings to calculate as monetary losses.
I worked hard during the 103rd Congress to improve product safety,
especially for children. A child toy safety bill was one of the
products of my efforts. Yet now we are seriously considering a bill
that says that a toy manufacturer's concern about product safety might
be diminished because the potential penalties are tied to the income of
the victim. Large manufacturers and corporations will simply calculate
punitive damages as defined under this bill as a small cost of doing
business rather than attempt to improve the safety of their products.
Recently, a group of Illinois families joined together around their
concerns about the lack of a safety latch on the rear hatch of a
popular brand of mini-van. Since 1993, the National Highway Traffic
Safety Administration has been investigating the rear liftgate of these
vans because they fly open in crashes. According to the NHTSA, the
latches failed to keep the rear hatches closed in at least 51
accidents, causing 74 ejections and 25 known deaths. Who rides in the
rear seats of mini-vans? Kids, of course. This bill would mean that the
van manufacturer probably does not need to worry about hefty punitive
damages in civil actions. If the issue were the front door latch of a
luxury sports car, a manufacturer would almost certainly pay more
attention.
Is this common sense?
Harming senior citizens would also tend to carry lesser punitive
damages under this bill, since their incomes tend to be less. Of
course, senior citizens are big consumers of pharmaceutical drugs. With
this bill the majority is setting a lower standard for safety for drugs
marketed to seniors than for drugs marketed to the general population.
Pharmaceutical manufacturers often say that fear of liability keeps
them from marketing certain drugs. Does that mean that removing some
fear of extensive punitive damages will lead them to market drugs to
seniors that they might not otherwise sell? Is this really what the GOP
wants to accomplish?
Is this really common sense?
Punitive damages are levied by juries as punishment for actions by
manufacturers and sellers to deter the marketing of unsafe products.
Therefore, punitive damages should be related to the severity of injury
and the actions of the manufacturer or seller, not the economic status
of the victim.
That is true common sense.
Unfortunately, the bill before us also sets up yet another dual
standard for recovery of damages in a product liability case based on
the income of the victim. The bill eliminates the doctrine of joint and
several liability, which ensures compensation for an injured party even
if one or more of the defendants are unable to pay, for non-economic
damages.
Women, senior citizens, children, and low-wage workers are more
likely to receive compensation in the form of non-economic damages
rather than economic damages. Yet this bill says that if one of the
parties responsible for hurting someone goes bankrupt, the victim
cannot recover full compensation, regardless of what the jury says.
Upper-income men, who are more likely to be awarded economic damages
for loss of income, are not affected by this provision of the bill
because joint and several liability for economic damages remains
intact.
Consider a case where two people suffer an injury. One is a man, the
other a woman. The man is a lawyer and receives his full compensation
whether or not all responsible parties contribute. The woman is a
homemaker, and so the compensation she receives could be severely
limited if one of the responsible parties is unable to pay.
Is this fair? Is this common sense?
Are the Republicans saying with this bill that they don't value
women, seniors, children, or the poor? You bet they are.
Mr. Chairman, I have just finished fighting a bill passed by this
chamber which suspends all new Federal regulations, including those
designed to protect the public from unsafe products. Now the majority
has come forward with this effort to close the only remaining mechanism
average citizens have to protect themselves. With one hand, they remove
regulation, and with the other, they take away the power of citizen
juries to control corporate behavior through the threat of punitive
damages.
What next? I probably shouldn't ask.
The American people have plenty of common sense, and when they are
able to step back and see the whole of what is being done here, they
will know whose interests are being protected, and who is being sold
down the river.
The leadership may want to call this bill the Corporate Profits
Protection Act, or the Corporate Wrongdoers Protection Act, or even the
``Profits Regardless of Who Gets Hurt Act,'' but they will find that
the people are far too smart to let them call this the Common Sense
Legal Reform Act for long. Its not hard to see why the majority wants
to act so quickly on this bill. After all, you can't fool all the
people all the time. And time is running out.
Mr. Chairman, the American people will be shocked when they find out
what this bill calls common sense.
I urge my colleagues to reject H.R. 956.
Mr. HYDE. Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly the Committee rose; and the SPEAKER pro tempore (Mr.
Longley) having assumed the chair, Mr. Dreier, Chairman of the
Committee of the Whole House on the State of the Union, reported that
that Committee, having had under consideration the bill (H.R. 956) to
establish legal standards and procedures for product liability
litigation, and for other purposes, had come to no resolution thereon.

____________________