[Congressional Record Volume 141, Number 45 (Friday, March 10, 1995)]
[House]
[Pages H3015-H3027]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMON SENSE LEGAL STANDARDS REFORM ACT OF 1995
The SPEAKER pro tempore. Pursuant to House Resolution 109 and rule
XXIII, the Chair declares the House in the Committee of the Whole on
the State of the Union for the further consideration of the bill, H.R.
956.
{time} 1032
in the committee of the whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the further consideration of
the bill (H.R. 956) providing for further consideration of the bill
(H.R. 956) to establish legal standards and procedures for product
liability litigation, and for other purposes, with Mr. Dreier in the
chair.
The Clerk read the title of the bill.
The CHAIRMAN. When the Committee of the Whole rose on Thursday, March
9, 1995, amendment No. 12, printed in section 2 of House Resolution
109, offered by the gentleman from California [Mr. Cox], had been
disposed of.
It is now in order to consider amendment No. 13 printed in House
Report 104-72.
Apparently the amendment is not being offered.
It is now in order to consider amendment No. 14 printed in House
Report 104-72.
amendment offered by mr. gekas
Mr. GEKAS. Mr. Chairman, I offer an amendment that has been made in
order by the rule.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment offered by Mr. Gekas: Revisions to the heading of
H.R. 1075:
Add the words ``and civil'' after the words ``product
liability'' and before the word ``litigation''.
Revisions to the Table of Contents:
Page 2, redesignate title IV as title V and renumber
sections 401, 402, and 403 as sections 501, 502, and 503,
respectively, and after the words ``SEC. 303. DEFINITIONS.''
add the following title:
TITLE IV--COLLATERAL SOURCE RULE REFORM
Sec. 401. Findings.
Sec. 402. Applicability and preemption.
Sec. 403. Collateral source payments.
Sec. 404. Definitions.
Page 30, line 1, redesignate title IV as title V and
redesignate sections 401, 402, and 403 as sections 501, 502,
and 503, respectively, and insert on line 1 the following:
TITLE IV--COLLATERAL SOURCE RULE REFORM
SEC. 401. FINDINGS.
(1) The practice of not permitting the jury to weigh
evidence of collateral source benefits in making its award of
damages in health care liability actions burdens interstate
commerce by leading to increased costs for health care
consumers, decreased efficiency for the legal system, and
double recovery for plaintiffs which, in turn, encourages
fraud, abuse, and wasteful litigation; and
(2) there is a need to restore rationality, certainty, and
fairness to the legal system in order to protect against
excessive damage awards and reduce the costs and delay of
litigation.
SEC. 402. APPLICABILITY AND PREEMPTION.
This title governs any health care liability action brought
in any State or Federal court and to any health care
liability claim brought pursuant to an alternative dispute
resolution process, by any claimant, based on any conduct,
event, occurrence, relationship or transaction involving,
affecting or relating to commerce, regardless of the theory
of liability on which the claim is based, including claims
for legal or equitable contribution, indemnity, or
subrogation. The provisions of this title shall preempt State
law, with respect to both procedural and substantive
matters, only to the extent that such laws are inconsistent
with this title and only to the extent that such law
prohibits the introduction of collateral source evidence
or mandates reimbursement from the claimant's recovery for
the cost of collateral source benefits. The provisions of
this title shall not preempt any State law that imposes
greater restrictions on liability or damages than those
provided herein.
SEC. 403. COLLATERAL SOURCE PAYMENTS.
In any civil liability action subject to this title, any
defendant may introduce evidence of collateral source
benefits. If any defendant elects to introduce such evidence,
the claimant may introduce evidence of any amount paid or
contributed or reasonably likely to be paid or contributed in
the future by or on behalf of the claimant to secure the
right to such collateral source benefits. No provider of
collateral source benefits shall recover any amount against
the claimant or receive any credit against the claimant's
recovery or be equitably or legally subrogated to the right
of the claimant in any civil liability action subject to this
title. This section shall apply whether a civil action is
settled or resolved by a fact finder.
SEC. 404. DEFINITIONS.
(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.
[[Page H3016]] (b) The term ``economic loss'' has the same
meaning as defined in section 202(3) of this Act.
(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, an 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 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.
(d) The term ``health care liability claim'' means a demand
by any person, whether or not pursuant to an alternative
dispute resolution process, against a health care
provider, health care organization, or the manufacturer,
distributor, supplier, marketer, promoter or seller of a
medical product, including, but not limited to, third-
party claims, cross claims, counter-claims or contribution
claims, which are 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, defendants, or causes of action.
(e) The term ``health care organization'' means any person
or 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.
(f) The term ``health care provider'' means any person or
entity required by State or Federal laws or regulations to be
licensed, registered, or certified to provide health care
services, and being either so licensed, registered, or
certified, or exempted from such requirement by other statute
or regulation.
(g) The term ``health care services'' means any service
provided by a health care provider, or by any individual
working under the supervision of a health care provider, that
relates to the diagnoses, prevention, or treatment of any
human disease or impairment, or the assessment of the health
of human beings.
(h) The term ``medical product'' means 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 a medical device as defined in
section 201(h) of the Federal Food, Drug and Cosmetic Act (21
U.S.C. 321(h)), including any component of raw material used
therein, but excluding health care services, as defined in
subsection (g) of this section.
(i) The term ``noneconomic damages'' means damages for
physical and emotional pain, suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of
enjoyment of life, loss of society and companionship, loss of
consortium (other than loss of domestic service), hedonic
damages, injury to reputation and all other nonpecuniary
losses other than punitive damages.
(j) The term ``punitive damages'' has the same meaning as
defined in section 202(5) of this Act.
(k) The term ``State'' has the same meaning as defined in
section 202(6) of this Act.
request for modification to amendment offered by mr. gekas
Mr. GEKAS. Mr. Chairman, I ask unanimous consent that the amendment
be modified. The modification is also at the desk.
The CHAIRMAN. The Clerk will report the modification.
The Clerk read as follows:
Modification of amendment offered by Mr. Gekas:
(Technicals)
On page 3, at the beginning of line 24, insert the words
``As used in this title:''
On page 4, strike lines 7 and 8 and on page 6 strike lines
11 through 19 and redesignate the subsections accordingly.
On page 6, line 9, strike ``(g)'' and insert ``(f)''.
The CHAIRMAN. Is there objection to the request of the gentleman from
Pennsylvania?
Mr. STUPAK. Mr. Chairman, reserving the right to object, we would
like to have a further inquiry as to this modification. I do not
believe we have seen a copy of it.
Mr. GEKAS. Mr. Chairman, will the gentleman yield?
Mr. STUPAK. I yield to the gentleman from Pennsylvania.
Mr. GEKAS. Mr. Chairman, this is purely technical in nature. What
happened was when I or my office prepared a series of amendments, six
of them to go before the Committee on Rules, all of them were
correlated one with the other. Some of the definitions applied. Three
of them, specifically, applied to other portions of other bills as if
there were a general bill.
We are, by this modification, extracting those from the definitions
portion of my amendment.
Mr. STUPAK. Continuing my reservation of objection, Mr. Chairman, we
would like to see the amendment. It has not been cleared by the
minority. We have not seen it. We would like an opportunity to do that.
I would ask the gentleman if he would respectfully withdraw his
amendment until we have had a chance to take a look at it. Then we may
be able to come back and agree to it.
Mr. GEKAS. If the gentleman will yield further, I will not withdraw
it. We cannot withdraw, we have to move along with the amendment. I
would be willing to enter into a soliloquy until the gentleman has a
chance to review it.
Will somebody furnish the minority with what we are doing here with
the definitions?
Mr. Chairman, I assure the gentleman that they are purely technical,
that I am not engaged in subterfuge or in any kind of attack on the
minority's right to know what we are doing. This is simply technical.
The essence of the amendment remains intact.
The CHAIRMAN. The Chair will inform the gentleman from Pennsylvania
that we can proceed with the amendment as it was printed in the Record
and as reported out by the Committee on Rules.
Is there objection to the request of the gentleman from Pennsylvania?
Mr. STUPAK. Mr. Chairman, there is objection to the unanimous-consent
request.
The CHAIRMAN. Objection is heard.
The gentleman from Pennsylvania [Mr. Gekas] is recognized for 15
minutes in support of his amendment, and a Member in opposition is
recognized for 15 minutes.
The Chair recognizes the gentleman from Pennsylvania.
Mr. GEKAS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, today we offer a corollary, as it were, to the bill
that was approved yesterday in the House of Representatives, where we
took a giant step in compacting the costs of medical liability when the
House so overwhelmingly adopted the cap on noneconomic damages.
This portion of the debate will center on collateral source. This has
been in itself a source of great irritation to the liability community
across the Nation, but more than that, it has been a source of
increased costs, in many cases double dipping or double recovery, which
was paid for in each instance and is continued to be paid for by, guess
who, the general public who pay the premiums on their insurances.
Let me give an example of how this works. If I as a claimant received
some hospital services, and as a result of that I was unfortunately
injured because of some alleged negligence that I say that the hospital
performed or was guilty of, in that instance I have to have more doctor
care and other hospital bills accrue.
That total package of bills that now I have to pay, let us say it is
$10,000, those $10,000 are paid immediately by my personal insurance. I
have insurance to cover that. I have, maybe, disability insurance or
some kind of health coverage that pays my doctor bills and hospital
bills forthwith, so I now undergo, as a result of this negligence, an
extra $10,000 worth of bills, but they are paid for by the insurance
company which I very foresightedly was able to obtain for myself for
just such circumstances.
Now what happens? This is where the double dipping could enter into
it. I now sue the hospital. I sue the hospital for, get this now, as
part of the damages, the hospital bills and the doctor bills, that
$10,000 package for which I have already received payment.
In addition to that, I may sue for lost wages, other kinds of things,
pain and suffering that go around with this new round of
hospitalization and doctoring that I had to go through, but the point
is that the $10,000 that I have already been paid, that has been paid
to my doctors, forms part of this claim.
If I recover, let us say, a $100,000 judgment, I,
in effect, have been doubly enriched. The $10,000 costs in fees to
the doctors and hospitals have been paid, and I recover them anew with
the suit that I have successfully endeavored to bring to the court, and
which has yielded a $100,000 verdict.
[[Page H3017]] In that regard what happens is that you and I, the
general public who purchases health insurance and pays doctors and
hospitals, because of the way that the health care structure is
dominant in the land, we all pay for that double recovery of this
plaintiff. It is not fair, but more than that, it is costly. That is
what we are about here today.
Mr. Chairman, let us follow through with our example. The Members
will recall that I had $10,000 worth of damages, hospital and doctor
bills, following my little incident in the hospital. Under the bill
that we now have in front of us, the amendment that I am offering, this
would occur.
The collateral source, namely, the insurance company that paid my
doctor's bills and hospitals bills right away, that $10,000, is now,
under the collateral source rule, in a situation where that stops. If
the bills are paid promptly, as my example shows they were, then when I
sue, when I sue the hospital and the doctors involved there for my
incident in the hospital, the jury, under the amendment that I offer,
will be able to take into consideration the fact that I have already
been paid for my hospital damages and the doctor's bills.
In other words, the jury will know and will be able to take into
consideration in their deliberations the fact that some of the damages
are already zero, because my own insurance company has already paid
those.
What does that do? That results in a lower cost all across the board.
Mr. HYDE. Mr. Chairman, will the gentleman yield?
Mr. GEKAS. I yield to the gentleman from Illinois. Does he want to
engage in a cacophony?
Mr. HYDE. Mr. Chairman, I want to engage in a cacophony, then, right.
As I understand the gentleman's amendment, it cuts off subrogation
claims, is that correct?
Mr. GEKAS. That is correct.
Mr. HYDE. If the gentleman will yield further, therefore, therefore,
if the gentleman has insurance, if he is farsighted enough to pay
premiums and make an insurance contract, and he is injured, and his
insurer, his health insurance, pays that, the benefit of his foresight
and the premiums that he has paid for years accrue to the wrongdoer.
The wrongdoer walks scot free because the gentleman's company cannot
subrogate against him.
The gentleman is paid because he had the smarts enough, the wisdom
enough, the foresight to pay premiums, and the real winner is the
wrongdoer, am I right?
Mr. GEKAS. Seizing back my time, Mr. Chairman, no, the gentleman is
not correct. Here is the way I would paint that.
The gentleman is looking at it from the standpoint of the defendant,
as you call him, the wrongdoer, but our whole system of justice calls
out for the plaintiff, the claimant, to be reimbursed in full. Nowhere
does it say that he should be double dipping, that he should have a
double recovery.
If the result of what we are doing here is to eliminate that double
dipping, even if it inures to the benefit of lower premiums for medical
liability, both for the hospitals and the doctors, then the wrongdoer
is not benefiting from that. The general public is, because their
doctors and their hospitals will be able to purchase insurance for a
lesser amount, thus making the cost of hospital service less.
Mr. HYDE. If the gentleman will continue to yield, Mr. Chairman,
would the gentleman consider making the wrongdoer reimburse the
plaintiff for the premiums he has paid for 22 years.
Mr. GEKAS. There, Mr. Chairman, the legislation that we have in front
of us, the amendment does call for the plaintiff, for the jury, to have
the right to take into account what the plaintiff has paid for this
coverage.
Mr. HYDE. I thank the gentleman.
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield for that point?
Mr. GEKAS. I yield to the gentleman from Virginia.
{time} 1045
Mr. GOODLATTE. It is my understanding that the problem with a
plaintiff recovering double is largely being taken care of now with
subrogation agreements that are taken care of outside of court.
My concern is that we are sending separate messages for a plaintiff
who has been responsible and for years has paid for health insurance,
compared to one who might have the same economic circumstances, same
type of injury, who has not paid. That plaintiff gets to go into court
and say, here are all of my medical bills.
Mr. GEKAS. I understand the point.
Mr. GOODLATTE. Give me a big award.
The one who has been responsible, then the defendant gets to come in
and say, ``Don't worry about him because his medical bills are being
paid by someone else,'' and that contravenes public policy.
Mr. GEKAS. Recapturing my time, I understand the gentleman's division
of thought as to the one who has bought insurance and paid premiums and
taken care of his family by doing so and the one who for one reason or
another has not done so.
Let me give the same example and see if it does not comport with the
gentleman's concerns. I who have bought insurance and paid $3,000 for
this coverage, you say, will be treated less handsomely because the
verdict will be lower presumably; is that correct? Because the jury
could take into consideration all of this and come out with a lower
verdict.
Well, in a similar circumstance, if there is a case on all fours
exactly with somebody who does not have insurance, the verdict could be
higher and you think that might be unjust enrichment, do you not?
However, here is what can and frequently does occur, at least in
States like yours and mine that do not have this collateral source idea
embedded in their laws. In these cases, the one who does not have
insurance, in suing, gets a higher award, shall we say, has to pay
higher attorneys' fees because of that, No. 1. No. 2, there is always
the right in the entity that provided the medical service for the
claimant to go against the verdict to recover their costs and fees,
anyway. That has happened time and time again. A verdict and a judgment
is always subject to attachment by the entities that provided the
services and ran up bills in favor of the claimant. So it still comes
out. There might be aberrations.
Mr. GOODLATTE. I have no dispute whatsoever that a plaintiff should
not be able to double dip, if you will, but I think that should be
taken outside the courtroom. This argument that somehow insurance
should be brought into the case is exactly comparable to where the
defendant should not want the plaintiff to come into court and tell the
jury that the defendant has insurance to take care of the losses.
Mr. GEKAS. Recapturing my time, I would say notwithstanding the
gentleman's own State policy and my own State policy of not having this
collateral source, 20 other States do have it. So in those States which
we have reviewed, and particularly that in California where their whole
system is based around these elements of medical liability reform,
these objections or concerns of the gentleman's have been resolved over
time, and in balance what has happened is that the public has
benefited, in California where this is in place, with a stabilized
system of medical liability and the costs that are attached thereto.
The CHAIRMAN. The Chair wishes to inform the gentleman that he has
consumed 10\1/2\ minutes of his 15 minutes.
There has yet to be recognized a Member for the 15 minutes of time in
opposition to the amendment.
Mr. GEKAS. Mr. Chairman, I squander my time.
The CHAIRMAN. The gentleman squanders the balance of his time.
Is there a Member seeking to manage opposition to the Gekas
amendment?
Mr. CONYERS. Mr. Chairman, I rise to ask the gentleman from Virginia
[Mr. Scott] to control the time on our side in opposition.
The CHAIRMAN. The gentleman from Virginia [Mr. Scott] is recognized
for 15 minutes to manage the opposition to the amendment.
Mr. SCOTT. Mr. Chairman, we had reserved the right to object to the
unanimous-consent request. Is that still pending?
The CHAIRMAN. No. The request was made by the gentleman from
Pennsylvania and there was an objection heard, so we are proceeding
with the
[[Page H3018]] original amendment offend by the gentleman from
Pennsylvania.
The Chair recognizes the gentleman from Virginia [Mr. Scott].
Mr. SCOTT. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, there were no hearings on this amendment. it has been
slapped together, we tried to fix it on the floor, and we apologize for
the confusion on this side where we were disruptive. We were trying to
figure out what the last-minute change in the amendment was. That is
what happens when we do not have hearings and do not go through a
deliberative process.
But in this case, Mr. Chairman, I think there was an intent not to
have a hearing because on this same issue, we did have a hearing last
year. Let me quote from that hearing last year when we were doing
health reform on malpractice reform. The witness who spoke in favor of
tort reform, who supported limitations on attorney's fees, restrictions
on joint and several liability, reductions in statute of limitations,
modifications in punitive damages, when this issue came up, he was
asked of the three people of interest in this case, you have got the
plaintiff, you have got the defendant, and you have got the health
insurance company. Which one ought to receive the benefit of the
payment? As the chairman of the committee has suggested, the tort-
feasor really ought to be the last person to benefit from the insurance
premiums.
I asked the witness, ``Why should the tort-feasor, the wrongdoer,
receive the benefit of the insurance?''
The witness said: ``Our position is that there should not be a double
recovery.''
Then I asked: ``Well, who ought to receive the recovery? Why
shouldn't Blue Cross-Blue Shield get the money back?''
And the witness, a physician, said: ``I think they should. In other
words, insurance company ought to be paid.''
Then I said: ``Well, then if the plaintiff doesn't get the money, why
shouldn't Blue Cross-Blue Shield be reimbursed?''
He said: ``They should.''
``They should?''
``Yes.''
Then, just to make sure: ``Don't you agree that the tort-feasor,
which in this case could be medical malpractice, in another case it
could be a drunk driver, ought that be the last person to receive the
benefit?''
Answer: ``Yes.''
``So if we deny the plaintiff the basis of recovery for the
insurance, then we ought to have subrogation so Blue Cross-Blue Shield
can get this money back?''
And the witness said, ``I would agree with that.''
That is the kind of answer we would have gotten if we would have had
a hearing. This is a good soundbite amendment but it only rewards the
wrongdoer. A hearing would have proved that as it did last year. If
there is not going to be any double recovery and you are going to say
no to the policyholder who paid his premium, if you are going to deny
him the extra benefit of this foresight in paying the premium, then you
ought to have subrogation so the health insurance company can get its
money back. If it is going to get its money back, at least the premium
payer can get some benefit, because presumably the premium payment
would be lower if they had subrogation.
This is an attack on consumers again, and I would hope that this
amendment would be rejected. We had a hearing last year. The idea was
rejected. I would hope that this would be rejected again.
Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr.
Berman].
Mr. BERMAN. I thank the gentleman for yielding me the time.
Mr. Chairman, if the Gekas amendment were to deal specifically with
the problem of double-dipping as the California law is focused on, I
would support this amendment. I think in a tort action for negligence,
the plantiff is entitled to be made whole. He is not entitled to be
paid twice for the same occurrence. If his medical bills are being paid
by one source, he is not entitled to pocket those payments again from
another source. But the Gekas amendment goes far beyond the California
Micra law and it goes far beyond medical malpractice. It deals with two
issues I am very concerned with.
It is written in a fashion that guarantees that the health care
provider as the gentleman from Virginia [Mr. Scott] pointed out will
not get subrogated, in fact it seems to prohibit that very act, that
the malpractice insurer rather than the health insurance provider will
get the protection, and more importantly by doing it as a matter of
evidentiary question, it would be somewhat equivalent to my offering an
amendment that said in the course of a trial, it is quite appropriate
for the plaintiff's counsel to point out that the defendant is insured,
create the sense of the deep pocket, the big pocket so that the
recovery will be big and if we ever get to the issue of punitive
damages, they will zap them good because they know that there is a
place to get that money from.
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
Mr. BERMAN. I yield to the gentleman from Virginia.
Mr. GOODLATTE. Also look at the parallel that we talked about a
moment ago between the plaintiff who has been concerned about--say it
is a self-employed individual, been concerned about his family, has
bought insurance for the family for years, compared to a plaintiff who
has never bought insurance and not because of income, comparable income
rates, they have the same injury, that plaintiff without insurance gets
to go into court and say, ``Look at all the medical bills I have, give
me a big award.''
They do not have that with this. What we are doing is we are setting
a public policy against people having insurance.
The CHAIRMAN. The Chair wishes to inform the committee that the
gentleman from Pennsylvania [Mr. Gekas] has 4\1/2\ minutes remaining,
and the gentleman from Virginia [Mr. Scott] has 10 minutes remaining.
Mr. GEKAS. If the gentleman from Virginia wants to continue drawing
on his resources, I would have no objection since he has more resources
at the moment.
The CHAIRMAN. The gentleman from Pennsylvania continues to squander
his time.
Mr. SCOTT. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Colorado [Mrs. Schroeder].
Mrs. SCHROEDER. I thank the gentleman from Virginia for yielding me
time.
I think the gentleman from California made the point very well. This
is about making the plaintiff whole, and that is what it is all about.
If we do not do this, or making the defendant whole, not doing
everything we can to make their life miserable.
The plaintiff has bought this insurance, the plaintiff has paid this
insurance, and now the very lucky defendant who may have insurance,
let's say the defendant has insurance, the defendant's company does not
have to pay, even though he is liable, if this were to happen. I think
that that is really flipping the whole incentive program so that the
plaintiff who bought the insurance, his insurance is now going to cover
his cost. The defendant who may have liability insurance, his premiums
are going to stay lower because he never has to get that part
reimbursed from his. I think that is part of what the gentleman from
Virginia was talking about even though we do not allow people to say
whether or not the defendant had insurance.
Mr. GOODLATTE. Mr. Chairman, will the gentlewoman yield?
Mrs. SCHROEDER. I yield to the gentleman from Virginia.
Mr. GOODLATTE. I thank the gentlewoman for yielding. In fact what we
are saying here is this is a case where liability has already been
established on the part of the defendant. The defendant is the
responsible party, the one who has caused the harm and now gets to say,
hey, don't worry about charging me for this because the plaintiff has
insurance and they will take care of it.
Mrs. SCHROEDER. That is right.
Mr. GOODLATTE. How would that same defendant like to be put in the
situation where the plaintiff said, ``I've got a harm here, it's been
established, don't worry about how much you give me because this
defendant has X number of millions of dollars in insurance coverage.''
[[Page H3019]] Mrs. SCHROEDER. Reclaiming my time, the gentleman's
point is that we are not allowed to say that the defendant has
insurance.
Mr. GOODLATTE. That is correct.
Mrs. SCHROEDER. So if we are looking at the two insurance companies,
then the question becomes, which one should have to pay, which one's
premium should have to go up, and I think it should be the defendant
that should have to go up, and I think the gentleman from Pennsylvania
should be looking at collateral source rules and not this.
I would hope that the amendment would be defeated.
Mr. SCOTT. Mr. Chairman, is the gentleman from Pennsylvania going to
waive again?
Mr. GEKAS. Mr. Chairman, I will take my time now if I may. Does the
gentleman want to allow me to go on?
Mr. SCOTT. I have several other speakers.
Mr. GEKAS. I may make a unanimous-consent request to withdraw the
amendment. That would help, would it not?
Mr. SCOTT. In that case, Mr. Chairman, I would certainly defer.
The CHAIRMAN. The Chair recognizes the gentleman from Pennsylvania
who has to this point chosen to squander the balance of his time.
Mr. GEKAS. I yield myself such time as I may consume.
I want to apprise the gentlewoman from Colorado that the concerns
that she has raised here should be thrust at the capital, the State
capital of Colorado where there is in existence a collateral source
statute and which has been employed for many years.
{time} 1100
So, we are not varying that far in this proposal from what is already
established in her province in her home State.
But nonetheless, I do not want to yield now because what the
gentlewoman has done along with others, they have raised enough
questions that perhaps we ought to look at this a little bit more
accurately between now and the time that it takes its place in the
debate either in the Senate or in conference.
With that, Mr. Chairman, I ask unanimous consent to withdraw the
amendment.
The CHAIRMAN. Is there objection to the request of the gentleman from
Pennsylvania?
There was no objection.
Amendment Offered by Mr. Schumer
Mr. CONYERS. Mr. Chairman, I offer amendment No. 15.
The CHAIRMAN. Is the gentleman the designee of the gentleman from New
York [Mr. Schumer]?
Mr. CONYERS. Yes, I am, Mr. Chairman.
The CHAIRMAN. It is now in order to consider amendment No. 15 printed
in House Report 104-72.
Mr. CONYERS. Mr. Chairman, I offer the amendment No. 15.
Point of Order
Mr. HYDE. Mr. Chairman, I have a point of order.
The CHAIRMAN. The gentleman will state his point of order.
Mr. HYDE. Mr. Chairman, in looking at the rule, I do not see where a
designee is allowed, for it says it may be offered only by a Member
designated in the report, and that is for the gentleman from New York
[Mr. Schumer].
I am not going to object. There he is. I was not going to object, but
I wanted to know if this was cleared with the gentleman from Texas [Mr.
Bryant].
The CHAIRMAN. The Chair would say in response to the point of order
of the distinguished chairman of the Committee on the Judiciary that
the report clearly states the amendment is to be offered by
Representative Schumer of New York or a designee.
Mr. HYDE. I am sorry; I did not see it in the rule.
The CHAIRMAN. It is in the report.
Mr. HYDE. I was not going to object. I just wanted to make sure it is
cleared with the gentleman from Texas [Mr. Bryant].
The CHAIRMAN. It is now in order to consider amendment No. 15 printed
in House Report 104-72.
Mr. SCHUMER. 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. Schumer: Page 31, line 5, insert
before the period the following: ``AND SUNSET'', in line 6,
insert ``(a) Effective Date.--'' at the beginning of the
line, and after line 8 insert the following:
(b) Sunset.--Titles I, II, and III shall expire 5 years
after the date of the enactment of this Act unless the
Secretary of Commerce has certified to the Congress not less
than 90 days before the expiration of such years--
(1) that insurance rates covering liabilities affected by
such titles have declined by not less than 10 percent after
taking into account changes in the Consumer Price Index, or
(2) that insurance rates have not declined by at least 10
percent because of extraordinary circumstances, has specified
such extraordinary circumstances, and has explained their
impact on such insurance rates.
The CHAIRMAN. Pursuant to the rule, the gentleman from New York [Mr.
Schumer] and a Member opposed will each be recognized for 10 minutes.
The Chair recognizes the gentleman from New York [Mr. Schumer].
Mr. SCHUMER. Mr. Chairman, I yield myself 4 minutes.
Mr. Chairman, we are now at the conclusion of the debate on the tort
reform proposal, and while I think much has been ballyhooed about the
contract, I would agree that this proposal as it emerges, at least in
the area of law that we are dealing with, is indeed revolutionary. In
fact, the bill goes quite a bit further than was ever imagined,
particularly in terms of the two Cox amendments.
We are eliminating joint and several liability in any tort lawsuit
anywhere in America. I supported that amendment. I thought it was a
wise choice.
We are also putting a cap of $250,000 on all damages, all noneconomic
damages in the health care area. That is a major, major change, plus
all of the other changes proposed in the product liability area, plus
the effect of the cap on punitive damages throughout lawsuits
everywhere. Indeed, my colleagues, the bill is revolutionary.
I would say this: We do not know if it is going to work. And in fact,
there are many of us who think the bill goes too far. There are some I
guess on the far right, mainly on that side of the aisle, who feel that
the bill is very good because it is revolutionary. There are some,
probably mainly on this side of the aisle, on the far left side, who
say the bill is horrible and we should not change very much at all. But
there are many of us in the middle who feel the system is out of
control, but who are terribly troubled, terribly troubled by the fact
that we are making such radical changes without having any idea of what
their effect will be.
This amendment deals with those concerns and anxieties. For those of
us on both sides of the aisle who find ourselves in the middle, we want
real change but we may think that this bill goes too far or we are
worried that it does.
It simply says that if liability insurance rates do not go down 10
percent 5 years after these laws take effect, this bill takes effect,
then the proposal should sunset.
What is the reason we are doing all of these changes? I certainly
believe the proponents of the bill are sincere, they do not want to
hurt the little guy, they do not want to hurt defendants, plaintiffs.
They certainly think it will make salutary changes for America. But I
also know that one of the main reasons we are doing this is because we
feel insurance rates are too high. We have heard that over and over and
over again.
Perhaps the nostrums we are applying will work. If they do, liability
insurance should decline at least 10 percent, and I have counted in
inflation, this is 10 percent after accounting for inflation, and then
we will say we have done a good thing. Those who voted yes will be
proud; those who voted no will admit they made a mistake. But if it
does not work, why take away all of the various rights of the little
people who need to sue if it is not going to bring insurance rates down
at all? And so we propose this sunset.
This is a moderate amendment. It is saying, OK, we are going to make
very radical changes, but let us have a little bit of a break on them
just in case they do not work. The sunset has been proposed on many
pieces of legislation. In fact, some of them I did not agree with, but
many I did, but when you do something this breathtaking and this
radical, and potentially this dangerous, at
[[Page H3020]] the very least there ought to be a sunset in case the
proposal does not work.
The CHAIRMAN. Does the chairman of the committee seek to manage the
opposition to the Schumer amendment?
Mr. HYDE. Yes, Mr. Chairman.
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] is recognized
for 10 minutes.
Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, I strongly oppose this amendment. It is
unnecessary. Focusing on the pricing practices of insurers is
irrelevant in many places because most large businesses self-insure and
do not purchase liability insurance. This amendment places the future
of a fair civil justice system in the hands of Federal Government
bureaucrats. Americans overwhelmingly support the reforms in this bill
and it is ludicrous to give the Department of Commerce the power to
determine whether Americans will continue to benefit by these reforms.
This amendment sunsets this legislation 5 years after the date of
enactment unless the Secretary of Commerce certifies that insurance
rates either have declined at least 10 percent or have not declined
that much because of extraordinary circumstances.
This sunset is ill advised because factors other than this
legislation contribute significantly to determining rates charged by
insurance companies and the beneficial effects of this legislation are
not limited to anticipated savings in insurance-related costs.
As the Committee on the Judiciary noted in its report, ``Our
excessive reliance today on a patchwork
of conflicting State statutes and common law relating to allegations
of product defects excessively burdens interstate commerce, discourages
innovations, exacerbates liability insurance costs, compromises
American competitiveness and forces Americans to pay higher prices.''
We had more than the cost of insurance in mind when we crafted this
legislation. The limitation on joint and several liability, for
example, recognizes the injustice of requiring minimally responsible
defendants to pay for all noneconomic damages. We propose punitive
damage reform, an important title of this bill, not only to ameliorate
adverse effects on interstate and foreign commerce but also to protect
due process rights. The unfairness of ignoring extent of fault or
responsibility in assessing liability for noneconomic damages and the
unfairness of virtually unlimited punitive damage awards in a range of
cases that extend beyond the product liability context necessitated
congressional action.
The 10-percent formula relating to insurance rates is flawed. Our
objective of reducing insurance rates will be undermined rather than
advanced by this amendment. The sunset creates uncertainty for
insurance companies. They will not know whether the reforms
incorporated in this legislation will remain in effect 5 years hence,
and this uncertainty will affect risk calculations leading to higher
rates.
I am confident this legislation, without a sunset, will have a
positive effect on insurance rates. I cannot predict how other
developments extraneous to this legislation, such as accident patterns
and medical care costs, may impact on the risks the insurance company
faces. The business of insurance, let us remember, is subject generally
to State rather than Federal regulation and the capacity of the Federal
Government to achieve rate reductions is limited.
If insurance rates do not decline by at least the arbitrary 10-
percent figure, the explanation may have nothing to do with this
legislation. The amendment gives the Secretary of Commerce excessive
power to scuttle this legislation because only he or she can certify to
the extraordinary circumstances to justify a deviation from the 10-
percent requirement.
Congress does not need a sunset to revisit the issues addressed in
this legislation. We can do that in any and every session that is
forthcoming. In response to experiences in the years ahead, we are free
to modify and refine the new law. Perhaps stronger medicine will be
needed to deter abuses in the litigation process. Perhaps unforeseen
developments will justify amending our work product. But a sunset
provision that essentially says we may have to return to square one at
the say so, the fiat of whoever is the Secretary of Commerce, is not a
sensible way to legislate.
Mr. Chairman, I reserve the balance of my time.
Mr. SCHUMER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from California [Mr. Fazio], chairman of the Democratic
caucus.
Mr. FAZIO. Mr. Chairman, I thank my friend from New York for yielding
time to me. I must admit this has been a very difficult piece of
legislation for me. I have been associated with Members who wish to see
a products liability bill enacted, I have been associated with those
who want to move on the question of medical malpractice, and I have
made some votes, uncomfortable votes for me because I think the
amendments were flawed in their drafting and I indicated that earlier
in the deliberation on this bill.
But I must rise in support of the Schumer sunset provisions and in
opposition to the enactment of this bill because I think it frankly is
a travesty the way it has been put together here at the last minute on
the floor, the way it combines a number of disparate elements in the
tort reform area. I will be the first to admit these issues should have
been deliberated in prior Congresses but the fact they have not does
not in my view excuse the approach that has been taken in the
amalgamation of all of these various provisions in this bill at this
time.
Tort reform is a subject this Congress must deal with. It has not
dealt with it effectively in this bill, and the bill should be opposed.
Mr. HYDE. Mr. Chairman, how much time do I have remaining?
The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] has 5 minutes
remaining, and the gentleman from New York [Mr. Schumer] has 5 minutes
remaining.
Mr. HYDE. Mr. Chairman, I am pleased to yield 2 minutes to the
distinguished gentleman from Ohio [Mr. Oxley].
Mr. OXLEY. Mr. Chairman, I rise in opposition to the amendment. When
we first set out on this legislation we had several goals in mind, and
I would remind the Members that it was to improve the competitiveness
of American business, to increase economic growth, create more jobs,
reduce overall liability costs of which insurance rates are only one
portion of that equation.
The gentleman from New York [Mr. Schumer] who offers the amendment it
seems to me really misses the point behind the efforts that we are
making with this legislation.
The gentleman from Massachusetts [Mr. Markey], who I assume will
speak later, had a similar approach in the Committee on Commerce, which
was rejected at that point and I think the full House should reject the
Schumer amendment as well.
There are a lot of factors. The insurance rates are affected by a
number of factors, medical costs, crime rates, accident patterns, court
interpretation of legal reforms; punitive damages are not insurable in
most jurisdictions, meaning that one of the core provisions of the
legislation would not be relevant to insurance rates in most of the
States. Insurer losses on which premiums are in part based will
probably not decrease for several years because of all of the
litigation in the pipeline.
Finally, Mr. Chairman, this amendment places unprecedented power in
the hands of the Secretary of Commerce, essentially giving one
individual life or death power over this legislation and the good that
it is trying to accomplish.
{time} 1115
So, Mr. Chairman, for all those reasons, and for the fact that we
have a number of ambiguous circumstances involved in the uncertainties,
I would ask that the Schumer amendment be defeated.
Mr. SCHUMER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from Massachusetts [Mr. Markey].
Mr. MARKEY. Mr. Chairman, the Schumer amendment is really the did-it-
really-work amendment. Are all the promises which are being made by the
proponents of this reform going to
[[Page H3021]] come to pass? In other words, consumers out there are
being told that they will see lower doctor bills, that they will see
lower costs for products because insurance rates are going to go down?
Now I remember back in 1988 in the Committee on Commerce when we had
hearings. In that particular hearing we actually had insurance
executives, and I asked them, ``Will insurance rates go down?''
They said, ``No, no, no.''
Well, if that is the ostensible guise for all of this, let us have a
determination 5 years later whether or not the promise, like
Reaganomics, of cutting taxes and actually having more revenues is
going to work here in insurance product liability as well, and if it
cannot withstand the crucible of scrutiny 5 years from today, and
insurance companies are retaining windfall profits as----
The CHAIRMAN. The time of the gentleman from Massachusetts [Mr.
Markey] has expired.
Mr. SCHUMER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from New York [Mr. LaFalce], the ranking Democrat on the
Committee on Small Business.
Mr. LaFALCE. Mr. Chairman, many years ago I had dozens of hearings on
the issue of product liability and as long ago as 1978 introduced a
uniform product liability law. It was opposed by the Republicans in the
Chamber of Commerce at that time because they argued it ought not to be
a Federal matter, this was a prerogative of the States.
Mr. Chairman, I will not point out the things that are wrong with the
bill that we have today; they are too countless, it is too egregious.
There are a lot of things that is wrong with what is not being done,
too. We are not dealing with the problems of the insurance industry,
and, if we need a law for anything, we need it for the regulation and
practices of the insurance industry.
Second, we have Federal regulation now over remedies for product
liability cases, but the most fundamental thing, the basic cause of
action for a product defect, is left unattended. So we will have 50
separate causes of actions, but we will have one Federal law with
respect to limitation of remedies.
Last, and there are so many other things I could point out, but 10
percent of the cases----
The CHAIRMAN. The time of the gentleman from New York [Mr. LaFalce]
has expired.
Parliamentary Inquiry
Mr. SCHUMER. Mr. Chairman, I have a parliamentary inquiry.
The CHAIRMAN. The gentleman will state it.
Mr. SCHUMER. I would inquire of the Chair if today is the day when
the gentleman from Illinois [Mr. Hyde] has the right to close, or is it
the day when we have the right to close?
Mr. HYDE. Mr. Chairman, I direct that parliamentary inquiry as well.
I was told that I have the right to close.
The CHAIRMAN. The chairman of the committee controlling time in
opposition has the right to close.
Mr. SCHUMER. I appreciate the determination of this very important
rule.
The CHAIRMAN. That is the way it works.
Mr. SCHUMER. Mr. Chairman, I yield my remaining time to the
distinguished gentleman from Texas [Mr. Bryant], a member of the
committee.
The CHAIRMAN. The gentleman from Texas [Mr. Bryant] is recognized for
3 minutes.
Mr. BRYANT of Texas. Mr. Chairman, I thank the gentleman for yielding
this time to me and for the opportunity to close on this, on our side
of the amendment.
We are today taking steps to eliminate 200 years of common law in
this country. We are taking an enormous amount of power from the
States, something that was thought to be a prohibitive tenet of the
Republican philosophy that we would never do, and we are raising a
barrier to the middle class of this country that will prevent them from
using the courthouse to redress grievances against the most powerful
economic interests in our country. The question has to be why. Why are
we doing it? We have asked over, and over, and over in this debate, and
we asked over, and over, and over in committee, ``Do you have any
empirical data to show us that indicates that there is an explosion of
lawsuits or there is an explosion in the size of verdicts? Any at
all?'' We have had some papers waved at us, but the answers have always
been no every time we ask it of our witnesses, every time we ask it of
you.
The fact of the matter is that there is no explosions with regard to
litigation. We do data; it is not data we put together, but data that
was available to my colleagues as well from the National Center for
State Courts which indicates that product liability filings are only
thirty-six one-hundredths of a percentage of the total civil caseload,
that only 10 percent of the people who were ever injured from torts
ever used the tort system in the first place. As a matter of fact, the
number of cases in State courts and Federal courts are going down, and
so I ask, Why are you doing this?
They will come back to us and say, Well, we think it's going to bring
down insurance rates, and so the gentleman from New York [Mr. Schumer]
comes out with an amendment here that says:
``OK. Since we don't know whether what you're promising will work or
not, let's put something in the bill that says, `In 5 years, if
insurance rates with regard to the things that are affected by this
bill have not come down by 10 percent, this bill will sunset,' and then
you stand up on the floor this morning and say, `Well, we are not sure
insurance rates really will come down.'''
Well, Mr. Chairman, then what is the purpose of this bill? The
bottom-line purpose is this:
``You want to do a favor for some wealthy, powerful
people in this country who are your social peers, who are the people
that you live with, the folks that you think about, the people whose
opinions you adopt regardless of its impact on the American people, on
the average middle class people, and in spite of the lack of any
available data to support the direction you're going.''
I say to my colleagues, Mr. Schumer has a commonsense amendment. If
what you say is true, even if you have no evidence, then insurance
rates will surely over 5 years come down 10 percent, and, if they do,
the bill stays on the books. If they don't, it won't.
The CHAIRMAN. The time of the gentleman from Texas [Mr. Bryant] has
expired.
Mr. BRYANT of Texas. Vote for the Schumer amendment, and vote against
this outrage against the American people.
Mr. HYDE. Mr. Chairman, I yield myself the balance of my time.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, I am consoled that the class struggle has not
expired with the demise of the former Soviet Union. We still put class
against class here. The inability to understand that the
nonavailability of medical help, and vaccines and drugs because of the
unpredictability of product liability has not permeated our opponents,
and I guess there is no way that it ever will.
But this amendment offered by the gentleman from New York [Mr.
Schumer] guts the bill because the purpose of the bill is to have
common standards wherever possible on those important items that affect
our economy and predictability. A 5-year sunset means that in 5 years
nobody knows what is going to happen. Insurance companies would not be
able to set rates with any confidence or predictability, and who is
going to make the determination? The Secretary of Commerce.
So, Mr. Chairman, I hope and pray that this amendment is defeated
handily, but in closing, and this will be the last vote on this very
important bill, I would like to bring to the Members' attention a
letter that the gentleman from Michigan [Mr. Conyers] and I got dated
March 6 from the National Governors Association, and I will just read a
couple of little paragraphs:
We're writing to convey the support of the Nation's
Governors for legislation to establish a uniform product
liability code. Since 1986 the association has been on record
in support of a uniform, consistent, and predictable approach
to product liability. While Governors do not usually support
one-size-fits-all legislation, we believe in this case
uniform product liability standards can only be achieved by
Federal action. We urge you to act swiftly to enact this
legislation.
[[Page H3022]] I thank the Chair for the courtesy and the efficiency
with which he has conducted these four sessions, and I yield back the
balance of my time.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from New York [Mr. Schumer].
The question was taken; and the chairman announced that the noes
appeared to have it.
recorded vote
Mr. SCHUMER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 175,
noes 249, not voting 10, as follows:
[Roll No. 227]
AYES--175
Abercrombie
Ackerman
Andrews
Baesler
Baldacci
Barcia
Barrett (WI)
Becerra
Beilenson
Bentsen
Berman
Bishop
Bonior
Borski
Boucher
Brewster
Browder
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Bunn
Cardin
Chapman
Clay
Clayton
Clement
Clyburn
Coleman
Collins (IL)
Collins (MI)
Condit
Conyers
Costello
Coyne
Cramer
Danner
de la Garza
Deal
DeFazio
DeLauro
Dellums
Dicks
Dingell
Dixon
Doggett
Doyle
Durbin
Engel
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gibbons
Gonzalez
Gordon
Green
Gutierrez
Hall (OH)
Hastings (FL)
Hayes
Hefner
Hilliard
Hinchey
Holden
Hoyer
Jackson-Lee
Johnson (SD)
Johnson, E.B.
Johnston
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Klink
LaFalce
Lantos
Laughlin
Levin
Lewis (GA)
Lincoln
Lipinski
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martinez
Mascara
Matsui
McCarthy
McDermott
McHale
McKinney
Meehan
Meek
Menendez
Mfume
Miller (CA)
Minge
Mink
Moakley
Montgomery
Moran
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Pelosi
Peterson (FL)
Peterson (MN)
Poshard
Rahall
Reed
Reynolds
Richardson
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Schroeder
Schumer
Scott
Serrano
Skelton
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tanner
Taylor (MS)
Tejeda
Thompson
Thurman
Torres
Torricelli
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Wilson
Wise
Woolsey
Wyden
Wynn
Yates
NOES--249
Allard
Archer
Armey
Bachus
Baker (CA)
Baker (LA)
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Brownback
Bryant (TN)
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chambliss
Chenoweth
Christensen
Chrysler
Clinger
Coble
Coburn
Collins (GA)
Combest
Cooley
Cox
Crane
Crapo
Cremeans
Cunningham
Davis
DeLay
Deutsch
Diaz-Balart
Dickey
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Fox
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Goss
Graham
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hamilton
Hancock
Hansen
Harman
Hastert
Hastings (WA)
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Istook
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King
Kingston
Kleczka
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Linder
Livingston
LoBiondo
Longley
Lucas
Manzullo
Martini
McCollum
McCrery
McDade
McHugh
McInnis
McKeon
McNulty
Metcalf
Meyers
Mica
Miller (FL)
Mineta
Molinari
Mollohan
Moorhead
Morella
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Orton
Oxley
Packard
Parker
Paxon
Payne (VA)
Petri
Pickett
Pombo
Pomeroy
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Sawyer
Saxton
Scarborough
Schaefer
Schiff
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skaggs
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stearns
Stenholm
Stockman
Stump
Talent
Tate
Tauzin
Taylor (NC)
Thomas
Thornberry
Thornton
Tiahrt
Torkildsen
Upton
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Williams
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer
NOT VOTING--10
Bevill
Cubin
Gephardt
Jacobs
Jefferson
Kanjorski
McIntosh
Rangel
Riggs
Towns
{time} 1143
The Clerk announced the following pairs:
On this vote:
Mr. Kanjorski for, with Mr. McIntosh against.
Mr. Jefferson for, with Mrs. Cubin against.
Mr. SAWYER changed his vote from ``aye'' to ``no.''
Mr. BAESLER changed his vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN. The question is on the amendment in the nature of a
substitute, as amended.
The amendment in the nature of a substitute, as amended, was agreed
to.
Mr. POMEROY. Mr. Chairman, I rise in opposition to the bill currently
before the House, H.R. 956.
Last night the Republican majority shoved through an amendment that
was poorly drafted, superficially considered, and will hurt a lot of
people. The Cox amendment imposed a cap of $250,000 on noneconomic
damages in all civil lawsuits.
What this amendment does is limit the amount that can be recovered
against insurance companies that refuse to pay health care claims that
they legitimately owe.
I used to be an insurance commissioner. I used to help people who
paid hard dollars for insurance so they would be protected against
doctor and hospital bills only to find their claims denied and medical
bill collectors at their door. The amendment adopted last night now
protects those insurance companies who fail to pay what they owe.
I cannot understand how the majority Members of this House can turn
their back on people in their districts that will have to deal with
bill collectors, shattered credit standing, repossessed automobiles and
even foreclosed houses because their insurance companies fail to pay
the claim they owe.
They call this bill common sense legal reform. I doubt there is a
single American who has had to fight their insurance company to get a
claim paid who would think this bill makes any sense at all.
As amended I cannot in good conscience vote for this bill.
Mr. JOHNSON of South Dakota. Mr. Chairman, I reluctantly express my
opposition to the passage of H.R. 956. There is no doubt that some
reforms of the American civil justice system are needed, despite the
fact that this area of the law has historically been largely the
province of the individual States. It is true that the courts are too
often slow and overburdened, and that jury awards sometimes seem
inconsistent and instances of apparent excessive awards are well known.
I am particularly concerned over problems involving medical malpractice
claims and I have supported State and Federal legislative initiatives
in that area.
Nonetheless, this bill is not well thought through and too little
serious and reasoned deliberation has gone into its formulation. It
makes little sense to me that a corporate CEO might be able to recover
$1 million or more punitive damages under this bill but a typical
working family in my State would have punitive damages capped at
$250,000. It doesn't make sense to me that the punitive damage limit is
the same for small business as it is for Fortune 500 corporations, much
to the advantage of the largest corporations. I am not pleased that
over 60 proposed amendments were not made in order for debate on the
House floor and an inadequate amount of time is allowed for debate even
for those amendments which were made in order. I am not pleased that
the House was not permitted to debate or vote on an amendment which
would have prevented Federal preemption of State laws to punish sexual
predators and drunk drivers.
This legislation preempts State laws, not just in the product
liability arena, but relative to all civil litigation, and increases
the likelihood that injured individuals will not be able to collect
compensation for their legitimate injuries
[[Page H3023]] from wrongdoers. It is little wonder that this specific
bill is opposed by, among others, the Consumer Federation of America,
Consumers Union, the National Conference of State Legislators, YWCA,
National Women's Health Network, and the American Association of
Retired Persons as well as the American Bar Association.
Mr. POSHARD. Mr. Chairman, I rise today in support of the Common
Sense Legal Standards Reform Act, because I believe this bill moves us
in the right direction of reforming our Nation's liability system.
However, I also believe this bill is overreaching in its attempts to
reform the system, and that is why I supported several amendments that
I believe would have broadened an individual's opportunity to use the
courts to seek due compensation for an injury.
While I understand and agree that injured parties are entitled to
fair and just compensation, we all recognize the fact that many people
have taken advantage of our health care providers along the way. The
reality is the only person that pays for the outrageous settlements our
health care providers are often forced to pay is the patient.
I believe the most serious harm caused by our current liability
system is reduced access to health care. Increasing premiums and the
threat of liability have caused physicians to abandon practices or to
stop providing certain services in various areas of the country,
especially in rural America. In my State of Illinois, 68 percent of all
family doctors significantly decreased or eliminated obstetrics over a
5-year period, because of the danger of being sued.
Many of the obstetrical patients in my district travel over our
State's eastern border to Indiana where caps on noneconomic damages
made the profession of obstetrics more palatable. Because these threats
of lawsuits exist, the doctors in my district and across the Nation
have been forced to purchase exorbitant amounts of malpractice
insurance to protect themselves from the threat of multimillion dollar
lawsuits. No longer can many of our rural doctors and hospitals afford
this costly insurance or the threat of expensive and time-consuming
lawsuits.
Many rural hospitals are on the verge of closing, because of their
inability to pay for malpractice insurance or million dollar
settlements. The doctors, nurses, and hospitals of rural America are
only trying to provide aid and comfort to our injured and sick. It is
unfair to these health care officials that we allow a legal system to
exist that simply sits and waits for them to make a mistake. Because of
the constant fear of being sued, the practice of defensive medicine is
costing Americans billions of dollars each year and driving our rural
hospitals and medical centers to the brink of financial disaster.
Understand, I support compensating people injured by an individual or
corporation's mistake, but I do not believe it is just to seek a high-
priced settlement at the expense of a doctor or hospital that serves
communities that would otherwise not have access to health care
services. It is clear that the impacts of high malpractice premiums and
lawsuit threats have created a situation that greatly disadvantages
rural Illinois families.
Let me say again, I support this bill today, because I believe it is
a step in the right direction, especially in its efforts to reform
malpractice suits. However, unless the scope of this bill is further
limited in the Senate or during conference committee, I will not be
able to support the bill in its final form when it comes before the
House of Representatives. In particular, the cap being placed on
noneconomic losses, an individual's pain and suffering, must be raised
to at least $500,000 if this bill is to receive my support in the
future.
I support sending this bill to the Senate, because I believe it is a
good and reasonable foundation on which to continue building. However,
I could not in god conscience send to the President a bill that I
believe would not be fair to those looking to the courts for due
compensation.
Just yesterday, the Governor of Illinois signed into law a tort
reform measure which may help mitigate the serious problems plaguing
our liability system. Nonetheless, Federal action on the issue of
malpractice reform could significantly improve the opportunity for
rural Americans to have access to quality and affordable health care,
and I will do all in my power to foster legislation that will bring
about liability reforms which are fair, balanced and effective.
Mr. PORTMAN. Mr. Chairman, America is in the midst of a litigation
explosion. Not long ago a woman in New York was using a knife to
separate a package of frozen hors d'oeuvres she bought in the
supermarket. The knife slipped and she cut her hand. She got a lawyer
and sued. She sued the supermarket; she sued the manufacturer; and she
sued the packager. We are a litigious society--and we're all paying for
it.
In 1991, nearly 19 million new civil suits were filed in our Nation's
courts. These lawsuits exact a huge price--a price that is ultimately
paid not by big business but by America's consumers. In fact, recent
estimates put the price tag at $300 billion annually. That's $1,200 for
every man, woman and child in America.
Civil litigation attorneys present themselves as champions of the
underdog, yet its estimated that only one-third of each dollar awarded
in liability cases gets into the hands of the injured party. The great
bulk of jury awards goes instead to pay court costs and the lawyers
themselves.
The cost to consumers is high. As much as $500 may be added to the
cost of your new car because of litigation costs passed on by the
manufacturer. Nearly $3,000 of the cost of an $18,000 pacemaker goes to
the tort tax. As much as $500 of the cost of a 3-day maternity stay is
due to liability costs.
And it's not just the costs to America's consumers: This litigious
feeding frenzy is costing the United States in terms of
competitiveness. In a global economy, U.S. businesses have to be able
to provide better value for the dollar than their competitors in, say,
Japan and Europe. But it's not a level playing field when our products
carry a legal surcharge.
The Japanese have 30 times fewer lawsuits than we do. We have 70,000
product liability lawsuits in the United States every year. In Great
Britain, they have 200. The greatest loss, however, may not be a
question of economics. It can't be measured in dollars and cents. It
comes from the products--often medically necessary, life-saving
products--that are kept off the market because of the high costs
imposed by a civil litigation system run amok.
I believe it's time to stop the litigation explosion. The House took
the first step today with the passage of the Contract With America's
Common Sense Legal Reform Act. It makes a number of common sense
changes, including limiting punitive damage awards to a reasonable
relationship to the actual or compensatory damages incurred; punitive
damages would be either three times the actual damages or $250,000,
whichever is greater. It would help to limit the huge profits tort
lawyers now rake in. This will make a plaintiff's lawyer and a
potential litigant think carefully before filing a suit.
To discourage frivolous lawsuits, it would provide--as almost all
other industrialized nations do--that the loser in civil cases pays
costs. This will make a potential litigant think carefully before
filing a suit. Right now, plaintiffs may sue on unsubstantiated
grounds, because they have nothing to lose even if the jury throws the
case out of court. The accused, however, may be saddled with tens of
thousands in court costs, despite complete and utter innocence.
I believe common sense and fairness have prevailed by Congress'
passage of these legal system reforms.
Mr. CARDIN. Mr. Chairman, although I shall support the amendment to
H.R. 1075, offered by Mr. Cox, which will add a noneconomic cap in
medical malpractice awards, I do so with major reservations. The
$250,000 cap is too low. My State of Maryland which originally enacted
a $350,000 cap on noneconomic damages has increased that cap to
$500,000. Such an amount is far more reasonable.
I also resent the fact that the amendment is being considered without
any opportunity for me to submit an amendment to the Cox amendment, No.
12, to raise the cap or for me to submit a separate amendment regarding
this subject.
My vote in favor of the Cox amendment should be interpreted only to
support the inclusion of a cap. I trust the cap will be adequately
adjusted by the Senate or in conference.
Mr. HASTERT. Mr. Chairman, I would like to clarify an important issue
regarding title III of H.R. 956. This title incorporates the provisions
of H.R. 753, the Biomaterials Access Assurance Act, a bill to ensure
that adequate supplies of biomaterials are available to medical device
manufacturers. During the Commerce Committee's markup of H.R. 917, I
offered an amendment to protect these vital supplies, the text of which
now appears, with some modifications, in H.R. 965.
It has come to my attention, however, that in the period of time
between offering my amendment and today, language has been added to
deal with the difficult issue of biomaterials suppliers who are alleged
to have wrongfully withheld or misrepresented safety information, or
who know of fraudulent use of their materials. I agree, of course, that
conduct of this type, if it occurs, should not go unpunished. However,
I have concerns regarding the specific language added to H.R. 965 to
address this issue.
I have heard from a number of biomaterials suppliers in recent days
that the new language will not arrest the flight of suppliers from the
implantable device market. May I remind my colleagues that we came to
this debate to achieve a singular objective: To stem the exodus of
biomaterials suppliers from the
[[Page H3024]] implantable device market. We must reduce the incidence
of unnecessary and costly litigation to prevent further flight by these
suppliers. If we do not act, American patients will not have access to
life-saving, life-enhancing implantable devices, including pace makers,
heart valves, artificial blood vessels, hydrocephalic shunts, hip and
knee joints, and even simple sutures for common surgeries.
Mr. Chairman, in the final analysis, this debate is about more than
legal theory and procedure. It is about ensuring that those devices
which can save and enhance a person's life will be available when they
need them. It is imperative that we fix this problem.
In closing, I believe that the issues I have raised need to be
discussed further. With the help of my colleagues, I am sure we can
draft language that addresses these concerns.
Mr. GEKAS. Mr. Chairman, title III of H.R. 1075 essentially
incorporates the provisions of H.R. 753, the Biomaterials Access
Assurance Act, which I introduced to help assure adequate supplies of
biomaterials for medical devices.
Language has been added in H.R. 1075 to deal with the difficult issue
of biomaterials suppliers who are alleged to have wrongfully withheld
or misrepresented safety information or who know of fraudulent use of
their materials. I believe strongly that conduct of this type should
not go unpunished.
Under current law, a medical device manufacturer can bring an action
in such circumstances against the biomaterials supplier, and may
recover from the supplier any damages that the manufacturer had to pay
as a result of a lawsuit by an individual who has been injured. This is
unchanged by title III of H.R. 1075. This is as it should be.
The new language in title III, however, prevents a motion for
dismissal by a biomaterials supplier if the injured individual claims
misrepresentation or fraud. This will keep the deep pockets supplier in
the case and subject to the same kind of costly litigation that now
threatens to dry up the supply of biomedical materials. So the purpose
of title III, to ensure the continuing availability of life-saving and
life-enhancing medical devices made from these materials, will be
thwarted. Again, let me emphasize that under existing law the
manufacturer will have recourse against the errant supplier. The
wrongdoer will have to pay for its action. Wrongful conduct will not be
immunized.
As this legislation moves forward, I believe this situation should be
kept in mind with a view toward finding an appropriate solution.
Mr. FRELINGHUYSEN. Mr. Chairman, I rise today with words of support
for H.R. 956, the Common Sense Product Liability and Legal Reform Act,
as well as H.R. 10, the entire package of commonsense legal reforms
which the House of Representatives has passed this week.
I strongly support the efforts of this House to bring much needed
reforms to our tort liability system. This legislation, if enacted,
will benefit the State of New Jersey, its businesses, and its
consumers.
I have heard from hundreds of constituents and businesses in the 11th
District of New Jersey regarding the need for limitations on frivolous
lawsuits. These constituents are all too familiar with the rising costs
of liability insurance.
I have also heard from constituents whose businesses, increasingly in
the past several years, have been the targets of frivolous lawsuits
which were eventually found meritless. These decisions came only after
having spent obscene amounts of time and money defending themselves.
These constituents are all too familiar with the phenomenon of costly
settlements having to be made to settle even costlier lawsuits.
The reality is that even a single frivolous lawsuit is sometimes
enough to force a small business out of business. Unfortunately, the
costs associated with this reality are then passed on to clients and
consumers.
Everyone agrees that citizens should have the right to sue and
collect reasonable compensation if they are wrongfully injured. These
bills will continue to protect fully, that right.
I am pleased to support passage of this well-balanced legislation.
Mr. FAZIO. Mr. Chairman, I rise today to affirm my support for
product liability reform and commonsense legal reforms, but it is with
great regret that I am not able to vote for final passage of this
measure.
First, let me be clear that I strongly believe that we need to
replace the current costly patchwork of State laws on product liability
with a uniform standard which is fair to consumers, manufacturers, and
small businesses. Although over 70 percent of products routinely travel
across State lines, under our current laws, the outcome of product
liability lawsuits more often depend on geography than the merits of
the cases. this confusion of 50 separate State laws stifles business
innovation and development. As a result of skyrocketing liability
costs, 39 percent of American manufacturers have decided not to
introduce new products and 25 percent have discontinued new product
research. For consumers, disparate liability laws means that the costs
for litigation and skyrocketing insurance rates are passed on to them
through higher prices for products.
Furthermore, I support restoring fairness to liability litigation by
applying a fair share principle for determining noneconomic damage
awards, a step that the majority of States have already taken. This
provision would ensure that victims are fairly compensated, but put an
end to the practice of lawyers suing any deep pocket who is even
remotely connected to the case.
However, I must express my great disappointment and frustration with
the way this legislation was brought to the floor. While the title of
this legislation is ostensibly the Common Sense Legal Reform Act, I
cannot understand why the authors of this bill did not have the common
sense to give more careful and deliberate consideration to these
complicated issues. This legislation was rushed through the committee
process, and as a result, I do not believe this legislation in any way
represents the best effort this body can make to produce a uniform
liability law. This flawed measure may be keeping the Contract With
America on its timetable, but I do not believe it is worth the price of
a bad bill.
For example, I supported the Cox amendment addressing the important
issue of medical malpractice because I have been a proponent of similar
provisions contained in California's Medical Injury Compensation Reform
Act [MICRA]. MICRA was adopted to respond to the crisis in the
availability and affordability of professional liability coverage for
health professionals
throughout the State in a way that preserved a high level of quality
assurance for patients. MICRA compensates injured patients without
limit for all economic losses, but limits noneconomic losses to no more
than $250,000.
However, I wish to make it clear that I believe this amendment is a
blunt instrument in which to bring MICRA type malpractice reform into
the broader national debate about liability reform. This amendment
would extend a cap on noneconomic damages to include medical devices as
well as health insurance, provisions that are not part of my State's
current law. I understand that this amendment was hastily drafted and
went under a number of major revisions within less than 24 hours before
it was debated. While I am troubled that this amendment contained
provisions that were not thoroughly examined or debated, I supported
the amendment because I believe that it was an important step to
highlight the needs of malpractice reforms. With more time and
consideration, this issue could have been addressed much more
effectively.
Moreover, if the Rules Committee would have allowed for a fair and
reasonable amendment process, I could have likely supported this bill.
Regrettably, the Rules Committee shut out the most reasonable
amendments that could have made this legislation a sound and workable
solution to our product liability problems.
For example, I believe that placing a cap on punitive damages in
product liability cases could relieve some the needless uncertainty
that exists today about the lottery of current litigation, a system
which leads companies to agree to large settlements even in cases with
extremely tenuous liability. However, the cap on punitive damages in
this bill--$250,000 or three times the amount of monetary awards, which
ever is greater--was just too low to serve as a true incentive to
manufacturers to ensure their products are safe. Furthermore, this cap
applied to all civil cases, not just product liability cases. The cap
on punitive damages was a key issue in this debate, and a number of
amendments were submitted to the Rules Committee which would have given
us the opportunity to keep caps on punitive damages in the bill, but
raise them to a more reasonable level or more specifically target the
caps to product liability cases. The amendments we were allowed to
consider on the floor did not adequately address these critical issues.
Thus, without the opportunity to vote on a better liability reform
bill, I must oppose the final version of H.R. 956. It is my sincere
hope that this legislation will eventually go to conference with the
Senate, and return in a form that I can support which will be fair to
consumers and business alike.
The CHAIRMAN. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Walker) 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, pursuant to House Resolution 109,
he reported the bill back to the House with
[[Page H3025]] an amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any amendment to the amendment in the
nature of a substitute adopted by the Committee of the Whole? If not,
the question is on the amendment.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
{time} 1145
motion to recommit offered by mr. gordon
Mr. GORDON. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore (Mr. Walker). Is the gentleman opposed to the
bill?
Mr. GORDON. In its present form, Mr. Speaker, I am.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Gordon moves to recommit the bill to the Committee on
the Judiciary with instructions to report the bill back to
the House forthwith, with the following amendments:
Add at the end of the bill the following:
SEC. 404. SERVICE OF PROCESS.
This Act shall not apply to a product liability action
unless the manufacturer of the product or component part has
appointed an agent in the United States for service of
process from anywhere in the United States.
Change the limit in section 201 on punitive damages to the
following: ``3 times the amount of damages awarded to the
claimant for the economic loss on which the claimant's action
is based, or $1,000,000, whichever is greater''.
The SPEAKER pro tempore. The gentleman from Tennessee [Mr. Gordon] is
recognized for 5 minutes in support of his motion.
Mr. GORDON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise as someone who is a supporter of products
liability reform, not just in this Congress, but in past Congresses. I
supported the bipartisan bill last year because I do not think status
quo is satisfactory. However, I am disappointed that this House has
been required to work under a gag rule that has gagged amendments, has
gagged this House from fully discussing this issue, and has really
gagged the American people from having a full discussion of this issue
and allowing us to put better amendments on the floor.
So I rise with a motion to recommit that I think improves this bill
in two years: One, to put back in the bill a provision that will
require foreign manufacturers to designate an agent in this country.
The reason for that is that American consumers are going to be
disadvantaged if they are the recipient of some harm by goods in this
country by a foreign manufacturer and then cannot get service on them,
and American business is going to be at a disadvantage if they are
going to be responsible for liability in this country, however foreign
manufacturers would not because they do not have an agent to be served.
Mr. Speaker, the second part of this motion to recommit will raise
the punitive damage level from $250,000 to a more reasonable $1 million
for outrageous conduct.
Mr. Speaker, I yield to my friend, the gentleman from Michigan [Mr.
Conyers].
Mr. CONYERS. Mr. Speaker, I thank the gentleman from Tennessee for
the excellent job he has done.
Mr. Speaker, the motion to recommit makes two simple changes, first
restoring the provision from the committee-passed bill which would
require foreign manufacturers to be subject to service of process in
this country before they could benefit from the bill's provision, and
then second increase the cap on punitive damages from a quarter million
dollars to $1 million.
Although the body approved a separate amendment by a 92-vote margin
that I offered yesterday dealing with foreign manufacturers, that
amendment merely ensured that foreign manufacturers were subject to
Federal court rules in terms of discovery and jurisdiction. However, we
all know that being subject to court rules is not worth anything unless
you can actually serve the company with process and bring them into
court.
Unfortunately, the first Cox amendment approved yesterday I like to
think inadvertently knocked out my service-of-process language. This
gutted the whole bill. So the Cox amendment gutted the whole provision
of being able to hold foreign wrongdoers responsible for their actions.
Mr. Speaker, I strongly support the motion to recommit.
Mr. GORDON. Mr. Speaker, I yield to the gentleman from Michigan [Mr.
Dingell].
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Speaker, the function of this motion to recommit is
a very simple one: One, to include what essentially would have been a
bipartisan amendment to this legislation, which would have been offered
by the gentleman from Ohio [Mr. Oxley] and the gentleman from Tennessee
[Mr. Gordon], that would have raised the amount of punitive damages to
$1 million or three times the economic damages, a very fair and a very
humane amendment which would protect the rights of persons injured by
serious wrongdoing by manufacturers and others.
The other thing that the amendment does is something which was voted
on yesterday and in which by 258 to a substantially lesser number this
body came to the judgment that we ought to see to it that foreigners
are treated the same way as Americans are.
The Cox amendment yesterday struck from the bill a requirement that
foreigners appoint an agent for purposes of receiving service. The
striking of that provision meant that no longer is it easy to get
jurisdiction over foreigners who engage in improper processes in
manufacturing.
Let me give you an example. An American manufacturer manufactures an
automobile. In it he includes foreign parts. He is sued for product
liability because of the manufacturing of that automobile. Service is
easy on the American manufacturer. Under the Cox amendment, it is
almost impossible.
Mr. Speaker, if you wanted to treat Americans fairly with foreigners,
vote for the motion to recommit. Otherwise vote for the bill as it is.
Mr. GORDON. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, in summary, let me state this motion to recommit offers
us a chance to protect U.S. citizens harmed by foreign products, allow
American business a chance to compete against foreign manufacturers on
an equal footing, and keep the most dangerous products in this country
off the market.
Mr. Speaker, I urge Members to support the Conyers-Dingell motion to
recommit.
Mr. HYDE. Mr. Speaker, I rise in opposition to the motion.
The SPEAKER pro tempore. The gentleman from Illinois [Mr. Hyde] is
recognized for 5 minutes.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Speaker, I yield to the distinguished gentleman from
Ohio [Mr. Oxley].
Mr. OXLEY. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise in opposition to the motion to recommit, and I do
so with some concern, because the fact is the language added regarding
service of process I think is a bogus argument and is simply an effort
to bash foreign manufacturers.
The motion to recommit, as far as the language increasing its
punitive damage ceiling and the cap to $1 million, is an amendment that
I had supported and had offered, in fact, to the Committee on Rules.
But clearly the language involving service of process in my estimation
has no business in the motion to recommit. Frankly, it has no business
in the bill.
Mr. Speaker, for that, I feel compelled to oppose the motion to
recommit.
Mr. HYDE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, there are three points to be made on this motion to
recommit. The first one is on the first part of the motion to recommit,
it has to do with service on foreign corporations. The amendment of the
gentleman from Michigan [Mr. Conyers] was not
[[Page H3026]] stricken by the Cox amendment. It still is in the bill,
the one that passed last night making foreign manufactures subject to
the jurisdiction of the Federal courts in product liability actions.
What the motion to recommit does has to do with service of process on
foreign corporations. I tell you it is unnecessary. The Hague
Convention, to which we are all subscribers, already provides for
service of process on foreign corporations. So it is unnecessary and it
is unneeded.
As to the second part of the motion to recommit, it seeks to elevate
the ceiling on punitive damages from $250,000 or three times the
economic damages, which could exceed $250,000, to $1 million.
Now, I point out with as much fervor as I can muster, punitive
damages are not meant to compensate anybody. They are a punishment,
they are a deterrent. There is no inhibition, there is no impediment to
a plaintiff suing for medical expenses, economic expenses, noneconomic
expenses, pain and suffering, loss of use. All of those things are
elements of damages that are recoverable. We are talking now about
punitive damages meant to punish somebody, and the purpose of this bill
is to have a consistent, reasonable figure so insurance companies and
manufacturers are not terrorized by the possibility of bankrupting
punitive damages assessed against them in some of the States.
{time} 1200
Punitive damages impede quick settlements. They get in the way. The
reforms in our bill are reasonable. The Governors Association said,
``We urge you to act swiftly to enact this legislation.''
Now, if you elevate the ceiling to $1 million, you adulterate and you
diminish the effect of having a good products liability bill, a good
tort reform bill.
I hope Members will stay with the committee, stay with the bill and
defeat the motion to recommit.
I want to say something about the remarks of the gentleman who moved
this motion to recommit. He called it a gag rule. I, for one, am very
tired of having the Republican side berated for issuing rules that do
not make in order 82 different amendments but do make in order
significant amendments of the opposition. This rule, this rule made in
order 8 Democrat amendments out of 15.
I just say to the gentlemen and gentlewomen of this House that they
have a short memory if they do not recall in the last session the
motor-voter bill, where we got one amendment permitted; the assault
weapons ban, where we got no amendments. Do Members hear that? No
amendments.
That is a closed rule, let me tell my colleagues. Reinventing
Government, do Members know how many amendments Republicans were
permitted on that? Zero. How about campaign reform? Do my colleagues
know how many amendments we were permitted? Zero. That is one of my
objections to term limits. People will forget the way we were treated.
And they have the, shall I say, ``chutzpah'' to say we put a gag rule
on you when we give you eight amendments. I am sorry. I resist that.
Mr. CONYERS. Mr. Chairman, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Speaker, I thank the gentleman for yielding to me.
The SPEAKER pro tempore (Mr. Walker). The time of the gentleman from
Illinois [Mr. Hyde] has expired.
Without objection, the previous question is ordered on the motion to
recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
recorded vote
Mr. GORDON. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 195,
noes 231, not voting 8, as follows:
[Roll No. 228]
AYES--195
Abercrombie
Ackerman
Andrews
Baesler
Baldacci
Barrett (WI)
Becerra
Beilenson
Bentsen
Berman
Bevill
Bishop
Bonior
Borski
Boucher
Browder
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Cardin
Chapman
Clay
Clayton
Clement
Clyburn
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
Cramer
Danner
de la Garza
Deal
DeFazio
DeLauro
Dellums
Deutsch
Dickey
Dicks
Dingell
Dixon
Doggett
Dooley
Doyle
Duncan
Durbin
Edwards
Engel
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gibbons
Gonzalez
Gordon
Graham
Green
Gutierrez
Hall (OH)
Hall (TX)
Hamilton
Harman
Hastings (FL)
Hayes
Hefner
Hilliard
Hinchey
Holden
Hoyer
Jackson-Lee
Jacobs
Johnson (SD)
Johnson, E.B.
Johnston
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kleczka
Klink
LaFalce
Lantos
Laughlin
Levin
Lewis (GA)
Lincoln
Lipinski
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martinez
Mascara
Matsui
McCarthy
McCollum
McDermott
McHale
McKinney
McNulty
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Minge
Mink
Mollohan
Montgomery
Moran
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Orton
Owens
Pallone
Pastor
Payne (NJ)
Payne (VA)
Pelosi
Peterson (FL)
Pomeroy
Poshard
Rahall
Reed
Reynolds
Richardson
Rivers
Roemer
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schiff
Schroeder
Schumer
Scott
Serrano
Skaggs
Skelton
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tanner
Tauzin
Taylor (MS)
Tejeda
Thompson
Thornton
Thurman
Torres
Traficant
Tucker
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Williams
Wilson
Wise
Woolsey
Wyden
Wynn
Yates
NOES--231
Allard
Archer
Armey
Bachus
Baker (CA)
Baker (LA)
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Brewster
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chambliss
Chenoweth
Christensen
Chrysler
Clinger
Coble
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Crane
Crapo
Cremeans
Cunningham
Davis
DeLay
Diaz-Balart
Doolittle
Dornan
Dreier
Dunn
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Fox
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Goss
Greenwood
Gunderson
Gutknecht
Hancock
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Istook
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Linder
Livingston
LoBiondo
Longley
Lucas
Manzullo
Martini
McCrery
McDade
McHugh
McInnis
McKeon
Metcalf
Meyers
Mica
Miller (FL)
Molinari
Moorhead
Morella
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Oxley
Packard
Parker
Paxon
Peterson (MN)
Petri
Pickett
Pombo
Porter
Portman
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Riggs
Roberts
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stearns
Stenholm
Stockman
Stump
Talent
Tate
Taylor (NC)
Thomas
Thornberry
Tiahrt
Torkildsen
Upton
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
Zeliff
Zimmer
NOT VOTING--8
Cubin
Jefferson
Kanjorski
McIntosh
Moakley
Rangel
Torricelli
Towns
[[Page H3027]] {time} 1220
The Clerk announced the following pairs:
On this vote:
Mr. Jefferson for, with Mrs. Cubin against.
Mr. Kanjorski for, Mr. McIntosh against.
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Walker). The question is on passage of
the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 265,
noes 161, not voting 8, as follows:
[Roll No. 229]
AYES--265
Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bereuter
Bevill
Bilbray
Bilirakis
Bliley
Blute
Boehlert
Boehner
Bonilla
Bono
Boucher
Brewster
Browder
Brownback
Bryant (TN)
Bunn
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Castle
Chabot
Chenoweth
Christensen
Chrysler
Clement
Clinger
Coburn
Collins (GA)
Combest
Condit
Cooley
Cox
Cramer
Crane
Crapo
Cremeans
Cunningham
Danner
Davis
Deal
DeLay
Dickey
Dooley
Doolittle
Dornan
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Fields (TX)
Flanagan
Foley
Forbes
Fowler
Fox
Franks (CT)
Franks (NJ)
Frelinghuysen
Frisa
Funderburk
Gallegly
Ganske
Gekas
Geren
Gilchrest
Gillmor
Gilman
Goodlatte
Goodling
Gordon
Goss
Graham
Greenwood
Gunderson
Gutknecht
Hall (OH)
Hall (TX)
Hamilton
Hancock
Hansen
Harman
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Hefner
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Holden
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Johnson (CT)
Johnson, Sam
Jones
Kaptur
Kasich
Kelly
Kennelly
Kim
Kingston
Kleczka
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Laughlin
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
Livingston
LoBiondo
Longley
Lucas
Manzullo
McCollum
McCrery
McDade
McHugh
McInnis
McKeon
McNulty
Metcalf
Meyers
Mica
Miller (FL)
Minge
Molinari
Montgomery
Moorhead
Moran
Morella
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Oxley
Packard
Parker
Paxon
Payne (VA)
Peterson (FL)
Peterson (MN)
Petri
Pombo
Porter
Portman
Poshard
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schiff
Seastrand
Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Sisisky
Skeen
Slaughter
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Spratt
Stearns
Stenholm
Stockman
Stump
Talent
Tanner
Tate
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Tiahrt
Torkildsen
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--161
Abercrombie
Ackerman
Andrews
Baldacci
Barrett (WI)
Bateman
Becerra
Beilenson
Bentsen
Berman
Bishop
Bonior
Borski
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Cardin
Chapman
Clay
Clayton
Clyburn
Coble
Coleman
Collins (IL)
Collins (MI)
Conyers
Costello
Coyne
de la Garza
DeFazio
DeLauro
Dellums
Deutsch
Diaz-Balart
Dicks
Dingell
Dixon
Doggett
Doyle
Durbin
Engel
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gonzalez
Green
Gutierrez
Hastings (FL)
Hinchey
Hoyer
Istook
Jackson-Lee
Jacobs
Johnson (SD)
Johnson, E.B.
Johnston
Kanjorski
Kennedy (MA)
Kennedy (RI)
Kildee
King
Klink
LaFalce
Lantos
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martinez
Martini
Mascara
Matsui
McCarthy
McDermott
McHale
McKinney
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Mink
Moakley
Mollohan
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Orton
Owens
Pallone
Pastor
Payne (NJ)
Pelosi
Pickett
Pomeroy
Rahall
Reed
Reynolds
Richardson
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schroeder
Schumer
Scott
Serrano
Skaggs
Skelton
Stark
Stokes
Studds
Stupak
Tejeda
Thompson
Thornton
Thurman
Torres
Torricelli
Tucker
Velazquez
Vento
Visclosky
Volkmer
Ward
Waters
Watt (NC)
Waxman
Williams
Wilson
Wise
Woolsey
Wyden
Wynn
Yates
NOT VOTING--8
Chambliss
Cubin
Gibbons
Hilliard
Jefferson
McIntosh
Rangel
Towns
{time} 1239
The Clerk announced the following pairs:
On this vote:
Mrs. Cubin for with Mr. Jefferson against.
Mr. McIntosh for with Mr. Towns against.
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________