[Congressional Record Volume 141, Number 45 (Friday, March 10, 1995)]
[House]
[Page H3033]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PROBLEMS WITH COMMON SENSE LEGAL REFORM ACT

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from West Virginia [Mr. Wise] is recognized for 5 minutes.
  Mr. WISE. Mr. Speaker, the reason that I am opposing what is billed 
as the Common Sense Legal Reform Act or Tort Reform Act is not because 
I am opposed to all tort reform. I am not. I think what most people 
want is they want to see the courts that are clogged have that ended. 
They want to discourage frivolous lawsuits. In some cases they want to 
limit what they see as unfair recoveries and perhaps unfair attorney 
fees. They want to see the end to the occasional sensational judgment 
you read about.
  The fact of the matter is this legislation this Congress has been 
considering does not do any of that, and it will not guarantee to any 
working West Virginian, any middle or low-income West Virginian, any 
lower insurance rate. It will not guarantee any better health care. It 
will not do that.
  But what it will do besides is, it is going to say to the average 
West Virginian that you are not going to get any lower insurance rates, 
you are not going to get any lower health care rates, but you are going 
to have a lot harder time going to court when you have a legitimate 
grievance you need to litigate.
  I wanted to be able to support the product liability, the securities 
limitation, and even in some cases the attorney's accountability act. 
but I cannot do it, for instance, when they completely change the way 
that there is compensation for the victim. I cannot do it, for 
instance, when they overrule 200 years of common law in this country to 
say that now the loser will pay. That has never been a concept in our 
society. Instead of a contingency fee, the loser pays.
  I cannot do it, for instance, when punitive damages are limited so 
strictly that that working family that is hit by a drunk driver on 
Route 9 in the eastern panhandle is sharply limited in the punitive 
damages they can recover, or the victim who has had their lives ruined 
by a sexual predator is limited strictly in the amount of punitive 
damages that they can recover.
  What happened to the States rights that are so important, and indeed 
we hear so much about in this body today? What happened to that concept 
of States rights, when the Federal Government now moves in and
 says the State of West Virginia does not have the right to protect its 
citizens the same way it used to? And perhaps the State of West 
Virginia differs from Tennessee, California, or whatever. This 
litigation does nothing to stop frivolous lawsuits. This litigation 
does nothing to stop that attorney that many people worry about maybe 
filing suit after suit after suit in hopes of hitting the litigation 
lottery. In fact, there are existing sanctions you can already use on 
attorneys in the Rules of Civil Procedure. Indeed, there are means by 
which you can file counterclaims for attorneys fees if you think the 
other side is acting improperly. But this legislation does not do this.

  There is no evidence that this legislation will lower anybody's 
insurance rates. In fact, there was an amendment defeated that would 
have made it possible for people to go and find out exactly what the 
impact of this legislation would be on insurance.
  This legislation even added an amendment that limits pain and 
suffering, so-called noneconomic damages, to $250,000 total. That may 
sound like a lot, unless you are the 20-year-old who is made a 
quadriplegic and live out the next 40 or 50 years with pain and 
suffering, for which you are going to receive an average of about 
$5,000 or $10,000 a year.
  This legislation does not help accountants. That is one of the groups 
I was hoping in the securities litigation it would help. In fact, the 
bill that passed was even worse than last year's bill, which was a 
compromise version.
  So, Mr. Speaker, I am going to wait until the Senate acts. This 
legislation goes to the Senate. I believe it will be tempered there. It 
is my hope it will be, it will come back, and then we will evaluate 
again. This is a case of reaching too far. There was a chance to get 
significant liability reform, product liability reform, but that did 
not happen.
  I want to talk for just a second about the loser-pays provision. What 
that means is for the average West Virginia couple, the average West 
Virginian low- or middle-income person who has a serious litigation 
claim, whether it is personal injury, product liability, whatever it 
is, when they go to court, when they go to see their lawyer, the lawyer 
will say, ``I have to tell you even if you have a meritorious case, 
there is an excellent chance if a jury comes back against you, just by 
the thinnest of margins, you are going to end up paying the fees of the 
other side.'' You are going to end up paying the fees of the insurance 
company that is defending against you. That is quite a deterrent.
  I want to speak for just a second about the securities litigation 
bill. That is one I thought I could vote for, but it, too, had the 
loser-pays provision in there. That is anathema to any serious tort 
reform. It also requires the plaintiff, the person filing the suit, the 
person alleging being defrauded, that they have to show intent by the 
securities firm. Not just recklessness, they have to show intent, which 
is an impossible standard. It does not separate accountants, as indeed 
we hoped it would, and indeed it keeps the loser pays.
  Mr. Speaker, for all of those reasons, I oppose this legislation.

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