[Congressional Record Volume 141, Number 60 (Friday, March 31, 1995)]
[Senate]
[Pages S4964-S4965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              LEGAL REFORM

  Mr. FRIST. Mr. President, I rise today to discuss the need for legal 
reform in America. Our civil justice system is broken. The changes in 
our tort law system that were introduced 30 years ago had merit, but 
like many other aspects of our society, what began as a good idea has 
been the subject of ceaseless expansion and is now totally out of hand. 
We are now by far the most litigious country on Earth, and we are 
paying a huge price as the result.
  Mr. President, I come to this issue from a different perspective than 
most of my colleagues. I am not a lawyer. I am a doctor. I have seen 
firsthand day in and day out what the threat of litigation has done to 
American medicine. I have watched my colleagues every day order 
diagnostic tests--CT scans, blood tests, MRI scans, 
electrocardiograms--that were many times costly and unnecessary for the 
good of the patient. They were ordered for one simple reason--to create 
a paper trail to protect them in the event a lawsuit would ever be 
filed. It is called defensive medicine, and it happens every day in 
every hospital throughout America. It alters the practice of medicine 
and drives the cost of health care higher and higher.
  Mr. President, I have also treated patients who were injured by 
allegedly defective products or in automobile accidents, and I have 
watched as their families were contacted by lawyers, urging them to sue 
before anyone knew the real facts of the accident.
  Mr. President, I know we will face stiff opposition, but changes must 
be made in our legal system. It is costing us billions of dollars each 
and every year and, perhaps more importantly, it is turning us into a 
nation of victims.
  Our product liability laws are a particular area in need of reform. 
Our present system costs this Nation between $80 and $120 billion a 
year. A 1993 Brookings Institution survey found that pain and suffering 
awards alone cost American consumers $7 billion each year.
  Mr. President, 50 to 70 percent of every dollar spent on products 
liability today is paid to lawyers.
  What really is the problem? It is fashionable to talk about the big 
verdict cases, cases like the customer at McDonald's who spilled hot 
coffee in her lap, or the fleeing felon in New 
[[Page S4965]] York who was shot by police, only to recover a $4 
million verdict against the police department.
  But those cases are just symptoms of the illness. The heart of the 
problem is that our civil justice system does not effectively weed out 
specious claims that lack merit.
  Our judicial system has built in rules that are meant to do that, but 
they simply do not work well. The summary judgment mechanism is one and 
rule 11 of the Federal Rules of Civil Procedure is another. 
Unfortunately, if you ask most defense lawyers, they will tell you that 
summary judgments are rarely granted, and rule-11 sanctions are almost 
never imposed.
  As a result, almost any case that is filed today stands a good chance 
of getting to the jury. And, Mr. President, given the unpredictable 
nature of juries, not to mention the staggering cost of defense, 
businesses and insurance companies simply make the decision to settle 
the case rather than play Russian roulette with the jury. Day after day 
in this country, insurance companies and businesses pay $25,000, 
$50,000, $75,000, or more, to plaintiffs who have filed cases which 
lack merit, either factually or legally.
  So who pays for all this? The American people do. Insurance companies 
simply pass the costs along in higher premiums and businesses pass the 
higher premiums along in higher product costs. We spend five times more 
of our economy on tort claims than our Japanese or German competitors. 
This makes our American products more expensive, and eventually it 
chases American products from the marketplace.
  One example that I am personally familiar with is a device called the 
left ventricular assist device, essentially a type of artificial heart. 
The product is housed in a clear polyurethane cover. Without it, many 
patients would die as they waited for a transplant.
  The device allows them to live for weeks and sometimes months as they 
await a donor heart. Unfortunately, because of the rash of recent 
lawsuits involving medical devices which contain polyurethane component 
parts, the polyurethane manufacturers are simply threatening to pull 
their product from the marketplace saying they cannot afford to produce 
the product anymore. That means it will not be used in a broad range of 
devices.
  Mr. President, if that happens, who will the makers of this device 
turn to for that polyurethane housing? And if they are unable to find a 
supplier, the device simply cannot be made and, I can tell you, based 
on firsthand experience, that patients will die because they will not 
have that bridge to transplantation available. I have transplanted 
these patients before. Without it, they would not be alive today.
  Mr. President, to those who say that litigation costs are not the 
cause of products vanishing from the marketplace, just ask Cessna 
Aircraft Corp. They quit making small planes 9 years ago because of 
liability concerns. But thanks to last year's legal reform that limited 
an aircraft manufacturer's liability for planes over 18 years old, they 
announced on March 15 of this year that they would, once again, start 
making planes.
  Mr. President, tort reform will make a difference. The real problem 
is that our juries are taking the place of our legislatures in 
determining which products offer enough utility that they should remain 
in the marketplace, despite their risk. We now trust juries to redesign 
airplane engines, to rewrite product warnings, to second-guess medical 
diagnoses, and even to place values on the price of a human life.
  It is because of runaway jury verdicts that you no longer see many 
American manufacturers of football helmets, or diving boards at pools 
of motels, and you can no longer get a money-back guarantee if your 
pizza is not delivered within a specified time. And maybe--just maybe--
those things are good. But the point is that they should not be decided 
by juries. They should be decided by people through their elected 
representatives, not by those juries in courtrooms where the rules of 
evidence are confining and, in so many instances, the real story is 
never told.
  So who stands in the way of legal reform? Who will attack us over the 
next several weeks as this is introduced? Unfortunately, that great 
triumvirate of federalism--the plaintiffs' bar, the consumer groups led 
by Ralph Nader, and President Clinton. In a recent article in the 
Washington Times, Judge Robert Bork pointed out the fallacy of this 
newfound federalism argument that has been floated by the plaintiffs' 
lawyers. Our Framers valued local decisionmaking, and they wanted to 
avoid a centralized government that would control every aspect of our 
lives, but they also recognized that Federal regulation can be 
important.
  One important factor that the Framers considered in drafting the 
Constitution was the need to have centralized control over commerce and 
trade. Alexander Hamilton, in Federalist No. 11, wrote about his 
concern that diverse and conflicting State regulations would be an 
impediment to American merchants. But today, we have a similar threat: 
Our unrestrained and unpredictable civil justice system.
  Today, placing an article manufactured in Tennessee into the stream 
of commerce will be enough to subject a Tennessee merchant to suits in 
all 50 States. Aside from the obvious inconvenience, the laws of each 
of these States may, and in all likelihood will, be different from 
those laws in Tennessee--laws with which the merchant is familiar and 
which he may have used as a guideline in manufacturing and selling his 
product.
  If we are going to allow the merchant to be hauled into court in any 
of the 50 jurisdictions in which this product may eventually be 
purchased, should we not try to provide some predictability, some 
centralized manner over the methods by which the dispute will be 
resolved? Should we not bring some predictability and some common sense 
to the issue? I think we should, and I think the federalism argument, 
in this case, is, at best, a red herring.
  I fully anticipate that the President of the United States will 
oppose our legal reform efforts at every turn. But it will not be 
because he believes the effort is wrong or because he has suddenly 
found the 10th amendment. Instead, it will likely be because of his 
cozy relationship with the plaintiffs' trial bar. The American Trial 
Lawyers Association said in 1992 in a fundraising letter that President 
Clinton would, and I quote, ``never fail to do the right thing where we 
trial lawyers are concerned.'' And so far, they have been right, but it 
is time to change that.
  The real victims of our failing justice system are the would-be 
plaintiffs, the victims themselves. The legislation which has been 
passed in the House and which will soon be discussed in this body will 
not prevent a plaintiff with a meritorious claim from suing and 
recovering. In fact, it will improve his or her chances. The courts 
will be clogged with fewer spurious lawsuits, and cases that now lag 
for 2, 3, or 4 years will move more quickly. Plaintiffs' lawyers will 
no longer be able to disregard reasonable settlement proposals and let 
cases sit for years. They will be required to evaluate the case in a 
timely manner and act in a manner that is in the best interest of their 
client. They will be less likely to simply roll the dice, hoping for 
the big hit.
  The family which has suffered and which has medical expenses and lost 
wages and which really needs help is at the mercy of plaintiffs' 
lawyers who have plenty of cases and can afford to gamble. If they lose 
and they take nothing, they move on to the next case. But their clients 
have only 1 day in court.
  Mr. President, legal reform will not hurt anyone, except perhaps the 
plaintiffs' trial lawyers, but they have had their way for too long. 
Simply put, it is time that we stop letting the tail wag the dog.
  I look forward to these legal reform hearings, and I truly hope that 
we will enact meaningful reforms which will make our civil justice 
system more responsible, more accessible, more predictable and, most 
importantly, more equitable.
  Thank you, Mr. President. I yield the floor.
  

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