[Congressional Record Volume 141, Number 68 (Wednesday, April 26, 1995)]
[Senate]
[Pages S5683-S5685]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          COMMONSENSE PRODUCT LIABIL- ITY AND LEGAL REFORM ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of H.R. 956, which the clerk will report.
  The bill clerk read as follows:

       A bill (H.R. 956) to establish legal standards and 
     procedures for product liability litigation, and for other 
     purposes.
       Pending:
       (1) Gorton amendment No. 596, in the nature of a 
     substitute.
       (2) Abraham amendment No. 597 (to amendment No. 596) to 
     provide for equity in legal fees.
       (3) Hollings amendment No. 598 (to amendment No. 597) to 
     establish a limitation on attorneys' fees in all civil 
     actions to $50 per hour.
       (4) Gorton (for Brown) amendment No. 599 (to amendment No. 
     596) to restore to rule 11 of the Federal Rules of Civil 
     Procedure the restrictions on frivolous legal actions that 
     existed prior to 1994.

  The Senate resumed consideration of the bill.
  Mr. GORTON. Mr. President, is there a pending amendment?
  [[Page S5684]] The PRESIDING OFFICER. The pending amendment is 
amendment No. 599 offered by the Senator from Washington on behalf of 
the Senator from Colorado.
  Mr. GORTON. Mr. President, we are engaged in the debate over the 
public liability bill. The pending business is an amendment basically 
sponsored by the Senator from Colorado [Mr. Brown], having to do with 
rule 11 of the Federal Rules of Civil Procedure.
  There will be no votes until at least 6 o'clock this evening, at 
which time there will be votes both on an amendment by the Senator from 
Michigan [Mr. Abraham], and a second-degree amendment to that amendment 
sponsored by the Senator from South Carolina [Mr. Hollings].
  As a consequence, there are essentially three amendments to the basic 
product liability bill before the Senate at this point. It is 
appropriate to debate each one of them.
  In addition, I wish all Senators and their staffs who are listening 
to this debate to understand that while many Members of the Senate are 
in Mississippi for the funeral of our former colleague, Senator 
Stennis, it is appropriate at any time during the day to come and speak 
to any potential future amendment to this bill. We know that it is 
controversial. We know that there will be amendments to narrow the 
bill. We know that there will be amendments to broaden the bill. 
Anything that Members can do to discuss some of their proposals or 
their general attitudes on the bill itself during the course of the day 
will be appreciated.
  How long this evening the majority leader will wish to keep us in 
session I do not know. But I do know that we will vote on the Hollings 
second-degree amendment and the Abraham first-degree amendment at 
approximately 6 o'clock. I know that the majority leader hopes 
thereafter to deal with the Brown amendment by vote today.
  After that, under the order, the majority leader himself will present 
an amendment broadening the scope of the bill as it respects punitive 
damages. That will be a major amendment to the bill, and it is 
perfectly appropriate for people to express their views on that subject 
at any time during the day, even before the amendment itself is 
adopted.
  Simply to summarize, this is the first time that the Senate has 
actually dealt with amendments, engaged in a formal debate on the 
subject of product liability or, more broadly, tort reform. In spite of 
the fact that there have been product liability bills introduced and 
sometimes reported by the Commerce Committee, at least since 1982, and 
perhaps earlier than that, the bill, in my view and that of my 
colleague, the Senator from West Virginia [Mr. Rockefeller], is a 
balanced approach, balancing the interest of judgment and the 
prosecution of claims and product liability cases against the undoubted 
negative impact of product liability litigation on the creation of 
jobs, on American competitiveness, on the research and development of 
new products, of the marketing of valid products.
  The impact of product liability litigation on the marketplace has 
been distinctly negative. It has dramatically reduced the number of 
producers of many important medicines, of commodities like football 
helmets, for example--almost anything that is ever associated with 
dangerous kinds of activities. We hope not to restrict the access to 
the courts on the part of people who are injured by the genuine 
negligence of manufacturers but to see to it that there is a balance in 
that litigation, a balance which more greatly encourages economic 
development in this country and encourages fairness by not subjecting 
manufacturers or wholesalers or retailers to litigation over matters 
which are not their fault or which subjects them to charges beyond 
their fault in the case of any such accident.
  Mr. President, I spoke in general terms the day before yesterday, 
when this debate began, to the proposition that we now had precise 
information as to the impact of product liability legislation and did 
not have to deal with this question entirely in the abstract.
  In spite of my statement just a few moments ago, there has, in fact, 
been action by this Congress on one very narrow, focused field of 
product liability in one very narrowly focused area.
  For almost a decade, our colleague, the Senator from Kansas [Mrs. 
Kassebaum] has attempted to get relief for the manufacturers of small 
aircraft. Finally, last year, this Congress passed, with respect to 
small aircraft, one aspect of this product liability legislation: 
simply a statute of repose, an 18-year statute of repose, which 
frustrated lawsuits against the manufacturer with respect to aircraft 
more than 18 years in age.
  The fact of so much product liability litigation against those 
aircraft manufacturers had reduced the production of private aircraft 
in the United States by companies like Piper and Cessna by some 95 
percent over a period of about 20 or 30 years--95 percent, Mr. 
President.
  For all practical purposes, that business was defunct in the United 
States of America, not only, of course, harming the companies, their 
employees, and their past employees, but limiting the availability of 
such aircraft to those who wished to purchase them and to fly them.
  The mere passage into law 1 year ago of a statute of repose for that 
type of aircraft has already had a remarkably positive impact.
  Quoting from testimony by the president of the General Aviation 
Manufacturers Association on this bill, the bill that is before us 
right now:

       After stopping the production of piston engine aircraft in 
     1986 because of spiraling liability costs, Cessna Aircraft 
     recently announced construction of a new production facility 
     for piston-powered airplanes in Independence, Kansas. Cessna 
     plans to build 2,000 planes per year at the new facility and 
     create over 1,500 new jobs. This will generate thousands of 
     additional jobs among suppliers and vendors in Kansas and 
     throughout the United States.
       Piper Aircraft, which was forced into bankruptcy in 1991 
     largely due to the costs of product liability suits and the 
     threat of future litigation, is now planning to emerge from 
     bankruptcy in the near future. Piper has increased both its 
     employment and production schedules by thirty percent.

  There is further testimony on Mooney Aircraft in Kerrville, TX.
  But, Mr. President, if a modest statute of repose of that nature in 
one industry, albeit one graphically impacted by product liability 
litigation, can have such an immense recovery, benefiting, obviously, 
not only itself, its employees, and its suppliers, but obviously the 
people, the market out there for these aircraft, how much greater 
impact--100 times greater, or 1,000 times greater, we do not know--can 
general, fair, and balanced product liability legislation have in the 
United States of America, legislation that includes a statute of repose 
slightly longer, a statute of repose of 20 years, but one which also 
limits the arbitrary nature of punitive damage awards, one of the 
greatest fears of all manufacturers, but particularly small 
manufacturers, in the United States.
  One such manufacturer who testified before the Commerce Committee 
shrugged his shoulders and said: ``A single such lawsuit could drive me 
out of business and destroy the work of an entire lifetime, whether I 
really had a major responsibility or not.'' Not only because of the 
unlimited nature of potential punitive damage awards but because of the 
doctrine of joint liability under which, when there is more than one 
defendant, one, the deep pocket, can have imposed on it the entire 
judgment, even though the responsibility of that defendant was, say, 
only on the order of some 10 percent.
  So reforms in joint liability, reforms in punitive damages, reforms 
by reason of a statute of repose, the removal of responsibility from a 
wholesaler for judgments against the manufacturer, each of these is an 
important step forward, which not only does not undercut justice but 
advances the cause of justice. At the same time, reforms can have an 
impact, perhaps not as dramatic as these to which I have spoken in 
private business driven aircraft, but across our entire economy vitally 
important and positive.
  This, Mr. President, is an important bill. The general subject of 
legal reform beyond this is important, as well. Just yesterday 
afternoon, the Senate Labor Committee reported a bill similar to this 
on the subject of medical malpractice, a vitally important element in 
any health care reform, in the view of this Senator.
  So I hope that, certainly by sometime next week, we will be able to 
[[Page S5685]] bring this bill in its then form to some final vote. 
But, in order to do so, we need the cooperation of Members. We need 
them to appear. We need them to speak to their amendments or speak to 
the bill, to let their views be known, to carry on the debate in the 
better traditions of the Senate.
  So, Mr. President, I summarize by saying we are open and ready for 
business and any Member who wishes to do business will be welcome 
through the door.
  With that, Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KOHL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KOHL. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized.

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