[Congressional Record Volume 141, Number 76 (Tuesday, May 9, 1995)]
[Senate]
[Pages S6318-S6322]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


    COMMONSENSE PRODUCT LIABIL- ITY AND LEGAL REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. What is the pending business and what is the status of 
the pending business?
  The PRESIDING OFFICER. The pending unfinished business is H.R. 956, 
and the pending question is amendment No. 709. The Senate is operating 
under cloture.
  Mr. GORTON. Is that the Gorton-Rockefeller-Dole amendment to the 
Coverdell-Dole amendment?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GORTON. Mr. President, since we are now under cloture and without 
the presence of my colleague, Senator Rockefeller, I should like, very 
tentatively, to announce what I hope the course of action will be this 
afternoon.
  I will, unless there is objection, within a reasonable period of 
time, ask unanimous consent for a minor but significant amendment to 
the Gorton-Rockefeller-Dole amendment, a proposition that does require 
unanimous consent to keep the undertaking that Senator Rockefeller made 
with respect to the right of a new trial after a judge imposed additur.
  After that, I would propose that we go forward by adopting the 
Gorton-Dole-Rockefeller amendment and the underlying amendment and then 
having a debate on any further amendments to the bill, some of which 
will require unanimous consent in order to bring them up, as I 
understand from the Parliamentarian, because of the position in which 
we find ourselves.
  Senator Rockefeller and I have agreed that amendments from the other 
side, during the pendency of cloture, that Members opposed to this bill 
want to bring up ought to be allowed to be brought up, and certainly we 
will grant unanimous consent for that taking place.
  Each of these will require cooperation and essentially unanimous 
consent. Senator Rockefeller is not back yet. One of the opponents to 
the bill is here. I am going to suggest the absence of a quorum so that 
Members can digest this request, so that the leaders can get together 
if they wish, and so we can proceed for the rest of the day. I hope 
that we will end up being able to finish the entire bill and having our 
final vote on final passage before the day is out, as the leader would 
like to go on to other bills.
  Mr. HEFLIN. If the Senator will withhold the quorum call, regarding 
what the Senator has said about asking unanimous consent, I think 
Senator Hollings should be on the floor to respond to that. I think he 
has some feelings on it. However, I do realize this: It is my 
information that unless that happens, then unanimous consent is going 
to be necessary for each and every amendment to occur. Now, I have been 
talking with various people on our side who are very knowledgeable on 
parliamentary proceedings. I think it is something we will want to look 
at. If we enter into a quorum call, we ought to investigate and see 
exactly what the parliamentary status is and what Senator Hollings' 
feelings are on that. He articulated to me earlier rather strong 
feelings against it. But he may have reconsidered it since that time.
  Mr. GORTON. I think the Senator from Alabama is correct about the 
parliamentary situation. Certainly, given Senator Hollings' views on 
the subject, I want his full knowledge and participation before we go 
ahead. My announcement was just in hopes that we can get interested 
people here to make those decisions. Awaiting our ability to do so, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WELLSTONE. 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. WELLSTONE. Mr. President, am I correct that we are now on the 
product liability bill?
  The PRESIDING OFFICER. The Senate is now on that matter, H.R. 956, 
the product liability bill under cloture.
  Mr. WELLSTONE. I thank the Chair.
  Mr. President, I want to speak about this legislation that is before 
the body, and I would like to talk about what I think is at stake in 
the vote that we just cast and what would be at stake in some votes 
that we will also be casting over the next day or day and a half.
  As I see it, we started out with a bill that was unfair, which I 
think tipped the scale of justice away from consumer protection and in 
favor of corporate wrongdoers. Then as we went along, there was an 
overreaching by some of the insurance companies and other big corporate 
defendants, and yet more amendments were attached onto this bill making 
it truly awful. Then as a result of several cloture votes--when it was 
clear that this piece of legislation with all of the additional awful 
amendments could not pass--it was stripped down to now being just 
profoundly wrong for people in this country, which is not what I would 
call much of an improvement.
  Mr. President, I am not a lawyer. But as I understand the features of 
this bill there is a tremendous amount of unfairness. I quite frankly 
cannot figure out why this body went ahead and invoked cloture. First 
of all, there is still a cap on punitive damages, as I understand it, 
of $250,000 or twice compensatory damages. Compensatory means both the 
economic and the noneconomic damages. So that, for example, if you were 
not an executive of a large company but a wage earner, if you did not 
make as much money, if you were a woman--women generally speaking make 
less than men in the work force--or if you were a senior citizen, and 
you were hurt by exactly the same behavior and received exactly the 
same harm from exactly the same defendant as some CEO, there would be 
differences in terms of what the award would be. The punishment would 
be greater for hurting the CEO.
  This is still an absurd result and still an indefensible one. When I 
spoke last week I asked my colleagues to consider the faces of people 
who will be hurt by this provision. LeeAnn Gryc from my State of 
Minnesota was 4 years old when the pajama she was wearing ignited 
leaving her with second- and third-degree burns over 20 percent of her 
body. An official with the company that made the pajamas had written a 
memo 14 years earlier stating that because the material they used was 
so flammable the company was ``sitting on a powder keg''. This latest 
proposal, the Gorton-Rockefeller substitute, would cap the punishment 
the defendant receives. How would this affect LeeAnn? It is not clear. 
All of that would depend upon what kind of compensatory damages the 
jury awards. Are we really willing to sit here in Washington, DC, and 
change that and preempt Minnesota law and make that kind of 
determination?
  Mr. President, this proposed improvement has new language which would 
allow a judge to award higher punitive damages than the caps would 
otherwise provide if the judge thinks it is necessary to serve the twin 
purposes of punishment and deterrence. Again, first of all, what we do 
is set this cap and it is either $250,000 or twice a combination of 
economic and noneconomic damages which is discriminatory, by the way, 
toward low income, moderate income, middle income in terms of how that 
formula works out. Then we go on.
  When you think about the case of LeeAnn Gryc, or the case of a whole 
lot of other people who are hurt in this country, who is prepared to 
say that the cap ought to be $250,000 or a little above? Who is 
prepared to say that a defendant should be punished less because he or 
she hurt a wage earner as opposed to a CEO of some of the largest 
companies in this country? I do not see the Minnesota standard of 
fairness.
  The new language then, in what is apparently supposed to be an 
improvement, allows the judge to award more punitive damages than the 
caps would otherwise provide, if the judge thinks that it is necessary 
to serve the twin purposes of punishment and deterrence. But what 
happened to the jury? People on juries elect us to office. We have all 
 [[Page S6319]]  the confidence in the world in the people who sit on 
juries to elect us to office. But all of a sudden we do not trust them 
to sit in judgment of their peers. They sit in judgment of us, do they 
not? Are not they usually the finders of fact? I would think that it 
would be difficult to find some standard of fairness where we 
essentially remove juries from this important process.
  Then I was surprised to find in what is apparently supposed to be an 
improvement a provision saying that if we are worried about the backlog 
of cases and paperwork reduction and all of the rest, we tell judges 
that it is OK to go above the caps whenever they think it is necessary, 
but we can also count on an additional court proceeding. On the bottom 
of page 22 in the Gorton-Rockefeller substitute, it says that if a 
defendant does not like the judge's decision to go above the caps, 
``the court shall set aside the punitive damages award and order a new 
trial on the issue of punitive damages only.''.
  So what we get back to is essentially a meaningless provision where 
we go to yet another trial if the defendant does not like the decision 
the judge has made. My colleague, Senator Levin from Michigan, I 
thought came out here with a lucid presentation of this problem.
  Joint liability I think is the thorniest issue. Actually in the Labor 
Committee, when we were talking about this question, I may or may not 
have said thinking out loud that I struggled with this question. But I 
do not think the substitute does anything to correct the problem. It 
eliminates joint liability for noneconomic damages. Some of my 
colleagues have referred to this as the ``deep pocket pays problem.'' 
But I think they are wrong. This is really a ``victim pays problem.''
  I will tell you that it is really a difficult question. Suppose a 
company is responsible for only a portion of what it would take to 
restore a victim to whole, compensatory damage. Yet with joint 
liability that company might have to be responsible for more than its 
fair share. That does not make a lot of sense. It does not seem as if 
it is fair.
  But, Mr. President, now what we have is a provision which essentially 
says to the consumer, to the citizen that is hurt, to the citizen that 
is injured, maimed, that they will always have to assume some of those 
damages, if one of the responsible parties cannot pay. I do not see the 
standard of fairness. In my State of Minnesota we came up with what I 
think is a reasonable compromise; that is, we set a threshold. I think 
it was 15 percent. What we said was that, if you are responsible for 
less than 15 percent of the overall damage, then you would not have to 
be responsible for more than your fair share.
  But, Mr. President, it does not make any difference what Minnesota 
has done. We have struggled with the problem. We have come up with a 
middle ground. But that all is preempted by this piece of legislation.
  Mr. President, it just sounds like a clever political argument. But 
it really is not. So many people have talked about decentralization. So 
many people have talked about relying more on States and local 
governments being the decisionmakers. But in this particular case, we 
are preempting some of the good work that has been done in a good many 
States in this country, and I would put Minnesota at the very top.
  Mr. President, there are huge problems with this piece of 
legislation. It is a giveaway to corporate wrongdoers. I think it is a 
profound mistake. We did not really have that much debate on the whole 
question of the 20-year statute of repose. But, again, let me just 
simply say, that regardless of how you look at it, I think again this 
is arbitrary and indefensible. What possible justification is there for 
it? After all, if a product is defective and does not hurt anybody 
until it is over 20 years old, is the harm to the victim any less? Is 
the responsibility of the manufacturer any less?
  I talked about Patty Fritz from Minnesota. She is pretty well known 
in our State, and she is pretty well known in our country for her 
courage. In her particular case, her daughter, Katie, was crushed to 
death by a defective garage door opener.
  If it had been after 20 years, if the company had produced this 
product which was defective from the word go but she had only been hurt 
after 20 years, does that mean the damage to that family is any less? 
Does that mean the responsibility of the company is any less?
  Mr. President, we are closing the courthouse door to people who are 
hurt by products produced by some of the businesses--thank God, not 
many of the businesses--within our country. Some of my colleagues came 
out on the floor of the Senate with a bill last week. Then there were 
amendments, which, as I said before, made it a truly egregious piece of 
legislation. We were successful in opposing a good number of cloture 
motions. Now the bill has been stripped away of some of the worst 
provisions, but it is still a piece of legislation which is profoundly 
anti-consumer, profoundly antiordinary citizen, and I think it tips the 
scales of justice way too far in the direction of corporate wrongdoers 
and really denies people some of the redress for grievances that they 
currently have within our court system.
  Finally, I think there is a gigantic problem with this Federal 
preemption. If a State like the State of Minnesota has come up with 
some reasonable middle-ground proposals to deal with the problems of 
excessive litigation, to deal with some of the problems of joint 
liability, to try to have some fairness between the businesses and the 
consumers and the lawyers, it seems to me States ought to be able to 
hold on to some of the legislation they passed and not be preempted by 
this national legislation.
  So, Mr. President, I hope we will have further debate on this piece 
of legislation, and I hope my colleagues will oppose it.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. STEVENS. 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. STEVENS. Mr. President, I would like to thank my southern 
neighbor, Senator Gorton from Washington, for agreeing to clarify a few 
points about S. 565, the Product Liability Fairness Act. I also want to 
thank Senator Gorton's staff for their willingness to work out some of 
the finer points of this legislation.
  Section 102(c) of S. 565 lists a number of laws that are not 
superseded or affected by the act. My first question seeks to clarify 
the language in section 102(c)(2). Section 102(c)(2) provides: 
``Nothing in this title may be construed to * * * (2) supersede or 
alter any Federal law;''
  The committee report at page 28, footnote 101, gives examples of 
Federal statutes that are not superseded by S. 565. The examples in the 
committee report include the Federal Tort Claims Act, the Oil Pollution 
Act of 1990, and the Trans Alaska Pipeline Authorization Act.
  My question to my friend is whether the language ``any Federal law'' 
in section 102(c) also includes Federal common law. I assume that it 
does and, therefore, that S. 565 does not supersede any Federal 
statutory or common law, such as admiralty law. Would my friend clarify 
this point for me, please?
  Mr GORTON. The assumption of the Senator from Alaska is correct. 
Section 102(c)(2) provides that S. 565 does not supersede ``any Federal 
law,'' and that includes both Federal statutory law and Federal common 
law. The act, therefore, would not affect any causes of action or any 
remedies, including punitive damages, determined under Federal 
statutory or common law, including admiralty law.
  Mr. STEVENS. I thank the Senator from Washington for that 
confirmation. My second question seeks to clarify the so-called 
environmental exclusion--section 102(c)(7)--which I support. Could you 
elaborate on the statutory exclusion and the statement in the committee 
report that provides: ``The exception for environmental cases in this 
section makes clear that this act does not apply to actions for damage 
to the environment.''?
  Mr. GORTON. I would be happy to elaborate on this section for the 
Senator from Alaska. Section 102(c)(7) reads:

        [[Page S6320]] Nothing in this title may be construed to * 
     * * (7) supersede or modify any statutory or common law, 
     including any law providing for an action to abate a 
     nuisance, that authorizes a state or person to institute an 
     action for civil damages or civil penalties, cleanup costs, 
     injunctions, restitution, cost recovery, punitive damages, or 
     any other form of relief for remediation of the environment * 
     * * or the threat of such remediation.

  As the Senator notes, the committee report explains that the 
exception for environmental cases is intended to exclude from S. 565 
all causes of action and remedies that are available under Federal or 
State statutory or common law for damage to the environment. Therefore, 
this act would not place a cap on any punitive damage award or other 
remedy under any cause of action related to damage to the environment, 
including an action under a product liability theory.
  Mr. STEVENS. Mr. President, I would like to focus on this point for a 
moment, if I may. Section 102(c)(7) excludes from coverage under the 
bill any actions for ``remediation of the environment.'' The section 
refers to the Comprehensive Environmental Response, Compensation and 
Liability Act of 1980 for the definition of ``environment,'' which 
includes the navigable waters, the waters of the contiguous zone, the 
ocean waters of the United States, and any other surface water, ground 
water, drinking water supply, land surface or subsurface strata, or 
ambient air within the United States. The section does not define 
``relief for remediation,'' which is not a legal term of art.
  It is not clear whether ``relief for remediation of the environment'' 
includes all other remedies to make injured parties whole, such as 
relief for damage to private property and lost revenues, or whether the 
exclusion is limited strictly to damage to the environment. I note that 
the committee report states with respect to section 102(c)(7) that the 
bill ``does apply to all product liability actions for harm'' which is 
defined as ``any physical injury, illness, disease, death, or damage to 
property caused by a product.'' I ask the Senator if he could please 
explain how this exclusion is intended to be applied in the case of an 
oilspill that causes damage to the environment and damage to private 
property?
  Mr. GORTON. The exclusion in section 102(c)(7) would apply to all 
causes of action and remedies for damage to the environment. As the 
Senator from Alaska has correctly noted, the bill would apply to 
actions under State law for injury to persons or property that are 
caused by a product. As mentioned earlier, this bill would not apply to 
any Federal statutory or common law cause of action.
  To expand on the Senator's question, in the case of an oilspill 
caused by the failure of a storage tank in which the plaintiffs seek to 
recover for both damage to the environment and loss of property, the 
rules in the bill would establish the standard of proof and the limit 
of punitive damages with respect to recovery on the basis of damage to 
property under any applicable State law.
  The bill would not apply to any aspect of the recovery for 
environmental damages, including any recovery for cleanup costs, 
remedial measures, damages or penalties for loss of wildlife, or 
punitive damages that are assessed for damage to the environment, 
whether under State or Federal law and even if the cause of action is 
based on a product liability theory. As is noted on page 22 of the 
committee report in the discussion of the definition of ``harm'' ``it 
is the nature of the loss that triggers the application of the act'' 
with respect to State law, not the cause of action used.
  Mr. STEVENS. I thank the Senator for that explanation. My final 
question is whether the owner or operator of a product, such as a tank 
which contains oil, who is sued following an environmental accident may 
sue the manufacturer of the ship or tank under a product liability 
cause of action without limitation by this bill if it was product 
failure that caused the damage to the environment? My concern is that 
the equipment operator will be unable to recover fully from the 
manufacturer. Ultimately, the original plaintiff may only be able to 
recover to the extent that the operator is able to recover.
  Mr. GORTON. I appreciate the Senator's request for absolute clarity. 
Further reference to the example of the ruptured oil tank may best 
illustrate the answer to your question. Suppose the oil tank ruptures 
as a result of a manufacturing defect. It leaks oil, causing damage to 
the environment and the neighboring private property, as well as damage 
to the tank owner and the tank.
  The statutory construction of the environmental exemption is clear. 
This bill will not alter any law under which any injured party could 
recover for damage to the environment.
  To the extent that the owner or manufacturer of the tank is liable 
for civil damages or civil penalties, cleanup costs, restitution, cost 
recovery, punitive damages or any other form of relief ordered to 
restore, correct, or compensate for damage to the environment, the 
rules in this bill would not apply. The bill would apply to an action 
by the private property owner to recover under State law for damage to 
that property based on the failure of the tank or on the basis that the 
oil, which is also a product, caused the harm.
  Similarly, under section 102(c)(7) this bill would not apply to third 
party actions related to environmental damages. For example, the tank 
owner could implead or cross-claim against the manufacturer of the tank 
for damages awarded against the tank owner for remediation of the 
environment under any theory, including product liability. S. 565 would 
not apply as a limitation on the causes of action or remedies available 
to the tank owner in an action against the manufacturer, but only to 
the extent that the tank owner is seeking to recover against the 
manufacturer for damages awarded against the tank owner for remediation 
of the environment. Applicable Federal or State law, other than this 
bill, would continue to govern the action with respect to environmental 
damage.
  However, this bill would apply with respect to any action under a 
product liability theory by the tank owner against the manufacturer for 
harm, as defined by this bill, caused by the product. In the case of a 
tank owner which has been held liable under a strict liability regime 
such as that found in section 1002 of the Oil Pollution Act of 1990, 
any damages assessed against the tank owner, including damages for 
injury to real or personal property caused by the product, should be 
considered economic damages to the tank owner for purposes of this 
bill, and an action to recover those economic damages from the 
manufacturer under a product liability theory would be without 
limitation under this bill.
  Mr. STEVENS. Mr. President, I thank my good friend from Washington 
for taking the time to clarify the scope of these two provisions. I 
want to thank, again, him and his staff for assisting me and Annie 
McInervey and Earl Comstock of my staff to clarify these issues which 
are of vital importance to my State.
  Mr. GORTON. Mr. President, I do believe there is one other 
clarification that needs to be made. The questions that have been 
propounded by the Senator from Alaska refer to S. 565. Technically 
speaking, S. 565 is not before us. We are dealing with a House bill and 
a Senate amendment which incorporated all of the provisions of S. 565 
in it. And so the questions and answers are applicable equally to that 
amendment as they would be if the identical S. 565 were before the 
Senate.
  Mr. STEVENS. Will this still be called the Product Liability Fairness 
Act?
  Mr. GORTON. It will be.
  Mr. STEVENS. Then our comments should be addressed, for legislative 
history, to that act. I thank the Senator from Washington for 
clarifying that.
  Mr. COATS. Mr. President, this has truly been a year of reform. Since 
the outset of this Congress, the pervasive theme has been to 
fundamentally change a system of government that has gone awry. Thus 
far, most of these efforts at reform have been targeted at the 
Congress, and rightfully so. As some have said, we must first stop the 
bleeding. However, there are many very formidable tasks before us. One 
of which we discuss today.
  Mr. President, I rise today to dedicate my support to the effort to 
reform the product liability system.
  Justice in America is fundamentally rooted in the principles of the 
equality, 
 [[Page S6321]]  expedience, and accessibility. Our current system of 
product liability is in conflict with all of these principles.
  Where product liability cases are concerned, we certainly, cannot say 
that there is equality in the system. There is a total lack of 
uniformity in the current product liability system. Due to the broad 
diversity of legal standards from jurisdiction to jurisdiction, it is 
absolutely impossible to predict what, when and how you will be 
compensated for losses resulting from a faulty product. Where 
businesses are concerned, this unpredictability leads to 
disproportionately high risk calculations and insurance rates as 
companies are forced to calculate the worst-case-scenario in assessing 
liability risk.
  These risk costs have, not only an adverse effect on those directly 
involved in any particular case, but on all Americans. 
Disproportionately high insurance costs have several negative effects 
on American business. In each case, that negative impact effect all of 
us.
  Confronted with impossible-to-calculate liability costs, American 
businesses often choose not to introduce new technologies and 
innovations into the marketplace. Thus denying consumers the benefits 
of enhanced products and services.
  Nowhere is this more evident than the biomedical industry. In my 
State of Indiana, there is a large biomedical industry. Among other 
things, these companies make artificial limbs. This is an industry that 
provides hope and freedom to so many people who may otherwise find 
their lives limited by disability. However, due to disproportionate 
liability costs, the manufacturers of the raw materials utilized in the 
construction of these prosthetic device are increasingly choosing to 
forego the market. The sales to the biomedical industry represent such 
a small percentage of total profits that liability costs outweigh 
benefits.
  Furthermore, American businesses are confronted with insurance costs 
20 times greater than their European competitors and 15 times greater 
than those of Japanese industries. In addition to making American 
products more expensive at home, this adversely effects competitiveness 
in a global marketplace. That means damage to job creation.
  An excellent example of this is a case in Coatesville, IN. A small 
community of around 600 people, Coatesville is the home of the Magic 
Circle Corp.--a company employing around 30 people from Coatesville and 
Filmore, a small town next door.
  Magic Circle is a small business that produces riding lawn mowers. 
The engine of these mowers is manufactured to automatically shut off 
when a person gets up from the mower seat. Unfortunately, in a cemetery 
in a nearby State, someone decided to tape down the seat so that the 
mower continued to run when that person left it unattended on a 
hillside. The mower rolled forward and injured their foot.
  That person, the one who taped down the seat and left the mower
   unattended on the side of a hill, sued Magic Circle for $7 million. 
There was no alteration or misuse defense in the State in which the 
incident occurred. The amount of damages requested exceeded the total 
of all Magic Circle profits and assets. In the end, they were forced to 
pay $10,000 in attorney fees and its insurance company paid out $35,000 
to the claimant.

  There is an interesting footnote to this case. Officials of a foreign 
government later contacted the owners of Magic Circle to see if they 
would be interested in relocating in that country. One of the selling 
points of their presentation was the country's product liability laws.
  There are those who argue that the threat of large punitive damages 
is what makes America's products safe. This argument is fundamentally 
flawed. What makes American products the best in the world is not a 
lottery-style product liability legal system. The American consumer 
operating in a free market, who demands quality and excellence, is what 
makes American manufactured products the most high-quality products in 
the world today. However, the impact of our current product liability 
system is beginning to take its toll. If we do not take action now, we 
will be in danger of losing our competitive edge.
  Even the most adamant defenders of our current system certainly 
cannot say that it is expedient. A GAO report shows that product 
liability cases take an average of 2\1/2\ years to move from filing to 
verdict. One case cited took nearly 10 years to move through the 
judicial process.
  The cynical result of these delays is that both parties are 
ultimately forced to negotiate compromises because they are overwhelmed 
with legal costs. These compromises often have little to do with guilt 
or innocence and much to do with predatory lawyers and a bizarre 
patchwork of legal standards and procedures.
  Mr. President, I am an attorney. Many of my distinguished colleagues 
are attorneys. I am not here to attack lawyers. However, in the legal 
industry, as in any industry, there are those who lack scruples. There 
are those who will pursue personal financial interests above ethical 
considerations. In civil liability cases, lawyer's fees account for 61 
percent of funds expended on product liability claims. These expenses 
include both defendant and plaintiff costs. The net effect of this 
incredible statistic is that realistic accessibility to the legal 
system and legal defense is a mere myth in most situations.
  Mr. President, clearly there is a need for fundamental reform to the 
product liability legal system. We have debated this issue since I came 
to Washington.
  Fundamental product liability reform offers the hope of removing one 
of America's most destructive obstacles to job growth. When frivolous 
suits are traded, when weak cases are brought, when litigation 
explodes, our economy is crippled. New technology never comes to 
market. Medical costs increase. The doors to factories close. Insurance 
costs increase. American products are unable to compete around the 
world. Perhaps most sorrily, a legal system that was once the envy of 
the world, has been twisted and distorted to a point where the very 
principles on which it was originally constructed cannot even be 
recognized. We must turn this tide.
  A Rand Corp. study found that most of the money awarded in injury 
cases is taken by the legal process itself. Less than half actually 
gets through to victims. According to a GAO study, 50 percent or more 
of payments made by defendants in a product liability trial goes to 
lawyers. Victims get less than 50 percent. This same report discovered 
that when a case is appealed, defense costs can actually double.
  Estimates vary, but one professor at the University of Virginia has 
estimated that when all the costs are finally counted, a mere 15 
percent of injury litigation awards go to a victim.
  Innocent victims must find relief and the help they deserve--and this 
bill preserves that obligation. But a runaway legal system must not be 
allowed to make victims of us all.
  The current state of product liability law does not work for victims, 
it does not work for manufacturers, for consumers, for America.
  Like so many of the reforms that we have already passed and stand to 
take action on, product liability reform is long overdue and at a 
critical stage. For the sake of our workers, for our economy, and for 
the victims trapped in a legal morass, I urge my colleagues to support 
this legislation.
  Mr. STEVENS. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Santorum). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GORTON. 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. GORTON. Mr. President, by consent of all parties, I ask for 
action on the Gorton-Rockefeller-Dole amendment.


                 Vote on Amendment No. 709, As Modified

  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to the amendment No. 709, as modified.
  The amendment (No. 709), as modified, was agreed to.
  Mr. GORTON. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. KYL. I move to lay that motion on the table.
   [[Page S6322]] The motion to lay on the table was agreed to.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. DOLE. Mr. President, I ask unanimous consent to proceed as in 
morning business for the next 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOLE. I thank the Chair.
  (The remarks of Mr. Dole pertaining to the introduction of S. 770 are 
located in today's Record under ``Statements on Introduced Bills and 
Joint Resolutions.'')
  Mr. DOLE. 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. GORTON. 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. GORTON. Mr. President, I ask unanimous consent that it be in 
order for me to offer the amendment I have in my hand which the 
Democrats have also seen and it be in order notwithstanding the 
provisions of rule XXII. This is the so-called additur fix amendment 
requested by the White House.
  The PRESIDING OFFICER. Is there objection?
  Mr. HARKIN. Mr. President, on behalf of Senator Hollings, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. GORTON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HEFLIN. 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. HEFLIN. Mr. President, during the course of debate in discussing 
the breadth of the products liability bill, I mentioned that a nuclear 
power plant or a component part thereof could be included within the 
purview of the products liability bill. I also stated that maybe the 
bill might not cover a nuclear power plant or a component part thereof.
  I, in effect, raise two issues: One being the issue of pain and 
suffering, and the other being the statute of repose. In regard to 
these issues, I mention the Chernobyl melt-down.
  Since that time, my office has been contacted by reliable and 
informed individuals who feel that I misspoke on this issue.
  First, they say the difference between design and operation of the 
United States and Soviet plants make a Chernobyl-style accident 
virtually impossible.
  Second, they state that the bill would not in any way prohibit 
compensation for injured parties in the event of a nuclear accident 
regardless of the time of the manufacture of the plant or components. 
They particularly point out that Congress has provided a sure and 
certain recovery system for any member of the public injured as a 
result of a nuclear power plant accident--the Price-Anderson Act--and, 
further, that Congress in 1988 increased the amount of funds available 
for claims to more than $6.8 billion and pledged to review the 
situation in the case of an accident where more funds were needed to 
compensate the injured. The nuclear power industry, I am told, has 
willingly agreed to be assessed up to $63 million against each licensed 
reactor in order to pay damage claims. The nuclear power industry has 
met this obligation to provide a clear and reliable source of liability 
compensation when it is justified.
  While I have not researched this issue completely, I do find that 
following the case of Klick v. Metropolitan Edison Co. (1986, CA3 Pa) 
784 F2d 490, which limited certain damages to an ``extraordinary 
nuclear occurrence,'' Congress did amend the Price-Anderson Act to 
include a ``nuclear incident.''
  In the exclusion clause of the products liability bill there is a 
statement to the effect that the bill does not supersede any Federal 
law.
  I have great confidence in the knowledge and reliability of the 
individuals who have brought this to my attention, and I would like to 
put the record straight. I will continue to research this matter; and 
if there is anything different from what I have been told, I will make 
it known to the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeWine). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURNS. 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. BURNS. Mr. President, I ask unanimous consent that I may be 
allowed to proceed as in morning business for the next 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Burns pertaining to the introduction of S. 768 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. BURNS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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