[Congressional Record Volume 141, Number 77 (Wednesday, May 10, 1995)]
[Senate]
[Pages S6370-S6414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHANGE OF VOTE
Mr. PACKWOOD. Mr. President, on rollcall vote 159 I voted ``no.'' It
was my intention to vote ``yea.'' I ask unanimous consent I be
permitted to change my vote. This will in no way change the outcome of
the vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Amendment No. 629 to Amendment No. 690, as amended
(Purpose: To eliminate caps on punitive damage awards)
Mr. DORGAN. Mr. President, I would like to offer amendment No. 629.
The amendment is at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 629 to amendment No. 690, as amended:
The amendment is as follows:
Insert at the appropriate place: ``Notwithstanding any
other provision of this Act, nothing in this Act shall impose
limitations on punitive damage awards.''
Mr. DORGAN. Mr. President, the amendment which I have offered is not
identical but nearly identical to the amendment I offered prior to
cloture. The amendment deals with the punitive damage cap. The
amendment I offered previously I offered to the Dole substitute. I now
offer this amendment to the underlying bill.
Very simply, my amendment would remove the cap on punitive damages
that exists in the bill. The amendment that I offered previously was
defeated by a vote of 51 to 49. I would like for the Senate to express
itself on that issue in light of the activities on this legislation
since the Senate voted on it. While I think there is merit in a product
liability reform bill and while I think there is merit on both sides of
this issue, I believe the legislation should be like the legislation on
product liability we considered last year. That legislation came to the
floor of the Senate and was voted on with respect to the last cloture
vote without any cap on punitive damages.
Last year, the bill that originated in the Commerce Committee and
brought to the floor, did not include a cap on punitive damages. This
year, the legislation, as it emerged in the Commerce Committee by the
same authors, included a cap on punitive damages. I believe they were
right last year and wrong this year on that particular section of the
bill.
I believe some reform necessary in this area, but I believe their
best impulses and best instincts last year served them better than this
year when they decided to impose an arbitrary cap on punitive damages.
After all, the legislation requires you to provide clear and
convincing evidence as a burden of proof that the harm caused was
carried out with a--let me quote this--``conscious and flagrant
indifference to the safety of others.'' If a plaintiff has gone through
trial and provided clear and convincing evidence that harm was caused
or carried out with a conscious and flagrant indifference to the safety
of others, then I do not understand why someone would suggest we ought
to have a cap on punitive damages.
[[Page S6371]] The legislation that is before us contains a cap on
punitive damages in several different steps. It is, as I understand it,
two times compensatory damages to a maximum of $250,000, a distinction
from that particular cap for small businesses, certain designated small
businesses in the bill, and, third, a provision that a judge could
increase the punitive damage award upon a petition by the plaintiff.
That is my understanding of what is in the legislation that is before
the Senate. My amendment says, notwithstanding any other provision of
this act, nothing in this act shall impose limitations on punitive
damage awards.
Again and finally, let me say that this is the same position Senator
Rockefeller and Senator Gorton had last year, no cap on punitive
damages. And I think it is appropriate. The reason I think it is
appropriate is we have changed the bar that you must get over in order
to prove punitive damages. It requires clear and convincing evidence
that the harm caused was carried out with conscious and flagrant
indifference to the safety of others.
I just do not understand how, if you meet that burden of proof and
demonstrate conscious and flagrant indifference to the safety of
others, you can say to a corporation worth several billions of dollars,
it would cost less to pay awards than it would to fix the problems. A
punitive damages cap is appropriate. I really believe the Senate would
improve this legislation by adopting the very position the two managers
of the bill had last year. Their first and best instinct was not to
have a punitive damages cap then. I believe that is the position the
Senate ought to adopt now.
Mr. President, with that, I would hope, when we have another vote on
this, the Senate will decide to eliminate the punitive damages cap.
With that, I yield the floor.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, unlike the situation at the time at which
the Senator from North Dakota presented this amendment a week or so
ago, we now have a bill in the Chamber in which there is no cap on
punitive damages. I say that not in triumph but in regret. I believe
that one of the great vices at which legislation of this sort properly
should be aimed is at creating some kind of relationship between the
actual damages caused by a tort, caused by a wrong, and the damages
that can be recovered as a result. But with the latest set of
amendments here, we have permitted a judge on certain findings of
egregious conduct to go beyond what juries are permitted successfully
to impose in the way of punitive damages.
The entire matter, Mr. President, is at one level an argument on
philosophy but at another level it is a debate about the Constitution
of the United States. The Supreme Court in several recent cases, while
not setting a specific ceiling or cap on punitive damages itself, has
spoken of serious constitutional questions caused by unlimited punitive
damages, or by punitive damages that are not related in any rational
fashion to actual damages found by a jury or determined by a court.
In other words, the Supreme Court of the United States has invited
the Congress to do exactly what I had hoped we would do more
successfully than we have accomplished in this bill.
But just to go over it again, we have said that the maximum punitive
damages that can effectively be awarded by a jury are in an amount
twice the total of all economic damages and all noneconomic damages
that go for pain and suffering. And since those damages, in very
serious cases of people being maimed for life, can well go into eight
figures, and sometimes do, we have a very large potential remaining for
punitive damages. But in addition to that provision, in the so-called
Snowe amendment is a $250,000 figure when twice the total of economic
and noneconomic damages would be less than $250,000, together with the
right of a judge to go beyond even the Snowe formula where the judge
feels that formula to be too limited not to permit proper punitive
damages for particularly egregious conduct.
So the Senator from North Dakota, in a number of respects, has
already succeeded. There is no number. There is no specific formula
which limits punitive damages.
As I have said frequently, I think there should be. Working with the
laws of my own State and a handful of other States where punitive
damages are not allowed at all, where the cap is zero in most cases, we
find no difference in the safety or carefulness of business enterprises
in those States. No case has been proven for the efficacy of punitive
damages as a deterrent, in any event. My own view is that the original
limitation in this bill was an appropriate one, but that original
limitation has twice been liberalized in the course of this debate. And
I express the fervent hope that in concerning ourselves with the
proposition that we should not permit absolutely unlimited discretion
on the part of juries, we should not have no maximum sentence in civil
cases for wrongs, that we will make the partial and halting move toward
some kind of rationalization which is now contained in this bill.
Mr. President, we are in a peculiar situation here this morning in
that we have a potential of this amendment and one other to be dealt
with and we do not have specific limitations on the amount of time that
can be utilized for them. So I hope that, when either the Senator from
West Virginia or the Senator from North Dakota next speaks, we can get
an indication as to when they will finish to allow the other amendment
to take place. There will be votes on any other amendments which come
up, but we will be asking unanimous consent that those votes take place
after closing arguments and before the vote on final passage. So the
sooner we know how long these two amendments will be debated, the
earlier we will be able to predict to our Senators who are not here
when they will have to come back to the floor to vote.
Mr. ROCKEFELLER addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, a couple of points. I agree with what
the Senator from the State of Washington said in argument to this
amendment.
Just for the edification of my colleagues--this fact has not been
brought out, I do not believe, in the debate--we have removed caps, but
people do not realize, I think, often that there are caps on some
rather extraordinary crimes in the Federal statutes. I will give some
examples.
Many Federal criminal fines, even for particularly egregious crimes,
do not exceed $250,000. And that was our original proposal, economic
damages times three or $250,000, whichever is greater.
Listen to this. If you tamper with consumer products and it results
in death, the Federal statute limitation is $100,000 for punitive
damages. If you retaliate against a witness, it is $250,000. If you
assault the President, it is $10,000. If you rob a bank with the use of
a deadly weapon, the punitive damage limit cap is $10,000. Sexual
exploitation of children for an individual, $100,000; in terms of an
organization--however that would work out--$200,000. For treason--for
treason--$10,000.
Now I say that in no way to defend caps, because the Senator from
West Virginia has fought for the removal of caps and we have, I
believe, been able to do that.
I would, in closing, remind my esteemed friend and colleague from the
State of North Dakota, who is as principled a person as I have ever
met, that the Senator from the State of Washington and I have so
bloodied ourselves in making sure we come back with effective removal
of caps that we have said, and that we have been unable to obtain
unanimous consent in this body to, in effect, make the cap total and
complete because of a matter of 60 seconds in filing the amendment,
that if we bring back the amendment with anything but the cap removed,
that we will vote against the motion for cloture should there be a
filibuster on the conference report.
So I really do believe that we are operating not only in good faith
but in good substance on removal of the cap. I hope, therefore, that
what I consider a redundant amendment by the Senator from North Dakota
would be defeated.
I thank the Chair and yield the floor.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
[[Page S6372]] Mr. DORGAN. I shall not prolong the debate. When I
have completed with my remarks, I see no reason that you could not
enter a unanimous-consent request to have a vote. I have no objection
to a vote.
First, let me make a couple of comments. The Senator from Washington
said, and I think the Senator from West Virginia also seemed to say,
the way the bill is constructed, there really are not caps on punitive
damage awards. If that, in fact, is the case, then I would think that
they would have no objection to accepting language that says there are
no caps on punitive damage awards. That is what my amendment says.
That was the Commerce Committee position last year on this bill. It
was the right position. We raised the bar on what you must prove to
receive a punitive damage award. Once we raised the bar, we felt it
inappropriate to include caps. Now this year they want to include caps.
When the two Senators say there are not really caps, I understand
what they are referencing. But, honestly, I think the claimants will
find there are caps. There is $250,000 written in. That is written
there for a reason. Because, under ordinary circumstances, that will be
a cap, two times compensatory damages.
Let me make two other quick points.
Mr. ROCKEFELLER. Will the Senator yield?
Mr. DORGAN. I am happy to yield.
Mr. ROCKEFELLER. Just as a point of clarification, the reason that
the $250,000 was put in there in its new configuration was not in terms
of the caps. We made certain that there was an alternate ceiling. So
that if the economic damages and the noneconomic damages did not appear
to arrive at $250,000 multiplied by two, that the claimant would be
guaranteed the $250,000. It is an alternate ceiling.
Mr. DORGAN. If the Senators were building a floor rather than
creating a cap, I say, God bless the floor and let us just get rid of
the cap. Let us vote for my amendment and we will solve this.
But, let me make two other comments. First, if a company, a large
company with vast resources, produces a product or a device that will
be used in the field of medicine discovers, during its testing, the
product is sufficiently faulty in its operation and it may cause some
deaths; if the company fails to disclose that information and the
product goes to market and some unsuspecting patient lies on a hospital
gurney going into the operating room and dies during a routine
procedure and later the family discovers that person died because the
product used was faulty and the company knew it, I suppose they would
want to bring a lawsuit against the company. In that case, I think
society would want that company to be punished sufficiently so that
other companies would understand you cannot do that, that kills people;
you ought to be punished for it. You ought not get a slap on the wrist,
you ought to be punished for it.
That is what punitive damage awards are for. The case I just
mentioned is a real case, and there are plenty of cases like that.
There is not an epidemic of punitive damage awards in this country.
It happens rarely because it requires a substantial burden of proof,
and we have increased that burden. There is no litigation crisis with
respect to punitive damages. In 25 years, the survey that I have seen--
1965 to 1990--says that 355 punitive damages were awarded in State and
Federal product liability lawsuits nationwide. This is a country of 250
million people; 355 punitive damage awards nationwide. Of those awards,
35 are larger than $10 million. All but one of these awards were
reduced, and 11 of the 35 were reduced to zero.
The point I make is, this is not an epidemic or crisis. Punitive
damage awards have not been escalating out of control. But I do think
there are certain circumstances where an enterprise worth billions
makes a conscious decision that we will risk whatever awards exist out
there because we will gain more profit by selling this, knowing the
defects, than we will risk paying the damages to someone injured or
killed by that product.
My own view is that there is merit on both sides of the debate on
product liability. That is why I have decided to support and have
supported moving forward, increasing the standards, trying to shut down
some of the litigation in this country, because there is too much
frivolous litigation, as a matter of fact. The country is just prone to
litigate almost everything. We have too many lawyers in America. And we
keep training more and more every year.
I think there is merit to the position of the two Senators, that we
ought to do something in a reasonable way on product liability. I think
there is no merit to putting a cap on punitive damages. There was not
merit to it last year. They did not have it in the bill last year. They
changed their minds. Their first instinct is correct. Always stick with
your first instinct. My amendment will allow us to stick with your
first instinct. If the Senate agrees, we will live with your victory of
last year deciding there shall not be punitive damages in the product
liability bill.
Mr. President, with that, I yield the floor.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Very briefly, Mr. President, I think that Members should
know that this amendment by the Senator from North Dakota is all-
encompassing and that it overrides the amendment which was supported by
the vast majority of Members of the Senate that does have strict limits
on punitive damages in cases involving small businesses, businesses
with fewer than 25 employees and individuals of relatively modest means
whose total assets are less than half a million dollars.
So they, after having been the beneficiary of the last week of that
very careful protection, protection against absolute bankruptcy, should
the Dorgan amendment be adopted, they will be thrown into a situation
in which absolutely unlimited punitive damages can be awarded against
them. It is important for Members to understand that.
Unanimous Consent Agreement
Mr. GORTON. With that, Mr. President, now having cleared this with
the Democratic side, I ask unanimous consent that the vote on, or in
relation to, the Dorgan amendment, or in relation to any other
amendment in order, and final passage occur back to back at the
conclusion of the previously allotted time with the first vote limited
to 15 minutes and the other consecutive votes in the voting sequence
limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I was going to ask for the yeas and nays.
Mr. GORTON. I move to table the Dorgan amendment and ask for the yeas
and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. HEFLIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. HEFLIN. Mr. President, I rise to speak against passage of this
bill. I realize that, with cloture having been invoked, my words may
not change many votes, but maybe they might change one or two. And then
I feel like maybe my remarks, in a strong adversarial posture, might
appeal to the reason of Senators to encourage them to eliminate some of
the grossly unfair provisions that are in this bill.
I might say in the beginning that I believe the difference between
the caps that are put in this bill and the fact that there were no caps
in the last bill reflects a change in the makeup of the Senate, as a
result of last November's elections.
There are caps in this bill with an additur provision whereby a judge
could increase a jury's award of punitive damages. Clearly, that has
already been ruled on by the Supreme Court as being unconstitutional.
The case of Dimick versus Schiedt was decided in 1935 on that issue and
makes the additur provision unconstitutional.
In my judgment, there are a number of other unconstitutional elements
that should be pointed out. One is the matter pertaining to the role of
the U.S. circuit courts of appeal being able to determine controlling
precedent on the State courts within the jurisdiction of the Federal
circuit.
[[Page S6373]] Article III of section 1 of the Constitution, which
provides that the judicial power of the United States shall be vested
in one Supreme Court, has been construed to mean that the State courts
must follow the decision of the Supreme Court and not the lower Federal
courts.
The case of Erie versus Tompkins basically says that the Federal
courts, in diversity cases, shall follow the substantive law of the
State. There is no question that the Federal courts, through its
rulemaking process and Congress, pursuant to its powers under the Rules
Enabling Act, control in regards to procedural matters. I just want to
mention that.
I want to direct the Senate's attention to a chart that Senator Levin
produced and used in a previous argument. I thought it was an excellent
presentation, and I ask unanimous consent that this table be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
PREEMPTION OF STATE PRODUCT LIABILITY LAWS UNDER S. 565, AS REPORTED
------------------------------------------------------------------------
State laws State laws
more more
favorable favorable
to to
plaintiffs defendants
------------------------------------------------------------------------
Liability of product sellers.................... Prohibited Allowed.
Alcohol or drug abuse defense................... ......do.. Do.
Misuse or alteration of product defense......... ......do.. Do.
Punitive damage limitations..................... ......do.. Do.
Statute of limitations.......................... ......do.. Prohibited
.
Statute of repose............................... ......do.. Allowed.
Joint and several liability (non-economic ......do.. Do.
damages).
Biomaterials provisions......................... ......do.. Do.
------------------------------------------------------------------------
Mr. HEFLIN. Mr. President, this is chart entitled ``Preemption of
State Product Liability Laws,'' and it has a column of State laws more
favorable to plaintiffs and State laws more favorable to defendants and
what happens as regards preemption under this legislation. First as to
the liability of product sellers, that is retailers, this bill
prohibits any laws more favorable to plaintiff, but it allows laws more
favorable to the defendants. Second, with respect to the alcohol or
drug abuse defense, the bill prohibits State laws more favorable to
plaintiffs but it allows State laws more favorable to defendants.
Third, as to the misuse or alteration of product defense, the bill
prohibits State laws more favorable to plaintiffs but allows State laws
more favorable to defendants.
Punitive damage limitations are treated the same way--unfavorable as
to plaintiffs and favorable as to defendants. As to the statutes of
limitations, that is the one and only provision that really exists in
this whole bill is as to uniformity.
With regard to the statute of repose provision of 20 years, this bill
preempts State laws more favorable to plaintiffs but not those State
laws more favorable to defendants.
On the issue of eliminating joint and several liability for
noneconomic damages, this bill preempts State laws which are more
favorable to plaintiffs but allow State laws which are more favorable
to defendants. And you have the biomaterials provisions which are
treated in the same manner. I think this chart Senator Levin prepared
is a very excellent chart, and I hope my colleagues will take time to
reflect upon it.
Now, I want to also direct my colleagues attention to the potential
costs of the bill, an issue which I hope will be investigated, because
I do not believe CBO or anyone else has looked at this matter very
closely. There is language in the bill that includes within the scope
of the word ``claimant'' a governmental entity which includes the
Federal Government and all of its entities.
I do not think there is any question that the purpose of this bill is
to save product manufacturers money. The Government, as a claimant,
would be bringing suit against a defendant, and if the purpose of the
bill is to save money, it means it saves money for the defendant, for
corporate America, when the Federal Government brings suit.
So the cost to the Government has never been calculated, and there
are so many things that are involved, particularly like the statute of
limitations and statute of repose as to helicopters, tanks, NASA
equipment, and all of GSA's equipment, and every conceivable way
regarding which products are purchased by the Government. The issue of
costs to the Government ought to be looked at more closely in my
judgment.
Now, there is also a provision dealing with foreign nationals and
foreign governments, and I realize that this is under statutory
construction, that nothing in this title can be construed to preempt
State choice of law rules with respect to claims brought by a foreign
nation or a citizen of a foreign nation and, in effect, the right of
any court to transfer venue, or to apply the law of a foreign nation,
or to dismiss a claim of a foreign nation, or of a citizen of a foreign
nation, on the grounds of inconvenient forum.
In the world of terrorism today, these issues ought to be addressed.
Hopefully, in the terrorist bill that will come before the Senate in
the coming weeks, we will give some consideration regarding this issue.
The Senate ought to make certain that the provisions of this product
liability bill do not in some unintended way give some advantage to a
terrorist entity.
I think one of the most unfair provisions in this legislation is the
provision that says that an injured party cannot introduce in the
compensatory damage part of a trial elements of conduct that constitute
a cause of action for punitive damages. Therefore, as I have pointed
out before, gross negligence, recklessness, wantonness, intentional
conduct, and all activity of a similar nature, is prohibited from being
considered in the main trial for compensatory damages. To me, that is
one of the most unfair provisions that exist in this bill.
The biomaterials section and the definition of implants therein,
where there is language regarding coming in contact through a
surgically produced opening and coming in contact with bodily fluids or
tissue, in my judgment, is a wide-open situation for a great deal of
problems pertaining to component parts of the implant, and I urge that
that be carefully reviewed.
Some of these issues which I have just reviewed--and I hope some
people in the White House are listening to me as I speak about this--
ought to be carefully considered not only by the Department of Justice
and every agency of Government that could be affected. Certainly, the
FDA ought to consider the language that is being placed into this bill
as to matters dealing with the human body in that biomaterial
definition of ``loss.''
Of course, the very basic unfairness of the bill begins with the fact
that commercial loss, which is a business loss, is excluded from being
within the purview of this bill.
Of course, I have given illustrations on the floor about the fact
that if a factory blows up and people that are injured from the faulty,
defective product, they come under this bill; but for commercial law,
they do not.
Some say the commercial loss exemption might be applied to
individuals. I remember there was a ``Dear Colleague'' letter
circulated on this issue. I would imagine in that instance we would
find it would be rarely ever used, we might find out of 2,000 employees
in a factory where a boiler blows up, we might find that there might be
one moonlighting sock salesman. That would be the only way that we
would have, basically, any commercial loss that would occur to that
individual.
Now, most of all of the business litigation and most of the punitive
damages awards that have come about are business or commercial losses.
The case of Pennzoil versus Texaco was, for example, probably the
largest punitive damages case that has ever been awarded, and it was a
commercial litigation where business was suing other business.
There are other provisions throughout the bill that are very unfair,
and I have listed them in previous arguments. I hope that this bill
will be carefully reviewed in conference and we will see the removal of
a great number unwise provisions.
I just appeal to the conscience of the people that are involved who
will be in conference on this, and appeal to the White House to look at
this matter when it reaches conference between the House and Senate. It
just shocks the conscience to see the unfairness that exists in all the
various provisions of this bill and I hope that I have pointed out the
key issue very clearly for my colleagues to consider. Mr. President, I
urge that we vote no on final passage.
[[Page S6374]] Mr. ROCKEFELLER. Mr. President, I encourage my
colleagues would vote aye on this bill.
Mr. President, while I had my doubts, I have believed for a long time
that the Senate would eventually come to this point. Inexorably, it
would happen. After many years of debate, many years of filibusters on
this Senate floor, this body finally has a chance to cast its vote for
what I think is responsible, balanced punitive damages tort reform.
I think the vote yesterday was historic. The Senate, for the first
time, broke the log jam that has blocked action on what I referred to
last night as a deadly serious issue, and the Senate has blocked that
for years and years. Now the Senate has said, ``proceed.''
My belief that this time would come is based on several points. First
and foremost, the problems with our punitive damages system cry out for
solutions. We are here for that purpose. We were elected to address the
problems that require attention and action. We have done so to the best
of our ability.
In this case, because products by definition, virtually, involve
interstate commerce--that point has been made but not accepted, I
suppose, by all--70 percent of everything we make in West Virginia is
sold in another State. By definition, States cannot preoccupy this
field. This is precisely an area where Congress needs to step in.
Each State really cannot fix the flaws of the country's interstate
product liability system. That is because the biggest problem involves
the patchwork--varied, unpredictable nature--of every State in the
union having different product liability rules and standards.
Businesses that sell or manufacture products are subject to the
endless confusion, the hassle, the court costs, the wasteful costs, in
general, of this maze.
Consumers who want safe products want more products that will
increase their safety and cannot get them. Consumers who are victims of
defective products and cannot get recompensed for an average of 3
years, are also hurt by the delays and the costs that stem from the
product liability system. So businesses hurt, consumers are hurt. We
have a problem.
My interest in these problems really stem from seeing the way they
hurt my own State of West Virginia. Manufacturers, small businesses,
the fear, consumers, workers, and the victims of defective products.
The Senator from North Dakota several moments ago said that there has
only been x numbers of liability cases in the last 2 years, 10 years
whatever. That argument has been used many, many times. It is a very
misleading, false argument. It is not the number of punitive damages
awards that have been granted. It is the threat which exists in every
case, in every suit, of which there are unending numbers in this
litigious society.
It is the threat of litigation that is the problem and has crushed so
much innovation and research and development which would help
consumers.
My interest, again, in West Virginia comes from knowing people who
directly have suffered from this and have gone out of business from
this, as well as victims who have been hurt by this. I have seen the
victims who came back from the Persian Gulf war with something called a
mystery syndrome illness which the Defense Department says does not
exist, but I see these people and I know it does exist.
When we see the people, and we see the individuals and we see they
are hurt, we want to help them. To put it simply, then, the product
liability system is broken. The Congress and the President must have
parity.
Second, I have believed that a product liability reform bill would
eventually pass this Senate because of the way some Members have
approached the effort to cause it to pass, which I believe it will.
Members of both sides of the aisle have been troubled by the problems
with product liability. Some time ago the bipartisan team work
necessary to enact legislation began to form. In the past 4 years, the
Senator from the State of Washington and I have had the job of leading
that team. The Senator from Washington and I made a pact: To promote a
balanced, moderate, serious, legislative remedy to these problems in
product liability, tort reform.
We let the businesses interested in reform know that the consumers
and victims had to be the winners of reform, too. We made that very
clear and have made that very clear up until the very last moments.
We have kept making it clear.
We explained to the general public that the harm done to business by
the problems with product liability also hurt the general public, which
is called the rest of the country. They cost jobs, they stifle the
innovation needed to make safer drugs and products, and they impose an
enormous hidden tax on every American.
That is why we devised a bill to deal with the range of problems that
affect different sectors of the society, and we did it fairly. In this
legislation we promote quicker settlements through alternative dispute
resolution. We insisted on that so victims get compensation faster. We
give the victims of harm done by substances like asbestos enough time
to seek relief by saying the clock can only run after they discover the
harm that they are suffering and, again, the reason, the cause of the
harm they are suffering.
We have made a number of adjustments in the way businesses are made
liable for the impact of products where the rules are not fair to them.
But my point is also that this bill reflects the balance and the
moderation that emerges when Members of both sides of the aisle choose
to work together, choose to trust one another, choose to accommodate
the diverse concerns that arise when a complicated topic like product
liability comes up.
We are not seeing a lot of bipartisanship in the legislative process
these days, and it is sad. It is more than sad for the country, it is
grievous. I find all of that very troublesome. I think it is
essentially a disservice to the country. We are a diverse nation with a
Government designed to represent our differences and built with checks
and balances on one another. We should draw on the strength of that
diversity. Democrats and Republicans in the Senate should spend more
time, I think, working together on the country's problems, working out
solutions that will last and that will take root.
I think we do that in this bill. And when we do have bipartisan
cooperation and it works, it only encourages us to do more, I hope.
That is why the Senator from Washington and I formed the team to deal
with the problems of product liability, and we intend to maintain that
bipartisanship until we see a bill signed into law sometime later this
year.
Finally, my belief that product liability legislation would pass has
been based on the talent and the leadership that have been invested in
this effort. Many Members of this body have contributed to this
arduous, difficult effort. Senators Dodd and Lieberman have been
staunch allies, and their staffs, Tony Orza and Nina Bang-Jensen.
Senators on the other side of the aisle, from the majority leader to
the chairmen of the Commerce and Judiciary Committees, have played
essential roles in this. It is impossible to fully explain how much I
respect and appreciate the Senator from Washington, Slade Gorton. I
think he stands out for, first of all, his acumen, his amazing mind,
his tenacity, the wisdom of his counsel, his calmness under substantial
fire, and his commitment to reform.
The staff who have assisted in this effort I think deserve medals for
their valor and service and for their, by the way, exhaustion. On
Senator Gorton's staff, Lance Bultena and Trent Erickson have been
steady, quiet, dogged, and perfect in helping us work this through.
Assisting me, I cannot thank enough, and I would need to start with
Tamera Stanton, who is my legislative director who sits at my left as I
speak, who masters all subjects with tenacity and with understanding,
is skillful in her sense of nuance, strategy, politics, and policy;
Ellen Doneski, who does not know how to stop working, and as a result
never does stop working and accomplishes incredible, amazing things,
often many at the same time, so she just never stops working; Jim
Gottlieb and Bill Brew, both in fact lawyers, which we need in our
office. And they have both been brilliant, skillful, dogged, and
successful. Without their labors and their incredible talent we would
not be at this point.
[[Page S6375]] I do not want to take the body's time, but I just
want to make the point again that, if you pick up the paper, you will
read Senator Gorton's name. If you listen to the television, you will
hear his name and Senator Hollings' name. And they can both do all of
this on their own, pretty much, anyway. But actually it does not quite
work out that way. Just as Senator Hollings, Kevin Curtin, and others--
it is the public that needs to know, while they are in their orgy of
dislike for the Federal Government, that there are incredible people
called staff of the U.S. Senators who make possible what it is that we
do.
I want to acknowledge with respect the persistence and commitment of
the flag-bearers who took the other side on this issue. The Senators
from Alabama and South Carolina are daunting in their own legal minds
and ferocity when it comes to this issue--both of them. They are
different in many ways, the same in many ways, but both of them are
extraordinary in their commitment to their beliefs. I hope they would
agree it was a fair and open debate. They prevailed in the past without
exception. It worked out the other way this time.
This has not been an easy issue for anybody involved. The legal
system is a very serious part of our national fabric and life. The
rights of every American are fundamental and are not to be tampered
with easily. I have always felt that, as I have fought for product
liability reform, in a sense I restate my pledge to navigate the
remainder of the legislative process with a deep commitment to the
principles of fairness and justice.
But I remain absolutely sure that it is time to fix this broken part
of our legal system, and I think we have done a lot of it. The country
is saddled with costs, with waste, with problems that can be eased with
the reforms in this legislation.
The PRESIDING OFFICER (Mr. Santorum). The time of the Senator has
expired.
Mr. ROCKEFELLER. Mr. President, I ask for an additional 60 seconds.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. I am proud to give the Senate a chance, finally, to
cast its vote on a balanced legislative remedy. I am relieved we
restored a bill simply dealing with product liability and with the
important changes worked out in the final hours that represent the
bipartisanship and the balance that we sought from the beginning of
this effort.
I am confident that President Clinton will sign this bill with
whatever perfections we can make. I hope we will soon see the benefits
of reform and demonstrate to the skeptics that the changes are in the
entire Nation's interests.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, first a procedural announcement. Thirty
minutes remains under the order with respect to debate on product
liability. Senators in their offices, therefore, should be on notice
that approximately at 11:40 there will be a vote on my motion to table
the Dorgan amendment, followed immediately by a vote on final passage
of the product liability bill with, we think, the substitute adopted by
voice vote. So Members should be prepared to come to the floor at or
shortly after 11:40.
On a second matter, in which I know I am joined by my colleague from
West Virginia, regrettably, due to the inability of the Senators from
Washington and West Virginia to get unanimous consent to make one
additional change in their proposal, the so-called new trial provision
after an additur remains in this bill.
The Senators from West Virginia and Washington have pledged that the
bill will not be presented by them to this body with that provision in
it, and that pledge remains.
Other than that, this bill is the work of many years of effort
culminated in this Congress, as in the last Congress, by the joint
efforts of the Senator from West Virginia and myself, and of many
others whom I will mention after we have had a final vote. Together,
with the input from Members on both sides of the aisle, I am confident
that the bill will pass and that it will represent a significant step
forward.
Mr. President, one other comment that I make as a sponsor and one of
the people who drafted this bill in the punitive damages section, we
included an additive provision at the request of the Department of
Justice of the United States, with the assurance that the provision is
constitutional. That opinion, in my view, is correct. Such provisions
are found in the laws of many States. If a court should, however, find
the additive provisions to be unconstitutional, it is our intention
that the remainder of the punitive damages provision will stand and
that only the additive provision which is now found in section
107(b)(3) would be severed.
Mr. President, one argument against congressional legislation in this
field, which has been raised by almost all of those who have come here
to speak against it, is that we should not interfere in the Federal
system with the laws of the 50 States. It is a curious argument as it
is generally advanced by those Members of this body who are most
anxious to interfere with the prerogatives of the States in many areas
for which there is no explicit constitutional warrant. This, however,
is a case in which congressional legislation is expressly warranted by
the Constitution, and may very well have been anticipated, or would
have been anticipated had they known what the economy of the United
States would look like in the late 20th century, by those who wrote the
Constitution itself. One of the principal reasons for the
Constitutional Convention was the chaos that attended interstate
commerce among the 13 States after the close of the War of the
Revolution and before the adoption of the Constitution.
So under article I, section 8, clause 3, the interstate commerce
clause, the Congress is invited, is given plenary power over interstate
commerce. Of course, most of the products with which this bill deals
are made of materials that arrive in interstate commerce and are sold
after they are manufactured in interstate commerce, and a far greater
degree of uniformity that is now in this bill would be constitutionally
warranted. The compromises in this bill are in certain cases political
and in other cases highly principled attempts to provide a degree of
predictability and uniformity which will lead to more economic
development, greater jobs, and better products for consumers with the
very real history of local control over our courts and over our
litigation. But as long ago as in the Federalist Papers, Alexander
Hamilton made it clear that one of the key purposes of the Constitution
was to prevent interstate commerce from being, and I quote him:
``Fettered, interrupted, and narrowed'' by parochial State regulations.
That, regrettably, is exactly what we have, particularly in that
handful of States, often in rural counties, in which we find repeated
huge punitive damage awards, almost invariably entered against out-of-
State defendants or out-of-State corporations in a way which fetters,
interrupts, and narrows interstate commerce by discouraging research
and development and discouraging the marketing of new products. We have
seen that happen in instance after instance in which companies large
and small have found it improvident to develop new products to cure
previously incurably diseases or to solve problems in our society
because they might have an adverse impact on some individual, and that
individual might sue and that individual might persuade a jury in
someplace or another to award punitive damages in an amount that would
make it utterly unprofitable ever to have entered that business in the
first place.
Perhaps worse, and perhaps a greater interference with interstate
commerce, is successful defense litigation where large companies find
that they have spent tens of millions of dollars successfully defending
against product liability litigation over products, that gross price of
which is far less than those legal fees. So they say, ``Why produce
parts for implant into the bodies of people of the United States, as
much good as those things do?"
It is our hope to make a modest step forward in creating a balance,
not by denying any person the right to go to court, not by limiting the
actual damages that any individual can receive for an act which is the
responsibility of the individual or company which is called upon to
make payment, but to see to it that there are fewer arbitrary
[[Page S6376]] judgments; that less of the time defendants are
required to pay for the negligence or for the acts of others.
Mr. President, a day or so ago, the Senator from California [Mrs.
Boxer], argued at length with respect to the McCain-Lieberman portions
of this bill on biomaterials and that corporations would be allowed to
set up shell subsidiaries and protect themselves from liabilities.
That concern was raised in the Commerce Committee by the Senator from
Nebraska [Mr. Exon], and expressly taken care of by an amendment that
will allow piercing that corporate shell and not preventing the
corporation, which is actually in control and which has assets, from
protecting itself from the consequences of its own negligence.
But basically, Mr. President, we now have a product liability bill
which includes a statutory repose for products that are used in a
business enterprise. We have a limitation on joint liability with
respect to noneconomic damages--that is, pain and suffering--under
which we simply say that you are responsible as a defendant for the
degree to which you have harmed the claimant, but that a defendant that
is only 10 or 20 percent responsible for these damages is not going to
be charged for the entire verdict simply because some other defendant
cannot be reached.
We have imposed some modest rationality on the award of punitive
damages. My colleague here this morning came up with one of the best
sets of examples I have ever heard, something which has not been
brought before the Senate in this 3 weeks, when he points out that for
all practical purposes every Federal criminal statute which includes
the right to a fine as a part of the sentence has a limitation on those
fines, and yet to be subjected to a criminal fine one must be found
guilty beyond a reasonable doubt. One has all of the protections of the
fifth amendment against self-incrimination. And yet here we, the
Congress of the United States, have set a maximum fine, $10,000;
maximum fine, $25,000. I think the maximum fine they found was
$250,000.
We vote for these criminal penalties, and yet our opponents tell us
how outrageous it is in a civil case, with no fifth amendment rights,
no standard of proof beyond a reasonable doubt, how unreasonable it is
to set any limit on what a jury can do in the way of punishment--
punishment over and beyond all of the damages that are actually proven
by the claimant in a particular case.
Mr. President, this bill is not a perfect bill, in my view, and it is
not a perfect bill because it does not limit that form of arbitrary
punishment sufficiently. But it does begin down a road which we have
been invited to take by the Supreme Court of the United States which
says without having set standards itself that there are constitutional
implications to unlimited punitive damage verdicts. And so here we have
an experiment. We attempt to balance the rights of trial lawyers
against the necessity for a better and more effective economy, one in
which people are encouraged to innovate, to create new jobs and to
create new products for the American people.
We have been at this for a long time. I know from personal experience
that there were product liability bills in the Senate and in the
Commerce Committee on which I serve as long ago as 1982. I suspect that
they existed before that time. I can remember one product liability
bill in that committee against which I voted myself because it seemed
to me it went too far, that it was unbalanced on the other side. This
one is not, Mr. President. This one is a good piece of legislation. It
is something that will help the American economy and help the cause of
balanced and appropriate justice.
Finally, Mr. President, it is a precedent in a sense but it has one
preceding element. A year or so ago, we passed a very modest product
liability bill for piston driven aircraft. The legal system, the legal
system defended by the other side here, had destroyed that business,
reduced its production by 95 percent. A modest change in the law at the
Federal level has already contributed to the recovery, the beginning of
the recovery of that business--a dramatic illustration that the horror
stories are not true and that the promises made by the proponents of
this litigation have been proven to be valid by history. If my
colleagues will vote for this, if we get it accepted by the House and
signed by the President of the United States, this country will be
significantly better off.
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Oh, so reasoned, says my distinguished colleague from
Washington. It is so balanced. GOPAC has taken over. Gingrich is the
Speaker, and there is a contract. Look at the elements of this
contract. Part and parcel either by way of amendments here or in bills
on the House side or what they have in mind is not just product
liability but they have limiting pain and suffering damages; they have
limiting the punitive damages; they tried to fit in medical
malpractice; they tried to then limit plaintiff's attorney's fees. They
voted against the fees on the defendants. They were not making enough.
They ought to make more than $133,000 a year. They tried to limit
punitive damages in all civil cases. The English rule is in the bill
over on the House side; the alternative dispute resolution with the
plaintiff having to pay all the fees; the securities litigation, the
FDA and FAA rules where they would bar damages if the product is
approved by either of those entities; they exempt the medical devices
and the doctors, a provision about frivolous suits, statutes of repose;
restricted submission of evidence is in this bill, in the House bills,
bifurcation of the trials, both actual and punitive damages. Then they
even put in an unconstitutional additur provision here.
Like the sheepdog had tasted blood, with product liability they are
going to gobble up all the other rights and say it is so reasoned and
so balanced.
One exemption they have from all this, Mr. President. One exemption--
the manufacturers, the very crowd that through this bill continue to
put in the amendments and everything else. They exempt the manufacturer
and apply this all to the injured party and have the unmitigated gall
to come up here and say they are for consumers. Why, heavens above.
Come on.
I ask unanimous consent to include in the Record the State-based
organizations opposed to this legal reform bill.
There being no objection, the list was ordered to be printed in the
Record, as follows:
State Based Organizations Opposed to ``Legal Reform'' in the Senate (S.
565)
Alaska PIRG.
Arizona Citizen Action.
California Citizen Action.
Center for Public Interest Law at the University of San
Diego.
California Crime Victims Legal Clinic.
Fair Housing Council of San Gabriel Valley.
Colorado Steelworkers Union Local 2102.
Coalition of Silicon Survivors.
Colorado DES Action.
Denver UAW.
Colorado ACLU.
Denver Gray Panthers.
Colorado Public Interest Research Group (CoPIRG).
Colorado Clean Water Action.
Colorado Senior Lobby.
Connecticut Citizen Action Group.
ConnPIRG (Connecticut Public Interest Research Group).
Delaware Coalition for Accountability and Justice.
Delaware AARP.
Delaware Council of Senior Citizens.
Delaware AFL-CIO.
Delaware Federation of Women's Clubs.
Delaware Women and Wellness.
Delaware Breast Cancer Coalition.
Building Trades Council of Delaware.
UAW Local 1183--Delaware.
Delaware Sierra Club.
Delaware Audubon Society.
Save the Wetlands and Bays--Delaware.
Georgia Consumer Center.
Idaho Citizens Action Network.
Idaho Consumer Affairs, Inc.
Illinois Council Against Handgun Violence.
Citizens Action Coalition of Indiana.
Planned Parenthood of Maryland.
Law Foundation of Prince George's County.
Maryland Sierra Club.
Teamsters Joint Council No. 62.
UFCW Local 440.
White Lung Association & National Asbestos Victims.
Sexual Assault/Domestic Violence Center, Inc.
IBEW Local 24.
Maryland Clean Water Action.
Maryland Employment Lawyers Association.
Health Education Resource Organization (H.E.R.O.).
Environmental Action Foundation.
[[Page S6377]] Massachusetts Consumer Association.
Minnesotans for Safe Foods.
Missouri PIRG.
Montana PIRG.
Nebraska Coalition for Accountability & Justice.
Nebraska Farmers Union.
Nebraska Women's Political Network.
Nebraska National Organization for Women.
United Rubber Workers of America, Local 286.
Communications Workers of America, Local 7470.
Nebraska Head Injury Association.
Nebraska Center for Rural Affairs.
White Lung Association of New Jersey.
Consumers League of New Jersey.
Cornucopia Network of New Jersey.
New Jersey DES Action.
New Jersey Environmental Federation.
New Mexico Citizen Action.
Essex West Hudson Labor Council.
Uniformed Firefighters Association of Greater New York.
New York Consumer Assembly.
Niagara Consumer Association.
North Carolina Consumers Council.
North Dakota Public Employees Association.
North Dakota DES Action.
North Dakota Clean Water Action.
Dakota Center for Independent Living.
North Dakota Breast Implant Coalition.
North Dakota Progressive Coalition.
Laborer's International Union, Local 580.
Boilermaker's Local 647.
Ironworkers Local 793.
United Transportation Union.
Sierra Club, Agassiz Basin Group.
Plumbers & Pipefitters Local 338.
United Church of Christ.
Teamsters Local 116.
Teamsters Local 123.
Plumbers & Pipefitters, Local 795.
Workers Against Inhumane Treatment.
Ohio Consumer League.
Oregon Fair Share.
Oregon Consumer League.
Pennsylvania Citizens Consumer Council.
Pennsylvania Institute for Community Services.
SmokeFree Pennsylvania.
South Dakota AFSCME.
East River Group Sierra Club.
Black Hills Group Sierra Club.
South Dakota State University.
IBEW, Local 426.
South Dakota DES Action.
South Dakota Peace & Justice Center.
Native American Women's Health & Education Center.
Native American Women's Reproductive Rights Coalition.
South Dakota AFL-CIO.
UFCW Local 304A.
Yankton Sioux Tribe.
South Dakota Coalition Against Domestic Violence.
South Dakota Advocacy Network.
South Dakota United Transportation Union.
South Dakota United Paperworkers International Union.
Texas Alliance for Human Needs.
Texas Public Citizen.
Vermont PIRG.
WASHPIRG (Washington Public Interest Research Group).
Wisconsin PIRG.
____
Citizen Action,
Montgomery, AL, April 26, 1995.
Hon. Richard Shelby,
U.S. Senate,
Washington, DC.
Dear Senator Shelby: On behalf of our members, I am writing
to thank you for your past opposition to federal ``tort
reform'' legislation and to offer our support in your efforts
this year.
As you know, Governor Fob James, in his April 18th State of
the State Address, stated that ``intrusive federal law should
not dictate tort reform legislation to the states.'' You
might also be interested to know that similar sentiments have
been reflected by the majority of audiences in several forums
I have attended on the issued in the past month.
Our members also are deeply concerned about the
consequences of capping punitive damages and eliminating
joint and several liability for non-economic damages.
Proposals such as these threaten public safety in Alabama by
removing the deterrent effect of punitive damages, and they
discriminate against those most likely to suffer non-economic
damages, such as women, seniors, and children.
Thank you again for your leadership in fighting to uphold
the democratic principles embodied in our state civil justice
system and for voting ``no'' on the upcoming cloture votes on
S. 565. Please do not hesitate to call on me for any
assistance on this matter in the coming weeks.
Sincerely yours,
Mike Odom,
Executive Director.
____
Arizona Consumers Council,
Phoenix, AZ, April 19, 1995.
Senator John McCain,
Russell Office Building,
Washington, DC.
Dear Senator McCain: Two bills are expected to come to the
floor this week--The Telecommunications Competition and
Deregulation Act of 1995, and the Product Liability Fairness
Act of 1995. We believe that these bills are both anti-
consumer and anti-competitive.
Consumers have been strong in their requests to continue
regulation of cable and in feeling that their bills have gone
too high--three times the rate of inflation--for this
service. Reregulation was the ONLY bill which was passed over
the veto of President Bush.
Your office asked me to represent you on KFYI in favor of
reregulation at that time. I did my best on that program.
Local cable companies now have a network which pass 96% of
the homes in the country. They are best positioned to compete
with the monopoly local telephone companies. This bill would
permit these local monopolies to buy each other, merge or
joint venture, thus eliminating the most likely competitor in
each market. This means the promised benefits of competition,
including lower prices, greater innovation and better service
may never be realized by most consumers.
S. 565 sets arbitrary limits on punitive damages and
eliminates joint and several liability for non-economic
damages. This bill will restrict the ability of injured
consumers to obtain full and fair compensation for their
injuries, and for juries to act to prevent further
wrongdoing.
The Arizona Consumers Council which represents consumers in
all countries of the state and was organized in 1966 is also
a member of Consumer Federation of America, who represent 50
million consumers nationwide, we urge you to opposed S. 652.
and also S. 565.
Sincerely,
Phyllis Rowe,
President.
____
Consumer Federation
of California,
Westminster, CA, April 18, 1995.
Re Opposition to S. 565 and S. 454.
Senator Barbara Boxer,
U.S. Senate,
Washington, DC.
Dear Senator Boxer: On behalf of the Consumer Federation of
California, I wish to express strong opposition to S 565, the
``Product Liability Fairness Act of 1995.'' Injured consumers
would not be able to obtain full and fair compensation if
this legislation is passed.
The two major provisions of this legislation would have a
far reaching, negative impact on consumers and workers.
First, this bill would set arbitrary limits on punitive
damage awards of $250,000 or three times economic damages,
reducing the ability to deter corporations from inflicting
harm on others and threatening Americans' economic security
and well being. At a time when Congress is talking about
increasing personal responsibility, it makes no sense to
reduce the responsibility of corporations guilty of
manufacturing or selling dangerous products.
Second, this bill would eliminate joint and several
liability for noneconomic damages, making it difficult for
consumers to recover costs related to injuries such as the
loss of reproductive capacity, loss of sight, or
disfigurement. Those injuries deserve to be compensated and
should not be treated as less important than the loss of high
salaries or investment income.
Consumer Federation of California also urges you to oppose
S. 454, ``The Health Care Liability and Quality Assurance
Act'' which would severely affect the rights of injured
patients.
I urge you to act to prevent passage of this legislation,
which would greatly restrict the ability of the consumer to
be compensated fully for injuries and to act to prevent
further wrong doing.
Sincerely,
Dr. Regene L. Mitchell,
President.
____
Motor Voters,
Sacramento, CA, April 19, 1995.
Re S. 565: Oppose.
Hon. Diane Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: Motor Voters is a non-profit, non-
partisan auto safety organization founded in Lemon Grove,
outside San Diego, in 1979.
This letter is to urge you to oppose S. 565, the product
liability measure. Our members include parents of children
who suffered permanent, debilitating brain injuries or who
were killed due to the deliberate disregard of auto
manufacturers.
It would be impossible to tell you how strongly those
parents feel that companies need to be held accountable for
their actions. In fact, they wish to see the law strengthened
to provide for felony criminal penalties for corporate
executives who knowingly market unsafe products.
Corporate executive are too insulated from the damage they
inflict upon their customers and the public at large. If they
were more personally accountable, it would provide a
desperately needed incentive for them to consider more than
their bottom line.
In the absence of criminal penalties, the only hope we have
of curbing rampant corporate misconduct is through product
liability laws. It is appalling that special interests are
seeking to restrict remedies in consumers' court of last
resort. The ``loser pays'' concept is particularly
pernicious, as it entirely ignores the unequal footing of the
two
[[Page S6378]] parties. Individuals already risk a great
deal when they sue a giant corporation, and experience
tremendous stress. A family with a brain-injured child has
enough to worry about without the danger that, if their
attorney makes a mistake, they can be totally impoverished.
Ironically, many advances in safety technology, spurred by
lawsuits, end up benefiting everyone--including companies.
For example, here in California, many former defense
contractors are converting to making auto safety components
such as air bags. The demand for improved safety is spawning
an entire new industry and creating new, high-tech jobs. It
is time to move forward, not back.
For all of the above reasons, I urge your ``no'' vote on S.
565.
Sincerely,
Rosemary Shahan,
President.
____
California Public Interest
Research Group,
Los Angeles, CA, April 24, 1995.
Protect Victims of Dangerous Products--Oppose Cloture and
Vote ``No'' on S. 565.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein, We are writing on behalf of
CALPIRG's members, and on behalf of all residents of
California to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights of
victims of dangerous and defective products. As you know,
CALPIRG is a statewide, non-profit, nonpartisan consumer and
environmental advocacy group that has fought to protect the
rights of consumers for many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Mary Raftery,
Legislative Director.
____
Coalition for
Accountability & Justice,
April 21, 1995.
Hon. Ben Nighthorse Campbell,
U.S. Senate,
Washington, DC.
Dear Senator Campbell: We, the undersigned individuals and
organizations, urge you to oppose efforts to weaken America's
civil justice system. We urge you to vote against cloture on
S. 565, the product liability measure sponsored by Sens.
Gorton and Rockefeller, or any other legislation that would
weaken the rights of the citizens of Colorado.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages and deterring
harmful behavior. By giving ``non-economic'' damages second-
class treatment, the bill discriminates against populations
with less earning power, specifically women, children,
seniors and low- and middle-income workers. Under S. 565, the
U.S. would have a two-tier system of justice where rich,
high-salaried workers would be accorded better treatment and
higher damage awards than the rest of us. Finally, by
establishing brand new federal rules for product liability
cases, S. 565 removes from state authority and oversight a
civil justice system that, despite the hyperbole of the big
business interests backing this legislation, has served
consumers and the residents of Colorado exceedingly well.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen, or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years. Moreover, S. 565 adds protection for manufacturers of
raw materials in medical devices and for rental car
companies, and reduces manufacturer liability for misuses or
alterations made to the product by anyone else--provisions
that were not in last year's bill. Even if one reasonably
believes that the measure introduced by Sens. Gorton and
Rockefeller is sound public policy (which we do not), it must
ultimately be reconciled with the extreme revisions to the
civil justice system recently adopted by the House of
Representatives. H.R. 956, in addition to the provisions
outlined above, enacts an arbitrary cap on pain and suffering
awards in medical malpractice and cases involving drugs and
medical devices, at the same time it offers an automatic
punitive damages shield for products that have received FDA
approval. In addition, the House measure extends the cap on
punitive damages to all civil lawsuits, and establishes an
arbitrary 15 year statute of repose for product liability
cases.
Passage of either of these measures, or a combination of
the two, would cause grievous harm to the people who have
elected you--and depend on you--to represent their interests
in Congress. We urge you to oppose any effort to weaken or
federalize product liability laws, and to vote ``no'' on
cloture on S. 565, on S. 565, and on any conference committee
reported-measure restricting the rights of consumers.
Sincerely,
Julie Shiels, Son killed by defective bunkbed;
International Steelworkers Union, Local 2102; Coalition
of Silicon Survivors; DES Action, Colorado Chapter;
Denver United Auto Workers; ACLU of Colorado; Gray
Panthers of Denver; Colorado Public Interest Research
Group (CoPIRG); Clean Water Action, Colorado Chapter;
Ann Ives, Silicon breast survivor, DES survivor; Oil,
Chemical & Atomic Worker International Union, AFL-CIO;
Colorado Senior Lobby.
____
Colorado Public Interest
Research Group,
Denver, CO, April 24, 1995.
Re Protect Victims of Dangerous Products--Oppose Cloture and
Vote No. on S. 565.
Hon. Ben Nighthorse Campbell,
U.S. Senate,
Washington, DC.
Dear Senator Nighthorse Campbell: We are writing on behalf
of COPIRG's members, and on behalf of all residents of
Colorado to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights of
victims of dangerous and defective products. As you know,
COPIRG is a statewide, non-profit, nonpartisan consumer and
environmental advocacy group that has fought to protect the
rights of consumers for many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Richard McClintock,
Executive Director.
____
Connecticut Public Interest
Research Group,
Hartford, CT, April 24, 1995.
Re Protect Victims of Dangerous Products--Oppose Cloture and
Vote ``No'' on S. 565
Hon. Chris Dodd,
U.S. Senate
Washington, DC.
Dear Senator Dodd: We are writing on behalf of ConnPIRG's
members, and on behalf of all residents of Connecticut to
urge your strong opposition to proposed legislation, S. 565,
that would eviscerate the rights of victims of dangerous and
defective products. As you know, ConnPIRG is a statewide;
non-profit, nonpartisan consumer and environmental advocacy
group that has fought to protect the rights of consumers for
many years.
[[Page S6379]] Each year, more than 28 million Americans
are injured by consumer products and 21,000 are killed. Why
should this Senate pass legislation that limits the legal
rights of victims at the same time as it is cutting back
funding for the federal agencies that are supposed to protect
consumers from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its cap on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
James Amspacher,
Organizing Director.
____
Connecticut Citizen
Action Group,
West Hartford, CT.
Senator Christopher Dodd,
Senate Office Building,
Washington, DC
Dear Senator Dodd: On behalf of the Connecticut Citizen
Action Group, I'm asking you to oppose Senate Bill 565 and to
vote against cloture. S. 565, called the ``Product Liability
Fairness Act'' does nothing to protect consumers. Instead, it
lets corporate wrongdoers off the hook when they produce
products that injure consumers.
First, this bill sets arbitrary caps on punitive damages of
$250,000 or three times the out-of-pocket expenses. Ordinary
citizens serving on juries use these awards to punish and
deter outrageous and dangerous behavior by corporations.
Second, this bill makes it more difficult for victims with
less earning power--particularly seniors, women and
children--to recover the fair cost of their injuries.
Consumers and workers injured through no fault of their own,
but by the actions of more than one wrongdoer would have to
prove the degree of fault of each liable party. If any
wrongdoer were unable to pay its share, the injured consumer
would have to bear the cost.
Senator Dodd, these reforms are wrong-minded. They imperil
ordinary consumers and we ask that you work to defeat such
measures. Again, please vote against S. 565 and against
cloture.
Gregory Haddad,
Legislative Director.
____
Delaware Coalition for
Accountability and Justice,
April 24, 1995.
Hon. William Roth,
Hon. Joseph Biden,
U.S. Senate,
Washington, DC.
Dear Senators: We, the undersigned individuals and
organizations, urge you to oppose efforts to weaken America's
civil justice system. We urge you to vote against cloture on
S. 565, the product liability measure sponsored by Sens.
Gorton and Rockefeller, or any other legislation that would
weaken the rights of the citizens of Delaware.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages, and deterring
harmful behavior. By giving ``noneconomic'' damages second-
class treatment, the bill discriminates against populations
with less earning power, specifically women, children,
seniors and low- and middle-income workers. Under S. 565, the
U.S. would have a two-tiered system of justice where rich,
high-salaried workers would be accorded better treatment and
higher damage awards than the rest of us. Finally, by
establishing brand new federal rules for product liability
cases, S. 565 removes from state authority and oversight a
civil justice system that, despite the hyperbole of the big
business interests backing this legislation, has served
consumers and the residents of Delaware exceedingly well.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years. Moreover, S. 565 adds protections for manufacturers of
raw materials in medical devices and for rental car
companies, and reduces manufacturer liability for misuse or
alterations made to the product by anyone else--provisions
that were not in last year's bill.
Even if one reasonably believes that the measure introduced
by Sens. Gorton and Rockefeller is sound public policy (which
we do not), it must ultimately be reconciled with the extreme
revisions to the civil justice system recently adopted by the
House of Representatives. H.R. 959, in addition to the
provisions outlines above, enacts an arbitrary cap on pain
and suffering awards in medical malpractice and cases
involving drugs and medical devices, at the same time it
offers an automatic punitive damages shield for products that
have received FDA approval. In addition, the House measure
extends the cap on punitive damages to all civil lawsuits,
and establishes an arbitrary 15 year statute of repose for
product liability cases.
Passage of either of these measures, or a combination of
the two, would cause grievous harm to the people who have
elected you--and depend on you--to represent their interests
in Congress. We urge you to oppose any effort to weaken or
federalize product liability laws, and to vote ``no'' on
cloture on S. 565, on S. 565, and on any conference committee
reported-measure restricting the rights of consumers.
Sincerely,
Edward Cahill, State Director, Delaware AARP; Edward
Peterson, President, Delaware AFL-CIO; Deirdre
O'Connoll, Executive Director, Women and Wellness; Rick
Crawford, President, Building Trades Council of
Delaware; Debbie Heaton, President, Delaware Sierra
Club; Til Purnell, Executive Director, Save Wetlands
and Bays; Amos McCluney, Jr., President, Delaware
Council of Senior Citizens; May Northwood, President,
Delaware Federation of Women's Clubs;\1\ Maureen
Lauterbach, Women and Wellness and National Breast
Cancer Coalition;\1\ Don Cordell, President, United
Auto Workers Local 1183; Ann Rydgren, President,
Delaware Audubon Society.
\1\For identification purposes only. Endorsements are by the
individual, not the organization.
____
Consumer Fraud Watch,
Tallahassee, FL, April 19, 1995.
Senator Connie Mack,
U.S. Senate,
Washington, DC.
Dear Senator Mack: I want to express our strong opposition
to S. 565, the ``Product Liability Fairness Act of 1995''.
This bill would restrict the ability of injured consumers to
obtain full and fair compensation and for citizen juries to
impose adequate deterrents to prevent further injuries.
There are two major provisions of this legislation which
would have a negative effect on consumers and workers. First,
this bill would set arbitrary limits on punitive damage
awards of $250,000 or three times economic damages, reducing
the ability to deter corporations from inflicting harm on
others and threatening Americans' economic security and well-
being. At a time when Congress is talking about increasing
personal responsibility, it makes no sense to reduce the
responsibility of corporations guilty of manufacturing or
selling dangerous products.
Second, this bill would eliminate joint and several
liability for non-economic damages, making it difficult for
consumers to recover costs related to injuries such as the
loss of reproductive capacity, loss of sight, or
disfigurement. Those injuries deserve to be compensated and
should not be treated as less important than THE loss of high
salaries or investment income. For similar reasons as those
described, CFA also urges you to oppose S. 454, ``The Health
Care Liability and Quality Assurance Act'' which would
severely affect the rights of injured patients.
I urge you to act to prevent passage of this legislation,
which would greatly restrict the ability of injured consumers
to be compensated fully and for juries to act to prevent
further wrongdoing.
Sincerely,
Walter T. Dartland,
Executive Director.
____
Florida Consumer Action Network,
Tallahassee, FL, April 24, 1995.
Senator Bob Graham,
Hart Senate Office Building,
Washington, DC.
Dear Senator Graham: The Florida Consumer Action Network
(FCAN) is requesting that you vote ``NO'' on Senate Bill 565,
the Product Liability Bill. Additionally, we are asking you
to vote against cloture. If this bill passes, it will have a
devastating effect on the more than 40,000 families that are
members of FCAN and on all Florida consumers.
By capping punitive damages at $250,000 or three times the
economic loss (whichever is greater) the legislation removes
the punitive impact from punitive sanctions, rendering them
meaningless as punishment in most cases. It will be cheaper
for many corporations to pay such damages rather than rectify
their faulty products.
Eliminating joint and several liability for non-economic
damages saddles the victim for the costs of damages incurred
by the wrongdoing parties. It is unjust and particularly
discriminatory for women, children and senior citizens.
Obviously this bill is not in the best interest of
Florida's consumers. We again ask for
[[Page S6380]] your vote against S. 565 and against cloture
in the upcoming debate.
Sincerely,
Monte E. Belote,
Executive Director.
____
Florida PIRG,
Florida Public Interest Research Group,
Tallahassee, FL, April 24, 1995.
Re Protect Victims of Dangerous Products, Oppose Cloture and
Vote No on S. 565.
Hon. Bob Graham,
U.S. Senate,
Washington, DC.
Dear Senator Graham: We are writing on behalf of Florida
PIRG's members, and on behalf of all residents of Florida to
urge your strong opposition to proposed legislation, S. 565,
that would eviscerate the rights of victims of dangerous and
defective products. As you know, Florida PIRG is a statewide,
non-profit, nonpartisan consumer and environmental advocacy
group that has fought to protect the rights of consumers for
many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Ann Whitfield,
Executive Director.
____
Citizen Action,
Atlanta, GA, April 18, 1995.
Hon. Paul Coverdell,
Russell Senate Office Building,
Washington, DC.
Dear Senator Coverdell: On behalf of the 40,000 members of
Georgia Citizen Action, I am writing to express our
opposition to S. 565 and to urge you to vote against cloture.
S. 565, the Product Liability Fairness Act of 1995, is
anything but fair to consumers. In fact, it will effectively
leave citizens unprotected against the manufacture and sale
of hazardous or defective products. Capping punitive damages
at $250,000 or three times economic loss defeats the purpose
of punitive damages, which is to punish for a wrongdoing.
Multi-million dollar corporations will consider these caps
merely the cost of doing business, rather than a punishment
for injuring unsuspecting consumers, and consequently,
punitive damages will no longer serve as a deterrent to
irresponsible and unscrupulous companies who would
manufacture or sell harmful products.
Additionally, the provisions to eliminate joint and several
liability for non-economic damages discriminates against
women, children, and senior citizens as they are less likely
to recover high economic damages (i.e. lost wages). Joint and
several liability ensures that the parties at fault pay, not
the victim, and by eliminating this, those victims who suffer
loss of reproductive capacity, disfigurement, or loss of
sight, for example, could be further wronged by not being
able to recover the full amount of their awarded damages.
For these reasons, Georgia Citizen Action strongly urges
you to oppose S. 565 and to vote against cloture. Please
inform us of your actions regarding this bill.
Sincerely,
Lori Glidewell,
Director.
____
Citizen Advocacy Center,
Elmhurst, IL, April 20, 1995.
Hon. Carol Moseley-Braun,
U.S. Senate,
Washington, DC.
Dear Senator Moseley-Braun: The Citizen Advocacy Center, a
non-partisan, not-for-profit organization in DuPage County,
is dedicated to building democracy for the 21st century. We
promote good citizenship, participation in civic affairs,
access to justice, and accountability of local governments to
the citizens of the western suburbs of Chicago. We are
writing to urge you to vote ``no'' both on the upcoming
cloture vote of S. 565, and the vote on the merits. We oppose
any legislation that makes access to justice more difficult
for individual citizens.
As you know Senator Braun, the large crossover vote in the
western suburbs of Chicago, particularly the crossover vote
of women, helped to elect you to represent our interests in
the United States Senate. We expect you to make access to
justice easier, not more difficult, for consumers viciously
injured by defective products. The provisions of S. 565 are
an undisguised attempt to take control and common sense away
from Illinois citizens in the jury box and to replace it with
Washington-dictated arbitrariness designed to protect and
payback the business interests that have paid so handsomely
for this legislation. In particular, we find the provisions
of S. 565 do great damage to women--and as one of the few
women Senators, we frankly expect you to take a good hard
look at how the specific provisions of this bill will prevent
women with low economic damage awards from being adequately
compensated for lifelong injuries caused by corporate greed.
Moreover, after last Sunday's Chicago Tribune Magazine
cover story, it seems that you are burnishing your business
image after having recently secured a seat on the Finance
Committee. Nonetheless, Illinois voters remember that last
year you voted against a less damaging products liability
bill, and a flip-flop vote now will look like you are selling
out ordinary citizens and consumers to cozy up to business
interests. We are happy that you have won a seat on the
committee, but we expect you to use that seat to remain true
to the agenda that put you in the Senate in the first place.
Please do not sell out the citizens of Illinois.
Very truly yours,
Theresa Amato,
Executive Director,
Citizen Advocacy Center.
____
Chicago and Central States Joint Board, ACTWU,
Amalgamated Clothing and Textile Workers Union,
Chicago, IL, March 31, 1995.
Senator Carol Moseley-Braun,
U.S. Senate,
Washington, DC.
Dear Senator Moseley-Braun: On behalf of the members of our
union we urge you to vote against consideration of any
legislation that lessons the financial responsibility of
corporate polluters or manufacturers of dangerous products.
These, so called, efforts at ``tort reform'' are more aptly
known as the Wrongdoer Protection Act.
Furthermore, these attempts at reform are plainly anti-
workers and anti-consumer.
Your opposition to the more onerous parts of these tort
reforms proposals is not enough. Your leadership is needed to
stop passage of any restrictions limiting the access of
consumers and workers to the courts.
Your leadership against these tort restrictions can send a
positive signal that you stand on the side of workers and
consumers.
Sincerely,
James K. Tribble,
International Vice President.
Ronald Willis,
Manager, ACTWU, Chicago and Central States Joint Board.
____
Public Action,
Chicago, IL, April 24, 1995.
Senator Carol Moseley-Braun,
U.S. Senate,
Washington, DC.
Dear Senator Moseley-Braun: Illinois Public Action is
requesting that you vote ``NO'' on Senate Bill 565.
Additionally we are asking you to vote against cloture. If
this bill passes, it will have a devastating effect on the
215,000 families that are members of Public Action and on all
Illinois consumers.
By capping punitive damages at $250,000 or three times the
economic loss (which ever is greater), the legislation
removes the punitive impact from punitive sanctions,
rendering them meaningless as punishment in most cases. It
will be cheaper for many corporations to pay such damages
than rectify their faulty products.
Eliminating joint and several liability for non-economic
damages saddles the victim for the costs of the damages
incurred by the wrongdoing parties. It is unjust and
particularly discriminatory for women, children and senior
citizens.
Obviously this bill is not in the best interest of the
Illinois public. We again ask for your vote against the bill
and against cloture in the coming debate.
Sincerely,
Robert B. Creamer,
Executive Director.
____
Illinois PIRG, Illinois Public
Interest Research Group,
Chicago, IL, April 24, 1995.
Re: Protect Victims of Dangerous Products, Oppose Cloture and
Vote No on S. 565.
Hon. Carol Moseley-Braun,
U.S. Senate,
Wshington, DC.
Dear Senator Moseley-Braun: We are writing on behalf of
Illinois PIRG's members, and on behalf of all residents of
Illinois to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights of
victims of dangerous and defective products. As you know,
Illinois PIRG is a statewide, non-profit, nonpartisan
consumer and environmental advocacy group that has
[[Page S6381]] fought to protect the rights of consumers for
many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Diane Brown,
Executive Director.
____
Iowa Citizen
Action Network,
Des Moines, IA, April 14, 1995.
Hon. Tom Harkin,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Harkin: We are writing to communicate ICAN's
views about the so-called Products Liability ``Fairness''
Act--S. 565. It is our understanding that S. 565 is set for
two weeks of debate on the Senate floor, beginning on or
about April 24.
We are pleased that you have indicated that, as in the
past, you will lead the fight against this legislation. We
heartily commend your determination to use all means
available to keep the bill from coming to a vote on final
passage.
S. 565 is a bill that would produce extremely detrimental
consequences for citizens, workers, and consumers. There are
a number of objectionable provisions in the legislation, but
for the purposes of this letter we would like to focus on
provisions relating to joint and several liability and
punitive damages.
As you know, S. 565 eliminates joint and several liability
for non-economic damages. This clearly discriminates against
women, children, senior citizens, persons with disabilities,
the poor, and low-wage workers, who more often receive the
bulk of compensation for their injuries due to sustained non-
economic losses, such as loss of reproductive capacity, loss
of vision, disfigurement, etc. S. 565 treats these first rate
members of society as second class citizens.
Under current Iowa law, in cases where more than one party
is found to have been at fault in causing a plaintiff's
injuries, a guilty party that caused more than 50% of the
harm can be held jointly and severally liable for damages. S.
565 would supersede Iowa law, making it more likely that
injured parties would be forced to forego amounts of
compensation for their non-economic losses when one or more
of the defendants are unable to pay. This Washington-Knows-
Best bill reshuffles the cards and stacks the deck against
plaintiffs in Iowa.
S. 565 also imposes an arbitrary and unreasonable cap on
punitive damages that would undermine the important deterrent
effect which these damages have on corporate wrongdoers. This
is unnecessary and rash in light of the fact that punitive
damages in product liability cases are rare but have made
Americans much safer.
The bill limits punitive damage judgments to the greater of
three times the amount of economic losses or $250,000. Once
again, this provision is a slap in the face to women,
children, senior citizens, persons with disabilities, the
poor, and low-wage workers. And the provision sends a warped
message to corporate wrongdoers: If you injure a woman, a
child, an elderly grandparent, a disabled person, or a
minimum wage worker, you are likely to be punished less than
if you injure a corporate CEO. The consequences of such a
legal policy would be lethal to many average Americans.
In addition, S. 565 imposes an unreasonable standard of
``conscious flagrant indifference to safety'' for assessment
of punitive damages. A defendant whose conduct was merely
``reckless'' or ``wanton'' would escape punitive damages. If
the superheightened punitive damage standards in S. 565 had
applied to the Exxon-Valdez case, Exxon would probably not
have paid a dime in punitive damages since the punitive
damages were awarded for ``reckless'' conduct. Moreover,
proving a corporate defendant's ``state of mind'' would be
next to impossible in most product liability cases.
S. 565 is imprudent and unwarranted legislation. Product
liability tort filings make up an extremely small percentage
of all civil filings and the number of product liability
filings has been steadily declining. We are mobilizing
concerned citizens in Iowa to oppose this bogus bill.
We are grateful for your leadership in opposing this
legislation. Please let us know whether and how we can
provide any information or assistance to support your
efforts.
Your commitment to civil justice for all Americans is
greatly appreciated.
Respectfully,
Steve Siegel/bl
President.
Brad Lint,
Executive Director.
____
UAW Sub-Regional Office
Region 4,
Des Moines, IA, April 20, 1995.
Hon. Tom Harkin,
U.S. Senate,
Washington, DC.
Dear Senator Harkin: On behalf of the UAW men and women who
live, work, and vote in Iowa, I am writing to express our
opposition to S. 565--the so-called Products Liability
``Fairness'' Act. This legislation is grossly unfair and one-
sided.
S. 565 would, without a doubt, take away the right of
workers to hold large corporations fully accountable for the
injuries they cause when they manufacture and sell defective
products--including dangerous workplace machinery. Employers
claims, however, appear to be unaffected by the law--only
workers would lose their right to be heard.
S. 565 sets up a series of hurdles and obstacles to the
ability of injured workers and consumers to recover from the
manufacturers of defective products. In fact, under the
bill's statute of repose, workers injured by defective
machinery more than twenty years old could not recover at
all, but businesses apparently could recover all their
losses--including lost profits.
S. 565 would also cap punitive damages far below the point
of effectiveness. If the bill becomes law it would be much
more difficult for ordinary Iowans to punish and deter
corporate misbehavior, even when they are maimed or killed by
the recklessness or negligence of a corporation.
In summary, S. 565 is unfair to workers and consumers. The
UAW is delighted that you will be voting against cloture
during debate and, if needed, against the bill on final
passage.
Thank you for your firm commitment to civil justice for
workers and consumers.
Respectfully,
Chuck Gifford,
President.
____
Iowa State Council
of Senior Citizens,
Waterloo, IA, April 20, 1995.
Hon. Tom Harkin,
Hart Senate Office Building,
Washington, DC.
Dear Senator Harkin: I am writing to express our concern
about S. 565--the so-called Products Liability ``Fairness''
Act. The Iowa State Council of Senior Citizens believes the
bill to be unfair to senior citizens and we are grateful for
your announced opposition to it.
It is my understanding that S. 565 eliminates joint and
several liability for non-economic losses. Senior citizens do
not generally incur substantial economic losses when they are
injured by defective products. They tend to receive
compensation for non-economic losses resulting from
disfigurement, loss of vision, pain and suffering, etc.
Under S. 565 when multiple parties are found to have caused
the harm to an injured consumer the amount of compensation
for non-economic losses would, without exception, be reduced
when one or more of the at-fault parties is unable to pay.
This situation would be worse than current Iowa law where
injured consumers can at least recover non-economic damages
jointly and severally whenever one of the parties at fault is
more than 50% responsible for the harm caused to the injured
consumer.
It is also my understanding that S. 565 limits punitive
damages in product liability cases to the greater of three
times the amount of economic losses or $250,000. This
provision also discriminates against senior citizens. Again,
since seniors do not usually have large economic losses,
corporate wrongdoers who injure a senior are likely--if their
misconduct was bad enough to warrant punitive damages--to be
punished less than if they injure a corporate executive who
has large earnings. Is this wise legal policy?
The Iowa State Council of Senior Citizens believes that,
taken together, these two discriminatory provisions could
lead to less safe medical devices and consumer products
primarily manufactured for use by senior citizens. Women,
children, disabled persons, and low-wage workers are also
likely to be adversely affected by these ill-conceived
provisions.
S. 565 could have a devastating effect on the economic
security and safety of older Iowans. The Iowa State Council
Citizens is glad you will oppose S. 565 during the coming
Senate debate by voting against cloture and, if necessary,
against the bill.
Thank you for your considerate attention to our point of
view. Please let us know if we can be of any further
assistance.
Respectfully,
Frank Alexander,
President.
____
[[Page S6382]]
Citizen Action,
Louisville, KY, March 14, 1995.
Hon. Mitch McConnell,
U.S. Senate, Senate Russell Office Building, Washington, DC.
Dear Senator McConnell: On behalf of Kentucky Citizen
Action, I would like to express our strong opposition to the
so-called ``Product Liability Fairness Act'', S. 565. I urge
you to vote against efforts to pass this legislation, as it
is anything but fair to your constituents or to any
individual American citizen.
While the proponents of this bill have attempted to cast a
``moderate'' light on the legislation, painting it as more
fair and equitable than proposed legal reforms which came
before it, our careful study from the consumer's perspective
has revealed that it is neither fair nor equitable to real
Americans. Areas of particular concern include:
Punitive damage caps of $250,000 or three times the
economic loss. Imposing such caps completely undermines the
important deterrent effect which these damages have on
corporate wrongdoing. While punitive damages are rarely used,
the very threat that their existence presents has proven to
be critical in persuading manufacturers to improve the safety
of their products or in actually removing unsafe products
from the marketplace. If you undermine this system, American
consumers truly will be at the mercy of big business.
Elimination of joint and several liability for non-economic
damages. This provision discriminates against the most
vulnerable members of our society--women, children, seniors,
the poor--whose form of compensation would most likely be in
the form of non-economic damages. This legislation says that
only the wealthy should be empowered to hold wrongdoers
accountable for their egregious behavior. These damages also
cover a great deal more than just pain and suffering, as is
often thought. They also cover loss of reproductive capacity,
loss of sight, and disfigurement. Is it fair to punish
individuals who have suffered these tragedies?
S. 565 is not fair, although its name attempts to imply
otherwise. It is not fair to the workers, to women, to
children, to the real people of this country. It is a one-
sided, unjustified and cynical attempt to provide a subsidy
to big business at the expense of the American consumer.
We understand that S. 565 will be brought to the floor on
Monday, April 25 and a vote on cloture could come within a
few days of this. We urge you to cast your vote on behalf of
your constituents and all American citizens and oppose S. 565
by voting ``No'' on cloture.
Sincerely,
Lori Everhart,
State Director.
____
Citizen Action,
Baton Rouge, LA, April 14, 1995.
Hon. John Breaux,
U.S. Senate,
Washington, DC.
Dear Senator Breaux: On behalf of our members, your
constituents, Louisiana Citizen Action once again asks that
you vote ``No'' on S. 565 and ``No'' on cloture. We strongly
believe that it is your responsibility to hold negligent
businesses accountable to the public.
By setting caps on punitive damages, S. 565 would send a
clear message that corporations do not really have to worry
about liability for dangerous products and practices.
Punitive damages, after all, were meant to be deterrents to
corporate misconduct.
This law, which favors the financial interests of big
business over protecting the public, is especially
threatening to the most vulnerable--women, children, and
seniors. Elimination of joint and several liability for non-
economic damages deeply undervalues the impact of injuries
upon these citizens.
Please take a firm stand to support fairness and
responsibility in our judicial system. We will be happy to
inform our members when you vote no to S. 565 and no to
cloture. Thank you for your consideration on this issue.
Sincerely,
Paula Henderson,
State Director.
____
Maine People's Alliance.
April 21, 1995.
Senator Olympia Snowe,
Russell Senate Office Building,
Washington, DC.
Dear Senator Snowe: As you know, debate will begin next
week on the Rockefeller-Gorton Bill (S. 565). We wanted to
write you in hopes that with your concern for the citizens of
Maine--particularly women, children and other economically
underprivileged--you will join with us in opposition to that
bill. The Contract With America effort is bulldozing ahead
with legal reforms that only benefit the manufacturers of
defective products.
The bill's supporters claim it is designed to reduce the
``explosion'' of product liability lawsuits, but there is no
evidence suggesting that such a problem exists. In fact,
close study of 30 years of case law in Maine reveals that
punitive damages have been awarded in only three cases. At
$250,000, companies will not be deterred and will simply
write the cost of a punitive damage award into the cost of
doing business.
An especially worrisome provision of this bill will be the
elimination of joint and several liability for non-economic
damages. Since women, seniors, and children are more likely
to suffer non-economic injuries than high economic injuries
(e.g. lost wages), the elimination of joint and several
liability discriminates against them. This provision
basically states that corporations which manufacture child
car seats or children's pajamas can be less careful than
manufacturers of golf carts.
As you know, our organization has differed with you on some
issues in the past, however we know that you will join with
us in opposing this tort reform effort. The notion of Federal
Legislation that would preempt the ability of states like
Maine to hold wrong doers accountable and deter their future
wrongdoing is unacceptable. As you know our organization has
had differences with you in the past, but we hope that you
will join us in standing against the bill. All Mainers,
especially those without the largest salaries (especially
women and children) deserve access to a fair and supportive
legal system.
Sincerely,
Joe Ditre,
Executive Director.
____
Citizen Action,
Bethesda, MD, April 17, 1995.
Hon. Barbara Mikulski,
Hart Building,
Washington, DC.
Dear Senator Mikulski: On behalf of Maryland Citizen Action
and our 50,000 members I am writing to urge you to oppose
``The Product Liability Fairness Act'' (S. 565). Please vote
pro-consumer and against cloture when this bill comes up in
the Senate. If enacted the most vulnerable citizens in our
state would be further disadvantaged and the rights of
consumers to hold irresponsible manufacturers accountable for
their wrongful behavior would be severely limited.
As a champion of women's health, working people and
children, I am sure you know that these groups are
disproportionately affected by faulty products--breast
implants, asbestos, and flammable pajamas to name just a few.
S. 565 limits the ability of these people to collect fair
compensation for their injuries or losses because it would
eliminate joint and several liability for non-economic
damages. Under current law, a plaintiff is paid only once,
and the cost is covered by the wrongdoers who contributed to
the victim's loss. Under S. 565, non-economic damages, such
as a women's loss of fertility or a worker's loss of a limb,
would not be fully compensated if one of the wrongdoers is
unavailable or insolvent. The victim would be forced to carry
the burden.
S. 565 also imposes a cap on punitive damages ($250,000 or
3 times economic damages) which undermines the important
deterrent effect that these damages have on corporate
wrongdoers. Under our current system punitive damages are
often the only means available to deter irresponsible
behavior such as that exhibited by Dow Corning when it
knowingly sold hundreds of thousands of faulty and dangerous
breast implants to women. Under S. 565, large corporations,
such as Dow Corning, may find it more cost effective to
continue their harmful behavior and risk paying punitive
damages.
Please stand up for consumers in Maryland by opposing S.
565 and voting against cloture. We are counting on your
admirable leadership and your great fighting spirit to halt
the current attack on average consumers, women, families and
children.
Please let me know how you intend to vote.
Sincerely,
Shelli Craver,
Director, Maryland Citizen Action.
____
Maryland State Teachers
Association--NEA,
Baltimore, MD, March 29, 1995.
Hon. Paul S. Sarbanes,
U.S. Senate, Senate Office Building, Washington, DC.
Dear Senator Sarbanes: The Maryland State Teachers
Association has very strong reservations about the so-called
``Common Sense Legal Reforms Act,'' which the Senate appears
to be rushing forward without full debate or careful
analysis. We urge you to vote against this bill as anti-
consumer legislation.
We see this bill as restricting the ability of injured
consumers and workers to obtain full and fair compensation
for such injuries. While all of us have a stake in making
sure that frivolous law suits become less common than they
appear to be, we also all have a stake in making sure that
individuals maintain rights to protest and recover damages
from product manufactures which have been shown to be
dangerous.
Therefore, I urge your opposition to this and similar
legislation.
Yours truly,
Karl K. Pence,
President.
____
Maryland Public Interest
Research Group,
Baltimore, MD, April 24, 1995.
Protect Victims of Dangerous Products--Oppose Cloture and Vote ``No''
on S. 565
Hon. Barbara Mikulski,
U.S. Senate,
Washington, DC.
Dear Senator Mikulski: We are writing on behalf of
MaryPIRG's members, and on behalf of all residents of
Maryland to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights
[[Page S6383]] of victims of dangerous and defective
products. As you know, MaryPIRG is a statewide, non-profit,
nonpartisan consumer and environmental advocacy group that
has fought to protect the rights of consumers for many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Daniel Pontious,
Executive Director.
____
April 24, 1995.
Hon. Barbara A. Mikulski,
Hon. Paul S. Sarbanes,
U.S. Senate,
Washington, DC.
Dear Senators: We, the undersigned organizations, urge you
to oppose efforts to weaken America's civil justice system.
We urge you to vote against cloture on S. 565, the product
liability measure sponsored by Sens. Gorton and Rockefeller,
or any other legislation that would weaken the rights of the
citizens of Maryland.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages and deterring
harmful behavior. By giving ``non-economic'' damages second-
class treatment, the bill discriminates against populations
with less earning power, specifically women, children,
seniors and low- and middle-income workers. Under S. 565, the
U.S. would have a two-tiered system of justice where rich,
high-salaried workers would be accorded better treatment and
higher damage awards than the rest of us. Finally, by
establishing brand new federal rules for product liability
cases, S. 565 removes from state authority and oversight a
civil justice system that, despite the hyperbole of the big
business interests backing this legislation, has served
consumers and the residents of Maryland exceedingly well.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen, or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years. Moreover, S. 565 adds protections for manufacturers of
raw materials in medical devices and for rental car
companies, and reduces manufacturer liability for misuses or
alterations made to the product by anyone else--provisions
that were not in last year's bill.
Even if one reasonably believes that the measure introduced
by Sens. Gorton and Rockefeller is sound public policy (which
we do not), it must ultimately be reconciled with the extreme
revisions to the civil justice system recently adopted by the
House of Representatives. H.R. 956, in addition to the
provisions outlined above, enacts an arbitrary cap on pain
and suffering awards in medical malpractice and cases
involving drugs and medical devices, at the same time it
offers an automatic punitive damages shield for products that
have received FDA approval. In addition, the House measure
extends the cap on punitive damages to all civil lawsuits,
and establishes an arbitrary 15 year statute of repose for
product liability cases.
Passage of either of these measures, or a combination of
the two, would cause grievous harm to the people who have
elected you--and depend on you--to represent their interests
in Congress. We urge you to oppose any effort to weaken or
federalize product liability laws, and to vote ``no'' on
cloture on S. 565, on S. 565, and on any conference committee
reported-measure restricting the rights of consumers.
Sincerely,
Jennifer L. Marshall, Coalition for Accountability and
Justice; Anne D. LoPiano, Law Foundation of Prince
George's County, MD Inc.; Nancy Davis, Maryland Sierra
Club; Ken Reichard, United Food and Commercial Workers,
Local 400; Cynthia K. Bailey, LCSWC, Sexual Assault/
Domestic Violence Center, Inc.; Dru Schmidt-Perkins,
Clean Water Action; Dr. Leonardo Ortega, Health
Education Resource Organization--HERO; Michele Douglas,
Planned Parenthood of Maryland, Inc.; Dan Pontious,
Maryland PIRG; Bob Turner, Teamsters Joint Council No.
62; Paul Safchuck, White Lung Association & National
Asbestos Victims; Woody McNemar, International
Brotherhood of Electrical Workers, Local 24; Kathleen
Cahill, Maryland Employment Lawyers Association;
Margaret Morgan-Hubbard, Environmental Action
Foundation.
____
Jobs With Justice,
Combridge, MA, April 21, 1995.
Senator Edward Kennedy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Kennedy: We, the undersigned supporters of
Jobs With Justice, a workers' rights coalition, are extremely
concerned about the negative effects on the rights of workers
and consumers which will result from proposals before the
Senate to change the civil justice system. We urge you to
oppose these proposals, particularly the ``Product Liability
Fairness Act,'' (S. 565) cosponsored by Senators Rockefeller
and Gorton, and to oppose cloture, for the following reasons:
Elimination of Joint and Several Liability for Non-Economic
Damages--The Rockefeller/Gorton bill would shift costs from
parties that caused injuries to injured workers and
consumers. By eliminating joint and several liability for
non-economic damages, injured workers and consumers whose
compensation includes losses related to lifelong excruciating
pain, loss of fertility, loss of mobility, and disfigurement
may be left to bear the cost of those injuries. Joint and
several liability requires that those judged responsible for
an injury be responsible for paying the costs of that injury.
Elimination of it for non-economic damages unfairly hurts
workers and consumers, especially those who don't earn high
incomes or are older since their damages often are mostly
non-economic.
Caps On Punitive Damages--Rockefeller/Gorton would limit
punitive damages to $250,000 or three times economic damages,
whichever is greater, and would make it much harder to impose
them. Punitive damages, though rarely awarded, are a powerful
tool in preventing repetition of preventable injuries.
Limiting them would lessen the motivation of corporations to
make safe products. As a result, more workers and consumers
will be injured.
Statute of Repose--This would make it impossible for a
worker injured by defective machinery and equipment to
receive compensation from the manufacturer if the machinery
and equipment had been on the market for twenty years.
For the above reasons, we urge you to protect workers and
consumers by opposing the Rockefeller/Gorton bill and similar
legislation and to oppose cloture.
Sincerely,
Juana Hernandez, Staff, Immigrant Workers Resource Ctr.;
Melanie Kasperian, Vice President, Mass Teachers
Association; Edward Kelly, Executive Director, Citizen
Action of Massachusetts; Miles Calvey, Business
Manager, I.B.E.W. Local 2222; Phil Mamber, President,
United Electrical Workers, District 2; John Williams,
Executive Director, Mass. Toxics Campaign; John Murphy,
Secretary Treasurer, Teamsters Local 122; Richard
Reardon, Business Agent, Teamsters Local 25; John
O'Connor, Executive Director, Jobs & Environment
Campaign; Rand Wilson, Director, Massachusetts Jobs
with Justice.
____
Citizen Action,
Cambridge, MA, April 20, 1995.
Senator John Kerry,
Russell Senate Office Building,
Washington, DC.
Dear Senator Kerry: On behalf of the members of Citizen
Action of Massachusetts, I strongly urge you to oppose S.
565, and similar product liability bills, and to vote against
cloture on them.
There is no ``litigation explosion.'' Defective products
cases represent less than one-hundredth of one percent of the
total caseload in state courts, according to the National
Center for State Courts. Since 1990, total state tort filings
have decreased. Nor have punitive damage awards been
widespread. Between 1965 and 1990, punitive damages were
awarded in less than 15 products liability cases each year,
one quarter of which involved asbestos.
S. 565, and similar bills make it more difficult for
consumers who obtain an award of damages caused by
irresponsible corporate behavior from actually collecting
those damages where more than one corporation is responsible
for their injuries. In addition S. 565 and similar bills seek
to drastically limit the ability of citizen juries to award
punitive damages: the kind of damages which deter the
production and marketing of unsafe products. At time of
decreasing regulatory oversight, the possibility of punitive
damages represents a vital pro-consumer bulwark against
unsafe and defective products. Punitive damages, because they
can be high,
[[Page S6384]] make corporations take notice and treat
product safety seriously.
S. 565 and similar bills are irresponsible and anti-
consumer. I strongly urge you to oppose them and to vote
against cloture.
Sincerely,
Edward F. Kelly,
Executive Director.
____
Massachusetts Public Interest Research Group,
Boston, MA, 24 April 1995.
Hon. John Kerry,
U.S. Senate,
Washington, DC.
Dear Senator Kerry: We are writing on behalf of MASSPIRG's
members, and on behalf of all residents of Massachusetts to
urge your strong opposition to proposed legislation, S. 565,
that would eviscerate the rights of victims of dangerous and
defective products. As you know, MASSPIRG is a statewide,
non-profit, nonpartisan consumer and environmental advocacy
group that has fought to protect the rights of consumers for
many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Deirdre Cummings,
Consumer Program Director.
____
Michigan Consumer Federation,
April 18, 1995.
Hon. Carl Levin,
U.S. Senator, Russell Senate Office Building, Washington, DC.
Dear Senator Levin: I appreciated meeting you at the
``Teddy Bear Clinic'' where you so ably pointed out the
threat to public safety posed by the Republican's
``regulatory moratorium.'' Your leadership for consumer
safety has always been appreciated.
We need your leadership in another consumer safety area--
products liability. With federal cutbacks in regulatory
programs, we look to the legal system as one of the few
effective means of improving product safety. Time and time
again, it has been private lawsuits--or the perceived threat
of lawsuits--which has forced corporations to either remove
defective products from the marketplace or improve them.
I know you are a fan of ``cost-benefit'' analyses. So are
manufacturers. In a well-known memo, Ford Motor Company
calculated that it would cost more to prevent Pintos from
exploding than it would pay out in legal expenses.
Consequently, many Pinto owners were incinerated. Why would
we want to cap the only means of making ``cost-benefit''
assessments favor consumer safety?
The Michigan Consumer Federation is a member of the
Consumer Federation of America. Annually, CFA bestows its
highest honor for consumer advocacy--the Philip A. Hart
award. We are proud that the nation's largest and most
respected consumer organization recognized a Michigan giant
and former United States Senator for its most prestigious
award. That places a great deal of responsibility for those
of us in Michigan.
S. 565 isn't about fairness. It's about corporations
wanting to ``get away with murder.'' Let's not tilt the
playing field in their favor. Vote for a strong system of
individual legal rights for victims of corporate wrongdoing.
It helps make products safer for all of us.
Sincerely,
Rick Gamber,
Executive Vice President.
____
Citizen Action,
East Lansing, MI, April 24, 1995.
Senator Spencer Abraham,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Abraham: On behalf of the 300,000 members of
Michigan Citizen Action, I want to express our strong
opposition to the so-called ``Product Liability Fairness
Act.'' I urge you to vote against efforts to move this anti-
consumer, anti-worker legislation.
There are three major provisions in S. 565 which have been
introduced in the Senate and which would have a negative
effect on consumers and workers. First, all bills set
arbitrary limits on punitive damage awards of $250,000 or
three times economic damages, reducing the ability to deter
corporations from inflicting harm on others and threatening
Americans' economic security and well-being. At a time when
Congress is talking about increasing personal responsibility,
it makes no sense to reduce the responsibility of
corporations guilty of manufacturing or selling dangerous
products.
Second, S. 565 eliminates joint and several liability for
non-economic damages, making it difficult for consumers to
recover costs related to injuries such as the loss of
reproductive capacity, loss of sight, or disfigurement. Those
injuries deserve to be compensated and should not be treated
as less important than the loss of high salaries or
investment income.
Third, S. 565 prevents workers and consumers--but not
businesses--from recovering for losses caused by defective
machines or products over 20 years old.
I urge you to act to prevent passage of this legislation
which would greatly restrict the ability of injured consumers
to be compensated fully and for juries to act to prevent
future wrongdoing. this bill is not in the best interest of
Michigan residents. Vote ``NO'' on cloture and ``NO'' on the
bill.
Yours Truly,
Linda A. Teeter,
Program Director.
____
Public Interest Research
Group in Michigan,
Ann Arbor, MI, April 25, 1995.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Dear Senator Levin. We are writing on behalf of PIRGIM's
members, and on behalf of all residents of Michigan to urge
your strong opposition to proposed legislation, S. 565, that
would eviscerate the rights of victims of dangerous and
defective products. As you know, PIRGIM is a statewide, non-
profit, nonpartisan consumer and environmental advocacy group
that has fought to protect the right of consumers for many
years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from the dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Timeen Wegmeyer,
Campaign Director.
____
Minnesota COACT,
St. Paul, MN, April 24, 1995.
Senator Paul Wellstone,
Hart Office Building,
Washington, DC.
Dear Senator Wellstone: On behalf of Minnesota COACT's
40,000 statewide members, I am writing to urge you to vote
``no'' on S. 565 and to vote against cloture. As a national
leader in the fight for health care reform, you probably
recognize that this legislation will seriously undermine the
ability of consumers to be protected from and compensated for
medical malpractice negligence.
By capping the punitive damages at $250,000 or three times
the economic loss (whichever is greater), S. 565 restricts a
person's ability to obtain full and fair compensation and
dramatically reduces the ability to deter future wrongdoing.
Furthermore, S. 565 eliminated joint and several liability
for punitive damages and non-economic loss but not for
economic damages. This distinction will aggravate the
disparity in awards between high-income earners and low-
income earners.
Medical malpractice causes 80,000 deaths and up to 300,000
serious injuries each year according to a recent Harvard
Medical Practice Study. For the health and safety of
consumers throughout Minnesota, please vote ``no'' on S. 565
and vote against cloture on the Senate floor.
Sincerely,
Jon Youngdahl,
Executive Director.
____
[[Page S6385]]
Missouri Citizen Action,
April 24, 1995.
Senator John Ashcroft,
Senate Office Building,
Washington, DC.
Dear Senator Ashcroft, Missouri Citizen Action strongly
urges you to vote ``no'' on Senate Bill 565. In addition, we
urge you to vote against cloture when the bill is debated on
the Senate floor. As Missouri's largest consumer coalition,
we can tell you that this bill could have a major negative
impact on the rights, and lives, of the tens of thousands of
Missouri consumers and families which we represent.
Caps on punitive damages, such as those in S.B. 565, gut
the ability of our civil justice system to threaten real
punishment of those whose negligence or greed may tempt them
to put a product on the market which could injure us or our
family members. Without the threat of real punitive damages,
these potential corporate wrongdoers will see damages awards
as just another predictable cost of doing business, to be
factored into the price of a defective product.
The elimination of joint and several liability for non-
economic damages will, likewise, have a negative effect on
average Missourians. This provision of S.B. 565 strikes
especially at women, children, and seniors.
Clearly this legislation is not in the interest of working
Missourians. It is merely an attempt to shield wrongdoers
from the consequences of their actions. In that you have
consistently voiced a strong opinion in favor of ``getting
tough'' on criminals who prey on our communities, we believe
that it would be inconsistent on your part to now vote to
protect those whose potential to harm innocent victims in the
pursuit of profit. Once again, we urge you to vote ``no'' on
S.B. 565, and to vote against cloture.
Sincerely,
Patrick Harvey,
Executive Director.
____
Citizen Action,
Lincoln, NE, March 28, 1995.
Senator Bob Kerrey,
Hart Office Building, Washington, DC.
Dear Senator: As director of Nebraska Citizen Action, with
over 8,000 active members, I want to express our strong
opposition to the so-called ``Common Sense Legal Reforms
Act.'' The Senate is rushing this bill forward without full
debate or time for careful analysis. I urge you to vote
against efforts to move this anti-consumer legislation
forward, including procedural moves to cut off debate.
This and similar bills pending in the Senate would restrict
the ability of injured consumers and workers to obtain full
and fair compensation and for citizen juries to impose
adequate deterrents to prevent future injuries.
There are two major provisions which are common to all the
bills which have been introduced in the Senate and which
would have a negative effect on consumers and workers. First,
all bills would set arbitrary limits on punitive damage
awards of $250,000 or three times economic damages, reducing
the ability to deter corporations from inflicting harm on
others and threatening Americans' economic security and well-
being. At a time when Congress is talking about increasing
personal responsibility, it makes no sense to reduce the
responsibility of corporations guilty of manufacturing or
selling dangerous products.
Second, all bills would eliminate joint and several
liability for non-economic damages, making it difficult for
consumers to recover costs related to injuries such as the
loss of reproductive capacity, loss of sight, or
disfigurement. Those injuries deserve to be compensated and
should not be treated as less important than the loss of high
salaries or investment income. It defies all principals of
fairness to base how we determine compensation for damages,
only on a persons yearly salary.
I urge you to act to prevent passage of this legislation,
which would greatly restrict the ability of injured consumers
to be compensated fully and for juries to act to prevent
future wrongdoing.
Sincerely,
Walt Bleich,
Director.
____
Coalition for Accountability & Justice,
April 24, 1995.
Hon. J. James Exon,
U.S. Senate,
Washington, DC.
Dear Senator Exon: We, the undersigned organizations, urge
you to oppose efforts to weaken America's civil justice
system. We urge you to vote against cloture on S. 565, the
product liability measure sponsored by Sens. Gorton and
Rockefeller, or any other legislation that would weaken the
rights of the citizens of Nebraska.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages and deterring
harmful behavior. By giving ``non-economic'' damages second-
class treatment, the bill discriminates against populations
with less earning power, specifically women, children,
seniors and low- and middle-income workers. Under S. 565, the
U.S. would have a two-tiered system of justice where rich,
high-salaried workers would be accorded better treatment and
higher damage awards than the rest of us. Finally, by
establishing new federal rules for product liability cases,
S. 565 removes from state authority and oversight a civil
justice system that has served consumers and the residents of
Nebraska exceedingly well. As you noted during our meeting,
your efforts at medical malpractice reform is but one
example.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen, or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years. Moreover, S. 565 adds protections for manufacturers of
raw materials in medical devices and for rental car
companies, and reduces manufacturer liability for misuses or
alterations made to the product by anyone else--provisions
that were not in last year's bill.
One must also keep in mind that S. 565 must ultimately be
reconciled with the extreme revisions to the civil justice
system recently adopted by the House of Representatives. H.R.
956, in addition to the provisions outlined above, enacts an
arbitrary cap on pain and suffering awards in automatic
punitive damages shield for products that have received FDA
approval. In addition, the House measure extends the cap on
punitive damages to all civil lawsuits, and establishes an
arbitrary 15 year statute of repose for product liability
cases.
Passage of either of these measures, or a combination of
the two, would cause grievous harm to the people who have
elected you--and depend on you--to represent their interests
in Congress. S. 565 does nothing to bring the rights and
remedies available to Nebraskans up to the proposed federal
standards, and yet it limits our ability to shape state law
in a way that would address the unique needs and concerns of
Nebraska citizens.
We urge you to oppose any effort to weaken or federalize
product liability laws, and to vote ``no'' on cloture on S.
565, on S. 565, and on any conference committee reported-
measure restricting the rights of consumers.
Sincerely,
John Hansen, President, Nebraska Farmers Union; Carol
McShane, Nebraska Women's Political Network; Jared
Teichmeier, President, United Rubber Workers of America
Local 286; Linda Burkey, Executive Director, Nebraska
Head Injury Association; Walt Bleich, Executive
Director, Nebraska Citizen Action; Cristina Sherman,
State Coordinator, National Organization for Women;
Marv Morrison, Secretary-Treasurer, Communications
Workers of America Local 7470; Marty Strange, Program
Director, Center for Rural Affairs.
____
New Hampshire Citizen Action,
Concord, NH, April 20, 1995.
Senator Judd Gregg,
Russell Senate Office Building,
Washington, DC.
Dear Senator Gregg: I am writing to express my concerns
about S. 565--the Rockefeller-Gorton bill. The expressed goal
of this bill is to reduce the supposed explosion of product
liability lawsuits. It does this by effectively limiting the
awards a plaintive could receive: capping punitive damages
and eliminating joint and several liability.
I have three problems with this bill. First, I do not think
that it will accomplish its goals. I am aware of no evidence
that capping awards will in fact reduce the number of suits
filed. Capping awards could in fact increase the total dollar
amount of liability awards if it removes the incentive for a
producer to correct a dangerous flaw in its product, such
that more injuries occur and more suits are filed.
Second, I was under the impression that the Republican
Party was a supporter of the rights of victims as opposed to
criminals. Punitive damages are one way of compensating
victims injured through criminal negligence. Protecting the
assets of the perpetrator is wrong.
Third is the issue of states' rights. You and your
Republican colleagues have gone on and on about returning
decision making power to the states. Yet in this bill, by
preempting state statutes, you would gather in to the federal
government powers that have belonged to the states for over
two hundred years. That, sir, is as big a flip-flop as Dick
Swett ever made!
I urge you not to support this bill, and not to support any
vote for cloture on debate of this bill. Thank you.
Sincerely,
Robert D. Yager, M.D.,
P.S.: I have been sued and lost a case involving punitive
damages. Despite that personal experience, I still think this
is a bad bill.
____
New Jersey Citizen Action,
Hackensack, NJ, April 18, 1995.
Hon. Bill Bradley,
Senate Office Building, Washington, DC.
Dear Senator Bradley: New Jersey Citizen Action in
requesting that you vote ``NO'' on Senate Bill 565.
Additionally we are asking you to vote against cloture. If
this bill is passed, it will have a devastating effect on the
115,000 families that are members of N.J.C.A.
[[Page S6386]] By capping punitive damages at $250,000 or
three times the economic loss (which ever is greater) the
legislation removes ``the punishment'' that is supposed to be
reflected in the damages. It becomes cheaper to pay the
damages than to rectify the situation.
Eliminating joint and several liability for non-economic
damages discriminates against women, children, and seniors.
Non-economic loss is much more than pain and suffering--it
could also be loss of reproductive capacity, loss of sight or
disfigurement.
Obviously this bill is not in the best interests of New
Jersey residents. Once again we ask you to vote ``NO'' on
Senate Bill 565 and vote against cloture.
Very truly yours,
Phyllis Salowe-Kaye,
Executive Director.
____
New Jersey Public Interest
Research Group,
Trenton, NJ, April 24, 1995.
Hon. Frank Lautenberg,
U.S. Senate, Washington, DC.
Dear Senator Lautenberg: We are writing on behalf of
NJPIRG's members, and on behalf of all residents of New
Jersey to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights of
victims of dangerous and defective products. As you know,
NJPIRG is a statewide, non-profit, nonpartisan consumer and
environmental advocacy group that has fought to protect the
rights of consumers for many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Andy Igrejas,
Consumer Advocate.
____
New Jersey Tenants Organization,
Hackensack, NJ, April 20, 1995.
Hon. Frank Lautenberg,
U.S. Senate, Washington, DC.
Dear Senator Lautenberg: The New Jersey Tenants
Organization (NJTO) opposes any changes in joint and several
liability and the imposition of punitive damage caps. This is
not reform; it is war on consumers.
Please oppose the tort reform legislation now before the
Senate and vote ``NO.''
Thank you for your anticipated stand in favor of the
consumers of the State of New Jersey.
Yours truly,
Bonnie Shapiro,
Administrative Director.
____
Citizen Action of New York,
Albany, NY, April 24, 1995.
Hon. Daniel Patrick Moynihan,
Russell Senate Office Building, Washington, DC.
Dear Senator Moynihan: We are writing to urge that you
protect victims of dangerous products by voting to be sure
that S. 565 never comes to the Senate floor and continuing to
oppose S. 565 and any other measures that would strip victims
of dangerous products, incompetent doctors or other negligent
parties of their fundamental rights to justice and fair
compensation.
Those who would vote for S. 565 forget the famous exploding
Pinto, a traveling bomb that Ford's bean counters let stay on
the road rather than spend a few dollars to fix the gas tank.
They would forget the damage to women from the Dalkon shield
and breast implants, products that the manufacturers knew
might cause harm. They would forget those children who were
horribly burned by flammable pajamas. And they would forget
the thousands of workers who were exposed to asbestos decades
after the manufacturers knew that the material caused cancer.
There are very few cases a year, 15, in which punitive
damages are awarded. But the threat of these damages is too
often the only barrier to more companies making the cold
calculation that making a safe product isn't worth the cost.
Artificial caps on punitive damages will result in a slap on
the wrist to negligent corporations and expose American
consumers to dangerous products.
The provision in S. 565 that would not allow workers or
consumers to sue over damages caused by older products, but
allows companies to sue, reveals the vicious anti-consumer
bias of this bill. If the bill were honestly concerned about
the legal system why would it allow businesses to sue but not
consumers or workers? The exemption for businesses shows that
the authors primary motive is to protect corporations from
being punished for the harm their negligence causes to
consumers and employees.
We also urge your opposition to changes in joint and
several liability. This provision only increases the
likelihood that a victim will not be fairly compensated for
the injuries and suffering caused by negligence. Those who
are the most vulnerable, women, children and the elderly,
will lose the most if joint and several liability is
eliminated.
Finally, we remain concerned that the Senate will consider
establishing a cap on pain and suffering in medical
malpractice cases. Such an action would be particularly
ironic coming just after well publicized incidents of medical
malpractice. The facts remain that, as the Office of
Technology Assessment found in a recent report, caps on
malpractice awards will have no impact on the nation's health
care costs but they will save money for doctors at the
expense of victims of gross malpractice.
We urge your continued vigilance on behalf of victims of
negligence by voting against cloture for S. 565 and working
vigorously to oppose any other measures that would gut the
civil justice system.
Sincerely,
Richard Kirsch,
Executive Director.
____
Empire State Consumer Association,
Rochester, NY, April 19, 1995.
Hon. Alfonse M. D'Amato,
Hart Building, U.S. Senate, Washington, DC.
Dear Senator D'Amato: I want to express our strong
opposition to S. 565, the ``Product Liability Fairness Act of
1995.'' This bill would restrict the ability of injured
consumers to obtain full and fair compensation and for
citizen juries to impose adequate deterrents to prevent
further injuries.
There are two major provisions of this legislation which
would have a negative effect on consumers and workers. First,
this bill would set arbitrary limits on punitive damage
awards of $250,000 or three times economic damages, reducing
the ability to deter corporations from inflicting harm on
others and threatening Americans' economic security and well-
being. At a time when Congress is talking about increasing
personal responsibility, it makes no sense to reduce the
responsibility of corporations guilty of manufacturing or
selling dangerous products.
Second, this bill would eliminate joint and several
liability for non-economic damages, making it difficult for
consumers to recover costs related to injuries such as the
loss of reproductive capacity, loss of sight, or
disfigurement. Those injuries deserve to be compensated and
should not be treated as less important than THE loss of high
salaries or investment income. For similar reasons as those
described, CFA also urges you to oppose S. 454, ``The Health
Care Liability and Quality Act'' which would severely affect
the rights of injured patients.
I urge you to act to prevent passage of this legislation,
which would greatly restrict the ability of injured consumers
to be compensated fully and for juries to act to prevent
further wrongdoing.
Sincerely yours,
Judy Braiman.
____
Citizen Action,
Raleigh, NC, March 14, 1995.
Hon. D.M. Lauch Faircloth,
U.S. Senate, Hart Office Building, Washington, DC.
Dear Senator Faircloth: On behalf of North Carolina Citizen
Action, I would like to express our strong opposition to the
so-called ``Product Liability Fairness Act'', S. 565. I urge
you to vote against efforts to pass this legislation, as it
is anything but fair to your constituents or to any
individual American citizen.
While the proponents of this bill have attempted to cast a
``moderate'' light on the legislation, painting it as more
fair and equitable than proposed legal reforms which came
before it, our careful study from the consumer's perspective
has revealed that it is neither fair nor equitable to real
Americans. Areas of particular concern include:
Punitive damage caps of $250,000 or three times the
economic loss. Imposing such caps completely undermines the
important deterrent effect which these damages have on
corporate wrongdoing. While punitive damages are rarely used,
the very threat of that their existence presents has proven
to be critical in persuading manufacturers to improve the
safety of their products or in actually removing unsafe
products from the marketplace. If you undermine this system,
American consumers truly will be at the mercy of big
business.
Elimination of joint and several liability for non-economic
damages. This provision discriminates against the most
vulnerable members of our society--women, children, seniors,
the poor--whose form of compensation would most likely be in
the form of non-economic damages. This legislation says that
only the wealthy should be empowered to hold wrongdoers
accountable for their
[[Page S6387]] egregious behavior. These damages also cover
a great deal more than just pain and suffering, as is often
thought. They also cover loss of reproductive capacity, loss
of sight, and disfigurement. Is it fair to punish individuals
who have suffered these tragedies?
S. 565 is not fair, although its name attempts to imply
otherwise. It is not fair to the workers, to women, to
children, to the real people of this country. It is a one-
sided, unjustified and cynical attempt to provide a subsidy
to big business at the expense of the American consumer.
We understand that S. 565 will be brought to the floor on
Monday, April 24 and a vote on cloture could come within a
few days of this. We urge you to cast your vote on behalf of
your constituents and all American citizens and oppose S. 565
by voting ``NO'' on cloture.
Sincerely,
Lori Everhart,
State Director.
____
Coalition for Accountability
and Justice,
April 4, 1995.
Hon. Kent Conrad,
Hon. Byron Dorgan,
U.S. Senate, Washington, DC.
Dear Senators: We, the undersigned organizations, urge you
to oppose efforts to weaken America's civil justice system,
and to vote ``no'' on S. 565, the product liability measure
sponsored by Sens. Gorton and Rockefeller.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages and deterring
harmful behavior. By limiting pain and suffering damages in
some cases, the bill will severely restrict awards to certain
groups--including seniors, women, and children--and favor the
rich who, in the case of death or serious injury, have high
lost wages, over the rights of low- and middle-income wage
earners. Finally, by establishing brand new federal rules for
product liability cases, S. 565 removes from state authority
and oversight a civil justice system that, despite the
hyperbole of the big business interests backing this
legislation, has served consumers and the residents of North
Dakota exceedingly well.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen, or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years.
Even if one reasonably believes that the measure introduced
by Sens. Gorton and Rockefeller is sound public policy (which
we do not), it must ultimately be reconciled with the extreme
revisions to the civil justice system recently adopted by the
House of Representatives. H.R. 956, in addition to the
provisions outlined above, enacts an arbitrary cap on pain
and suffering awards in medical malpractice and cases
involving drugs and medical devices, at the same time it
offers an automatic punitive damages shield for products that
have received FDA approval. In addition, the House measure
extends the cap on punitive damages to all civil lawsuits,
and establishes an arbitrary 15 year statute of repose for
product liability cases. Passage of either of these measures,
or a combination of the two, would cause grievous harm to the
people who have elected you--and depend on you--to represent
their interest in Congress. We urge you to oppose any effort
to weaken or federalize product liability laws, and to vote
``no'' on cloture on S. 565, and on any conference committee
reported-measure restricting the rights of consumers.
Sincerely,
Gerrard Friesz, North Dakota Public Employees
Association.
Pam Solwey, North Dakota DES Action.
Sherry Shadley, North Dakota Clean Water Action.
Chuck Stebbins, Dakota Center for Independent Living.
Pauline Nygaard, North Dakota Breast Implant Coalition.
Don Morrison, North Dakota Progressive Coalition.
Lani Weatherly, Laborers International Union, Local 580.
Jude M. Reilly, Boilermakers Local 647.
Gary L. Nelson, Ironworkers Local 793.
John Risch, United Transportation Union.
Dexter Perkins, Sierra Club, Agassiz Basin Group.
Gary McKenzie, Plumbers and Pipefitters Local 338.
Rev. Jack Seville, United Church of Christ (organization
for identification only).
Dean Cypher, Teamsters Local 116.
Al Thomas, Teamsters Local 123.
Norman Stuhlmiller, (former chairperson, Legislative
Committee, North Dakota AARP).
Logan Dockter, Plumbers and Pipefitters Local 795.
Jeff Husebye, Doug Swanson, Workers Against Inhumane
Treatment.
____
Citizen Action,
April 24, 1995.
Members of the U.S. Senate, Washington, DC:
Dear Senators: I am writing on behalf of Ohio Citizen
Action, Ohio's largest consumer and environmental
organization, to urge Members of the Senate to oppose S. 565
and to vote against cloture. There are a number of reasons
for our opposition to this bill, but we will briefly mention
only two.
First, the cap on punitive damages would unquestionably
undermine the potential for such assessments to truly punish
wrongdoers. While punitive damage assessments are rare in
product liability cases, they often are the only means for
citizens to stop the reckless behavior of a wrongdoer. With
the arbitrary cap, not only would future punitive damage
assessments not adequately punish the wrongdoer, but
companies could calculate whether it would be more cost-
effective to produce a safe product or risk punitive damages.
Second, the statute of repose would deny workers and
consumers their right to seek compensation if they are
injured by a product that is more than twenty years old. It
is, by no means, uncommon for workplace equipment to exceed
this limit. At the same time, however, businesses are exempt
from this restriction. The company can still sue for
commercial losses.
S. 565 would be a giant step backwards in a legal system
that now works reasonably well to protect average Americans.
We urge you to oppose S. 565 and to vote against cloture.
Thank you for your consideration.
Sincerely,
Shari Weir,
Consumer Issues Director.
____
Ohio Public Interest Research Group,
Columbus, OH, April 25, 1995.
Hon. Mike DeWine,
U.S. Senate, Washington, DC.
Dear Senator DeWine: We are writing on behalf of Ohio
PIRG's members, and on behalf of all residents of Ohio to
urge your strong opposition to proposed legislation, S. 565,
that would eviscerate the rights of victims of dangerous and
defective products. As you know, Ohio PIRG is a statewide,
non-profit, nonpartisan consumer and environmental advocacy
group that has fought to protect the rights of consumers for
many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Amy Simpson,
Campaign Director.
____
Oregon State Public Interest Research Group,
Portland, OR, April 25, 1995.
Hon. Mark Hatfield,
U.S. Senate, Washington, DC.
Dear Senator Hatfield: We are writing on behalf of OSPIRG's
members, and on behalf of all residents of Oregon to urge
your strong opposition to proposed legislation, S. 565, that
would eviscerate the rights of victims of dangerous and
defective products. As you know, OSPIRG is a statewide, non-
profit, nonpartisan consumer and environmental advocacy group
that has fought to protect the rights of consumers for many
years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. It caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
[[Page S6388]] These anti-consumer provisions of S. 565
make it unacceptable. Yet the Senate must also consider that,
if passed, S. 565 would have to be reconciled with the even
more egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Maureen Kirk,
Executive Director.
Victims Against Lethal Valves,
Pittsburg, PA, April 19, 1995.
Hon. Arlen Specter,
U.S. Senate, Washington, DC.
Dear Senator Specter: As founder and leader of V.A.L.V.
(Victims Against Lethal Valves) I am writing to you for all
implanted victims of the Bjorg/Shiley ConvexoConcave heart
valve to urge you to vote against bill S. 565.
We oppose this legislation as it definitely limits the
rights of consumers in our civil justice system. We believe
bill S. 565 is an anti-consumer legislative move that will
only enhance the rights of big business, i.e., manufacturers.
We believe that this bill will only encourage manufacturers
to have a stronger attitude of uncaring towards the products
they produce and place in the marketplace for the consumer.
Today, with workers' relaxed attitudes and work ethics it
would hardly be a feasible idea to give the manufacturers a
freer hand in the quality control of products. This is a time
when we need stronger controls over big business, not the
consumer. The consumer is being hurt enough as it is with the
dangerous quality of products that is being turned out to
them now.
Injuries that are the result of a manufacturer's flaw
should be compensated to the injured. When products are
marketed as being wonderful and safe in fancy, expensive
advertisements to draw in the consumer to purchase, the
manufacturer should be responsible for any consequence after
the sale of their product if it has been flawed from the
manufacturing process.
V.A.L.V. members throughout the state of Pennsylvania
strongly urge you to vote against bill S. 565 as well as
similar legislation and to vote against cloture.
We thank you for considering our fears.
Respectfully yours,
Elaine S. Levenson,
Founder.
____
Citizen Action/
Pennsylvania Chapter,
April 21, 1995.
Hon. Arlen Specter,
U.S. Senate, Washington, DC
Dear Senator Specter: On behalf of our 40,000 members in
Pennsylvania, we are writing to express our strong opposition
to S. 565, the so-called ``Product Liability Fairness Act''
sponsored by Senators Rockefeller and Gorton. We urge you to
oppose any effort to move this anti-consumer, anti-worker
legislation forward, including procedural moves to cut off
debate.
S. 565 would drastically limit the ability of injured
consumers and workers to obtain full and fair compensation,
and would restrict the ability of citizen juries to impose
adequate deterrents to prevent future injuries.
Specifically, S. 565 would place caps on punitive damage
awards of $250,000 or three times economic damages. Such
awards, while rare, are designed to punish corporations that
intentionally or recklessly disregard the safety of
consumers, and to deter other corporations from such
behavior. Placing arbitrary limits on punitive damages will
only serve to encourage such behavior, placing consumers at
greater risk.
S. 565 would also eliminate joint and several liability for
noneconomic damages, making it difficult for consumers to
recover costs related to injuries such as the loss of child-
bearing capacity, loss of sight or limb, or disfigurement.
This provision places a greater value on lost income, thereby
discriminating against women, children, and senior citizens.
Finally, this bill would prevent workers and consumers--but
not businesses--from recovering damages for losses caused by
defective machines or products that are more than 20 years
old.
We strongly urge you to protect the legal rights of
consumers and workers throughout Pennsylvania by voting
against passage of S. 565 and voting against cloture. Thank
you for your consideration.
Sincerely,
Lauren Townsend,
Philadelphia Area Director.
Jennifer O'Donnell,
Pittsburgh Area Director.
____
Pennsylvania Public Interest Research Group,
Philadelphia, PA, April 24, 1995.
Protect Victims of Dangerous Products--Oppose Cloture and
Vote No on S. 565.
Hon. Arlan Specter,
U.S. Senate, Washington, DC.
Dear Senator Specter: We are writing on behalf of
PennPIRG's members, and on behalf of all residents of
Pennsylvania to urge your strong opposition to proposed
legislation, S. 565, that would eviscerate the rights of
victims of dangerous and defective products. As you know,
PennPIRG is a statewide, non-profit, nonpartisan consumer and
environmental advocacy group that has fought to protect the
rights of consumers for many years.
Each year, more than 28 million Americans are injured by
consumer products and 21,000 are killed. Why should this
Senate pass legislation that limits the legal rights of
victims at the same time as it is cutting back funding for
the federal agencies that are supposed to protect consumers
from these dangerous products?
S. 565, the so-called Product Liability ``Fairness'' Act
is, in fact, manifestly unfair to consumers. We have numerous
problems with the bill. Its caps on punitive damages will
encourage faulty product design. Its limits on pain and
suffering damages unfairly and unjustly restrict awards to
women, children and senior citizens who are harmed. Its
preemption of numerous stronger state laws is unfair to all
consumers.
These anti-consumer provisions of S. 565 make it
unacceptable. Yet the Senate must also consider that, if
passed, S. 565 would have to be reconciled with the even more
egregious and extreme House-passed bill. H.R. 1075, in
addition to the measures above, arbitrarily caps pain and
suffering awards in medical malpractice cases and establishes
an automatic punitive damages shield for FDA-approved
products. Worse, the House cap on punitive damages extends to
all civil lawsuits, not only to product liability cases.
We urge you to vote against cloture on S. 565, against S.
565 and against any conference measure restricting the rights
of consumers. We look forward to hearing your views on this
important legislation. Please contact me if you or your staff
have any questions.
Sincerely,
Stephanie Haynes,
Campaign Director.
____
DES Action,
Nescopeck, PA, April 24, 1995.
Dear Senator Rick Santorum: On behalf of 480,000 DES
exposed in Pa. we deplore you to oppose S.B. 565.
We still deserve to have a trial by jury and also awarded
as they see fit. That means no PS!
Common Sense Legal Reform was written to protect major
corporations and forgetting the real victims. Such as 10
million DES exposed.
Our spouses deserve to receive compensation for * * *
several liability.
DES Action Pa. would urge you to prevent passage of any
legislation, which would greatly restrict the ability of
injured consumers to be compensated fully and * * * injured
to act to prevent further wrongdoing.
Sincerely,
Mary Jean Greco Golomb.
____
Pennsylvania AFL-CIO,
Harrisburg, PA, April 6, 1995.
Re S. 565--Product Liability.
Hon. Rich Santorum,
U.S. Senate, Dirkson Bldg.,
Washington, DC.
Dear Senator Santorum: We are writing to urge your strong
opposition to S. 565, reforms to the Product Liability Law.
S. 565 will have its most dramatic effect on working men and
women who are injured by defective machinery. It is our
understanding that 60% of the Product Liability claims arise
from workplace injuries.
First and foremost, we are concerned that weakening the
Product Liability Law will undermine safety in the workplace.
As a practical matter, it is the threat of a lawsuit that
encourages manufacturers to design and produce safe
machinery. OSHA, which could play some role, has been
ineffective in regulating in this area and is likely to
continue to be ineffective. We must look to the Product
Liability Law as the single most important force for safety
machinery in the workplace.
The specific changes proposed by S. 565 will not only
undermine safety, but unfairly deny injured workers
compensation for loss of body part or body function.
Several issues are of priority concern for Pennsylvania
workers:
(1) Twenty-year Statute of Repose:
The statute of repose would deny the right to file a claim
if a worker is injured by machinery more than 20 years old.
Pennsylvania, as you know, is a mature industrial state. Many
of our workers are working with machinery that is older than
20 years.
To cut off their rights by a fixed time limitation is
artificial and will deny those injured any remedy. The age of
the machine should be taken into account in determining the
defect, but the proposed change is inflexible and unfair.
Finally, it will create a market for used machinery rather
than encourage
new manufacturing of safer equipment.
(2) The overriding of both the Federal Employers' Liability
Act and the Longshoremen's and Harbor Workers Compensation
Act will hurt those covered by these laws in Pennsylvania--
specifically our Longshoremen and Railroad and Airline
workers.
(3) The elimination of joint and several liability could
end up leaving injured workers with no responsible party to
pay for a judgement and award.
[[Page S6389]] (4) The cap on punitive damages again is
arbitrary and will undermine the incentive to produce safe
machinery. The cap of $250,000 is artificially low and fails
to consider the reality that few punitive damages are awarded
under current Pennsylvania law.
The real purpose of punitive damages is to control
outrageous conduct on the part of manufacturers.
These are just some of our major concerns with S. 565.
We urge you to strongly oppose this legislation and vote in
support of encouraging the manufacture of safe products. Each
year, 150,000 Pennsylvanians experience serious workplace
injuries and close to 5,000 occupationally caused deaths
occur. Many of these injuries and diseases are caused by
defective products. S. 565 will only add to the pain and
suffering of those who go to work each day with an
expectation of returning home safe.
Thank you.
Sincerely,
William M. George,
President.
Richard W. Bloomingdale,
Secretary-Treasurer.
____
Coalition for Accountability
& Justice
April 24, 1995.
Hon. Larry Pressler,
Hon. Thomas Daschle,
U.S. Senate, Washington, DC.
Dear Senator: We, the undersigned organizations, urge you
to oppose efforts to weaken America's civil justice system.
We urge you to vote against cloture on S. 565, the product
liability measure sponsored by Sens. Gorton and Rockefeller,
or any other legislation that would weaken the rights of the
citizens of South Dakota.
By restricting the rights of victims of dangerous and
defective products, this measure undermines the role of the
civil justice system in redressing damages and deterring
harmful behavior. By giving ``non-economic'' damages second-
class treatment, the bill discriminates against populations
with less earning power, specifically women, children,
seniors and low- and middle-income workers. Under S. 565, the
U.S. would have a two-tiered system of justice where rich,
high-salaried workers would be accorded better treatment and
higher damage awards than the rest of us. Finally, by
establishing brand new federal rules for product liability
cases, S. 565 removes from state authority and oversight and
civil justice system that, despite the hyperbole of the big
business interests backing this legislation, has served
consumers and the residents of South Dakota exceedingly well.
S. 565 is far more restrictive than last year's Senate
product liability bill. First and foremost, the bill
establishes a cap on punitive damages of three times economic
loss, or $250,000, whichever is greater. Under this cap,
corporations will be punished more if they injure or kill a
corporate executive than if the same conduct harms a child, a
senior citizen, or a schoolteacher. How can this be fair? In
addition, the bill establishes a 20 year limit on lawsuits
for capital goods--in last year's bill, the limit was 25
years. Moreover, S. 565 adds protections for manufacturers of
raw materials in medical devices and for rental car
companies, and reduces manufacturer liability for misuses or
alterations made to the product by anyone else--provisions
that were not in last year's bill.
Even if one reasonably believes that the measure introduced
by Sens. Gorton and Rockfeller is sound public policy (which
we do not), it must ultimately be reconciled with the extreme
revisions to the civil justice system recently adopted by the
House of Representatives. H.R. 956, in
addition to the provisions outlined above, enacts an
arbitrary cap on pain and suffering awards in medical
malpractice and cases involving drugs and medical devices,
at the same time it offers an automatic punitive damages
shield for products that have received FDA approval. In
addition, the House measure extends the cap on punitive
damages to all civil lawsuits, and establishes an
arbitrary 15 year statute of repose for product liability
cases.
Passage of either of these measures, or a combination of
the two, would cause grievous harm to the people who have
elected you--and depend on you--to represent their interests
in Congress. We urge you to oppose any effort to weaken or
federalize product liability laws, and to vote ``no'' on
cloture on S. 565, on S. 565, and on any conference committee
reported-measure restricting the rights of consumers.
Sincerely,
Mike Coffey, AFSCME; Bob Burns, South Dakota State
University; Jeanne Koster, South Dakota Peace and
Justice Center; Jack E. Dudley, South Dakota AFL-CIO;
Roann Redlin, South Dakota Coalition Against Domestic
Violence; Phyllis Bitterman, United Paperworks
International Union; Karen Fogas, East River Group
Sierra Club; David Feller, IBEW, Local 426; Charon
Asetoyer, Native American Women's Health and Education
Center; Jim Larson, UFCW Local 304A; Roann Redlin,
South Dakota Advocacy Network; Sam Clauson, Black Hills
Group Sierra Club; Mary Kirkus, South Dakota DES
Action; Charon Asetoyer, Native American Women's
Reproductive Rights Coalition; Darrell Drapeau, Yankton
Sioux Tribe; Rick Davids, United Transportation Union.
____
Citizen Action,
Nashville, TN, April 20, 1995.
Hon. Fred Thompson,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Thompson: Greetings from Nashville. I am
director of Tennessee Citizen Action, a grassroots consumer
group with over 5,000 members across the state. I am writing
to express Citizen Action's strong concerns about S. 565, the
product liability bill to be considered next week on the
Senate floor.
It is our view that this legislation would have serious
implications for the health and safety of your constituents.
S. 565 would impose federal requirements, for the first time
in over two hundred years, on an area which has been under
state authority. In doing so, we believe that it would limit
both the ability of injured consumers to obtain fair
compensation and the ability of citizen juries to hold guilty
parties accountable for their actions. As a result, the
incentives which have convinced many companies to improve the
safety of their products will be lessened.
While there are a number of troubling provisions in S. 565,
I would like to raise two key issues. First, the bill would
destroy the ability of citizen juries to impose penalties on
wrongdoers in order to prevent future injuries. Punitive
damages are rarely used. In fact, over the last 25 years,
punitive damages have been awarded in less than 15 cases each
year (less than 11 cases excluding asbestos cases). But
punitive damages have proven to be critical in persuading
manufacturers to improve the safety of their products or
remove unsafe products from the marketplace. By placing
arbitrary caps on awards, S. 565 would make it virtually
impossible for citizen juries to act to protect society from
future harm. At a time when Congress is considering limits on
federal regulation, it makes little sense to further erode
the ability of people to use the courts as a way to improve
the safety of the marketplace.
Second, S. 565 would establish a discriminatory legal
system in which the level of compensation is based not on the
level of the injury, but on the economic status of the
injured consumer. By eliminating joint and several liability
for non-economic damages, the bill states that it is not
important to compensate individuals for having to live with
excruciating pain, disfigurement, blindness, or loss of the
ability to bear children.
Given these and other provisions, Tennessee Citizen Action
believes that the passage of S. 565 would be detrimental to
consumers and the nation. We appreciate your consideration of
our views and look forward to learning your position on these
important issues.
Sincerely,
C. Brian McGuire,
State Director.
____
Texas Citizen Action,
Austin, TX, April 23, 1995.
Hon. Phil Gramm,
U.S. Senate, Washington, DC.
Dear Senator Gramm: We are writing you to ask for your vote
against cloture on S.565 the ``Unfair Product Liability Act''
introduced by Senator Rockefeller. We are extremely concerned
about the impact this will have on the safety standards of
everyday products for consumers and innocent citizens. We
believe there are several provisions of the bill which will
eliminate the consumers ability to hold wrongdoers
accountable for their actions, and limit innocent victims
recourse to fully recover for damages they have accrued.
Capping punitive damages will do nothing to increase safety
standards for innocent consumers. By limiting punitive damage
awards to $250,000 or three times economic damages you are
creating a nuisance expense for multi-billion dollar
companies such as Ford Motor Company or Dow Chemical. This is
creating a predictability in the market place for the minute
number of companies who act negligently allowing them to
calculate their risk for producing a less than safe product
and further lets them rest assured they will never be held
liable past a certain dollar amount.
S.565 prevents consumers from holding manufacturers of
products which cause significant harm or injury accountable
if the product is older than 20 years. Many products are
intended to last longer than 20 years. This law however,
would eliminate all consumer rights to be made whole if a 20
year old product caused significant harm or damages. This is
an example of corporate wrongdoers being protected at the
expense of consumers protection.
The elimination of ``Joint and Several Liability'' is a
slap in the face to innocent individuals, families, and
communities. Allowing guilty defendants off the hook without
having to make innocent victims 100% whole is a disgrace. We
will without a doubt see victims paying for portions of their
damages even when they were completely without fault. This
will not only affect individuals but likewise families,
communities, cities, and states. We will see wrongdoers
getting off free of charge while cities, towns, and families
pick up the tab for the irresponsible behavior of others.
Texas Citizen Action has a membership of well over 150,000
citizens. These people have joined our organization because
they believe in the positions we take on consumer protection
issues. The passage of S.565 will be a major step backwards
for individuals and communities and their rights to hold
others
[[Page S6390]] accountable for wrongs they may commit. We
ask you to vote against cloture on S.565 for the citizens of
Texas.
Sincerely,
Daniel Lambe,
Program Director.
____
Defenders of the Rights of Texans,
Austin, TX, April 24, 1995.
Re S. 565.
Hon. Kay Bailey Hutchison,
U.S. Senate, Washington, DC.
Dear Senator Hutchison: Defenders of the Rights of Texans
(DRT) is asking you to vote against cloture on S. 565, Sen.
Rockefeller's ``Unfair Product Liability Act.'' This bill
will adversely impact the safety standards of products which
we consumers utilize on a daily basis. We strongly feel that
victims of unsafe products must retain the ability to hold
accountable those who produce products which kill and maim.
Limiting damages does not protect consumers, it protects
manufacturers of products that injure consumers. That should
not happen!
The effect of eliminating some of the current protections
in the law will be to make the victim pay twice, even when
they contributed nothing to the accident or injury. If
Congress eliminates ``Joint and Several Liability'', you will
make it difficult for your constituents to recover fully from
their misfortune. The only pain and suffering you will be
eliminating is that of the offending party. We support
victims' rights, not the rights of those corporations or
individuals who do not want to take responsibility when their
products harm the American public.
We oppose capping punitive damages because we know that it
takes significant awards to get the attention of
manufacturers who continue to foist its products on an
unsuspecting public years after the corporation knows the
product to be unsafe. Why Congress would consider rewarding
such unacceptable behavior is beyond our organization's
comprehension.
Defenders of the Rights of Texans is a coalition of
individuals and organizations--consumer, environmental,
worker, academic, clergy, student, and victims--who oppose
sacrificing our rights on the alter of corporate greed. We
ask you to represent our interests by voting against cloture
on S. 565.
Sincerely,
Bob Comeaux,
San Antonio, TX.
____
Virginia National Organization
For Women,
April 15, 1995.
Hon. Charles Robb,
U.S. Senate, Washington, DC.
Dear Senator Robb, Virginia N.O.W., represents some 20,000
Virginia women. We are writing to urge you to vote no on
cloture and no on S. 565 and any other measure that restricts
individual legal rights.
S. 565, the ``Product Liability Fairness Act'', is in fact,
unfair. By limiting non-economic damages, it give wealthy
individuals and corporations greater rights than middle-
income citizens and families. Additionally, S. 565 transfers
authority for the civil justice system from the states to the
federal government. States know better how to serve its
individual citizens and the issues that impact the citizens
than the Washington bureaucracy. Whatever happened to the
idea of states' rights and limiting the power of the federal
government? S. 565 caps pain and suffering awards on medical
malpractice suits. Why single out a particular type of
lawsuit to cap awards?
Virginia N.O.W. has supported many women who have filed
lawsuits, for both international and negligent injuries.
During the 1995 legislative session we along with other
citizens groups such as the VTLA, NAACP, ACLU, LofWV, worked
hard to obtain a compromise on the Virginia Human Rights Act.
A bill which passed the legislative session only to be vetoed
by the Governor. The bill reverses the Lockhart decision,
which basically prevents a small business employee from
filing a lawsuit based on race, color, sex or national
origin. Additionally, VA N.O.W. supports lawsuits for sexual
harassment, defective products, product liability, employment
discrimination and of course intentional injury. Economic
justice as well as civil justice must be preserved. S. 565
seeks to destroy both, please vote ``no'' on S. 565.
People all across America are closely watching the new
Republican majority in Congress in an effort to determine
whether it truly represents the people or big business.
Surely, the outcome and deliberations of S. 565 will provide
an answer.
Sincerely,
Dulaney S. Nickerson.
____
Citizen Action,
Charlottesville, VA, April 17, 1995.
Hon. Charles S. Robb,
Russell Senate Office Building, Washington, DC.
Dear Senator Robb: I am writing on behalf of Virginia
Citizen Action and its over 50,000 members to ask you to
oppose S. 565, the ``Product Liability Fairness Act.'' We
would ask you that you do whatever is necessary to defeat
this bill, including voting against any effort invoke cloture
on debate.
Senator, this bill would make America a much more dangerous
place for all of us. By capping punitive damages, this bill
will send a signal to corporate wrongdoers that they can
escape any real punishment for making and selling products
that will kill or injure innocent people. S. 565 would
eliminate the deterrent effect of punitive damages and remove
one of the real protections Americans have had for over 200
years.
This bill is anything but fair. By eliminating joint and
several liability for non-economic damages, it discriminates
against women, children and seniors. Non-economic damages are
not just pain and suffering. What about a women's loss of the
ability to bear children or a child's disfigurement for life!
Senator, S. 565 is not ``moderate'' and it is not ``fair''.
We hope that you will work to defeat this bill and protect
every Virginian and every American from those special
interests who want to escape responsibility for their actions
at the expense of the health and safety of the American
people.
Sincerely,
Marc Wetherhorn,
State Director.
____
Virginia Citizens Consumer Council,
Yorktown, VA, April 25, 1995.
Re S. 565.
Hon. Charles S. Robb,
U.S. Senate,
Washington, DC.
Dear Senator Robb: The Virginia Citizens Consumer Council
strongly urges you to oppose S. 565, the ``Product Liability
Fairness Act of 1995. This bill will do irreparable harm to
Virginia consumers by restricting the ability of injured
consumers to obtain full and fair compensation and for
citizen juries to impose adequate deterrents to prevent
further injuries. Corporate wrongdoers must be held
accountable when consumers are harmed by the products they
buy as a matter of simple justice and to foster confidence in
the American marketplace.
Two major provisions of this legislation will have a
negative impact on consumers and workers. First, this bill
sets arbitrary limits on punitive damage awards of $250,000
or three times the economic damages, reducing the ability to
deter corporations from inflicting harm on others and
threatening Virginians' economic security and well-being. At
a time when Congress is talking about increasing personal
responsibility, it makes no sense to reduce the
responsibility of corporations guilty of manufacturing or
selling dangerous products.
Second, this bill eliminates joint and several liability
for non-economic damages, making it difficult for consumers
to recover costs related to injuries such as the loss of
reproductive capacity, loss of sight, or disfigurement. Those
injuries deserve to be compensated and should not be treated
as less important than the loss of high salaries or
investment income. For similar reasons, VCCC urges you to
oppose S. 454, ``The Health Care Liability and Quality
Assurance Act'' which would severely affect the rights of
injured patients.
VCCC urges you to act to prevent passage of this
legislation, which will greatly restrict the ability of
injured consumers to be compensated fully and for juries to
act to prevent further wrongdoing. Virginia consumers count
on you to act in our best interest by voting NO on this anti-
consumer, auto-worker bill. Please let me know the outcome of
the Senate votes on S. 565 and S. 454 and how you cast your
votes. Thank you.
Sincerely,
Jean Ann Fox,
President.
____
Washington Citizen Action,
State Headquarters,
Seattle, WA, April 19, 1995.
Hon. Slade Gorton:
On behalf of our 42,000 members statewide and our 20
affiliate community, church, labor, and senior organizations,
Washington Citizen Action urges you to oppose Senate Bill 565
and to vote against cloture. This bill is one of the most
anti-consumer pieces of legislation to make it to the Senate
floor in decades. Please do all that you can to stop S. 565
from passing.
The arbitrary caps on punitive damages would eliminate the
incentive to produce safe products and would allow negligent
corporations to operate with little to no accountability. S.
565 will undoubtedly result in a multitude of injuries,
disfigurements, and deaths. In addition, these limits will
take away all recourse society has to punish wrongdoers that
knowingly and repeatedly maim and kill people with deadly
products and negligent actions.
By eliminating joint and several liability for non-economic
damages, S. 565 would weaken the ability of ordinary
Americans to receive fair compensation when they are injured
by unsafe products and practices. The bill is unfair to
women, children, seniors, working families, small businesses,
and lower to middle income Americans. Victims and their
families will be rendered unable to receive adequate
compensation for their injuries while the guilty parties are
let off the hook. This is not our idea of American justice.
In America, the courts have proven to be the major
protection citizens have against negligent corporations and
unsafe products. We cannot afford to let our civil justice
system be dismantled by the provisions of S. 565. Vote NO on
S. 565! Vote NO on cloture!
Sincerely,
David West,
Executive Director.
____
[[Page S6391]]
West Virginia-Citizen Action Group,
Charleston, WV, April 24, 1995.
Re Proposed legislation concerning Civil Justice System (S.
565).
Hon. John D. Rockefeller, IV,
U.S. Senate,
Washington, DC.
Dear Senator Rockefeller. On behalf of the twenty thousand
members of the West Virginia-Citizen Action Group (WV-CAG), I
am writing this brief letter to encourage you to rethink your
support for S. 565. However well-intentioned this legislation
may be, I honestly believe that the potential--and
unintended--consequences are so great as to offset any
perceived benefits.
I realize, of course, that the House-passed ``Common Sense
Legal Reform Act'' is more draconian than S. 565. This does
not ameliorate the many deficiencies contained in the Senate
bill, including the two most egregious (as follows):
By capping punitive damage caps at $250,000 or three times
the economic loss (whichever is greater), the proposed
legislation removes the ``punishment'' that is supposed to be
reflected in damages. As a result, it will become cheaper in
many instances to pay the damages than to rectify the
problem.
By eliminating joint and several liability for non-economic
damages, the proposed legislation unfairly discriminates
against women, children, and seniors. Non-economic loss is
much more than pain and suffering; it can also be loss of
reproductive capacity, loss of right or disfigurement.
After studying this, and related tort reform proposals for
many year, we are convinced that such efforts are contrary to
public policy and will jeopardize the hand-earned rights of
injured West Virginians. Accordingly, I would like to urge
you to reconsider your position and fight, as you have done
so often in the past, for the rights of West Virginia
consumers.
Thank you very much for your time and consideration. I hope
to see and/or talk with you again soon. If you need any
further information, please feel free to contact me.
Sincerely,
State Senator David Grubb,
Executive Director.
____
Wisconsin Consumers League,
Milwaukee, WI.
Re SB 565 and 454.
Senator Herbert Kohl,
U.S. Senate,
Washington, DC.
Dear Senator Kohl: We write to urge your opposition to the
so-called ``Common Sense Legal Reforms Act'' submitted as
part of the Contract with America. This package of bills
would substantially modify existing product liability and
medical malpractice laws. It is largely unsupported by the
vast majority of the rigorous evidence which has been
developed on these topics. Rather, it is seemingly being
swept along on a wave of anecdote, innuendo and, in some
cases, outright untruths.
There can be little doubt that product liability and
medical malpractice laws have evolved to reflect emerging
technologies. They have had the desired effects of modifying
behavior to the optimum end of preventing injury to consumers
and workers. The claims regarding the alleged stultifying
effects of these bodies of common law are generally
unsupported by credible, systematic evidence. For example,
the work of Professor Galanter, at the UW Law School,
compellingly refutes allegations regarding any alleged
`litigation explosion'. The punitive damages which S. 565
would limit are only relatively rarely awarded. Such `sledge-
hammer' approaches to ``reforming'' such legal standards,
while politically satisfying, are only coincidentally related
to thoughtful policy-making.
It is, in our view, remarkably arrogant for legislators to
substitute their prospective judgments regarding equitable
outcomes for specific factual cases yet to arise for the
judgment of juries, which, by definition, can examine each
case on its own unique, and prospectively unknowable, facts.
How can anyone think they can be more fair regarding
situations yet to occur than can juries with the benefit of
hindsight?
We repeat our opposition to these unnecessarily broad
attempts to weaken the preventative impacts of the common
law.
Very truly yours,
James L. Brown,
President.
____
Wisconsin Citizen Action,
Milwaukee, WI, April 21, 1995.
Hon. Russ Feingold,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Feingold: On behalf of our 103,000 members and
our coalition of 110 labor, senior, religious, environmental,
women's, farm and community organizations, we are writing to
urge you to oppose S. 565 and to vote against cloture. We
very much appreciated your help last year in the defeat of S.
687, this bill's predecessor. We're confident we can count on
you again.
This bill is very similar to the product liability
``reform'' Bob Kasten used to push when he represented
Wisconsin in the United States Senate. We like to think that
one of the reasons why Wisconsin voters chose not to re-elect
Bob Kasten to the Senate is because they repudiated his
consistently anti-consumer positions. S. 565 is similarly out
of step with the interests of Wisconsin consumers.
The provisions in this bill cannot claim to be
``moderate.'' A punitive damage cap of $250,000 or three
times the economic loss to a victim of an injurious product
is no more than a slap on the wrist to the corporations
responsible for the deaths and injuries caused by products
like the Ford Pinto, the Dalkon Shield, silicone-gel breast
implants and flammable baby pajamas. The manufacturer of the
``Slip 'N' Slide'' water slide, which caused a 35-year old
Wisconsin mechanic to break his neck, become temporarily
quadriplegic and suffer permanent spasms, would have had its
punishment reduced to one-thirtieth of what a jury thought
appropriate. The U.S. Senate would be changing the punishment
so that it cannot possible fit the crime in an era of public
sentiment to get tough on wrongdoers.
We have no idea how many similar horror stories like those
are waiting to happen. Corporate wrongdoers would face a
dollar and cent deterrent too cheap to stay their pursuit of
profit without regard for consumer health and safety. The
temptation for corporations to proceed with dangerous
products, even if they are eventually found guilty in a
lawsuit, would get that much easier. S. 565 will weaken the
ability of our civil justice system to act as both deterrent
and remedy.
The elimination of joint and several liability for
noneconomic damages discriminates against the most vulnerable
populations in our society--women, children and seniors.
These are the members of our society who are usually forced
to claim noneconomic losses, and these constituencies would
now be forced to shoulder the burden of being only partially
compensated. Noneconomic damages include the loss of
reproductive capacity, loss of sight and permanent
disfigurement, not just ``pain and suffering.'' It is simply
unfair that a party found to be negligent should not be
required to make these vulnerable people whole after they
have been injured.
The U.S. Consumer Product Safety Commission once estimated
that some 33,000,000 people are injured by defective or
dangerous products every year. 29,000 of them die. Only 1.6%
of the injured parties sue. S. 565 solves no problem in our
civil justice system, but it will create a very real human
toll if it is allowed to pass. We respectfully urge you to
vote against the bill and to vote against cloture.
Thanks once again for your outstanding leadership in
defeating the anti-consumer product liability ``reform'' bill
in last year's Congress. We appreciate all your help in
continuing that effort by defeating this bill again, albeit
in a tougher political climate. Thank you for attention in
this matter.
Sincerely,
Larry Marx,
Executive Director.
____
Center for Public
Representation, Inc.,
Madison, WI, April 21, 1995.
Re Senate bill 565.
Senator Herb Kohl,
Washington, DC.
Dear Senator Kohl: As you know S. 565, the misleadingly-
named ``Common Sense Product Liability and Legal Reform Act
of 1995'' will soon be considered by the Senate. As one of
the major consumer advocacy groups in Wisconsin, we urge you
to oppose this anti-consumer measure.
While certain aspects of our tort system are certainly in
need of reform, this bill totally misses the mark. Instead of
protecting consumers from some of the excesses of our legal
system, it would protect manufacturers of defective products
from assuming full responsibility for their actions. Seizing
upon such highly publicized and distorted cases like the
``burning McDonald's coffee'' proponents of this measure (as
well as similar proposals in numerous state legislatures
including Wisconsin) would eviscerate the ability of our
legal system to effectively enforce rules on product safety
and punish those who violate them.
The proposed restrictions on punitive damages are
completely counter-intuitive. By encouraging corporations to
produce safe products, punitive damages (which, insurance
industry rhetoric notwithstanding, are rarely awarded by
juries or upheld on appeal) actually help corporations save
money. Safe products mean fewer, not more lawsuits. Safe
products mean fewer, not more medical insurance claims filed
by consumers. Safe products mean fewer government recalls.
And safe products mean an improved quality of life for all
consumers.
The elimination of joint and several liability for non-
economic damages is also misplaced. On first blush, this
common law concept may seem unfair; why should one
corporation that is only slightly liable have to pick up the
tab for a more culpable corporation that happens to be
insolvent? But when you look closer, joint and several
liability is the fairest resolution to a difficult dilemma.
It looks at all of the parties involved in a products
liability lawsuit and decides that the costs should be spread
so as to fully compensate the victim who, after all, is the
only innocent party. And since non-economic damages are
frequently awarded to the most vulnerable members of society;
the poor, young children, senior citizens, this provision
would affect such groups disproportionately.
The elimination of liability for products more than twenty
years old is also unfair to consumers. Again, this provision
would disproportionately harm the most vulnerable consumers,
since they rely more heavily on
[[Page S6392]] older, used products. The anti-consumer
nature of this bill is especially apparent in this provision,
since it exempts companies who suffer commercial losses.
Another particularly disturbing provision in S. 565 from
the Wisconsin perspective is its preemption of state consumer
protection laws. As you know, Wisconsin is a national leader
in the area of consumer protection. Its well-deserved
reputation in this area has been built up over many decades.
S. 565 would tarnish that image and bring Wisconsin down to
the lowest common denominator in protecting its citizens from
consumer abuse.
There are other consumer-unfriendly aspects to S. 565,
including its exemption from liability for the sellers of
products and the special treatment provided for suppliers of
materials for medical devices. Moreover, the bill exempts
corporations from many of the restrictions on damages which
it imposes on individual consumers.
Consumer groups in Wisconsin and around the country have
fought long and hard over the past few decades to insure that
consumers have access to safe and effective products. S. 565
would annul much of this hard work in one fell swoop. On
behalf of all of Wisconsin's consumers, we urge you to oppose
it.
Thank you.
Yours truly,
Stephen E. Meili,
Director, Consumer Law Clinic.
Mr. HOLLINGS. There it is. I did not want to really fill up the
Record, but every responsible, credible consumer entity in any of the
50 States is opposed to this initiative, and the other side knows it.
But they come around and talk balance and they talk consumers and they
say you cannot produce products.
I ask unanimous consent to insert in the Record these two
advertisements by the pharmaceutical companies, February 23, 1995, and
April 5, 1995, in the Washington Post.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Feb. 23, 1995]
Drug Companies Target Major Diseases With Record R&D Investment
Pharmaceutical companies will spend nearly $15 billion on
drug research and development in 1995. New medicines in
development for leading diseases include: 86 for heart
disease and stroke, 124 for cancer, 107 for AIDS and AIDS-
related diseases, 19 for Alzheimer's, 46 for mental diseases,
and 79 for infectious diseases.
____
[From the Washington Post, Apr. 5, 1995]
Who Leads the World In Discovering Major New Drugs?
Between 1970 and 1992, close to half of the important new
drugs sold in major markets around the world were introduced
by U.S. pharmaceutical companies. And here at home, the drug
industry has been making 9 out of every 10 new drug
discoveries. So when a breakthrough medicine is created for
AIDS, heart disease, Alzheimer's, stroke, cancer or any other
disease, chances are it will come from America's drug
research companies.
Mr. HOLLINGS. Just the one in February, one statement:
Pharmaceutical companies will spend nearly $15 billion on
drug research and development in 1995.
According to the Senator from Washington, they cannot spend. They
just cannot work anymore with this law. And right here in April:
Between 1970 and 1992, close to half of the important new
drugs sold in major markets around the world were introduced
by U.S. pharmaceutical companies. And here at home the drug
industry is making nine out of every ten new drug
discoveries. Breakthrough medicines that are going to be
created for AIDS, heart disease, Alzheimer's, stroke, cancer,
or any other disease will come from the American drug
companies.
But according to the Senator from Washington, they cannot bring out
products. Come on. They have tried every trick in the book.
What we really have afoot, Mr. President, when they cite the
Constitution is just that--an assault against the constitutional right
of trial by jury guaranteed by the seventh amendment. People who say
they do not trust politicians anymore are waiting for the politicians
to behave as though they trust the people. You and I trust them to
elect us, but when they get us 12 men and women on a jury sworn to
listen to the facts and make their finding, according to their sworn
oath, ``They do not know what they are doing; they have gone ape; they
are just runaway juries,'' and everything else of that kind.
But we up here, the bureaucracy in Washington, we should decide
rather than letting the juries decide back home.
We have a right, Mr. President, that has worked over the many, many
years. You have safe drug products. Thank heavens, we have product
liability and we have taken off Dalkon shield and all the rest of these
other things--cancer causing products. We have safer automobiles.
Why do you think Chrysler the other day said they were going to
recall I think some 350,000 or several million cars? I had the
summation. Seventy-one million automobiles in the last 10 years,
American and foreign manufacture, have been recalled. They do not
recall them because of the goodness of their heart. They recall them on
account of product liability. What we have in hand here they want to
destroy. We have always had in this land ``salus populi suprema lex.''
Safety of the people is the supreme law.
Now they come with this measure, the profits of the manufacturers is
the supreme law, and whine that they are for the consumers and they
cannot put out products.
How does this come about? I have been in this for 40 years and I have
watched it develop: Pollster politics. They tell you when you come to
this national office up here that you have to get a poll and get to
four or five hot-button items and then you have to identify with them.
You are for jobs, everybody is for jobs; you are against crime; you are
against taxes. They just go down the list.
Then they tell you, and in fact GOPAC puts on a school over there for
the young Congressmen that are elected, they say, ``You have only got a
20-second time bite to give your message, so you need words that count,
words that excite, inflame.''
And do you know what they call us up here now? I quote the Speaker.
He terms the U.S. Government that pledged to preserve, protect, and
defend, he calls it the corrupt liberal welfare State.
And when you can come in this anti-Government drive with the Contract
With America and you see it in the morning paper and if you read it
closely, it is gone: ``Get rid of the Government. The Government is not
the solution, the Government is the problem. The Government is the
enemy.''
That has been the drumbeat. If you can wrap it together in tort
reform, you can get against the lawyers and against the Government both
and you can really have a winner.
Well, for 15 years we have defended against this assault. President
Ford helped us 15 years ago. He appointed a commission. And when
President Ford appointed that commission, they had a 4-year study that
came out and found that the States for 200 years have been handling
this properly, basic tort law.
Incidentally, of all the civil findings, only 9 percent are tort. And
of all the tort, only 4 percent of the 9 percent, or 0.38, thirty-eight
one-hundredths of 1 percent of what we are supposed to be dealing with.
It is not a problem at all.
They said the States were handling it. And now we know by record in
the hearing that the States have reformed, they have acted. The
legislators are not asleep, the Governors are not asleep, the attorneys
general are not asleep back in the States. They can handle this
problem. That is the plea of the contract in reality. Get all of these
things, housing grants, block grants to the States, welfare block
grants, whatever it is. Give it back to the States.
Not on this one. You are in the hands of the Philistines, that
manufacturing crowd out there--the Conference Board, the NFIB, the
Chamber of Commerce.
I have been elected six times and they do not come running.
That crowd that we have, they come running. Yes, the Chamber wants to
know where you stand, the NFIB, the Conference Board, everything else.
They talk about trial lawyers giving you money. They give money but the
others, the manufacturing and insurance crowd, they give more money and
they have the votes.
And the people who really oppose this bill do not have a PAC. Have
you ever seen a PAC for the American Bar Association? Have you ever
seen a PAC for the Consumer Association, Public Citizen, Association
for State Supreme Court Justices, Association of State Legislators, law
school deans--they have all appeared in the polls--the State attorneys
general? They do not have PAC's.
[[Page S6393]] But there they come with all this. And we have been
working with them, but we have the contract now. And we have had many
of these Senators that finally changed their votes who said, ``You
know, I got in trouble. I committed a year ago.''
That is how it happens, if people want to know. When all the powerful
organizations come to you in a campaign and you are for reform--``Yeah,
I'm for reform. I'm for reform.'' They have been reminded in the last
several days in this debate here how they gave their commitment.
So I went to them, I said, ``How do you change your vote?'' They
said, ``Well, I got in trouble a year ago or 2 years ago when I was
running.'' And that explains it. But it does not change the lack of
merit in this particular initiative and the danger of it all.
So what we have is ``Kill all the lawyers.'' You could see it in the
amendments. That is what they have.
Our friend Dan Quayle started that before the American Bar
Association some 4 years ago and we still have it going. If you can
vote against the lawyers and say they are running away and getting all
the money and everything else like that, you have mob action on foot
and you can get it moving.
Well, Mr. President, it is bad law. What happens is they do not give
you a Federal cause of action. If they had come in--and I have been
insisting for the 15-year period, if you want to make a finding under
the interstate commerce clause that they plea, that we are going to
make a congressional finding that there is a national problem and give
a Federal cause of action, that is one thing. No, that is not what they
want. They say they are trying to get simplicity, eliminate complexity,
get uniformity. But then they put guidelines down for the 50 States to
interpret and then can go into the Federal court and, by the way,
exempt the manufacturer. Any of these things that I have talked of, any
of these initiatives, any of these amendments, just exempt the crowd
that wrote the bill.
Now I can tell you here and now if that is not hypocrisy, I do not
know what the heck is. And yet they are saying they are proud now and
they want to thank everybody, tell them about their balance and
everything else like that.
This is one of the most dangerous initiatives. It has been held up
for 15 years by all of these organizations. It is a nonproblem. They
know it. It is a solution looking for a problem, in all reality.
And we are headed, yes, with the English rule, we are headed with two
levels of society. ``Get rid of the jurors and people with common sense
back home. We know it all up here.''
They started over 130 years ago diminishing that guaranteed right of
trial by jury. So today, less than 2 percent of civil cases go to a
jury trial in England. And you are told that the issues are too
complex, you do not have sense enough to understand and what have you.
And that is the initiative that starts today on the floor of the U.S.
Senate.
They know in their hearts it is bad law. They have tried everything
from the Girl Scouts, and had to withdraw that; they tried the Little
League and had to withdraw that. They put George McGovern on TV and had
to pull him off. They tried everything--the McDonald's case, then when
that was explained to them, you do not hear them talk about the
McDonald's case. Always these little anecdotal things that they bring
up.
But they got one winner: ``Let's get rid of the lawyers.'' We can get
a majority vote on that. We can get a majority vote on that. And so it
is.
In essence, what you are really doing is getting rid of the jurors.
The trial by jury, they are eroding it, nibbling at it bit by bit is
the intent and purpose, just like they had in England where you do not
even get a review of facts or anything else. You cannot even ask the
jurors any questions; you cannot find the background.
I could go down the list, but my time is now limited and I am
practically out of time.
I simply say that it is a sad day in the history of government
because it brings to culmination the so-called contract of reform which
goes totally in contradiction to the entire theme of the contract back
home. The people know--you are going to hear it now in the budget. The
people back home need a tax cut because they know how to spend the
money better than the Government up here. All of these pleas and
everything. The people back home know this, they know that, they know
everything except the facts of the case that they are sworn to uphold.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. HOLLINGS. I yield the floor.
Mr. GORTON. Mr. President, again, for the information of Members, we
will now have the vote on my motion to table the Dorgan amendment.
There are then two other amendments, all amounting to the same thing,
that will come before final passage. I hope that those two amendments
will be adopted by voice vote. I will then ask for a rollcall on final
passage of the bill.
The PRESIDING OFFICER. Under the previous order, the question occurs
on agreeing to the motion to table amendment No. 629 offered by the
Senator from North Dakota [Mr. Dorgan]. The yeas and nays have been
ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Virginia [Mr. Warner] is
necessarily absent.
Mr. FORD. I announce that the Senator from Connecticut [Mr.
Lieberman] is absent because of death in the family.
I further announce that, if present and voting, the Senator from
Connecticut [Mr. Lieberman] would vote ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 54, nays 44, as follows:
[Rollcall Vote No. 160 Leg.]
YEAS--54
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Coverdell
Craig
DeWine
Dodd
Dole
Domenici
Exon
Faircloth
Frist
Glenn
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Johnston
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pell
Pressler
Robb
Rockefeller
Santorum
Smith
Snowe
Stevens
Thomas
Thompson
Thurmond
NAYS--44
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
Dorgan
Feingold
Feinstein
Ford
Graham
Harkin
Heflin
Hollings
Inouye
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Packwood
Pryor
Reid
Roth
Sarbanes
Shelby
Simon
Simpson
Specter
Wellstone
NOT VOTING--2
Lieberman
Warner
So the motion to lay on the table the amendment (No. 629) was agreed
to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. GRAMM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
toxic harm
Ms. MIKULSKI. Are asbestos-related injuries and deaths covered by the
toxic harm exception to the statute of repose in S. 565?
Mr. ROCKEFELLER. Yes, asbestos-related injuries and deaths are
covered by the toxic harm exception to the statute of repose.
amendment no. 790
Mr. HATCH. Mr. President, I wish to discuss language in the Gorton-
Rockefeller-Dole substitute amendment concerning punitive damages. The
substitute language includes a formula for calculating the amount of
punitive damages allowed to be awarded to a claimant against a
defendant. This formula originated with Senator Snowe and was added to
the Dole-Exon-Hatch amendment last week, with my support. It remains
part of the underlying substitute amendment. The formula to which I
refer provides generally that the amount awarded to the claimant for
punitive damages in a products liability action shall not exceed the
greater of two times the sum of the amount awarded for economic loss
and
[[Page S6394]] noneconomic loss, or $250,000. In the case of a small
business, a special rule provides that the amount of punitive damages
shall not exceed the lesser of two times the sum of the amount awarded
to the claimant for economic loss and noneconomic loss, or $250,000.
It is my understanding that the formula for calculating the amount of
punitive damages is intended to take into account the separate
provision in the bill that makes a defendant only severally liable for
noneconomic losses. Thus, when doubling the amount of noneconomic
losses in computing the upper limit of punitive damages which may be
awarded against a defendant, it is appropriate only to consider the
share of noneconomic loss attributable to that defendant. It would be
unfair and inconsistent with other provisions in this act to expand the
base multiplier in the punitive damages section of this bill to include
noneconomic losses not attributable to a defendant.
Mr. HELMS. Mr. President, the pending Product Liability Fairness Act,
even though it has been watered down considerably by our Democrat
colleagues, is nonetheless needed to remedy the morass of product
liability laws plaguing our judicial system today. We have a duty to
ensure that Americans are fairly compensated when they are injured by
faulty products. But today's legal system has been maneuvered into a
position of encouraging many people to file frivolous suits demanding
unreasonably high damage awards.
I am extremely disappointed that the medical malpractice provisions,
approved by the Senate on May 2, were deleted because of threats by the
Democrats that they would block passage of the entire bill.
Americans are suing each other too often, for too much money and for
too little reason. Last year, more than 70,000 product liability
lawsuits clogged U.S. courts. And by 1992, lawyer fees accounted for 61
percent of the total amount spent on product liability claims.
In so many cases, those who are injured least tend to receive the
largest settlements, while many of the most severely injured spend
years in the legal system, sometimes never receiving the compensation
they deserve.
Mr. President, the pending legislation will be a first step toward
remedying these problems with the current system by:
First, giving manufacturers and consumers certainty as to the rules
of the game when it comes to product liability lawsuits;
Second, allowing consumers with valid claims to receive fair awards,
and receive these awards faster;
Third, reducing costs of litigation and insurance premiums, which in
turn, will lead to lower prices for consumer products;
Fourth, giving consumers with valid claims more time to file
complaints against negligent manufacturers; and
Fifth, eliminating unwarranted lawsuits which threaten to bankrupt
small businesses--the segment of our economy that provides most of the
jobs in this country.
Mr. President, rather than expound on the problems with the current
system, I will share with my colleagues a letter from the plant manager
of Butler Manufacturing, a small business in Laurinburg, NC. His letter
is similar to many I have received from 99 other small businessmen from
my State. It reads:
Dear Senator Helms: As you know, Butler Manufacturing has a
plant in Laurinburg, North Carolina which employs two hundred
workers. We urge your support of S. 565, the Product
Liability Fairness Act, which offers some of the reforms
needed in the product liability area.
Our company spends hundreds of thousands of dollars each
year for product liability insurance and legal fees and our
employees devote hundreds of hours of their time to help our
attorneys defend unwarranted product liability claims.
Many times we settle a claim which we honestly believe has
little merit because it is less expensive to settle than to
litigate or to expose the Company's assets to punitive
damages.
Our Company competes in the international market place. To
be competitive we cannot bear the cost of product liability
insurance, huge punitive damage expense, and large costs to
defend unwarranted claims which our competitors do not bear.
We believe persons injured by faulty products through no
fault of their own ought to be compensated for their out-of-
pocket losses. However, current court-made rules allow much
greater compensation than is justified and also make it
difficult for companies to properly defend themselves.
Mr. President, this explains why small businesses--not the Fortune
500 companies--are the ones most threatened if nothing is done to
reform the current legal system.
According to the National Federation of Independent Businesses, the
cost and availability of liability insurance rank No. 5 out of a list
of 75 problems facing small businesses today. They are constantly in
danger of being pulled into unwarranted
lawsuits, where the fear of punitive damages forces them to settle in
cases in which they should never have been involved.
About half of all small business owners earn about $50,000 a year.
However, a Rand Institute study shows that it costs the same small
businessman an average of $100,000 to defend against a lawsuit--
regardless of the suit's merit. Thus, defending even a single
unwarranted lawsuit costs twice as much as the average small business
owner earns in a year.
Perhaps the most critical problem for small businesses is something
lawyers know as joint and several liability, which permits plaintiffs
to recover the full amount of damages from any one of the defendants--
regardless of the amount of fault of the individual defendant. So, even
if a small businessman is responsible for only 10 percent of the damage
caused the plaintiff, under the current system, that businessman can
still be held liable for 100 percent of the damages. The pending bill
fixes this problem by holding a defendant liable for the percentage of
noneconomic damages for which he or she is responsible.
Mr. President, I have many friends who are trial lawyers. They have
made some compelling arguments in favor of the current system; however,
in this matter, we have had to agree to disagree.
For example, trial lawyers argue that: First, limits on punitive
damage awards are unnecessary because courts don't frequently award
punitive damages; and Second, when they are awarded, punitive damages
generally do not amount to very large sums.
As every first year law student knows--or should know--there are
three kinds of damages awarded in civil lawsuits.
The first--economic damages--reimburses an injured person for lost
wages, medical care, and out-of-pocket costs incurred as a result of
the injury.
Second--noneconomic damages--are awarded for things such as pain and
suffering, and
Finally, there are punitive damages. The purpose of punitive damages
is not to compensate the injured person, but rather to punish the
defendant for his or her negligent behavior. Most of the disagreement
in the pending bill surrounds punitive damages.
Mr. President, are punitive damages rarely awarded as trial lawyers
claim? No. Injured parties routinely request punitive damages in
product liability and other tort claims. They do so because they know
that's where the big bucks are. Not only are punitive damages routinely
requested, the amount of punitive damages awarded is increasing. In
Cook County, IL, the average punitive damage award was $6.7 million. In
1984, the average punitive award in San Francisco was $743,000.
In North Carolina punitive damages have been awarded only once.
Despite this fact, any time a product manufactured in North Carolina
ends up in another State, the North Carolina manufacturer can still be
hauled into an out-of-State court and sued for outrageous punitive
damage amounts.
Mr. President, trial lawyers also assert that product liability
reforms are unnecessary because so very few lawsuits filed today are
product liability cases. They claim that contract disputes and domestic
relations cases make up more of the current case load in today's
courts.
That product liability cases make up a small piece of all tort cases
ignores one important and critical point: It only takes one product
liability lawsuit to bankrupt a small manufacturing firm. Even if the
manufacturer is not found negligent, it still costs that small business
a small fortune to defend the lawsuit.
Lastly, lawyers argue that product liability reform will not lower
liability
[[Page S6395]] insurance premiums that manufacturers pay. I disagree.
Over the past 40 years, liability insurance costs have increased 4
times the rate of growth of the national economy.
Moreover, for every extra dollar a company pays in product liability
insurance, that's a dollar less in an employee's pocket, or a dollar
less used to develop new products.
In closing, let me return to the letter from the plant manager in
Laurinburg, NC. This is a small business pleading for fairness and for
an opportunity to compete fairly for business. If this plant, and the
other 99 small businesses who've written me, are to prosper, they
cannot afford to defend unwarranted claims every time they turn around.
We cannot continue to tie the hands of small businesses by forcing
them to defend case after case in a legal system that is unfair,
inconsistent, and unpredictable. The pending bill does nothing to
impede an injured person's right to recover reasonable damages for his
or her injuries. Nor does the bill favor any particular industry. It
simply weeds out frivolous and unwise lawsuits, making it easier and
for injured individuals to obtain the recovery they deserve.
product liability--states' rights and one-way preemption
Mr. FEINGOLD. Mr. President, I rise to briefly discuss one of the
more interesting--and most distressing--components of S. 565, the so-
called Product Liability Fairness Act. That, Mr. President, is the
conscious and flagrant expropriation of the rights of the State and
local governments to fashion their own civil justice systems.
Over and over in the early months of the 104th Congress we have heard
the distinguished majority leader announce his intent to ``dust off the
10th amendment''. That amendment, part of the Bill of Rights and
sometimes thought of as the forgotten child of the Bill of Rights,
states that:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
Well, here is a power that has been reserved by the States for over
200 years. And I cannot help but note the hypocrisy present here. We
have heard the thunderous voices of States rights advocates, railing
against Washington bureaucrats and proclaiming that this new Congress
is committed to the proposition of shifting control of policies from
Washington back to the States.
But then many of the same advocates of States rights also support
legislation such as this that is designed to seize control over a
policy area that has been the domain of the States since our Nation's
founding and turn it over to 535 Members of the Congress.
Make no mistake about it: Under this legislation, we are going to
tell the States--even in instances where there is no Federal
jurisdiction over a tort case--the parameters within which they are to
conduct their judicial proceedings.
That means that if a consumer in Sheboygan sues a manufacturer in
Green Bay, they will have to litigate under Federal standards, such as
a Federal cap on punitive damages, even though this is a completely
intrastate judicial question.
There is also a provision that states that a decision of a U.S.
circuit court of appeals interpreting the provisions of this
legislation shall be controlling precedent to be followed by each and
every Federal and State court within that circuit unless overruled or
modified by the Supreme Court.
This provision was denounced by Stanley Feldman, chief justice of the
Arizona State Supreme Court in his testimony to the Senate Commerce
Committee on April 3 on behalf of the conference of chief justices.
Chief Justice Feldman said that:
. . . This provision will be the first time in the history
of America that any Federal court has been given the
authority to decide a question of State law, a subject which
raises the chills on the back of every member of the
conference of chief justices.
What happened to the commitment of those on the other side of the
aisle to return power back to the State governments? What happened to
all of those criticisms we heard of health care reform and other
initiatives last year where the other side derided the one-size-fits-
all approach to solving problems?
When I made my opening statements on this bill I mentioned a
statement made by the Speaker of the House in his address to the Nation
on April 7 about the intent of the congressional Republicans in the
104th Congress. The Speaker stated that:
We must restore freedom by ending bureaucratic
micromanagement here in Washington . . . This country is too
big and too diverse for Washington to have the knowledge to
make the right decision on local matters; we've got to return
power back to you--to your families, your neighborhoods, your
local and State governments.
Mr. President, I don't say this very often, but when the Speaker of
the House says: ``This country is too big and too diverse for
Washington to have the knowledge to make the right decision on local
matters,'' I tend to agree with him.
That is precisely why I opposed last year's crime bill. Enforcement
of our criminal laws is best left in the hands of our local police and
sheriffs' departments, because what works and is needed in the inner
city of Milwaukee is not necessarily what works and is needed in the
rural confines of Rusk County. It is problematic enough for a Senator
from Wisconsin to understand these regional distinctions, but to
suggest that 524 Members of Congress from 49 other States will know how
to address the idiosyncrasies of fighting crime in Onalaska, WI, seems
a bit farfetched to me.
This same principle holds true for our tort systems. Maybe one of our
rural farming States has purposely fashioned their legal system so as
to protect farmers from defective machinery that is commonplace in that
State. Maybe another State that attracts large numbers of retired
persons has used the availability of punitive damages to deter certain
products from being sold that are unsafe and would disproportionately
affect the elderly.
The other side talks a good game when it is expressed over and over
again that State legislatures and governments are best equipped to
solve problems that are local in nature. But whether it is crime
legislation, or civil justice reform, or even term limits, there is a
clear assumption that local or private decisions are best made by those
in Washington, DC.
I served in the Wisconsin State Senate for over 10 years and I know
how the various State legislatures around the country would react to
this bill. In fact, the national conference of State legislatures
strongly opposes the Product Liability Fairness Act. In a letter sent
to all Members of this body, the conference states:
State civil justice systems are expressions of local values
and needs, as the Founders intended when they established our
system of Constitutional federalism. National product
liability standards put at risk this fundamental expression
of self-government and federalism.
Moreover, the confusion resulting from superimposing a one-
size-fits-all Federal standard for product liability over
existing State tort law presents a risk to the efficient
administration of justice in State courts.
Mr. President, I think it is abundantly clear that the notion of
States' rights is about to go right out the window as we usurp over 200
years of State control over their tort systems. Another organization
comprised of those who are involved in local judicial systems is the
conference of State chief justices. Let me quote from a statement
submitted by the chief justices expressing their opposition to Federal
product liability legislation. They say;
The negative consequences of S. 565 for federalism are
incalculable. With the proposed legislation reaching so far
into substantive civil law, States will be forced to provide
the judicial structure, but will not be permitted to decide
the social and economic questions in the law that their
courts administer. Enactment of S. 565 would alter, in one
stroke, the fundamental principles of federalism inherent in
this country's tort law. . . .
S. 565 is a radical departure from our current legal regime
and is neither justified by experience nor wise as a matter
of policy.
So I think it is clear what a dramatic and radical arrogation of
power this legislation represents. But even if you
accept this notion that we should have Federal standards with regard
to product liability actions--and I don't--but even if you do believe
such standards are necessary, this legislation is light-years away from
bringing any sense of uniformity to our civil justice system.
The supporters of this legislation have made it clear that they
believe Federal uniform standards for our product liability laws are
warranted,
[[Page S6396]] presumably to address the supposed uncertainty and
unpredictability of our legal system.
Those of us on the other side disagree. We believe the system was
designed to protect innocent consumers who have been injured by
defective products, and more importantly, we are reluctant to usurp the
authority of the States over an area that for 200 years has been the
domain of the State legislatures.
As I stated earlier, many of us are also bewildered as to why some
would make changes to the legal system that are opposed by the National
Conference of State Legislatures, the Conference of Chief Justices, the
American Bar Association and law professors throughout the country.
But I think it is important to point out the great fallacy in the
notion that this bill provides uniform Federal standards. It clearly
does not. What it does provide, is a line in the sand. This bill says
that State laws and State reforms that are designed to protect
consumers, children, working people, and the elderly are no longer
applicable.
It says that those States do not know how to protect consumers--we
here in Washington, DC know best how to do that. If you are on that
side of the line in the sand, well sorry but you are out of luck
because apparently it is the Congress that knows best how to protect
farmers in Iowa, factory workers in Michigan, and children in
California.
But if you are on the other side of that line, if there are State
laws or State reforms that are designed to protect the interests of the
business and manufacturing communities, well those are OK. This bill
says that those State legislatures know exactly what they are doing and
we should not preempt any of their efforts.
These are uniform Federal standards? Let me raise a couple of
examples to illustrate just how unfair and unbalanced the bill is in
this regard. The punitive damage cap is an obvious example. The
underlying bill calls for a cap on punitive damages equal to the
greater of two times compensatory damages of $250,000. In addition,
under certain circumstances a judge may award supplementary punitive
damages above the amount the jury has rewarded.
I think the layperson would look at this provision and assume that
this cap--a Federal cap of $250,000 or two times compensatory damages--
would apply across the board. In other words, whether you were injured
by a defective product in Wisconsin, New York, or Mississippi and filed
suit in any of those State courts, a jury would be able to award
punitive damages of up to $250,000 or two times compensatory damages.
Unfortunately, especially for those who support uniformity, that is
not what this legislation would do. Under the now-amended bill, the
punitive damage cap would not preempt, supersede, or alter any State
law to the extent that such law would further limit the availability or
amount of punitive damages. Those State laws would not be preempted.
In other words, if a State allowed unlimited punitive damages, or
even had a cap but that cap was higher than this new Federal cap, that
State law would be preempted by this legislation.
But if a State prohibited punitive damage awards, or had a cap lower
than the cap in the underlying bill, that State law is hailed as
responsible and fair and allowed to continue under this legislation.
I wonder if any of my colleagues are familiar with the ``Slip 'n
Slide'' case we had in Wisconsin just a few short years ago. The Slip
'n Slide is a sort of water slide that is spread out over the ground.
You are supposed to get a good running start, jump head first on the
wet plastic and then slide along the rest of the wet plastic. It was a
product that was manufactured for families and obviously, targeted
especially for children.
The plaintiff in this case, a 35-year-old father of two, dove onto
this water slide, struck his chin on the ground and broke his neck. He
was rendered an incomplete quadriplegic. The plaintiff was unable to
return to his $12,000 a year job and had no means to pay the $46,000
in medical bills he was saddled with.
During the trial, the plaintiff alleged that the product was
unreasonably dangerous for its intended purpose. This was compounded by
the fact that the water slide's warnings were inadequate because they
were not prominently displayed among the product's list of instructions
and warnings.
Testimony was presented showing that other users had experienced
similar injuries and one individual had even died from such an
accident. It was also made clear that the manufacturer continued to
market the product even after it was made aware that numerous neck
injuries such as this were occurring.
Let me say that again; the facts showed that the manufacturer knew
the product was causing neck injuries and yet still continued to market
the product.
The jury in this case, in a Wisconsin State court, found that the
manufacturer was 100 percent at fault and awarded over $12 million to
the plaintiff, including $10 million in punitive damages. This judgment
was later reduced so that the plaintiff and his family in the end
received about $5 million.
We know what the other side's response to this is; ``$10 million?
That jury must be out of control.''
Some of us, however, have faith in the ability of the American people
to serve on juries and administer justice in a fair and equitable
manner.
You can bet, Mr. President, that the manufacturer of the Slip 'n
Slide is thrilled about this legislation. Those on the other side want
to insulate such companies from juries and the threat of extensive
punitive damages. Why? Because such a large punitive damage award might
force the manufacturer to take a product off the market that has been
considerably profitable for that manufacturer.
But I would contend, Mr. President, that our civil justice system is
designed to do just that--to sanction parties that knowingly market a
defective product and to protect the consumers that are victimized by
these products.
That Wisconsin jury awarded a large punitive damage award for two
reasons: One, to get a dangerous product off the market that is often
used by young children and that was causing numerous neck injuries and
paralysis; and second, to punish the manufacturer for continuing to
market the product with knowledge of its very serious defects and to
deter other manufacturers from engaging in similar conduct.
I would say that in this case, the jury--in a State court--knew
exactly what it was doing and justice was served.
Mr. President, the Wisconsin jury in this case awarded $10 million in
punitive damages in the slip 'n slide case. I have no doubt that most
of the proponents of this bill believe that this is a classic case of a
jury run amok.
Here is what I find interesting though. That jury found the
manufacturer in this case 100 percent at fault. Suppose this was a
criminal defendant on trial for assault with a deadly weapon. After
all, the manufacturer in this case was marketing a product that they
knew was causing neck injuries and paralysis.
The fact is, if this had been a criminal defendant I have no doubt
that there would have been a bidding war on the other side to see who
could propose the stiffest criminal sentence for this defendant.
We can only speculate about what the fate of the Slip 'n Slide would
have been had this accident and litigation occurred in a State that
currently prohibits punitive damage awards. Most likely, more neck
injuries and maybe some fatalities would have occurred until a suit had
been filed in a court where punitive damages were permitted.
Had the underlying bill been in effect 4 years ago, that Wisconsin
jury would have had to award an amount consistent with the arbitrary
cap. One can only wonder if the manufacturer would have pulled this
dangerous product because of a $250,000 slap on the wrist.
Let me say this one more time: The jury in this case--a State jury--
found the manufacturer to be 100 percent at fault. The jury found that
the manufacturer continued to market the product--a product targeted
mostly at children--even after the manufacturer discovered that the
product was causing numerous neck injuries and paralysis.
The jury elected to award substantial punitive damages to punish the
manufacturer for this reprehensible behavior
[[Page S6397]] and to deter other manufacturers from engaging in
similar conduct.
I say to my colleagues that this is exactly what our civil justice
system, grounded in the principle of trial by jury, was designed to do
and I am confounded as to why the supporters of this bill are unwilling
to trust those Americans that meet their civil duties by serving on
juries.
How troubling that at a time when Americans are so distrustful of
their Government that we in Government are not willing to trust
Americans to administer civil justice.
Mr. President, I am somewhat mystified as to how supporters of this
bill can suggest that this bill is proconsumer when they want to place
this kind of a straightjacket on juries. In addition, I find it
absolutely ludicrous that the supporters of this bill would suggest
that we are providing uniformity when we are going to have completely
different punitive damage standards throughout the 50 States.
Let me provide another example of how this bill would pre-empt State
laws to the extent that those laws are proconsumer.
S. 565 creates a new Federal standard for the number of years a
manufacturer or product seller can be held liable for a harm caused by
a particular product. Known as a statute of repose, that period is 20
years under this bill. Why 20 years? Good question.
The product liability legislation considered in the last Congress,
written by the same two principal authors, contained a 25-year statute
of repose--5 years longer. Why? Well a footnote in the committee report
from last year justified 25 years by pointing out that according to
testimony received by the Commerce Committee, and I quote,
Thirty percent of the lawsuits brought against machine tool
manufacturers involve machines that over 25 years old.
Therefore, presumably, the authors of this bill selected 25 years as
the life expectancy of all products manufactured in the United States.
But now we have a new bill that the supporters have tried to
characterize as much more moderate and much narrower than either the
House-passed legal reform legislation or the product liability bill
considered by the Senate just last year. But remarkably, the 25-year
statute of repose has been dropped to 20 years.
Why? Once again, good question. This year's committee report
conspicuously leave out that footnote about the machine
tool testimony, and makes absolutely no mention whatsoever as to why
20 years was selected.
Instead, the committee report promotes the consistency of this
statute of repose with the General Aircraft Revitalization Act of 1994,
passed by this body last year. Mr. President, I voted for that
legislation. But that legislation provided an 18 year statute of repose
for a very narrow segment of our manufacturing base.
This body came to the conclusion, the overwhelming conclusion as I
recall that vote, that 18 years was a reasonable length of time for
liability claims associated with the general aviation aircraft.
This statute of repose, however, is entirely different. His 20-year
period would apply to all durable products across the board with a few
limited exceptions. Machine tools, farm equipment, football helmets--
you name it. This Congress is going to decide that the life expectancy
of virtually every product in America is 20 years.
But this takes us back to the issue of selective preemption of State
authority over liability laws. Section 108(B)(2) reads;
. . . If pursuant to an applicable State law, an action
described in such paragraph is required to be filed during a
period that is shorter than the 20-year period that is
shorter than the 20-year period specified in such paragraph,
the State law shall apply with respect to such period.
In other words, if a state legislature has decided against having a
statute of repose, or has decided on a statute that is longer than 20
years, this new Federal law will override the judgment of that State
legislature. Again, so much for uniform Federal standards.
Ironically, this year's committee report also justifies a Federal
statute of repose on the basis that Japan is poised to enact a short
10-year statute of repose. So now apparently the Japanese Government
knows better than the State of Wisconsin how to properly administer
civil justice in cases involving Wisconsin litigants. I wonder how the
Framers of the Constitution would feel about that assertion.
Before I conclude my remarks, Mr. President, I would like to remind
my colleagues of the giant precedent we are about to set, or the
radical departure from our current system as the Chief Justices put it.
This legislation would make dramatic alterations to some of the oldest
and most fundamental underlying principles of our judicial system.
Product liability is just a first step--the majority has made their
intention clear to pursue legislation that would overhaul our entire
civil justice system.
As we make these sort of tremendously consequential decisions, there
are a variety of groups and individuals we can seek advice from. Those
of us that oppose this legislation have chosen to listen to the experts
on this issue--whether it is Chief Justices, the American Bar
Association or the National Conference of State Legislatures.
But those who support this legislation do not want to listen to State
legislators, judges or even the consumer organizations that this bill
purports to protect. Instead, the other side has chosen to listen to
the advice of corporate America on how to best to shield those who
manufacture and sell defective products from any sort of liability.
That is unfortunate for all of us.
Thank you, Mr. President, and I yield the floor.
Mr. DOMENICI. Mr. President, I am pleased to support the efforts of
my colleagues today to reform our system of products liability
litigation. The Senator from Washington [Mr. Gorton], the Senator from
Utah [Mr. Hatch], and the Senator from West Virginia [Mr. Rockefeller]
deserve a lot of credit for putting together a bipartisan approach to
solving the problems associated with products liability.
I have watched this debate over the past 2 weeks with great interest.
I was pleased to see that there was some interest in expanding this
bill in order to achieve general across-the-board legal reform, and I
supported many of the thoughtful amendments which were brought to the
floor. I would have preferred to include the rule 11 amendment offered
by the distinguished Senator From Colorado [Mr. Brown] and the
amendment on joint and several liability offered by the distinguished
Senator from Michigan [Mr. Abraham] in any bill we might eventually
pass. But I realize that in the interest of compromise, changes had to
be made in order to get something passed, and unfortunately that
compromise will not include comprehensive legal reform.
I am no stranger to legal reform. I have been trying to fix our
broken securities class action system for several years, and many of
the problems associated with securities litigation are inherent to our
general tort system. I also have introduced legislation in past years
to fix some of the problems associated with medical malpractice.
I am disappointed that we will not address medical malpractice
litigation reform in this bill. The distinguished Senator from Kentucky
[Mr. McConnell] and the chairperson of the Labor Committee, the
gentlewoman from Kansas [Mrs. Kassebaum], did a fine job putting
together a comprehensive and fair overhaul of our medical malpractice
system. There were several provisions in the medical malpractice
amendment which I included in my health care reform bill last Congress,
and I believe that the amendment would have gone a long way toward
reducing health care costs for all American citizens. For that reason,
I hope that we will take up medical malpractice reform later on in this
Congress.
Particularly, I would like to address collateral source reform, which
would prevent duplicative payments by insurance companies for the same
injuries. I heard just last week from an individual who works for a
company that sells insurance in my home State of New Mexico. He told me
about a case that he just handled where a claimant was paid five
different ways for the same injury. He told me that four ways was
common, but that this was his first five-way case. He told me that if
we want to achieve significant reform, preventing
[[Page S6398]] this sort of duplicative payment and the litigation
that goes along with it will substantially strengthen our system. I
hope we will continue to pursue collateral source reform later this
year.
I also had hoped that we would be able to include general rule 11
reform in this bill and the Senator from Colorado, Senator Brown,
should be commended for bringing his important amendment to the floor.
Prior to 1993, courts were required to sanction attorneys who filed a
frivolous complaint, and rule 11 served as a healthy deterrent to
strike suits. However, rule 11 was weakened in 1993 and judges were
given the discretion to impose sanctions even when they found that a
complaint truly was frivolous. Senator Brown's amendment would return
us to the pre-1993 standard and adopt a preference for the sanction to
be payment of the attorneys fees and costs of the opposing party.
It also would limit fishing expedition lawsuits by requiring
attorneys to make an adequate inquiry into the facts prior to the
filing of a complaint. Attorneys should be required to stop, think and
investigate the facts before filing lawsuits which could have a
potentially devastating effect, and Senator Brown's amendment would
have done just that. I believe that this issue also should be re-
visited later in the year.
As for products liability, there can be no doubt that the current
system in place in this country extracts tremendous costs from the
business community and from consumers. The great expense associated
with products liability lawsuits drives up the cost of producing and
selling goods, and these costs are passed on to the American consumer.
We have heard several Senators talk about how half of the cost of a
$200 football helmet is associated with products liability litigation,
and how $8 out of the cost of a $12 vaccine goes to products liability
costs. We can no longer afford to require our consumers to pay this
tort tax.
Because of the high costs associated with products liability
litigation, American companies often find it difficult to obtain
liability insurance. The insurance industry has estimated that the
current cost to business and consumers of the U.S. tort system is over
$100 billion. Insurance costs in the United States are 15 to 20 times
greater than those of our competitors in Europe and Japan. Much of this
money ends up in the pockets of lawyers, who exploit the system and
reap huge fee awards while plaintiffs go undercompensated and our
businesses suffer.
For companies involved in the manufacture of certain products, like
machine tools, medical devices, and vaccines, this means that
beneficial products go undeveloped, or after they are developed, they
do not make it to the marketplace out of fear of being sued. This
hampers our competitiveness abroad, and limits the products available
to consumers. Harvard Business School Prof. Michael Porter has written
about how products liability affects American competitiveness. He
wrote:
In the United States * * * product liability is so extreme
and uncertain as to retard innovation. The legal and
regulatory climate places firms in constant jeopardy of
costly, and, as importantly, lengthy product liability suits.
The existing approach goes beyond any reasonable need to
protect consumers, as other nations have demonstrated through
more pragmatic approaches.
In the case of manufacturers of vaccines and other medical devices,
the cost of our unreasonable and certainly unpragmatic products
liability litigation system often means that potentially life-saving
innovations never make it to the American public. Products liability
adds $3,000 to the cost of a pacemaker, and $170 to the cost of a
motorized wheelchair. It also has caused the DuPont Co. to cease
manufacturing the polyester yarn used in heart surgery out of fears of
products liability litigation. Five cents worth of yarn cost them $5
million to defend a case, and DuPont decided that they simply could not
afford further litigation costs. Now, foreign companies manufacture the
yarn and will not sell it in the United States out of fear of also
being sued.
In cases where a truly defective product has injured an individual,
the litigation process is too slow, too costly, and too unpredictable.
This bill, because it creates a Federal system of products liability
law, will return some certainty to a system that now often
undercompensates those really injured by defective products and
overcompensates those with frivolous claims.
Those injured by defective products often must wait 4 to 5 years to
receive compensation. This leads victims to settle more quickly in
order to receive relief within a reasonable time. Companies must expend
huge amounts of money in legal fees to settle or litigate these long,
complicated cases. These again are resources that could be better spent
developing new products or improving the designs of existing ones.
Another major problem with our tort system is with punitive damages.
As their name implies, punitive damages are designed to punish
companies and deter future wrongful conduct. They are assessed in these
cases in addition to the actual damages suffered by injured victims.
Unfortunately, these damages have little effect except to line the
pockets of lawyers. They serve relatively little deterent purpose and
led former Supreme Court Justice Lewis Powell to describe them as
inviting ``punishment so arbitrary as to be virtually random.'' Because
juries can impose virtually limitless punitive damages, in Justice
Powell's words, they act as ``legislator and judge, without the
training, experience, or guidance of either.'' Justice Powell is
absolutely correct, and I applaud the drafters of this bill for dealing
with the problems associated with these types of damages.
Reform of punitive damages will return some common sense to the
system. Under the current system, punitive damages do little to deter
wrongful conduct and merely serve to line the pockets of contingency
fee lawyers. Huge punitive damage awards also threaten to wipe out
small businesses and charitable organizations. By limiting the amount
of punitive damages available in these cases and raising the legal
threshold for an award of punitive damages, this bill will relieve some
of the pressure on even the most innocent defendant to settle or face
an award which could potentially bankrupt the company. It also will
provide some uniformity and certainty in States which still allow
punitives. Finally, for those States which do not allow punitive
damages, I think the bill makes it clear that they may continue to do
so.
The drafters of this bill also have taken the wise step to reform
joint liability, without limiting the ability of plaintiffs to recover
their economic damages. The bill abolishes joint liability for
noneconomic damages, like pain and suffering, but allows States to
retain it for economic damages like hospital bills. This will reduce
the pressure on defendants who are only nominally responsible for the
injury to settle the case or risk huge liability out of proportion to
their degree of fault, while ensuring that injured victims get
compensated for their out-of-pocket loss.
I would have liked to see this extended across the board to all civil
cases and I voted for the Abraham amendment, but at least in the area
of products liability, this provision strikes a fair balance between
the rights of injured plaintiffs and those of those defendants brought
into cases merely because of their deep pocket.
The bill also limits liability in cases where the victim altered or
misused the allegedly defective product in an unforeseeable way. It
simply is unfair to hold manufacturers liable in cases where consumers
use products in ways for which they were not intended. It also is
unfair to hold defendants liable in cases where the plaintiff's use of
alcohol or drugs significantly contributed to their injury. I am happy
to see that this bill provides an absolute defense in such cases.
Mr. President, as I said earlier, I am no stranger to legal reform.
Many of those who are responsible for this important and well-crafted
legislation are cosponsors of the securities reform bill Senator Dodd
and I hope to bring to the floor soon after this bill. I hope that we
can follow our colleagues in the House and enact comprehensive but fair
legal reform in the 104th Congress. I appreciate all of the hard work
that went into this bill and hope that we will pass it.
Mr. GLENN. Mr. President, product liability reform is long overdue
and I am pleased that the Senate is acting
[[Page S6399]] favorably on this bill. I have cosponsored product
liability reform legislation in three previous Congresses.
I believe that this legislation is good for both consumers and
businesses. Our product liability system is out of control and reform
is desperately needed. Under our current system manufacturers of
products are subject to a patchwork of varying State laws whose
beneficiaries are most often lawyers instead of litigants.
The Congress is currently debating the proper role of the Federal
Government across a broad range of issue areas. Many believe that
functions now conducted at the Federal level should be moved to the
States. On this issue I believe that we need a more uniform system of
product liability and therefore Federal standards are necessary.
The current system is unfair to consumers. Much too much of the money
paid by manufacturers goes to attorneys' fees instead of the injured
party. the high cost of product liability insurance means higher costs
for consumers. Because of the unpredictability of the current system,
many severely injured consumers receive less than they deserve while
mildly injured consumers often recover more. Furthermore, because of
unpredictability, cases which are substantially similar receive very
different results. Product liability cases often require a great deal
of time and many claimants are forced to settle because of economic
necessity.
The current system is unfair to manufacturers. The cost of litigation
is a substantial expense to companies. Companies spend more on legal
costs and less on other important areas such as research and
development. In some cases manufacturers decide not to invest in or
develop new products because of product liability concerns. Ultimately
this burden or product liability makes our companies less competitive
in world markets than foreign companies.
During the debate on this legislation, I have been particularly
concerned that as we reform our product liability laws we do not affect
the rights of individuals to bring suits when they have been harmed. On
the contrary, it is my intent to bring rationality to a system that has
become more like a lottery. For me, legal reform does not mean putting
a padlock on the court house door.
There are several very important improvements that this legislation
will provide. A statute of repose of 20 years is established for
durable goods in the workplace. After 20
years no suit may be brought unless there is an expressed warranty.
Joint liability is abolished for noneconomic damages in product
liability cases. Defendants are liable only in direct proportion to
their responsibility for harm. Therefore, fault will be the controlling
factor in the award of damages, not the size of a defendant's wallet.
Another important area is punitive damages. I am supportive of
raising the standard of proof to clear and convincing evidence. I am
very concerned, however, about the establishment of caps on punitive
damages and that the bill not impose a one size fits all prescription.
In fact this is the issue that kept me from cosponsoring this
legislation during this Congress. The bill originally provided for a
proportional cap based on economic damages. During the amending
process, that cap was improved by including all compensatory damages.
Even with that improvement, however, the bill remained too restrictive.
I support the further inclusion of the judge additur provision allowing
an increase in punitive damage awards in especially egregious cases.
However, I believe that an additional provision in the additur
section is without merit. That provision would allow a defendant
another trial on damages should additur occur. This goes against the
fundamental principles behind product liability reform--fairness,
simplification and streamlining the system. Instead, this provision
could provide a never ending litigation cycle which will insure full
employment for all lawyers. And it increases the burden on an already
overburdened legal system. This one provision is so egregious, that it
prompted my vote against cloture on the Gorton-Rockefeller compromise
which I found otherwise acceptable. I am pleased that Senators
Rockefeller and Gorton intend to address this language in conference.
Unfortunately, the product liability legislation this year turned
into a Christmas tree attracting numerous unrelated items that had
never been in the bill before. The expansion of the legislation to
include medical malpractice and general civil liability litigation, as
Senator Rockefeller has accurately pointed out, caused the tree to
topple over. Those matters should and will be addressed more completely
in separate legislation.
During the debate, the Senate considered several amendments
addressing medical malpractice. I believe action is needed to ensure
timely and appropriate awards for patients who are harmed by negligent
medical care, while at the same time protecting health care providers
from unwarranted lawsuits and the need to practice costly defensive
medicine.
I supported a medical malpractice amendment offered by Senator
Kennedy which was based on provisions contained in comprehensive health
care reform legislation in the last Congress. This approach requires
States to establish alternative dispute resolution mechanisms so that
cases can get an early hearing, and it limits attorney's contingency
fees to one-third of the first $150,000 awarded and 25 percent
thereafter. I regret that this amendment, which would have modified
Senator McConnell's medical malpractice amendment, was defeated.
I oppose Senator McConnell's medical malpractice amendment, for both
substantive and procedural reasons. I was concerned that the amendment
did not allow States to adopt their own medical malpractice laws if
they were more beneficial to consumers, and I opposed its caps on
punitive damages.
I am hopeful that the Senate will return to the important issue of
medical malpractice reform when the Labor and Human Resources Committee
reports the bill it has approved and during debate on health care
reform measures.
With the addition of medical malpractice and general civil liability,
efforts to pass product liability bill reform were diminished. All of
these extraneous items have threatened passage of a good product
liability bill and the White House has also made it clear that they
would veto such Christmas tree legislation.
In an effort to pare the bill back to its core principles, I opposed
motions to cut off debate on the bill. I believe that through this
process, the bill now provides effective product liability reform and
its chances of enactment are improved. I applaud the efforts of
Senators Rockefeller and Gorton in the enormous amount of work
undertaken to pass this legislation.
Mr. ROTH. Mr. President, the Senate's debate on product liability
reform has revealed that many citizens and many members of the business
community strongly favor legislation that would alter significant
aspects of tort law. Products liability law traditionally has been a
matter of State law, and the primary venue for products cases
traditionally has been the State courts, which are our Nation's courts
of general jurisdiction. Proponents of the products liability
legislation have asked us, then, to change the laws of each State by
creating Federal standards that would apply in all products cases,
whether they are brought in Federal or State courts.
I oppose Federal products liability legislation because it will
preempt whole areas of State law that have been developed incrementally
over many, many years. The legislation does not deal with Federal
question jurisdiction or any Federal cause of action. Instead, it
pertains to an area of law that has long been the primary
responsibility of State courts. If it is to occur, the reinvention of
tort law should occur through the State courts and legislatures, which
are best situated to determine and control the impact of reform within
their own communities.
We are not dealing in an area where the States have proven incapable
of enacting change. The vast majority of States have already adopted
some type of tort reform, and many States are considering further
changes. These reform measures have varied widely. Some have involved
more dramatic changes than the Senate has debated; some have involved
more modest
[[Page S6400]] changes; and some have involved referendums on
important Sate constitutional provisions. In my own State of Delaware,
the State legislature has before it several different tort reform
proposals.
The impact of the reforms passed so far at the State level is
unclear, but at least by one measure, the State reforms appear to be
having a positive effect. In a recent survey involving 1993 data,
American businesses for the first time in many years reported that they
spent less on insurance and other risk-related expenses than they did
the year before. Much of the savings came from changes enacted by
States to their workers compensation laws, which have enabled employers
to contain their workers compensation costs in various ways. The survey
reported that the cost businesses paid for liability risks, which
includes products liability, had leveled out. This is encouraging news.
The patchwork course of tort reform at the State level has not
happened with the alacrity or the uniformity that many reform
proponents would like to see. But the State efforts demonstrate why
Federal legislation in this area is so profoundly misguided. In the
best tradition of our Federal form of Government, the States have
balanced, and in many instances are still considering how to balance,
the competing interests in the tort reform debate for their own
communities. We stand poised to upend that State-based process in favor
of legislation that purports to create uniform Federal standards. In
doing so, we are involving the Federal Government intimately in an area
where it does not belong.
The Supreme Court's recent ruling in United States versus Lopez, the
case which struck down as unconstitutional the Federal Gun Free School
Zones Act, raises a serious question as to whether the Federal
Government is permitted to take over the law of products liability.
I oppose the products liability legislation not because of any
specific provisions being debated, but because the federalization of
this area of the law is a bad idea. Federalizing products liability law
embarks us, I fear, on a course where over the years Congress will
succumb to a creeping temptation to federalize other areas of State law
solely, as in this case, on the grounds of convenience. I am wary of
where that course leads.
(At the request of Mr. Rockefeller, the following statement was
ordered to be printed in the Record.)
Mr. LIEBERMAN. Mr. President, due to the death of a close
family member, I am regrettably unable to be present on the Senate
floor today to join my colleagues in passing product liability
legislation. It is day long awaited by those of us who have been
working on behalf of reform for years only to be denied, not only
passage of a bill, but full and open debate. I was proud to be a
cosponsor of past product liability bills, including this year's bill,
S. 565.
Credit for this remarkable turn of events is due to Senators
Rockefeller and Gorton, who have labored long and hard on the Senate
floor over the last 2 weeks and, quite literally, for years to produce
a fair bill. It is their perseverance and fair treatment of all that is
responsible for our success today. Their staffs have done extraordinary
work on their behalf and deserve all of our thanks--Tamera Stanton,
Ellen Doneski, Lance Bultena, Trent Erickson, and others.
Were I present today, I would have voted to table Harkin amendment
No. 749, to table Dorgan amendment No. 629 and, of course, I would have
enthusiastically voted ``yes'' for final passage.
Mr. President, I would ask unanimous consent that I be added as a
cosponsor of the bill as passed by the Senate today. This is an
important first step toward comprehensive reform of our legal system.
It is incremental reform, but it's significance should be understated.
It establishes some important principles for further reform: parties
responsible for harm must be held fully accountable and parties who
have caused no harm should not be bullied into settlements by a system
that does more to compensate lawyers than to achieve justice for
injured people.
Mr. PRESSLER. Mr. President, as we conclude the debate over S. 565,
the Product Liability Fairness Act, we have come full circle.
committee action
On March 15 I joined with Senators Gorton and Rockefeller in
introducing legislation designed to reform that portion of America's
tort system dealing with products liability. Two days of hearings were
conducted on the bill and on April 6 the Senate Committee on Commerce,
Science, and Transportation, of which I am chairman, met in executive
session to consider the legislation.
During the committee process there was talk of expanding the bill to
encompass a broader array of tort reform. As chairman, I resisted
efforts to expand the legislation into any areas that did not fall
within the jurisdiction of the Commerce Committee. Do not get me wrong.
I support more broad-based tort reform. My voting record over the past
2 weeks proves that fact. However, during committee consideration I
believed it was important not to add provisions that fall under the
province of other Senate committees. As a result, on April 6 the
Commerce Committee voted 13 to 6 to send a products liability reform
bill to the full Senate.
senate consideration
On April 24 the full Senate took up the measure. Over the past 2\1/2\
weeks the legislation has consumed some 90 hours of Senate debate. It
has been a constructive process. No one can say this body did not fully
explore the issues involved. No one can say we blocked any attempts to
make changes to the legislation. Indeed, it was those--like myself--who
favored a broader bill that found themselves blocked.
Since April 24, we have debated and voted upon over 30 amendments.
Roughly a dozen of those dealt with reforming the medical malpractice
system. Senator McConnell introduced a broad
reform amendment similar to legislation that had been fully debated by
the Committee on Labor and Human Resources. That major amendment,
together with a number of smaller malpractice reform measures passed
the Senate and became part of the bill. I was proud to support these
efforts and voted for many of the malpractice initiatives.
Next the Senate turned its attention toward broadening reforms
concerning punitive damages. By considering some half dozen punitive
damages amendments and adopting several--including major provisions
offered by Senators Dole and Hatch, by Senator Snowe and by Senator
DeWine--a majority of the Senate worked its will to expand the reform
of punitive damage awards from product liability cases to include all
civil cases. Again I supported these efforts and worked for their
passage.
Finally, the Senate turned to a consideration of joint and several
liability. S. 565 as reported contained a provision abolishing joint
liability for noneconomic damages. As to these damages, defendants
would be liable only in direct proportion to their responsibility for
the claimant's harm. They would not be responsible for the harm caused
by another defendant who later was found unable to pay the compensation
awarded. In other words, with regard to noneconomic damages, a
defendant's liability would be several and not joint. Senator Abraham
offered an amendment on the floor to extend this concept to all civil
cases. Unfortunately, that amendment was tabled.
Mr. President, these actions brought us to Thursday of last week.
They also put a majority of the Senate on record in favor of broad-
based legal reform. Most importantly, our efforts produced a fair,
reasonable, and balanced bill.
Sadly, our efforts were not enough. Last Thursday the Senate failed
in two votes to end debate, allow a vote on final passage of the bill,
and move to a conference with the House of Representatives to work out
the difference between our bill and the much more sweeping legislation
passed by the House earlier this year.
As a result, Senate leadership crafted an alternative bill. That
measure, introduced Friday as a substitute to the pending legislation,
returned the reform initiative to its Commerce Committee roots. That
proposal, along with the amendment we are debating today, is very
similar to S. 565 as reported by the Commerce Committee.
How did this happen? Quite simply the opponents of broad-based tort
reform were highly effective in their
[[Page S6401]] campaign against the legislation. Like much of the
debate over the issue of civil justice reform, the rhetoric tended to
get very emotional and often strayed off course.
the truth about the bill
Mr. President, the truth is this legislation would not change any of
what is right with our current legal system. The courthouse doors would
remain open. Consumers would still have a full range of rights. Persons
wrongfully injured still would be compensated. Tort cases could be used
to provide a strong check on corporate behavior. Contingent fees would
continue to allow ordinary citizens with limited means the ability to
bring suit. What would change is that frivolous lawsuits would be
curtailed--pure and simple.
In an earlier statement I outlined how the bill's provisions
concerning punitive damages, the statutes of limitations and repose,
joint and several liability, defenses for alcohol and drug abuse, and
biomaterial suppliers would benefit small business, consumers, and
those injured by products. Therefore, I will not take the Senate's time
to reexamine those issues today. It is not necessary. Under the latest
alternative we have before us today, the things I said in that
statement continue to apply.
I would add only a few comments concerning the views of the American
people--specifically the citizens of my home State of South Dakota--
with regard to our legal system. A recent poll conducted in my State
found that 83 percent of survey respondents say that ``the present
liability system has problems and should be improved,'' while only 10
percent say that ``the present liability lawsuit system is working well
and should not be changed.''
In addition, this is not a partisan issue: 78 percent of Democrats,
83 percent of Independents, and 88 percent of Republicans in South
Dakota responding to the survey say there are problems that need to be
improved. of those who had served on a civil trial jury, 79 percent say
the system has problems and needs improvement.
Mr. President, the pending measure is not as broad as I would like. I
truly wish we could have done more to address the problems of the tort
system generally and not limit ourselves simply to product liability
cases. However, I am gratified the model used by the Senate for product
liability reform continues to be the bill reported to this body by the
Commerce Committee. It represents an excellent move forward and I
strongly urge all of my colleagues to vote for this legislation.
Mr. BINGAMAN. Mr. President, I rise today in opposition to H.R. 956,
the Product Liability Act of 1995.
I have closely followed the debate on this legislation over the past
2 weeks and I have come to the conclusion that despite the efforts of
many of this Chamber, including my good friend from West Virginia, to
craft a balanced bill, the bill we are voting on today falls short of
that goal.
Mr. President, the issues we have debated over the course of the past
2 weeks are complex and far reaching. Contrary to what some would have
the American public believe, the solutions to the problems facing our
legal system cannot be explained away in 30-second sound bites or by
anecdotal evidence. Each day throughout this country, judges and juries
struggle to determine what is meant by justice, and, I believe in the
vast majority of cases, these people, our neighbors, friends, coworkers
and family, do a remarkable job of determining what is fair and what is
just.
I have supported reforms to our legal system in the past and was
prepared to support a reasonable reform measure at the end of this
debate. I am a cosponsor of S. 240, the Securities Litigation Reform
Act of 1995, authored by my colleagues from New Mexico and Connecticut.
I have supported my own State's efforts at reform in the area of
product liability and medical malpractice, and I worked with my
colleagues on the Labor and Human Resources Committee last year to
fashion reasonable medical malpractice reform during the health care
reform debate. Last week, I voted for an amendment by my colleague from
Massachusetts, Senator Kennedy, that was a reasonable approach to
medical malpractice reform and would have protected the rights of
States such as New Mexico to enact their own reform.
Indeed, a proposal that would have significantly improved this
legislation was considered by Senator Breaux. This amendment would have
created a truly uniform statute of repose and addressed the concerns
about the elimination of joint and several liability in a reasoned and
balanced matter. The amendment also would have allowed a jury to
determine whether or not punitive damages are warranted in a particular
case and would have allowed the judge to determine the amount of
punitive damages that should be awarded. Unfortunately, Senator Breaux
did not have the opportunity to offer his amendment and the Senate did
not have the opportunity to debate it as a result of cloture being
invoked yesterday.
I have come to the conclusion that the bill that we vote on today
tilts the scales too heavily against protection of the rights of
injured victims and against just punishment of dangerous practices.
Also, Mr. President, I am concerned about the provision limiting the
award of punitive damages in cases filed against a small business. I
take a back seat to no one in my concern for small businesses and have
worked throughout my career in the Senate to promote the growth and
prosperity of small businesses especially in my home State. However,
the provision contained in this bill is not well considered; I am
afraid that it would lead to more litigation, not less, and arbitrarily
eliminate the opportunity for injured plaintiffs to recover fair and
just compensation for damages inflicted as a result of conscious and
flagrant indifference to their safety. That is what we are talking
about Mr. President, not simply a mistake, but a conscious and flagrant
indifference to the safety of consumers.
Mr. President, I would say to my friend from West Virginia, Senator
Rockefeller, and my friend from Washington, Senator Gorton, that I
commend them for their efforts during this debate to bring reason to
our deliberations. I know that they have worked diligently and in good
faith to develop meaningful and balanced legislation in this area.
Unfortunately, I do not believe that the bill before us reaches those
objectives and for that reason I intend to vote against this bill and
urge my colleagues to join me.
Mr. KERRY. Mr. President, when we talk about reforming product
liability law, we are talking about taking away the rights of U.S.
citizens. This is serious business--among the most serious things we
can do in the Senate, and it is from this perspective that we must
approach this debate.
Cloture has been invoked and we are about to vote on final passage.
But before we haphazardly strip citizens of their rights, we need to
take a long, hard look at what this means to people--how it affects
families and children and average, hard-working people who have
suffered.
Let us take a representative case. It is a wrongful death case.
A woman drives a Pinto to the super-market. Someone bumps into the
rear of the car, and the car explodes--it explodes. She is tragically
burned alive--a wife, a mother, a human being burned alive because of
what, after years of legal hassling and thousands of dollars in legal
fees, lawyers hours, and a legal battle that has become part of tort
history, Ford had calculated that it was cheaper to settle than to
protect the lives of every Pinto owner with a recall.
It made good business sense to take the risk of people dying.
Mr. President, that kind of business sense is exactly what I am here
to fight against.
I am here to fight for the husband of that woman in the Pinto. I ask
my colleagues--would you settle for $250,000 in exchange for losing
your spouse and destroying your life?
Is that fair? Is that just?
Mr. President, if this bill were to become law, you would not even
get the $250,000 because there is not a lawyer in the country who would
take the case.
No law firm could afford to go up against the Ford Motor Co., with
its host of attorneys and huge legal budget, and an infinite ability to
push motions and appeals to the limit and slow down the process to
their advantage. It just would not happen.
Mr. President, I cannot sanction stripping this legal right from even
one American. I cannot do it. And anyone who can, should look into the
eyes of
[[Page S6402]] that husband. They should look into the face of the
thousands and thousands of victims across this country who seek simple
justice and fairness and ask only to be given a chance to fight the big
guys.
It is a matter of fairness. It assures that those who do not have the
resources to fight the richest and most prominent American corporations
when they are wrong will have a chance for simple justice.
I am here to fight for average hard-working Americans and to put a
face to this legislation--to talk about how this bill will affect real
Americans. Real Americans, like the 5-year-old boy in New Bedford, MA,
who died in a house fire after the flammable material on a couch
ignited, or the 8-month-old baby who suffered second- and third-degree
burns on his arms, legs, and back in a house fire that started when the
bedding in his crib was ignited by a portable electric heater.
Or, the eight working-class families in Woburn who sued two of our
Nation's biggest corporations because they suspected the companies had
polluted the East Woburn water supply with highly toxic industrial
solvents, causing death and injury to their children.
The Woburn case took 9 years, and the attorney that pleaded the case
spent $1 million of his own money on it. The jury ultimately found one
of the companies negligent, and the scientific research done during the
9-year trial demonstrated the link between the industrial solvents in
the water supply and human disease. The company is now helping to clean
up the polluted aquifer. The attorney has said that if this bill were
law today, he would never have considered the case.
If we pass the Dole substitute to H.R. 956, I fear we will be doing
great harm. Our votes will have a serious impact on real Americans.
Mr. President, our laws play a critical role in fostering a
competitive economic environment by establishing groundrules for fair
competition and by helping to reduce the costs of doing business. But I
believe Congress has a special responsibility to ensure the laws we
write are reasonable and fair; we must weigh the impact of laws will
have on both consumers and business.
In the 10 years I have considered product liability reform at the
Federal level, I have heard proponents of reform argue that consumers
lose under the present system. They have argued that injured consumers
receive inadequate compensation, and that injured consumers wait
unreasonable amounts of time in litigation--on the average of 3 years--
before they receive compensation. They have also argued that injured
consumers face closed courthouse doors because the statutes of
limitation have expired on their cases.
Proponents of reform have stressed that companies in the United
States also lose under the current system. They have pointed to
insurance rates that disable American manufacturers by forcing them to
pay 10 to 50 times more for product liability insurance than their
foreign competitors. They have claimed there is an explosion in
products liability litigation, with uncontrollable punitive damages
awards. They have argued that the present system of lottery liability,
where liability differs from State to State, does not enhance the
safety of U.S. products.
Each time the Senate has considered products liability legislation, I
have measured the legislation against four tests: Is it fair to injured
consumers; will it help lower insurance rates for American business;
will it help reduce the number of tort cases and lower the cost of
litigation, the transaction costs, for American business; and will it
create uniformity in the laws covering products liability or generate
more confusion in the legal system?
In my examination of whether S. 565, the products Liability Fairness
Act, and the Dole substitute satisfy these tests, I have concluded that
this legislation fails on each account. It does not address the real
concerns of business, nor is it fair to consumers.
is the legislation fair to consumers?
Consumer products are responsible for an estimated 29,000 deaths and
30 million injuries each year. But, according to the most authoritative
study on punitive damages, conducted in 1993 by professors at Boston's
Suffolk University Law School and Northeastern University, there were
only 355 awards in products suits from 1965 to 1990, and half of these
awards were reduced or overturned. In my own State of Massachusetts,
there were absolutely no punitive damages awarded in products cases.
Contrary to ensuring that injured consumers will receive adequate
compensation in relation to their actual damages, this legislation
imposes a cap on punitive damages. This is perhaps the most damaging
aspect of this legislation to consumer interests. Although the cap has
been amended to equal the sum of economic and noneconomic damages, a
cap is still a cap.
In our civil justice system compensatory damages--economic and
noneconomic for pain and suffering--compensate victims; in addition,
punitive damages may be awarded by juries to punish the wrongdoer.
As such, punitive damages are often the only way individual Americans
can force reckless defendants to change their conduct. However, despite
the effectiveness of punitive damages as deterrents, they are
exceedingly rare.
And the new standards imposed for punitives in this bill will make
them more rare than the Alabama sturgeon.
Under most State laws, the defendant can be found liable for punitive
damages if they engaged in reckless or willful and wanton or grossly
negligent type of behavior.
But under this bill, Mr. President, such behavior is not enough. A
plaintiff must show that a company engaged in conduct manifesting a
``conscious, flagrant, indifference to safety''. I have no idea what
that means, Mr. President. but it certainly appears to be a tougher
standard to meet.
Moreover, it is unclear how the cap on punitives in this bill would
affect the 39 States that presently either do not permit punitive
damage awards or have enacted measures that significantly reduce the
size and frequency of such awards.
Far from ensuring injured consumers will enjoy expeditious resolution
of their case, this legislation could prolong litigation by allowing
either party to request a separate hearing in order for punitive
damages to be awarded. Far from ensuring courthouse doors remain open
to injured consumers, this bill imposes a 2-year statute of limitation
and shortens the statute of repose by 5 years from last year's bill.
If this bill truly protects consumers interests, why is it opposed by
every major consumer group in America?
If this legislation had been in effect, many cases would simply not
have been possible. Let me give just one more example here:
In 1988, Playtex removed from the market its super-absorbent tampons
linked to Toxic Shock Syndrome only after a $10 million punitive
damages award following the death of a woman who used the tampons.
The Tenth Circuit Court of Appeals found ``Playtex deliberately
disregarded studies and medical reports linking high-absorbency tampons
fibers with increased risk of toxic shock at a time when other
manufacturers were responding to this information by modifying or
withdrawing their high-absorbency tampons.''
Playtex subsequently strengthened its warnings and began a public
awareness campaign about the dangers of toxic shock. It is doubtful
whether a cap of $250,000 on punitive damages would have caused Playtex
to alter its behavior.
If the cap on punitive damages contained in this legislation is
enacted, wrongdoers may find it more cost effective to continue their
bad behavior and risk paying punitive damages. I do not believe we
should pass a bill that reduces the incentive for companies to produce
the safest products.
will this legislation lower insurance costs for businesses?
In testimony before the Commerce Committee several years ago, the
American Insurance Association stated:
The bill is likely to have little or no beneficial impact
on the frequency or severity of product liability claims * *
* And it is not likely to reduce claims or improve the
insurance market.
So, this legislation will not provide businesses with cheaper
insurance rates. Insurance premiums for most industries account for
less than 1 percent of a business' gross receipts. Such a small
percentage hardly threatens the
[[Page S6403]] viability of business and should not result in
increased costs to consumers.
Over the last decade, product liability insurance cost 26 cents per
$100 of retail product sales, which would account for $26 on the price
of a $10,000 automobile. Since 1987, according to a study by the
Consumer Federal of America, product liability insurance premiums have
actually dropped by 47 percent, from $4 billion to $2.7 billion, a fact
that was confirmed by a 1992 Commerce Department study.
Let us take a look at Florida. In Florida's 1986 tort reform law, the
State eliminated joint and several liability, limited noneconomic
damages to $450,000, limited punitive damages, and required the
insurance industry to make rate filings indicating the effect of the
changes in its tort laws on product liability insurance rates.
Yet, Aetna's subsequent rate filing listed the effect of each change
on its rates as zero. If such dramatic changes in Florida's tort reform
law resulted in no lowering of liability insurance costs for a major
carrier like Aetna, where is the evidence to suggest this bill will
produce different results?
will the legislation lower the cost of products liability litigation
for businesses?
Proponents of this legislation speak in terms of an explosion in
product liability litigation. However, the evidence belies this
characterization. In fact, the number of nonasbestos products liability
suits in Federal courts has declined almost 40 percent since 1985. In
State courts, where most products liability claims are filed, lawsuits
have remained constant since 1990, according to testimony presented to
the committee on April 3, by the National Center for State Courts.
The 1992 annual report of the National Center for State Courts found
that tort cases are approximately 9 percent of the 10 million civil
filings in State courts and products cases are 4 percent of these--
40,000.
Only one-third of 1 percent of all tort filings in State courts are
product filings.
Of all tort filings in 1991, 58 percent were related to automobile
liability; 33 percent were miscellaneous; 5 percent were malpractice;
and 4 percent were products. Since 1990, the national total of State
tort filings has fallen by 2 percent.
In 1990, the Rand Corp. found that most injured Americans never file
a lawsuit for their injuries: only 10 percent of injury victims ever
use the tort system to seek compensation for their injuries.
This report also found that only 7 percent of all compensation for
accident victims is paid through the tort system. The report observed:
Americans' behavior does not accord with the more extreme
characterizations of litigiousness that have been put forward
by some.
If there has been a litigation explosion, it is not in the area of
products liability. Once again, this legislation misses the target in
addressing the real litigation problems facing business.
will this legislation bring uniformity to product liability law?
Tort law has traditionally been a State responsibility, and the
imposition of Federal products standards upon State tort law would,
according to the National Conference of State Legislatures, ``create
confusion in State courts.''
Testimony by the Conference of Chief Justices was even more emphatic:
If the primary goal of this legislation is to provide
consistency and uniformity in tort litigation, we are
concerned that its effect will be the opposite.
Preempting each State's existing tort law in favor of a
broad Federal product liability law will create additional
complexities and unpredictability for tort litigation in both
State and Federal courts, while depriving victims of
defective products of carefully reasoned principles and
procedures already developed at the State level.
This bill will not end the search of the sponsors for a single
settled law because it does not create Federal question jurisdiction.
The legislation would preempt all related State law and substitute
Federal standards, but it would impose the Federal standards in a
single overlay upon the 56 existing State court systems as well as the
Federal courts.
The result will be both State and Federal courts applying a mix of
State and Federal law in the same case; State supreme courts will no
longer be the final arbiters of their tort law. The U.S. Supreme Court,
which many experts argue is already overburdened, will become the final
arbiter of this new legal thicket.
So, here we have what is indeed an irony: Those who ordinarily preach
the virtue of reserving power to the States are instead advancing
legislation to usurp the legitimate authority of States.
At a time when many in Congress are intent upon returning
responsibility for many Federal programs to the States, this
legislation would preempt State law.
Mr. President, the sponsors of this legislation have worked extremely
hard, and I particularly wish to commend my friend from West Virginia
for his tireless efforts on behalf
of this legislation. I also commend the ranking Democrat on the
Commerce Committee, Senator Hollings, for his stalwart defense of
consumer interests.
For all of this effort, I regret that I cannot support this bill. I
cannot support it for two very simple reasons. The legislation is
patently unfair to consumers, and it will not resolve the products
liability problems businesses tell me they face.
It will remove from ordinary Americans the power they retain in the
jury box to force accountability for dangerous, careless, or reckless
behavior. In the jury box, each American can bring about positive
change. If we undermine the ability of our citizens to force changes in
bad behavior, we will have compromised our Nation's core values.
While many Americans increasingly sense an erosion of personal
responsibility, our civil justice system remains one institution that
holds individuals and organizations accountable for their behavior.
Make no mistake, by restricting the civil justice system, this bill
will take rights away from Americans.
All of the available evidence on this legislation shows it will not
make businesses more competitive by reducing insurance rates or the
costs of corporate litigation, and it will not create national
uniformity in products liability law.
A great deal of hype has been generated about this issue, and after
15 years, it appears to have taken on a life of its own. But all the
lobbying and advertising cannot convince me that this legislation will
accomplish its stated goals.
The Dole substitute to H.R. 956 fails to strike a reasonable balance
between promoting the competitive interests of business and protecting
the rights of consumers. It will create a nightmarish new legal thicket
that should be avoided rather than embraced. It is unfortunate that
after all the effort we could not have achieved a reasonable balance.
After we have argued all the complicated points of law, after we have
poured over horror story after horror story, the issues boil down to
one simple point: This bill is not fair, and it should be rejected.
I yield the floor.
Mr. GORTON. Mr. President, I ask unanimous consent that a letter I
received from the National Federation of State High School Associations
be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
National Federation of State
High School Associations,
Kansas City, MO, May 9, 1995.
Hon. Slade Gorton,
U.S. Senate, Washington, DC.
Dear Senator Gorton: On behalf of the National Federation
of State High School Associations, I want to commend you for
your leadership on legislation to address the long overdue
reform of our civil justice system. We applaud your efforts
to rein in the exploding costs of litigation that, if
unchecked, threaten to bankrupt non-profit organizations such
as ours and our member affiliates. The National Federation is
comprised of 51 state high school associations, with the
primary purpose of promulgating sports and non-sports playing
rules, including those specific to safety issues, for more
than 20,000 schools and approximately 10,000,000 students
each year. Additionally, our member associations establish
and enforce the eligibility rules under which all boys and
girls compete in high school athletics.
The legislation pending before the United States Senate,
The Product Liability Fairness Act of 1995 (H.R. 956), sets
limits on all product liability cases. Furthermore, the bill
as currently amended, would eliminate joint
[[Page S6404]] liability for non-economic damages. Instead,
only several liability would be allowed which means that each
defendant would be liable only for his, her, or its portion
by reason of its proportion of the fault causing the injury.
Economic damages, i.e. lost wages, medical costs, etc. would
remain joint and several at the discretion of each state.
We strongly agree with your comment on the floor this past
week stating ``it is unfair and unproductive to make
defendants pay for damages of a nature that are literally
beyond their control or beyond their fault.'' This
fundamental concept should apply to the civil justice system
as well.
Let me cite two examples of costly litigation we recently
incurred which epitomize the unfairness and counterproductive
nature of current civil law. Both occurred in school swimming
pools.
First, in Indiana a high school boy was ``leap frogging''
off the starting platform, prior to the start of practice,
despite repeated warnings from his
coach. On one such leap, his foot got caught under the
platform; he fell head first into the water and struck his
head on the pool bottom. Tragically, he suffered a neck
injury that ultimately resulted in quadriplegla. While
this unimaginably horrible accident was not related to any
swimming competition, the National Federation was sued
simply because it writes the rules for interscholastic
swimming, including rules related to standards for
equipment and facilities such as the depth of swimming
pools.
Yet another incident occurred in Michigan during a water
polo practice. This incident involved a high school boy who
jumped off the platform over a lane designation rope and
struck his head on the pool bottom. This seemingly harmless
leap resulted in a lifetime of paralysis from the neck down.
While the National Federation does not even write water polo
rules, nor rules for the practice sessions for any sport, we
were included in the law suit and incurred exorbitant legal
fees for a defense that should not have been necessary.
These are but two examples of what has become a nightmare
of litigation for the National Federation and its member
affiliates. Without radical reforms to our system of civil
justice, organizations such as ours whose sole mission is to
build a consensus for safe sports competition will be
unfairly jeopardized and possibly destroyed.
Unfortunately, lawyers often join sanctioning bodies such
as ours in law suits as a trial strategy rather than because
of a reasonable belief that the injury was caused in any way
by the action of the sanctioning body. Current law
discourages sanctioning bodies from setting minimum safety
standards because of their fear of being joined in subsequent
litigation. This is bad public policy.
Therefore, in addition to holding firm in your effort to
reform the civil justice system, we urge you to include an
exemption in the law for sanctioning bodies such as ours who
are joined in law suits solely because they recommend minimum
standards for facilities and equipment for the purpose of
reducing risk inherent in participation in almost any given
sport. This exemption would be consistent with your stated
belief that it is unfair and unproductive to make defendants
liable for incidents that are ``literally beyond their
control or beyond their fault.''
Again, thank you for your leadership on this vital issue.
The members of the National Federation of State High School
Associations and I look forward to assisting you in achieving
these needed reforms.
Sincerely,
Robert F. Kanaby,
Executive Director.
Mr. BYRD. Mr. President, the Senate has been considering legislation
related to product liability for almost 2 weeks. During that time I
have heard from a number of West Virginians who have been harmed or
injured by defective products, as well as from businesses that have
been seriously impacted by lawsuits brought against them--at times
somewhat unfairly. I have listened to the debate and considered how the
Senate can best balance these competing interests, and have concluded
that the substitute amendment offered by Senators Gorton and
Rockefeller does not adequately protect the rights of injured parties
and consumers in two critical areas.
The first involves the issue of several or proportional liability,
versus joint and several liability. Under the concept of proportional
liability, a defendant is only responsible for a percentage of
liability directly contributing to the injury or harm caused by the
defective product. On the other hand, joint and several liability
provides that each defendant who contributes to causing a plaintiff's
injury may be held liable for the total amount of damages. Joint and
several liability, by enabling a plaintiff to recover all of his or her
damages from a single defendant with the greatest financial assets or
resources--the so-called ``deep pocket''--makes it more likely that the
plaintiff will obtain full recovery in the event that one defendant
does not have the assets to pay part of the judgment.
The proposed legislation completely eliminates joint and several
liability for noneconomic damages, such as pain and suffering, while
retaining it for economic damages. This means that victims would fully
recover their economic damages in the form of lost income or medical
expenses, but victims with higher lost incomes, such as business
executives, would receive greater compensation. Victims would fully
recover their economic damages, even if only one defendant among
several defendants is still solvent, because the ``deep pocket'' would
provide full compensation for economic damages; however, due to the
elimination of joint and several liability for noneconomic damages the
parties would only receive partial compensation for pain and suffering.
This provision could significantly reduce compensation in cases where
the individual could still earn a livelihood, and thus not have large
economic damages, yet that same individual could still have significant
noneconomic damages. In this context, noneconomic damages could include
not just pain and suffering, but also any diminishment of the quality
of life, such as infertility or the loss of a limb.
The result of completely eliminating joint and several liability for
noneconomic damages, then, would be that the innocent victim might not
receive a majority of the compensation due if the other wrongful
defendants were insolvent. I have concluded that this
provision in the legislation shifts the balance too far in the
direction of defendants at the expense of the victims of wrong doing in
the form of defective products.
The other key provision of the legislation is the section dealing
with punitive damages. Punitive damages are intended to punish willful
or wanton misconduct on the part of a manufacturer or business.
Furthermore, by punishing misconduct, punitive damages are intended to
deter such behavior in the future.
Punitive damages therefore must take into consideration the financial
assets of the defendant or guilty party. A punitive damage judgment of
$250,000 may be both harsh punishment and a significant deterrent to a
small business, but it is insignificant to a large corporation. Any cap
on punitive damages can only serve to benefit, if not condone,
egregious and wanton behavior by large corporations.
The legislation limits punitive damages to the greater of $250,000 or
two times the total economic and noneconomic damages. The bill also
stipulates that a judge may add to these punitive damages, and exceed
the cap, at his discretion. I am concerned that this ``judge additur''
provision does not fully resolve the problem of capping punitive
damages for large corporations. First, many judges may be reluctant to
overrule a jury's decision, and add to the punitive judgment. Second,
the effect could be arbitrary, as some judges may opt to add to
punitive judgments, while others may not. Third, the burden of proof
would be on judges to demonstrate why a larger punitive judgment that
would exceed the cap is necessary, which could discourage judges from
adding to punitive judgments. Fourth, it strikes at the heart of our
tradition of jury judgments in such product liability and civil
litigation.
I recognize that the current product liability system, which involves
different laws in each of the 50 States, imposes a considerable
hardship on some manufacturers, particularly in the case of small
business. I endorse the goal of establishing some type of national
uniformity in this area. However, I regret that I cannot support the
legislation that is now before the Senate. While national uniformity is
a laudable goal, any national standard must also fully protect the
rights of consumers and victims of harm caused by defective products.
While I may disagree on several of the provisions included in this
measure, I would be remiss if I did not acknowledge and salute the hard
work and leadership of Senator Rockefeller. He believes in this
legislation. He has put his heart into working on it, and I believe
that he is correct in that there are inequities in the present system
which need to be addressed. My opposition notwithstanding, I want to
commend both Senator Rockefeller and Senator Gorton for their tireless
[[Page S6405]] efforts on behalf of product liability reform.
Mr. LEVIN. Mr. President, I believe that there is a strong argument
to be made for uniformity in product liability law since so many
products are sold across State lines.
But there is no uniformity in this bill. This bill contains limits
and restrictions on compensation for injuries caused by defective
products, but those limits and restrictions are not uniform. On the
contrary, the bill contains a one-way preemption provision, which
allows States to adopt virtually any law that differs from the so-
called national standard, as long as that law is more restrictive than
that standard. A patchwork of State laws is still permitted, provided
that the divergences are in the direction of greater restrictions on
the injured party.
As I pointed out earlier in this debate, every single provision of
this bill is written to prohibit State laws that are more favorable to
plaintiffs. But the only provision of the bill that would prohibit
State laws that are more favorable to defendants is the statute of
limitations. We are not adopting true national standards at all.
This bill is not balanced, it is not uniform, and I cannot support
it.
I ask unanimous consent that a table demonstrating the one-way nature
of the preemption in this bill be printed in the Record.
There being no objection, the table was ordered to be printed in the
Record, as follows:
PREEMPTION OF STATE PRODUCT LIABILITY LAWS UNDER S. 565, AS REPORTED
------------------------------------------------------------------------
State laws State laws
more more
favorable favorable
to to
plaintiffs defendants
------------------------------------------------------------------------
Liability of product sellers.................... Prohibited Allowed.
Alcohol or drug abuse defense................... ......do.. Do.
Misuse or alteration of product defense......... ......do.. Do.
Punitive damage limitations..................... ......do.. Do.
Statute of limitations.......................... ......do.. Prohibited
.
Statute of repose............................... ......do.. Allowed.
Joint and several liability (non-economic ......do.. Do.
damages).
Biomaterials provisions......................... ......do.. Do.
------------------------------------------------------------------------
Ms. MIKULSKI. Mr. President, I voted for cloture on the product
liability bill because I believe it is important to the economy, job
creation, international investment, and our ability to do research,
especially on issues of women's health.
Mr. President, much has been said about caps. I do not like caps--
caps on job creation or caps on innovative research. I do not like caps
on technological advancement or caps on our ability to go global. I am
opposed to caps on profits, caps on wages, or caps on opportunity.
My job as a U.S. Senator is to save jobs, save lives and save
communities. I support efforts to reduce frivolous law suits and
improve the efficiency of our legal system.
I have heard of cost estimates for cases that are in the millions.
That's outrageous. We should make every effort to establish consistency
and uniformity, but not at the price of people's fundamental right to
redress.
When it comes to public health and safety I want to ensure that those
responsible are in fact held accountable for their actions. For that
reason, I will not support any legislation which closes the courthouse
door to citizens with legitimate cases.
This is the kind of balance I support and that I believe we, as
Members of Congress, need to achieve with this legislation.
Mr. President, today's cloture vote was a difficult decision for me.
Product liability involves very complex and complicated issues,
including joint and several liability, noneconomic versus economic
damages, statute of repose, punitive damages, and alternate dispute
resolution. To help me better understand product liability and its
impact on people's day to day lives, I met with people on both sides of
this issue. I met with business organizations and consumer
organizations. All the groups made legitimate arguments expressing
worthwhile and important concerns.
Some businesses are concerned about how our current system ultimately
impacts their decisions about innovation and competitiveness, small
businesses are concerned about going out of business all together. We
should take every step we can to cut unnecessary liability costs and
encourage innovation. Innovation will ultimately lead to jobs today and
jobs tomorrow. We must acknowledge that innovation, particularly in the
health field, is critical for out Nation's economic stability and
competitiveness, and it is critical to the health and safety of
American citizens.
I was particularly moved by the National Family Planning and
Reproductive Health Association's position that tort reform is needed
to increase investment in women's health research and technologies. Mr.
President, the product liability issue has been around for quite some
time. There was no doubt that I could not sign on to previous product
liability reform bills introduced in the early 1980's. But, I believe
the current legislation is an attempt to achieve a reasonable balance
at this point.
Is this bill perfect? Of course, it is not. In this case, it is hard
to put forth a perfect bill. There is no doubt that we should review
this issue in the coming years and make sure it is working. If it is
not working, we in Congress have the option to review it and make
changes. Looking at our current system, I believe there are areas that
can be improved. For that reason, I am willing to support Federal
product liability reform. Many of the reforms proposed by this
legislation have already been done at the State level. So, in many ways
we are acting consistently with respect to the States.
Mr. President, I want to make it clear. The House bill goes too far.
It includes a number of bad provisions, including severe caps on pain
and suffering. To move beyond the Senate bill would be a mistake. The
scales on this issue are delicately balanced. If those scales are
tipped, it is unlikely I will support this bill.
Mr. PELL. Mr. President, today the Senate has passed by a convincing
margin the product liability bill. It was a difficult and contentious
effort, much akin to the debate that this area has generated over the
last decade. I was pleased that the Senate saw fit to pass this
legislation and am hopeful that a productive and successful conference
with the House will follow and eventually that the President will sign
this legislation into law.
I have long supported product liability reform even when it began as
a somewhat lonely effort over a decade ago. Finally, with a supportive
Congress, it seems that we may be coming up with a bill that can
actually become the law of the land. It must be noted that in order to
preserve the best possible chance of reaching that result, other areas
of legal reform, such as medical malpractice and broad tort reform,
have been excluded. I joined in the effort to keep this bill clean from
those additions but I want to state that I support reform in those
areas as well and look forward to addressing them in the future. I
simply felt that this legislation was an inappropriate forum for
dealing with those issues. In the end, this bill represents a workable
and reasonable balance for reforming the legal procedures and standards
governing how one can seek redress for harm caused by faulty products.
I congratulate the hard work of my colleagues, in particular Senators
Rockefeller and Gorton, who artfully and doggedly crafted a compromise
that was acceptable to the Senate. They have worked hard and long,
indeed for years, on this legislation and they are to be commended for
their accomplishment. I await the conference report on this legislation
with anticipation and express my hope for speedy final consideration.
Mr. BRADLEY. Mr. President, I rise in opposition to the Product
Liability Fairness Act of 1995. Let me first say, Mr. President, that I
share the concerns of the people of New Jersey and this country that
our society is too litigious. I share the concerns of my colleagues and
the American people that the cost of this litigation explosion is
injurious to the social and economic future of this country. However,
after reviewing this bill and assessing the arguments, both pro and
con, I do not think that this bill strikes the appropriate balance
between the desires of manufacturers and product sellers to streamline
the product liability process and the ability of ordinary Americans to
bring lawsuits seeking relief from injuries resulting from defective
and dangerous products.
Mr. President, I favor a cap on punitive damages for small
businesses. I supported the amendment of my colleague from Ohio,
Senator DeWine,
[[Page S6406]] which provides for a cap on punitive damages for small
businesses with 25 or fewer employees and individuals with assets of
less than $500,000. Small businesses are the engine that drives the
American economy and provide for at least half of this country's new
employment opportunities. While a cap on punitive damage awards should
be sufficient to punish and deter future action, it should also reflect
the fact that a cap that may be sufficient to punish a large
corporation may in fact push a small business into the abyss of
bankruptcy.
However, Mr. President, I have grave concerns about the overall cap
on punitive damages. The purpose of punitive awards is to punish the
wrongdoer for egregious behavior and deter such behavior in the future.
I believe that if we place a low cap on punitive damages, some
corporations will not be discouraged from exposing consumers to
dangerous products. Indeed, with predictable caps, Mr. President,
wrongdoers may find it more cost effective to make dangerous decisions
and risk paying punitive damages. Moreover, Mr. President, while this
bill authorizes judges to increase an award of punitive damages beyond
the limits of the cap, this safeguard is illusory because defendants
have the right to receive a new trial--a right which they will surely
exercise. Indeed, the provision in the bill will only lead to
repetitive litigation, increase costs and prevent deserving consumers
from obtaining their awards in a timely manner.
Mr. President, I do not need to repeat the horror stories about women
who have tragically suffered and died from using dangerous products,
children who have been burned by flammable clothing, or hard working
Americans, who have senselessly been injured and killed as a result of
defective automobiles. What needs to be repeated is that the one
constant in all of these horror stories is that the manufacturer knew
of the dangerous defect and failed to take adequate steps to protect
the public. Mr. President, punitive damages are available to police
conduct that is so egregious that the offender disregarded forseeable
dangerous consequences. Indeed, as this bill provides, punitive damages
are only available where there is clear and convincing evidence of a
conscious, flagrant indifference to the safety of others. Given the
nature of the offense, Mr. President, I firmly believe that placing a
cap on punitive damages will be counterproductive to
society's efforts to police and deter such egregious conduct.
Mr. President, under the present caps, cigarette manufacturers and
those who irresponsibly market alcohol to intoxicated persons or minors
who then kill or injure innocent victims in traffic crashes would
continue to manufacture and market these products of destruction with
less fear of having to one day pay the price for the massive damage
that their products inflict on society. Moreover, firearms and
ammunition are virtually the only unregulated consumer product in
America. As such, the tort system is the only check on the safety of
consumers. I am not willing, Mr. President, to place a cap on punitive
damages when the result will be that such action will lessen the
liability of the manufacturers who profit from these destructive
products.
Mr. President, while I also think that there is a need for joint and
several liability reform, I cannot endorse the blanket elimination of
joint and several liability for noneconomic damages that is in the
present bill. Instead, Mr. President, I favor the approach currently in
operation in New Jersey, which provides for proportional liability if
the defendant is responsible for 20 percent or less of the harm,
several liability for noneconomic damages if a defendant is responsible
for between 20 percent and 60 percent of the harm, and joint and
several liability if the defendant is responsible for 60 percent or
more of the harm.
Mr. President, this bill would preempt State product liability law
``to the extent that state law applies to an issue covered under the
Act.'' Proponents of product liability reform argue that Federal
legislation is needed to establish uniformity. However, the bill does
not require States to have uniform State laws. For example, those
States that do not now allow punitive damages would not be required to
award them, even though the bill provides for the award of such
damages. The effect of this provision is that States can offer their
individual citizens fewer rights, but not more.
Mr. President, this bill also excludes actions involving commercial
loss. By excluding such actions, the bill places restrictions on the
ability of individuals to seek redress from defective products, but
does not place any restrictions on corporations to seek redress. For
example, if a product explodes in a factory, the worker's recovery for
injuries is limited by this bill; however, the factory owner may sue
the product manufacturer or seller free from the restrictions of the
bill for such speculative damages as the factory's loss of profits
because of delays in production. Thus, the effect of this provision is
to value material property over the health and safety of individual
citizens.
Mr. President, we have been told that there is a litigation explosion
with respect to product liability and that corporations and the
business community are suffering under the weight of this explosion.
However, Mr. President, excluding cases of asbestos, product liability
claims in Federal courts have declined by approximately 36 percent
between 1985 and 1991. Moreover, in State courts, product liability
cases are approximately 4 percent of all tort filings, .0036 percent of
all civil caseloads and .00097 percent of the total State court
caseloads.
Mr. President, although there have been relatively few punitive
damage awards in product liability cases over the last 25 years, we
have been told that the threat of punitive damages
encourages many product manufacturers to settle cases that they would
have no problem winning in an effort to avoid having claims for
punitive damages go to juries unfamiliar with the precautions that are
now taken to insure that products are safe. However, Mr. President, the
numbers simply do not add up to the conclusion that the business
community is being treated unfairly by juries. Indeed, almost 60
percent of the product liability cases brought in 1993, plaintiffs were
the losing parties.
Mr. President, it has additionally been argued that these lawsuits
increase the costs of producing products in this country and thus hurt
American competitiveness. However, a 1987 Conference Board survey of
risk managers of 232 corporations shows that product liability costs
for most businesses are 1 percent or less of the final price of a
product, and have very little impact on larger economic issues such as
market share or jobs. In addition, the American Insurance Association,
the largest trade association representing the insurance industry, has
testified that this legislation will have virtually no effect on
insurance costs.
Mr. President, to put it succinctly, I do not think that the bill
will really do what its proponents say it will do. As mentioned
earlier, the proponents of this bill argue that the business community
is suffering under the weight of a litigation explosion. They contend
that this bill will decrease both the incidence and cost of litigation.
Mr. President, no one disagrees that we are an overly litigious
society. However, I am not convinced that this bill can correct the
problem of litigiousness in society. Indeed, Mr. President, the fact is
that the punitive caps provision providing for the automatic right to a
new trial by defendants will serve to only increase the delay and cost
of litigation. This bill tilts the scales of justice too far to the
disadvantage of individual consumers. Thus, I cannot support
legislation which will endanger the health and safety of hard working
Americans.
In conclusion, Mr. President, because of the above stated concerns, I
must oppose the Product Liability Fairness Act of 1995.
Vote on Amendment No. 690, as Amended
The PRESIDING OFFICER. The question is on agreeing to the amendment
numbered 690, the Coverdell-Dole substitute, as amended.
So the amendment (No. 690), as amended, was agreed to.
Vote on Amendment No. 596, as Amended
The PRESIDING OFFICER. The question is on agreeing to the amendment
numbered 596, the Gorton substitute, as amended.
So the amendment (No. 596), as amended, was agreed to.
The PRESIDING OFFICER. The question is on the engrossment of the
[[Page S6407]] amendments and third reading of the bill.
The amendments were ordered to be engrossed, and the bill to be read
a third time.
The bill was read a third time.
Mr. GORTON. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Virginia [Mr. Warner] is
necessarily absent.
Mr. FORD. I announce that the Senator from Connecticut [Mr.
Lieberman] is absent because of death in the family.
I further announce that, if present and voting, the Senator from
Connecticut [Mr. Lieberman] would vote ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 61, nays 37, as follows:
[Rollcall Vote No. 161 Leg.]
YEAS--61
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Conrad
Coverdell
Craig
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feinstein
Frist
Glenn
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Johnston
Kassebaum
Kempthorne
Kohl
Kyl
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Murkowski
Nickles
Nunn
Pell
Pressler
Pryor
Robb
Rockefeller
Santorum
Smith
Snowe
Stevens
Thomas
Thompson
Thurmond
NAYS--37
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
D'Amato
Daschle
Feingold
Ford
Graham
Harkin
Heflin
Hollings
Inouye
Kennedy
Kerrey
Kerry
Lautenberg
Leahy
Levin
Moynihan
Murray
Packwood
Reid
Roth
Sarbanes
Shelby
Simon
Simpson
Specter
Wellstone
NOT VOTING--2
Lieberman
Warner
So the bill (H.R. 956), as amended, was passed, as follows:
Resolved, That the bill from the House of Representatives
(H.R. 956) entitled ``An Act to establish legal standards and
procedures for product liability litigation, and for other
purposes'', do pass with the following amendment:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Product Liability Fairness
Act of 1995''.
TITLE I--PRODUCT LIABILITY
SEC. 101. DEFINITIONS.
For purposes of this Act, the following definitions shall
apply:
(1) Actual malice.--The term ``actual malice'' means
specific intent to cause serious physical injury, illness,
disease, or damage to property, or death.
(2) Claimant.--The term ``claimant'' means any person who
brings a product liability action and any person on whose
behalf such an action is brought. If an action is brought
through or on behalf of--
(A) an estate, the term includes the decedent; or
(B) a minor or incompetent, the term includes the legal
guardian of the minor or incompetent.
(3) Claimant's benefits.--The term ``claimant's benefits''
means the amount paid to an employee as workers' compensation
benefits.
(4) Clear and convincing evidence.--
(A) In general.--Subject to subparagraph (A), the term
``clear and convincing evidence'' is that measure of degree
of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations
sought to be established.
(B) Degree of proof.--The degree of proof required to
satisfy the standard of clear and convincing evidence shall
be--
(i) greater than the degree of proof required to meet the
standard of preponderance of the evidence; and
(ii) less than the degree of proof required to meet the
standard of proof beyond a reasonable doubt.
(5) Commercial loss.--The term ``commercial loss'' means
any loss or damage to a product itself, loss relating to a
dispute over its value, or consequential economic loss the
recovery of which is governed by the Uniform Commercial Code
or analogous State commercial law, not including harm.
(6) Durable good.--The term ``durable good'' means any
product, or any component of any such product, which has a
normal life expectancy of 3 or more years or is of a
character subject to allowance for depreciation under the
Internal Revenue Code of 1986, and which is--
(A) used in a trade or business;
(B) held for the production of income; or
(C) sold or donated to a governmental or private entity for
the production of goods, training, demonstration, or any
other similar purpose.
(7) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including any medical
expense loss, work loss, replacement services loss, loss due
to death, burial costs, and loss of business or employment
opportunities), to the extent that recovery for the loss is
permitted under applicable State law.
(8) Harm.--The term ``harm'' means any physical injury,
illness, disease, or death, or damage to property, caused by
a product. The term does not include commercial loss or loss
or damage to a product itself.
(9) Insurer.--The term ``insurer'' means the employer of a
claimant, if the employer is self-insured, or the workers'
compensation insurer of an employer.
(10) Manufacturer.--The term ``manufacturer'' means--
(A) any person who is engaged in a business to produce,
create, make, or construct any product (or component part of
a product), and who designs or formulates the product (or
component part of the product), or has engaged another person
to design or formulate the product (or component part of the
product);
(B) a product seller, but only with respect to those
aspects of a product (or component part of a product) which
are created or affected when, before placing the product in
the stream of commerce, the product seller produces, creates,
makes, constructs, designs, or formulates, or has engaged
another person to design or formulate, an aspect of a product
(or component part of a product) made by another person; or
(C) any product seller that is not described in
subparagraph (B) that holds itself out as a manufacturer to
the user of the product.
(11) Noneconomic loss.--The term ``noneconomic loss''--
(A) means subjective, nonmonetary loss resulting from harm,
including pain, suffering, inconvenience, mental suffering,
emotional distress, loss of society and companionship, loss
of consortium, injury to reputation, and humiliation; and
(B) does not include economic loss.
(12) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity (including
any governmental entity).
(13) Product.--
(A) In general.--The term ``product'' means any object,
substance, mixture, or raw material in a gaseous, liquid, or
solid state that--
(i) is capable of delivery itself or as an assembled whole,
in a mixed or combined state, or as a component part or
ingredient;
(ii) is produced for introduction into trade or commerce;
(iii) has intrinsic economic value; and
(iv) is intended for sale or lease to persons for
commercial or personal use.
(B) Exclusion.--The term ``product'' does not include--
(i) tissue, organs, blood, and blood products used for
therapeutic or medical purposes, except to the extent that
such tissue, organs, blood, and blood products (or the
provision thereof) are subject, under applicable State law,
to a standard of liability other than negligence; and
(ii) electricity, water delivered by a utility, natural
gas, or steam.
(14) Product liability action.--The term ``product
liability action'' means a civil action brought on any theory
for harm caused by a product.
(15) Product seller.--
(A) In general.--The term ``product seller'' means a person
who--
(i) in the course of a business conducted for that purpose,
sells, distributes, rents, leases, prepares, blends,
packages, labels, or otherwise is involved in placing a
product in the stream of commerce; or
(ii) installs, repairs, refurbishes, reconditions, or
maintains the harm-causing aspect of the product.
(B) Exclusion.--The term ``product seller'' does not
include--
(i) a seller or lessor of real property;
(ii) a provider of professional services in any case in
which the sale or use of a product is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who--
(I) acts in only a financial capacity with respect to the
sale of a product; or
(II) leases a product under a lease arrangement in which
the lessor does not initially select the leased product and
does not during the lease term ordinarily control the daily
operations and maintenance of the product.
(16) State.--The term ``State'' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana
Islands, and any other territory or possession of the United
States, or any political subdivision thereof.
[[Page S6408]] (17) Time of delivery.--The term ``time of
delivery'' means the time when a product is delivered to the
first purchaser or lessee of the product that was not
involved in manufacturing or selling the product, or using
the product as a component part of another product to be
sold.
SEC. 102. APPLICABILITY; PREEMPTION.
(a) Applicability.--
(1) Actions covered.--Subject to paragraph (2), this title
applies to any product liability action commenced on or after
the date of enactment of this Act, without regard to whether
the harm that is the subject of the action or the conduct
that caused the harm occurred before such date of enactment.
(2) Actions excluded.--
(A) Actions for damage to product or commercial loss.--A
civil action brought for loss or damage to a product itself
or for commercial loss, shall not be subject to the
provisions of this title governing product liability actions,
but shall be subject to any applicable commercial or contract
law.
(B) Actions for negligent entrustment.--A civil action for
negligent entrustment shall not be subject to the provisions
of this title governing product liability actions, but shall
be subject to any applicable State law.
(b) Scope of Preemption.--
(1) In general.--This Act supersedes a State law only to
the extent that State law applies to an issue covered under
this title.
(2) Issues not covered under this act.--Any issue that is
not covered under this title, including any standard of
liability applicable to a manufacturer, shall not be subject
to this title, but shall be subject to applicable Federal or
State law.
(c) Statutory Construction.--Nothing in this title may be
construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any law;
(2) supersede or alter any Federal law;
(3) waive or affect any defense of sovereign immunity
asserted by the United States;
(4) affect the applicability of any provision of chapter 97
of title 28, United States Code;
(5) preempt State choice-of-law rules with respect to
claims brought by a foreign nation or a citizen of a foreign
nation;
(6) affect the right of any court to transfer venue or to
apply the law of a foreign nation or to dismiss a claim of a
foreign nation or of a citizen of a foreign nation on the
ground of inconvenient forum; or
(7) supersede or modify any statutory or common law,
including any law providing for an action to abate a
nuisance, that authorizes a 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 (as defined
in section 101(8) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C.
9601(8)) or the threat of such remediation.
(d) Construction.--To promote uniformity of law in the
various jurisdictions, this title shall be construed and
applied after consideration of its legislative history.
(e) Effect of Court of Appeals Decisions.--Notwithstanding
any other provision of law, any decision of a circuit court
of appeals interpreting a provision of this title (except to
the extent that the decision is overruled or otherwise
modified by the Supreme Court) shall be considered a
controlling precedent with respect to any subsequent decision
made concerning the interpretation of such provision by any
Federal or State court within the geographical boundaries of
the area under the jurisdiction of the circuit court of
appeals.
SEC. 103. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) Service of Offer.--A claimant or a defendant in a
product liability action that is subject to this title may,
not later than 60 days after the service of the initial
complaint of the claimant or the applicable deadline for a
responsive pleading (whichever is later), serve upon an
adverse party an offer to proceed pursuant to any voluntary,
nonbinding alternative dispute resolution procedure
established or recognized under the law of the State in which
the product liability action is brought or under the rules of
the court in which such action is maintained.
(b) Written Notice of Acceptance or Rejection.--Except as
provided in subsection (c), not later than 10 days after the
service of an offer to proceed under subsection (a), an
offeree shall file a written notice of acceptance or
rejection of the offer.
(c) Extension.--The court may, upon motion by an offeree
made prior to the expiration of the 10-day period specified
in subsection (b), extend the period for filing a written
notice under such subsection for a period of not more than 60
days after the date of expiration of the period specified in
subsection (b). Discovery may be permitted during such
period.
SEC. 104. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS.
(a) General Rule.--
(1) In general.--In any product liability action that is
subject to this title filed by a claimant for harm caused by
a product, a product seller other than a manufacturer shall
be liable to a claimant, only if the claimant establishes--
(A) that--
(i) the product that allegedly caused the harm that is the
subject of the complaint was sold, rented, or leased by the
product seller;
(ii) the product seller failed to exercise reasonable care
with respect to the product; and
(iii) the failure to exercise reasonable care was a
proximate cause of harm to the claimant; or
(B) that--
(i) the product seller made an express warranty applicable
to the product that allegedly caused the harm that is the
subject of the complaint, independent of any express warranty
made by a manufacturer as to the same product;
(ii) the product failed to conform to the warranty; and
(iii) the failure of the product to conform to the warranty
caused harm to the claimant; or
(C) that--
(i) the product seller engaged in intentional wrongdoing,
as determined under applicable State law; and
(ii) such intentional wrongdoing was a
proximate cause of the harm that is the subject of the
complaint.
(2) Reasonable opportunity for inspection.--For purposes of
paragraph (1)(A)(ii), a product seller shall not be
considered to have failed to exercise reasonable care with
respect to a product based upon an alleged failure to inspect
a product if the product seller had no reasonable opportunity
to inspect the product that allegedly caused harm to the
claimant.
(b) Special Rule.--
(1) In general.--A product seller shall be deemed to be
liable as a manufacturer of a product for harm caused by the
product if--
(A) the manufacturer is not subject to service of process
under the laws of any State in which the action may be
brought; or
(B) the court determines that the claimant would be unable
to enforce a judgment against the manufacturer.
(2) Statute of limitations.--For purposes of this
subsection only, the statute of limitations applicable to
claims asserting liability of a product seller as a
manufacturer shall be tolled from the date of the filing of a
complaint against the manufacturer to the date that judgment
is entered against the manufacturer.
(c) Rented or Leased Products.--
(1) Notwithstanding any other provision of law, any person
engaged in the business of renting or leasing a product
(other than a person excluded from the definition of product
seller under section 101 (14)(B)) shall be subject to
liability in a product liability action under subsection (a),
but any person engaged in the business of renting or leasing
a product shall not be liable to a claimant for the tortious
act of another solely by reason of ownership of such product.
(2) For purposes of paragraph (1), and for determining the
applicability of this title to any person subject to
paragraph (1), the term ``product liability action'' means a
civil action brought on any theory for harm caused by a
product or product use.
SEC. 105. DEFENSES INVOLVING INTOXICATING ALCOHOL OR DRUGS.
(a) General Rule.--Notwithstanding any other provision of
law, a defendant in a product liability action that is
subject to this title shall have a complete defense in the
action if the defendant proves that--
(1) the claimant was under the influence of intoxicating
alcohol or any drug that may not lawfully be sold over-the-
counter without a prescription, and was not prescribed by a
physician for use by the claimant; and
(2) the claimant, as a result of the influence of the
alcohol or drug, was more than 50 percent responsible for the
accident or event which resulted in the harm to the claimant.
(b) Construction.--For purposes of this section, the
determination of whether a person was intoxicated or was
under the influence of intoxicating alcohol or any drug shall
be made pursuant to applicable State law.
SEC. 106. REDUCTION FOR MISUSE OR ALTERATION OF PRODUCT.
(a) General Rule.--
(1) In general.--Except as provided in subsection (c), in a
product liability action that is subject to this title, the
damages for which a defendant is otherwise liable under
applicable State law shall be reduced by the percentage of
responsibility for the harm to the claimant attributable to
misuse or alteration of a product by any person if the
defendant establishes that such percentage of the harm was
proximately caused by a use or alteration of a product--
(A) in violation of, or contrary to, the express warnings
or instructions of the defendant if the warnings or
instructions are determined to be adequate pursuant to
applicable State law; or
(B) involving a risk of harm which was known or should have
been known by the ordinary person who uses or consumes the
product with the knowledge common to the class of persons who
used or would be reasonably anticipated to use the product.
(2) Use intended by a manufacturer is not misuse or
alteration.--For the purposes of this title, a use of a
product that is intended by the manufacturer of the product
does not constitute a misuse or alteration of the product.
(b) State Law.--Notwithstanding section 3(b), subsection
(a) of this section shall supersede State law concerning
misuse or alteration of a product only to the extent that
State law is inconsistent with such subsection.
[[Page S6409]] (c) Workplace Injury.--Notwithstanding
subsection (a), the amount of damages for which a defendant
is otherwise liable under State law shall not be reduced by
the application of this section with respect to the conduct
of any employer or coemployee of the plaintiff who is, under
applicable State law concerning workplace injuries, immune
from being subject to an action by the claimant.
SEC. 107. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.
(a) General Rule.--Punitive damages may, to the extent
permitted by applicable State law, be awarded against a
defendant in a product liability action that is subject to
this title if the claimant establishes by clear and
convincing evidence that the harm that is the subject of the
action was the result of conduct that was carried out by the
defendant with a conscious, flagrant indifference to the
safety of others.
(b) Limitation on Amount.--
(1) In general.--Except as provided in paragraphs (2) and
(3), the amount of punitive damages that may be awarded to a
claimant in a product liability action that is subject to
this title shall not exceed the greater of--
(A) 2 times the sum of--
(i) the amount awarded to the claimant for economic loss;
and
(ii) the amount awarded to the claimant for noneconomic
loss; or
(B) $250,000.
(2) Special rule.--The amount of punitive damages that may
be awarded in a product liability action that is subject to
this title against an individual whose net worth does not
exceed $500,000 or against an owner of an unincorporated
business, or any partnership, corporation, association, unit
of local government, or organization which has fewer than 25
full-time employees, shall not exceed the lesser of--
(A) 2 times the sum of--
(i) the amount awarded to the claimant for economic loss;
and
(ii) the amount awarded to the claimant for noneconomic
loss; or
(B) $250,000.
(3) Exception.--
(A) Determination by court.--Notwithstanding subparagraph
(C), in a product liability action that is subject to this
title, if the court makes a determination, after considering
each of the factors in subparagraph (B), that the application
of paragraph (1) would result in an award of punitive damages
that is insufficient to punish the egregious conduct of the
defendant against whom the punitive damages are to be awarded
or to deter such conduct in the future, the court shall
determine the additional amount of punitive damages in excess
of the amount determined in accordance with paragraph (1) to
be awarded to the claimant (referred to in this paragraph as
the ``additur'') in a separate proceeding in accordance with
this paragraph.
(B) Factors for consideration.--In any proceeding under
subparagraph (A), the court shall consider--
(i) the extent to which the defendant acted with actual
malice;
(ii) the likelihood that serious harm would arise from the
misconduct of the defendant;
(iii) the degree of the awareness of the defendant of that
likelihood;
(iv) the profitability of the misconduct to the defendant;
(v) the duration of the misconduct and any concurrent or
subsequent concealment of the conduct by the defendant;
(vi) the attitude and conduct of the defendant upon the
discovery of the misconduct and whether the misconduct has
terminated;
(vii) the financial condition of the defendant; and
(viii) the cumulative deterrent effect of other losses,
damages, and punishment suffered by the defendant as a result
of the misconduct, reducing the amount of punitive damages on
the basis of the economic impact and severity of all measures
to which the defendant has been or may be subjected,
including--
(I) compensatory and punitive damage awards to similarly
situated claimants;
(II) the adverse economic effect of stigma or loss of
reputation;
(III) civil fines and criminal and administrative
penalties; and
(IV) stop sale, cease and desist, and other remedial or
enforcement orders.
(C) Requirements for awarding additurs.--If the court
awards an additur under this paragraph, the court shall state
its reasons for setting the amount of the additur in findings
of fact and conclusions of law. If the additur is--
(i) accepted by the defendant, it shall be entered by the
court as a final judgment;
(ii) accepted by the defendant under protest, the order may
be reviewed on appeal; or
(iii) not accepted by the defense, the court shall set
aside the punitive damages award and order a new trial on the
issue of punitive damages only, and judgment shall enter upon
the verdict of liability and damages after the issue of
punitive damages is decided.
(4) Application by court.--This subsection shall be applied
by the court and the application of this subsection shall not
be disclosed to the jury.
(5) Remittiturs.--Nothing in this subsection shall modify
or reduce the ability of courts to order remittiturs.
(c) Bifurcation at Request of Any Party.--
(1) In general.--At the request of any party, the trier of
fact in a product liability action that is subject to this
title shall consider in a separate proceeding whether
punitive damages are to be awarded for the harm that is the
subject of the action and the amount of the award.
(2) Inadmissibility of evidence relative only to a claim of
punitive damages in a proceeding concerning compensatory
damages.--If any party requests a separate proceeding under
paragraph (1), in any proceeding to determine whether the
claimant may be awarded compensatory damages, any evidence
that is relevant only to the claim of punitive damages, as
determined by applicable State law, shall be inadmissible.
SEC. 108. LIABILITY FOR CERTAIN CLAIMS RELATING TO DEATH.
In any civil action in which the alleged harm to the
claimant is death and, as of the effective date of this Act,
the applicable State law provides, or has been construed to
provide, for damages only punitive in nature, a defendant may
be liable for any such damages without regard to section 107,
but only during such time as the State law so provides. This
section shall cease to be effective September 1, 1996.
SEC. 109. UNIFORM TIME LIMITATIONS ON LIABILITY.
(a) Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2) and
subsection (b), a product liability action that is subject to
this title may be filed not later than 2 years after the date
on which the claimant discovered or, in the exercise of
reasonable care, should have discovered, the harm that is the
subject of the action and the cause of the harm.
(2) Exceptions.--
(A) Person with a legal disability.--A person with a legal
disability (as determined under applicable law) may file a
product liability action that is subject to this title not
later than 2 years after the date on which the person ceases
to have the legal disability.
(B) Effect of stay or injunction.--If the commencement of a
civil action that is subject to this title is stayed or
enjoined, the running of the statute of limitations under
this section shall be suspended until the end of the period
that the stay or injunction is in effect.
(b) Statute of Repose.--
(1) In general.--Subject to paragraphs (2) and (3), no
product liability action that is subject to this title
concerning a product that is a durable good alleged to have
caused harm (other than toxic harm) may be filed after the
20-year period beginning at the time of delivery of the
product.
(2) State law.--Notwithstanding paragraph (1), if pursuant
to an applicable State law, an action described in such
paragraph is required to be filed during a period that is
shorter than the 20-year period specified in such paragraph,
the State law shall apply with respect to such period.
(3) Exceptions.--
(A) A motor vehicle, vessel, aircraft, or train that is
used primarily to transport passengers for hire shall not be
subject to this subsection.
(B) Paragraph (1) does not bar a product liability action
against a defendant who made an express warranty in writing
as to the safety of the specific product involved which was
longer than 20 years, but it will apply at the expiration of
that warranty.
(C) Paragraph (1) does not affect the limitations period
established by the General Aviation Revitalization Act of
1994 (49 U.S.C. 40101 note).
(c) Transitional Provision Relating to Extension of Period
for Bringing Certain Actions.--If any provision of subsection
(a) or (b) shortens the period during which a product
liability action that could be otherwise brought pursuant to
another provision of law, the claimant may, notwithstanding
subsections (a) and (b), bring the product liability action
pursuant to this title not later than 1 year after the date
of enactment of this Act.
SEC. 110. SEVERAL LIABILITY FOR NONECONOMIC LOSS.
(a) General Rule.--In a product liability action that is
subject to this title, the liability of each defendant for
noneconomic loss shall be several only and shall not be
joint.
(b) Amount of Liability.--
(1) In general.--Each defendant shall be liable only for
the amount of noneconomic loss allocated to the defendant in
direct proportion to the percentage of responsibility of the
defendant (determined in accordance with paragraph (2)) for
the harm to the claimant with respect to which the defendant
is liable. The court shall render a separate judgment against
each defendant in an amount determined pursuant to the
preceding sentence.
(2) Percentage of responsibility.--For purposes of
determining the amount of noneconomic loss allocated to a
defendant under this section, the trier of fact shall
determine the percentage of responsibility of each person
responsible for the claimant's harm, whether or not such
person is a party to the action.
SEC. 111. WORKERS' COMPENSATION SUBROGATION STANDARDS.
(a) General Rule.--
(1) Right of subrogation.--
(A) In general.--An insurer shall have a right of
subrogation against a manufacturer or product seller to
recover any claimant's benefits relating to harm that is the
subject [[Page S6410]] of a product liability action that is
subject to this title.
(B) Written notification.--To assert a right of subrogation
under subparagraph (A), the insurer shall provide written
notice to the court in which the product liability action is
brought.
(C) Insurer not required to be a party.--An insurer shall
not be required to be a necessary and proper party in a
product liability action covered under subparagraph (A).
(2) Settlements and other legal proceedings.--
(A) In general.--In any proceeding relating to harm or
settlement with the manufacturer or product seller by a
claimant who files a product liability action that is subject
to this title, an insurer may participate to assert a right
of subrogation for claimant's benefits with respect to any
payment made by the manufacturer or product seller by reason
of such harm, without regard to whether the payment is made--
(i) as part of a settlement;
(ii) in satisfaction of judgment;
(iii) as consideration for a covenant not to sue; or
(iv) in another manner.
(B) Written notification.--Except as provided in
subparagraph (C), an employee shall not make any settlement
with or accept any payment from the manufacturer or product
seller without written notification to the employer.
(C) Exemption.--Subparagraph (B) shall not apply in any
case in which the insurer has been compensated for the full
amount of the claimant's benefits.
(3) Harm resulting from action of employer or coemployee.--
(A) In general.--If, with respect to a product liability
action that is subject to this title, the manufacturer or
product seller attempts to persuade the trier of fact that
the harm to the claimant was caused by the fault of the
employer of the claimant or any coemployee of the claimant,
the issue of that fault shall be submitted to the trier of
fact, but only after the manufacturer or product seller has
provided timely written notice to the employer.
(B) Rights of employer.--
(i) In general.--Notwithstanding any other provision of
law, with respect to an issue of fault submitted to a trier
of fact pursuant to subparagraph (A), an employer shall, in
the same manner as any party in the action (even if the
employer is not a named party in the action), have the right
to--
(I) appear;
(II) be represented;
(III) introduce evidence;
(IV) cross-examine adverse witnesses; and
(V) present arguments to the trier of fact.
(ii) Last issue.--The issue of harm resulting from an
action of an employer or coemployee shall be the last issue
that is presented to the trier of fact.
(C) Reduction of damages.--If the trier of fact finds by
clear and convincing evidence that the harm to the claimant
that is the subject of the product liability action was
caused by the fault of the employer or a coemployee of the
claimant--
(i) the court shall reduce by the amount of the claimant's
benefits--
(I) the damages awarded against the manufacturer or product
seller; and
(II) any corresponding insurer's subrogation lien; and
(ii) the manufacturer or product seller shall have no
further right by way of contribution or otherwise against the
employer.
(D) Certain rights of subrogation not affected.--
Notwithstanding a finding by the trier of fact described in
subparagraph (C), the insurer shall not lose any right of
subrogation related to any--
(i) intentional tort committed against the claimant by a
coemployee; or
(ii) act committed by a coemployee outside the scope of
normal work practices.
(b) Attorney's Fees.--If, in a product liability action
that is subject to this section, the court finds that harm to
a claimant was not caused by the fault of the employer or a
coemployee of the claimant, the manufacturer or product
seller shall reimburse the insurer for reasonable attorney's
fees and court costs incurred by the insurer in the action,
as determined by the court.
SEC. 112. FEDERAL CAUSE OF ACTION PRECLUDED.
The district courts of the United States shall not have
jurisdiction under section 1331 or 1337 of title 28, United
States Code, over any product liability action covered under
this title.
TITLE II--BIOMATERIALS ACCESS ASSURANCE
SEC. 201. SHORT TITLE.
This title may be cited as the ``Biomaterials Access
Assurance Act of 1995''.
SEC. 202. FINDINGS.
Congress finds that--
(1) each year millions of citizens of the United States
depend on the availability of lifesaving or life-enhancing
medical devices, many of which are permanently implantable
within the human body;
(2) a continued supply of raw materials and component parts
is necessary for the invention, development, improvement, and
maintenance of the supply of the devices;
(3) most of the medical devices are made with raw materials
and component parts that--
(A) are not designed or manufactured specifically for use
in medical devices; and
(B) come in contact with internal human tissue;
(4) the raw materials and component parts also are used in
a variety of nonmedical products;
(5) because small quantities of the raw materials and
component parts are used for medical devices, sales of raw
materials and component parts for medical devices constitute
an extremely small portion of the overall market for the raw
materials and medical devices;
(6) under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.), manufacturers of medical devices are
required to demonstrate that the medical devices are safe and
effective, including demonstrating that the products are
properly designed and have adequate warnings or instructions;
(7) notwithstanding the fact that raw materials and
component parts suppliers do not design, produce, or test a
final medical device, the suppliers have been the subject of
actions alleging inadequate--
(A) design and testing of medical devices manufactured with
materials or parts supplied by the suppliers; or
(B) warnings related to the use of such medical devices;
(8) even though suppliers of raw materials and component
parts have very rarely been held liable in such actions, such
suppliers have ceased supplying certain raw materials and
component parts for use in medical devices because the costs
associated with litigation in order to ensure a favorable
judgment for the suppliers far exceeds the total potential
sales revenues from sales by such suppliers to the medical
device industry;
(9) unless alternate sources of supply can be found, the
unavailability of raw materials and component parts for
medical devices will lead to unavailability of lifesaving and
life-enhancing medical devices;
(10) because other suppliers of the raw materials and
component parts in foreign nations are refusing to sell raw
materials or component parts for use in manufacturing certain
medical devices in the United States, the prospects for
development of new sources of supply for the full range of
threatened raw materials and component parts for medical
devices are remote;
(11) it is unlikely that the small market for such raw
materials and component parts in the United States could
support the large investment needed to develop new suppliers
of such raw materials and component parts;
(12) attempts to develop such new suppliers would raise the
cost of medical devices;
(13) courts that have considered the duties of the
suppliers of the raw materials and component parts have
generally found that the suppliers do not have a duty--
(A) to evaluate the safety and efficacy of the use of a raw
material or component part in a medical device; and
(B) to warn consumers concerning the safety and
effectiveness of a medical device;
(14) attempts to impose the duties referred to in
subparagraphs (A) and (B) of paragraph (13) on suppliers of
the raw materials and component parts would cause more harm
than good by driving the suppliers to cease supplying
manufacturers of medical devices; and
(15) in order to safeguard the availability of a wide
variety of lifesaving and life-enhancing medical devices,
immediate action is needed--
(A) to clarify the permissible bases of liability for
suppliers of raw materials and component parts for medical
devices; and
(B) to provide expeditious procedures to dispose of
unwarranted suits against the suppliers in such manner as to
minimize litigation costs.
SEC. 203. DEFINITIONS.
As used in this title:
(1) Biomaterials supplier.--
(A) In general.--The term ``biomaterials supplier'' means
an entity that directly or indirectly supplies a component
part or raw material for use in the manufacture of an
implant.
(B) Persons included.--Such term includes any person who--
(i) has submitted master files to the Secretary for
purposes of premarket approval of a medical device; or
(ii) licenses a biomaterials supplier to produce component
parts or raw materials.
(2) Claimant.--
(A) In general.--The term ``claimant'' means any person who
brings a civil action, or on whose behalf a civil action is
brought, arising from harm allegedly caused directly or
indirectly by an implant, including a person other than the
individual into whose body, or in contact with whose blood or
tissue, the implant is placed, who claims to have suffered
harm as a result of the implant.
(B) Action brought on behalf of an estate.--With respect to
an action brought on behalf or through the estate of an
individual into whose body, or in contact with whose blood or
tissue the implant is placed, such term includes the decedent
that is the subject of the action.
(C) Action brought on behalf of a minor.--With respect to
an action brought on behalf or through a minor, such term
includes the parent or guardian of the minor.
(D) Exclusions.--Such term does not include--
(i) a provider of professional services, in any case in
which--
(I) the sale or use of an implant is incidental to the
transaction; and
(II) the essence of the transaction is the furnishing of
judgment, skill, or services; or [[Page S6411]]
(ii) a manufacturer, seller, or biomaterials supplier.
(3) Component part.--
(A) In general.--The term ``component part'' means a
manufactured piece of an implant.
(B) Certain components.--Such term includes a manufactured
piece of an implant that--
(i) has significant nonimplant applications; and
(ii) alone, has no implant value or purpose, but when
combined with other component parts and materials,
constitutes an implant.
(4) Harm.--
(A) In general.--The term ``harm'' means--
(i) any injury to or damage suffered by an individual;
(ii) any illness, disease, or death of that individual
resulting from that injury or damage; and
(iii) any loss to that individual or any other individual
resulting from that injury or damage.
(B) Exclusion.--The term does not include any commercial
loss or loss of or damage to an implant.
(5) Implant.--The term ``implant'' means--
(A) a medical device that is intended by the manufacturer
of the device--
(i) to be placed into a surgically or naturally formed or
existing cavity of the body for a period of at least 30 days;
or
(ii) to remain in contact with bodily fluids or internal
human tissue through a surgically produced opening for a
period of less than 30 days; and
(B) suture materials used in implant procedures.
(6) Manufacturer.--The term ``manufacturer'' means any
person who, with respect to an implant--
(A) is engaged in the manufacture, preparation,
propagation, compounding, or processing (as defined in
section 510(a)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(a)(1)) of the implant; and
(B) is required--
(i) to register with the Secretary pursuant to section 510
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360)
and the regulations issued under such section; and
(ii) to include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section.
(7) Medical device.--The term ``medical device'' means a
device, as defined in section 201(h) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(h)).
(8) Raw material.--The term ``raw material'' means a
substance or product that--
(A) has a generic use; and
(B) may be used in an application other than an implant.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(10) Seller.--
(A) In general.--The term ``seller'' means a person who, in
the course of a business conducted for that purpose, sells,
distributes, leases, packages, labels, or otherwise places an
implant in the stream of commerce.
(B) Exclusions.--The term does not include--
(i) a seller or lessor of real property;
(ii) a provider of professional services, in any case in
which the sale or use of an implant is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who acts in only a financial capacity with
respect to the sale of an implant.
SEC. 204. GENERAL REQUIREMENTS; APPLICABILITY; PREEMPTION.
(a) General Requirements.--
(1) In general.--In any civil action covered by this title,
a biomaterials supplier may raise any defense set forth in
section 205.
(2) Procedures.--Notwithstanding any other provision of
law, the Federal or State court in which a civil action
covered by this title is pending shall, in connection with a
motion for dismissal or judgment based on a defense described
in paragraph (1), use the procedures set forth in section
206.
(b) Applicability.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding any other provision of law, this title
applies to any civil action brought by a claimant, whether in
a Federal or State court, against a manufacturer, seller, or
biomaterials supplier, on the basis of any legal theory, for
harm allegedly caused by an implant.
(2) Exclusion.--A civil action brought by a purchaser of a
medical device for use in providing professional services
against a manufacturer, seller, or biomaterials supplier for
loss or damage to an implant or for commercial loss to the
purchaser--
(A) shall not be considered an action that is subject to
this title; and
(B) shall be governed by applicable commercial or contract
law.
(c) Scope of Preemption.--
(1) In general.--This title supersedes any State law
regarding recovery for harm caused by an implant and any rule
of procedure applicable to a civil action to recover damages
for such harm only to the extent that this title establishes
a rule of law applicable to the recovery of such damages.
(2) Applicability of other laws.--Any issue that arises
under this title and that is not governed by a rule of law
applicable to the recovery of damages described in paragraph
(1) shall be governed by applicable Federal or State law.
(d) Statutory Construction.--Nothing in this title may be
construed--
(1) to affect any defense available to a defendant under
any other provisions of Federal or State law in an action
alleging harm caused by an implant; or
(2) to create a cause of action or Federal court
jurisdiction pursuant to section 1331 or 1337 of title 28,
United States Code, that otherwise would not exist under
applicable Federal or State law.
SEC. 205. LIABILITY OF BIOMATERIALS SUPPLIERS.
(a) In General.--
(1) Exclusion from liability.--Except as provided in
paragraph (2), a biomaterials supplier shall not be liable
for harm to a claimant caused by an implant.
(2) Liability.--A biomaterials supplier that--
(A) is a manufacturer may be liable for harm to a claimant
described in subsection (b);
(B) is a seller may be liable for harm to a claimant
described in subsection (c); and
(C) furnishes raw materials or component parts that fail to
meet applicable contractual requirements or specifications
may be liable for a harm to a claimant described in
subsection (d).
(b) Liability as Manufacturer.--
(1) In general.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant if the
biomaterials supplier is the manufacturer of the implant.
(2) Grounds for liability.--The biomaterials supplier may
be considered the manufacturer of the implant that allegedly
caused harm to a claimant only if the biomaterials supplier--
(A)(i) has registered with the Secretary pursuant to
section 510 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360) and the regulations issued under such section;
and
(ii) included the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section;
(B) is the subject of a declaration issued by the Secretary
pursuant to paragraph (3) that states that the supplier, with
respect to the implant that allegedly caused harm to the
claimant, was required to--
(i) register with the Secretary under section 510 of such
Act (21 U.S.C. 360), and the regulations issued under such
section, but failed to do so; or
(ii) include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section,
but failed to do so; or
(C) is related by common ownership or control to a person
meeting all the requirements described in subparagraph (A) or
(B), if the court deciding a motion to dismiss in accordance
with section 206(c)(3)(B)(i) finds, on the basis of
affidavits submitted in accordance with section 206, that it
is necessary to impose liability on the biomaterials supplier
as a manufacturer because the related manufacturer meeting
the requirements of subparagraph (A) or (B) lacks sufficient
financial resources to satisfy any judgment that the court
feels it is likely to enter should the claimant prevail.
(3) Administrative procedures.--
(A) In general.--The Secretary may issue a declaration
described in paragraph (2)(B) on the motion of the Secretary
or on petition by any person, after providing--
(i) notice to the affected persons; and
(ii) an opportunity for an informal hearing.
(B) Docketing and final decision.--Immediately upon receipt
of a petition filed pursuant to this paragraph, the Secretary
shall docket the petition. Not later than 180 days after the
petition is filed, the Secretary shall issue a final decision
on the petition.
(C) Applicability of statute of limitations.--Any
applicable statute of limitations shall toll during the
period during which a claimant has filed a petition with the
Secretary under this paragraph.
(c) Liability as Seller.--A biomaterials supplier may, to
the extent required and permitted by any other applicable
law, be liable as a seller for harm to a claimant caused by
an implant if--
(1) the biomaterials supplier--
(A) held title to the implant that allegedly caused harm to
the claimant as a result of purchasing the implant after--
(i) the manufacture of the implant; and
(ii) the entrance of the implant in the stream of commerce;
and
(B) subsequently resold the implant; or
(2) the biomaterials supplier is related by common
ownership or control to a person meeting all the requirements
described in paragraph (1), if a court deciding a motion to
dismiss in accordance with section 206(c)(3)(B)(i) finds, on
the basis of affidavits submitted in accordance with section
206, that it is necessary to impose liability on the
biomaterials supplier as a seller because the related
manufacturer meeting the requirements of paragraph (1) lacks
sufficient financial resources to satisfy any judgment that
the court feels it is likely to enter should the claimant
prevail.
(d) Liability for Violating Contractual Requirements or
Specifications.--A [[Page S6412]] biomaterials supplier may,
to the extent required and permitted by any other applicable
law, be liable for harm to a claimant caused by an implant,
if the claimant in an action shows, by a preponderance of the
evidence, that--
(1) the raw materials or component parts delivered by the
biomaterials supplier either--
(A) did not constitute the product described in the
contract between the biomaterials supplier and the person who
contracted for delivery of the product; or
(B) failed to meet any specifications that were--
(i) provided to the biomaterials supplier and not expressly
repudiated by the biomaterials supplier prior to acceptance
of delivery of the raw materials or component parts;
(ii)(I) published by the biomaterials supplier;
(II) provided to the manufacturer by the biomaterials
supplier; or
(III) contained in a master file that was submitted by the
biomaterials supplier to the Secretary and that is currently
maintained by the biomaterials supplier for purposes of
premarket approval of medical devices; or
(iii)(I) included in the submissions for purposes of
premarket approval or review by the Secretary under section
510, 513, 515, or 520 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360, 360c, 360e, or 360j); and
(II) have received clearance from the Secretary,
if such specifications were provided by the manufacturer to
the biomaterials supplier and were not expressly repudiated
by the biomaterials supplier prior to the acceptance by the
manufacturer of delivery of the raw materials or component
parts; and
(2) such conduct was an actual and proximate cause of the
harm to the claimant.
SEC. 206. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST
BIOMATERIALS SUPPLIERS.
(a) Motion To Dismiss.--In any action that is subject to
this title, a biomaterials supplier who is a defendant in
such action may, at any time during which a motion to dismiss
may be filed under an applicable law, move to dismiss the
action on the grounds that--
(1) the defendant is a biomaterials supplier; and
(2)(A) the defendant should not, for the purposes of--
(i) section 205(b), be considered to be a manufacturer of
the implant that is subject to such section; or
(ii) section 205(c), be considered to be a seller of the
implant that allegedly caused harm to the claimant; or
(B)(i) the claimant has failed to establish, pursuant to
section 205(d), that the supplier furnished raw materials or
component parts in violation of contractual requirements or
specifications; or
(ii) the claimant has failed to comply with the procedural
requirements of subsection (b).
(b) Manufacturer of Implant Shall Be Named a Party.--The
claimant shall be required to name the manufacturer of the
implant as a party to the action, unless--
(1) the manufacturer is subject to service of process
solely in a jurisdiction in which the biomaterials supplier
is not domiciled or subject to a service of process; or
(2) an action against the manufacturer is barred by
applicable law.
(c) Proceeding on Motion To Dismiss.--The following rules
shall apply to any proceeding on a motion to dismiss filed
under this section:
(1) Affidavits relating to listing and declarations.--
(A) In general.--The defendant in the action may submit an
affidavit demonstrating that defendant has not included the
implant on a list, if any, filed with the Secretary pursuant
to section 510(j) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(j)).
(B) Response to motion to dismiss.--In response to the
motion to dismiss, the claimant may submit an affidavit
demonstrating that--
(i) the Secretary has, with respect to the defendant and
the implant that allegedly caused harm to the claimant,
issued a declaration pursuant to section 205(b)(2)(B); or
(ii) the defendant who filed the motion to dismiss is a
seller of the implant who is liable under section 205(c).
(2) Effect of motion to dismiss on discovery.--
(A) In general.--If a defendant files a motion to dismiss
under paragraph (1) or (2) of subsection (a), no discovery
shall be permitted in connection to the action that is the
subject of the motion, other than discovery necessary to
determine a motion to dismiss for lack of jurisdiction, until
such time as the court rules on the motion to dismiss in
accordance with the affidavits submitted by the parties in
accordance with this section.
(B) Discovery.--If a defendant files a motion to dismiss
under subsection (a)(2) on the grounds that the biomaterials
supplier did not furnish raw materials or component parts in
violation of contractual requirements or specifications, the
court may permit discovery, as ordered by the court. The
discovery conducted pursuant to this subparagraph shall be
limited to issues that are directly relevant to--
(i) the pending motion to dismiss; or
(ii) the jurisdiction of the court.
(3) Affidavits relating status of defendant.--
(A) In general.--Except as provided in clauses (i) and (ii)
of subparagraph (B), the court shall consider a defendant to
be a biomaterials supplier who is not subject to an action
for harm to a claimant caused by an implant, other than an
action relating to liability for a violation of contractual
requirements or specifications described in subsection (d).
(B) Responses to motion to dismiss.--The court shall grant
a motion to dismiss any action that asserts liability of the
defendant under subsection (b) or (c) of section 205 on the
grounds that the defendant is not a manufacturer subject to
such section 205(b) or seller subject to section 205(c),
unless the claimant submits a valid affidavit that
demonstrates that--
(i) with respect to a motion to dismiss contending the
defendant is not a manufacturer, the defendant meets the
applicable requirements for liability as a manufacturer under
section 205(b); or
(ii) with respect to a motion to dismiss contending that
the defendant is not a seller, the defendant meets the
applicable requirements for liability as a seller under
section 205(c).
(4) Basis of ruling on motion to dismiss.--
(A) In general.--The court shall rule on a motion to
dismiss filed under subsection (a) solely on the basis of the
pleadings of the parties made pursuant to this section and
any affidavits submitted by the parties pursuant to this
section.
(B) Motion for summary judgment.--Notwithstanding any other
provision of law, if the court determines that the pleadings
and affidavits made by parties pursuant to this section raise
genuine issues as concerning material facts with respect to a
motion concerning contractual requirements and
specifications, the court may deem the motion to dismiss to
be a motion for summary judgment made pursuant to subsection
(d).
(d) Summary Judgment.--
(1) In general.--
(A) Basis for entry of judgment.--A biomaterials supplier
shall be entitled to entry of judgment without trial if the
court finds there is no genuine issue as concerning any
material fact for each applicable element set forth in
paragraphs (1) and (2) of section 205(d).
(B) Issues of material fact.--With respect to a finding
made under subparagraph (A), the court shall consider a
genuine issue of material fact to exist only if the evidence
submitted by claimant would be sufficient to allow a
reasonable jury to reach a verdict for the claimant if the
jury found the evidence to be credible.
(2) Discovery made prior to a ruling on a motion for
summary judgment.--If, under applicable rules, the court
permits discovery prior to a ruling on a motion for summary
judgment made pursuant to this subsection, such discovery
shall be limited solely to establishing whether a genuine
issue of material fact exists.
(3) Discovery with respect to a biomaterials supplier.--A
biomaterials supplier shall be subject to discovery in
connection with a motion seeking dismissal or summary
judgment on the basis of the inapplicability of section
205(d) or the failure to establish the applicable elements of
section 205(d) solely to the extent permitted by the
applicable Federal or State rules for discovery against
nonparties.
(e) Stay Pending Petition for Declaration.--If a claimant
has filed a petition for a declaration pursuant to section
205(b) with respect to a defendant, and the Secretary has not
issued a final decision on the petition, the court shall stay
all proceedings with respect to that defendant until such
time as the Secretary has issued a final decision on the
petition.
(f) Manufacturer Conduct of Proceeding.--The manufacturer
of an implant that is the subject of an action covered under
this title shall be permitted to file and conduct a
proceeding on any motion for summary judgment or dismissal
filed by a biomaterials supplier who is a defendant under
this section if the manufacturer and any other defendant in
such action enter into a valid and applicable contractual
agreement under which the manufacturer agrees to bear the
cost of such proceeding or to conduct such proceeding.
(g) Attorney Fees.--The court shall require the claimant to
compensate the biomaterials supplier (or a manufacturer
appearing in lieu of a supplier pursuant to subsection (f))
for attorney fees and costs, if--
(1) the claimant named or joined the biomaterials supplier;
and
(2) the court found the claim against the biomaterials
supplier to be without merit and frivolous.
SEC. 207. APPLICABILITY.
This title shall apply to all civil actions covered under
this title that are commenced on or after the date of
enactment of this Act, including any such action with respect
to which the harm asserted in the action or the conduct that
caused the harm occurred before the date of enactment of this
Act.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
[[Page S6413]] Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, I would want to take this opportunity to
first congratulate the majority of the Members of the Senate and
Members on both sides of the aisle for by far the most significant step
in legal reform which has been taken by the Senate in many, many years,
perhaps in the memory of the most senior of the sitting Senators. This
has been a project by members of the Commerce Committee which has
lasted for a decade and a half. It also, I may say, after 2\1/2\ weeks
of debate, has been one in which the views of the Members had an
impact, had an impact in showing that a majority of the Senate, a bare
majority, wants a broader legal reform package than is included in this
bill, but that others worried about particular details were willing to
work on those details, and to cast their votes accordingly. So I
believe that the Senate has worked its will in a particularly fine
fashion.
I want to pay particular tribute to my colleague, the Senator from
West Virginia [Mr. Rockefeller]. In many respects this has been a far
more difficult task for him than it has been for me. I represent a
broad coalition of views within my own political party with only a few
having had differences. Senator Rockefeller throughout this entire
period of time has spoken for a significant number of Members of his
colleagues but by no means a majority of them. But his dedication to
the cause of this reform has been exemplary, and his persuasive ability
with many of those colleagues has constantly left me in awe and with a
great deal of inspiration. I believe that his persistence has paid off,
and how wonderfully that it has done so.
I have gotten to know Tamera Stanton, his legislative director, and
Ellen Doneski, his legislative assistant, very well during the course
of this period of time and know how much they have contributed to his
success, as has Trent Erickson, Lance Bultena, Jeanne Bumpus for me,
and the majority leader's assistant, Kyle McSlarrow.
Other Senators have contributed significantly to this result, the
chairman of the Commerce Committee, Senator Pressler, Senator
Coverdell, and Senators Snowe and DeWine who came up with the formula
for punitive damages which appealed to the majority of Members of this
body.
I only regret that Senator Lieberman, the other principal cosponsor
of this bill, through a family emergency is absent today. I know that
he would like to have been in on the end of this. But his contributions
are greatly appreciated. And he is one of the primary authors of the
portion of this bill that deals with medical devices.
Now we go on to try to get a final proposal passed by the Congress
and through the President of the United States.
The majority leader has been patient in allowing us 2\1/2\ weeks on
this, and was an absolute key to its success as well.
With that, I think he wishes us to go on to another subject.
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I too want to at this moment thank those
who have been in the trenches over the years and, of course, most of
all my distinguished colleague, the Senator from Alabama. It is always
good to get in behind the chief justice because you know you are on the
side of the law and of equity, and you know you are on the side of the
judgment. Certainly it is, as we all revere him ethically, that you are
on the side of ethics and equity.
I thank publicly Senator Heflin for his leadership, and particularly
Winston Lett, a member of his staff. On my staff, Kevin Curtin, Jim
Drewry, Moses Boyd, James Leventis, and Lloyd Ator. They have been
working around the clock, Kevin and Moses and others have been working
in sort of a minority position on this measure.
The record would show that my particular Commerce Committee has over
the past several Congresses voted by a majority to report this bill. So
we have had a sort of uphill fight. I still feel that, of course, we
had the merit. I guess they feel they had the merit. But in any event,
I think the 15-year holdup was because of that on our side. I also
would like to thank Senator Biden's staff, the Senator himself, Sean
Moylan, Karen Robb. And then with respect to, of course, the medical
malpractice part, we did not have hearings but Health and Human
Resources did. The distinguished former chairman, Senator Kennedy, was
the leader on that.
We had, of course, the vigorous help of Senator Boxer and Senator
Wellstone. So it has been thoroughly aired and properly heard. The
Senate has voted. But let us see what the House crowd comes up with in
the contract.
I yield the floor.
Mr. HEFLIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. HEFLIN. Mr. President, I would like to congratulate Senator
Hollings for his outstanding work in regard to it, although we did not
come out victorious. He is a great comrade in arms and has had a vast
amount of experience on this matter. I suppose that looking back over
the years, 15 or more years, he has fought these battles and I have
been with him throughout, and he has tremendous knowledge in this area.
Originally, this bill was designed not to go to Judiciary. It was
designed to go to Commerce. At that time, Senator Hollings was not
chairman. But obviously, it is a bill that deals with the judicial
system. From the very beginning it was designed to avoid a careful
scrutiny in regards its judicial impact. Fortunately, over the years,
we had an individual who was an outstanding lawyer, and who had been an
outstanding trial lawyer, Senator Hollings in the State of South
Carolina, and who has been there to deal with this matter.
I would also like to thank the staffs of Senator Hollings and others
who have been so important. They have really exhibited tremendous
knowledge of the law. They have followed this legislation diligently
and have done a tremendous job. Senator Hollings has named them, and I
will not repeat their names. But on my staff, Winston Lett and Jim
Whiddon have worked tirelessly and diligently on this legislation, and
I thank them for their great service in our legislative efforts.
I also want to congratulate Senator Rockefeller and Senator Gorton
for their advocacy in pushing forward on their bill. They just seem to
have better allies than we did. I always at the end of a lawsuit,
whether I won or lost, went over and congratulated my opposing counsel,
and do so today. We will be having other battles as they come down the
road, and sometimes we will be compatriots. We will be cosponsors and
joint fighters in the same cause. Then, as it is with all Senators, we
will be on opposite sides again in the future on some issue. But that
is the way the Senate works; that is the way democracy works. During
the debate on a great issue, you can disagree but you do not have to be
disagreeable.
I think that Senator Gorton and Senator Rockefeller never showed any
disagreeable nature. I disagreed with them with respect to the cause
the were advancing, but not in the manner they advanced it; they played
fair and square. I want to thank them particularly for working out a
settlement in regard to the unique and different situation as to
Alabama's wrongful death statute.
We worked out a situation by which the amendment was adopted giving
time to our State legislature or to our courts or to both to find a
solution to be able to fit into this bill, if it is finally passed.
Then I want to say, while I will congratulate them, please do not
take that as any indication that I have ceased to fight. I have not
surrendered and will not give up in my efforts to maintain the
traditional role of the 50 States in allowing them to fashion their own
solutions to problems which may arise with regard to product liability
laws. I believe the 10th amendment to the U.S. Constitution still has
some meaning, and I will continue to assert the primacy of the States
on these matters.
There are appeals. There are appeals to conference, there are appeals
to the White House, there are appeals to the President to eliminate the
unfairness of the bill or to see the death of this unfair bill. So we
will continue to fight. The battle is not over. We have not
surrendered, and we will continue to battle in the future because we
feel we are battling for the injured parties,
[[Page S6414]] the consumers of America, and that we have right on our
side. And we ask the Lord to give us a little more guidance in regard
to these appeals as we move forward.
So I thank everybody concerned who has put up with me, and we will
continue to battle on this issue as well as other issues that come up
that affect the rights of the people.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. DOLE. Mr. President, let me thank all of my colleagues for the
fact we finished this bill. It has been 2 weeks and 2 days, but there
were a couple of interruptions--the death of former Senator Stennis and
other matters. So it was not solid. We probably did it in about 8 or 9
days.
We have had a lot of good debate on both sides. I congratulate all
the principal players, Senators Heflin and Hollings, also Senator
Rockefeller and Senator Gorton, who were on the winning side of this
issue. I think they did a remarkable job in keeping a very fragile,
narrow coalition together. We broadened the bill with narrow margins. I
think we knew at the time those provisions would not be in the bill or
we could not obtain the 60 votes we needed for cloture, so adjustments
were made. But at least we made a record on medical malpractice, on
punitive damages, and on other issues that we believe are very
important and we believe will be back before the Senate.
I also wish to thank Senator Coverdell for his work with outside
groups as sort of the coordinator, and my colleague, Senator Lott of
Mississippi, the majority whip, who did an excellent job, along with
his staff and members of my staff and others because we had some very
difficult votes.
I think we have had a dramatic step forward. The product liability
bill has been introduced in every Congress for the last decade. In most
cases, however, we could not even muster the votes to consider the
legislation. We could not get the 60 votes to even talk about it
because we had strong opposition and we had a lot of what we thought
were distortions. The other side would say not.
So I think passage today is an important victory for common sense and
the American people. It is also important to note that we have just
passed a bill that was stronger than bills introduced in previous
years, stronger because of the efforts of some of our Members in the
Chamber that added small business protections.
I wish to pay tribute to our newest Members, who as a group provided
energy, ideas, and determination in this debate. Senators Snowe and
DeWine made a significant contribution that allowed us to obtain
meaningful protection from abusive punitive damages while protecting
small businesses.
Senators Abraham and Kyl responded to the call of the American people
in last year's elections by their efforts to expand these protections
to include volunteer and charitable organizations and to add needed
civil justice reforms. Together with Senators Kassebaum and McConnell,
who introduced medical malpractice reforms, they produced something
never before seen on the Senate floor--clearer majorities for broader
reform. For various reasons, we could not get the 60 votes to bring
debate to a close on these broader reforms, but we have had the
opportunity and I think it is certainly important.
Just 3 days ago, I received a letter from the head of the Boy Scouts
of America, Mr. Jere Ratcliffe. In just the second line of his letter,
Mr. Ratcliffe says something that ought to cause all of us to pause. I
quote:
The civil justice system, as it now exists, has
consequences which worked a chilling effect on our
willingness and ability to continue to pursue activities that
are beneficial to all of us. . . . This is particularly so in
the case of volunteer service organizations.
That is what he believes. That is what many of us believe. So we have
heard from the trial lawyers. They say everything is fine, but the
volunteer organizations tell us a different story.
I would just say that we hope to bring up sometime later this year
or, if not, next year the McConnell-Lieberman-Kassebaum health care
liability bill--hopefully, later this year. The amendment was added by
a 53 to 47 vote. In addition, some Senators support medical malpractice
reform but voted against that amendment last week because they wanted
to pursue only a product liability bill. So we are going to revisit
that later in the year. We have a lot of work to do. I do not know how
late it is going to be. But in any event, we will be taking a hard look
at that legislation, hopefully this year; if not, early next year.
So, again, I thank the managers, Senator Gorton and Senator
Rockefeller. This is a bipartisan effort, as are most things in the
Senate because without a bipartisan effort, you cannot get the 60 votes
to shut off debate and pass the bill. That is the way it works. Some
people may not totally understand it, may disagree with it, but that is
the way it works. So now we move to another legislative matter, which I
would ask the Chair to report.
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