[Congressional Record Volume 151, Number 52 (Tuesday, April 26, 2005)]
[House]
[Pages H2541-H2547]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        INSTITUTING TORT REFORM

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 4, 2005, the gentleman from Texas (Mr. Carter) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. CARTER. Mr. Speaker, I am honored to rise in this Chamber and 
discuss here tonight what has been a part of my life for my entire 
adult years, and that is the legal system of the United States, the 
attitudes of the American people about the legal system of the United 
States and where we are going in justice for America.
  Mr. Speaker, I have had the privilege and the honor to serve as a 
member of the judiciary for over 20 years of my life. I had the honor 
to appear before good judges and good juries for an additional about 12 
years of my life. I am and have been a part of the legal system of the 
United States of America. I am a lawyer, I am proud to be a lawyer, and 
I feel I come from an honorable profession.
  But it is also the duty of those of us who practice in a profession, 
whatever

[[Page H2542]]

that profession may be, when you see a problem that changes the 
direction of fairness and justice in America, you need to step up and 
say it is there. You should not let it hide under a box because you 
might make a little more honey. You need to step up and say, folks, in 
a certain area, we are starting to see the system be broke, and, if it 
is broke, we got to fix it.
  Now, we are going to hear the term ``tort reform'' thrown around. I 
have a son that coaches back in Round Rock, and he said, You know, the 
first time I heard tort reform, I thought they were talking about 
bacon, because the average people need to know what we are talking 
about when we talk about tort reform.
  We are talking about a part of the law which basically deals with 
personal injuries to people. It is a system of justice we have 
developed in this country to try to find out a way to try to compensate 
people who are injured by the negligence of others. It was the purpose 
to solve a problem.
  Mr. Speaker, a courthouse, the courtroom, a battery of lawyers, is 
nothing more than a massive problem-solving area for America, and tort 
reform solves the problem of someone being injured through the actions 
of another or their negligence. To look to reform the system, we need 
to say, what is broken?
  Many people in this Congress on both sides of the aisle, and many of 
my colleagues that I work with daily, would start by blaming the 
lawyers. I am not going to start by blaming the lawyers, although they 
certainly have a great amount of blame.
  I start with blaming the American people, because we have become soft 
and decided, many of us think we should have a free ride. The great, 
huge, gigantic verdicts that are being supported by some juries in this 
country are another way of winning the lottery in the eyes of many of 
the American people, and they are just as responsible for administering 
justice when they sit on a jury as a judge is or a lawyer who sits in 
that courtroom.
  So as we look at our system, we have to say, why do we see a $100 
million verdict in a medical malpractice case when it is way beyond the 
imagination of anyone that that is what it takes to make that defendant 
whole from whatever injury that plaintiff has, that is what it takes 
from the defendant to make the plaintiff whole in that case? It is way 
beyond it.
  Why did they award that $100 million verdict? It is my personal 
opinion they awarded that verdict because we have become a country that 
would like to get something for nothing, and they are willing to give a 
fellow citizen something for nothing.
  As a juror takes his oath of office to serve as a trier of fact in a 
case, he should realize that his job there is to do justice. If the 
judge refuses to reform a verdict, it is his job to do justice.
  So as we start seeing these things in our system, we start saying to 
ourselves, those of us in the legislative branch of government start 
saying, well, wait a minute. We see these problems. Are there ways we 
can look to make it better so really justice is done, so really the 
purpose for the courtroom is well displayed by the verdict of the jury 
and the rulings of the court? And that is why this has now become a 
point in time where this society sues more people than the entire rest 
of the world put together by about 15 times. We are out of control in 
our lawsuits. The average jury award is now about $3.5 million, up more 
than 70 percent since 1995.
  So let us look and see who has come up with an idea that might help 
us address tort reform, help us work on this.
  The first area we have already once passed through this House is 
medical malpractice. I am happy to see that my colleague, the gentleman 
from Texas (Mr. Burgess), one of the practicing doctors who is now a 
Member of this august body, has joined me in the House. I am honored to 
have him here; and if he has the time, I would love for him to join me 
and talk a little bit about medical malpractice.

  One of the things you have got to think about is that young doctor 
that just graduated from school, and I will use Texas because I happen 
to know Texas, maybe UT or Baylor or Texas Tech or A&M medical school, 
SMU, someplace they are putting out good doctors. This young man wants 
to go back to a small town and practice medicine, and he wants to do it 
because he wants to make a decent living and help people stay healthy. 
So he may want to go into the family practice of medicine.
  He may want to deliver babies as part of that family practice of 
medicine because he loves children; and it is one of the things he 
loves, bringing life into this world.
  Today we have to tell that young doctor that, first off, you paid for 
all your medical school, probably with money he had to borrow from 
student loans, you are going to have to pay that back, but you are also 
going to have to get ready to kick in about $70,000 to $100,000. I 
would say your first $70,000 to $100,000 you make in the practice of 
medicine you are going to have to go to pay for liability insurance to 
make sure that you are protected.
  That may be a low number. I am sure that the gentleman from Texas 
(Mr. Burgess) could tell us numbers that far exceed that in some 
specialties where people have to go out and get that insurance. That 
means when you open the door, you could be $100,000 in the hole for the 
first year of practice, and the first time something does not go the 
way somebody would like it, there you are facing a lawsuit.
  Now, seven out of 10 medical malpractice lawsuits filed in the United 
States have been proven to be frivolous; and many of these lawsuits, 
unfortunately, because of the nature and the fear of the large verdicts 
in our system, get settled even though they are frivolous, which causes 
what? The cost of the insurance to go up, not only for the individual, 
but for the body and for the specialty.
  There are places in this country right now where you are not going to 
find a neurosurgeon on staff because the cost of being a neurosurgeon 
is just prohibitive. People in the Valley of the Rio Grande of Texas, 
one of the poorest regions in the entire Nation, it is difficult to 
find a doctor who will deliver a baby. There are stories upon stories 
of women arriving at their doctor's office to learn that the cost of 
their medical malpractice insurance has put them out of the baby-
delivering business. That woman is about to have a baby. She is faced 
with driving 80 or 90 miles to San Antonio just to find a doctor to 
make sure that baby is going to be delivered by a doctor, if she can 
get one.
  Mr. Speaker, this is a crisis, and it is a crisis that calls upon us 
who are in the legislative body to start coming up with solutions. I 
think that the vision that we have for following the California plan, 
which has shown that setting certain limits on awards, will assist us, 
and driving down the cost is important. So that is one area.
  We talked a lot about this over the last year, and I wanted to touch 
on it, because that is where we start and that is where we are 
starting. There is a book, I believe it is Mr. Grisham wrote this book, 
called ``The King of Torts.'' It is a novel, but it certainly is based 
upon some historical facts in this country about these class-action 
lawsuits.
  This session of Congress we did something about class-action 
lawsuits, this House did and the Senate did; and I am very hopeful we 
have got class-action lawsuits put where they ought to be. Because what 
was happening is these lawyers were putting together these large 
classes of people.
  Mr. Speaker, I told you, I highly respect the legal profession. I am 
not here to blast lawyers. But just because I respect the profession 
does not mean there are not people that in my opinion that I do not 
hold in high esteem. Some of these are those who would gather a class 
from thousands to hundreds of thousands of people in a class, and their 
victory is they get a certificate for a 20 percent discount and the 
lawyer gets $100 million.
  Mr. Speaker, that is not the right system; and I think, quite 
frankly, the lawyers that do that ought to be ashamed of themselves, 
because the system is designed to make whole those who are injured. Yet 
they forum-shop the Nation looking for these areas where clearly there 
were some courts who favored these types of actions.
  Now, we have put together a system which we feel is very good to put 
it in the right place, because these things cross State lines. They 
span the entire

[[Page H2543]]

Nation and territories of the United States.

                              {time}  2200

  Yet, they could go forum shopping in one individual jurisdiction to 
get better results.
  So, in order to stop this forum shopping, we have put together the 
Class Action Fairness Act which was signed into public law February 18 
of this year. It will help unclog overclogged courts, it ends the 
harassment of local business by forum shopping, and it protects the 
consumers with the Consumers Action Bill of Rights that requires judges 
to carefully review the settlements and limits of the attorneys fees 
when the value of the settlement received by a class member is minor in 
comparison with the net loss of the settlement claim and the resulting 
attorneys fees therefrom. It bans settlements that award some class 
members a larger recovery than others. It allows the Federal courts to 
maximize the benefit of class action settlements by requiring that 
unclaimed settlement funds be donated to charitable organizations.
  Now, this is a good start, and we are going to have, hopefully, 
before this session of Congress is over, before the 109th Congress goes 
to bed, we are going to have more good starts.
  Mr. Speaker, I would say that my goal, and I think the goal of all of 
my colleagues on both sides of the aisle, is to make sure that our 
legal system, the system that we are so proud of, the fact that we 
stand in this Chamber day in and day out and talk about the rule of 
law, because we are proud that we are a nation ruled by the rule of 
law, that what we are trying to do is make the rule of law work better. 
The rule of law is not a Las Vegas slot machine. The rule of law is 
getting justice to every individual that breathes air in this great 
Nation of the United States of America, and justice means fairness to 
all.
  Mr. Speaker, we are seeing in our court system today a trend that, 
quite frankly, frightens me. It frightens me because people do not go 
to court to address grievances; they go to court to punish somebody. 
They go to court to hurt somebody or to make somebody bow down to their 
will. Mr. Speaker, that is the climate we have, and we have to start 
working on it.
  I would like at this time to yield to the gentleman from north Texas 
(Mr. Burgess), my colleague who is very knowledgeable on the subject of 
what this is doing to our doctors and our medical profession and our 
cost of medicine. I am honored that the gentleman is here to join me in 
this conversation.
  Mr. BURGESS. Mr. Speaker, I thank the gentleman from Texas for 
yielding. I heard the gentleman speaking and I felt compelled to come 
down here and talk on this subject a little bit. I am so grateful that 
the gentleman has talked about one of the successes that we have had in 
this Congress, which is the Class Action Fairness bill, a bill that was 
signed into law by the President last month.
  There is no question we can talk about the injuries and the grievance 
situation, we can talk about it all day and all night, but that does 
not do the American people any good. The American people need to see 
results, and I believe with that bill, we have done a great deal 
towards reestablishing our country, the greatest work force in the 
world, as being competitive with other people in other countries. We 
heard a lot about outsourcing during the last election, how we are 
going to stop outsourcing. Well, one of the things we can do to stop it 
is to stop making a climate that is prohibitive for business in this 
country, and I believe our Class Action Fairness bill was a big step in 
the right direction to do that.
  We have also had some other successes as far as the fairness of the 
medical liability system in this country. My colleague already alluded 
to the Medical Compensation Reform Act of 1975 from California, but our 
own State, Texas, passed a very sweeping medical liability reform law 
in the last legislative session, 2 years ago. It required a 
constitutional amendment in the State of Texas to become law, which 
passed September 12 of 2003, and really what I would like to talk about 
is the success that we have seen in Texas since the passage of that 
constitutional amendment.
  Now, 10 years ago, when I was just a simple country doctor, if 
someone had asked me, gee, doctor, what do you think we should do about 
the medical liability problem, the medical liability crisis; and, mind 
you, the medical liability crisis, it goes back a number of years. When 
I was in medical school in 1975, it was a crisis. And we thought we had 
solved the problem then, but, in reality we had only postponed it for a 
little while, and it reemerged in the 1980s. We thought we solved it 
for a little while then, but we did not, and it reemerged in the late 
1990s to be the true crisis situation that occurred in the State of 
Texas in 2002.
  But if someone had asked me back in the years right out of medical 
school what I would prefer to see as something that would restore 
fairness to the medical justice system, I would have said a system of 
an alternative dispute resolution-type of program where you would have 
a medical panel that someone would have to go through before they could 
go to court. I would have a very idealized no-fault system. The reality 
is, we cannot get there.
  So do I love caps? No, not necessarily, but they work. And since they 
work and since the crisis is present in this country; and if you do not 
believe me, if you live in Maryland, ask your doctor the next time you 
go in to see him or her. If you live in Pennsylvania, ask your doctor 
the next time you go in to see him or her. If you live in New Jersey, 
good luck, because you probably will not be able to go in and see your 
doctor, because they have come to Texas, because we have done such a 
good job of fixing the liability problem in our State.
  The central piece of that was, of course, a cap of noneconomic 
damages, a $250,000 cap of noneconomic damages against the physician, 
and a $250,000 cap against the hospital, and then another $250,000 cap 
against a second hospital or a nursing home, if there is one involved, 
for a total cap of $750,000.
  Now, I did not know if that would work. That seemed almost a little 
too generous. The California law that was passed in 1975 worked, but 
they set a single cap of $250,000.

  What has happened in Texas since 2003 when that constitutional 
amendment was passed? Well, one of the unintended consequences was 
hospitals have really enjoyed a significant benefit from the passage of 
that law. Texas hospitals are reporting a 17 percent decrease in 
professional liability premiums for 2004-2005. This is from a Texas 
Hospital Association survey with responses from 172 acute care 
hospitals. In 2003, before the law passed, the premiums had risen more 
than 50 percent.
  This is one of the big things. This is one of the big wins of this 
law. New carriers are seeking entry into the Texas market. The Texas 
Department of Insurance report from August 5, 2004 and the largest 
carrier, Texas Medical Liability Trust, has reduced physician rates 12 
percent. In the years prior to medical liability reform, 13 carriers 
left the State and 6,000 physicians had to scramble for coverage. Now, 
6,000 physicians, that is a big number. You run across one doctor who 
has had that happen to them, and that is a significant blow to their 
livelihood and their career plans.
  When I was campaigning in 2002, I met a young woman who was a 
radiologist. She was probably in her early forties, and she came up to 
me at an event and said, boy, I hope you get something done with 
medical liability reform next year because my carrier left the State 
and I cannot buy insurance. And I thought, well, you must have had some 
trouble along the way. And she offered, before I even had the chance to 
speculate about it, I have never been sued, but my carrier left the 
State. She cannot get insurance. She is not going to practice as a 
radiologist without insurance and put all of her personal assets at 
risk.
  So, as a consequence, here this young woman, 42 years of age, at the 
peak of her power as a physician, if you will, trained at the 
University of Texas at San Antonio, so trained with a State-subsidized 
education, the people of Texas had paid for her training; the people of 
Texas are now denied her abilities, her capabilities as a professional 
because she cannot get insurance and, as a consequence, cannot practice 
radiology, because the profession of radiology is just too fraught with 
peril to practice without insurance.

[[Page H2544]]

  Well, another insurance writer, Texas Health Care Indemnity, reduced 
their rates by 20 percent in Texas. Again, these are hospital insurance 
rates that have been reduced because the doctors in Texas did something 
to try to get ahold of medical liability reform.
  The filings themselves, the actual lawsuits filed have decreased. 
Medical liability lawsuits in several counties considered high-risk for 
physicians have decreased since the new law took effect in 2003. For 
Harris County, 105 lawsuits were filed from September of 2003 to July 
of 2004, compared with 746 lawsuits filed in the 3 months prior to the 
passage of the constitutional amendment. In Bandera County, the county 
where San Antonio is, 81 lawsuits were filed between September 1, 2003 
and April of 2004, compared with 304 lawsuits filed in the 3 months 
before the constitutional amendment was passed. Nueces County, 32 
compared with 108. Cameron County, 17 compared with 28; Hidalgo County, 
17 lawsuits in the year after reform, 96 lawsuits in the 3 months prior 
to reform.
  Well, Mr. Speaker, there is no question that caps have been the good-
news story in Texas, and that is why I embrace the legislation that we 
will do in this House this year that will have as its central feature a 
cap on noneconomic damages.
  Does this keep someone out of the courthouse? Absolutely not. If 
someone is harmed by the system, they are able to recover all of the 
economic damages to which they are entitled. And the reality is in 
Texas, we are going to limit damages for pain and suffering to 
$750,000, which still is a significant amount of money when you 
consider it in the total amount of filed litigation.
  So with that, Mr. Speaker, and with the gentleman from Texas's 
permission, I will yield back, but I will remain around if the 
gentleman has any other questions that he would like to ask of me.
  Mr. CARTER. Mr. Speaker, I would like to have a little conversation 
with the gentleman. The gentleman is right. It is very important to 
make the point that those people that should be at the courthouse 
addressing genuine harm are still getting to the courthouse and having 
that harm addressed. It is not cutting off the need of people to 
recover in the courthouse; it is cutting off these frivolous attacks to 
try to reach the pot of gold at the end of the rainbow by limiting the 
pot of gold, and we clearly can see what happened: Get them all in 
before the deadline so that we can win the lottery. After that, we are 
just going to get paid for our work.
  Mr. BURGESS. Apparently so.
  Mr. CARTER. It is a whole lot more fun to dream about winning the 
lottery. I mean, obviously, the whole country dreams almost every third 
night in this country about winning the lottery someplace; not very 
many of them that win it, but they are out there dreaming it. But the 
real crime of winning the lottery when we are talking about lawsuits is 
the fear of that big judgment that causes people to settle lawsuits 
that should not be settled to prevent the danger of that unlimited 
liability that is out there before caps were placed in the law. The 
gentleman knows there is nothing that irritates doctors more, and I 
have talked to doctors about this; they say, they made me settle the 
lawsuit but, by golly, I did not do anything wrong.
  Mr. BURGESS. The gentleman is absolutely correct. If the gentleman 
will yield, the cost of continuing the lawsuit in both dollar terms and 
emotional terms is sometimes just simply too high, and the better part 
of valor is to settle. Fortunately, I lived in a county where juries 
were a little more favorable to physicians, but we all know of other 
counties within the State of Texas where that was not the case. There 
is no question that cases were settled simply because it was easier 
than continuing the pain and agony of continuing the lawsuit.
  Mr. CARTER. And I too lived in such a county and presided over such a 
court. Our Williamson County jurors, they, when you start talking about 
$1 million, there is not that much money in the world as far as they 
are concerned, so they were very tight with their money and, therefore, 
you saw very few people; if you could file that lawsuit someplace else, 
they were not filing it in Williamson County, because they were seeking 
that pot of gold.
  Mr. BURGESS. But again, the biggest problem is access. If we drive 
our good physicians out of practice, if we prevent our best and 
brightest from entering the practice of medicine, and there is evidence 
that that is happening, I fail to see how we are furthering the cause 
of patient safety by keeping the best and brightest out of medicine. I 
fail to see how we are furthering the cause of patient safety by 
preventing smaller towns from having access to perhaps an 
anesthesiologist or perhaps a cardiologist simply because they cannot 
afford the liability premiums to have them there.

                              {time}  2215

  Now, the gentleman knows I have been around a while. I have had four 
children. When my first couple of children were born, a lot of the 
procedures that you OB-GYNs do on a regular basis. And I am glad to see 
we are joined by another one of our doctors here in Congress, the 
gentleman from Georgia (Mr. Gingrey). So we will just have this 
conversation be three-way.
  When my first two kids were born, I do not even know the terminology, 
but when they scanned the baby on your tummy, that was brand new. The 
piercing to check the fluid was brand new. They did not do that as a 
regular course. They did not run those tests as a regular course with 
my first two children. With my last two children they did, and it was a 
blessing for our family because we had a crisis pregnancy at one time.
  But my point now is that a doctor, because of the potential of the 
liability, is afraid not to do those procedures. Is there some truth to 
that? Does the gentleman agree that there is some truth to that?
  Mr. GINGREY. If the gentleman will yield, I do. And the gentleman 
from Texas (Mr. Carter), the good judge, is kind to yield to me. I 
actually came to the well for another purpose, but since you asked me 
my opinion on this, I will be glad to opine.
  By the way, that piercing of the abdomen to get the fluid, that is 
called amniocentesis.
  Mr. CARTER. That is it. That is why I went to law school and not 
medical school.
  Mr. GINGREY. Now, do not ask me to spell that for you.
  But, Mr. Speaker, absolutely. What the gentleman from Texas, both the 
gentlemen from Texas, I should say, are absolutely right. The gentleman 
from Texas (Mr. Burgess) earlier was talking about the number of 
physicians, that before this good legislation was passed by the great 
State of Texas, it was 600 or so. And it is really, as I have said this 
many times, it is not just that the physician loses his or her 
livelihood that they have worked most of their adult life to establish. 
But it is a jobs situation, because every time a medical office closes 
because of the burdensome expense of malpractice insurance, you are 
talking about putting maybe 15, 25, possibly as many as 50 employees of 
that medical practice, Mr. Speaker. That is how many were employed in 
my practice as an OB-GYN in Georgia.
  And I really commend Texas in regard to their legislation. I think it 
was a model, Mr. Speaker, for my State of Georgia in the general 
assembly, and the State of Georgia this year did pass reform 
legislation very similar to the Texas bill. And I think that they have 
now got a couple of years' experience, so hopefully that same thing 
will occur in the State of Georgia.
  So I really appreciate the gentleman yielding and giving me an 
opportunity to weigh in on this.
  Mr. CARTER. Mr. Speaker, reclaiming my time. And I once again thank 
my colleague from Texas (Mr. Burgess) for being here with me tonight. I 
rose when I first started talking to tell you that there is, in my 
opinion, an attitude crisis for the justice system in America. We have 
talked about medical malpractice, and we have gone forward on the 
crusade. And I think we are getting some results. And the gentleman 
from Texas (Mr. Burgess) has very clearly described how we are seeing 
those results in the State of Texas today. Hopefully, with the work 
this Congress will do, we will be able to find that same success in the 
area of dealing with medical issues in the courthouse, to put more 
fairness back in the system; and that our class action reform, I think, 
is putting fairness back in the system.

[[Page H2545]]

  But it is a bigger picture than that, Mr. Speaker. There are a lot of 
issues we really need to talk about as we talk about lawsuit reform in 
America. One of the real tragedies that you see in the courthouse today 
is people using our courts, not to redress grievances, but as a 
battering ram of costs to destroy competition with those that they are 
in business in competition against, or using it to try to change, make 
somebody do something they do not want to do by costing them enough 
medical costs, I mean, lawyer costs they cannot afford to go to court.
  So you just continue to file lawsuit after lawsuit after lawsuit, 
many of which could be frivolous; but you must defend yourself. And you 
must be insured to defend yourself. It is getting epidemic. And if you 
do not think it is epidemic, let us think about the world we are in 
today, the world of politics in America. Do you think our Founding 
Fathers ever anticipated that at the end of an election cycle parties 
would have 50 lawyers on retainer ready to go to court on both sides 
with both parties?
  Do you think that that is the system that we thought that we wanted 
to have in this country, America? And yet we seem to be there today. I 
am not taking the sides of whether you like or do not like how 
elections come out. But when did it become everybody goes to court? 
When did this have to happen?
  I mean, our Founding Fathers trusted the American people to elect 
their representatives. Did they design a system where judges rule the 
country? I do not think so. If they had had that system, they would 
have kept the King, and old George would still be around here. No, the 
purpose of the American justice system is justice. It is fairness, it 
is a place to seek recourse when there is no other place for recourse 
and to get a fair judgment.
  Now it has become a weapon of politics. It has become a weapon of 
business; it has become a weapon to make school boards change policies. 
It has become a weapon to make city counsels shut down parks or take 
down symbols. We have gotten to a point where we are letting the 
courthouse drive everything.
  Mr. Speaker, we love our rights in this country. We love to be a 
Nation that stands up for its rights. My problem is, with rights come 
responsibilities. And there are times in this life when you are 
responsible and you have to stand up and recognize I am responsible 
here. I do not need to sue somebody. If I do not like the way my 
neighbor cuts his yard, why in the world do I have to drag him into 
court and make him spend $100,000 on lawyers to make him cross-cut his 
yard instead of parallel cut it? And yet there are people who do that.
  I tried a lawsuit between whose cat and whose dog was doing their 
business in whose yard. And those people spent $60,000 a piece on 
lawyers. Mr. Speaker, that is unreasonable. That is ridiculous.
  But we have reached a point in America today where we have become so 
lawsuit crazy and we think we can get something for nothing, they are 
willing to force somebody to do something that they do not want to do 
by forcing them to spend their money on lawyers.
  It is not the lawyers' fault. They are just getting paid for their 
hourly wage. It is our attitude in this country. And as we start to 
show people how we can redirect and make things better, the gentleman 
from Georgia hit right on it. Not only as these judgments come down in 
the courtroom does it affect the individuals in the courtroom. The 
periphery around those individuals, it affects jobs, it affects 
businesses, it affects the availability of services, the availability 
of goods, our ability to compete worldwide, to be part of this great 
ever-growing world community. It affects everything that affects every 
American citizen by the fact that we are driving up legal costs and 
using our courts as a weapon.
  Mr. Speaker, we have got to do something to change this attitude. I 
am very blessed right now in Congress to have a multiple of my 
colleagues from Texas now Members of Congress, the gentleman from Texas 
(Mr. Gohmert), who is here with us today. The gentleman from Texas (Mr. 
Poe) is also a new Member of Congress, and I am very honored to have 
both of these fine judges with me.
  We have talked. We talk about what happens in our courtroom, what 
happens in our courthouse. And we see that there is an attitude in 
America that has got to be changed. And we do this by, I think, by 
doing what we are doing right now. Let us start taking the real problem 
areas, let us start analyzing them. Let us start coming up with a 
commonsense approach of how we are going to make sure that we are not 
in the business of making people rich. We are in the business of making 
people whole. We are in the business of making people right for the 
injury that occurred. And common sense will hopefully cause us to start 
to see that what our American court system is about is justice. And if 
it is not about justice, then it is going about things all wrong.
  Mr. Speaker, every day now in the newspaper we see somebody using the 
courts or somebody using accusations without convictions to harm and 
punish people in this country, and in this body. Mr. Speaker, that is 
wrong. That is not what our Founding Fathers intended.
  Our Founding Fathers told us that people are innocent until proven 
guilty. They told us we have a series of courts that are to provide 
justice and a resolution of disputes, not a battering ram to pound your 
opponent into submission. And this is the kind of thing that, as we 
look at the future of the American justice system, we have to do this.
  Now, when I get the chance to come up here and talk about lawsuit 
reform, there is one more thing we ought to talk about. And I may 
change the subject just so I can get my good friend, the gentleman from 
Texas (Mr. Gohmert), to step up to the podium. I am going to yield to 
him right now, and then I am going to come back and talk to you a 
little bit about what is going on over in the Senate and checks and 
balances on the judiciary. But first, I thank the gentleman from Texas 
for coming up here this late hour and joining me. I am proud to have 
him here, as I said before.
  Mr. GOHMERT. Mr. Speaker, I thank the gentleman. I am very honored to 
be here in the same body with him. He is a well-respected and well-
thought-of jurist sitting in Georgetown, Texas, from Round Rock, Texas, 
home of the yellow doughnut. But it is an honor to serve with you and 
with somebody that understands the triparteid system of government and 
the checks and balances. I know when I was at Texas A&M in undergrad, 
and it looked like I would not be going to Vietnam, it was ending 
before I graduated, I was looking at going to law school and my dad was 
concerned about that. And I used to get clippings every weekend, talked 
about there are too many lawyers in the country, and what is wrong with 
America are the lawyers, and lawyers are crooks and that kind of thing. 
And I really had to do a lot of soul searching about whether law school 
was something I wanted to do.
  And what I came to the conclusion of was that, really, the law is a 
tool. It is like a hammer. You can use it constructively to build great 
things, or you can use it to tear down the greatest things. And that 
was all in whose hand that tool resided. And I ended up endeavoring to 
do just that, to use the tool and try to use it constructively.
  But then, as the gentleman has pointed out, we have seen around the 
country so many abuses. I was just in Spokane, Washington, and talking 
to people in eastern Washington Friday and Saturday and was hearing how 
desperate they were for some certain physicians and specialists in the 
eastern part of Washington, that many of them were having to travel 
over to Idaho, some parts of Texas that has become a real problem.
  And it is a shame it arises out of some of the abuses that have 
occurred. You and I know that there are excellent defense lawyers. 
There are excellent plaintiffs' attorneys and the courts are a very 
necessary part of our triparteid system where we can come, no matter 
what is going on outside the courthouse, we can come sit down and each 
side gets a turn, each side puts on their case, puts on evidence, each 
side has a chance for mutual arguments and then have a determination in 
a fair civil manner from objective people, and that is a great system. 
It is not a perfect system, because unfortunately it deals with people. 
But it is the best system that has ever been generated for resolving 
disputes.

[[Page H2546]]

  But because of some of the abuses, I have been looking for solutions. 
We know, I have seen for example, many doctors brought in to a lawsuit 
and maybe there was one person at fault, but then all these other 
people got brought in, and then person after person who is a defendant 
gets dropped from the lawsuit.

                              {time}  2230

  I had one doctor standing in my courtroom when I announced that the 
plaintiffs had dismissed her and she said, That is it? I am dismissed? 
What about my pain and suffering? What about a year's loss I have had? 
What about my attorneys fees? What about my liability insurance going 
through the roof? All of these things have happened and there is no 
recourse.
  So one of the things that I thought that would help level the playing 
field, and I am open to any ideas, and we hear talk about caps, this, 
that and the other, but it seems like a system where there was a 
provision for a loser to pay, if there is no finding of fault or no 
agreement among the parties, that that could go a long way toward 
leveling the playing field.
  Now, I have heard people from the other side who said, but you do not 
understand the games that get played on the defense side. I have seen 
the games that get played on the defense side. I had one lawsuit that 
involved thousands of plaintiffs, and originally there were hundreds of 
defendants in it. After I had come into the suit, within a matter of 
months I dismissed a whole slew of defendants. A couple of defense 
attorneys told me, wow, Judge, this has been going on 11 years. You 
just came in here and all of the sudden dismissed a bunch of 
defendants. We are proud of you. It is good for our clients but we do 
not know what we will do. One of them said, I put my kids through 
college and law school on this case as a defense attorney. I kind of 
hate to see it go away for my clients because I was making money.
  There are abuses on both sides. One of the thoughts I had was to 
answer the cry if you had a strict loser-pay situation that it would 
make people reluctant to bring all the parties in to a suit initially. 
And if they did not do that, then you get past the statute of 
limitations period and then all the defendants turn and point to 
somebody who is outside the lawsuit, saying he is responsible, and it 
is too late to go get him.
  We know also there have been abuses where parties are brought in just 
so discovery can be done, depositions be taken free of charge and then 
drop them. That is a form of abuse as well. My thought was perhaps have 
a loser-pay type situation, and if it gets beyond the limitations and 
parties in the lawsuit, point to somebody outside the lawsuit, then 
extend the limitations for 30 days to bring in a party that they are 
now all pointing to so that that would take care of that situation.
  I am looking for solutions because there are a lot of people that are 
getting hurt, a lot of people that have been abused; but at the same 
time we need to protect the system so that real legitimate claims can 
have a resolution.
  If the gentleman would allow me to mention one other aspect of this 
that he has been talking on so eloquently, of course I love the way a 
fellow Texan talks such as the gentleman, but I have noticed an effect 
in the schools.
  My mother passed away in 1991 but she was a teacher, eighth grade 
English teacher most of her adult life, and my sister had been a school 
teacher for nearly 30 years. My wife had been a school teacher until we 
got to needing her so desperately full time in our campaign in 
Congress. But what I was seeing more and more of was this fear of being 
abused by a lawsuit by educators, by teachers and sometimes teachers 
have enough. They have a problem student. They take him to an 
administrator and an administrator says, I realize this person is 
completely disrupting your class but their parents keep threatening a 
lawsuit and we cannot afford that. So if you just get by and do the 
best we can and we will get past the lawsuit and probably somebody 
else's. And it seems like it has been a complete disruption to orderly 
discipline in our schools.
  One of the thoughts, here again, I am trying to think outside of the 
box and think creatively, but as judges we had something called 
judicial immunity. You may not like the way a judge rules, but if he is 
not committing a crime and he is acting within the purview of his job, 
trying to do what is right, trying to make the right decision, you are 
not going to file a lawsuit against him. And if you do, it will be 
thrown out and probably sanctioned because the judge has judicial 
immunity.
  I thought it might be fair to help education by extending that 
doctrine to the area of education. You may be making a decision that is 
not very wise as an administrator and an educational facility, you may 
be a teacher that does not make wise decisions, and that is the basis 
for going to the school board and getting you fired. That is a reason 
to go to the school board and have a principal or someone else fired, 
but it is not a basis to run and file a lawsuit and go to court. So 
that educators can feel more comfortable in doing a job.
  Yes, they are accountable through the legislative branch, but let us 
do not make it a habit to run down and file lawsuits. I think we could 
set the schools back on track and a long way toward proper discipline 
if we extended that type of educational immunity to teachers and 
administrators. As long as you are not committing a crime, you are 
acting within the purview of your job, let us give you a break.
  The gentleman has discussed so eloquently this mindset, this America, 
everything is someone else's fault. And once we can help people get 
beyond that notion and force them to try to resolve things among 
themselves, mediation, arbitration, these type of things have been very 
helpful in the alternative dispute resolution, trying to avoid the 
lengthy attorney fees and court costs.
  We were in Spokane hearing testimony about environmental laws. We had 
boxes stacked up over my head. As I understood it, it was over a little 
more than 2-mile stretch of road, and the appeals and things that have 
just gone on and on have been crazy, the trees that have been cut down 
just to allow that kind of abuse of the system. By the same token, I 
was shown a graph that showed that since 1970, the bar graph year by 
year, that lawsuits have continued to escalate, and with each year as 
the lawsuits escalated the board-feet of lumber we had produced had 
gone the other way, directly proportional the other way.
  So we see the destructive tendency. That is a renewable resource. We 
ought to be able to do better than that. But the courts have been used, 
as the gentleman said, to batter others. As Shakespeare said, The 
problem may not be in our stars but in ourselves.
  Some people blame the lawyers but the fact is no lawyer can file a 
lawsuit without a client. No lawyer can defend a lawsuit without a 
client. The problem may be bigger than just lawyers. It may be not in 
our stars, not in our lawyers, but all part of the same problem.
  I appreciate the gentleman addressing this so well tonight.
  Mr. CARTER. Madam Speaker, I thank the gentleman. I want to say a 
statement the gentleman made, I want to emphasize how important it is 
to me and I think it is important to every Member of this House. That 
is, men of good will always look for solutions.
  We do not always have the right ideas, but if you do not lay proposed 
solutions on the table for a free debate among men of good will and 
women of good will in this august Chamber, we will not come up with a 
solution.
  I believe the American people are ready, willing, and able to listen 
to a debate from the United States Congress about the things that we 
are talking about here today; and that is what is wrong, how do we 
change our attitude towards the law, towards our rights and towards our 
responsibilities? What little things can we do to adjust, to help guide 
us down the path that I think our forefathers clearly intended for us 
when we designed the system, which, for all its fault, as the gentleman 
pointed out, is still the best system ever devised by man?
  I am not ashamed of it, and I am not ashamed of lawyers, and I am not 
ashamed of our system. But I think we must be men of good will and 
women of good will who seek solutions.
  Finally, I am going to just briefly pause. This will be the subject 
of a whole other talk, but we have got the

[[Page H2547]]

issue that the press has decided to address as ``the nuclear option'' 
which is going on over in the Senate by dealing with the Senate rules 
and how we are going to get an up-or-down vote on judges.
  We love to address, and rightfully so, the Constitution of the United 
States as we discuss things on this floor. And we love to talk about 
the checks and balances in our government. And in a judiciary appointed 
for life as we designed in our system, you have to look into the 
Constitution and see where the checks and balances are. And I think 
clearly our framers designed the number one check and balance on the 
judiciary to be the fact that there will be a new process at least 
every 8 years now, but certainly 4 to 8 years, who will appoint 
different types of people to serve in our judiciary which will give a 
good cross-section of a blend of attitudes, views of the law to our 
judicial system, to give a system that spreads fairness for all 
citizens.
  To use procedural rules to prevent that appointment power which calls 
for the advice and consent of Senate, to prevent that using procedural 
rules, I think it is not a nuclear option, as we are discussing, it is 
a constitutional option.
  If we are not going to allow that check and balance to operate, then 
where will the checks and balances be? So this will be a subject of 
another discussion another time. But at this time, I just want to 
remind the American people as the rhetoric in the papers and on the TV 
and the radio, remember it is the best justice system in the world. But 
it is the best because we had some people who sweated blood, sweat, and 
tears in Philadelphia to come up with a plan that set balance to our 
system. And the number one balance to a judicial system appointed for 
life is the opportunity for the executive branch, through the 
President, to nominate new blood to our judiciary through every 
Presidential term.
  Some of that new blood will be just exactly what they think it will 
be with their views, and some of it will not. And we are always 
surprised to hear from our commentators: Well, it is true, but that 
judge was appointed by Reagan.
  That's right, that is how the system works. You put the new blood out 
there, that blood develops into a justice system, that spreads it out 
for everybody. And some of them, some people go the way everybody 
expects them to be and some people do not.
  When Eisenhower appointed Earl Warren, nobody anticipated the 
activist court that would come from the Warren court. And yet 
historically it is one of the most activist courts in America. So that 
system works. Why be afraid of it?
  I would urge everyone to look at this issue and let the Senate think 
just for a second, get the politics out of this for a minute and say, 
What did our Founding Fathers see here? That we had a system that works 
if we just let it work.
  Let us have a vote, up or down, on every nomination that the 
President has proposed; and when their President gets in there, if he 
ever does, we should do the same thing for them. That is what our 
Founding Fathers proposed.
  Madam Speaker, I have enjoyed being with you this evening and I am 
very honored that my colleagues were able to see me ranting and raving 
and come over here and help me out. Of course, you know one thing you 
can count on from Texans and Georgians is when there is a call to arms 
they always show up. So I am proud to see my colleagues from Texas come 
out and join me in this discussion, and I am very proud to have my 
colleague from Georgia join me. I thank them all for being here with me 
tonight.
  Madam Speaker, I thank you for your patience in listening to me 
tonight and for joining us and coming up with those solutions that men 
and women of good will can submit to this body and hopefully make 
America better.

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