S5588 CONGRESSIONAL RECORD— SENATE April 24, 1995 

in the manufacture and distribution of 

actual hard goods in our national economy. 

It really does not matter in the 

American system whether or not goods 

are manufactured in South Carolina 

and sold in the State of Washington or 

in the State of Minnesota, or manufactured in the State of Minnesota or 

Washington and sold in South Carolina. Almost every significant manufacturer sells its goods in every State 

in the country. As a consequence, the 

burden of a legal system which encourages litigation in which results are 

likely to be dramatically different in 

one State than in another—a fact, incidentally, known to most trial lawyers 

who see, obviously, the most favorable 

forums for their litigation—calls for a 

degree of uniformity. The desire that 

American industry be more competitive, the desire that American industry 

spend freely on research, the desire 

that American industry develop products as a result of that research, the 

desire for the kind of competition 

which causes lower prices to consumers 

is obviously in the national interest. 

When it has been demonstrated so dramatically that the present system discourages research and development, it 

causes many manufacturers that abandon particular fields, sometimes totally and sometimes leaving them to 

monopolies or quasimonopolies. When 

consumer prices in certain areas are so 

adversely affected, it is appropriate 

that we seriously consider whether or 

not we cannot consistently, with justice, provide for a more uniform system than we have at the present time. 

Does this bill entirely nationalize it? 

No, of course not. It would be inappropriate to do so. Does it make it more 

uniform? Yes, Mr. President, it does. 

That has no more relevance to whether 

or not we should continue to maintain 

a nationalized welfare system or perhaps a myth that it has been a failure 

and that we need State experimentation. There is no relevance between 

the two. Each should be judged on its 

own merits. This should be judged on 

its own merits. And to say that there 

are somehow or another seventh 

amendment of the Constitution implications, again, Mr. President, seems to 

me to be an equally bizarre argument. 

Every jury is subject to the law. 

Every jury is instructed as to what the 

law is. Juries are instructed on the degree of the burden of proof and the 

like, and juries determine facts. Nothing, not one line, not one phrase of this 

bill, deprives any jury of the right to 

determine matters of fact which come 

before it. It sets up a framework—we 

believe a just and balanced framework—for one relatively small but vitally important field of litigation, perhaps the single field of litigation in 

which interstate commerce is most implicated. It does that, and it does that 

in a way which does not deny justice or 

full compensation for any injury subject by reason of the negligence of a 

manufacturer, Mr. President. 

There are no caps in this bill on compensation, on compensatory damages 

of any kind. But it does make somewhat more predictable the course of 

litigation, somewhat lowers the cost of 

litigation. And, Mr. President, I suspect that no actual victim is likely to 

suffer at all. But I am convinced that 

the transaction costs for lawyers and 

expert witnesses and the like, which 

now eat up way more than half of all of 

the money that goes into the product 

liability system, that those transactional costs will be significantly 

lessened by the passage of this bill. 

Mr. HOLLINGS addressed the Chair. 

The PRESIDING OFFICER. The Senator from South Carolina. 

f 

PRIVILEGE OF THE FLOOR 

Mr. HOLLINGS. I ask unanimous 

consent that the privilege of the floor 

be granted to the following members of 

the Senators staffs. I send the list to 

the desk. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. HOLLINGS. Mr. President, what 

you have is, as the Senator from Washington just talked about, punitive damages. You have a procedure whereby 

you might have willful misconduct, but 

under this particular section, 107(2): 

Inadmissibility of evidence relative only to 

a claim of punitive damages in a proceeding 

concerning compensatory damages. If either 

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. 

That tells you they have really 

worked this measure over, and they 

want to keep out the evidence in the 

regular trial of a case of willful misconduct. They want to keep that out of 

the attention of the jury hearing the 

case. 

Right to the point of punitive damages, Mr. President. I have listened to 

Jonathan S. Massey, an attorney who 

testified in our recent hearings as having handled punitive damage awards 

before the U.S. Supreme Court. I asked 

him, ‘‘You know, I was just thinking 

that the award of punitive damages in 

the Pennzoil versus Texaco case of $3 

billion in punitive damages, how did 

that compare to all product liability 

cases?’’

Just go back 30 years to 1965 and see 

what we really can find out. I ask 

unanimous consent to have printed in 

the RECORD a letter to me, along with 

punitive damage awards from 1965 to 

the present. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

APRIL 13, 1995. 

Hon. ERNEST F. HOLLINGS, 

U.S. Senate Committee on Commerce, Science, 

and Transportation, Washington, DC. 

DEAR SENATOR HOLLINGS: At the hearing 

on April 4, 1995 before the Consumer Affairs, 

Foreign Commerce, and Tourism Committee 

of the Committee on Commerce, Science, 

and Transportation on S. 565, the Product Liability Fairness Act of 1995, you asked me to 

compare the $3 billion in punitive damages 

awarded in the Pennzoil v. Texaco case with 

the sum of punitive damage awards in all 

product liability cases since 1965. 

The attached pages show that punitive 

damage awards in products liability cases 

since 1965 come to a fraction of the $3 billion 

figure. For products liability cases in which 

the punitive damage award is known, the 

total comes to $953,073,079. There are 109 additional cases in which the punitive damage 

award was not reported by the court or either party, most likely because it was not 

large. If one were extrapolate for those 109 

cases by taking the average award in cases 

in which the punitive award is known—

which would err on the side of inflating punitive damage awards in products liability 

cases—the total of punitive damage awards 

in all products liability cases—the total of 

punitive damage awards in all products liability cases since 1965 would come to only 

$1,337,832,211—less than half the award in 

Pennzoil v. Texaco. 

I hope this information is of assistance. 

Sincerely, 

JONATHAN S. MASSEY. 

PRODUCT LIABILITY PUNITIVE AWARDS, 1965–

PRESENT

AL, 20 cases, $58,604,000; 9 additional cases 

with unknown amounts. 

AK, 2 cases, $2,520,000; 1 additional cases 

with unknown amounts. 

AZ, 6 cases, $3,362,500; 3 additional cases 

with unknown amounts. 

AL, 1 cases, $25,000,000; 0 additional cases 

with unknown amounts. 

AK, 1 cases, $1,000,000; 0 additional cases 

with unknown amounts. 

AR, 2 cases, $6,000,000; 3 additional cases 

with unknown amounts. 

CA, 17 cases, $35,854,281; 9 additional cases 

with unknown amounts. 

FL, 1 cases, $1,000,000; 0 additional cases 

with unknown amounts. 

CT, 1 cases, $688,000; 0 additional cases with 

unknown amounts. 

FL, 1 cases, $519,000; 0 additional cases with 

unknown amounts. 

CA, 4 cases, $3,618,653; 0 additional cases 

with unknown amounts. 

FL, 1 cases, $750,000; 0 additional cases with 

unknown amounts. 

CA, 3 cases, $2,425,000; 0 additional cases 

with unknown amounts. 

CO, 3 cases, $7,350,000; 1 additional cases 

with unknown amounts. 

CT, 0 cases, $0; 1 additional cases with unknown amounts. 

DE, 2 cases, $75,120,000; 0 additional cases 

with unknown amounts. 

FL, 26 cases, $40,607,000; 9 additional cases 

with unknown amounts. 

CA, 1 case, $30,000; 0 additional cases with 

unknown amounts. 

FL, 2 cases, $3,500,000; 0 additional cases 

with unknown amounts. 

GA, 10 cases, $43,378,333; 3 additional cases 

with unknown amounts. 

HI, 1 case, $11,250,000; 0 additional cases 

with unknown amounts. 

ID, 0 cases, $0; 1 additional case with unknown amounts. 

IL, 16 cases, $44,149,827; 3 additional cases 

with unknown amounts. 

MN, 1 case, $7,000,000; 0 additional cases 

with unknown amounts. 

IL, 3 cases, $5,000,000; 0 additional cases 

with unknown amounts. 

IN, 1 case, $500,000; 0 additional cases with 

unknown amounts. 

IA, 1 case, $50,000; 2 additional cases with 

unknown amounts. 

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April 24, 1995 CONGRESSIONAL RECORD— SENATE S5589 

KS, 7 cases, $47,521,500; 1 additional case 

with unknown amounts. 

KY, 2 cases, $6,500,000; 0 additional cases 

with unknown amounts. 

LA, 2 cases, $8,171,885; 0 additional cases 

with unknown amounts. 

ME, 3 cases, $5,112,500; 0 additional cases 

with unknown amounts. 

MD, 3 cases, $77,200,000; 2 additional cases 

with unknown amounts. 

MI, 2 cases, $400,000; 0 additional cases with 

unknown amounts. 

MN, 4 cases, $10,000,000; 1 additional cases 

with unknown amounts. 

MS, 4 cases, $2,790,000; 1 additional cases 

with unknown amounts. 

MO, 9 cases, $20,785,000; 1 additional cases 

with unknown amounts. 

MT, 2 cases, $1,600,000; 1 additional cases 

with unknown amounts. 

NV, 1 cases, $40,000; 1 additional cases with 

unknown amounts. 

NJ, 4 cases, $900,000; 5 additional cases with 

unknown amounts. 

NM, 4 cases, $1,715,000; 1 additional cases 

with unknown amounts. 

NY, 7 cases, $6,019,000; 6 additional cases 

with unknown amounts. 

NC, 2 cases, $4,500,000; 0 additional cases 

with unknown amounts. 

OH, 6 cases, $4,395,000; 1 additional cases 

with unknown amounts. 

OK, 6 cases, $15,390,000; 1 additional cases 

with unknown amounts. 

OR, 3 cases, $62,700,000; 0 additional cases 

with unknown amounts. 

PA, 5 cases, $16,298,000; 8 additional cases 

with unknown amounts. 

RI, 1 case, $9,700,000; 0 additional cases 

with unknown amounts. 

SC, 5 cases, $2,945,500; 4 additional cases 

with unknown amounts. 

RI, 1 case, $100,000; 0 additional cases with 

unknown amounts. 

SD, 1 case, $2,500,000; 0 additional cases 

with unknown amounts. 

TN, 4 cases, $4,720,000; 3 additional cases 

with unknown amounts. 

TX, 38 cases, $217,098,000; 19 additional 

cases with unknown amounts. 

UT, 1 case, $300,000; 0 additional cases with 

unknown amounts. 

VA, 2 cases, $340,000; 0 additional cases 

with unknown amounts. 

WV, 3 cases, $2,433,100; 4 additional cases 

with unknown amounts. 

WI, 7 cases, $10,622,000; 4 additional cases 

with unknown amounts. 

FL, 1 case, $2,500,000; 0 additional cases 

with unknown amounts. 

WI, 2 cases, $26,000,000; 0 additional cases 

with unknown amounts. 

DC, 1 case, $2,500,000; 0 additional cases 

with unknown amounts. 

Grand total 270 cases, $953,073,079; 109 additional cases with unknown amounts. 

Average punitive award; $3,529,900; Extrapolated total of all awards, $1,337,832,211. 

Mr. HOLLINGS. Mr. President, that 

goes right to the heart of what they are 

really concerned about. They are concerned about these manufacturers 

making more money. They are not concerned about punitive damages. If they 

were concerned about punitive damages—and we will list, when we have 

more of the Senators in town here that 

are not present here on this Monday 

afternoon, we will list the punitive 

damage awards with respect to these 

corporations suing corporations. 

My understanding of punitive damages is willful misconduct. But if there 

is an abuse of the awards of punitive 

damages to justify this national concern, it would be at the manufacturer 

or the business or the contract level, 

not that of individuals injured on account of the defective product bringing 

their cases in tort for product liability. 

There is no question about it. 

Now, the distinguished Senator 

points out how he is concerned about 

consumers. He says this money goes to 

consumers, consumers, consumers. I 

refer to the distinguished chairman of 

our Judiciary Committee, the Senator 

from Utah, my good friend, for whom I 

have the greatest regard. 

We have listed and already put into 

the RECORD certain organizations, and 

among those organizations opposing S. 

565, is the American Council on Consumer Awareness, the Arizona Consumers Council, the Coalition for Consumer Rights, the Consumer Federation of America, Consumer Federation 

of California, Consumers for Civil Justice, Consumers League of New Jersey, 

Consumer Protection Association, Consumers Union, Florida Consumer Action Network, Massachusetts Consumer Association, Michigan Consumer 

Federation, the National Consumers 

League, the New York Consumer Assembly, the Oregon Consumer League, 

Pennsylvania Citizens Consumer Council, and it goes right on down to Virginia Citizens Consumer Council. I can 

keep reading on and on. 

Every responsible consumer organization in this country opposes this bill. 

So we should not say that we are trying to protect consumers with this particular measure. The sponsors are trying to make more money for the manufacturer. They are not looking after 

consumers. Consumers know differently. 

As the distinguished Senator from 

Utah points out in his studied presentation, in the prepared comments—I 

know, as the Senator knows, how we 

get these prepared comments. Senators 

tell the staff—and he has a Judiciary 

Committee staff and a personal staff—

‘‘Get out and find the most horrendous 

cases. I want to take these trial lawyers and put them to rout, and I want 

to find the most egregious kind of 

claims that can be thought of so in my 

prepared remarks I can show there is a 

national need.’’

Heavens above, look what he comes 

up with. If I try a law case I would win 

before a fair jury. 

This is a fixed jury, the U.S. Senate, 

Mr. President. This jury is fixed. We 

have 60,000 lawyers downtown here—

billable hours—they come in and lobby 

for fixes. But if I had an unfettered 

jury and found out that the best of the 

best, the chairman of our Judiciary 

Committee, that conducted hearings, 

came up with the milk shake case of 

1994 and found out it went all the way 

to the Supreme Court of New Jersey 

against McDonald’s, and they were vindicated, that tells me that there is an 

incompetent lawyer or he has nothing 

else to do. I know unless I have a pretty good, strong case, I am not going to 

be bringing suits and appealing all the 

way about ‘‘a milk shake that popped 

the top open as I put it between my 

legs as I drove off from McDonald’s.’’ I 

have real work to do. 

That case is in my favor. That shows 

the law is working, and it is working in 

the State of New Jersey. One other 

case he had, and that was a New York 

State case in 1989, and again the defendant was vindicated. 

Now, is that the best they can bring 

to the U.S. Senate on a national need? 

Come on here, we can cite cases like 

contracts, if we want to. We will list a 

few of them. We have that, if that is 

the basis on which they want to argue. 

Here in 1989 Uncle Ben’s sued General 

Foods over advertisements claiming 

that Minute Rice outperformed Uncle 

Ben’s in the slotted spoon test. 

In 1989, Walt Disney Co. sued to force 

a public apology from the Academy of 

Motion Pictures, Arts, and Sciences, 

for an unflattering representation of 

Snow White in the opening sequence of 

the 1989 Academy Awards ceremony. 

In 1987, Kellogg filed a $100 million 

suit against General Mills arguing that 

Post natural raisin bran was not natural as advertised because it is coated 

with coconut oil and that comparative 

television ads were misleading because 

‘‘extraneous material that would cling 

to the raisins had been cleaned off.’’

Here is Kellogg suing General Mills. 

People here are talking about individuals bringing ridiculous suits—look at 

these cases here. I think we ought to 

look at these manufacturers. 

Mr. CRAIG assumed the chair. 

Mr. HOLLINGS. In 1986, the producer 

of Minute Maid Orange Juice, CocaCola, sued Procter & Gamble, charging 

that ads for Citrus Hills Select falsely 

claimed that the juice was made from 

the heart—heart—of the orange. 

In 1982, McDonald’s sought a temporary restraining order to prevent the 

airing of ads comparing McDonald’s 

Big Mac unfavorably with the Burger 

King’s Whopper. 

Come on. Is that what we are going 

to consider? We have work to do up 

here. The plea here about the interstate commerce clause, taken at the 

Senator’s insistence, just repeals the 

10th amendment and the responsibility 

of the several States for tort litigation. 

I agree with him. I agree with him. Let 

us extend the interstate commerce 

clause. But let us extend it to insurance companies which are, all of them, 

engaged in interstate commerce. I had 

one, an insurance company before the 

Securities and Exchange Commission. I 

guess the year was around 1960 or 1961. 

I know Manny Cohen was the Chairman of the Securities and Exchange 

Commission. And I asked that that 

company be able to operate in several 

States. I got it approved in 13 days. I 

know about interstate commerce and 

insurance. 

I can tell you here and now, you put 

in a bill—if you want to see the insurance lawyers all fill up that hall outside, put in there, under the interstate 

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S5590 CONGRESSIONAL RECORD— SENATE April 24, 1995 

commerce clause, an Insurance Commission for the United States of America, and say, ‘‘Quit having to file your 

policies and hire lawyers racing around 

to the capitals of 50 States, every one 

of your policies must be justified and 

administered in that particular State 

under that particular law; what we are 

going to have is uniformity. We are 

going to have a Federal Insurance 

Commission.’’ Oh boy, talk about acting under the interstate commerce 

clause—you will see them fight it. 

We have to expose this fraud that has 

been going on for 14 to 15 years. Jerry 

Ford was right. President Ford put it 

to the study commission and he said 

leave it to the States. In the 15-year 

period, the States have all acted and 

they have revised their laws and come 

up with responsible provisions as time 

evolves with respect to the conduct of 

product liability litigation. But it is 

certainly not a national problem. This 

thing about competitiveness, it is just 

totally out of whole cloth. 

I have been in the game, and we can 

name the industries, one after the 

other. Not long ago, I was at Bosch, 

which is a German company that is located just outside of my hometown of 

Charleston, SC. They have a 10-year 

contract to make the antilock brakes 

for all the General Motors cars. They 

make the antilock brakes for the Toyota; they make the antilock brakes for 

the Mercedes-Benz—foreign cars as 

well as domestic. 

When you go in to inspect their 

plant, they put covering over your 

shoes and a smock all the way around 

that you have to wear over your clothing, and a headpiece to make sure no 

dust or any kind of solutions come 

from your hair into their particular 

product. In fact, it is much like going 

through a pharmaceutical company, or 

film. Incidentally, I got Fuji Film in 

South Carolina, and Fuji Film from 

Japan is now doubling the size of their 

plant. They have had one there for the 

last 10 years. Now they are doubling 

the size. They are not worried about 

product liability. 

But I turn to the Bosch man—because we are awfully proud. I put in a 

system for technical training and have 

expanded upon it by sending my teams, 

having graduated, to Munich, Germany, where they—in this particular 

case, Stuttgart—go over the German 

apprenticeship system and then instruct the employees in the German 

apprenticeship system in my own backyard. 

I know about productivity. I said to 

the gentleman who is the head of Bosch 

there, ‘‘What about product liability?’’

He said, ‘‘Senator, what is that?’’

I said, ‘‘Product liability claims; 

have you had any claims against any of 

these antilock brakes for defective 

brakes?’’

‘‘Oh, no, no,’’ he said. ‘‘We have never 

had a claim.’’

He said, ‘‘If we did—’’ he reached over 

and pulled one off the line. He said, 

‘‘Do you see this little number?’’ He 

said, ‘‘We mark every one of those 

brakes on every wheel on a car. We 

have a number. We would know immediately, if there was a defect, where it 

comes from.’’

That, Mr. President, is the quality 

production that has been brought 

about by trial lawyers. They can cuss 

them; they can fuss. They can talk 

about getting the fees. These cases 

read by the distinguished Senator from 

Utah, the two cases he had, one in New 

York, for the supermarket; and in New 

Jersey, for McDonald’s—those lawyers 

did not get a red cent. They wasted 3 

years in time. Lawyers do make mistakes. I guess they made a mistake. 

But do not put that down as a reason 

for nationalization of product liability 

up here at the Washington level. 

What happens here is that we have 

quality production. Companies have 

come south to my State, having 

learned you have to really be outgoing 

toward your employee force—I have 

watched with a certain amusement 

over the years, where we called them 

workers; then we called them employees; now we have to call them associates. You do not dare refer to the work 

force other than as associates. Rather 

than the head of the plant parking 

right up at the front door, they have 

the Associate of the Month. He parks 

up at the front door, or she parks up at 

the front door, and the manager of the 

plant parks way down in the boondocks. They know how to do it. 

When they eat—and I have eaten in 

these restaurants; they do not have a 

Senators’ eating place, and the regular 

folks eating otherwise, like we have 

here. Oh, no; this is not on productivity 

up here. They all eat in the same restaurant. Yes, we know about productivity. 

All of that has come about by not 

only the treatment of the work force 

on the one hand, but the absolute care 

that has come about in relation to the 

Occupational Safety and Health Act: 

safe machinery; safe working place; 

and, yes, the assumption that the product, for whatever particular use it is 

designated, is going to be a safe product. We can count on that. That housewife does not have to run home and 

test it on her children and see if it is 

going to blow up in their faces or make 

them sick or any of those other things. 

We count on it in our society and it has 

worked and is working, and is working 

well. 

To come now with this charade here 

that has been going on for 14 years, because they can grab us Senators up in 

campaigns and say, ‘‘Are you for or 

against product liability?’’ and get 15 

organizations, the Business Roundtable, the chamber of commerce, and 

they are all coming in and saying, ‘‘Are 

you going to be for that product liability?’’ Product liability? You are interested in votes, and trying to move on 

and get something done. And so, yes, 

you say so, and that ends that. And I 

am having to talk against a fixed jury. 

But I hope some of them are listening 

and someone will engage in the debate 

as we have over the past 15 years so 

that we can hold up this bad mistake. 

Because if we make this mistake relative to product liability, then we 

should federalize medical malpractice; 

we should federalize automobile wreck 

cases; we should federalize the whole 

thing. Then we will have to build some 

more courthouses. 

I think we just cut the construction 

money for courthouses. But let us—in 

the name of trying to bring down the 

size of the Government here in Washington, and the bureaucracy—let us 

build some more courthouses. Let us 

get some more Federal judges. We can 

all give them a lifetime job, we Senators. And we can have more clerks of 

court. Man, I am telling you, we have 

a growth industry up here. The best 

way I know to get this growth industry 

going is to federalize product liability. 

It is a sham. It is a bad mistake. The 

American Bar Association opposes it 

absolutely. They came up again and 

testified against it. All the different 

consumer organizations are against it. 

Yet the sponsors come here and act 

like they are for the consumers. They 

know differently. The State legislatures that handle this problem, the 

Conference of State Legislatures, testified against it; the Conference of State 

Supreme Court Justices is against it. 

Later on I will include in the RECORD

more than 100 deans and law professors 

from over the entire country who will 

go into detail and analyze this particular bill, and show how instead of 

this really giving uniformity it gives 

complexity, and how, instead of saving 

money and the procedures and the bureaucracy, it increases it. And if they 

have such a thing as the lawyers’ full 

employment act, this would be the one 

because you have all kinds of motions 

to make now under this particular bill 

and meetings to be had, and everything 

else of that kind at the Federal level 

and at the State level. It is just fundamentally flawed; bad law. They know 

it, and they try to doctor it up so they 

can get this into a particular conference committee. And then, of 

course, go right into what they call the 

English rule that they have over in the 

House bill. 

That really shows how garish this 

Congress can get; to take a system 

where people without means can have 

their day in court in civil litigation 

and now are going to be denied, which 

I myself have taken on as a trial lawyer. Let me divert for a second. 

Let me say I represented the bus 

company or the South Carolina Electric and Gas. So I represented the defendant in numerous cases of tort 

claims as well as plaintiff. But tell the 

average citizen who cannot pay for 

billable hours, and tell them they have 

no claim? And, yes. We had the contingent basis whereby, as I reiterated and 

I reiterate because I cannot emphasize 

it too much, I take on the cost as a 

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April 24, 1995 CONGRESSIONAL RECORD— SENATE S5591 

trial lawyer. I assume that for the investigation, for the interrogatories, for 

the discovery proceedings, for the actual trial, the settlement, conferences 

that we had, the actual trial of the 

case, the appeal, the printing of the 

briefs, the appearances, the entire time 

spent. Yes. These cases take—in serious cases—2 or 3 years to get them finally determined. This trial lawyer assumes all of those costs. If I win, I get 

a third. If I lose, I get nothing. I paid 

those costs. That is the system that 

has worked. 

If you are going to have the loser pay 

all, I am going to say, ‘‘Now, wait a 

minute. I have a wife and children. 

Now I have grandchildren. I like to 

help. But unless you can get me a bargain and assume the cost, I cannot go 

totally broke in this business. I have to 

have you take care of the costs in case 

we don’t prevail. I think you have better than an even chance to prevail.’’

However, I never can tell in the draw 

of a jury. That is what Judge Ito is 

having to deal with now, the mindset 

of jurors. I cannot tell the mindset. 

They could come in with selection of a 

jury, and I not know it and they have 

some peculiar feel or prejudice, and I 

get 11 but I do not get that 12th juror. 

I end up losing the case, and I have to 

pay it all. I think that at least you 

ought to be able to take care of your 

costs if you believe in your case that 

much. Yes. That is the day in court, 

the trial jury. 

The distinguished Senator from 

Washington says they all get their 

trial by jury. But you read this bill 

based on what evidence can be submitted, you read the test to be used 

and the thrust that they have and how 

they allocate some of these provisions 

not to manufacturers. You can read on 

page 36, line 7, ‘‘actions excluded.’’

Here is the unmitigated gall of this 

draftsmanship. 

Actions for damage to product or commercial loss, a civil action brought for loss of, 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. 

The States have their volition as to 

the Uniform Commercial Code and how 

much and how they interpret it. They 

have their volition in the 50 States as 

to contract law. Yes. When it comes to 

manufacturers under this particular 

section, yes. We believe in States’

rights there. But when it comes to injured parties, you do as we say to do. 

They talk about a fair and balanced 

reasonable bill. Come on. They know 

better. They can read. We pointed this 

out at the hearings. They had no excuse for it. We pointed it out at the 

markup. They continue to insist upon 

it, and we will have amendments. We 

will have to come along I guess, if they 

get cloture because they do not want 

to have debate. They will have to have 

these amendments and we will have to 

vote on them. 

But I think the original document 

itself is a pretty good example of what 

they have in mind. It is not a balanced 

bill. They had no caps heretofore in 

previous Congresses on punitive damages. They have it in this one. They 

say they are going in a reasonable fashion, a more restrictive fashion. They 

have the misuse provision in here now 

that they never had before in the three 

previous Congresses. We will be able to 

go down on those things and see if they 

want to insist upon them. 

But I can tell you what we ought to 

do, in this Senator’s opinion, is table 

this bill and move on to those problems 

that are national problems. The State 

of Idaho is looking out for its people. It 

has a Governor. It has a legislature. It 

has juries that are sworn to listen to 

the facts and bring in a verdict in accordance with the facts. It has the option of the trial judge to set aside punitive damages, to restrict the actual 

damages. 

I am sure the States of Idaho, South 

Carolina, and Washington would much 

rather have its law than a national law 

up here wherein they think, yes, with 

the Contract With America crowd in 

town, that we are going to start being 

conservative. I can tell you here and 

now, that might last for a little while. 

But after a few years go you are going 

to find the liberal National Government—which has been persistent 

throughout the years as compared to 

the State government, State law, and 

State practices in tort, and with respect to criminal law and otherwise—

you are going to find there is a much 

more conservative government at the 

State level, and more responsible in my 

opinion, than the National Government. 

We do not have a national problem. 

That is the point. Yet. They have really been on a roll up here for big industry and against the individuals. They 

know how to handle the lawyers downtown. 

I hope to have perhaps an amendment on the interests of companies. 

Perhaps we ought to have that, and 

maybe some of my distinguished colleagues would like to sponsor an 

amendment on billable hours in addition to caps on punitive damages. Let 

us have caps on billable hours here in 

this town. Let us see if that lawyer 

crowd that is out trying to fix the U.S. 

Senate can go back to work and try 

their cases in court before a jury of 12 

jurors without meddling with the State 

precedents here in the United States. 

I yield the floor. 

Mr. GORTON addressed the Chair. 

The PRESIDING OFFICER. The Senator from Washington. 

Mr. GORTON. I suggest the absence 

of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The legislative clerk proceeded to 

call the roll. 

Mr. PELL. Mr. President, I ask unanimous consent that the order for the 

quorum call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. PELL. Mr. President, I ask unanimous consent that I may proceed as if 

in morning business. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

f 

COMMEMORATING THE 80TH ANNIVERSARY OF THE ARMENIAN 

GENOCIDE 

Mr. PELL. Mr. President, every year 

at this time, people of Armenian descent throughout the world commemorate the anniversary of the genocide 

perpetrated against the Armenian people between 1915 and 1923. This tragedy 

is one of the most horrible in the history of humankind, yet it is often overlooked. 

Eighty years ago today, on April 24, 

1915, the Ottoman Empire launched a 

systematic campaign to eradicate the 

Armenian people from Ottoman territory. In that year, hundreds of Armenian religious, political, and intellectual leaders were rounded up, exiled, 

and murdered. During the next 8 years, 

an estimated 1.5 million Armenians 

were killed through executions, during 

death marches, or in forced labor 

camps. Many women, children, and elderly people were raped, tortured, or 

enslaved. In addition to those killed, 

an estimated 500,000 Armenians were 

exiled from the Ottoman Empire, many 

of whom found their way to freedom in 

the United States. 

Recently, the campaigns of ethnic 

slaughter in the former Yugoslavia and 

Burundi have focused much attention 

on crimes against humanity. Silence in 

the face of genocide effectively encourages those who would commit such 

atrocities in the future. As the horrors 

in Bosnia and Burundi demonstrate, 

ethnically based campaigns of murder 

are still possible, even as the world approaches the 21st century. 

Mr. President, despite a long history 

of persecution and tragedy, the Armenian people have demonstrated remarkable moral strength, resilience, 

and pride, as demonstrated by the successes of Armenian-Americans and the 

great contributions they have made to 

our society. These qualities are also 

evident in the effort of the newly independent state of Armenia to build a 

prosperous and democratic country 

after decades of Soviet oppression, and 

despite the ongoing conflict with Azerbaijan—an effort which I personally 

witnessed when I visited Armenia in 

January 1992. 

During the last year, there have been 

some hopeful signs with regard to the 

conflict between Armenia and Azerbaijan—most notably the implementation of a cease-fire. I hope that the 

memory of the Armenian genocide, as 

well as the sight of the suffering of the 

Armenian and Azeri peoples, will spur 

a peaceful resolution to the dispute. 

The legacy of the Armenian genocide 

has not succeeded in deterring subsequent acts of genocide. However, it is 

mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS