S5914 CONGRESSIONAL RECORD — SENATE May 1, 1995

AMENDMENT NO. 603

At the request of Mr. MCCONNELL the

name of the Senator from North Carolina [Mr. FAIRCLOTH] was added as a cosponsor of amendment No. 603 proposed

to H.R. 956, a bill to establish legal

standards and procedures for product

liability litigation, and for other purposes.

AMENDMENTS SUBMITTED

fCOMMONSENSE PRODUCT

LIABILITY REFORM ACT

KYL AMENDMENT NO. 611

Mr. KYL proposed an amendment to

amendment No. 603, proposed by Mr.

MCCONNELL, to amendment No. 596,

proposed by Mr. GORTON to the bill

(H.R. 956) to establish legal standards

and procedures for product liability

litigation, and for other purposes; as

follows:

At the appropriate place, insert the following new section:

SEC. . LIMITATION ON NONECONOMIC DAMAGES.

(a) IN GENERAL.—With respect to any

health care liability action, in addition to

any award of economic or punitive damages,

a claimant may be awarded noneconomic

damages, including damages awarded to

compensate the claimant for injured feelings

such as pain and suffering, emotional distress, and loss of consortium.

(b) LIMITATION.—The amount of noneconomic damages that may be awarded to a

claimant under subsection (a) may not exceed $500,000. Such limitation shall apply regardless of the number of defendants in the

action and the number of claim or actions

brought with respect to the injury involved.

(c) NO DISCLOSURE TO TRIER OF FACT.—The

trier of fact in an action described in subsection (a) may not be informed of the limitation contained in this section.

(d) AWARDS IN EXCESS OF LIMITATION.—An

award for noneconomic damages in an action

described in subsection (a), in excess of the

limitation contained in subsection (b) shall—

(1) be reduced to $500,000 either prior to

entry of judgment or by amendment of the

judgment after entry;

(2) be reduced to $500,000 prior to accounting for any other reduction in damages required under applicable law; and

(3) in the case of separate awards of damages for past and future noneconomic damages, be reduced to $500,000 with the initial

reductions being made in the award of damages for future noneconomic losses.

(e) PRESENT VALUE.—An award for future

noneconomic damages shall not be discounted to present value.

DEWINE AMENDMENT NO. 612

Mr. DEWINE proposed an amendment

to amendment No. 603, proposed by Mr.

MCCONNELL to amendment No. 596, proposed by Mr. GORTON to the bill, H.R.

956, supra; as follows:

In section 12(5) of the amendment, add at

the end thereof the following new sentence:

‘‘Such term does not include an action where

the alleged injury on which the action is

based resulted from an act of sexual abuse

(as defined under applicable State law) committed by a provider, professional, plan or

other defendant.’’.

HATCH AMENDMENT NO. 613

Mr. HATCH proposed an amendment

to amendment No. 603, proposed by Mr.

MCCONNELL to amendment No. 596, proposed by Mr. GORTON to the bill, H.R.

956, supra; as follows:

In section 20(d)(1), strike ‘‘with technical

assistance’’ and insert ‘‘with grants or other

technical assistance’’.

SIMON (AND WELLSTONE)

AMENDMENT NO. 614

Mr. SIMON (for himself and Mr.

WELLSTONE) proposed an amendment to

amendment No. 603, proposed by Mr.

MCCONNELL to amendment No. 596, proposed by Mr. GORTON to the bill, H.R.

956, supra; as follows:

At the appropriate place insert the following:

SECTION . STATE OPTION.

(a) A provision of this subtitle shall not

apply to disputes between citizens of the

same State if such State enacts a statute—

(1) citing the authority of this section; and

(2) declaring the election of such State

that such provision shall not apply to such

disputes.

(b) If a dispute arises between citizens of

two States that have elected not to apply a

particular provision, ordinary choice of law

principles shall apply.

(c) For purposes of this section, a corporation shall be deemed a citizen of its State of

incorporation and of its principal place of

business.

KENNEDY AMENDMENT NO. 615

Mr. KENNEDY proposed an amendment to amendment No. 603, proposed

by Mr. MCCONNELL to amendment No.

596, proposed by Mr. GORTON to the bill,

H.R. 956, supra; as follows:

On page 8, line 20, insert after ‘‘subsection’’

the following: ‘‘(b) and’’.

Strike the material from page 9, line 4

through page 10, line 17, and insert in lieu

thereof the following ‘‘The provisions of this

subtitle shall not be construed to preempt

any state statute but shall govern any question with respect to which there is no state

statute’’.

DODD AMENDMENT NO. 616

Mr. DEWINE (for Mr. DODD) proposed

an amendment to amendment no. 603,

proposed by Mr. MCCONNELL to amendment no. 596, proposed by Mr. GORTON

to the bill, H.R. 956, supra; as follows:

Strike section 15 of the amendment and

insert the following new section:

SEC. 15. UNIFORM STANDARDS FOR AWARD OF

PUNITIVE DAMAGES.

(a) GENERAL RULE.—Notwithstanding any

other provision of law, punitive damages

may, to the extent permitted by applicable

State law, be awarded against a defendant in

an action that is subject to this Act 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) BIFURCATION AND JUDICIAL DETERMINATION.—

(1) IN GENERAL.—Notwithstanding any

other provision of law, in an action that is

subject to this Act in which punitive damages are sought, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall be conducted by the

court to determine the amount of such damages to be awarded.

(2) ADMISSIBLE EVIDENCE.—

(A) INADMISSIBILITY OF EVIDENCE RELATIVE

ONLY TO A CLAIM OF PUNITIVE DAMAGES IN A

BIFURCATED PROCEEDING.—Notwithstanding

any other provision of law, in any proceeding

to determine whether the claimant in an action that is subject to this Act may be

awarded compensatory damages and punitive

damages, evidence of the defendant’s financial condition and other evidence bearing on

the amount of punitive damages shall not be

admissible unless the evidence is admissible

for a purpose other than for determining the

amount of punitive damages.

(B) PROCEEDING WITH RESPECT TO PUNITIVE

DAMAGES.—Evidence that is admissible in a

separate proceeding conducted under paragraph (1) shall include evidence that bears on

the factors listed in paragraph (3).

(3) FACTORS.—Notwithstanding any other

provision of law, in determining the amount

of punitive damages awarded in an action

that is subject to this Act, the court shall

consider the following factors:

(A) The likelihood that serious harm would

arise from the misconduct of the defendant

in question.

(B) The degree of the awareness of the defendant in question of that likelihood.

(C) The profitability of the misconduct to

the defendant in question.

(D) The duration of the misconduct and

any concealment of the conduct by the defendant in question.

(E) The attitude and conduct of the defendant in question upon the discovery of the

misconduct and whether the misconduct has

terminated.

(F) The financial condition of the defendant in question.

(G) The total effect of other punishment

imposed or likely to be imposed upon the defendant in question as a result of the misconduct, including any awards of punitive or

exemplary damages to persons similarly situated to the claimant and the severity of

criminal penalties to which the defendant in

question has been or is likely to be subjected.

(H) Any other factor that the court determines to be appropriate.

(4) REASONS FOR SETTING AWARD AMOUNT.—

(A) IN GENERAL.—Notwithstanding any

other provision of law, with respect to an

award of punitive damages in an action that

is subject to this Act, in findings of fact and

conclusions of law issued by the court, the

court shall clearly state the reasons of the

court for setting the amount of the award.

The statements referred to in the preceding

sentence shall demonstrate the consideration of the factors listed in subparagraphs

(A) through (G) of paragraph (3). If the court

considers a factor under subparagraph (H) of

paragraph (3), the court shall state the effect

of the consideration of the factor on setting

the amount of the award.

(B) REVIEW OF DETERMINATION OF AWARD

AMOUNT.—The determination of the amount

of the award shall only be reviewed by a

court as a factual finding and shall not be

set aside by a court unless the court determines that the amount of the award is clearly erroneous.

NOTICES OF HEARINGS

fCOMMITTEE ON INDIAN AFFAIRS

Mr. MCCAIN. Mr. President, I would

like to announce that the Senate Committee on Indian Affairs will be holding
May 1, 1995 CONGRESSIONAL RECORD — SENATE S5915

an oversight hearing on Tuesday, May

2, 1995, beginning at 9:30 a.m., in room

485 of the Russell Senate Office Building on the implementation of the tribal

self-governance demonstration project

authorities by the Indian Health Service.

Those wishing additional information

should contact the Committee on Indian Affairs at 224–2251.

COMMITTEE ON SMALL BUSINESS

Mr. BOND. Mr. President, I wish to

announce that the Committee on Small

Business will hold a hearing on Thursday, May 18, 1995, at 9:30 a.m., in room

SD–628. The focus of the hearing is the

Small Business Administration’s 7(a)

Business Loan Program.

For further information, please contact Paul Cooksey at 224–5175.

ADDITIONAL STATEMENTS

f

NOTICE OF DETERMINATION BY

THE SELECT COMMITTEE ON

ETHICS UNDER RULE 35, PARAGRAPH 4, REGARDING EDUCATIONAL TRAVEL

∑ Mr. MCCONNELL. Mr. President, it

is required by paragraph 4 of rule 35

that I place in the CONGRESSIONAL

RECORD notices of Senate employees

who participate in programs, the principal objective of which is educational,

sponsored by a foreign government or a

foreign educational or charitable organization involving travel to a foreign

country paid for by that foreign government or organization.

The select committee received notification under rule 35 for William Triplett, a member of the staff of Senator

BENNETT, to participate in a program

in Abu Dhabi sponsored by the Abu

Dhabi Chamber of Commerce from

March 9–23, 1995.

The committee determined that no

Federal statute or Senate rule would

prohibit participation by Mr. Triplett

in this program.

The select committee received notification under rule 35 for Senator BOND

and two members of the staff, Warren

Erdman and Brent Franzel, to participate in a program in the Republic of

China on Taiwan, sponsored by the Chinese National Association of Industry

and Commerce, from April 18–21, 1995.

The committee determined that no

Federal statute or Senate rule would

prohibit participation by Senator

BOND, Mr. Erdman, and Mr. Franzel in

this program.

The select committee received notification under rule 35 for William B.

Bonvillian, a member of the staff of

Senator LIEBERMAN, to participate in a

program in Taipei sponsored by the

Tamkang University from April 10–16,

1995.

The committee determined that no

Federal statute or Senate rule would

prohibit participation by Mr.

Bonvillian in this program.∑

DR. DAVID A. KESSLER’S SPEECH

ON TOBACCO

∑ Mr. SIMON. Mr. President, recently,

I had a chance to read a speech by Dr.

David A. Kessler, the Commissioner of

the Food and Drug Administration, to

the Columbia University Law School.

I have been very favorably impressed

by Dr. Kessler’s commitment and

doggedness over the years. My colleagues will recall that he was an appointee of President George Bush, and

when Bill Clinton became President, I

urged him to retain David Kessler, and

I am pleased that he has done so.

His talk to the Columbia University

Law School was about tobacco and specifically about young people and tobacco. He describes nicotine addiction

as ‘‘a pediatric disease.’’

What tobacco companies are clearly

trying to do, and unfortunately doing

successfully, is to make smoking attractive to young people.

My wife and I recently took a vacation, at our own expense, I hasten to

add, to Portugal and Spain, and the

percentage of young people who smoke

in those two countries, as well as in

the rest of the world, unquestionably is

higher than it is in the United States.

But more young people are smoking in

the United States, and according to Dr.

Kessler, 7 out of 10 who smoke, report

that they regret having started.

He does not mention in his remarks

something I have read elsewhere, and

that is someone who is a cigarette

smoker is much more likely to get involved in hard drugs.

An area where I have some concerns

is his comment on advertising.

I believe the Federal Government has

to move very cautiously when it comes

to first amendment matters.

It does seem to me, however, that it

is only realistic and fair to ask the advertisers to warn more effectively

about the dangers of cigarettes.

We require this of the manufacturer

of other products.

The speech by Dr. Kessler is something we should be taking extremely

seriously, and I ask that the speech be

printed in the RECORD.

The speech follows:

REMARKS BY DAVID A. KESSLER, M.D.

It is easy to think of smoking as an adult

problem. It is adults who die from tobacco

related diseases. We see adults light up in a

restaurant or bar. We see a colleague step

outside for a cigarette break.

But this is a dangerously short-sighted

view.

It is as if we entered the theater in the

third act—after the plot has been set in motion, after the stage has been set. For while

the epidemic of disease and death from

smoking is played out in adulthood, it begins

in childhood. If there is one fact that I need

to stress today, it is that a person who

hasn’t started smoking by age 19 is unlikely

to ever become a smoker. Nicotine addiction

begins when most tobacco users are teenagers, so let’s call this what it really is: a pediatric disease.

Each and every day another three thousand teenagers become smokers. Young people are the tobacco industry’s primary

source of new customers in this country, replacing adults who have either quit or died.

An internal document of a Canadian tobacco

company, an affiliate of a tobacco company

in the United States, states the case starkly:

‘‘If the last ten years have taught us anything, it is that the [tobacco] industry is

dominated by the companies who respond

most effectively to the needs of the younger

smokers.’’

If we could affect the smoking habits of

just one generation, we could radically reduce the incidence of smoking-related death

and disease, and a second unaddicted generation could see nicotine addition go the way

of smallpox and polio.

The tobacco industry has argued that the

decision to smoke and continue to smoke is

a free choice made by an adult. But ask a

smoker when he or she began to smoke.

Chances are you will hear the tale of a child.

It’s the age-old story, kids sneaking away

to experiment with tobacco, trying to smoke

without coughing, without getting dizzy, and

staring at themselves in a mirror just to see

how smooth and sophisticated they can look.

The child learns the ritual. It is a ritual

born partly out of a childish curiosity, partly out of a youthful need to rebel, partly out

of a need to feel accepted, and wholly without regard for danger. It is a ritual that

often, tragically, lasts a lifetime. And it is a

ritual that can cut short that lifetime.

Many of us picture youngsters simply experimenting with cigarettes. They try smoking like they try out the latest fad—and

often drop it just as quickly. But when you

recognize that many young people progress

steadily from experimentation to regular

use, with addiction taking hold within a few

years, the image is far different, far more

disconcerting. Between one-third and onehalf of adolescents who try smoking even a

few cigarettes soon become regular smokers.

What is perhaps most striking is that

young people who start smoking soon regret

it. Seven out of 10 who smoke report that

they regret ever having started. But like

adults, they have enormous difficulty quitting. Certainly some succeed, but three out

of four young smokers have tried to quit at

least once and failed.

Consider the experience of one 16-year-old

girl, recently quoted in a national magazine.

She started to smoke when she was eight because her older brother smoked. Today, she

says: ‘‘Now, I’m stuck. I can’t quit ... It’s so

incredibly bad to nic-fit, it’s not even funny.

When your body craves the nicotine, it’s

just: ‘I need a cigarette.’’

In her own terms she has summarized the

scientific findings of the 1988 Surgeon General’s report. That report concluded: ‘‘Cigarettes and other forms of tobacco are addicting’’ and ‘‘Nicotine is the drug in tobacco

that causes addiction.’’

Let there be no doubt that nicotine is an

addictive substance. Many studies have documented the presence of the key addiction

criteria relied on by major medical organizations. These criteria include: highly-controlled or compulsive use, even despite a desire, or repeated attempts to quit;

psychoactive effects on the brain; and drugmotivated behavior caused by the ‘‘reinforcing’’ effects of the psychoactive substance.

Quitting episodes followed by relapse and

withdrawal symptoms that can motivate further use are some additional criteria of an

addictive substance.

Are young people simply unaware of the

dangers associated with smoking and nicotine addiction? No, not really. They just do

not believe that these dangers apply to

them.

For healthy young people, death and illness are just distant rumors. And until they

experience the grip of nicotine addiction for

themselves, they vastly underestimate its