S5702 CONGRESSIONAL RECORD — SENATE April 26, 1995

I am very concerned about this bill,

very concerned about this bill. I have

to say, I think it is an offense to the

names of the groups that I read here to

say that these people have somehow

been hoodwinked—that was not my

friend’s word; I tried to write down

what he said—riled up, made to believe

that this is a bad bill when really it is

a good bill for them.

I know some groups. You try to tell

the Hollywood Women’s Political Committee what is good for them and they

will show you the door because they

are going to figure out what is good for

them. I have tried it on things on

which they do not agree with me. They

are not going to believe me in the

American Trial Lawyers or the American Bar Association. They are going

to look and they are going to decide.

They have a very simple idea in their

mind: They are going to oppose legislation that hurts people. That is what

they believe. Do not blame it on the

fact that they are so naive that they

will follow the lawyers.

I do not know whether my friend

knows it, but lawyers are not that well

thought of these days. I happen to like

lawyers. I am married to one. My father was one and my son is one. If you

ask the average person, they are not

going to follow lawyers, they are going

to make up their own minds. If they

agree with the lawyers, they will follow them. But to say some of these

groups would follow blindly, I find that

insulting on behalf of these groups.

How about the YWCA, the Young Women’s Christian Association? They oppose certain liability reform. I do not

think they did it because they follow

the lawyers.

In any event, there is going to be a

lot more debate. I am going to close

and again thank my friend for engaging me in this dialog.

I want to remind my colleagues of a

few people: 14-year-old Shannon Fair,

of Kentucky, in 1988, was in a school

bus and it was hit by a drunk driver.

No one was hurt by the collision itself,

but the entire bus was engulfed in

flames because the manufacturer decided against installing a metal safety

cage for the fuel tank. Reckless frugality. Sixty-four children and four adults

lost their lives. And we are going to

cap, in this bill, the punishment to a

company like that? We ought to be

ashamed of ourselves.

Let us remember people like James

Hoscheit of Minnesota, who at age 14

lost both of his arms when they were

caught in a forage blower. If the piece

of farm equipment had a simple safety

guard, which cost the company $1,

James Hoscheit would have his arms.

And we are going to say, in our great

wisdom, from Washington, DC, in the

U.S. Senate, that we know better what

kind of award James Hoscheit should

get? I would rather leave that up to the

people on the jury. Maybe they will

find he should get $100,000. Maybe they

will find he should get $200,000 or $1

million, because he lost both of his

arms. I am not going to say what that

should be. I think anyone who votes to

do that is not fair to the future victims.

Don Taylor, Moreno Valley, CA, was

driving his morning commute—and it

could be any one of us—when another

car cut him off. The Ford Bronco he

was driving rolled three times and the

roof caved in. The seat belts failed to

retract. He was paralyzed from the

shoulders down. Ford had notice of the

defective seat belts, and he was still

driving with the defective seat belt,

and he is permanently paralyzed. Am I

going to tell the jury from here what

that is worth to him and his family?

Not this Senator. I am going to fight

against that.

Punitive damages are meant to punish and discourage flagrant or wanton

conduct. And, as I said, punitive damages are awarded only rarely in product liability cases, and that is what we

want. We want them used rarely—this

is an important point, I say to my

friends—because if they are used rarely, it means punitive damages are

working because their very existence

shapes up these companies, makes

them think twice and three times and

10 times and 100 times before they put

a potentially dangerous product into

the hands of American consumers.

That is what we want. We want these

punitive damages set on an individual

basis, but we do not really want them

at all. If everyone produces safe products, we will not have these awards.

Why mess with a system that is deterring dangerous products?

You know, these caps they are talking about here are going to hurt

women because they do not earn as

much as men do. If you have a woman

and a man and in the same bus and you

have the exact same injury, but the

man has a top-level job. You know, 95

percent of all of the top jobs in this

country are held by men; it is just

true.

It is just true. We women have a long

way to go. We are getting there. However, it is slow.

If you have a woman and a man in

the same bus, and they suffer the same

injury, under this bill—under this

bill—the man is going to receive more

punitive damage awards because we

will figure if he was not paralyzed, he

would have earned so much more

money, and he will be rewarded, and he

will get a higher award. And the

woman, who may not have been working at the time or worked at a lower

job, will get less.

This is discriminatory on its face.

Take the case of the Copper-7 IUD,

intrauterine device. My friend and I

talked a lot about these devices. The

manufacturer knew for more than 10

years that their product could cause

loss of fertility, serious infection, and

the need to remove reproductive organs. The manufacturer continued to

produce the Copper-7 IUD.

Now, the jury awarded one $7 million

punitive damage award for this intentional misrepresentation of its birth

control device. Under this bill, it would

have been $250,000, or three times the

plaintiff’s economic damages. This is

not a good bill.

I say to my friends, we should put a

human face on this issue. We should remember the people who have suffered.

However, they were able to go to court

and be made whole because the law allowed that to happen. We should not

jump in and preempt 50 States on this.

We should allow the jury system to

work.

I hope that after long debate—and I

think we will have long debate on this;

we already have had several days of debate—our colleagues will realize a couple of things. They will realize there is

no explosion in this area of the law, no

explosion of litigation. And they will

realize that, by having a good, strong

product liability law in all the various

States that we have, that acts as a deterrent against unsafe products.

We have had our fill of the DES problem, of the silicone breast implant

problem, of the Copper-7 IUD problem,

of trucks and cars that explode. We

should protect the people we were sent

to represent, and we should not approve this bill. I yield the floor.

Mr. KOHL addressed the Chair.

The PRESIDING OFFICER (Mr.

THOMPSON). The Senator from Wisconsin.

Mr. KOHL. I ask unanimous consent,

and with permission from the Senators

ROCKEFELLER and GORTON, I be allowed

to speak as in morning business for a

brief period.

The PRESIDING OFFICER. Without

objection, it is so ordered.

SUPREME COURT DECISION

STRIKES BIPARTISAN LAW

fMr. KOHL. Mr. President, I am quite

disappointed and even puzzled today by

the Supreme Court’s decision in the

United States versus Lopez case. Usually, the courts speak with one voice,

but today the majority of the court

spoke for several separate opinions.

By a slim 5 to 4 margin, the court

struck down the bipartisan Gun-Free

School Zones Act, a law that prohibits

possession of firearms within 1,000 feet

of a school.

In my judgment, this is a classic example of judicial activism, and it ignores the safety of our American children.

I will briefly say something about

the facts that the court today ignored.

Each day in our country more than

100,000 students bring guns into our

schools. One-fifth of urban high school

students have been threatened with

firearms, and several hundred thousand

schoolchildren are victims of violent

crimes in or near their schools every

year. Moreover, the problem of youth

violence is rapidly escalating. In 1984, a

total of 1,134 juveniles were arrested

for murder; by 1993, that figure had

more than doubled. According to the

Justice Department, the vast majority
April 26, 1995 CONGRESSIONAL RECORD — SENATE S5703

of these murders were committed with

firearms and many with handguns.

Democrats and Republicans in Congress, together, tried to do something

about this disturbing trend when we

enacted the gun-free school zones legislation in 1990. Today, a slim majority

of the court has shot Congress down,

and in so doing, put America’s children

at greater risk.

Now, because we reenacted and perfected the Gun-Free School Act last

year as part of the crime bill, the current law may still be constitutional.

Indeed, we may yet be able to ensure

the constitutionality of the law with a

technical amendment, and I plan to introduce a bill to do that next week.

Broadly interpreted, however, the

reasoning of the majority in this case

could have far-reaching consequences

that may undermine a variety of crucial Federal laws, like the Drug-Free

School Zones Act on which the GunFree School Zones Act was based, or

the bans on cop-killer bullets, or our

Federal wetlands laws, and many of

our civil rights statutes.

Mr. President, I agree with the

strong dissent by Judge Souter, joined

by Justices Ginsburg, Stevens, and

Breyer, who labeled this ruling today

by the Supreme Court a step backward.

I again want to express my disappointment with today’s decision.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. FEINGOLD. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

fThe Senate continued with the consideration of the bill.

Mr. FEINGOLD. Mr. President, I rise

today to express my strong opposition

to S. 565, the Product Liability Fairness Act of 1995. It is because I really

see it as the worst of both worlds.

First, I think it is a bill that has

been shown to have little, if any, demonstrated need; second, I think it will

have drastic and undue effects on some

of our most vulnerable citizens in this

country.

Those who support this legislation

have stated over and over that the bill

is to everyone’s benefit. It supposedly

will benefit manufacturers, investors,

business owners, workers, and consumers, they say.

Yet, I have still not heard of a single

major U.S. consumer organization that

has endorsed this legislation. The legislation is, in fact, opposed by virtually

every group in the country representing working people, consumers, children, and the elderly.

The Product Liability Fairness Act

says that it seeks to set uniform Federal standards for product liability legislation that would override certain existing State laws.

It is not really a bill that provides

uniformity at all. Those State laws

that are more protective of injured

consumers are preempted under this

bill while those State laws that go beyond what this bill would do in terms

of shielding negligent manufacturers

are left intact. They are left the same.

It is not a bill that has anything to do,

really, with uniformity.

In addition, Mr. President, it establishes a heightened—that is, more difficult—conscious and flagrant standard

for the rewarding of punitive damages

in product liability cases, and it would

arbitrarily cap damage awards for punitive damages at $250,000, or three

times economic damage.

Again, those State laws with higher

caps or no caps are preempted. Those

States with lower caps or no punitive

damages awards are left completely

untouched.

The bill would also set a 20-year statute of repose, unless, of course, a State

law has a lower statute and is, therefore, left alone and also a 2-year statute of limitation.

Finally, Mr. President, this legislation would eliminate joint liability for

noneconomic damages and create new

standards for seller liability.

There are several reasons why I oppose this bill. Before I talk about the

specific flaws of this legislation, I

think it is important to note the larger

context that the issue of product liability reform fits into. That is why, as I

look at this whole bill, I oppose the

whole approach. It is not a question of

fixing this and fixing that. I think the

whole concept driving this bill is an

error and should be defeated.

For the past several months, all of

us, Republicans and Democrats, have,

of course, been trying to interpret the

meaning of the November election.

Many of our Republican colleagues

have interpreted those elections as

being a statement against big, inefficient and bureaucratic government. I

disagree with a lot of the statements

that have been made about what the

November elections have been about.

But I think that maybe is one legitimate interpretation of the elections, to

say that people have had it with big

government. And I think in many cases

that is a legitimate complaint that our

constituents have, and that they did

express on November 8.

It would make no sense to argue that

all Government programs should be

run by Washington, DC, or that all

Government programs should be run by

the States. Some programs do address

underlying problems that are national

in scope, across State borders. But others are more local in nature and are

best left to the local and State governments to determine how they can best

address problems that they are more

familiar with than are the folks that

work in Washington, DC.

With regard to this matter I, for one,

strongly believe that there are many

issues that should clearly be left to the

State and local governments to address. One of the reasons I opposed last

year’s crime bill was precisely because

it shifted power away from our State

and local courts and the law enforcement officials there, who have been

dealing with crime problems in their

own regions and are best equipped with

the knowledge and creativity to solve

those problems. So that is one reason

why I opposed the crime bill, because I

did not think we should have an

overarching Federal Government controlling all aspects of that issue.

Many on the other side of the aisle

have been among the strongest proponents for the so-called States’ rights

issue. Indeed, our distinguished majority leader has stated repeatedly this

year his intention to dust off the 10th

amendment and give greater control

over local problems to the State governments. It was the Speaker of the

other body who stated the following in

his address to the Nation on April 7,

about the intent of the congressional

Republicans in the 104th Congress. He

said:

We must restore freedom by ending bureaucratic micromanagement here in Washington. This country is too big and too diverse for Washington to have the knowledge

to make the right decision on local matters.

We’ve got to return power back to you, to

your families, your neighbors, your local and

State governments.

Given those statements, how does

this square with the legislation we are

considering today? What happened to

the need to address local problems on

the local level? All this talk about

States’ rights is about to go right out

the window, as we usurp over 200 years

of State control over their tort systems. It seems a very odd trend indeed.

It should come as no surprise that

this legislation is vehemently opposed

by the American Bar Association, the

National Conference of State Legislators, and the Conference of State Chief

Justices. But those who support this

legislation do not want to listen to

State legislators or State judges or

consumer organizations. They do not

even want to listen to those individuals

who have been tragically maimed or

injured by the negligence of a small

but powerful group of manufacturers.

Of course, those who support this legislation justify the bill by saying that

such drastic action is needed to curb

the so-called litigation explosion that

has supposedly resulted in a court system totally bogged down in product liability litigation. Let us take a quick

look at just how bogged down are our

courts with product liability claims.

The Department of Justice, using data

compiled by the National Center for

State Courts, recently released a study

of 378,000 State tort cases which apparently represents about half of all tort

suits completed between July 1991 and

June 1992. According to the study, only

3 percent of all tort claims involve

product liability, just 3 percent of all

tort claims. The bulk of the tort claims