S5856 CONGRESSIONAL RECORD — SENATE April 27, 1995

have denied the attorneys their windfall, their lottery award. They are

going to get plenty up to the $250,000,

but what they will not get is that big

bonanza, the jackpot, where they convince the jury that there is such an

egregious situation here that the

claimant gets, let us say $1 million,

and the lawyer then is going to get at

least a half a million. No. The claimant

in this case would get the bulk of that

$1 million, if that is the amount that is

awarded.

So what we are saying here is that

the lawyer is going to be limited but

guaranteed, in effect, a percentage of

both the economic damages and noneconomic damages, if they are otherwise awardable. They just cannot exceed either 33 percent or 25 percent.

In the case of the noneconomic damages, the pain and suffering damages,

they cannot exceed 25 percent of the

first $250,000, or in other words, $62,500.

Now in some cases, Mr. President,

there is a third kind of award and it is

punitive damages. There have been several statements made about punitive

damages and ways to limit punitive

damages. These are the damages not

intended to compensate the victim but

rather to punish the defendant for

wrong conduct, conduct that is very

wrong, that is willful or malicious, is

in great disregard of the rights of the

public and intended to cause a defendant never to do it again or, in the case

of a defective product, for example, to

fix that product and never allow a defective product again to hit the market.

In those cases, there are limits in the

underlying bill on the amount of punitive damages that can be collected.

Under the McConnell amendment, the

total award for punitive damages in

the medical malpractice kind of case is

either $250,000 or three times the economic damages, whichever is greater.

The Snowe amendment, which has been

presented just before my comments,

would limit the total award for punitive damages in these cases to two

times compensatory damages, which is

the sum of the economic and noneconomic damages. In either case,

there is some limit on the amount of

punitive damages.

The question is, should attorneys receive any percentage of that as well?

And what my amendment says is that

if the attorney believes that he or she

is entitled to a percentage of the punitive damages awards in addition to the

other two kinds of awards, that attorney may petition the court and the

court may grant reasonable and ethical

attorneys’ fees based upon the amount

of time that the attorney has put into

the case.

There is a presumption that 25 percent is reasonable. So, here again, the

attorney can petition the court, can

get at least 25 percent. A court may

even deem that a larger amount would

be warranted. But, in any event, it has

to be reasonable and ethical and based

upon the amount of work that the attorney put in.

So, as I say, Mr. President, some people will say, ‘‘Well, this is not much of

a limitation. You haven’t whacked the

attorneys. You haven’t cut them out of

all of their awards,’’ and so on. And we

have not.

The reason we are offering the

amendment this way is to guarantee

that people who have a good case can

get a lawyer to take their case, and

with these limitations they can clearly

get the lawyers to take their case.

But what it prevents is the situation

where the lawyer gets the bulk of the

recovery and, in the case of the very

large award, hits the jackpot, gets the

big bonanza, in effect.

The objectives of the overall legislation, Mr. President, are, first of all, to

ensure that people can be compensated

in our tort system. This bill helps to

guarantee that result.

We need incentives for lawyers to

take these kinds of cases which frequently the plaintiff cannot pay for by

the hourly rate or money up front to

the lawyer, so there has to be a contingency fee. We provide for that.

We need to ensure that in the case of

the economic damages, the lawyer is

limited in how much of those economic

damages can be recovered as attorney’s

fees. That is limited in the underlying

bill.

We are saying that with respect to

the pain and suffering damages, most

of that ought to go to the victim. Seventy-five percent of it ought to go to

the victim, the claimant, the plaintiff.

But, again, we allow up to $250,000 of

noneconomic damages, the recovery of

25 percent of that amount by the attorney and, as I said, in punitive damages,

the opportunity to collect fees there,

as well.

So the real question is whether lawyers should be getting 50 percent, or

somewhere between 25 and 33 percent.

And I think, Mr. President, that this

body will agree that placing some cap,

some limit, is desirable and that it will

help us to avoid the situation that

causes a great deal of public anger,

frankly, with our litigation process.

Ironically, I think we might even

help the legal profession, which is

being greatly criticized by the public

in public opinion surveys these days

primarily because of their fees. There

is a Hudson Institute study which

notes that there has been a doubling of

negative attitudes toward lawyers

since 1986 and that exorbitant attorney’s fees are a major factor in this increase in the public’s ill will for lawyers.

Ironically, we may even be helping

the legal profession, and that is not all

bad, either. We will be debating this

amendment, and others, on Monday

next, and I hope very much that all of

the Members of the Senate will reflect

on how this amendment, narrow that it

is, will improve the bill, will improve

the McConnell amendment, and will

improve the pending amendment before

the body and, as I said, allow the victims to recover more of what the juries

award to them.

Mr. President, I will debate and

present further arguments with respect

to this matter on Monday. At this

time, I would like to make a closing

statement on behalf of the leader.

ORDERS FOR MONDAY, MAY 1, 1995

Mr. KYL. Mr. President, I ask unanifmous consent that when the Senate

completes its business today, it stand

in adjournment until the hour of 11

a.m. on Monday, May 1, 1995; that following the prayer, the Journal of proceedings be deemed approved to date,

no resolutions come over under the

rule, the call of the calendar be waived,

the morning hour be deemed to have

expired, the time for the two leaders be

reserved for their use later in the day,

and there then be a period for the

transaction of morning business not to

extend beyond the hour of 12 noon,

with Senators permitted to speak for

up to 5 minutes each, with the following exceptions: Senator GREGG, 30 minutes; Senator GRAMS, 15 minutes.

Further, that at 12 noon, the Senate

immediately resume consideration of

H.R. 956, the product liability bill.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. KYL. Mr. President, for the inORDER OF PROCEDURE

fformation of all of our colleagues, the

leader has asked me to announce that

the Senate will return to session on

Monday. However, there will be no rollcall votes during Monday’s session.

Under the order, any Member who

wishes to offer a medical malpractice

amendment must offer and debate that

amendment on Monday. Any votes ordered on any of those amendments will

be stacked to occur at 11 a.m. on Tuesday.

ADJOURNMENT UNTIL MONDAY,

MAY 1, 1995, AT 11 A.M.

fMr. KYL. Mr. President, if there is no

further business to come before the

Senate, I now ask unanimous consent

that the Senate stand in adjournment

under the previous order.

There being no objection, the Senate,

at 8:14 p.m., adjourned until Monday,

May 1, 1995, at 11 a.m.

Executive nominations received by

NOMINATIONS

fthe Senate April 27, 1995:

THE JUDICIARY

GEORGE H. KING, OF CALIFORNIA, TO BE U.S. DISTRICT

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA,

VICE A NEW POSITION CREATED BY PUBLIC LAW 101–650,

APPROVED DECEMBER 1, 1990.

DONALD C. NUGENT, OF OHIO, TO BE U.S. DISTRICT

JUDGE FOR THE NORTHERN DISTRICT OF OHIO, VICE

THOMAS D. LAMBROS, RETIRED.