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[Congressional Record Volume 141, Number 68 (Wednesday, April 26, 1995)]
[Senate]
[Pages S5695-S5702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

    COMMONSENSE PRODUCT LIABIL- ITY AND LEGAL REFORM ACT

  The Senate continued with the consideration of the bill.
  Mrs. BOXER. Mr. President, we have many problems that need fixing in 
our country. I just have to say that product liability law should not 
be one of the problems. It is not a problem. Yet we are here, facing 
this bill, S. 565, the Product Liability--it is called Fairness--Act 
when this is not a problem.
  Why do I say this? First, this country has an enviable record of 
producing safe products. All the countries in the world wonder how we 
do it. Well, we have laws that hold people responsible if they produce 
a dangerous product. The people who want this bill want to change that 
law.
  Why should we tinker with laws that contribute to one of the best 
safety records for products known to human kind? The only thing I can 
imagine is that there are some special interests who do not like it.
  That is why, I think, we are here discussing S. 565, because it 
certainly is not going to contribute to safer products. Indeed, I say, 
if it passes--and I am doing everything I can so that it does not pass 
and it does not become law--it is going to contribute to unsafe 
products, products that harm the people of my State and products that 
will harm the people of this country.
  Second, there are those who say that we have an explosion of 
frivolous lawsuits related to product liability, to dangerous products. 
I want to say unequivocally, and I will repeat it many times during 
this debate, that it is a figment of someone's imagination that there 
is an explosion of litigation around dangerous products.
  Let me give the facts, because there is a lot of rhetoric around 
here. Product liability lawsuits are only one-third of 1 percent of all 
civil lawsuits in State courts. Let me repeat: They are one-third of 1 
percent of all civil lawsuits in State courts.
  Listen to this: In 25 years, the last 25 years, there have only been 
355 punitive damage awards. Now, what is a ``punitive damage award?'' 
Punitive--meaning to punish. When a company harms an American citizen, 
a person using a product, because of shoddy manufacturing and a mistake 
was made, and the person is injured, say, burned beyond recognition, 
that company is sued for punitive damages, meaning, ``Let us punish the 
people who caused this grief''--sometimes for loss of life and limb.
  In a single year during that 25-year time period, there were an 
average of 11 punitive damage awards. Yet this bill is going to limit 
punitive damages--the ability of an average person to walk into court 
and get justice--because this Congress has decided it knows better than 
a jury.
 There is no wave of frivolous lawsuits here. We know where the 
frivolous lawsuits are: businesses suing businesses. That is where the 
explosion is, but this bill does not deal with that. This is the 
Business Protection Act.

  I find it really intriguing that many of the Senators who were 
pushing this bill, which would take precedence over State law, are the 
very ones who say let the States do everything else. ``Oh, let the 
States do the School Lunch Program. But we know better, all of a 
sudden, than the States and the State legislatures, when it comes to 
products liability.'' I find that really astounding.
  This is a rigid law. How could we determine now what the cap on 
punitive damages should be? I assure my colleagues, if a multibillion-
dollar corporation makes a mistake in building a bus and the bus 
explodes, to punish a multibillion-dollar corporation $250,000 or three 
times economic damages is not going to cut it. Why not just repeal 
punitive damages while you are at it? The reason is they cannot get the 
votes to do that.
  This law would pretend to know all the facts of every case in advance 
without seeing them. We are the all-seeing Senators here. We are the 
all-knowing Senators here. We know every case in advance here, and we 
can say here, without any problem, we ought to limit the ability of 
juries and judges to make awards. We know all the scientific evidence, 
I suppose, and all the circumstances under which a product was sold and 
manufactured. That is what this bill says.
  There are billions of products manufactured each and every year, and 
this bill says we can foresee that under no circumstances should a 
company have punitive awards greater than $250,000, or three times 
economic damages. We, the almighty Senators, know--better than a jury, 
better than the States.
  S. 565 would shift the current level playing field against the 
average person in favor of big corporations and there is no question 
about it. It would remove much of the responsibility of manufacturers 
and sellers of dangerous products. They do not have to fear a big jury 
award. They can just write it off as a cost of business. So what if a 
drug you took made you infertile? So what if a product your child got a 
hold of caused that child great damage to his brain or his limbs? It 
would take away the hard-won rights of average citizens to a safe 
marketplace for 
[[Page S5696]] goods. That is why every major consumer group is 
fighting against this bill. There are many groups fighting against this 
bill.
  But one group of companies love this bill. The tobacco companies love 
this bill. Because some day in the future, when some court finds out 
that they knew their products were addictive, they will be shielded by 
this bill. And each and every Senator voting for it will have to say to 
the people who lose their loved ones to smoking, ``You know, I didn't 
realize it when I voted for this S. 565. You're right, it would limit 
punitive damages for cigarette companies.'' But that is what we are 
about to do here.
  Current law, that S. 565 seeks to change, contains incentives for 
manufacturers to consider possible dangers before selling products to 
the unsuspecting public. That law would be changed. This law gives 
corporations and sleazy, marginal retailers an incentive to sell a 
dangerous product. Consumer safeguards will be displaced.
  I believe this bill is nothing more than special interest legislation 
dressed up with a virtuous title: fairness. These are the words you 
hear so much around Congress these days: fairness; products liability 
fairness. It is really not fairness, it is a repeal of sensible product 
liability law, law that has worked, law that has not resulted in an 
explosion of lawsuits. That is a myth.
  The backers of this bill are powerful. I can say that. I mentioned 
the tobacco companies. Many of them are unseen. You do not see the 
tobacco companies lobbying around here, but they are behind this. I say 
the public has a right to safe products. They have a right to a legal 
system that deters the sale of unsafe products. And the public has a 
right to fair compensation if they are harmed by a dangerous product. 
Let me say that again. The public has a right to safe products. They 
have a right to a legal system that deters the sale of unsafe products. 
And, finally, they have a right to adequate and fair compensation if 
they are harmed by a dangerous product.
  I had a press conference in California with women who were harmed by 
silicone gel breast implants, and women who are called DES daughters. 
DES is a drug that was given to their mothers to help them sleep during 
pregnancy, which wound up giving them terrible, terrible problems and 
pain and suffering. The DES daughters and the silicone breast implant 
victims are lobbying against this bill.
  What is their special interest? They have none. They are just 
sounding a warning cry to future victims if we pass this bill. This 
bill would prevent juries from imposing deterrents to future sale of 
defective products.
  Mr. ROCKEFELLER. Will the Senator yield?
  Mrs. BOXER. Yes, I will be happy to yield.
  Mr. ROCKEFELLER. Is the Senator aware in this bill about DES?
  Mrs. BOXER. DES.
  Mr. ROCKEFELLER. We had that discussion, the Senator and I did, 
yesterday.
  Mrs. BOXER. The Senator said DES was not approved by the FDA, did the 
Senator not?
  Mr. ROCKEFELLER. By the modern FDA.
  Mrs. BOXER. It was approved by the former FDA.
  Mr. ROCKEFELLER. But not by the one by which the law was formerly 
interpreted.
  Mrs. BOXER. The FDA----
  Mr. ROCKEFELLER. If the Senator will yield? What the Senator fails to 
understand is that if this law before the Senate had been in effect at 
the time that, for example, Representative Patsy Mink went through her 
horrible circumstances, that in fact she would have had the recourse to 
sue that she does not have under the present law. Because under the 
present law in some cases the statute of limitations runs out in 2 
years after time of injury. She did not know something was wrong for 
quite a while.
  Very specifically, in our bill, it is explicitly laid out that if 
something happens 20 years later, 30 years later, 40 years later, the 
statute of limitations does not begin until a person knows, first, that 
they have been hurt; and, second, why they have been hurt--what is the 
cause, why they have been hurt. It is at that point that the statute of 
limitations begins to run. So that Representative Patsy Mink could have 
indeed gone, even today, had this bill been in effect back then.
  Mrs. BOXER. Mr. President, if I might say to the Senator, 
Representative Mink is opposed to this bill and so are the DES 
daughters. They think this bill is a terrible bill. They think this 
bill is a step backward. There are many other parts of the bill, as my 
friend knows because he is so involved in it, that do not deal with the 
statute of limitations but that deal with capping damages.
  I say to my friend again, it is very nice to hear that the Senator 
from West Virginia feels that the bill would be good for victims of 
DES, but the victims of DES oppose this bill. The victims of breast 
implants oppose this bill. Women's groups oppose this bill. So they do 
not see it the way the Senator from West Virginia sees this bill.
  Mr. ROCKEFELLER. I did not try to explain that they did see it the 
way the Senator from West Virginia sees it. What I was suggesting is 
that they do not know that in this bill, they are not eliminated by the 
statute of limitations. The statute of limitations changes entirely. 
Whether or not they know it, that is the fact. That is just something I 
want those who are listening to understand.
  It is the same thing as last year, when we had the FDA in and the 
consumer groups that the good Senator refers to. They were constantly 
saying, ``Well, that would mean that if you had a problem with the 
Dalkon shield or breast implants, you did not have a cause of action.'' 
All of which was totally an untruth, but it was said-- megaphoned and 
megaphoned so loudly--that because they had never been approved by the 
FDA, therefore, they will have no defense whatsoever.
  Mrs. BOXER. I say to my friend, maybe he misunderstood. What the 
groups were saying is that this is a bill about what happens in the 
future, and that a full one-half of the FDA-approved pharmaceuticals 
are recalled.
  Mr. ROCKEFELLER. On this bill----
  Mrs. BOXER. My friend raised the issue. It was in the bill last year 
and, as he knows, it is in the House bill. The FDA excuse is in the 
bill. That was passed the House. And if this bill passes--I know the 
Senator is working toward that end and I am working toward an opposite 
end--but if the bill does pass, and it has a chance of passing, it will 
go to conference and I hope my friend will in fact oppose it if the FDA 
excuse is in it.
  The point is the Senator from West Virginia raised the issue of the 
FDA excuse and said that the groups did not really understand what we 
were doing when they mentioned silicone breast implants. The fact is, 
the silicone breast implants were grandfathered into an approval 
process, No. 1. But even if that is not as clear as a sure FDA 
approval, what the groups were trying to say--and they have no ax to 
grind, in my view, these are people who consumed, these are people who 
are victims of these terrible drugs, whether it is DES or silicone 
breast implants or the Dalkon Shield is one thing. Whether or not they 
were approved by the FDA, what they were talking about last year was 
the fact that since half of the drugs that are approved by the FDA are 
recalled, that FDA approval does not necessarily carry with it total 
and complete safety.
  And in this bill, what you did not do last year, you capped punitive 
damages, and many women who understand this bill understand that women 
are going to be penalized because, if it is a choice between $250,000 
or three times economic damages, women still in our society earn 71 
cents for every dollar earned by men. Many do not work, many more do 
not work, and their economic damage of lost wages, et cetera, will be 
lower.
  So I think that the Senator has every right to support this bill. I 
admire him and respect him for his belief in this bill. But when the 
Senator gets up and says Patsy Mink would have been better off, I think 
an average listener would have assumed that Congresswoman Patsy Mink, 
who had a DES daughter, would support this bill. She not only opposes 
it, she opposes this bill with passion.
  Mr. ROCKEFELLER. I understand that very well. I simply was responding 
to the point that the Senator made about the DES. And the point is that 
had this bill been in effect at the time 
[[Page S5697]] that Patsy Mink went through her terrible situation, she 
would have been in an entirely different circumstance. I wanted the 
Senator to know that.
  When the Senator mentions that women are hurt by this bill, women in 
America now have long been deprived. If the Senator wishes to further 
yield--
  Mrs. BOXER. I am happy to yield. I wanted to make a point. Since the 
Senator brought up Congresswoman Mink, her daughter was harmed by a 
defective product. I am not sure, but I believe her daughter did 
recover some damages.
  Mr. ROCKEFELLER. Good.
  Mrs. BOXER. I am happy to continue to yield to my friend.
  Mr. ROCKEFELLER. I thank the Senator very much.
  Understand that this bill would not in any way protect anybody who 
makes a product, the Dalkon shield or any harmful product, such as 
silicone breast implants. The Senator does understand that?
  Mrs. BOXER. No, I do not, because my friend under this bill is 
capping their punitive damages. Current law is much tougher on the 
people who make these products. This bill would cap punitive damages. 
So, therefore, it is a great step back. That is why the big business 
community supports his bill and consumers oppose it, because whereas 
each State would decide, there would be a cap on punitive damages. By 
the way, in California, we have no cap on punitive damages. We have 
other caps in place, but there is no cap on punitives. My people in 
California who would be victims of a future Dalkon shield would suffer 
under this bill.
  Mr. ROCKEFELLER. I am trying to give a different point of view, that 
the Dalkon shield and breast implants are not covered because they are 
not approved by the FDA and besides the FDA defense from last year's 
bill is not even a part of this bill.
  It is interesting. The New England Journal of Medicine indicated that 
women, and particularly women, I believe, who are pregnant, are now 
being excluded from clinical studies of different pharmaceuticals. That 
is not helpful for women. Benedictine is a morning sickness drug that 
in fact was approved and is used all over the world, and is not used in 
this country because they felt that they were unable to withstand 
litigation and potential charges. So there must be millions of women 
who do not have the advantage of that particular drug, which is 
approved everywhere else in the world.
  Mrs. BOXER. If I could say to my friend, since I am yielding, and I 
think it is best we have a dialog on each point with respect to 
thalidomide, which was a drug made in England. My friend and I are from 
the same generation. We remember the tragedy of babies born without 
limbs and brains, and the rest of it. The FDA did not approve that drug 
here. And maybe our product liability laws kept that company out of 
America.
  I want to say, in behalf of the women, at least from the State that I 
represent, they do not want any more Dalkon shields and they do not 
want thalidomide and they do not want unsafe products and silicone 
breast implants. That is just what they are going to get if bills like 
this go forward, because you are protecting companies in this bill and, 
therefore, they will be less vigilant. And that is why of consumer 
group in this Nation opposes this bill.
  Mr. ROCKEFELLER. I say to the Senator further that where she refers 
to big business, about 30 percent of the businesses in this country are 
run by women, owned or run by women. The great majority of them are in 
fact small businesses. The guess is that by the end of this century, 
about 40 percent of all small businesses in this country will be run by 
women. Of course, it is the small businesses who are the least able to 
take on the risk of litigation and often withdraw products rather than 
subject themselves to that because they could be thrown out of business 
because maybe of a jury decision.
  Julie Nimitz, obviously a woman, in Senate testimony--she runs a 
sporting goods company and is the chief executive officer of it, in 
fact.
  She is one of the two CEO's who run a U.S. manufacturer of football 
helmets, and she said, ``Our employees hold their breath every time a 
case goes to the jury because a runaway award would mean the end of the 
company.''
  Norma Wallace, who is head of an engineering company, said that the 
current situation with litigation--and evidently her company is in the 
machine tool industry--is made a great deal less competitive by the 
product liability system.
  So the question of will women be helped or will women be hurt, I 
think, is not quite as easy as my friend indicates.
  Mrs. BOXER. If I could respond to my friend.
  Mr. ROCKEFELLER. Please.
  Mrs. BOXER. It is not small businesses that brought these drugs to 
the market. My friend knows that. These drugs are developed over years. 
Millions of dollars go into these drugs, and they are sent to the 
marketplace. The fact that we----
  Mr. ROCKEFELLER. I was not----
  Mrs. BOXER. Excuse me. I believe that I am making a point here. I 
raised the issue of women, not women who own businesses or women who 
work for business. I raised the issue of women as consumers.
  What I am saying to my friend is I believe I speak for the vast 
majority of women who would say to my friend today if they had the 
opportunity--and I am standing in here for some of them--please do not 
make it easier to push on us silicone breast implants. Please do not 
make it easier to push on us the Dalkon shield. Please do not make it 
easy for us to get thalidomide. Please do not change the legal system 
in such a way that we are no longer protected by the best system in the 
world.
  Everybody always says this is the greatest country in the world. I 
have heard my friend say it. We have the best marketplace in the world, 
even though we do recall 50 percent of the drugs the FDA approves. We 
are the envy of the world.
  I would say to my friends in small business--and my friend is right, 
small business is the engine of this economy--we are talking about this 
very narrow bill that focuses on basically product liability and mostly 
on punitive damages caps, that in a study, there were 355 punitive 
damage awards in 25 years. And was it last year there were 11--excuse 
me. I stand corrected. The last year of the study was 1990. There were 
an average of 11 cases per year. So my friends who are in small 
business, when it comes to punitive damage awards, they should know 
that there have been 300 plus in 25 years. So when I talk about the 
women of this country, I am talking about them as, frankly, people who 
have been victimized by dangerous products.
  It is hard to know what it is worth if your mate is sterile and you 
cannot have a child. I am going to be a grandmother. It is one of the 
most exciting things that has ever happened to me. My friend is a proud 
dad. If I did not have that opportunity--and many DES daughters never 
had that opportunity--what kind of cap could I put on that? How can I 
tell you what it is worth? If I was to ask my friend what are his 
children worth, I do not think he could even measure it. But we are 
saying right now to future victims of products which might make them 
sterile, male or female, $250,000 or three times economic damages; that 
is all it is worth. And I do not believe in many cases that will punish 
these huge businesses and corporations that can write off $250,000 as 
easily as most Americans can write off a dollar or 10 cents.
  Mr. ROCKEFELLER. Let me say to my friend from California, if she has 
time to engage in this, let me just go on further on this business of 
women and the effect on them.
  Phyllis Greenberger is the executive director of the Society for 
Advancement of Women's Health Research, and she has said this year, 
``The current liability climate is preventing women from receiving the 
full benefits that science and medicine provide. There is evidence,'' 
she says, ``that maintaining the current liability system harms the 
advancement of women's health research.''
  I would point out to my good friend from California, with whom I 
agree on 95 percent of matters, 98 percent perhaps, under the current 
product liability system there is only one major 
[[Page S5698]] pharmaceutical company still investing in contraceptive 
research. So whether it is Benedictine for morning sickness or it is 
contraceptives or whatever, it is not the fact that there have only 
been x number of punitive damages awarded. It is the fact that punitive 
damages are always out there and that they have the effect of deterring 
people.
  In fact, we have come to the point where I think 47 percent of 
business--no. I forget the exact number. It was a big percentage of 
businesses have indicated that when they want to improve a product that 
they already have, they often reject the chance to improve the product 
for fear that it will indicate their previous product was somehow 
deficient, which is just not the way things work in America. So it is 
not the number just of punitive damage awards. It is the chilling 
effect of the possibility of what could happen. It is, in fact, cutting 
off enormous amounts of research which affect women's health, all of 
which is basically what I am trying to say to my good friend.
  Mrs. BOXER. Let me say to my friend I come from a State that has one 
of the largest pharmaceutical fields in the whole country. It is very 
robust. It is very exciting. And I say to my friend, I wish he would 
come with me. There is one company called Shaman Pharmaceutical. Shaman 
is sort of a doctor in the rain forest. And Shaman Pharmaceutical was 
founded by a young woman who said there are many of these products 
among the flora and fauna that hold promise. So the current liability 
laws did not stop Lisa Contey, who is the CEO of that company, from 
starting a new company from scratch, from building it up to the point 
where she has three products before the FDA.
  What I am saying to my friend is I think the people who support this 
bill because they say there is a crisis are making up a crisis. There 
are many new drugs on the market. We want to work with the FDA to get 
swifter approval in some cases, and we will. But I say to my friend be 
very, very cautious. We are the envy of the world. I do not want to 
rush to get a new contraceptive that might hurt and maim and destroy 
people. You do not either, I say to my friend. So why mess with a law 
that has protected us? If we did not have laws like this, we might have 
gotten thalidomide on the market. If we did not have laws like this, we 
might have gotten many more dangerous drugs that you read about in 
other countries that are not as careful.
  So I say that if, in fact, there is only one company doing this 
research and they are being careful and they are testing carefully and 
we do not have to--how many more times do women have to be used as 
guinea pigs in this country? It is not once that it has happened. It 
has happened with contraceptives continually. And maybe these companies 
will start making contraceptives for men. Maybe they will be a little 
more careful because, contrary to my colleague's remarks, it happens to 
be that these large pharmaceuticals are mostly dominated by men.
  That is a fact of life. But I say that the laws we have in place are 
part of the patchwork approach to safe products, and I feel very 
differently than does he. I am not that concerned that there are not 
seven new contraceptives coming on the marketplace because, frankly, I 
would rather that they come slowly and that they be safe than that we 
expose women to the torture of some of these DES daughters. The one I 
met at my press conference, I tell you, it will haunt me for the rest 
of my life. She went through menopause in her twenties, and she has 
struggled ever since with the most life-threatening diseases because of 
DES.
  So I do not want to have a law passed that will say to everyone out 
there, ``Come on. Bring your products onto market, because you can be 
taken to court but you're pretty well protected with a cap on punitive 
damages.''
  I think it is a big mistake to do it. And I say that in behalf of, 
frankly, tens and tens of groups who really oppose this bill, many 
women's groups and consumer groups who represent both men and women.
  Mr. ROCKEFELLER. I would just conclude, because my friend from 
Wisconsin has been more than patient in waiting to speak, by just 
saying two things.
  No. 1 is, I ask unanimous consent to have a letter from the American 
Small Business Leaders on Product Liability Reform printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

   Joint Letter to Members of Congress From American Small Business 
          Leaders on Product Liability Reform--April 3, 1995.

       Dear Members of Congress: On behalf of the nation's more 
     than 21 million small and growing businesses, we are writing 
     to strongly urge your support of S. 565, The Product 
     Liability Fairness Act of 1995.
       You know the problem: A single lawsuit can and has put many 
     small business owners out of business.
       For many small businesses, the explosion in product 
     liability cases means it is simply impossible to find and 
     keep affordable liability insurance.
       You've heard the horror stories. (If you haven't, give us a 
     call.)
       Why should you care? Small business create virtually all 
     the net new jobs in the economy. And businesses owned by 
     women now employ more people than the entire Fortune 500 
     combined. While most of our company names are not household 
     words, small business comprises the backbone of the nation's 
     economy--from Main Street to Wall Street.
       We need your help!
       Product liability reform was the #1 issue at the White 
     House Conference on Small Business in 1986. Finally, after 
     more than a decade of struggle, product liability reform 
     seems within our reach.
       Please support of S. 565. The Product Liability Fairness 
     Act of 1995, and help protect U.S. consumers, workers and 
     small businesses. Our future, and the future of our nation's 
     economy, depends on it.
       Thank you for your support.
         Gary Kushner, President, Kushner & Company, Inc., 
           President, National Small Business United, Kalamazoo, 
           Michigan; Carol Ann Schneider; President, Seek, Inc., 
           President, Independent Business Association of 
           Wisconsin; Patty DeDominic, President, National 
           Association of Women Business Owners (NAWBO), Los 
           Angeles, California; Willis T. White, President, 
           California Black Chamber of Commerce, Burlingame, 
           California; Thomas Gearing, President, The Patriot 
           Company, Federal Reserve Board, Small Business Advisory 
           Committee, Milwaukee, Wisconsin; Margaret M. Morris, 
           NAWBO Chapter President, Chevy Chase, Maryland; Lewis 
           G. Kranick, Chairman of the Board, Krandex Corporation, 
           Wisconsin Delegation Chair--1986, White House 
           Conference on Small Business, Milwaukee, Wisconsin; 
           Linda Pinson, Principal, Out of Your Mind, and Into the 
           Marketplace, NAWBO Financial Services Council, Tustin, 
           California; Dale O. Anderson, President, Greater North 
           Dakota Association, Bismark, North Dakota; Chellie 
           Campbell, President, Cameren Diversified Management, 
           Inc., NAWBO Public Policy Council, Pacific Palisades, 
           California; Brooke Miller, NAWBO Chapter President, St. 
           Louis, Missouri, John F. Robinson, President & C.E.O., 
           National Minority Business Council, Inc., New York, New 
           York; Lucille Treganowan, President, Transmissions by 
           Lucille, Inc., NAWBO Chapter President, Pittsburgh, 
           Pennsylvania; Wanda Gozdz, President, W. Gozdz 
           Enterprises, Inc., NAWBO Public Policy Council, 
           Plantation, Florida.
         Frank A. Buethe, Manager, Advance Business Development 
           Center, Green Bay Chamber of Commerce, Green Bay, 
           Wisconsin; Rachel A. Owens, Family Business Specialist, 
           Mass Mutual, NAWBO Chapter President, Irvine, 
           California; Brenda Dandy, Vice President, Marine 
           Enterprises International, Inc., NAWBO Financial 
           Services Council, Baltimore, Maryland; Terry E. Tullo, 
           Executive Director, National Business Association, 
           Dallas, Texas; Tana S. Davis, Owner, Tana Davis C.P.A., 
           NAWBO Chapter President, Encino, California; Mary G. 
           Zahn, President, M.G. Zahn & Associates, NAWBO Public 
           Policy Council, Philadelphia, Pennsylvania; Gary 
           Woodbury, President, Small Business Association of 
           Michigan; Hector M. Hyacinthe, President, Packard Frank 
           Organization Inc., New York Delegation Chair--1986, 
           White House Conference on Small Business, Ardsley, New 
           York; Mary Ellen Mitchell, Executive Director, 
           Independent Business Association of Wisconsin, NSBU 
           Council of Regional Executives, Madison, Wisconsin; 
           Susan J. Winer, President, Stratenomics, Illinois 
           Delegation Chair--1986, White House Conference on Small 
           Business, Chicago, Illinois; Lucy R. Benham, Vice 
           President, Keywelland Rosenfeld, P.C., NAWBO Public 
           Policy Council, Troy, Michigan; Beverly J. Creamer, 
           Chief Executive Officer, I & S Packaging, NAWBO Chapter 
           President, Kansas City, Missouri; C. Virginia 
           Kirkpatrick, President/Owner, CVK Personnel Management 
           & Training Specialists, NAWBO Financial Services 
           Council, St. Louis, Missouri; Mary Ann Ellis, 
           President, American Speedy Printing, NAWBO Chapter 
           President, 
         [[Page S5699]]   Boynton Beach, Florida; Shaw Mudge, Jr., 
           Vice President, Operations, Shaw Mudge & Company, 
           Connecticut Delegation Chair--1986, White House 
           Conference on Small Business, Stamford, Connecticut; 
           Eunice M. Conn, Executive Director, Small Business 
           United of Illinois, NSBU Council of Regional 
           Executives, Niles, Illinois; Ronald B. Cohen, 
           President, Cohen & Company, Immediate Past President, 
           NSBU, Cleveland, Ohio; Hilda Heglund, Executive 
           Director, Council of Small Business Executives, 
           Metropolitan Milwaukee Association of Commerce, 
           Milwaukee, Wisconsin; Karin L. Kane, Owner/Operator, 
           Domino's Pizza, NAWBO Chapter President, Salt Lake 
           City, Utah; Suzanne F. Taylor, President & Owner, 
           S.T.A. Southern California, Inc., Vice President--
           Public Policy Council, NAWBO, South Laguna, California.
         Suzanne Pease, Owner, Ampersand Graphics, NAWBO Chapter 
           President, Morganville, New Jersey; Mary Jane Rebick, 
           Co-Owner, Executive Vice President, Copy Systems, NAWBO 
           Public Policy Council, Little Rock, Arkansas; Arlene 
           Weis, President, Heart to Home Inc., NAWBO Public 
           Policy Council, Great Neck, New York; Deepay Mukerjee, 
           President, R.F. Technologies, 1995 Delegate, White 
           House Conference on Small Business, Lewiston, Maine; 
           David Sahagun, Dealer, Castro Street Chevron, 1995 
           Delegate, White House Conference on Small Business, San 
           Francisco, California; Dona Penn, Owner, Gigantic 
           Cleaners, NAWBO Public Policy Council, Aurora, 
           Colorado; Barbara Baranowski, Owner, Condo Getaways, 
           NAWBO Chapter President, North Monmouth, New Jersey; 
           Sheelah R. Yawitz, President, Missouri Merchants and 
           Manufacturers Association, Chesterfield, Missouri; 
           David R. Pinkus, Executive Director, Small Business 
           United of Texas, Texas Delegation Chair--1986, White 
           House Conference on Small Business, Austin, Texas; 
           David P. Asbridge, Partner, Sunrise Construction, Inc., 
           1995 Delegate, White House Conference on Small 
           Business, Rapid City, South Dakota; Marj Flemming, 
           Owner, Expeditions in Leadership, 1995 Delegate, White 
           House Conference on Small Business, Signal Mountain, 
           Tennessee; Jo Lee Lutnes, Owner, Studio 7 Public 
           Relations, 1995 Delegate, White House Conference on 
           Small Business, Columbus, Nebraska; Margaret 
           Lescrenier, Vice President, Gammex RMI, Small Business 
           Committee Member, Wisconsin Manufacturers and Commerce; 
           Gordon Thomsen, Chief Executive Officer, Trail King 
           Industries, Inc., 1994 Small Business Administration 
           National Exporter of the Year, Mitchell, South Dakota; 
           Leri Slonneger, NAWBO Chapter President, Washington, 
           Illinois; Shalmerdean A. Knuths, Co-Owner/Director of 
           Administration, Rosco Manufacturing Company, 1995 
           Delegate, White House Conference on Small Business, 
           Madison, South Dakota; Allan M. Shaivitz, President, 
           Allan Shaivitz Associates, Inc., 1995 Delegate, White 
           House Conference on Small Business, Baltimore, 
           Maryland; Linda Butts, President/Owner, Prairie 
           Restaurant & Bakery, Member, NFIB, Carrington, North 
           Dakota; Malcolm N. Outlaw, Owner/President, Sunwest Mud 
           Company, Board Member, Small Business United of Texas, 
           Midland, Texas; Suzanne Martin, Council of Small 
           Enterprises, Greater Cleveland Growth Association, NSBU 
           Council of Regional Executives, Cleveland, Ohio.
         David L. Condra, President, Dalcon Computer Systems, 1995 
           Delegate, White House Conference on Small Business, 
           Nashville, Tennessee; Doris Morgan, Vice President, 
           Cherrybark, 1995 Delegate, White House Conference on 
           Small Business, Hazlehurst, Mississippi; Dr. Earl H. 
           Hess, Lancaster Laboratories, Inc., Pennsylvania 
           Delegation Chair--1986, White House Conference on Small 
           Business, Lancaster, Pennsylvania; Ralph S. Goldin, 
           President, Goldin & Stafford, Inc., 1995 Delegate, 
           White House Conference on Small Business; Landover, 
           Maryland; John C. Rennie, President, Pacer Systems, 
           Inc., Past President, NSBU, Billerica, Massachusetts; 
           Murray A. Gerber, President, Prototype & Plastic Mold 
           Company, Inc., Connecticut Delegation Chair--1986, 
           White House Conference on Small Business, Middletown, 
           Connecticut; Robert E. Greene, Chairman & CEO, Network 
           Recruiters, Inc., 1995 Delegate, White House Conference 
           on Small Business, Bel Air, Maryland; Julie M. 
           Scofield, Executive Director, Smaller Business 
           Association of New England, Waltham, Massachusetts; 
           Jack Kavaney, President, Gateway Properties, 1995 
           Delegate, White House Conference on Small Business, 
           Bismarck, North Dakota; Leo R. McDonough, President, 
           Pennsylvania Small Business United, Pittsburgh, 
           Pennsylvania; H. Victoria Nelson, Proprietor, Jamel 
           Iron & Forge, 1995 Delegate, White House Conference on 
           Small Business, Hagerstown, Maryland; Helen Selinger, 
           President, Sloan Products Company, Inc., 1995 Delegate, 
           White House Conference on Small Business, Matawan, New 
           Jersey; Charles B. Holder, President, Hol-Mac 
           Corporation, 1995 Delegate, White House Conference on 
           Small Business, Bay Springs, Mississippi; Marguerite 
           Tebbets, President, Window Pretties, Inc., President, 
           Women Business Development Center, Kennebunk, Maine; 
           Catherine Pawelek, NAWBO Chapter President, Coral 
           Gables, Florida; Max Gonzenbach, Vice President, Valley 
           Queen Cheese Factory, Inc., 1995 Delegate, White House 
           Conference on Small Business, Milbank, South Dakota; 
           Geoff Titherington, Owner, Bonanza, American 
           Franchisees Association, Sanford, Maine; Richard 
           Watson, Executive Vice President, Walker Machine 
           Products, Inc., National Screw Machine Products 
           Association, Collierville, Tennessee; Tonya G. Jones, 
           President, Mark IV Enterprises, Inc., NFIB Guardian 
           Advisory Council, 1995 Delegate, White House Conference 
           on Small Business, Nashville, Tennessee.

  Mr. ROCKEFELLER. Mr. President, this is a letter from Patty 
DeDominic, who is the president of the National Association of Women 
Business Owners, and others, in which they write: ``On behalf of the 
Nation's more than 21 million small and growing businesses,'' we ask 
you to support this bill.
  This is just not the idea, therefore, that this is all big business. 
I mean that really is not the case.
  Second, and finally, and with great respect to my friend from 
California, who cares passionately that people be protected, as do I. I 
think the Senator knows my heart as well as the Senator's, not as well 
as the Senator knows her own heart, but she knows what I stand for and 
who I am.
  But I think the statement is fine, which is one company which is 
doing research on contraceptives, or if you put that over into other 
areas such as Alzheimer's.
  I had dinner last night with a person who has Parkinson's. He was 
describing to me a little bit of what that was like. That happened to 
be a man and not a woman. But I really never, ever want, as in the 
Soviet Union, where there is one company which is doing research on 
Alzheimer's and Parkinson's and some of these enormous diseases that 
affect men and women. I mean, the whole point is competition in the 
marketplace. And even worse is the fact that companies are withdrawing 
the amount of money that they spend on research in general.
  Mrs. BOXER. I say to my friend, what I said--because I do not want to 
be mischaracterized--is that it is fine that unproven drugs are not 
being pushed on the marketplace because in many cases if unproven drugs 
are pushed on the marketplace they will kill people.
  Mr. ROCKEFELLER. They certainly will.
  Mrs. BOXER. They will maim people. They will hurt people. And nowhere 
could this be more true than when it comes to contraceptives or drugs 
given during pregnancy and the like. And women have been used as guinea 
pigs.
  So when my friend says, in terms of contraceptives, that he is very 
worried that it is this legal system that is stopping these drugs, I 
say better that we go slowly, better that we move wisely, better err 
that we test these products and not have another case of the Dalkon 
Shield or the DES. We do not need these.
  We learned a lesson and the lesson should not be that you open up the 
floodgates by protecting companies. The lesson should be that we should 
be very, very cautious.
  Mr. ROCKEFELLER. And the lesson should also be that we open up the 
floodgates of the courthouse door to people who might be afflicted by 
anything that might happen in the future.
  Mrs. BOXER. I think the courthouse door is fine right now. I mean, on 
the one hand----
  Mr. ROCKEFELLER. Are you satisfied with the system the way it is?
  Mrs. BOXER. With product liability; I think it is fair to say that we 
do not have the problem with product liability. If you want to talk 
about other areas of the law where there is frivolous lawsuits, that is 
fine.
  But when I see that there were an average of 11 punitive damages 
awards for products cases in a single year, nationally, I do not think 
we have an explosion.
  And then my friend says let us open up the courthouse door, on the 
one 
[[Page S5700]] hand, when many on his side say already the courthouse 
door is too wide open.
  I just want to say to my friend when it comes to Alzheimer's, I am 
very interested, and his heart is there. We know that a new drug was 
put on the market last summer. We also know for Parkinson's there is a 
new operation that holds some promise. We are making progress.
  I do not think we need to take a system that has acted as a protector 
of the American consumer and destroy it, as this bill would.
  Now this bill only goes halfway to destroy it. The one in the House, 
that some of my friends here on the Republican side of the aisle like, 
goes to the heart of it, goes to the heart of it. They just want to get 
this bill in conference and go all the way with this bill if they can 
do it, and keep the votes together. I think we are playing a very 
dangerous game here.
  Mr. ROCKEFELLER. Final question, with apologies to both the Senator 
from California and the Senator from Wisconsin.
  Mrs. BOXER. The Senator does not have to apologize, I say to my 
friend. I enjoy this give and take.
  Mr. ROCKEFELLER. Sure.
  The Senator appeared to be saying that she is, Mr. President, 
entirely satisfied with our present system. I believe she did say that.
  Mrs. BOXER. I said, on product liability, I think that we have a good 
system.
  Mr. ROCKEFELLER. The status quo on product liability is absolutely 
fine and there does not need to be any changes made. I mean, most trial 
lawyers will not say that.
  So what I was going to ask my friend from California, if there was a 
bill that was able to balance the requirements of getting more 
opportunities for research and discoveries, more opportunities for new 
drugs, and balance the needs of business in that respect and also the 
question of how business is treated so business, even though there were 
only 11 punitive damage cases in one particular year, that, in fact, 
the chilling effect of those 11 cases hangs over hundreds of thousands 
of businesses and, therefore, affects, in effect, hundreds of thousands 
of businesses and, on the other hand, was able to protect consumers and 
open up new avenues of protection for consumers, if it were possible to 
develop such a bill, would the Senator be interested?
  Mrs. BOXER. I will work with my friend to make sure that we can 
encourage the best and the brightest people in this country to work on 
research. That is why I am such a proponent of NIH grants. Because, as 
my friend knows, right now we are only approving one in five grants. We 
are only funding one in five approved NIH grants.
  I will work with my friend if he can show me part of the law that he 
thinks is hurting the people of this country. I am just saying to my 
friend that we have, with all of its faults and all of its problems, 
the safest products in the world. And I am saying to my friend, even 
though we have had our share of problems, we are still the safest.
  Why would we go back from that? I think that is where my friend and I 
disagree. He does not seem to think that the current law has protected 
people. I mean, my friend has stated here and to me in other settings 
that he thinks his bill is good for future victims.
  Mr. ROCKEFELLER. This Senator thinks that the bill before us offers a 
number of areas which would make it substantially a more protected 
situation, a more have-your-chance-at-the-courthouse situation, have 
access to alternative dispute resolutions on a voluntary basis where 
the claimant never has to pay anything but the defendant does.
  I think there are a number of areas where this bill does, in fact, 
open up new opportunities for protection and due process to women.
  This will be my fourth attempt to close, and I am picking on myself, 
not the distinguished Senator from California.
  There is one more thing that I notice here. Again, the New England 
Journal of Medicine, 1993, concluded that the manufacturers' liability 
concerns are contributing to the exclusion of women, which I indicated 
earlier, from clinical studies.
  Now, that is a terribly serious statement. That is the same thing as 
I ran into in the Persian Gulf war syndrome with the use of the drug 
pyridostigmine, which when used in connection with other chemicals may 
be a contributing factor to the tens of thousands of men and women in 
this country who have a so-called mystery illness, which is no mystery 
to me but which evidently seems to be to our scientists.
  And women in the test that the Department of the Defense conducted to 
test this pill were entirely excluded. Not one single woman, even 
though the bodyweight of women obviously is not as great as that of the 
average man and, therefore, the effect of the pill, which was made on 
men and women, would be much worse on women. So the importance of 
having women in clinical studies in this research is very, very 
important.
  Having said that, for my part I want to thank my friend from 
California, and apologize to my friend from Wisconsin and yield the 
floor.
  Mrs. BOXER. Thank you very much.
  Mr. President, I am very pleased that the Senator from West Virginia 
and I were able to engage in this dialog. I think today people have to 
know that when there is disagreement among friends, you still talk to 
each other. We do that too seldom, even on the floor of the Senate. 
``No, I won't yield. I want to say my piece. I don't agree with you and 
I won't yield.''
  I think the fact that we can go back and forth--and we are really in 
disagreement on this bill, there is no question about that--is a good 
thing.
  I say to my friend that I know he is doing what he is doing because 
he thinks it is best for everyone. But I think at some point one has to 
take a look at who opposes you and listen to the groups that oppose 
your bill, and to stand on the floor and say, ``I'm doing it for DES 
people, I'm doing it for consumers, I'm doing it for women,'' how about 
giving these people the credit to know themselves whether this bill is 
good for them?
  I told a story about this Boy Scout who saw this little old lady and 
went over to her and took her across the street. And he wondered why 
she did not say thank you. Finally, he said, ``Why didn't you say thank 
you to me?"
  She said, ``Because I didn't want to go across the street.''
  Why are we taking the consumers across the street? They do not want 
to go. Why are we telling the women in this country to go across this 
street? They do not want to go. I understand why one would support this 
bill. There are some big businesses that desperately want this bill. 
The tobacco companies want this bill. They do not like the threat of 
large punitive damages. Why would they? They would just as soon put a 
product on the market, take the risk and know they are protected.
  I am talking for consumers, I am talking for women, and I am not 
making it up. I am going to read you the list, and it may take a while. 
I am not going to read the whole list:
  Action on Smoking and Health opposes liability reform. AIDS Action 
Council opposes it. Alabama Citizen Action opposes it.
  Here are others in opposition: The American Bar Association; American 
Coalition for Abuse Awareness; American Council on Consumer Awareness; 
American Public Health Association; American University Washington 
College of Law; Americans for Nonsmokers Rights; Arizona Citizen 
Action; Arizona Consumers Council; Aviation Consumer Action Project; 
California Citizen Action; California Public Interest Research Group.
  This is an unprecedented group of people across the political 
spectrum, in my opinion.
  The American Bar Association has lawyers on both sides of this; 
Center for the Public Interest Law at the University of San Diego; 
Center for Public Representation, Inc.; Center for Women Policy 
Studies; Children Now; Citizen Action; Citizen Action of Maryland and 
New York; Citizen Advocacy Center; Citizens Action Coalition of 
Indiana; Clean Water Action Projects; Coalition for Consumer Rights; 
Coalition of Labor Union Women; Colorado Public Interest Research; 
Communications Workers of America; Connecticut Citizen Action Group; 
Connecticut Public 
[[Page S5701]] Interest Research Group; Consumer Action; Consumer 
Federation of America.
  All these groups oppose liability reform, and people will get up and 
say this bill is good for the consumers, and people will get up and say 
it is good for women, and people will get up and say it is good for 
victims. Well, that is the best kept secret in America because here are 
the groups that oppose it:
  Consumer Federation of California; Consumer Protection Association; 
Consumers for Civil Justice; Consumer League of New Jersey; Consumers 
Union.
  It goes on: DES Action USA. We heard the Senator from West Virginia 
get up and say he thought it would be better for DES people if this 
bill was law. Interesting. DES Action USA opposes the bill. So do DES 
Sons. So they do not want this bill to become law.
  Empire State Consumers Association; Families Advocating Injury 
Reduction; Fair Housing Council of San Gabriel Valley; Federation of 
Organization for Professional Women oppose.
  My friend talked about how women want this. Well, there is no such 
thing. Some women, I guess, who are in business want it and some do 
not.
  Georgia Citizen Action; Fund for Feminist Majority.
  It goes on.
  Hollywood Women's Political Committee; Idaho Citizens Action Network; 
Idaho Consumer Affairs; Illinois Council Against Handgun Violence; 
Illinois Public Action; International Brotherhood of Teamsters; Iowa 
Citizen Action Network; Kentucky Citizen Action; Latino Civil Rights 
Task Force; Lambda Legal Defense and Education Fund. I am going to lose 
my voice. I might have to save this for a later debate.
  I think I have made my point.
  And I have not even told you all the prestigious, important, decent 
organizations that do not want this bill to pass. This is America. They 
do not want this bill to pass.
  National Organization on Disability; the National Rainbow Coalition; 
the National Women's Health Network. They do not think liability reform 
is good for women.
  Nebraska Citizen Action; New Hampshire Citizen Action; New Jersey 
Environmental Federation; New Mexico Citizen Action; North Carolina 
Consumers Council. It goes on. I am only on the O's.
  Public Citizen; Uniformed Firefighters Association of Greater New 
York.
  Mr. ROCKEFELLER. Will the Senator yield?
  Mrs. BOXER. Yes, I will be happy to yield. I am getting tired.
  Mr. ROCKEFELLER. When you go on to the R's, that would be an 
appropriate time to yield to me.
  Mrs. BOXER. Go ahead. I yield to you now.
  Mr. ROCKEFELLER. I noticed that the Senator mentioned one AIDS 
interested group. That compels me to say something which, again, I 
think is so important, that one of the reasons that the list is so long 
is people on a subject like this, and when you have a very intense 
group fighting so hard--the Senator mentioned lawyers in general--but 
there is a particular group of lawyers that is fighting this thing 
very, very hard, a tremendous amount of sensationalism.
  I have a letter which is being passed around West Virginia written by 
one of these particular kinds of lawyers basically saying that if you 
have been exposed to asbestos, Rockefeller is trying to cut off your 
chance for recourse, which is an absolute falsehood because this bill 
is entirely prospective and asbestos does not enter into it at all.
  What I am suggesting is that many, in fact, amazingly, many of these 
consumer groups are so completely wedded to the status quo that they do 
not want to see any change.
  I can remember--every year I do this. I ask the president of the 
American Trial Lawyers Association to come into my office, which they 
always do with one of their particular lobbyists. And I say, ``Is there 
anything I can do to work with you on this problem because I want to 
solve it in a way which is fair to both business and consumers.''
  I come from a State where consumers far outnumber businesses, and I 
want to make sure it is a fair bill.
  Every year the answer is, ``No, the bill is fine exactly the way it 
is. There is no need for any kind of change whatsoever. Which is a 
remarkable attitude when you consider, for example, what Abbott 
Laboratories said. Abbott Laboratories has made the decision to drop 
plans for human trials of the drug to prevent HIV-infected mothers from 
transmitting the AIDS virus to their unborn children. Abbott 
Laboratories is not a small operation. They are not doing that anymore.
  Dr. Fauci, who is Director of AIDS research at the National 
Institutes of Health called these liability concerns ``very real,'' and 
``something we have to address.'' This is the area of AIDS. A 
pharmaceutical company and a major Government research organization 
agree on the need to make some reforms in our product liability system.
  All the junior Senator from West Virginia is trying to suggest to my 
friend from California is that somehow--here is another, Dr. Elizabeth 
Connell, Chair of FDA's obstetrics and gynecology devices panel, said 
that the United States is losing its leadership role in the area of 
contraceptive technology ``with potentially disastrous consequences for 
women and men in this country and elsewhere.''
  All I am trying to say to my good friend from California is that I 
think one of the real problems on this piece of legislation, frankly, 
is that people really have not looked at the bill;
 that there is this atrocious mindset on the part of those who oppose 
it--I hope not on the part of those who propose it--that it is 
atrocious to bring it up. Often, in my State's legislature, somebody 
would bring up the beginning of an idea, an amoeba, and the lobbyist 
would crush it immediately before it had a chance to grow in any 
direction, so that it might in fact become something.

  All I am saying is that opposing any change, praising the status quo, 
when such things as testing for AIDS passed from a mother to a child 
could no longer be carried out is beyond my understanding.
  Mrs. BOXER. Mr. President, my friend should come to me about this 
situation, no drugs are being developed. The pharmaceutical industry is 
basically the fastest growing industry in California. I might tell my 
friend that the Pediatric AIDS Foundation is intimately involved in 
making sure that we do research on pediatric AIDS. I happen to know the 
doctor who actually made the finding that the AIDS virus passed through 
the mother's milk to the baby. The fact of the matter is, I do not see 
one reason that has been offered by any of my friends in the U.S. 
Senate on either side of the aisle that there is an explosion of 
lawsuits that is chilling this whole Nation.
  I think that we have a system of justice in this country regarding 
product liability that is working. The truth is, with all of the talk 
about this great explosion of lawsuits, we heard all that and nobody 
put down one statistic about it. We finally got the statistic, and now 
they are coming up with another reason for the bill. Oh, it is a 
chilling effect. Yes, there are only 355 cases over 25 years, but it is 
a chilling effect. I say to my friends, if you want to see an explosion 
of litigation, it is in the business law area. That is where businesses 
are suing businesses and an explosion in litigation is taking place in 
that arena.
  So there is no case to be made that there is this explosion of 
litigation. This is, in fact, an area of the law where the law serves 
as a deterrent from terrible, harmful products, be they drugs, medical 
devices, toys, or be they buses that explode. I am not a lawyer--which 
is a little refreshing around here--but I am not stupid when it comes 
to what is important for the rights of the people. I am not stupid when 
it comes to thinking about what it would mean if I did not have a baby 
because I was a DES daughter or I took a drug that was not carefully 
thought through. And then to say $250,000 capped for any horrible 
damage that was done to me, you know, if you lose your ability to bear 
a child, if that is your damage, you may be able to work. You may have 
very low economic damages. And if you can tell me that we know better 
in this U.S. Senate than they do in the States and on a jury in any and 
all cases what that punitive damage award can be, I say that is being 
``Big Brother'' at its worst, and I might say ``Big Sister,'' depending 
on the gender of the Senator involved.
  [[Page S5702]] 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.

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