```

[Congressional Record Volume 141, Number 71 (Tuesday, May 2, 1995)]
[Senate]
[Pages S5994-S5995]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

     COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. GORTON. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending question is the Gorton amendment 
No. 620.
  Mr. GORTON. Is the Snowe amendment to the Gorton amendment also 
pending?
  The PRESIDING OFFICER. It is a Gorton amendment offered on behalf of 
Senator Snowe.
  Mr. GORTON. Mr. President, this amendment is identical to an 
amendment which was adopted by a rollcall vote earlier today to the 
medical malpractice sections of the bill. We have discussed it. 
Everyone has agreed that we do not need another rollcall vote on it. I 
believe all debate is concluded. I ask the President to put the 
question.
  [[Page S5995]] The PRESIDING OFFICER. If there is no further debate, 
the question occurs on agreeing to the amendment No. 620 to amendment 
No. 596.
  The amendment (No. 620) was agreed to.
  Mr. GORTON. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. ROCKEFELLER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. GORTON. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Gorton). Without objection, it is so 
ordered.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the pending 
amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                 Amendment No. 622 to Amendment No. 617

  (Purpose: To provide protection for individuals, small businesses, 
   charitable organizations and other small entities from excessive 
                        punitive damage awards.)

  Mr. DeWINE. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Ohio [Mr. DeWine], for himself and Mr. 
     Abraham, proposes an amendment numbered 622 to amendment No. 
     617.

  Mr. DeWINE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 3, line 23, strike ``loss.'' and insert in lieu 
     thereof: ``loss;

     ``except that if the award is against an individual whose net 
     worth does not exceed $500,000 or against an owner of an 
     unincorporated business, or any partnership, corporation, 
     association, unit of local government, or organization which 
     has fewer than twenty-five full-time employees, that amount 
     shall not exceed $250,000.''

  Mr. DeWINE. Mr. President, I offer this amendment on behalf of 
Senator Abraham and myself. It really is an amendment that is a small 
business amendment.
  I expressed yesterday on the floor a concern, a twofold concern: One, 
that we make sure that the cap was sufficiently high so that larger 
businesses would in fact be deterred by the proper awards juries would 
make in regard to punitive damages, and that we not lose that deterrent 
effect; but I also expressed a concern that small business not be 
unduly penalized by punitive damages.
  I have talked to small business men and women throughout Ohio who do 
have this very legitimate concern and who really live in fear literally 
every day of something happening where they would have a huge award 
that would literally put them out of business; that what would become a 
punitive damage award which, for a big business, might, in fact, be a 
deterrent, might, in fact, be for a small business actually the death 
penalty.
  This particular amendment provides an exception for small business. 
And small business is defined in the amendment as any business that has 
25 or fewer employees or has a net worth of not over one-half million 
dollars. If this amendment is agreed to, a punitive damage award could 
not exceed $250,000.
  I think this amendment makes a great deal of sense. I think it will 
take care of one of the problems that we have today, a problem 
expressed to me many, many times by small business.
  I hope that tomorrow it will, in fact, be adopted.
  Mr. President, at this time, I ask unanimous consent that this 
amendment be set aside for the moment.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                 Amendment No. 623 to Amendment No. 617

  Mr. DeWINE. Mr. President, I send another amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Ohio [Mr. DeWine] proposes an amendment 
     numbered 623 to amendment No. 617.

  The amendment is as follows:

       On page 4 line 11 strike the semicolon after the word 
     ``awarded'' through line 15 and insert a period.

  Mr. DeWINE. Mr. President, this amendment will, I believe, clean up 
the bill and it will finish a process that was begun several days ago. 
That was a concern that I expressed on the floor yesterday in regard to 
the way the bill was originally drafted, which said that juries no 
longer could consider the assets that a corporation had when that jury 
made its decision about what was the appropriate level of punitive 
damages.
  As I indicated yesterday, that type of preemption of State law makes 
absolutely no sense because punitive damages have always been intended 
to do basically two things: One, to serve as punishment and, second, to 
serve as a legitimate deterrent.
  A jury cannot make that determination unless the jury knows all the 
facts. One of the pertinent facts has to be what the assets of the 
corporation might be, and other relevant financial information.
  The danger of the way the bill was written was not only that we might 
lose that deterrent effect. Because a jury would not really know what 
assets the company had, it might have just the opposite effect. You 
might have a jury assuming that a company had a great deal of assets 
and the company did not have those assets. The jury then would make a 
disproportionate award. And so it could hurt really on both sides.
  What this amendment does is really complete the process that was 
started several days ago, by providing and taking out of the bill that 
preemption. So if this amendment would be passed, we would be back to 
where we were before in regard to what juries could consider in regard 
to making their decision about punitive damages; namely, we would be 
back to State law, which I think is where we need to go.
  So, in this case, I hope that tomorrow, when we vote on this 
particular amendment, we will agree to it. I think it is only equitable 
and fair. I urge my colleagues to do so.
  At this point, Mr. President, 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. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. DeWine). Without objection, it is so 
ordered.

                          ____________________
```