April 26, 1995 CONGRESSIONAL RECORD — SENATE S5695

now in a private session, as I understand it, discussing this measure.

I move that the Senate stand in recess until the hour of 2:30 p.m.

The motion was agreed to.

Thereupon, the Senate, at 1:22 p.m.

recessed until 2:29 p.m.; whereupon, the

Senate reassembled when called to

order by the Presiding Officer (Mr.

ABRAHAM).

Mr. DOLE. Mr. President, I understand there are speakers on the way to

the floor. In the meantime, I suggest

the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mrs. BOXER. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

CONDOLENCES TO CITIZENS OF

OKLAHOMA CITY

fMrs. BOXER. Mr. President, I wanted

to add my voice, on behalf of the people

of California, my voice that is going to

say today that we send our love, our

condolences, and our sympathies to our

friends in Oklahoma.

A couple of California residents happened to be in that building at the time

of the blast so we certainly share in

this tragedy. I send my words of thanks

to the incredible people who have

shown up from all parts of this country

to help the people of Oklahoma City

cope with this tragedy.

I have a lot of thoughts and feelings,

but rather than say them today, I will

be writing them down because I do not

want to misspeak or in any way say

anything that could be misconstrued.

Today I just wanted to say that I am

very fearful that what occurred in

Oklahoma City could be a signal that

America is losing something very special that we have always had, which is

an ability to take our dissent and take

it right to the ballot box.

If we lose that, and if we all do not

guard against violence, we will lose the

very essence of our Government, the

Government of, by, and for the people.

When we attack people who work for

the Government, we are attacking our

neighbors and friends, and indeed we

are attacking ourselves.

One of the things that has concerned

me for a long time is the dropoff in

voter participation that I have seen.

There are many people that are disgruntled and discontented with laws

that are passed, the debates that we

have here.

I encourage them to participate, to

take that frustration and those feelings and organize politically and get

your candidates here to the U.S. Senate, to the House of Representatives—

whatever a person’s philosophy, be it

on the left, right, in the center, it matters not.

The beauty of what we have in America is this incredible democracy where

everyone has a chance to get here. Certainly I got here very unexpectedly

myself, a first-generation American—

my mother never even graduated from

high school—and I got to the U.S. Senate.

This is an open country and there is

no need to harbor bad feelings toward

one another. Here in this Senate we debate many times and we sometimes get

angry at each other because we disagree with each other. However, it is

done with respect. I only hope in the

years that I am here it will continue to

be done with respect.

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

fThe 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 onethird 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
S5696 CONGRESSIONAL RECORD — SENATE April 26, 1995

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
April 26, 1995 CONGRESSIONAL RECORD — SENATE 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
S5698 CONGRESSIONAL RECORD — SENATE April 26, 1995

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,
April 26, 1995 CONGRESSIONAL RECORD — SENATE 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
S5700 CONGRESSIONAL RECORD — SENATE April 26, 1995

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-thecourthouse 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
April 26, 1995 CONGRESSIONAL RECORD — SENATE 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.
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