May 2, 1995 CONGRESSIONAL RECORD— SENATE S6011 

[Mr. BAUCUS] was added as a cosponsor 

of S. 227, a bill to amend title 17, 

United States Code, to provide an exclusive right to perform sound recordings publicly by means of digital transmissions and for other purposes. 

S. 383

At the request of Mr. WARNER, the 

names of the Senator from Pennsylvania [Mr. SPECTER] and the Senator 

from Idaho [Mr. CRAIG] were added as 

cosponsors of S. 383, a bill to provide 

for the establishment of policy on the 

deployment by the United States of an 

antiballistic missile system and of advanced theater missile defense systems. 

S. 388

At the request of Ms. SNOWE, the 

names of the Senator from Montana 

[Mr. BURNS] the Senator from Wisconsin [Mr. FEINGOLD], and the Senator 

from Colorado [Mr. BROWN] were added 

as cosponsors of S. 388, a bill to amend 

title 23, United States Code, to eliminate the penalties for noncompliance 

by States with a program requiring the 

use of motorcycle helmets, and for 

other purposes. 

S. 511

At the request of Mr. DOMENICI, the 

name of the Senator from Texas [Mrs. 

HUTCHISON] was added as a cosponsor of 

S. 511, a bill to require the periodic review and automatic termination of 

Federal regulations. 

S. 578

At the request of Mr. D’AMATO, the 

name of the Senator from Maryland 

[Mr. SARBANES] was added as a cosponsor of S. 578, a bill to limit assistance 

for Turkey under the Foreign Assistance Act of 1961 and the Arms Export 

Control Act until that country complies with certain human rights standards. 

S. 637

At the request of Mr. MCCAIN, the 

names of the Senator from Michigan 

[Mr. ABRAHAM] and the Senator from 

North Carolina [Mr. FAIRCLOTH] were 

added as cosponsors of S. 637, a bill to 

remove barriers to interracial and 

interethnic adoptions, and for other 

purposes. 

SENATE JOINT RESOLUTION 31

At the request of Mr. HATCH, the 

name of the Senator from Nevada [Mr. 

REID] was added as a cosponsor of Senate Joint Resolution 31, a joint resolution proposing an amendment to the 

Constitution of the United States to 

grant Congress and the States the 

power to prohibit the physical desecration of the flag of the United States. 

SENATE RESOLUTION 85

At the request of Mr. CHAFEE, the 

names of the Senator from South Dakota [Mr. PRESSLER] and the Senator 

from Alabama [Mr. SHELBY] were added 

as cosponsors of Senate Resolution 85, 

a resolution to express the sense of the 

Senate that obstetrician-gynecologists 

should be included in Federal laws relating to the provision of health care. 

AMENDMENTS SUBMITTED 

THE COMMON SENSE LEGAL 

STANDARDS REFORM ACT OF 

1995 COMMON SENSE PRODUCT 

LIABILITY REFORM ACT OF 1995 

DOLE (AND OTHERS) AMENDMENT 

NO. 617 

Mr. DOLE (for himself, Mr. EXON, Mr. 

HATCH, Ms. SNOWE, Mr. MCCONNELL, 

Mr. ABRAHAM, Mr. KYL, Mr. THOMAS, 

Mrs. HUTCHISON, Mr. GRAMM) proposed 

an amendment to amendment No. 596 

proposed by Mr. GORTON to the bill 

(H.R. 956) to establish legal standards 

and procedures for product liability 

litigation, and for other purposes; as 

follows: 

On page 19, strike line 12 through line 5 on 

page 21, and insert the following: 

SEC. 107. PUNITIVE DAMAGES IN CIVIL ACTIONS. 

(a) FINDINGS.—The Congress finds that—

(1) punitive damages are imposed pursuant 

to vague, subjective, and often retrospective 

standards of liability, and these standards 

vary from State to State; 

(2) the magnitude and unpredictability of 

punitive damage awards in civil actions have 

increased dramatically over the last 40 

years, unreasonably inflating the cost of settling litigation, and discouraging socially 

useful and productive activity; 

(3) excessive, arbitrary, and unpredictable 

punitive damage awards impair and burden 

commerce, imposing unreasonable and unjustified costs on consumers, taxpayers, governmental entities, large and small businesses, volunteer organizations, and nonprofit entities; 

(4) products and services originating in a 

State with reasonable punitive damage provisions are still subject to excessive punitive 

damage awards because claimants have an 

economic incentive to bring suit in States in 

which punitive damage awards are arbitrary 

and inadequately controlled; 

(5) because of the national scope of the 

problems created by excessive, arbitrary, and 

unpredictable punitive damage awards, it is 

not possible for the several States to enact 

laws that fully and effectively respond to the 

national economic and constitutional problems created by punitive damages; and 

(6) the Supreme Court of the United States 

has recognized that punitive damages can 

produce grossly excessive, wholly unreasonable, and often arbitrary punishment, and 

therefore raise serious constitutional due 

process concerns. 

(b) GENERAL RULE.—Notwithstanding any 

other provision of this Act, in any civil action whose subject matter affects commerce 

brought in any Federal or State court on any 

theory, punitive damages may, to the extent 

permitted by applicable State law, be awarded against a defendant only if the claimant 

establishes by clear and convincing evidence 

that the harm that is the subject of the action was the result of conduct by the defendant that was either—

(1) specifically intended to cause harm; or 

(2) carried out with conscious, flagrant disregard to the rights or safety of others. 

(c) PROPORTIONAL AWARDS.—The amount of 

punitive damages that may be awarded to a 

claimant in any civil action subject to this 

section shall not exceed 2 times the sum of—

(1) the amount awarded to the claimant for 

economic loss; and 

(2) the amount awarded to the claimant for 

noneconomic loss. 

This subsection shall be applied by the court 

and the application of this subsection shall 

not be disclosed to the jury. 

(d) BIFURCATION.—At the request of any 

party, the trier of fact shall consider in a 

separate proceeding whether punitive damages are to be awarded and the amount of 

such an award. If a separate proceeding is requested—

(1) evidence relevant only to the claim of 

punitive damages, as determined by applicable State law, shall be inadmissible in any 

proceeding to determine whether compensatory damages are to be awarded; and 

(2) evidence admissible in the punitive 

damages proceeding may include evidence of 

the defendant’s profits, if any, from its alleged wrongdoing. 

(e) APPLICABILITY.—Nothing in this section 

shall be construed to—

(1) waive or affect any defense of sovereign 

immunity asserted by the United States, or 

by any State, under any law; 

(2) create any cause of action or any right 

to punitive damages; 

(3) supersede or alter any Federal law; 

(4) preempt, supersede, or alter any State 

law to the extent that such law would further limit the availability or amount of punitive damages; 

(5) affect the applicability of any provision 

of chapter 97 of title 28, United States Code; 

(6) preempt State choice-of-law rules with 

respect to claims brought by a foreign nation 

or a citizen of a foreign nation; or 

(7) affect the right of any court to transfer 

venue or to apply the law of a foreign nation 

or to dismiss a claim of a foreign nation or 

of a citizen of a foreign nation on the ground 

of inconvenient forum. 

(f) FEDERAL CAUSE OF ACTION PRECLUDED.—

Nothing in this section shall confer jurisdiction on the Federal district courts of the 

United States under section 1331 or 1337 of 

title 28, United States Code, over any civil 

action covered under this section. 

(g) DEFINITIONS.—For purposes of this section: 

(1) The term ‘‘claimant’’ means any person 

who brings a civil action and any person on 

whose behalf such an action is brought. If 

such action is brought through or on behalf 

of an estate, the term includes the decedent. 

If such action is brought through or on behalf of a minor or incompetent, the term includes the legal guardian of the minor or incompetent. 

(2) The term ‘‘clear and convincing evidence’’ means that measure or degree of 

proof that will produce in the mind of the 

trier of fact a firm belief or conviction as to 

the truth of the allegations sought to be established. The level of proof required to satisfy such standard shall be more than that 

required under preponderance of the evidence, and less than that required for proof 

beyond a reasonable doubt. 

(3) The term ‘‘commerce’’ means commerce 

between or among the several States, or with 

foreign nations. 

(4)(A) The term ‘‘economic loss’’ means 

any objectively verifiable monetary losses 

resulting from the harm suffered, including 

past and future medical expenses, loss of 

past and future earnings, burial costs, costs 

of repair or replacement, costs of replacement services in the home, including child 

care, transportation, food preparation, and 

household care, costs of making reasonable 

accommodations to a personal residence, 

loss of employment, and loss of business or 

employment opportunities, to the extent recovery for such losses is allowed under applicable State law. 

(B) The term ‘‘economic loss’’ shall not include noneconomic loss. 

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S6012 CONGRESSIONAL RECORD— SENATE May 2, 1995 

(5) The term ‘‘harm’’ means any legally 

cognizable wrong or injury for which damages may be imposed. 

(6)(A) The term ‘‘noneconomic loss’’ means 

subjective, nonmonetary loss resulting from 

harm, including pain, suffering, inconvenience, mental suffering, emotional distress, 

loss of society and companionship, loss of 

consortium, injury to reputation, and humiliation. 

(B) The term ‘‘noneconomic loss’’ shall not 

include economic loss or punitive damages. 

(7) The term ‘‘punitive damages’’ means 

damages awarded against any person or entity to punish such person or entity or to deter 

such person or entity, or others, from engaging in similar behavior in the future. 

(8) The term ‘‘State’’ means any State of 

the United States, the District of Columbia, 

the Commonwealth of Puerto Rico, the 

Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and any 

other territory or possession of the United 

States, or any political subdivision of any of 

the foregoing. 

(h) EFFECTIVE DATE.—This section shall 

apply to any civil action in which trial has 

not commenced before the date of enactment 

of this Act. 

THOMPSON (AND OTHERS) 

AMENDMENT NO 618 

(Ordered to lie on the table.) 

Mr. THOMPSON (for himself, Mr. 

COCHRAN, and Mr. SIMON) submitted an 

amendment intended to be proposed by 

them to amendment No. 596 proposed 

by Mr. GORTON to the bill H.R. 956, 

supra; as follows: 

In section 102(a)(1), after ‘‘commenced’’ insert the following: ‘‘in a Federal court pursuant to section 1332 of title 28, United States 

Code, or removed to a Federal court pursuant to chapter 89 of such title’’. 

In section 102(c)(6), strike ‘‘or’’ at the end. 

In section 102(c)(7), strike the period at the 

end and insert ‘‘; or’’. 

In section 102(c), add the following new 

paragraph: 

(8) create a cause of action or provide for 

jurisdiction by a Federal Court under section 

1331 or 1337 of title 28, United States Code, 

that otherwise would not exist under applicable Federal or State law. 

∑ Mr. THOMPSON. Mr. President, I 

submit on behalf of myself and Senators COCHRAN and SIMON an amendment that would limit applicability of 

the product liability to cases in federal 

court. 

As currently before the Senate, H.R. 

956 would seriously jeopardize the balance between state and federal governments that the Founding Fathers established in the Constitution. States 

have had responsibility for developing 

their own rules of tort law—free of federal interference—for more than 200 

years. In an unprecedented fashion, the 

product liability bill would displace 

state law governing an area always reserved to the states, even when the 

case is brought in state court. I am 

troubled by a Washington knows best 

approach to product liability. 

Even worse, the displacement of 

state law is selective. H.R. 956 prevents 

states from providing less protection to 

defendants, but not from providing 

more. This one-size-fits-all bill overlooks both that individual Americans 

are unique and that states have their 

own right to determine the law that 

should apply to their special situations. 

The bill raises federalism problems in 

a very practical sense. Because state 

law would still govern many aspects of 

product liability law under H.R. 956, 

there would be numerous questions to 

litigate concerning the relationship between the federal law and existing 

state laws. New, different, and inconsistent interpretations of the federal 

law and the state laws would result. 

Under the bill, resolution of these 

issues would be provided from a federal 

court of appeals. Those courts, not 

state courts, would ultimately determine the scope and meaning of state 

law as it interacts with this bill. Moreover, those appeals courts would be deluged with litigation at a time when 

years elapse before trial of a civil case 

in federal court, and when Americans 

rightly demand that federal courts 

apply swift and certain justice in 

criminal cases. 

By contrast, my amendment recognizes that interstate commerce is the 

justification for a federal product liability bill. It is interstate commerce 

that justifies federal court jurisdiction 

in cases brought by citizens of one 

state against citizens of another. I believe that the rationale of the bill corresponds precisely with the reasons underlying federal diversity jurisdiction. 

Despite the claims made, no one 

truly knows the effect of this bill on 

the ability of injured Americans to recover adequate compensation for injuries caused by defective products. Nor 

will anyone know whether competitiveness of American business will be enhanced or whether insurance premiums 

will fall if H.R. 956 is enacted. At the 

same time, the bill would displace 200 

years of law based on actual experience. If the bill failed to achieve its objectives, there would be almost no 

means of unscrambling the federalized 

egg. By contrast, applying the bill only 

to federal court cases would provide an 

opportunity to experiment. If H.R. 956’s 

ideas work, states can adopt these 

rules as their own. Potentially, a preemptive approach might then make 

sense. But if the bill created numerous 

practical problems, well-tested state 

law would remain undisturbed while 

Congress acted to fix the problems in 

the federal law. 

The practical effect of my amendment would be that defendants sued 

out of state in many instances would 

be able to remove their cases to federal 

court and obtain the federal rule. Defendants sued in their home state 

would not be able to remove the case to 

federal court. Thus, those defendants 

would be governed by their own state 

law as applied by their own state court. 

I believe this is to be a much more sensible approach than the one now before 

the Senate, and one consistent with 

the federal system the Constitution 

created.∑ 

DORGAN AMENDMENT NO. 619 

Mr. DORGAN proposed an amendment to amendment No. 617 proposed 

by Mr. DOLE to amendment No. 596 proposed by Mr. GORTON to the bill, H.R. 

965, supra; as follows: 

On page 1, beginning with line 3, strike 

through line 2 on page 8 and insert the following: 

SEC. 107. UNIFORM STANDARDS FOR AWARD OF 

PUNITIVE DAMAGES. 

‘‘(a) GENERAL RULE.—Punitive damages 

may, to the extent permitted by applicable 

State law, be awarded against a defendant in 

a product liability action that is subject to 

this title if the claimant establishes by clear 

and convincing evidence that the harm that 

is the subject of the action was the result of 

conduct that was carried out by the defendant with a conscious, flagrant indifference to 

the safety of others. 

‘‘(b) BIFURCATION AT REQUEST OF EITHER

PARTY.—At the request of either party, the 

trier of fact in a product liability action that 

is subject to this title shall consider in a separate proceeding whether punitive damages 

are to be awarded for the harm that is the 

subject of the action and the amount of the 

award.’’

SNOWE AMENDMENT NO. 620 

Mr. GORTON (for Ms. SNOWE) proposed an amendment to amendment 

No. 596 proposed by Mr. GORTON to the 

bill, H.R. 956, supra; as follows: 

On page 19 strike line 22 through page 20 

line 4 and insert the following new subsection: 

(b) LIMITATION ON AMOUNT.—

(1) IN GENERAL.—The amount of punitive 

damages that may be awarded to a claimant 

in a product liability action that is subject 

to this title shall not exceed 2 times the sum 

of—

(A) the amount awarded to the claimant 

for economic loss; and 

(B) the amount awarded to the claimant 

for noneconomic loss. 

(2) APPLICATION BY COURT.—This subsection 

shall be applied by the court and the application of this subsection shall not be disclosed 

to the jury. 

SHELBY (AND HEFLIN) 

AMENDMENT NO. 621 

Mr. SHELBY (for himself and Mr. 

HEFLIN) proposed an amendment to 

amendment No. 617 proposed by Mr. 

DOLE to amendment No. 596 proposed 

by Mr. GORTON to the bill, H.R. 956, 

supra; as follows: 

At the appropriate place insert the following: 

SEC. . LIABILITY FOR CERTAIN CLAIMS RELATING TO DEATH. 

In any civil action in which the alleged 

harm to the claimant is death and the applicable State law provides, or has been construed to provide, for damages only punitive 

in nature, a defendant may be liable for any 

such damages regardless of whether a claim 

is asserted under this section. The recovery 

of any such damages shall not bar a claim 

under this section. 

DEWINE (AND ABRAHAM) 

AMENDMENT NO. 622 

Mr. DEWINE (for himself and Mr. 

ABRAHAM) proposed an amendment to 

amendment No. 617 proposed by Mr. 

DOLE to amendment No. 596 proposed 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S6013 

by Mr. GORTON to the bill H.R. 956, 

supra; 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.’’

DEWINE AMENDMENT NO. 623 

Mr. DEWINE proposed an amendment 

to amendment no. 617 proposed by Mr. 

DOLE to amendment no. 596 proposed 

by Mr. GORTON to the bill, H.R. 965, 

supra; as follows: 

On page 4 line 11 strike the semicolon after 

the word ‘‘awarded’’ through line 15 and insert a period. 

f 

AUTHORITY FOR COMMITTEES TO 

MEET 

COMMITTEE ON ARMED SERVICES

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Committee on Armed Services be authorized to meet on Tuesday, May 2, 1995, 

at 3 p.m. in open session, to consider 

the nominations of Gen. Dennis J. 

Reimer, USA to be Chief of Staff of the 

Army, and for reappointment to the 

grade of General; and Lt. Gen. Charles 

C. Krulak, USMC to be Commandant of 

the Marine Corps, and for appointment 

to the grade of General. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

COMMITTEE ON FOREIGN RELATIONS

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the 

Senate on Tuesday, May 2, 1995, immediately following the first Roll Call 

vote to hold a business meeting to vote 

on pending items. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

COMMITTEE ON GOVERNMENTAL AFFAIRS

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Permanent Subcommittee on Investigations 

of the Committee on Governmental Affairs, be authorized to meet at 10 a.m., 

during the session of the Senate on 

Tuesday, May 2, 1995 to hold hearings 

on the Navy T–AO–187 Kaiser Class 

Oiler Contract. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

COMMITTEE ON INDIAN AFFAIRS

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Committee on Indian Affairs be authorized 

to meet on Tuesday, May 2, 1995, beginning at 9:30 a.m., in room 485 of the 

Russell Senate Office Building on the 

implementation of the Tribal Self-Governance Demonstration Project authorities by the Indian Health Service. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

COMMITTEE ON LABOR AND HUMAN RESOURCES

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Committee on Labor and Human Resources 

be authorized to meet for a hearing on 

the Nomination of Dr. Henry Foster, 

during the session of the Senate on 

Tuesday, May 2, 1995 at 9:30 a.m. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Subcommittee on Administrative Oversight and the courts, U.S. Senate Committee on the Judiciary, be authorized 

to meet during a session of the Senate 

on Tuesday, May 2, 1995, at 9:00 a.m., in 

Senate Dirksen Room 226, on the costs 

of the legal system. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

SUBCOMMITTEE ON FINANCIAL INSTITUTIONS

AND REGULATORY RELIEF

Mr. GORTON. Mr. President, I ask 

unanimous consent that Subcommittee 

on Financial Institutions and Regulatory Relief, of the Committee on 

Banking, Housing, and Urban Affairs 

be authorized to meet during the session of the Senate on Tuesday, May 2, 

1995, to conduct a hearing on S. 650, 

The Economic Growth and Regulatory 

Paperwork Reduction Act. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

SUBCOMMITTEE ON STRATEGIC FORCES

Mr. GORTON. Mr. President, I ask 

unanimous consent that the Subcommittee on Strategic Forces of the 

Committee on Armed Services be authorized to meet on Tuesday, May 2, 

1995 at 9:30 a.m. in open session to receive testimony on the space programs 

in review of the Defense authorization 

request for fiscal year 1996 and the future years defense program, and to review the Department of Defense’s space 

management initiative. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

f 

ADDITIONAL STATEMENTS 

JAMES D. HENRY, MISSOURI 

SMALL BUSINESS PERSON OF 1995 

∑ Mr. BOND. Mr. President, it is with 

great pleasure that I recognize Jim 

Henry as Missouri’s Small Business 

Person of the Year for 1995. Jim Henry 

is the president and chief operating officer of the R.C. Wilson Co., located in 

St. Charles. 

In years to come, we may refer back 

to 1995 as the year of small business 

owners. More attention is being given 

to the accomplishments of small business persons than at any time since I 

entered government service. Small 

businesses will create 66 percent of all 

new jobs this year. By contrast, large 

companies with over 5,000 employees 

will add only 6 percent of the new jobs. 

Small businesses are the engine that is 

fueling our economy, generating 52 percent of all sales and one-half of the 

gross domestic product. It is, therefore, 

very appropriate that the Small Business Administration has set aside this 

week to honor our Nation’s men and 

women, like Jim Henry, who own and 

operate small businesses. 

Jim Henry’s business, the R.C. Wilson Co., is a collection agency. Most of 

us think of a collection business as one 

that is insensitive at best. However, 

since Mr. Henry purchased the company in 1985, he has worked hard to establish a level of excellence that is essential for success in today’s competitive business environment. His business philosophy puts a special emphasis on the dignity of the consumer, and 

provides professional service and outstanding results while maintaining the 

fine image of the client. 

Jim Henry has been an innovator. 

Over the past 10 years, he has expanded 

and enhanced the delinquent-account 

collection services by fully computerizing his agency. He added opticaldisk storage and on-line capability 

with clients. He has recognized the tremendous changes in the work place by 

adding on-line connections for employees working from home. His business 

was the first of its kind in Missouri to 

add a computerized dialing system. 

In 1985, the R.C. Wilson Co. employed 

25 people with annual billings of $1.25 

million. Today, Jim Henry has 114 employees and bills $4 million a year. His 

success rate is nearly 50 percent better 

than the industry average. 

Jim Henry has succeeded by recognizing the needs of his customers and 

clients, by working hard and by being 

innovative. Equally significant, Jim 

Henry has never forgotten his employees, many have been with the company 

for over 20 years. He has shown us how 

to be an excellent businessman and employer, and I am proud to recognize 

Jim Henry as Missouri’s 1995 Small 

Business Person of the Year.

f 

∑ 

TRIBUTE TO STEVE WITTMAN 

∑ Mr. FEINGOLD. Mr. President, true 

pioneers are rare and special individuals. They inspire us with their vision, 

their energy, their skill and their ability to lead. 

Today I am sad to report the passing 

of one such pioneer, the legendary aviator Sylvester Joseph Wittman. Mr. 

Wittman and his wife, Paula, died in an 

airplane crash on Sand Mountain, in 

northeastern Alabama last Thursday 

night. They were flying in an airplane 

that Mr. Wittman had designed and 

built from their winter home in Ocala, 

Florida to their home in Oshkosh, Wisconsin when the accident occurred. 

Many successful people like to go by 

the book. Steve Wittman, as he preferred to be called, helped write the 

book. His life practically traced the 

history of aviation. He took wing in 

the spit-and-bailing-wire era and never 

stopped contributing to his beloved 

calling even as we began flying farther, 

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