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[Congressional Record Volume 141, Number 73 (Thursday, May 4, 1995)]
[Senate]
[Pages S6155-S6158]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                                  VOTE

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on the Gorton amendment numbered 596 to H.R. 956, the 
product liability bill, shall be brought to a close? The yeas and nays 
are required. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Rhode Island [Mr. Pell] is 
absent on official business.
  I further announce that, if present and voting, the Senator from 
Rhode Island [Mr. Pell] would vote ``aye.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The yeas and nays resulted--yeas 46, nays 53, as follows:

                      [Rollcall Vote No. 151 Leg.]

                                YEAS--46

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Coverdell
     Craig
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Kassebaum
     Kempthorne
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Santorum
     Smith
     Snowe
     Stevens
     Thomas
     Warner

                                NAYS--53

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Cochran
     Cohen
     Conrad
     D'Amato
     Daschle
     Dodd
     Dorgan
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Heflin
     Hollings
     Inouye
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Shelby
     Simon
     Simpson
     Specter
     Thompson
     Thurmond
     Wellstone

                             NOT VOTING--1

       
     Pell
       
  The PRESIDING OFFICER. On this vote, the yeas are 46, the nays are 
53. Three-fifths of the Senators duly chosen and sworn, not having 
voted in the affirmative, the motion is rejected.
  Mr. ROCKEFELLER addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, assuming that this is free time, I 
ask unanimous consent that the Senator from California, Senator 
Feinstein, be allowed to speak for 10 minutes.
  The PRESIDING OFFICER. Time is controlled and equally divided. 
Without objection, the Senator from California is recognized.
  Mrs. FEINSTEIN. I thank the Chair and I thank the Senator from West 
Virginia.
  Mr. President, I have listened carefully over the past weeks of this 
debate--pro and con--on product liability. I am not an attorney, so I 
have tried hard to work through what is fair and what is not. While I 
would like to have an opportunity to vote for cloture on a more 
narrowly crafted bill, I cannot vote for this bill with the Dole 
amendment included. To do so, I believe, would extend the impact of the 
bill far beyond the limited field of product liability, and impose 
major limitations to redress of grievances across the board in all 
civil actions, without the opportunity of Committee hearings in the 
Senate and consideration of how the bill would impact other specific 
areas of the law.
  Anyone who has read ``The Rainmaker,'' the newest best seller, can 
see what impact the Dole amendment would have, for example, in 
insurance cases. Insurance companies would be able to do exactly what 
was done in that book, act in bad faith. And I simply cannot support 
this.
  I believe that Senators Gorton and Rockefeller have worked hard to 
craft a bill with reasonable reforms that could pass this body. I was 
particularly pleased with the compromise reached with the Snowe 
amendment to limit punitive damages to two times compensatory, which is 
now part of this bill. This replaces the original fixed cap of 
$250,000, or three times economic damages, whichever is greater. I 
believe this would be a fair model which takes into consideration both 
women and children whose earnings may be limited or nonexistent.
  I find myself in strong support of other major provisions of this 
bill, as well. Specifically, I support the imposition of a 2-year 
statute of limitations from the time the injury and its cause are 
discovered for a plaintiff to bring a lawsuit. This provision is 
actually more permissive than that in many States, and California. This 
provision is actually victim and plaintiff friendly.
  Two, the imposition of a 20-year statute of repose, an outer time 
limit on litigation involving workplace durable and capital goods. This 
is a fair standard of repose.
  The bill would eliminate product seller's liability--including that 
against wholesalers, distributors, and retailers--for a manufacturer's 
errors. Sellers would remain liable in cases of their own negligence. 
For example, if a seller removed the manufacturer's label from a toy 
that said it is not appropriate for children under 6 years of age, and 
a child was subsequently injured, the seller would be liable.
  The bill would preserve a plaintiff's power to sue one defendant, 
theoretically the deep pocket, for the full amount of economic damages, 
but eliminate such joint and several liability for noneconomic damages, 
such as pain and suffering.
  It would allow either party to offer to participate in alternative 
dispute resolution--something that I very much thought and hoped would 
be part of this bill, and which I believe is an important part, 
especially for the plaintiffs who have small claims.
  The bill would bar recovery of a plaintiff who is more than 50 
percent responsible for causing their accident 
[[Page S6156]] due to intoxication from alcohol or any drug. This puts 
a fair measure of the degree of culpability on a plaintiff in an 
action.
  It would reduce the amount of the judgment against the defendant if 
the product user is found to have misused or altered the product. I 
believe this is a just and fair provision. It would eliminate liability 
of raw material suppliers for medical devices, such as the supplier of 
teflon/dacron, products often used to coat a medical device.
  Finally, the bill would deny an employer at fault in causing a 
workplace injury the right of reimbursement for workers compensation 
benefits from an employee who wins in a suit against a manufacturer.
  The tort liability system has been a particular source of concern to 
many, and that includes everyone: consumers, professional service 
providers, manufacturers, and public agencies, all of whom, in recent 
years, have faced increasing liability insurance costs. Over the last 
40 years, general liability insurance costs have increased at over four 
times the rate of growth of the national economy. American 
manufacturers and products sellers generally pay product liability 
insurance rates that are 20 to 50 times higher than those of their 
foreign competitors. In a global marketplace, that becomes a real 
barrier to competition.
  Many believe that the tort liability system of delivering 
compensation is seriously flawed, requiring high transaction costs to 
deliver compensation that some see as inadequate and others as too 
generous, but which most agree is uncertain and unpredictable.
  Putting aside the size of the judgment for a moment, the transaction 
costs associated with the current product liability system--including 
plaintiff's attorney's fees, defense legal fees, court proceedings and 
other public expenditures, the time of the litigants--are enormous. The 
Rand Institute found that overall transaction costs of the tort system 
actually exceed compensation to plaintiffs.
  Critics of product liability reform, on the other hand, argue that 
however well or poorly the system performs its compensation function, 
it must be preserved and indeed strengthened because of its importance 
as a means of deterring unlawful, careless, negligent conduct in the 
manufacturing of a product.
  I believe the basic bill provides a fair and reasonable balance. Many 
of its provisions are either consistent with or based on California 
law.
  The two key features of the bill that have raised the most concern 
are the cap on punitive damages and the joint and several liability 
provisions.
  I was pleased to work with and support Senator Snowe's amendment on a 
modified punitive damages formula that is responsive to the concern 
raised about the impact on women and children of the punitive damages 
cap in the original bill.
  Instead of linking the punitive damages cap to a formula that is 
lopsided in favor of those with high amounts of lost wages, the 
modified formula links punitive damages to what I consider a fairer 
measure--the full compensation received by the plaintiff.
  This formula is substantially that recommended by both the American 
College of Trial Lawyers and the American Law Institute, and both 
bodies have given a great deal of study and attention to the issue of 
punitive damages.
  Although I would support a bill without a punitive damages cap, I 
have concluded that some reform of this area is needed.
  The American College of Trial Lawyers, for example, commented that 
punitive damages awards ``* * * often bear no relation to deterrence 
and merely reflect a jury's dissatisfaction with a defendant and a 
desire to punish, often without regard to the true harm threatened by a 
defendant's conduct.'' They further note that ``* * * punitive damages 
should be more difficult to obtain and that the amounts of such awards 
should be subject to more control.''
  The Supreme Court, as well, has expressed concern about punitive 
damages that ``run wild,'' and have clarified that it is the job of 
judges to review awards for their reasonableness.
  In a recent law review article, it was noted that in recent years, 
the scope of punitive damages law has broadened considerably as the 
courts have applied them in new fields of law--such as product 
liability, mass tort litigation where punitive damages can be awarded 
repeatedly, and contract law--all areas of the law where punitive 
damages did not traditionally apply.
  As a result, the number of awards has increased significantly. In my 
own State of California, between January 1, 1990, and December 31, 
1994, there were 86 punitive damage jury verdicts in State courts that 
were equal to or greater than $1 million, out of several hundred cases, 
resulting totally in judgments of $1.7 billion. California has one of 
the largest number of punitive damages awards and size of awards in the 
Nation.
  The Gorton substitute amendment, as modified by the Snowe amendment, 
I believe is the right approach. It retains punitive damages, which are 
a powerful tool for deterring conduct which society finds offensive and 
flagrant and, at the same time, ensures that more reasonable awards 
will be set.
  Another area that has been of great concern are the provisions on 
joint and several liability. This provision in the bill is actually 
based on reforms enacted in California in 1986 by ballot initiative.
  It neither appears reasonable nor fair to hold a defendant liable for 
more than their share of the fault just because they are the deep 
pocket or the only available party to be sued. The public policy has 
been that in selecting among parties to bear the burden, pick the deep 
pocket. I do not agree with that.
  Again, I think the approach of the bill, as in California, is the 
fairest compromise, allowing for full economic compensation, but an 
apportioning of noneconomic losses among responsible parties in 
proportion to their level of fault.
  I want to speak for a minute on biomaterials, which impacts the 
growing medical technology sector in my State. In April of last year, 
the New York Times reported that big chemical companies and other 
manufacturers of raw materials, used to make heart valves, artificial 
blood vessels, and other implants, began warning medical equipment 
companies that they intended to cut off deliveries because of fears of 
being joined in lawsuits.
  In essence, many biomaterials suppliers simply will not provide their 
product to medical device manufacturers because such transactions 
involve low returns and a high risk of substantial losses.
  Ms. Peggy Phillips, an attorney with a life-sustaining medical 
device, testified before a Commerce subcommittee and told me 
personally, of her own story. She suffers from sudden cardiac death 
syndrome--a disease where the patient's heart will unexpectedly stop 
beating for no apparent reason. As a result, Ms. Phillips had a life-
saving device implanted in her body called an implantable 
defribillator. Essentially, it functions to shock her heart back to 
life and to maintain a constant heart beat.
  This device and others like it, however, are in jeopardy, because, as 
Ms. Phillips noted, it does not make sense for biomaterial suppliers to 
continue providing those materials for device manufacturers.
  She related a story of one supplier who spent $8 million annually 
defending itself in cases involving an implantable device even though 
that supplier had no role in the design, manufacture or sale of the 
device.
  She noted that sales by all suppliers to the device ``totaled 
$418,000 while sales of this same raw material to all other markets 
totaled $282 million.''
  The provisions of this bill, both preserve access to essential 
supplies and shorten the liability chain so that those who are truly 
responsible for the design, manufacture or sale of a product will be 
the party hauled into court to be held accountable.
  The current State-by-State system of product liability is ever 
changing and filled with conflicting rules it presents, today, I 
believe, an unfair barrier to competition, and creates an 
unpredictability which is neither fair to business nor consumers 
because it translates into less development of new products and higher 
product costs for the consumer.
  It is my hope that I will have an opportunity to vote on a narrow 
bill 
[[Page S6157]] which includes the provisions of this bill on which I 
have stated my support, but which does not include the Dole amendment 
crippling punitive damages in all civil actions.
  The PRESIDING OFFICER. The additional 2 minutes has expired.
  Mrs. FEINSTEIN. Mr. President, I thank the Chair. I thank the leader 
for his courtesy, and I want to thank the two authors of the bill. I 
know they have labored long and hard.
  Mr. DOLE. Mr. President, I will take 2 or 3 minutes, and I think the 
Senator from Utah wishes to speak, and maybe others. There will be one 
more cloture vote on the substitute amendment.
  Mr. HOLLINGS. Will the Senator yield? We will have our time? I know 
the majority leader is talking on leader's time.
  Mr. DOLE. We each have 11 minutes.
  The PRESIDING OFFICER. The minority time of 11 minutes has expired; 
the majority leader has time remaining.
  Mr. HOLLINGS. Are we talking about those for and against the bill? 
Are we deemed the minority side? I think by the recent vote we would be 
the majority side.
  I'll be glad to yield to the majority leader. I just wanted to have 
time.
  The PRESIDING OFFICER. The Senator from West Virginia yielded time to 
the Senator from California, and the time of the minority has expired.
  Mr. DOLE. We will work it out. We will just have to delay the vote. 
We have 10 minutes on this side.
  Mr. HOLLINGS. Ten minutes.
  Mr. DOLE. Maybe it will not take quite 10 minutes. We had somebody 
that wanted to leave at 2 o'clock. We will work it out.
  Mr. HOLLINGS. We will work it out. We have regular order at 2 
o'clock--another vote.
  Mr. DOLE. We will delay it a few minutes so that the Senator will 
have time.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. DOLE. I wanted to remind people before the next cloture vote that 
83 percent of the American people want to reform our legal system. They 
want to eliminate abusive, large damage awards that benefit only 
lawyers and not the public, and they want commonsense, not dollars and 
cents, legal reform.
  Who would have thought that 2 weeks ago a majority of the Senate 
would vote to extend punitive damages to all civil cases? It would have 
been hard to believe 2 weeks ago that a majority of the Senate would 
vote to add medical malpractice to the bill. It would have been hard to 
believe 2 weeks ago when we started on this bill that a majority in the 
Senate had proved by its vote that it wants to improve the legal system 
so that it benefits a majority of the Americans and not a majority of 
the trial lawyers.
  Do not forget, with the votes we have been able to pretty much meet 
what the House did in a bipartisan way in the Contract With America. 
The vote in the House was 265 to 161. We had a lot of Democrats and a 
lot of Republicans come together and respond to the voices of the 
American people.
  For the first time in 10 years, we have broken the stranglehold of 
the tort lawyers. We have heard the voices of the American people and 
passed amendments that protect entities as varied as small businesses, 
Girl Scouts, churches, Little Leagues, firefighters, and policemen.
  For all this endorsement of change, the forces of status quo remain 
as strong as ever. They continue to object and delay, and our 
constituents pay more in the cost of this gridlock. The cost is steep.
  Let me remind the Senate and the American people of the outrageous 
cost of our legal system: It adds about $8 to $11.50 to a dose of DPT 
childhood vaccine; it adds $20 to the cost of a $100 stepladder; it 
adds $100 to the price of a $200 high school football helmet; and $500 
to the price of a new car.
  Experts have estimated that without reform of our legal system, it 
costs every American $1,200, or $4,800 for a family of four. That is a 
cost of $300 billion per year, a tax on the American people. Any wonder 
why the American people want change and want Members to make as many 
changes as we can?
  I do not have any anticipation that there will be a sudden switch and 
we will get cloture on the second vote. I think there were 46 voted for 
cloture--44 Republicans, 2 Democrats--and the balance who voted were 
opposed to cloture. There will be another cloture vote in the next 15 
minutes. There is an opportunity for those who may have not fully 
understood the import or the impact of the vote ``yes'' on this cloture 
vote.
  It seems to me if we are going to reform our legal system we have a 
pretty good package here. Not everything people wanted is in it, but it 
is a pretty strong package. We owe it to the American people, in my 
view, to invoke cloture on this bill and then proceed to pass the 
substitute as amended.
  If that fails, there will be a substitute offered by the Senator from 
Washington and the Senator from West Virginia. But I think we have one 
last opportunity here to say that we are not doing business as usual. I 
hope that my colleagues will grab that opportunity. I yield the 
remainder of my time to the Senator from Utah.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, what is the parliamentary situation now? 
How much time is on either side?
  The PRESIDING OFFICER. The majority side has 6 minutes 52 seconds; 
the minority time is expired. The time for voting was earlier extended 
to 2 minutes after 2 o'clock.
  Mr. HOLLINGS. Is the Senator from South Carolina the majority or the 
minority? We have not clarified that. The time was supposed to be 
equally divided, and we have not said a word on this side.
  Mr. DOLE. Five minutes?
  Mr. HOLLINGS. I don't know if I need 5 minutes: I am being persuaded 
by my colleagues they have heard enough from me.
  Mr. DOLE. I am happy to yield 5 minutes of our time. That would leave 
2 minutes to the Senator from Utah.
  Mr. HOLLINGS. I will take 2 minutes.
  Mr. President, right to the point. We assume that the contention of 
the sponsors of this bill is that we need tort reform. This contention, 
however, has been totally contradicted by the data that have been 
collected on the product liability system. I will go right to the heart 
of the matter. Of all civil claims filed in the United States of 
America, 9 percent represent tort claims; and of all the tort claims 
filed, 4 percent of that 9 percent represent product liability, the 
subject matter at hand.
  If they really want to talk reform, they would obviously go to 
automobile accidents and many other tort cases, which represent the 
overwhelming majority of tort cases filed, not product liability. That 
refutes that particular contention.
  They contend, ``Well, wait a minute, there is a litigation 
explosion.'' That was refuted at all the hearings, and studies by the 
Rand Corp., the General Accounting Office, and Prof. Marc Galanter of 
the University of Wisconsin. What these studies have shown is that the 
fact of the matter is that product liability claims now are in a 
diminishing scale. That is why they say at the State's level, ``Look, 
we do not have a problem. We oppose this measure.'' Both the 
Association of State Legislatures, and the Association of State Supreme 
Court Justices are on record as opposing this bill.
  The American Bar Association, the Association of State Supreme Court 
Justices, the State attorneys general, everybody connected with the law 
on this particular score comes, testifies, and opposes this measure for 
the simple reason, No. 1, they do not really find a crisis, or cause 
for Federal action.
  And in the context of eliminating duplicity and confusion, the 
proponents of this bill will actually add to the confusion, add to the 
complexity, by enunciating rules of guidelines at the Federal level, to 
be interpreted and administered by the 50 States in accordance with 
their own law. However, their refusal to establish a Federal cause of 
action is evidence that they do not believe in their own bill.
  This bill, in fact, is a manufacturers bill--but they exempt 
themselves. I see the Chair now is limiting my time. It just goes 
against any kind of sound procedure.
  If everybody is in step, Senator, with the contract, this is exactly 
opposed to the contract. The contract says that 
[[Page S6158]] the best government is that closest to the people.
  They keep quoting Jefferson around here, and instead of block grants 
like they have for crime and block grants for welfare back to the 
States, block grants for housing back to the States, here they want to 
take the authority, the 200-some-year authority from the States and 
relegate it to the Federal bureaucrats.
  I am finally getting in step with the contract. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today to urge my colleagues to vote 
in support of cloture on the Gorton substitute for the product 
liability bill as amended.
  The American people support these commonsense changes to this bill. A 
majority of the Senate has supported these commonsense changes to the 
bill. But defenders of the status quo are now filibustering the bill 
and filibustering the changes Americans want.
  Who benefits if they win? Some--just some--of our Nation's trial 
lawyers benefit: those who want to keep the status quo.
  Who benefits the most in the status quo? Who has the largest stake in 
maintaining this out-of-control civil justice system and its runaway 
punitive damages? I think most of my colleagues know who. Some of our 
Nation's trial lawyers. And I believe most Americans understand that, 
as well.
  The opponents of change may want to shroud this issue under a 
smokescreen of high-blown rhetoric, but when the smoke clears we will 
see some of the Nation's trial lawyers laughing all the way to the 
bank. Who else could defend a system where an undisclosed $601 paint 
refinishing of an automobile results in a $2 million punitive damage 
award? Who else could defend a system where an insurance agent's 
misrepresentation about a $25,000 policy could result in a jury award 
of $25 million in punitive damages?
  We could go on and on. Now, the fact of the matter is, I am not 
talking about all trial lawyers, just some who literally have milked 
this system dry.
  Everybody knows we have to make these changes. There are excesses in 
the system, and these excesses are ones that only trial lawyers, some 
trial lawyers, could love. Runaway punitive damages is one of those 
excesses.
  I urge our colleagues to vote for cloture on this next vote and help 
us to bring about the change that all America wants and only a few 
trial lawyers want to avoid.
  Mr. President, I rise today to urge my colleagues to support cloture 
on the Gorton substitute to the product liability bill, as amended. The 
American people support commonsense change in our legal system. But the 
stubborn defenders of the status quo are now filibustering the change 
Americans want. Who benefits? Some of our Nation's trial lawyers, 
that's who.
  As I have mentioned earlier, this bill represents the culmination of 
a longstanding, bipartisan effort to correct some of the more egregious 
faults of our product liability and civil justice systems. The defects 
in our product liability system have been long recognized.
  We also passed a provision to apply punitive damage reform to all 
civil cases whose subject matter affects commerce. As I noted during 
that debate, punitive damage awards have grown out of control in this 
country. They have been out of control in all civil litigation--not 
just product liability cases. Even opponents of this legislation have 
pointed out time and again that excessive punitive damage awards in 
this country are most heavily evident in nonproduct liability cases. I 
agree. That is why I cosponsored the Dole punitive damages amendment, 
and why I was so pleased that a majority of my colleagues supported it.
  That amendment improves the underlying bill by addressing more 
completely the crippling litigation costs that have been imposed not 
only on our product manufacturers but on cities and counties, volunteer 
organizations, service providers, small businesses, and others.
  We have also added medical malpractice reform to the Gorton 
substitute.
  Mr. President, I have listened as the champions of the status quo 
have mislabeled this bill as a manufacturer's bill. It is a pro-
consumer bill. I have listened as these opponents of change in our 
civil justice system talk about the bill as narrowly drawn, covering 
only some participants in our national economy, even as they, 
ironically, resist efforts to have some provisions of the bill extended 
to cover all civil actions. These comments are, with all due respect, 
diversionary in their effect.
  Who benefits the most from the status quo? Who has the largest stake 
in maintaining, in place, this out of control civil justice system and 
a runaway punitive damages system? I think most of my colleagues know 
who--some of our Nation's trial lawyers. I believe most Americans 
understand that, as well.
  The opponents of change may wish to shroud this issue under a 
smokescreen of high blown rhetoric. But when the smoke clears, there 
are some of the Nation's trial lawyers, laughing all the way to the 
bank. Who else could defend a system where an undisclosed $601 paint 
refinishing of an automobile results in a $2 million punitive damage 
verdict? Who else could defend a system where an insurance agent's 
misrepresentation about a $25,000 policy could result in a jury award 
of $25 million in punitive damages? Who else could defend a $38 million 
punitive damage verdict over the handling of a car loan? Who else could 
defend a system where liability concerns impede volunteer organizations 
and are so costly to them?
  Now, I am not talking about all trial lawyers, and I understand the 
vital role lawyers play in vindicating individual rights. But lets face 
it: there are excesses in the system only some trial lawyers could 
love.
  Runaway punitive damages are one of those excesses. The pending 
measure fixes this problem, and others. I urge a vote for cloture and 
allow us to give the American people the commonsense legal reform they 
want.

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