S6068 CONGRESSIONAL RECORD — SENATE May 3, 1995

subjective noneconomic loss, each defendant would be responsible only for

his or her proportionate share of harm

caused.

This amendment is fair and consistent with principles of individual responsibility. It will put an end to the

gamble taken by the trial bar when

they join everyone in sight of an injury.

Let me just say in conclusion, Mr.

President, having chaired a number of

hearings years ago as chairman of the

Courts Subcommittee of the Judiciary

Committee, I had a hard time ever getting any plaintiff’s lawyer to make a

good argument in support of joint and

several liability, because it is obviously not just. It violates any standard

of American justice to require that

someone who contributed little or

nothing, just a little bit of what may

have caused the harm, to end up getting assessed 100 percent of the damages simply because they are able to

pay. That is not just. That does not

have anything to do with civil justice.

It is astonishing to me, Mr. President, that our tort system in this country has evolved to the point where essentially innocent parties can end up

being assessed all of the damages for a

harm that they did not cause.

That is what the Abraham-McConnell

amendment will be about when it is

subsequently offered. I hope that I will

be able to come back to the floor and

speak again on this amendment at the

appropriate time.

I wish to commend the occupant of

the chair, the Senator from Michigan,

for his great leadership in this tort reform field. He has been in the Senate

now about 4 months, and I cannot remember anybody who has taken a subject and made a difference on it any

more quickly than he has. I have enjoyed working with him.

We have another issue that we may

be talking about later in the debate,

something called an early offer mechanism, which I do not have the time to

address at this point.

I just want to say how much I have

enjoyed working with him. We are

greatly in hope that the Senate will decide that changing the way we handle

joint and several liability will be in the

best interest of the American people.

Mr. President, I believe no one is

about so speak. I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mrs. MURRAY. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER (Mr.

KYL). Without objection, it is so ordered.

Mrs. MURRAY. Mr. President, I ask

unanimous consent that I be allowed to

speak as in morning business for approximately 2 minutes.

The PRESIDING OFFICER. Without

objection, it is so ordered.

NOMINATION OF DR. HENRY FOSTER, TO BE SURGEON GENERAL

Mrs. MURRAY. Mr. President, I say

to Members of the Senate, the Senate

Labor and Human Resources Committee has just a few minutes ago concluded its testimony from Dr. Foster,

who is the nominee for Surgeon General. I wanted to take this opportunity

to personally thank Senator KASSEBAUM, chair of that committee, for

doing an outstanding job of giving Dr.

Foster the opportunity to present himself to the Senate and to the United

States of America. I felt that the hearing was very fair and very well conducted by both Senator KASSEBAUM and

all the members of the committee.

I also wanted to take this opportunity to commend Dr. Foster who, for

the last several months, has been a person we have only known as a cardboard

cutout; who, in the last day and a half

has, I believe, really presented a very

strong image to this country of a man

who is caring, who is compassionate,

and who can be a very forthright Surgeon General, to speak to the issues of

the day that are of concern to so many

of us; who will be a person, I believe,

who will speak to women’s health care

issues in a way that needs to be done in

this country today; who will speak to

the issue of teen pregnancy and provide

leadership; and a man who I think is a

person who we can all look up to in

terms of being a model public servant;

who understands that we cannot just

sit in our houses and close our blinds

and shut our doors, but we need to personally get out and work with young

kids today and be a personal role model

for all of them.

I think he has done an outstanding

job of answering all the questions that

have been brought to him, and I believe

that both Dr. Foster and the committee deserve a debt of gratitude from the

Senate.

I look forward to having an expeditious vote on his nomination and to

being allowed, as a U.S. Senator, to

vote up or down on his nomination

very soon on the floor of the Senate.

I thank the Chair and yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. ABRAHAM. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

fThe Senate continued with the consideration of the bill.

AMENDMENT NO. 600 TO AMENDMENT NO. 596

(Purpose: To provide for proportionate liability for noneconomic damages in all civil

actions whose subject matter affects commerce)

Mr. ABRAHAM. Mr. President, I ask

unanimous consent to lay aside the

pending Thompson amendment so I

may offer an amendment.

The PRESIDING OFFICER. The

clerk will report.

The legislative clerk read as follows:

The Senator from Michigan [Mr.

ABRAHAM], for himself, Mr. MCCONNELL

and Mr. KYL, proposes an amendment

numbered 600.

Mr. ABRAHAM. I ask unanimous

consent further reading be dispensed

with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

Strike out section 109 and insert in lieu

thereof the following new section:

SEC. 109. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.

(a) FINDINGS.—The Congress finds that—

(1) because of the joint and several liability doctrine, municipalities, volunteer

groups, nonprofit entities, property owners,

and large and small businesses are often

brought into litigation despite the fact that

their conduct often had little or nothing to

do with the harm suffered by the claimant;

(2) the imposition of joint and several liability for noneconomic damages frequently

results in the assessment of unfair and disproportionate damages against defendants

that bear no relationship to their fault or responsibility;

(3) producers of products and services who

are only marginally responsible for an injury

risk bearing the entire cost of a judgment for

noneconomic damages even if the products

or services originate in States that have replaced joint liability for noneconomic damages with proportionate liability, because

claimants have an incentive to bring suit in

States that have retained joint liability; and

(4) the unfair allocation of noneconomic

damages under the joint and several liability

doctrine disrupts, impairs and burdens commerce, imposing unreasonable and unjustified costs on consumers, taxpayers governmental entities, large and small businesses,

volunteer organizations, and non-profit entities.

(b) GENERAL RULE.—Notwithstanding any

other section of this Act, in any civil action

whose subject matter affects commerce

brought in Federal or State court on any

theory, the liability of each defendant for

noneconomic damages shall be several only

and shall not be joint.

(c) AMOUNT OF LIABILITY.—

(1) IN GENERAL.—Each defendant shall be

liable only for the amount of noneconomic

damages allocated to the defendant in direct

proportion to the percentage of responsibility of the defendant (determined in accordance with paragraph (2)) for the harm to the

claimant with respect to which the defendant is liable. The court shall render a separate judgment against each defendant in an

amount determined pursuant to the preceding sentence.

(2) PERCENTAGE OF RESPONSIBILITY.—For

purposes of determining the amount of noneconomic damages allocated to a defendant

under this section, the trier of fact shall determine the percentage of responsibility of

each person, including the claimant, responsible for the claimant’s harm, whether or not

such person is a party to the action.

(d) 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) give rise to any claim for joint liability;

(3) supersede or alter any Federal law;
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6069

(4) preempt, supersede, or alter any State

law to the extent that such law would further limit the applicability of joint liability

to any kind of 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 of 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.

(e) FEDERAL COURT JURISDICTION NOT ESTABLISHED.—Nothing in this section shall be

construed to establish any jurisdiction in the

district courts of the United States on the

basis of section 1331 or 1337 of title 28, United

States Code.

(f) 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 ‘‘commerce’’ means commerce

between or among the several States, or with

foreign nations.

(3)(A) The term ‘‘economic damages’’

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 obtaining replacement services in the home

(including, without limitation, 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 damages’’ shall

not include noneconomic damages.

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

cognizable wrong or injury for which damages may be imposed.

(5)(A) The term ‘‘noneconomic damages’’

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 damages’’

shall not include economic damages or punitive damages.

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

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

deter such person or entity, or others, from

engaging in similar behavior in the future.

(7) 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.

Mr. ABRAHAM. Mr. President, the

amendment I have proposed with my

esteemed colleague from Kentucky

would extend the joint liability reforms of S. 565 to all cases whose subject matter affects interstate commerce. This extension is necessary, in

our view, to realize the basic goals of

the bill.

In its traditional form, the doctrine

of joint liability allows the plaintiff to

collect the entire amount of a judgment from any defendant found to be

at least partially responsible for the

plaintiff’s damages.

Thus, for example, a defendant found

to be 1 percent responsible for the

plaintiff’s damages could be forced to

pay 100 percent of the plaintiff’s judgment.

This example is not merely theoretical. In the case of Walt Disney World

versus Wood, the plaintiff sought recovery of damages resulting from a collision between her go-kart and another

driven by her fiancee. The jury found

the plaintiff 14 percent responsible, and

her fiancee 85 percent responsible, for

the plaintiff’s damages. Thus, between

them, the plaintiff and her fiancee

were 99 percent responsible for her

damages.

Unfortunately for Disney, however,

the jury found it 1 percent responsible

for the plaintiff’s damages and, under

the doctrine of joint liability, Disney

was forced to pay 86 percent of the

plaintiff’s judgment.

The Disney case underscores the fact

that unreformed joint liability forces

defendants to pay judgments on the

basis of their resources, not their responsibility. Thus, a largely blameless

defendant can be punished for the actions of a truly culpable defendant simply because the former defendant has

greater assets than the latter.

This unfairness is aggravated when

noneconomic damages are awarded.

Noneconomic damages are awarded

to compensate plaintiffs for subjective

harm, like pain and suffering, emotional distress, and humiliation. Since

noneconomic damages are not based on

tangible losses, however, there are no

objective criteria for calculating their

amount. As a result, the size of these

awards often depends more on the luck

of the draw, in terms of the jury, than

on the rule of law.

Thus, when defendants are held jointly liable for noneconomic damages—as

they are under the unreformed version

of joint liability—they can be forced to

pay enormous sums for unverifiable

damages they did not cause.

Apparently forgotten amid all this is

the old idea that the law is supposed to

yield predictable, fair, and equitable

results.

In cases where the doctrine of joint

liability is applied, then, we depart

from the fundamental concept, rooted

in simple justice, that tort law liability should be based on fault. This departure yields a number of undesirable

consequences.

First, determining liability on a

basis other than fault often leaves people with an overwhelming sense of

helplessness. No matter how careful

they might be, actors are no longer

masters of their own fate with regard

to the extent of their exposure to liability.

For example, one of my cousins operates a baseball batting cage. Patrons of

the cage pay money to swing at pitches

hurled by a pitching machine. Obviously, a fast-pitched baseball can cause

injury, so the small business posted

warnings that the cage should only be

used by experienced batters, and that

only one person should be in the batter’s box at a time. On one occasion,

however, two patrons squeezed into the

batter’s box, including one who had

never hit a fast-pitched baseball before.

The inexperienced batter was struck by

the ball and injured. The business was

sued for this injury, although the

plaintiff and her accomplice were

largely responsible for it.

Thus, because of joint liability, and

despite their best efforts to act responsibly, my cousin’s business faced the

prospect of paying for all the plaintiff’s

damages.

A second and related point is that

basing liability on criteria other than

fault erodes incentives for responsible

behavior.

As Karyn Hicks has explained in a

leading law review article,

[u]nder joint and several liability, whether

the actor is 1 percent responsible or 100 percent responsible for an injury, his actual

cost potential for involvement in the activity will always be the same. He will, therefore, have little incentive to expend his resources in accident avoidance behavior, such

as equipment maintenance or taking the

time to act carefully, if * * * he will still

have to pay the same as he would if he had

made no expenditure to avoid the accident in

the first place.

Thus, by reducing or eliminating an

actor’s reward for acting carefully, we

likewise reduce or eliminate the incentive for shouldering the extra costs associated with careful conduct. The result, of course, is more accidents and

injuries.

In truth, Mr. President, to the extent

that joint liability requires parties to

provide compensation for harms they

did not cause, it acts like an accident

insurance system. But this system is

remarkably inefficient. Less than half

of every dollar paid out in damage

awards goes to the injured party—the

remainder goes to court costs and attorney fees.

Of course, the costs imposed on defendants by unreformed joint liability

are not limited to damage awards. In

case after case, deep pockets organizations and individuals are made defendants for no reason other than their financial resources. For example, George

McGovern operated a country inn that

was sued by a man who got into a fistfight in its parking lot.

Mr. McGovern had a security man on

duty at the time, and he managed to

win the case. But he only did so after,

in his words, ‘‘the expenditure of a

great deal of time, effort and money.’’

In another case, a McDonald’s restaurant was sued by a driver whose car

was struck by a car driven by a drivein patron of the restaurant.

The plaintiff argued that McDonald’s

had been negligent by failing to warn

its patron of the dangers of eating

while driving. The case was a patent
S6070 CONGRESSIONAL RECORD — SENATE May 3, 1995

attempt to extort a settlement from

McDonald’s by means of the threat of

joint liability, but McDonald’s prevailed only after 3 years of costly litigation.

Although not reflected in any damage award, the costs of these two cases

should be attributed to the lure of joint

liability because, absent that doctrine,

the cases almost certainly would not

have been brought.

Now, some may ask why we should

reform a doctrine that has been around

as long as joint liability. That is a fair

question, but it has a ready answer.

Joint liability was designed for a fundamentally different body of law than

that in place today. As Ms. Hicks explains, ‘‘the evolution of joint liability

took place at a time when the contributory negligence of the plaintiff

was a complete defense to any negligence action.’’ But the vast majority

of States have now abolished contributory negligence as a complete defense.

By failing to reform joint liability as

well, we have moved, as Ms. Hicks explains, ‘‘from a situation where a

wrongdoer compensated an innocent

victim to one in which an actor responsible to a degree as minute as one percent * * * may, in fact, be confronted

with paying the entire damage costs to

a plaintiff who may have been considerably more responsible and in a far

better position of cost avoidance than

was he.’’ Thus, Mr. President, joint liability reform is necessary to bring the

doctrine into alignment with the reforms made to related, background

principles of law.

S. 565 would reform joint liability in

the product liability context by allowing it to be imposed for economic damages only, so that a defendant could be

forced to pay for only his proportionate

share of noneconomic damages. As a

result, plaintiffs would be fully compensated for their out-of-pocket losses,

while defendants would be better able

to predict and verify the amount of

damages they would be forced to pay.

This reform thus would address the

most pressing concerns of plaintiffs

and defendants alike.

But this reform needs to be extended

beyond the product liability context,

because entities other than manufacturers and sellers are among those

hardest hit by unreformed joint liability.

The impact of our current system on

nonprofits and local governments, for

example, is well-documented: Individual Little League Baseball leagues

have seen their liability insurance premiums soar 1,000 percent over the past

5 years alone; the city of New York

now pays out almost $270 million in

tort awards each year, which is double

the amount of funding for city libraries; and well-grounded fears of liability

thwart the recruitment efforts of volunteer organizations.

Extending this bill’s joint liability

reforms beyond the product liability

context is also critical to the bill’s

goals of enhancing economic growth

and competitiveness.

Small businesses are the engine of

that growth, generating 2 of every 3

new net jobs in our economy since the

early 1970’s. To a significant extent,

however, small businesses are forced to

direct their resources not to job creation, but to costs associated with lawsuits.

Liability insurance premiums paid by

American businesses, for example, are

now 20 to 50 times higher than those

paid by foreign firms.

But the bill as currently written fails

to pare these costs adequately because

many if not most of the lawsuits involving small businesses do not concern product liability.

Instead, small businesses are routinely ensnared in suits for slip and

fall, misconduct by employees, patrons,

and the like. Since a majority of small

business owners take home less than

$50,000 per year a determination of

joint liability in even one such lawsuit

can cripple a small business or force it

to close its doors. To be serious about

enhancing economic growth, we have

to address that threat.

Mr. President, it is clear that the

American people, men and women

alike, demand joint liability reform.

According to a recent poll conducted

by the Luntz Research Co., 71 percent

of Americans believe that joint liability reforms should be extended to all

lawsuits, not just product liability

cases.

In summary, Mr. President, we can

no longer afford to overlook the heavy

burden that unreformed joint liability

imposes on our society. I say our society, rather than simply ‘‘defendants,’’

because we all know that the costs of

our current system are passed on to all

of society, rich and poor alike, in the

form of lost jobs, higher taxes, reduced

community services, and rising prices.

Without our amendment, we can address only a small fraction of those

costs. With it, we can make a difference in the lives of all Americans.

Mr. President, I yield the floor.

Mr. President, I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. GORTON. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. GORTON. Mr. President, this is

merely in the nature of an announcement to confirm what I had said earlier. At approximately 5:45 I will ask

for regular order at the direction of the

majority leader and move to table the

Thompson amendment. And I am certain there will be a rollcall on that motion.

So I would urge Members who wish to

speak to the Thompson amendment, or

for that matter the Abraham and

McConnell amendment, to do so. The

majority leader is working with the

Democratic leader with respect to what

will happen after that time and for tomorrow. But for the attention of all

Members, at approximately 5:45 there

will be a vote on the Thompson amendment.

Mr. President, I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. HEFLIN. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. HEFLIN. Mr. President, I have

just read a copy of the AbrahamMcConnell-Kyl amendment. I would

like to discuss some of the language

that I find in here.

Basically it says: Notwithstanding

any other section of this act, in any

civil action whose subject matter affects commerce brought in a Federal or

a State court on any theory that liability of each defendant for economic

damages shall be several only and shall

not be joined.

So this is a much broadening of the

issue than what was in the underlying

product liability bill. It says in any

civil action whose subject matter affects commerce—it does not say ‘‘interstate commerce,’’ it says ‘‘commerce’’—brought under any theory. I

want to include that in my discussions

with Senator THOMPSON on what is a

civil action. We concluded that any action which is not a criminal action is a

civil action.

This in effect preempts State law.

State laws have many aspects that affect noneconomic damages. Noneconomic damages are defined herein

as meaning subjective nonmonetary

damages resulting from harm, including pain, suffering, inconvenience,

mental suffering, emotional distress,

loss of society companionship, loss of

consortium, injury to reputation, and

humiliation. That would mean, for example, that all suits that we might be

talking about that are nonmonetary,

including libel, defamation, slander,

etc.

If there is one or more publication by

a writer or contributing writer, all of

those, then under this amendment you

would have to pick the percentage of

harm or the percentage of fault on each

defendant. It would also mean that in

the punitive damages in calculating

the Snowe amendment, which is now a

part of the underlying bill, you would

have to consider this. And you would

have to pick out each defendant. There

is also the provision that does not

allow for you to introduce any evidence

of punitive damage or wrongdoing in a

case at chief.

So I gave the illustration this morning of the truck company that knows

that the driver has had four drunk

driving charges, two reckless driving

charges, and, therefore, you could not
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6071

prove that evidence because that would

be punitive as to the driver and as to

the owner of the trucking company,

and all that might be the owner of the

trucking company, in calculating the

damages. You would not be able to do

it. It might well be that they say,

‘‘Well, the truck owner has just 5 percent of the damage,’’ because the jury

did not know anything about the fact

that he had knowledge of those four

convictions, and, therefore, it can affect it in a lot of different ways.

But I want to get also into what this

includes. I just read it. I have not had

time to do adequate research. But I do

have questions, and I think they ought

to be answered. Does this include noneconomic damages such as pain and

suffering, or the emotional distress

that could occur to an American with a

disability or a State law that has certain disability acts? Does this apply to

those States that have laws against

sexual harassment? Sexual harassment

is not a type of injury that you show in

economic terms. It is a subjective damage that you have to evaluate. The discrimination cases that come up in employment, sometimes you may be able

to prove monetary damages on that.

But there are other elements of emotional distress, pain and suffering, and

humiliation.

Then I also wonder what about antitrust litigation under a State law?

There are so many unanswered questions about how this would apply. You

wonder to what extent it would go.

This amendment particularly seems to

be, as it was under the product liability

underlying bill, directed toward the

non-wage earner, the retired person,

the elderly who are going to spend,

hopefully, their days in their retirement, their sunset years in life with

emotional peace and enjoyment. And

yet they are deprived of that, and you

have someone over here that you cannot even prove the gross negligence or

the recklessness or the wanton conduct

in a trial in chief in trying to calculate

whatever the noneconomic damages

might be.

The woman who is deprived of the

right to bear children comes under

noneconomic damages—whether or not

it occurs from a product or whether it

would occur from the automobile accident or any type of cause of action that

might arise pertaining to this amendment.

This is a very broad, sweeping

amendment that covers so many aspects of the tort laws of the States, and

we have had, I suppose, no hearings on

this, as far as I know. I do not know

whether this amendment was ever the

subject of a hearing beyond the scope

of the underlying product liability bill.

I would like to ask the distinguished

chairman of the Commerce Committee,

were there any hearings ever held outside of product liability as to the effect

of eliminating joint and several liability for noneconomic damages for all

civil actions?

Mr. HOLLINGS. On behalf of the distinguished chairman of the Commerce

Committee, Senator PRESSLER, the answer is no.

Mr. HEFLIN. I still refer to the Senator as my chairman, but I realize that

all of a sudden we have had change.

So no hearings have been held in regards to the sweep of this. I would like

to also ask the ranking member, have

any hearings been held as to the broad

sweep and the encompassing aspects of

all civil actions pertaining to punitive

damages outside of the field of product

liability?

Mr. HOLLINGS. No. What is particularly disturbing, in the accelerated

hearings—I say accelerated—actual

markup took place, when and even before, unbeknownst, I would say, to

most members of the committee they

added on the matter of rental cars,

they added on the matter of component

parts, and a lot of other things. And it

has been like a sheep dog with the

taste of blood, gobble up anything.

Anything you can think of, put it on.

We have had no hearings on any of

this.

Mr. HEFLIN. In other words, we have

an expansion to all civil actions on any

theory as to changes in the area of punitive damages and the elimination of

joint and several liability. And the

amendment does not limit its application to interstate commerce. We as a

deliberate body, the U.S. Senate, are

going to attach our stamp of approval

to language that has such a far-reaching, encompassing aspect without having a single witness or law professor or

defense lawyer, or anybody to advise us

as to its potential effect.

I do not know where and how it affects Americans under the Disabilities

Act or a State law that has a disability

act. I do not know how it affects—and

from this one cannot tell—what it does

pertaining to all of the various State

laws dealing with the environment.

There are some States that have had

Superfund-type cleanup laws. What

happens where there are numerous parties which might have contaminated

the environment?

It certainly seems to me that these

things ought to be subject to some

hearings and some investigations rather than coming here without having

really any great knowledge as to its ultimate impact.

Now, it seems to me that this matter

of rendering a separate judgment

against each defendant as to the

amount to be determined, pursuant to

the preceding sentence, which is that

they be in direct proportion to the percentage of responsibility of the defendant.

Now, in a trial of a case where you

might have 10, 15, or more defendants,

there are really no standards, no real

directions that are given as to how

you, in effect, will determine the placing of damages, no real instructions or

standards, or various criteria to be

used.

There are just so many unanswered

questions, it seems to me that the Senate ought to give certainly a lot of

careful thought to this amendment before we move forward.

The overall concept in the past has

been that the wrongdoers, if a judgment is obtained, do the apportionment of the damages amongst themselves. Some States have what they

call contribution among joint tort

feasors. This has not been a real problem that I have heard of any great consequence—and I practiced law for 25

years—where there were those who

really suffered as a result of joint tort

feasor action. There may be some illustrations and there may be some instances to be pointed out, but I think

they would be rare, indeed. Of course, if

a person does not have any money, and

the person who is injured only has a

judgment against somebody that does

not have any money, he cannot collect.

The injured party is left holding the

bag. He is the one who is really suffering. In other words, what you are doing

with this amendment is benefiting the

wrongdoer.

Now, under the underlying bill, you

also have this matter of determining

the percentage of fault. You have the

situation of the employer’s responsibility, co-employee’s responsibility, and

in the underlying bill, which is designed and it seems to be for such an

advantage, that the harm can be placed

against a nonparty. He does not have

to be a defendant. You come up with

somebody. And there are a lot of people

you cannot sue. They are in bankruptcy, and so therefore, if they are in

bankruptcy they have no money. Everybody wants to put all the fault off

on him, on the person that might be in

bankruptcy. Sometimes you cannot get

service on someone in order to file a

suit. So there are all sorts of considerations that should given to the impact

of this far reaching amendment.

This underlying bill, seemingly, in

determining the fault of the employer

and the co-employee, is designed to

give a particular emphasis to that. And

it has language in the bill which says

the last issue that shall be presented to

the jury is the issue of the amount of

fault that falls on the co-employee or

the employer.

So you, therefore, try to have that

fresh in the minds of the jury rather

than somebody being able to present

the case in a manner which they consider to be the proper way to do it. It

ends up that you are required to try to

emphasize and put the emphasis on the

employer’s fault, the coemployee’s

fault. And in most States you cannot

sue the coemployee, who cannot be a

party to the lawsuit because the employer is protected by workmen’s compensation and the coemployee is protected by workmen’s compensation.

So, all of these things are involved in

this amendment which to me raises

many questions. It just seems to me

that it is already faulted with the fact

that we have got that in the underlying
S6072 CONGRESSIONAL RECORD — SENATE May 3, 1995

bill. But to add it to all civil actions

under any theory is grossly, in my

judgment, unfair.

I yield the floor.

Mr. ABRAHAM addressed the Chair.

The PRESIDING OFFICER (Ms.

SNOWE). The Senator from Michigan.

Mr. ABRAHAM. Thank you, Madam

President.

I would like to try to answer several

of the questions that were raised by

the distinguished Senator from Alabama in his comments a moment ago.

I was out of the Chamber for a minute,

so I am trying to recapitulate all of his

remarks. But I will go to the ones I

think I understand.

One question that has been raised is

the issue of whether the Senate has

had an opportunity to consider some of

the arguments that are involved in this

effort to expand the underlying bill,

the substitute bill, through such things

as hearings and so on.

I would just say that I think there

have been several efforts to do that. It

is my understanding that in the Commerce Committee the notion of broadening legislation in that regard was

discussed at least by one of the witnesses. A Mr. Ted Olson discussed the

notion of broadening.

Also, obviously the principles of

changing from the joint and several

system that has preexisted were discussed in the context of the underlying

bill itself. We discussed to some degree

the same issues in a hearing that was

held in the Judiciary Committee on punitive damages as well as in a subcommittee hearing that was conducted

yesterday by Senator GRASSLEY on the

cost of the legal system. To my knowledge, those are at least several venues

in which these discussions have been

the subject of hearings.

In addition, I guess I would just point

out to the Chair that these are certainly not new issues. I believe the notion of reforming the legal system has

been, as I understand it, at least before

the Senate on previous occasions in

various committees. So I think that we

have had previous discussions as well.

Another point I want to address is

the question that was raised as to

whether the amendment we are proposing would apply to such things as the

Civil Rights Act and so on. This

amendment expressly does not alter or

supersede Federal law. So in the case of

any Federal law, whether it is the Civil

Rights Act or others, I guess, that were

referenced, I was out of the Chamber at

that time, where provision for joint

and several liability is provided, this

amendment would not supersede. Those

provisions would remain in place.

Let me just comment a little more

broadly on some of the other points

that were touched on by the Senator

from Alabama in his remarks.

As far as noneconomic damages go,

he, I think, did a very good job of outlining the broad definition of what constitutes noneconomic damages. And

there is no intent on the part of our

amendment to change that definition

or to confine in any way the types of

noneconomic damages which people

might be able to recover.

The purpose of our amendment is to

say that, while you may recover noneconomic damages, you should only recover them from a defendant to the extent the defendant is responsible for

those noneconomic damages. And in

the sense that so many of the noneconomic damages that were referenced tend to be in areas that are

very subjective in terms of calculation,

very hard to discern, it strikes me at

least to be a fundamental principle of

fairness that we not hold defendants

who are not responsible for the negligence involved for damages over

which it is very difficult, if not impossible, to calculate. As a sense of fairness, I think the type of amendment we

are offering is responsive.

I would close with one final thought.

We heard, I thought, a good point made

with respect to some of the people who

could conceivably be plaintiffs in actions of this sort; references to the elderly who might be injured and be

seeking a form of recovery and not be

somehow able to because we assign

damages on the basis of responsibility.

But it seems to me that it is equally

possible that the type of elderly individual referenced by the Senator from

Alabama could be a defendant—an elderly individual who has saved his or

her entire life for his or her retirement,

who has a certain amount of fixed assets unlikely to get greater because of

the fact that they have stopped working, who, because of joint and several

liability, finds themselves, unhappily,

the deep pocket in some type of multiple defendant situation and, consequently, even though they have only

participated in a small degree in terms

of the responsibility for an injury, end

up holding the bag for the entire

amount of the injury because the other

defendants, even though more blameworthy, are judgment proof.

In short, I think you can see it from

both perspectives.

The notion of our amendment is to

try to place responsibility for resolving

noneconomic damages on the shoulders

of those who are most responsible for

the damages in the first place, on the

basis of their apportioned share of negligence.

So, for those reasons, I think our

amendment is a sensible expansion of

the underlying legislation. As I said

earlier, I strongly hope that Members

of the Senate will support it.

Madam President, I yield the floor.

Mr. HEFLIN addressed the Chair.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. HEFLIN. Madam President, I was

interested in what the distinguished

Senator from Michigan had to say, particularly with regard to the reversal of

where he made the elderly individual

the defendant.

Most elderly persons in our country

over the years, at least, I think the

biggest majority of them, believed in

having a home and buying a home and

paying for their home by the time they

reach retirement age. Most of them

have what the insurance industry calls

a homeowner’s policy.

Now, how does that affect the illustration that he gave of the elderly defendant?

Practically every homeowner’s policy has a provision known as the comprehensive liability provision. And

those comprehensive liability provisions which insurance companies have

sold over the years are indeed very

comprehensive. I commend the insurance industry for the way they have

sold these policies and their breadth.

They cover pretty well any type of action that might be brought, unless it is

specifically excluded.

The elderly individual probably in almost every case will have insurance to

protect them from any liability that

they might incur. Certainly, if they are

driving an automobile, they carry insurance.

So I think the opportunity of saying

the reversal—if you leave out the element of insurance—most of them are

insured relative to this matter.

I just wanted to point that out in regard to this.

I have talked a lot about the Snowe

amendment and severability and provisions on punitive damages in the underlying bill. Since Senator SNOWE is

in the chair, it might be of interest to

her, and I will recite it again.

Under the provisions of the underlying bill, if a person brings a suit and

demands punitive damages, there is a

provision that says if you demand it,

either party can demand a separate

hearing for punitive damages. I think

that increases transaction costs, but

that is not the point I want to bring

here.

In that separate hearing, there is

other language in the underlying bill

which says that a party cannot introduce evidence of the conduct which

would be admissible under a punitive

damage trial, but in the suit for compensatory damages. So, therefore, a

person who might be really, under several liability involved in this, 85 percent at fault but could not present the

evidence of conduct which would constitute conduct recoverable under punitive damages in the trial in chief, you

might have a situation where that person is 85 percent at fault really but because of this protection ends up with

only about 5 percent in the noneconomic damage aspect of it.

So when you attempt to double that,

you have a problem. That language

pertaining to the fact that you cannot

introduce in the compensatory damages part of a trial, the conduct of a defendant who is willful or conscious and

flagrantly indifferent, but who could

come under the punitive damage portion of a trial, prohibits such evidence

from being introduced in the trial in

chief. Therefore, the severability aspect of this comes into play, and it can

well be that the defendant who is the
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6073

greatest at fault and, therefore, you

would have the severability as it would

apply to the noneconomic damages,

would be, in effect, able to escape relative to these matters.

So it is something she might want to

look into as this bill goes forward. I

feel like there is a major problem that

might be there. I just mention that

again.

I think I will yield the floor at this

time.

Mr. ABRAHAM addressed the Chair.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. ABRAHAM. Madam President, I

just wanted to add a couple more

points to my opening remarks on this

amendment, because I think they

elaborate a little more fully on some of

the concerns I raised at that time.

As I mentioned in my comments, the

need, in my judgment, for expanding

the underlying substitute is based on

my belief that there is a need to provide the same sort of protections to

nonprofit organizations and civic organizations, and so on, that we are trying

to provide to product manufacturers. I

just wanted to enter into the RECORD a

couple of examples that have been

brought to my attention in recent days

in the context of this debate.

The first is a case of a battered women’s shelter in Evanston, IL. A few

years ago, the Junior League of Evanston sought to establish such a shelter.

An exhaustive search of liability insurance coverage revealed that no insurance company would provide coverage

until the shelter operated for 3 years

without being sued. No one was willing

to serve on the shelter board unless it

had liability insurance. So the shelter

was never established.

That is the kind of, I think, unhappy

outcome which the current system

with respect to joint and several liability has created.

A similar incident involving the Cincinnati Symphony Orchestra illuminates the problem as well. A situation

occurred recently where traffic was

backed up on the exit ramp leading to

the Cincinnati Symphony Orchestra’s

facility prior to a recent performance.

A drunk driver, speeding above posted

limits, rear ended a car in the traffic

jam injuring the driver of that car. The

injured driver filed a lawsuit and made

the orchestra a defendant only after

learning that the drunk driver was uninsured. The owner of the land on

which the facility was situated was

also made a defendant.

The plaintiff argued that the orchestra and the landowner were negligent

in allowing the traffic jam to occur.

After litigating the case all the way

through trial, the orchestra and landowner were found to be 20 percent at

fault between them. However, through

the application of joint liability, the

orchestra and the landowner were

made responsible for all the plaintiff’s

damages, even though, by any commonsense measure, they had done little

or nothing to cause them.

This is really the principle that

caused me to bring this amendment in

to expand the underlying substitute,

because I think we have instance after

instance where these types of outcomes

are produced and, as I said in my opening statement, they happen regardless

of the extent to which the defendant

may have tried to protect against injury. We know that no situation is

without its risks. Nobody who operates

a business can operate it risk free.

They can and should have as much incentive as possible to minimize the

risks that they create.

Under a joint/several liability approach, however, there is not as much

incentive to limit risk because, as I

stated in my earlier comments, no

matter how successfully one insulates

themselves, even to exclude certain

risks and possibilities of liability from

happening, they still may be found responsible and pay the entire damages

involved in an injury simply because of

joint and several liability.

I do not think that is the kind of incentive system we want, and I think

that set of incentives ought to apply

across the board. Therefore, I believe

the expansion of the legislation

through my amendment from the product area exclusively to other areas, as

indicated in the amendment, is a sensible and wise addition to this bill.

Madam President, I yield the floor.

Mr. HOLLINGS addressed the Chair.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. HOLLINGS. Madam President,

once again, we are back now to the

joint and several question with the

Abraham amendment. I remember a

few years ago this issue of competitiveness in Europe, for example, that they

did not have this and we pointed out at

that particular time, and I read again

article V of the Directive of the Official Journal of the European Community:

Where, as a result of the provisions of this

directive, two or more persons are liable for

the same damage, they shall be liable jointly

and severally, without prejudice to the provisions of national law concerning the rights

of contribution or recourse.

So if they get on to the matter of

competitiveness, I wanted to answer

that in the first question, because the

trend for joint and several without

competitors is just that. The United

States gives overwhelmingly predominant treatment—and in fact they call

it fair treatment with respect to economic loss. Let us not misunderstand

here. They characterize in the majority

report what is fair. They use that

word—and you can use—in the majority language of the report of the committee.

Section 109 introduces fairness and uniformity to the law concerning joint and several liability and product liability actions by

adopting the California rule, which holds

that defendants are responsible only for

their fair share of a claimant’s subjective

nonmonetary losses, including pain and suffering awards.

Well, is that fair? It was on an initiative, Madam President—proposition 51.

That State of California is as goofy as

it can come. They had, I remember,

proposition 13 on property tax and

wrecked the State. They can sell anything out there, mostly. They get a lot

of money and a lot of advertising and a

lot of TV and get a temper up and everything else like that. So they are ruining a magnificent school system. You

could not get a license to build down in

the capital, in Pasadena and Sacramento. I remember many instances,

from friends out there, that it never

has been the same since. They removed

property tax support for general government and rolled it back, and now

they have gone to an 8 percent sales

tax and they have gone to a special gas

tax for highways and everything else,

and they have been struggling ever

since with multibillion dollar deficits.

They call it fair, the California rule. It

is not the usual rule in the several

States of America. It is the unusual

rule, in this Senator’s opinion, the unfair one.

Why did we say that it is unfair? We

go right to the idea as to economic

loss. It should be joint and several.

Now, that is a hypothesis; that is the

premise of the amendment of the distinguished Senator from Michigan. He

agrees that is sound. In fact, the majority of the committee agrees that is

sound. In fact, the major sponsors, the

Senators from West Virginia and Washington, the principal sponsors here of

product liability, all agree that joint

and several is sound and fair. But only

for economic damages.

What they are really doing is savaging the women and family population,

savaging the women and family population of our country. That crowd that

came to town with the family bill got

a contract, and they are going to build

a family. The majority of women,

thank heavens, are the builders of the

family, producing the family, caring

for the family, and all without a salary—noneconomic loss, all with no

compensation, so no compensatory situation. The family. Everybody I know

down in my backyard, they have the

big movement, the religious right and

everything else. But they all say, ‘‘I

am for the family, the family, the family.’’ But I can tell you here and now

that they are gutting the family.

Let us see what Professor Finley said

with respect to the distinctions between economic loss and noneconomic

loss damages harming women:

Provisions that make distinctions between

economic loss and noneconomic loss, favoring the former and disfavoring the latter,

disadvantage women for several reasons.

Noneconomic loss damages, which include

compensation for loss of reproductive capacity, impairment of sexual function, harm to

dignity and self-esteem, and emotional or

psychic harm, are crucial category of damages for women, because many injuries that

primarily or especially affect women are

compensated largely, if at all, through noneconomic loss damages. For example, reproductive harm, including pregnancy loss, or
S6074 CONGRESSIONAL RECORD — SENATE May 3, 1995

infertility, is compensated primarily

through noneconomic loss damages, because

the greatest impact of these sorts of injuries

is not on the ability to earn a paycheck, but

rather on the ability to be a whole, fully

functional female. Sexual harassment, sexual assault, sexual improprieties by health

care providers are also examples of injuries

that have profound impacts but are compensated primarily through noneconomic

loss damages.

Noneconomic loss damages are especially

crucial to women in the area of drugs and

medical devices. Unfortunately, far too

many of the modern health and product liability disasters in the drug and device area

involve products designed to be used in women’s bodies, usually in connection with reproduction or sexuality: The anti-nausea

drug thalidomide, which produced horrifying

birth defects; the ineffective anti-miscarriage drug DES, which causes cervical

cancer and infertility; the Dalkon Shield and

Copper-7 IUDs, which caused sometimes fatal

or sterilizing pelvic inflammatory disease

and uterine perforations; silicone breast implants, which can cause debilitating autoimmune diseases and permanent disfigurement; the acne treatment drug Accutane,

which if taken during the early stages of

pregnancy causes serious birth defects; the

drug Ritodine, which is prescribed to prevent

premature labor, but has proven fatal to

some women; the contraceptive Norplant,

which is turning out to have serious side effects and to require expensive and dangerous

invasive surgery to remove. The greatest extent of injuries caused by these products is

to reproductive capacity, to the ability to

bear a whole and healthy child, to intimacy

and normal sexual functioning, to self esteem and dignity—all aspects of injury

which are compensated by noneconomic loss

damages. Studies also demonstrate that the

prospect of liability can be a factor to encourage drug companies to more adequately

include women in clinical trials of drugs and

to perform more extensive testing of drugs

and devices to be used in women’s bodies.

If you go with this Abraham amendment, I can tell you here and now, you

have cut off clinical trials of women in

this drug field, because there is no loss

there. They have written that off now

as a care in this society—the family

crowd that has come to town wanting a

family bill, a family tax cut, and a

family this and that, and they want to

savage the family here with this joint

and several prohibition, or noneconomic damages.

Going further with Professor Finley—and to make it absolutely clear,

she is an outstanding professor. Lucinda M. Finley is her complete name.

She says:

Noneconomic loss damages are also of particular importance to women because a

growing body of empirical research demonstrates that women recover far less than

men for economic loss damages, and it is primarily thanks to the noneconomic loss category that women’s tort recoveries move

closer to the average for men. Women recover less under the economic loss category

because on the whole they earn less than

men; because their household labor, while

recognized, is valued very low; because economic loss damages are often calculated

using tables that presume that women earn

less and will stop work earlier; and because

so many injuries that happen to women have

low economic loss value and injure primarily

in noneconomic ways.

These inequities in economic loss

damages are also true for other social

groups that earn little or less on average than white men: The elderly and

retired, blacks, and Hispanics. Noneconomic loss damages can also make

the tort recoveries of these economically less well off social groups more

commensurate with what white men

receive for similar injuries.

Indeed, the nonpecuniary loss aspects

of damages may be even more crucial

for the elderly person or for the poorly

paid minority clerical or domestic

worker, because they are less likely

than high wage earners to have disability and health insurance, a pension

plan, or investments that can provide a

security net in the event of catastrophic injury.

For all these reasons, full recognition

of noneconomic loss damages is of fundamental importance to ensuring that

the tort system provides adequate compensation to women for reproductive

and sexual harm, and to the elderly

and lower paid or impoverished members of society.

Madam President, I think it is clear

cut. I could go on. There is no question

in my mind what the intent here is.

Again, the manufacturers bill is not for

consumers. We have to have Senators

on the floor saying, ‘‘Oh, I am worried

about the consumers.’’ The manufacturers bill, again, limits their liability

and limits their cost so they can make

more money and safety can decline in

the United States.

What do we do when we provide for

that several proof in noneconomic loss

and the degree thereof? I read again

from Professor Finley:

Joint liability does not mean that part of

the injury was caused by the independent actions of one defendant, while another part of

the indivisible injury was caused by another

defendant’s actions. In many product cases,

the injuries are an indivisible whole, and

cannot meaningfully be parceled out in this

way. For example, when a defective IUD

causes an infection that renders a woman

permanently infertile, one cannot meaningfully ascertain that the manufacturer’s failure to test the tail string caused half the infertility, while the failure of the manufacturer of the copper or string filament to test

its effects when introduced into the uterus

caused the other half of the infection.

Now, here is an initiative to simplify

the uniformity for less bureaucracy,

causing what? If they want to know

why there are so many lawyers, I can

say now, having tried cases, that is

going to put another 2 days of trial on

my case, and we will spend more time

and there will be more dispute and

there will be more bureaucracy and

there will be more cost.

That is all in the name of, really,

punishing the poor, the minority, the

women in our society, particularly

family members. I think it ought to be

rejected out of hand. They do not reject it. They adopt it with the word

‘‘fair’’ for economic loss.

It is not 1 percent in economic loss

who has only 1 percent contributing,

we will say, to the wrongful act or injury and the other 99 percent having

gone bankrupt, and I only had 1 percent contribution to the particular verdict and finding of that jury. Yes, if it

is only 1 percent for economic, then let

the 1 percent pay the 100 percent. Let

the 1 percent pay the 100 percent. They

adopt that with the word ‘‘fair.’’ They

think that is fair, joint and several, for

that. That is fair.

When it comes to the injuries for the

women in our society, the aged in our

society, the minorities in our society,

the nonbreadwinners in our society, if

they cannot prove economic loss, then

what do they do? They list it out.

They want to make absolutely sure

in that particular amendment—if I

could find my copy of that Abraham

amendment, they talk and they decide

exactly what they do not want to pay

for. They find, yes, joint and several

for everything else, but the term ‘‘noneconomic damages’’ means ‘‘subjective,

nonmonetary loss resulting from harm,

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

to society and companionship, loss of

consortium, injury to reputation, and

humiliation.’’

Throw all of that out under this

amendment. Forget it. We will not be

able to prove the several. And we have

to start proving that while, at the

same time, there has been proof by the

greater weight of the preponderance of

evidence that there has been wrongdoing and that there has been injury

and the burden now is the injured party

is to be injured further with the Abraham amendment. They are really putting the burden on here, and they come

in the same breath and say, ‘‘We are interested in the injured parties—namely, consumers.’’

Now, if anybody believes that, well, I

see we are getting around the time

when we can vote and others want to

speak, but I hope that Members will

study this amendment very, very carefully and understand that it is not the

California rule, like something is wonderful. I run in the other direction

when I hear about the California rule.

If a person wants some liberal things

happening and everything else of that

kind, go to the State of California. I

have many, many friends out there and

they have a big time, but to bring this

into rule of the United States of America and to reverse the majority State

laws in our Nation and not to reverse it

on joint and several for economic loss,

which they term ‘‘fair’’ and sound but

only for noneconomic loss, these particular people in our society, particularly families and those who produce

and build the families and say that

they are for families, they are caught

off base on this. I hope they vote

against their own amendment.

AMENDMENT NO. 681 TO AMENDMENT NO. 596

(Purpose: To make improvements concerning

alternative dispute resolution)

Mr. KYL. Madam President, I am

simply going to make a unanimous-
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6075

consent request. I ask unanimous consent to lay aside the pending amendment and offer an amendment, which I

send to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The clerk will report.

The assistant legislative clerk read

as follows:

The Senator from Arizona [Mr. KYL] proposes an amendment numbered 681 to amendment No. 596.

The amendment is as follows:

In section 103, strike all after subsection

(a) through the end of the section.

Mr. KYL. Madam President, just a

moment to explain what this amendment is. I know we are getting close to

the time to vote, and the Senator from

Connecticut wishes to speak, as well.

This section 103 is titled ‘‘Alternative

Dispute Resolution Procedures.’’ It establishes that in a jurisdiction where

an alternative dispute resolution procedure is provided for, that either the

claimants or the defendant may utilize

such procedure. That is point one. Of

course, that does not change anything

or add anything to existing law.

The second part of this provides how

the procedure shall be utilized. Again,

that adds nothing to the existing law.

The third part of section 103 establishes that if the defendant refuses to

go along with or to accept the plaintiff’s request and certain other conditions are satisfied, then the defendant

shall be found liable for attorney’s fees

and costs. That is, in effect, the British

rule, the loser pays. But there is no

such provision for plaintiffs.

I thought this was merely an oversight. Obviously both parties to a litigation should be accorded the same

rights under the rules of procedure.

But it is not an oversight. I am told

that certain Members of the body require this dichotomy in the rules in

order to vote in favor of the bill.

Madam President, if that is what it

takes we should not be doing it. This is

grossly unfair. It would be an absolute

and total departure from everything

that our legal system stands for. All

parties to litigation plead their cases,

defend their cases, prosecute their

cases under the same set of rules. We

do not have rules that apply to one side

but that do not apply to another; particularly where we are trying to avoid

litigation in the first place by providing for alternative dispute resolution.

So, where a State has such a procedure we ought to be encouraging both

parties to go through such a procedure.

If there is to be a penalty attached,

then that penalty should be the same

for either party. If there is not, that is

the business of the State jurisdiction.

But the Federal Government should

not be interceding and saying if a State

has such a procedure it only applies to

the defendant; plaintiff is under no obligation to go through with it if requested by the defendant.

So, Madam President, we will talk

more about this tomorrow but I wanted

my colleagues to know that this gross

unfairness does need to be corrected in

the bill. It is a very simple amendment,

but I will be asking my colleagues to

support this amendment tomorrow.

I yield the floor.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. HOLLINGS. Madam President, I

wanted to send an amendment to desk

to get in line here. I ask unanimous

consent to temporarily lay aside the

pending amendment.

The PRESIDING OFFICER. Without

objection, it is so ordered.

AMENDMENT NO. 682 TO AMENDMENT NO. 596

(Purpose: To provide for product liability

insurance reporting)

Mr. HOLLINGS. Madam President, I

send an amendment to the desk and

ask for its immediate consideration.

The PRESIDING OFFICER. The

clerk will report.

The assistant legislative clerk read

as follows:

The Senator from South Carolina [Mr.

HOLLINGS] proposes an amendment numbered

682 to amendment No. 596.

Mr. HOLLINGS. Madam President, I

ask unanimous consent that reading of

the amendment be dispensed with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

SEC. . PRODUCT LIABILITY INSURANCE REPORTING.

(a) REPORT TO CONGRESS.—The Secretary of

Commerce (hereafter in this section referred

to as the ‘‘Secretary’’) shall provide to the

Congress before June 30 of each year after

the date of enactment of this Act a report

analyzing the impact of this Act on insurers

which issue product liability insurance either separately or in conjunction with other

insurance; and on self-insurers, captive insurers, and risk retention groups.

(b) COLLECTION OF DATA.—To carry out the

purposes of this section, the Secretary shall

collect from each insurer all data considered

necessary by the Secretary to present and

analyze fully the impact of this Act on such

insurers.

(c) REGULATIONS.—Within 120 days after

the date of enactment of this Act, the Secretary shall issue such regulations as may be

necessary to implement the purposes, and

carry out the provisions, of this section.

Such regulations shall be promulgated in accordance with section 553 of title 5, United

States Code. Such regulations shall—

(1) require the reporting of information

sufficiently comprehensive to make possible

a full evaluation of the impact of this Act on

such insurers;

(2) specify the information to be provided

by such insurers and the format of such information, taking into account methods to

minimize the paperwork and cost burdens on

such insurers and the Federal Government;

and

(3) provide, to the maximum extent practicable, that such information is obtained

from existing sources, including, but not

limited to, State insurance commissioners,

recognized insurance statistical agencies,

the Administrative Office of the United

States Courts, and the National Center for

State Courts.

(d) SUBPOENA.—The Secretary may subpoena witnesses and records related to the

report required under this section from any

place in the United States. If a witness disobeys such a subpoena, the Secretary may

petition any district court of the United

States to enforce such subpoena. The court

may punish a refusal to obey an order of the

court to comply with such a subpoena as a

contempt of court.

Mr. HOLLINGS. Madam President,

this is simply the amendment we had

on previous product liability bills. It

was actually proposed by the distinguished colleague, Senator ROCKEFELLER from West Virginia. It has to

do with product liability insurance reporting.

Not to delay the Senator from Washington or the Senator from Connecticut, both of whom I thank very much

for yielding, I will debate it later on.

I yield the floor.

The PRESIDING OFFICER. The Senator from Washington.

AMENDMENT NO. 618 TO AMENDMENT NO. 596

Mr. GORTON. Madam President, I

had earlier announced I would move to

table the Thompson amendment at

5:45. I do see on the floor my distinguished colleague and cosponsor, the

Senator from Connecticut, who has not

spoken on any of these issues today.

I ask him if he would like to do so?

I am going to certainly defer my motion to table.

Mr. LIEBERMAN. Madam President,

replying to my friend and colleague

from Washington, I would appreciate

the opportunity to speak for just 4 or 5

minutes, if I may at this time, on the

Thompson amendment.

Madam President, we have proceeded, now, for several days on the

topic of product liability reform. Those

of us who have sponsored the underlying bill, a bipartisan group, have argued that the current system of product liability litigation is costly, it is

unfair, too much of the money put into

the system goes to those who are operating it instead of the victims of actual

negligence.

We have proceeded and brought several important issues to votes, not only

on product liability but on the general

topic of medical malpractice, punitive

damages—a creative approach offered

and accepted by more than 60 of our

colleagues, by the occupant of the

chair, the distinguished Senator from

Maine.

I think we have a consistent pattern

in which a majority of Members of the

Chamber, of this Senate, have spoken

in favor of reform, acknowledging that

the status quo in the civil justice system, when it comes to tort law, is just

not working as it should. It is not

working in the interests of the American people. It is not working in the interests of the American consumer who

is paying too much and getting too little. It is certainly not working in the

interests of American business and

American workers because it is denying us products. It is making us less

competitive. It is denying employment

opportunities. I say all of that as a

preface to saying just a few brief words

about the amendment offered by the
S6076 CONGRESSIONAL RECORD — SENATE May 3, 1995

Senator from Tennessee, Mr. THOMPSON, joined also by Senators SIMON and

COCHRAN.

With all respect to my three colleagues, the record will note that they

have not been, generally speaking,

among those who have voted for the reform effort, the tort reform effort. I

would say, respectfully again, that a

vote for this amendment will have the

effect of making hollow the effort to

achieve genuine product liability reform—genuine tort reform. It would

make it hollow in taking unto itself

the banner of federalism and States

rights, as it were—but it does so in a

way that is not true to the actual content of the bill before us and is not

really true to federalism either.

The fact is, the underlying bill leaves

almost all of the fundamental questions of liability still with the States

but it acknowledges that this area of

our law has national implications. It is

a national problem and it requires a

national solution. By restricting the

impact of these reforms to the Federal

courts, this amendment essentially

eviscerates—it guts the bill. It will not

any longer be true reform.

There are some who have described

the underlying bill as too weak. We

like to say it is moderate. It is balanced—I believe it is. It is the way it

ought to go forward. But if this amendment is agreed to, there will be very

little left and it will be much less than

moderate.

Madam President, let me just say

specifically that the impact of this

amendment would be to enable attorneys, plaintiff’s attorneys, to shop for

appropriate jurisdictions in which to,

even more than under the current law,

file their suits in State courts. But

more significant and perhaps a point

that has not been mentioned enough,

plaintiff’s attorneys here will be motivated to immediately add resident defendants to the complaint so as to

avoid removal to Federal court. Under

current legal practice, under current

law, any time there is a defendant in a

suit from the same State as plaintiff,

diversity of jurisdiction, which is a prerequisite to obtaining Federal court jurisdiction, is defeated. Thus, plaintiffs

can easily control here whether Federal law will apply and can frustrate

the attempt to finally, after 18 years of

attempts in this Senate, in this Congress, to reform. They can frustrate

that attempt. It also means that more

people will be sued, more small businesses will be sued, that lawsuits will

cost even more.

So we are trying to achieve a modest

level of uniformity in the underlying

amendment in an effort to reform the

inequitable, costly, slow system we

now have. The amendment offered by

the Senator from Tennessee will doom

any effort to achieve those moderate

results, and, therefore, I strongly urge

my colleagues, again a majority of

whom have expressed their clear desire

for reform, to be consistent with that

expressed desire for reform and to vote

against the amendment offered by the

Senator from Tennessee.

I thank the Chair and I yield the

floor.

The PRESIDING OFFICER. The Senator from Washington.

Mr. GORTON. Madam President, almost 6 years ago the U.S. Supreme

Court decision named Erie Railroad

versus Tompkins did all it possibly

could to consolidate and rationalize

the law relating to actions brought or

removed to Federal courts under diversity of jurisdiction by ruling that Federal courts were required to follow

State law in such cases. So that it

would cut back on forum shopping by

lawyers who were looking for a more

favorable law than within their own

State by choosing between State or

Federal courts.

For almost 60 years that has been the

law and it has worked well. This bill is

designed to reduce further the lack of

uniformity, shopping among the various States.

The Thompson amendment instead of

having 50 different jurisdictions and

rules with respect to product liability

litigation would result in 100 because

the rule of the Federal court in Connecticut would be different from the

rule in the State court in Connecticut.

The rule in the Federal court in West

Virginia would be different than the

rule in the State court in West Virginia or Washington or Maine. So we

would have more confusion, more

forum shopping, and less uniformity.

That is why primarily the Thompson

amendment should be defeated ending

this debate.

Madam President, I ask for the regular order.

The PRESIDING OFFICER. The regular order is the amendment offered by

the Senator from Tennessee.

Mr. GORTON. I move to table the

Thompson amendment and ask for the

yeas and nays.

The PRESIDING OFFICER. Is there a

sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. The

question is on agreeing to the motion

of the Senator from Washington to lay

on the table the amendment of the

Senator from Tennessee. On this question, the yeas and nays have been ordered, and 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

necessarily absent.

The PRESIDING OFFICER (Mr. BENNETT). Are there any other Senators in

the Chamber who desire to vote?

The result was announced—yeas 58,

nays 41, as follows:

[Rollcall Vote No. 147 Leg.]

YEAS—58

Abraham

Ashcroft

Bennett

Bond

Brown

Burns

Campbell

Chafee

Coats

Conrad

Coverdell

Craig

DeWine

Dodd

Dole

Domenici

Dorgan

Exon

Faircloth

Feinstein

Frist

Glenn

Gorton

Gramm

Grams

Grassley

Gregg

Hatch

Hatfield

Helms

Hutchison

Inhofe

Jeffords

Kassebaum

Kempthorne

Kohl

Kyl

Lieberman

Lott

Lugar

Mack

McCain

McConnell

Mikulski

Murkowski

Nickles

Nunn

Pressler

Pryor

Robb

Rockefeller

Santorum

Smith

Snowe

Stevens

Thomas

Thurmond

Warner

NAYS—41

Akaka

Baucus

Biden

Bingaman

Boxer

Bradley

Breaux

Bryan

Bumpers

Byrd

Cochran

Cohen

D’Amato

Daschle

Feingold

Ford

Graham

Harkin

Heflin

Hollings

Inouye

Johnston

Kennedy

Kerrey

Kerry

Lautenberg

Leahy

Levin

Moseley-Braun

Moynihan

Murray

Packwood

Reid

Roth

Sarbanes

Shelby

Simon

Simpson

Specter

Thompson

Wellstone

NOT VOTING—1

Pell

So the motion to lay on the table was

agreed to.

Mr. GORTON. Mr. President, I move

to reconsider the vote by which the

motion was agreed to.

Mr. ROCKEFELLER. I move to lay

that motion on the table.

The motion to lay on the table was

agreed to.

Mr. GORTON. I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. HEFLIN. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. HEFLIN. Mr. President, I would

like to address some of the underlying

provisions in the product liability bill

which I feel are unfair.

No. 1 is that in the definition of

claimant and person, the language

brings within the purview of this bill a

Government entity. This means cities,

counties, State Government, the Federal Government. The statute of repose

could be very important as we look at

the United States Army relative to

damages it might suffer.

I think most of the vehicles in the

Army we know are designed to last a

long time—helicopters, NASA vehicles,

and so forth. Why the proponents want

to include a Government entity within

the provisions of this statute raises a

lot of questions to me.

Now they pretty well exempt rental

cars, lease property from product liability. I gave an illustration earlier

that you might have a situation in

which a recall is sent by the manufacturer, but the rental car agency decides

to continue to lease the car with

knowledge that there are dangers that

might be in the car. I just mention

that.
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6077

Also, in the calculation of several

damages in the bill itself and in the

Abraham amendment, there is language to the effect that in the several

liability and the percentage of harm,

that it does not have to be a party to

the lawsuit. Therefore, you have situations where there could be companies

in bankruptcy where you could not get

jurisdiction. And then you could have a

situation where, in the absence of service, you could not bring it; or it could

be that the statute of limitations has

run before someone recognizes that

part of it is not to the lawsuit, to get

service on, relative to that matter.

Under most workman’s compensation

laws, it not only means that you cannot bring a lawsuit against your employer, but also against coemployees.

Yet, you have the right under this,

whether party to a lawsuit or not—the

jury would be obligated to set a percentage of the fault against that party.

And that party would not be there to

defend themselves. They would not

want to become involved in a lawsuit.

They are the only ones who really

know their defenses and the amount of

their responsibility pertaining to the

fault that might occur. So, in effect,

therefore, they would gang up against

a party who was not a defendant in the

lawsuit.

Then there is language in regard to

misuse or alteration, which is a defense

that reduces the damage. But, again, it

is carefully worded for an advantage. It

says, ‘‘. . . misuse or alteration by any

person, regardless of whether they are

a defendant in the lawsuit.’’

And then you have, in this bill, to

show you how it is worded, in the lawsuit if you have several defendants and

they are not parties—the employer and

the employee cannot be made—in most

instances, the coemployee cannot be

made a party to a lawsuit and is protected because of workman’s compensation. Then it says that the last

issue to be tried in the lawsuit is the

percentage of the fault that falls on the

employer or the coemployee.

So they want it to be fresh in the

minds of the jury as being the last

issue that is tried. That is another

slight advantage that they are always

working in regard to this. The

draftsmen of this are keen people who

have represented defendants, and they

are knowledgeable about defending

lawsuits and are trying to get an advantage rather than trying to be fair to

the injured party. And then it has the

provision that you cannot settle without the insurance company or the

workman’s compensation agreement. If

you want to settle for 75 cents on the

dollar, the workman’s compensation

insurer will not let you do that because

they want 100 percent. That is another

example of the bill’s unfairness.

Now, there are a lot of lawsuits on

asbestos injury. It would apply to asbestos, except there is some provision

pertaining to the statute of repose relative to asbestos, calling it a ‘‘toxic’’

matter.

The bill has a provision for businesses coming under the provisions of

the Uniform Commercial Code regarding commercial loss, where businesses

are therefore given an advantage. Well,

under the uniform commercial code, it

has generally, under warranties, a 4-

year statute of limitations; whereas,

under this bill, the injured worker has

only 2 years in a statute of limitations.

That is another advantage that is put

in there for the benefit of the manufacturer.

Another aspect relates to implied

warranty. The bill abolishes the concept of implied warranty as a cause of

action. Implied warranty basically is a

concept that says that the product is

fit for the purpose for which it is sold.

But under the language of the bill,

there are several implied warranties.

There is an implied warranty of

merchantability, and other implied

warranties are involved. Under this

language, it allows the only warranty

that you can, have a cause of action for

or sue on is an express warranty.

So, therefore, all a seller of goods has

to do, if he has knowledge of defects, is

to keep his mouth shut. He just does

not say anything. Under the normal

law, if he says nothing, but he has

knowledge, then the implied warranty

could be found. But unless a seller expressly warrants a product, he is exempt from liability. Then there could

be an instance in regard to the Uniform

Commercial Code relative to privity of

contract. You have to have privity of

contract, actual contractual relations;

it would be a limited effect where it

would come into play, but it is still an

advantage the bill’s proponents are

seeking.

I wanted to mention those. Of course,

as the bill presently stands, the drug

companies are almost completely immune from any lawsuit. Regarding

pharmaceutical companies—drugs—

there is just about an impossibility the

way it is presently framed to recover

against them. The biomaterial section

is still one where they have written it

in such a manner that it has language

that is most unusual. They say that if

a material comes in contact with bodily fluids or with tissue and remains

for less than 30 days, less than 30 days

could be 1 minute. It could be 5 minutes. When it talks about less than 30

days, it says that that comes in contact through a surgical opening.

What is a surgical opening? A surgical opening could be a needle that is

stuck into you, a needle, a hypodermic

device that goes in the body to draw

blood or administer a drug or medicine.

That is, in effect, a surgical opening. If

it stays there 30 seconds, then it comes

under the classification, the way this is

written, of being an implant. And,

therefore, if you are a component part

of the implant under the biomaterials

section that we have here, you have

just about a complete immunity. The

only way you could do it would be that

you have to prove that the component

part was not made by a different party

but was made by the manufacturer, or

that the component part was made by

the seller—component parts, many

times, are made by many and different

people—or that it was according to

specifications. A lot of times, there are

defects relative to specifications on

these.

I point out that there are a lot more

snakes, as I call them, involved in this.

Every time you read it, you discover

another one of these snakes wiggling in

the grass. Each of them are big issues.

I think we have concentrated too

much relative to punitive damages, because there are so many other issues

involved in this that are just as big in

taking away the rights of injured persons. I wanted to point those out. I

thought some others would be on the

floor but, as usual, some will leave before too long. Maybe I made a point in

that regard.

I yield the floor.

Mr. HOLLINGS. Mr. President, I am

afraid the distinguished Senator and

myself are probably running them off

the floor.

Mr. President, I have submitted an

amendment which is presently at the

desk. I understand from the managers

of the bill that the intent now is to

hear about these amendments this

evening, and then in the morning, and

it is up to the majority and minority

leaders.

As they have told me about it thus

far, perhaps around 12:15, we would

start voting on three amendments: The

amendment of the distinguished Senator from Michigan, Senator ABRAHAM;

I think it is a second-degree amendment by the distinguished Senator

from Arizona, Senator KYL; and my

amendment.

With respect to my amendment, entitled Product Liability Insurance Reporting, it struck me at the time of the

hearing, the official on behalf of the

Government appeared, said that the

National Governors’ Association policies makes three major points about

product liability. The first urges Congress to adopt a uniform product liability code; second, the Congress to assess

and if necessary enhancing Federal

consumer protection and product safety standards; third, calls for more effective oversight of the insurance industry. There is absolutely none.

In fact, the attempts over the years

to try to determine anything at all

about casualty carriers, their costs,

their rates, their losses, the availability of insurance and otherwise, has

been a tremendous problem at the Federal level because we have left it generally to the States.

Back 9 years ago in the hearings we

were having at that time—because we

only had cursory hearings on the bill

this time—when we were having hearings in depth, it was a matter of unanimity out of our committee when Senators from Kentucky and West Virginia

got together reaching a significant

agreement.
S6078 CONGRESSIONAL RECORD — SENATE May 3, 1995

I quote the Senator from West Virginia, Senator ROCKEFELLER, the primary cosponsor with Senator GORTON

of Washington of this particular bill

that we now have before the Senate:

The Senator from Kentucky and I have

reached a significant agreement which I

think achieves a significant goal in an eminently sensible manner. The amendment is

before you and ensures for the first time that

the Secretary of Commerce will collect—not

‘‘may collect’’ but ‘‘will collect’’—comprehensive product liability insurance data

which will be useful to us as policy makers

at the Federal and State levels.

The amendment in effect makes it possible

that should this issue be revisited, Congress

will in fact have the facts before us. Okay.

So what is in the amendment?

The amendment would require the Secretary of Commerce to report comprehensive

information annually to the Congress on the

effect of this product liability tort reform

bill, should it pass, on those insurers,

noninsurers, reinsurers, self-insurers, risk

retention folks, who issue product liability

insurance.

Now the Secretary of Commerce will collect data from these folks, and he can collect

data from existing insurance statistical

agencies. In other words, the bureaucracy

factor is minimized, Mr. Chairman, because

he can collect it from those who already

produce it.

However, a key component of my agreement with the distinguished Senator from

Kentucky provides that the committee report—and we crafted our language carefully

here—will spell out for the Secretary what

information is needed for comprehensive understanding of the issue. For example, insurers premiums and investment income, outlays, overhead, legal expenses, reserves, as

well as claims paid as a result of settlement

as opposed to claims paid as a result of adjudication.

Included in the report language will be a

provision that the National Association of

Insurance Commissioners has a set amount

of time to work out an agreement with the

Secretary of Commerce to require that insurers report data on claims paid out as a result of economic, noneconomic, and punitive

damages. That has been an elusive factor,

and that information in fact is not now

available or at least it is not broken out. As

a result of this amendment, it will be, and

will be available to us.

I believe, Mr. Chairman, it is a good

amendment. I believe it is a fair amendment.

It is not the amendment which I had originally suggested, but I believe that it is a reasonable compromise that gets us the same

information and in a reasonable manner.

Now, that was presented in the bill

and accepted. Thereafter, year before

last, when we had on the last occasion

before the Senate product liability,

that amendment, word for word, was

presented and accepted. Presented by

this Senator at that particular time as

the chairman of the Commerce Committee and accepted by none other

than the two distinguished leaders that

we have, the cosponsors and managers

of the bill, the distinguished Senator

from West Virginia and the distinguished Senator from Washington.

My hope, of course, that the amendment was accepted, it would be accepted again. Perhaps we will have to vote

on it. However, it would nonplus this

particular Senator that here we have

what the managers themselves have

not only promulgated but what they

have accepted heretofore as a reasonable, proper, and necessary add on to

the consideration of product liability

and now rejected at this particular

time. With that in mind, I yield the

floor.

AMENDMENT NO. 599, AS MODIFIED, TO

AMENDMENT NO. 596

Mr. HATCH. Mr. President, I ask

unanimous consent that the pending

amendment be set aside to call up this

amendment.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. HATCH. Mr. President, I ask

unanimous consent that amendment

numbered 599, as previously agreed to,

be modified with the language which I

now send to the desk.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment (No. 599), as modified, is as follows:

At the appropriate place, insert the following new section:

SEC. . REPRESENTATIONS AND SANCTIONS

UNDER RULE 11 FEDERAL RULES OF

CIVIL PROCEDURE.

(a) IN GENERAL.—Rule 11 of the Federal

Rules of Civil Procedure is amended—

(1) in subsection (b)(3) by striking out ‘‘or,

if specifically so identified, are likely to

have evidentiary support after a reasonable

opportunity for further investigation or discovery’’ and inserting in lieu thereof ‘‘or are

well grounded in fact’’; and

(2) in subsection (c)—

(A) in the first sentence by striking out

‘‘may, subject to the conditions stated

below,’’ and inserting in lieu thereof ‘‘may’’;

(B) in paragraph (2) by striking out the

first and second sentences and inserting in

lieu thereof the following: ‘‘A sanction imposed for violation of this rule may consist

of reasonable attorneys’ fees and other expenses incurred as a result of the violation,

directives of a nonmonetary nature, or an

order to pay penalty into court or to a

party.’’; and

(C) in paragraph (2)(A) by inserting before

the period ‘‘, although such sanctions may be

awarded against a party’s attorneys’’.

(b) EFFECTIVE DATE.—The provisions of

this section shall take effect 30 days after

the date of the enactment of this Act.

Mr. HATCH. Mr. President, this

amendment was offered by Senator

BROWN and adopted by the Senate earlier this week. We have consulted with

Senator BROWN and he has agreed to

our modification.

Section (2)(A) of Senator BROWN’s

amendment would make the imposition of sanctions for a violation of Federal Rule of Civil Procedure 11 mandatory. The current Federal rule gives

Federal judges discretion to award

sanctions if a violation has occurred.

This amendment simply restores discretion to our Federal judges to award

sanctions in the appropriate cases.

AMENDMENT NO. 683 TO AMENDMENT NO. 596

(Purpose: To revise the rules regarding

claimants who are employees)

Mr. GORTON. Mr. President, I send

an amendment to the desk and ask for

its immediate consideration.

The PRESIDING OFFICER. The

pending amendments will be set aside

and the clerk will report.

The legislative clerk read as follows:

The Senator from Washington [Mr. GORTON] proposes an amendment numbered 683

to amendment No. 596.

Mr. GORTON. I ask unanimous consent further reading be dispensed.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

On page 2, strike lines 4 through 14 and insert the following:

(2) CLAIMANT’S BENEFITS.—The term

‘‘claimant’s benefits’’ means the amount

paid to an employee as workers’ compensation benefits.

On page 25, line 15, strike ‘‘CONSENT’’ and

insert ‘‘NOTIFICATION’’.

On page 25, beginning with ‘‘subparagraph’’

on line 16 strike through line 25 and insert

‘‘subparagraph (C), an employee shall not

make any settlement with or accept any

payment from the manufacturer or product

seller without written notification to the

employer.’’.

Mr. GORTON. Mr. President, this is a

corrective amendment with respect to

the subrogation provisions of the workmen’s compensation section. I have

checked this out with the distinguished

Senator from South Carolina. It is not

controversial.

The PRESIDING OFFICER. The

question is on agreeing to the amendment.

The amendment (No. 683) was agreed

to.

AMENDMENT NO. 684 TO AMENDMENT NO. 596

(Purpose: To modify the rented or leased

products provision)

Mr. GORTON. Mr. President, I send

another amendment to the desk for immediate consideration, and I ask the

pending amendment be set aside.

The PRESIDING OFFICER. The

clerk will report.

The legislative clerk read as follows:

The Senator from Washington [Mr. GORTON], proposes an amendment numbered 684

to amendment No. 596.

Mr. GORTON. I ask unanimous consent further reading be dispensed.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

On page 16, line 21, after ‘‘but’’ insert ‘‘any

person engaged in the business of renting or

leasing a product’’.

Mr. GORTON. Mr. President, this

falls under the same category, dealing

with the definition of a rental.

I have checked it out with Senator

HOLLINGS and it is acceptable and

agreed to and not controversial.

The PRESIDING OFFICER. The

question is on agreeing to the amendment.

The amendment (No. 684) was agreed

to.

ORDERS FOR THURSDAY, MAY 4,

f1995

Mr. DOLE. Mr. President, I ask unanimous consent that the vote on or in

relation to the Abraham amendment

No. 600, occur at 12:15 on Thursday,

May 4, followed by a vote on or in relation to the Kyl amendment No. 681, to