S6318 CONGRESSIONAL RECORD — SENATE May 9, 1995

Thereupon, at 12:37 p.m., the Senate

recessed until 2:15 p.m.; whereupon, the

Senate reassembled when called to

order by the Presiding Officer (Mr.

C

COMMONSENSE PRODUCT LIABILOATS

ITY AND LEGAL REFORM ACT

).

fThe Senate continued with the consideration of the bill.

Mr. GORTON addressed the Chair.

The PRESIDING OFFICER. The Senator from Washington.

Mr. GORTON. What is the pending

business and what is the status of the

pending business?

The PRESIDING OFFICER. The

pending unfinished business is H.R. 956,

and the pending question is amendment No. 709. The Senate is operating

under cloture.

Mr. GORTON. Is that the GortonRockefeller-Dole amendment to the

Coverdell-Dole amendment?

The PRESIDING OFFICER. The Senator is correct.

Mr. GORTON. Mr. President, since

we are now under cloture and without

the presence of my colleague, Senator

ROCKEFELLER, I should like, very tentatively, to announce what I hope the

course of action will be this afternoon.

I will, unless there is objection, within a reasonable period of time, ask

unanimous consent for a minor but significant amendment to the GortonRockefeller-Dole amendment, a proposition that does require unanimous

consent to keep the undertaking that

Senator ROCKEFELLER made with respect to the right of a new trial after a

judge imposed additur.

After that, I would propose that we

go forward by adopting the GortonDole-Rockefeller amendment and the

underlying amendment and then having a debate on any further amendments to the bill, some of which will

require unanimous consent in order to

bring them up, as I understand from

the Parliamentarian, because of the position in which we find ourselves.

Senator ROCKEFELLER and I have

agreed that amendments from the

other side, during the pendency of cloture, that Members opposed to this bill

want to bring up ought to be allowed to

be brought up, and certainly we will

grant unanimous consent for that taking place.

Each of these will require cooperation and essentially unanimous consent. Senator ROCKEFELLER is not back

yet. One of the opponents to the bill is

here. I am going to suggest the absence

of a quorum so that Members can digest this request, so that the leaders

can get together if they wish, and so

we can proceed for the rest of the day.

I hope that we will end up being able to

finish the entire bill and having our

final vote on final passage before the

day is out, as the leader would like to

go on to other bills.

Mr. HEFLIN. If the Senator will

withhold the quorum call, regarding

what the Senator has said about asking

unanimous consent, I think Senator

HOLLINGS should be on the floor to respond to that. I think he has some feelings on it. However, I do realize this: It

is my information that unless that

happens, then unanimous consent is

going to be necessary for each and

every amendment to occur. Now, I have

been talking with various people on

our side who are very knowledgeable

on parliamentary proceedings. I think

it is something we will want to look at.

If we enter into a quorum call, we

ought to investigate and see exactly

what the parliamentary status is and

what Senator HOLLINGS’ feelings are on

that. He articulated to me earlier rather strong feelings against it. But he

may have reconsidered it since that

time.

Mr. GORTON. I think the Senator

from Alabama is correct about the parliamentary situation. Certainly, given

Senator HOLLINGS’ views on the subject, I want his full knowledge and participation before we go ahead. My announcement was just in hopes that we

can get interested people here to make

those decisions. Awaiting our ability to

do so, 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. WELLSTONE. 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. WELLSTONE. Mr. President, am

I correct that we are now on the product liability bill?

The PRESIDING OFFICER. The Senate is now on that matter, H.R. 956, the

product liability bill under cloture.

Mr. WELLSTONE. I thank the Chair.

Mr. President, I want to speak about

this legislation that is before the body,

and I would like to talk about what I

think is at stake in the vote that we

just cast and what would be at stake in

some votes that we will also be casting

over the next day or day and a half.

As I see it, we started out with a bill

that was unfair, which I think tipped

the scale of justice away from

consumer protection and in favor of

corporate wrongdoers. Then as we went

along, there was an overreaching by

some of the insurance companies and

other big corporate defendants, and yet

more amendments were attached onto

this bill making it truly awful. Then as

a result of several cloture votes—when

it was clear that this piece of legislation with all of the additional awful

amendments could not pass—it was

stripped down to now being just profoundly wrong for people in this country, which is not what I would call

much of an improvement.

Mr. President, I am not a lawyer. But

as I understand the features of this bill

there is a tremendous amount of unfairness. I quite frankly cannot figure

out why this body went ahead and invoked cloture. First of all, there is still

a cap on punitive damages, as I understand it, of $250,000 or twice compensatory damages. Compensatory means

both the economic and the noneconomic damages. So that, for example, if you were not an executive of a

large company but a wage earner, if

you did not make as much money, if

you were a woman—women generally

speaking make less than men in the

work force—or if you were a senior citizen, and you were hurt by exactly the

same behavior and received exactly the

same harm from exactly the same defendant as some CEO, there would be

differences in terms of what the award

would be. The punishment would be

greater for hurting the CEO.

This is still an absurd result and still

an indefensible one. When I spoke last

week I asked my colleagues to consider

the faces of people who will be hurt by

this provision. LeeAnn Gryc from my

State of Minnesota was 4 years old

when the pajama she was wearing ignited leaving her with second- and

third-degree burns over 20 percent of

her body. An official with the company

that made the pajamas had written a

memo 14 years earlier stating that because the material they used was so

flammable the company was ‘‘sitting

on a powder keg’’. This latest proposal,

the Gorton-Rockefeller substitute,

would cap the punishment the defendant receives. How would this affect

LeeAnn? It is not clear. All of that

would depend upon what kind of compensatory damages the jury awards.

Are we really willing to sit here in

Washington, DC, and change that and

preempt Minnesota law and make that

kind of determination?

Mr. President, this proposed improvement has new language which would

allow a judge to award higher punitive

damages than the caps would otherwise

provide if the judge thinks it is necessary to serve the twin purposes of

punishment and deterrence. Again,

first of all, what we do is set this cap

and it is either $250,000 or twice a combination of economic and noneconomic

damages which is discriminatory, by

the way, toward low income, moderate

income, middle income in terms of how

that formula works out. Then we go on.

When you think about the case of

LeeAnn Gryc, or the case of a whole lot

of other people who are hurt in this

country, who is prepared to say that

the cap ought to be $250,000 or a little

above? Who is prepared to say that a

defendant should be punished less because he or she hurt a wage earner as

opposed to a CEO of some of the largest

companies in this country? I do not see

the Minnesota standard of fairness.

The new language then, in what is

apparently supposed to be an improvement, allows the judge to award more

punitive damages than the caps would

otherwise provide, if the judge thinks

that it is necessary to serve the twin

purposes of punishment and deterrence.

But what happened to the jury? People

on juries elect us to office. We have all
May 9, 1995 CONGRESSIONAL RECORD — SENATE S6319

the confidence in the world in the people who sit on juries to elect us to office. But all of a sudden we do not trust

them to sit in judgment of their peers.

They sit in judgment of us, do they

not? Are not they usually the finders of

fact? I would think that it would be

difficult to find some standard of fairness where we essentially remove juries from this important process.

Then I was surprised to find in what

is apparently supposed to be an improvement a provision saying that if

we are worried about the backlog of

cases and paperwork reduction and all

of the rest, we tell judges that it is OK

to go above the caps whenever they

think it is necessary, but we can also

count on an additional court proceeding. On the bottom of page 22 in the

Gorton-Rockefeller substitute, it says

that if a defendant does not like the

judge’s decision to go above the caps,

‘‘the court shall set aside the punitive

damages award and order a new trial

on the issue of punitive damages

only.’’.

So what we get back to is essentially

a meaningless provision where we go to

yet another trial if the defendant does

not like the decision the judge has

made. My colleague, Senator LEVIN

from Michigan, I thought came out

here with a lucid presentation of this

problem.

Joint liability I think is the

thorniest issue. Actually in the Labor

Committee, when we were talking

about this question, I may or may not

have said thinking out loud that I

struggled with this question. But I do

not think the substitute does anything

to correct the problem. It eliminates

joint liability for noneconomic damages. Some of my colleagues have referred to this as the ‘‘deep pocket pays

problem.’’ But I think they are wrong.

This is really a ‘‘victim pays problem.’’

I will tell you that it is really a difficult question. Suppose a company is

responsible for only a portion of what

it would take to restore a victim to

whole, compensatory damage. Yet with

joint liability that company might

have to be responsible for more than

its fair share. That does not make a lot

of sense. It does not seem as if it is

fair.

But, Mr. President, now what we

have is a provision which essentially

says to the consumer, to the citizen

that is hurt, to the citizen that is injured, maimed, that they will always

have to assume some of those damages,

if one of the responsible parties cannot

pay. I do not see the standard of fairness. In my State of Minnesota we

came up with what I think is a reasonable compromise; that is, we set a

threshold. I think it was 15 percent.

What we said was that, if you are responsible for less than 15 percent of the

overall damage, then you would not

have to be responsible for more than

your fair share.

But, Mr. President, it does not make

any difference what Minnesota has

done. We have struggled with the problem. We have come up with a middle

ground. But that all is preempted by

this piece of legislation.

Mr. President, it just sounds like a

clever political argument. But it really

is not. So many people have talked

about decentralization. So many people

have talked about relying more on

States and local governments being the

decisionmakers. But in this particular

case, we are preempting some of the

good work that has been done in a good

many States in this country, and I

would put Minnesota at the very top.

Mr. President, there are huge problems with this piece of legislation. It is

a giveaway to corporate wrongdoers. I

think it is a profound mistake. We did

not really have that much debate on

the whole question of the 20-year statute of repose. But, again, let me just

simply say, that regardless of how you

look at it, I think again this is arbitrary and indefensible. What possible

justification is there for it? After all, if

a product is defective and does not hurt

anybody until it is over 20 years old, is

the harm to the victim any less? Is the

responsibility of the manufacturer any

less?

I talked about Patty Fritz from Minnesota. She is pretty well known in our

State, and she is pretty well known in

our country for her courage. In her particular case, her daughter, Katie, was

crushed to death by a defective garage

door opener.

If it had been after 20 years, if the

company had produced this product

which was defective from the word go

but she had only been hurt after 20

years, does that mean the damage to

that family is any less? Does that

mean the responsibility of the company is any less?

Mr. President, we are closing the

courthouse door to people who are hurt

by products produced by some of the

businesses—thank God, not many of

the businesses—within our country.

Some of my colleagues came out on the

floor of the Senate with a bill last

week. Then there were amendments,

which, as I said before, made it a truly

egregious piece of legislation. We were

successful in opposing a good number

of cloture motions. Now the bill has

been stripped away of some of the

worst provisions, but it is still a piece

of legislation which is profoundly anticonsumer, profoundly antiordinary citizen, and I think it tips the scales of

justice way too far in the direction of

corporate wrongdoers and really denies

people some of the redress for grievances that they currently have within

our court system.

Finally, I think there is a gigantic

problem with this Federal preemption.

If a State like the State of Minnesota

has come up with some reasonable middle-ground proposals to deal with the

problems of excessive litigation, to

deal with some of the problems of joint

liability, to try to have some fairness

between the businesses and the consumers and the lawyers, it seems to me

States ought to be able to hold on to

some of the legislation they passed and

not be preempted by this national legislation.

So, Mr. President, I hope we will

have further debate on this piece of

legislation, and I hope my colleagues

will oppose it.

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. STEVENS. 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. STEVENS. Mr. President, I

would like to thank my southern

neighbor, Senator GORTON from Washington, for agreeing to clarify a few

points about S. 565, the Product Liability Fairness Act. I also want to thank

Senator GORTON’s staff for their willingness to work out some of the finer

points of this legislation.

Section 102(c) of S. 565 lists a number

of laws that are not superseded or affected by the act. My first question

seeks to clarify the language in section

102(c)(2). Section 102(c)(2) provides:

‘‘Nothing in this title may be construed to * * * (2) supersede or alter

any Federal law;’’

The committee report at page 28,

footnote 101, gives examples of Federal

statutes that are not superseded by S.

565. The examples in the committee report include the Federal Tort Claims

Act, the Oil Pollution Act of 1990, and

the Trans Alaska Pipeline Authorization Act.

My question to my friend is whether

the language ‘‘any Federal law’’ in section 102(c) also includes Federal common law. I assume that it does and,

therefore, that S. 565 does not supersede any Federal statutory or common

law, such as admiralty law. Would my

friend clarify this point for me, please?

Mr GORTON. The assumption of the

Senator from Alaska is correct. Section 102(c)(2) provides that S. 565 does

not supersede ‘‘any Federal law,’’ and

that includes both Federal statutory

law and Federal common law. The act,

therefore, would not affect any causes

of action or any remedies, including

punitive damages, determined under

Federal statutory or common law, including admiralty law.

Mr. STEVENS. I thank the Senator

from Washington for that confirmation. My second question seeks to clarify the so-called environmental exclusion—section 102(c)(7)—which I support. Could you elaborate on the statutory exclusion and the statement in

the committee report that provides:

‘‘The exception for environmental

cases in this section makes clear that

this act does not apply to actions for

damage to the environment.’’?

Mr. GORTON. I would be happy to

elaborate on this section for the Senator from Alaska. Section 102(c)(7)

reads:
S6320 CONGRESSIONAL RECORD — SENATE May 9, 1995

Nothing in this title may be construed to

* * * (7) supersede or modify any statutory

or common law, including any law providing

for an action to abate a nuisance, that authorizes a state or person to institute an action for civil damages or civil penalties,

cleanup costs, injunctions, restitution, cost

recovery, punitive damages, or any other

form of relief for remediation of the environment * * * or the threat of such remediation.

As the Senator notes, the committee

report explains that the exception for

environmental cases is intended to exclude from S. 565 all causes of action

and remedies that are available under

Federal or State statutory or common

law for damage to the environment.

Therefore, this act would not place a

cap on any punitive damage award or

other remedy under any cause of action

related to damage to the environment,

including an action under a product liability theory.

Mr. STEVENS. Mr. President, I

would like to focus on this point for a

moment, if I may. Section 102(c)(7) excludes from coverage under the bill any

actions for ‘‘remediation of the environment.’’ The section refers to the

Comprehensive Environmental Response, Compensation and Liability

Act of 1980 for the definition of ‘‘environment,’’ which includes the navigable waters, the waters of the contiguous zone, the ocean waters of the

United States, and any other surface

water, ground water, drinking water

supply, land surface or subsurface strata, or ambient air within the United

States. The section does not define ‘‘relief for remediation,’’ which is not a

legal term of art.

It is not clear whether ‘‘relief for remediation of the environment’’ includes all other remedies to make injured parties whole, such as relief for

damage to private property and lost

revenues, or whether the exclusion is

limited strictly to damage to the environment. I note that the committee report states with respect to section

102(c)(7) that the bill ‘‘does apply to all

product liability actions for harm’’

which is defined as ‘‘any physical injury, illness, disease, death, or damage

to property caused by a product.’’ I ask

the Senator if he could please explain

how this exclusion is intended to be applied in the case of an oilspill that

causes damage to the environment and

damage to private property?

Mr. GORTON. The exclusion in section 102(c)(7) would apply to all causes

of action and remedies for damage to

the environment. As the Senator from

Alaska has correctly noted, the bill

would apply to actions under State law

for injury to persons or property that

are caused by a product. As mentioned

earlier, this bill would not apply to any

Federal statutory or common law

cause of action.

To expand on the Senator’s question,

in the case of an oilspill caused by the

failure of a storage tank in which the

plaintiffs seek to recover for both damage to the environment and loss of

property, the rules in the bill would establish the standard of proof and the

limit of punitive damages with respect

to recovery on the basis of damage to

property under any applicable State

law.

The bill would not apply to any aspect of the recovery for environmental

damages, including any recovery for

cleanup costs, remedial measures, damages or penalties for loss of wildlife, or

punitive damages that are assessed for

damage to the environment, whether

under State or Federal law and even if

the cause of action is based on a product liability theory. As is noted on

page 22 of the committee report in the

discussion of the definition of ‘‘harm’’

‘‘it is the nature of the loss that triggers the application of the act’’ with

respect to State law, not the cause of

action used.

Mr. STEVENS. I thank the Senator

for that explanation. My final question

is whether the owner or operator of a

product, such as a tank which contains

oil, who is sued following an environmental accident may sue the manufacturer of the ship or tank under a product liability cause of action without

limitation by this bill if it was product

failure that caused the damage to the

environment? My concern is that the

equipment operator will be unable to

recover fully from the manufacturer.

Ultimately, the original plaintiff may

only be able to recover to the extent

that the operator is able to recover.

Mr. GORTON. I appreciate the Senator’s request for absolute clarity. Further reference to the example of the

ruptured oil tank may best illustrate

the answer to your question. Suppose

the oil tank ruptures as a result of a

manufacturing defect. It leaks oil,

causing damage to the environment

and the neighboring private property,

as well as damage to the tank owner

and the tank.

The statutory construction of the environmental exemption is clear. This

bill will not alter any law under which

any injured party could recover for

damage to the environment.

To the extent that the owner or manufacturer of the tank is liable for civil

damages or civil penalties, cleanup

costs, restitution, cost recovery, punitive damages or any other form of relief ordered to restore, correct, or compensate for damage to the environment, the rules in this bill would not

apply. The bill would apply to an action by the private property owner to

recover under State law for damage to

that property based on the failure of

the tank or on the basis that the oil,

which is also a product, caused the

harm.

Similarly, under section 102(c)(7) this

bill would not apply to third party actions related to environmental damages. For example, the tank owner

could implead or cross-claim against

the manufacturer of the tank for damages awarded against the tank owner

for remediation of the environment

under any theory, including product liability. S. 565 would not apply as a limitation on the causes of action or remedies available to the tank owner in an

action against the manufacturer, but

only to the extent that the tank owner

is seeking to recover against the manufacturer for damages awarded against

the tank owner for remediation of the

environment. Applicable Federal or

State law, other than this bill, would

continue to govern the action with respect to environmental damage.

However, this bill would apply with

respect to any action under a product

liability theory by the tank owner

against the manufacturer for harm, as

defined by this bill, caused by the product. In the case of a tank owner which

has been held liable under a strict liability regime such as that found in

section 1002 of the Oil Pollution Act of

1990, any damages assessed against the

tank owner, including damages for injury to real or personal property

caused by the product, should be considered economic damages to the tank

owner for purposes of this bill, and an

action to recover those economic damages from the manufacturer under a

product liability theory would be without limitation under this bill.

Mr. STEVENS. Mr. President, I

thank my good friend from Washington

for taking the time to clarify the scope

of these two provisions. I want to

thank, again, him and his staff for assisting me and Annie McInervey and

Earl Comstock of my staff to clarify

these issues which are of vital importance to my State.

Mr. GORTON. Mr. President, I do believe there is one other clarification

that needs to be made. The questions

that have been propounded by the Senator from Alaska refer to S. 565. Technically speaking, S. 565 is not before

us. We are dealing with a House bill

and a Senate amendment which incorporated all of the provisions of S. 565 in

it. And so the questions and answers

are applicable equally to that amendment as they would be if the identical

S. 565 were before the Senate.

Mr. STEVENS. Will this still be

called the Product Liability Fairness

Act?

Mr. GORTON. It will be.

Mr. STEVENS. Then our comments

should be addressed, for legislative history, to that act. I thank the Senator

from Washington for clarifying that.

Mr. COATS. Mr. President, this has

truly been a year of reform. Since the

outset of this Congress, the pervasive

theme has been to fundamentally

change a system of government that

has gone awry. Thus far, most of these

efforts at reform have been targeted at

the Congress, and rightfully so. As

some have said, we must first stop the

bleeding. However, there are many

very formidable tasks before us. One of

which we discuss today.

Mr. President, I rise today to dedicate my support to the effort to reform

the product liability system.

Justice in America is fundamentally

rooted in the principles of the equality,
May 9, 1995 CONGRESSIONAL RECORD — SENATE S6321

expedience, and accessibility. Our current system of product liability is in

conflict with all of these principles.

Where product liability cases are

concerned, we certainly, cannot say

that there is equality in the system.

There is a total lack of uniformity in

the current product liability system.

Due to the broad diversity of legal

standards from jurisdiction to jurisdiction, it is absolutely impossible to predict what, when and how you will be

compensated for losses resulting from a

faulty product. Where businesses are

concerned, this unpredictability leads

to disproportionately high risk calculations and insurance rates as companies are forced to calculate the

worst-case-scenario in assessing liability risk.

These risk costs have, not only an

adverse effect on those directly involved in any particular case, but on

all Americans. Disproportionately high

insurance costs have several negative

effects on American business. In each

case, that negative impact effect all of

us.

Confronted with impossible-to-calculate liability costs, American businesses often choose not to introduce

new technologies and innovations into

the marketplace. Thus denying consumers the benefits of enhanced products and services.

Nowhere is this more evident than

the biomedical industry. In my State

of Indiana, there is a large biomedical

industry. Among other things, these

companies make artificial limbs. This

is an industry that provides hope and

freedom to so many people who may

otherwise find their lives limited by

disability. However, due to disproportionate liability costs, the manufacturers of the raw materials utilized in the

construction of these prosthetic device

are increasingly choosing to forego the

market. The sales to the biomedical industry represent such a small percentage of total profits that liability costs

outweigh benefits.

Furthermore, American businesses

are confronted with insurance costs 20

times greater than their European

competitors and 15 times greater than

those of Japanese industries. In addition to making American products

more expensive at home, this adversely

effects competitiveness in a global

marketplace. That means damage to

job creation.

An excellent example of this is a case

in Coatesville, IN. A small community

of around 600 people, Coatesville is the

home of the Magic Circle Corp.—a company employing around 30 people from

Coatesville and Filmore, a small town

next door.

Magic Circle is a small business that

produces riding lawn mowers. The engine of these mowers is manufactured

to automatically shut off when a person gets up from the mower seat. Unfortunately, in a cemetery in a nearby

State, someone decided to tape down

the seat so that the mower continued

to run when that person left it unattended on a hillside. The mower rolled

forward and injured their foot.

That person, the one who taped down

the seat and left the mower unattended

on the side of a hill, sued Magic Circle

for $7 million. There was no alteration

or misuse defense in the State in which

the incident occurred. The amount of

damages requested exceeded the total

of all Magic Circle profits and assets.

In the end, they were forced to pay

$10,000 in attorney fees and its insurance company paid out $35,000 to the

claimant.

There is an interesting footnote to

this case. Officials of a foreign government later contacted the owners of

Magic Circle to see if they would be interested in relocating in that country.

One of the selling points of their presentation was the country’s product liability laws.

There are those who argue that the

threat of large punitive damages is

what makes America’s products safe.

This argument is fundamentally

flawed. What makes American products

the best in the world is not a lotterystyle product liability legal system.

The American consumer operating in a

free market, who demands quality and

excellence, is what makes American

manufactured products the most highquality products in the world today.

However, the impact of our current

product liability system is beginning

to take its toll. If we do not take action now, we will be in danger of losing

our competitive edge.

Even the most adamant defenders of

our current system certainly cannot

say that it is expedient. A GAO report

shows that product liability cases take

an average of 21⁄2 years to move from

filing to verdict. One case cited took

nearly 10 years to move through the judicial process.

The cynical result of these delays is

that both parties are ultimately forced

to negotiate compromises because they

are overwhelmed with legal costs.

These compromises often have little to

do with guilt or innocence and much to

do with predatory lawyers and a bizarre patchwork of legal standards and

procedures.

Mr. President, I am an attorney.

Many of my distinguished colleagues

are attorneys. I am not here to attack

lawyers. However, in the legal industry, as in any industry, there are those

who lack scruples. There are those who

will pursue personal financial interests

above ethical considerations. In civil

liability cases, lawyer’s fees account

for 61 percent of funds expended on

product liability claims. These expenses include both defendant and

plaintiff costs. The net effect of this incredible statistic is that realistic accessibility to the legal system and

legal defense is a mere myth in most

situations.

Mr. President, clearly there is a need

for fundamental reform to the product

liability legal system. We have debated

this issue since I came to Washington.

Fundamental product liability reform offers the hope of removing one of

America’s most destructive obstacles

to job growth. When frivolous suits are

traded, when weak cases are brought,

when litigation explodes, our economy

is crippled. New technology never

comes to market. Medical costs increase. The doors to factories close. Insurance costs increase. American products are unable to compete around the

world. Perhaps most sorrily, a legal

system that was once the envy of the

world, has been twisted and distorted

to a point where the very principles on

which it was originally constructed

cannot even be recognized. We must

turn this tide.

A Rand Corp. study found that most

of the money awarded in injury cases is

taken by the legal process itself. Less

than half actually gets through to victims. According to a GAO study, 50 percent or more of payments made by defendants in a product liability trial

goes to lawyers. Victims get less than

50 percent. This same report discovered

that when a case is appealed, defense

costs can actually double.

Estimates vary, but one professor at

the University of Virginia has estimated that when all the costs are finally counted, a mere 15 percent of injury litigation awards go to a victim.

Innocent victims must find relief and

the help they deserve—and this bill

preserves that obligation. But a runaway legal system must not be allowed

to make victims of us all.

The current state of product liability

law does not work for victims, it does

not work for manufacturers, for consumers, for America.

Like so many of the reforms that we

have already passed and stand to take

action on, product liability reform is

long overdue and at a critical stage.

For the sake of our workers, for our

economy, and for the victims trapped

in a legal morass, I urge my colleagues

to support this legislation.

Mr. STEVENS. I suggest the absence

of a quorum.

The PRESIDING OFFICER (Mr.

SANTORUM). The clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. GORTON. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. GORTON. Mr. President, by consent of all parties, I ask for action on

the Gorton-Rockefeller-Dole amendment.

VOTE ON AMENDMENT NO. 709, AS MODIFIED

The PRESIDING OFFICER. Is there

further debate on the amendment? If

not, the question is on agreeing to the

amendment No. 709, as modified.

The amendment (No. 709), as modified, was agreed to.

Mr. GORTON. Mr. President, I move

to reconsider the vote by which the

amendment was agreed to.

Mr. KYL. I move to lay that motion

on the table.
S6322 CONGRESSIONAL RECORD — SENATE May 9, 1995

The motion to lay on the table was

agreed to.

Mr. DOLE addressed the Chair.

The PRESIDING OFFICER. The Senator from Kansas.

Mr. DOLE. Mr. President, I ask unanimous consent to proceed as in morning business for the next 15 minutes.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. I thank the Chair.

(The remarks of Mr. DOLE pertaining

to the introduction of S. 770 are located

in today’s RECORD under ‘‘Statements

on Introduced Bills and Joint Resolutions.’’)

Mr. DOLE. Mr. President, I suggest

the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. GORTON. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. GORTON. Mr. President, I ask

unanimous consent that it be in order

for me to offer the amendment I have

in my hand which the Democrats have

also seen and it be in order notwithstanding the provisions of rule XXII.

This is the so-called additur fix amendment requested by the White House.

The PRESIDING OFFICER. Is there

objection?

Mr. HARKIN. Mr. President, on behalf of Senator HOLLINGS, I object.

The PRESIDING OFFICER. Objection is heard.

Mr. GORTON. Mr. President, 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.

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, during

the course of debate in discussing the

breadth of the products liability bill, I

mentioned that a nuclear power plant

or a component part thereof could be

included within the purview of the

products liability bill. I also stated

that maybe the bill might not cover a

nuclear power plant or a component

part thereof.

I, in effect, raise two issues: One

being the issue of pain and suffering,

and the other being the statute of

repose. In regard to these issues, I mention the Chernobyl melt-down.

Since that time, my office has been

contacted by reliable and informed individuals who feel that I misspoke on

this issue.

First, they say the difference between design and operation of the United States and Soviet plants make a

Chernobyl-style accident virtually impossible.

Second, they state that the bill

would not in any way prohibit compensation for injured parties in the

event of a nuclear accident regardless

of the time of the manufacture of the

plant or components. They particularly

point out that Congress has provided a

sure and certain recovery system for

any member of the public injured as a

result of a nuclear power plant accident—the Price-Anderson Act—and,

further, that Congress in 1988 increased

the amount of funds available for

claims to more than $6.8 billion and

pledged to review the situation in the

case of an accident where more funds

were needed to compensate the injured.

The nuclear power industry, I am told,

has willingly agreed to be assessed up

to $63 million against each licensed reactor in order to pay damage claims.

The nuclear power industry has met

this obligation to provide a clear and

reliable source of liability compensation when it is justified.

While I have not researched this

issue completely, I do find that following the case of Klick v. Metropolitan

Edison Co. (1986, CA3 Pa) 784 F2d 490,

which limited certain damages to an

‘‘extraordinary nuclear occurrence,’’

Congress did amend the Price-Anderson

Act to include a ‘‘nuclear incident.’’

In the exclusion clause of the products liability bill there is a statement

to the effect that the bill does not supersede any Federal law.

I have great confidence in the knowledge and reliability of the individuals

who have brought this to my attention,

and I would like to put the record

straight. I will continue to research

this matter; and if there is anything

different from what I have been told, I

will make it known to the Senate.

I yield the floor and suggest the absence of a quorum.

The PRESIDING OFFICER (Mr.

DEWINE). The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. BURNS. 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. BURNS. Mr. President, I ask

unanimous consent that I may be allowed to proceed as in morning business for the next 10 minutes.

The PRESIDING OFFICER. Without

objection, it is so ordered.

(The remarks of Mr. BURNS pertaining to the introduction of S. 768 are

printed in today’s RECORD under

‘‘Statements on Introduced Bills and

Joint Resolutions.’’)

Mr. BURNS. 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. BYRD. Mr. President, I ask unanimous consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

UNITED STATES-JAPAN TRADE

RELATIONS

Mr. BYRD. Mr. President, I have a

Senate resolution which has been

cleared with both leaders, and they are

both cosponsors. I have the clearance

from them to take up the resolution

and proceed with its immediate consideration. I therefore send a Senate resolution to the desk and I ask unanimous

consent that the Senate proceed to its

immediate consideration.

The PRESIDING OFFICER. Without

objection, it is so ordered. The clerk

will read the resolution by title.

The legislative clerk read as follows:

A resolution (S. Res. 118) concerning United States-Japan Trade Relations.

The Senate proceeded to consider the

resolution.

Mr. BYRD. Mr. President, this resolution is being jointly cosponsored by

Senators DOLE, DASCHLE, BAUCUS,

REID, ASHCROFT, WARNER, LEVIN, HOLLINGS, PRESSLER, DORGAN, BROWN, and

SARBANES.

Mr. President, the long and difficult

negotiations between the United States

and Japan over United States access to

the Japanese automotive market collapsed last Friday, May 5, 1995, in

Whistler, Canada. Japan simply cannot

kick the habit of a closed automotive

market, that is the antithesis of free

trade. It is not clear as to whether the

Japanese will return to the negotiating

table with a changed position, or

whether Japan’s automakers will

themselves announce an agreement

with specific measures of progress to

allow American products to compete

fairly there. Let us hope that they do

break the impasse, but this disappointing result of strenuous, long-term efforts by the United States to get fair

access to this lucrative market brings

us to a watershed in our trading relations with Japan. This blow cannot

help our overall relationship with a nation that we have worked with for decades to promote our mutual goals of security, stability, and peace in the Pacific.

My distinguished colleague from

West Virginia, Senator ROCKEFELLER,

stated on this floor this past Wednesday that the nature of the difficult

problem in getting fair access to Japan’s market. Japan rigs her market

against us, despite economic pressures

to be more open. Despite the recent increase in the value of the yen, which

would make United States products

more competitive in Japan, Japan

keeps her market closed to cheaper imports and overprices goods offered to

the Japanese consumer. Increased savings which should be passed on to Japanese consumers, resulting from the increased strength of the yen vis-a-vis

other currencies are never passed on to

the Japanese consumer. The increased

profits which are accumulated by Japanese producers are used to subsidize exports, keeping prices for those same

goods artificially low here in the United States, making Japan artificially