S5736 CONGRESSIONAL RECORD — SENATE April 26, 1995

manufactured a dangerous product, engaged in employment discrimination,

or was guilty of medical malpractice,

could still be forced to pay the other

side’s legal fees. I believe it is bad public policy to allow wrongdoers to escape paying their own legal bills when

they are proved on the merits in a

court of law to be at fault.

I do not disagree that Congress

should encourage parties to settle their

claims. Certainly all Americans, including victims of unsafe products or

medical malpractice, prefer a quick

and certain resolution of their claims.

That is why plaintiffs will, in all likelihood, accept settlements offers if they

are just and reasonable. There is no

need to impose draconian measures

that greatly infringe on the ability of

all individuals to access the courts. I

cannot think of anything in the history of American jurisprudence that

would support the enactment of such a

provision, and I urge my colleagues in

the Senate to reject this approach.

Nor do I support efforts to place arbitrary caps on noneconomic damages.

The fact that noneconomic damages

are difficult to precisely value does not

mean that the losses in those areas are

not real. Noneconomic damages compensate individuals for the things that

they value most, the ability to have

children, the ability to have your

spouse or child alive to share in your

life, the ability to look in the mirror

without seeing a permanently disfigured face. If a company acts in a

manner that robs people of these precious gifts, we should ensure that the

injured party can recover fully for

their loss through the jury system. We

should not limit the ability to recover

with an arbitrary cap.

In addition, I will oppose attempts to

broaden this bill beyond the area of

product liability. I know that a number

of Senators have broader ‘‘civil justice

reform’’ amendments, that would extend the provisions of this bill to every

civil litigation claim filed in State

court, or medical malpractice amendments. As I mentioned above, my support for product liability reform is

based both on the constitutional power

given Congress to regulate interstate

commerce, and the need that has been

demonstrated—after many years of

study—for a uniform approach in the

product liability area. The debate on

civil justice reform and medical malpractice should be left for another day.

This is particularly true considering

the wide-ranging implications that a

number of proposed amendments would

have on the enforcement of our Nation’s civil rights and antidiscrimination laws. Enacting the broader ‘‘civil

justice reform’’ bills that have been

proposed could cause title VII of the

Civil Rights Act of 1964, the Americans

with Disabilities Act, or the reconstruction-era civil rights legislation to

become ‘‘toothless tigers.’’ We must

not stand by and let Congress repeal

our Nation’s civil rights protections

under the guise of civil justice reform.

Finally, I would like to express my

continued opposition to the FDA excuse, a provision that Senator DORGAN

and I worked to remove last year. I am

pleased that Senator ROCKEFELLER and

GORTON did not include the FDA excuse

in this year’s bill.

Mr. President, as I stated at the outset, I do not oppose some product liability reform at the Federal level. Indeed, I am pleased to see Congress debating the standards that should apply

in the product liability area, and I hope

to work with Senators ROCKEFELLER

and GORTON to craft moderate, bipartisan legislation. I believe the Product

Liability Fairness Act that was reported out of the Commerce Committee strikes a reasonable balance between the need to preserve access to

the courts, and the need to curb frivolous lawsuits.

That is not to say I believe this bill

is perfect. I have a number of concerns

with the legislation as currently drafted, concerns that I have raised with

Senator ROCKEFELLER, and concerns

that my staff has made clear to Senator ROCKEFELLER and Senator GORTON’s staff. In the first instance, I

would like to see the punitive damage

provisions altered to accord equal

treatment to noneconomic damages.

Under S. 565 as currently drafted, punitive damages are limited to $250,000 or

three times economic damages, whichever is greater. By excluding noneconomic damages from this calculation, the bill shortchanges the women

who do not work outside the home,

children, the elderly, and others who

may not have large amounts of economic damages. While I support the notion of making punitive damages proportionate to the harm cased by the

product—the goal that the punitive

damage limitation is intended to accomplish—that harm should not be

limited to out of pocket costs or lost

wages. Noneconomic damages can often

be difficult to calculate, but that does

not make them any less real. As a notion of fundamental fairness, any congressional attempts to create a punitive damage standard should include

both economic and noneconomic damages in its formula.

Nor do I feel the bill as currently

drafted strikes the proper balance in

the area of creating ‘‘National, uniform

standards,’’ it will not completely level

the playing field in all 50 States. If

anything, I wish the current bill went

farther in pre-empting State law in the

product liability area. National standards should be just that; standards that

apply in all 50 States. For example, if

the Federal Government wishes to establish a 20-year statute of repose, that

should be the statute of repose, States

should not be allowed to establish a

lower statute that will prevent consumers from suing after only 12 or 15

years. Again, I have raised this concern

with Senator ROCKEFELLER, and I will

continue to raise it in the coming days.

Yet while S. 565 is not perfect, it represents a good start. If this bill remains substantially the same, I intend

to vote for cloture, as I stated very

clearly on the floor of the Senate last

year. It is not appropriate for the Senate to continue to filibuster an issue

that clearly needs to be addressed. The

current system is too slow. The transaction costs are too high. Given that

our markets are now national and global in scope, Congress, which has authority over interstate commerce, has

a responsibility to examine this problem.

The issue of product liability reform

has been before the Senate for well

over a decade now. I believe that everyone who is interested in our Civil Justice System should have come to the

table and worked with the Commerce

Committee, with Senators ROCKEFELLER and GORTON to address and resolve the underlying issues. If you do

not feel this bill is the right one, submit a counterproposal. If you feel there

are still changes that need to be made,

put them forward.

But to simply refuse to even discuss

the issue is, in my opinion, irresponsible. It is gridlock. It is not in the best

interest of consumers, it is not in the

interests of business men and women,

it is not in the interests of employees,

and it is not in the interest of our

country.

I do want to caution, however, that

my commitment to vote for cloture is

limited to the bill as reported by the

Senate Commerce Committee. I do not

think that I am alone in that respect;

indeed, I believe that the prospects of

enacting a product liability bill will be

vastly improved if the Senate rejects

amendments to broaden the bill beyond

its current scope, or to add the dangerous, anticonsumer provisions in the

House legislation. If cloture is not able

to be invoked, there will be many who

will try to blame the democrats. In

truth, however, if this bill does not

clear the Senate, it will be because the

majority on the other side of the aisle

was more interested in making a political point than in making a law. It will

be because they failed to keep the bill

narrow enough and fair enough to command the supermajority necessary to

move this bill to final passage.

So, Mr. President, in conclusion I

would just say I hope in the ensuing

weeks we will be able to debate, and I

am sure we will debate in detail, the

particular provisions of S. 565. But at

this point, based on the legislation before us, I am prepared to support a vote

for cloture so we can actually get on

the legislation and get beyond filibuster. I yield the floor.

ORDERS FOR THURSDAY, APRIL

f27, 1995

Mr. SANTORUM. Mr. President, I

ask unanimous consent that when the

Senate completes its business today, it

stand in recess until the hour of 9:30

a.m. on Thursday, April 27, 1995; that

following the prayer, the Journal of

proceedings be deemed approved to
April 26, 1995 CONGRESSIONAL RECORD — SENATE S5737

date, the time for the two leaders be

reserved for their use later in the day,

and there then be a period for the

transaction of morning business, not to

extend beyond the hour of 10:30 a.m.,

with Senators permitted to speak for

up to 5 minutes each, with the following exceptions: Senator LOTT for 10

minutes, Senator THOMAS for 15 minutes, Senator PRYOR for 10 minutes,

Senator HATCH for 5 minutes, Senator

HARKIN for 10 minutes, and Senator

DORGAN for 10 minutes; further, at

10:30, the Senate immediately resume

consideration of H.R. 956, the product

liability bill.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. SANTORUM. For the information of all Senators, votes can be expected to occur throughout Thursday’s

session of the Senate and the Senate

may be asked to be in session into the

evening in order to make progress on

the pending bill.

RECESS UNTIL 9:30 A.M.

TOMORROW

Mr. SANTORUM. Mr. President, if

there is no further business to come before the Senate, I now ask unanimous

consent that, in further respect of the

passing of the Senator from Mississippi, Senator John Stennis, the

Senate stand in recess under the provision of Senate Resolution 111.

There being no objection, the Senate,

at 9:10 p.m, recessed until Thursday,

April 27, 1995, at 9:30 a.m.