S5694 CONGRESSIONAL RECORD — SENATE April 26, 1995

dollar a jury awards to an injured person goes to the attorney. This hardly

seems like a system that benefits the

consumer.

There is a tremendous amount of

support for this liability lawsuit reform in my home State of Montana. In

a recent poll, 89 percent of Montanans

indicated that the current system has

problems and it should be fixed. There

is a growing awareness that the only

winners in the lawsuit lottery game

are the attorneys and the professional

plaintiffs.

S. 565 will reform the current system

to make it more effective. We must

protect people from careless manufacturers and defective products. This bill

does not compromise that objective. It

just ensures that we do so in a fashion

that still allows American businesses

to compete and grow in a global economy.

Congress has the opportunity to reform our product liability system, and

I hope that we do not miss this window

of opportunity and that we take advantage of it. This bill must become law. I

ask my colleagues to support it.

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

quorum call be rescinded.

The PRESIDING OFFICER (Mr.

BURNS). Without objection, it is so ordered.

Mr. DOLE. Mr. President, I want to

signal my strong support for S. 565, the

Product Liability Fairness Act. My distinguished colleagues, Senators GORTON, ROCKEFELLER, and PRESSLER, are

to be commended for their leadership

on this particular legislation.

This legislation is needed for several

reasons. Our present system of liability

has been estimated to cost the American economy an astounding $117 billion. In addition to this tort tax, our

system of liability stifles innovation

and prevents better—often safer—products from reaching the marketplace.

The present system of liability also undermines American competitiveness,

both here and abroad.

There has been a concerted effort to

spread misinformation about these reforms—scare tactics—in order to hide

the real issues. So let me be clear: The

reforms contained in this bill, despite

efforts to portray them otherwise, do

not prevent persons who are harmed

from recovering full compensation for

their injuries. In fact, this legislation

addresses abuses that undermine such

compensation. Nor does this legislation

alter civil rights and environmental

laws in any way. In fact, the legislation explicitly excludes such Federal

laws.

What this legislation is about is fairness. Our legal system is one of the

bedrocks of our free society. But over

the last 25 years, it has succumbed to

efforts to turn it away from American

principles, individual responsibilities

and justice. In many cases, our system

of liability resembles a lottery, where

damage awards become windfalls and

often deserving plaintiffs do without.

Thus, I strongly support the provisions of this bill that seek to rein in

abusive punitive damages. Punitive

damages are not intended to compensate victims, as the name suggests,

they are intended to punish wrongdoing. But punitive damages have been

widely abused in recent years, and the

problem now affects every American.

Mr. President, I plan to offer an

amendment later today. As I understand, after a couple of votes and after

disposition of the Brown amendment, I

will be recognized to offer an amendment. That may be later tonight, 7 or

8 o’clock or it may be sometime tomorrow morning. In any event, I will offer

the amendment later and expand on

these protections at that time and

what I believe the amendment does and

does not do.

But I am talking about protection for

Little League players, the Girl Scouts,

and small business. Groups like that

are at risk from abusive lawsuits and

overwhelming punitive damages. I hope

to give you some examples of how this

affects the Girl Scouts, Little League,

and others—how many boxes of cookies

they have to sell to protect themselves

from frivolous lawsuits, in some cases.

We cannot allow the threat of liability to keep hard-working Americans

from volunteering their time to help.

We must not allow the threat of liability to sink small businesses who often

can barely keep their doors open.

Although I support the RockefellerGorton bill, I believe we cannot simply

stop with reforms that help big business alone. We have to take a look at

small business and some of the charitable groups and other groups that

most American families have contact

with. It is as much our responsibility

to help the little guy, and that is what

my amendment will achieve.

This amendment leaves the underlying provisions on the measure of punitive damages intact. Thus, punitive

damages would be limited to three

times economic damages, or $250,000,

whichever is greater.

What my amendment would do is to

take the same provision in the underlying bill and extend these protections to

Americans who are often least able to

cope with outrageous punitive damages.

Thus, instead of limiting these protections to product liability actions,

my amendment would extend them to

‘‘any civil action affecting interstate

commerce.’’

I emphasize again that this amendment in no way undermines full compensation to victims, nor does it alter

Federal laws.

Most of the issues raised by the

Rockefeller-Gorton bill are well

known. The Commerce Committee has

considered similar legislation in the

97th, 99th, 100th, 101st, and 102d Congresses, and a similar bill was considered on the floor in the 102d and 103d

Congresses. We will have a reasonable

time to debate these issues, but it is

my hope we will not engage in dilatory

tactics to distract the Senate from

moving forward on this important legislation.

Having said that, I hope we will complete action on this legislation sometime midweek next week. I know that

on Friday of this week the Democrats

have a conference outside the city and

Republicans have a conference inside

the city. But we will be in session late

tonight and late, late tomorrow night

and, hopefully, we can at that point see

the end when we might complete action on the legislation.

It would be my intention to file a cloture motion if it appears we cannot

complete action in a timely fashion. I

will say, as I have said before, the Senate has a lot of work to do to catch up

with many things that have been sent

to us from the House. My view is we

will get it done. It will mean we will

have fewer recesses in the Senate. It

means we will be here many more days

probably than the House will be in the

next 100 days. It will mean long evenings. But I hope my colleagues on

both sides of the aisle understand that

we have a responsibility, that we all

made statements to get here to the

voters of the United States, and we intend to keep our word to the American

voters, win, lose, or draw.

So it is my hope we will have a very

productive several weeks before the

brief Memorial Day recess and that

will be about the last recess, maybe

with the exception of a couple of days

July 4 and 5 before we decide what to

do with the August recess. It is not a

statutory recess. It can be changed by

resolution and it may be if we cannot

complete our work in time we might

have to abbreviate the August recess. I

hope that is not the case, because

many of my colleagues have made

plans to be with their families and

made other plans. So we will do the

best we can to accommodate people on

both sides of the aisle.

I do believe that we have a responsibility. We know it takes longer in the

Senate. We know the Founding Fathers

planned it that way. This was to be the

deliberative body and we are deliberate, believe me. Sometimes it is almost too deliberate. Today is an exceptional day because many of our colleagues are attending services for

former Senator John Stennis. I think

25 of our colleagues are in Mississippi

today. So that necessarily means we

may not accomplish much until they

return about 5 o’clock.

RECESS UNTIL 2:30 P.M.

fMr. DOLE. Mr. President, I am advised by staff and the manager of the

bill on this side, Senator GORTON, that

it will be about an hour before there

will be speakers available. They are
April 26, 1995 CONGRESSIONAL RECORD — SENATE S5695

now in a private session, as I understand it, discussing this measure.

I move that the Senate stand in recess until the hour of 2:30 p.m.

The motion was agreed to.

Thereupon, the Senate, at 1:22 p.m.

recessed until 2:29 p.m.; whereupon, the

Senate reassembled when called to

order by the Presiding Officer (Mr.

ABRAHAM).

Mr. DOLE. Mr. President, I understand there are speakers on the way to

the floor. In the meantime, I suggest

the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mrs. BOXER. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

CONDOLENCES TO CITIZENS OF

OKLAHOMA CITY

fMrs. BOXER. Mr. President, I wanted

to add my voice, on behalf of the people

of California, my voice that is going to

say today that we send our love, our

condolences, and our sympathies to our

friends in Oklahoma.

A couple of California residents happened to be in that building at the time

of the blast so we certainly share in

this tragedy. I send my words of thanks

to the incredible people who have

shown up from all parts of this country

to help the people of Oklahoma City

cope with this tragedy.

I have a lot of thoughts and feelings,

but rather than say them today, I will

be writing them down because I do not

want to misspeak or in any way say

anything that could be misconstrued.

Today I just wanted to say that I am

very fearful that what occurred in

Oklahoma City could be a signal that

America is losing something very special that we have always had, which is

an ability to take our dissent and take

it right to the ballot box.

If we lose that, and if we all do not

guard against violence, we will lose the

very essence of our Government, the

Government of, by, and for the people.

When we attack people who work for

the Government, we are attacking our

neighbors and friends, and indeed we

are attacking ourselves.

One of the things that has concerned

me for a long time is the dropoff in

voter participation that I have seen.

There are many people that are disgruntled and discontented with laws

that are passed, the debates that we

have here.

I encourage them to participate, to

take that frustration and those feelings and organize politically and get

your candidates here to the U.S. Senate, to the House of Representatives—

whatever a person’s philosophy, be it

on the left, right, in the center, it matters not.

The beauty of what we have in America is this incredible democracy where

everyone has a chance to get here. Certainly I got here very unexpectedly

myself, a first-generation American—

my mother never even graduated from

high school—and I got to the U.S. Senate.

This is an open country and there is

no need to harbor bad feelings toward

one another. Here in this Senate we debate many times and we sometimes get

angry at each other because we disagree with each other. However, it is

done with respect. I only hope in the

years that I am here it will continue to

be done with respect.

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

fThe Senate continued with the consideration of the bill.

Mrs. BOXER. Mr. President, we have

many problems that need fixing in our

country. I just have to say that product liability law should not be one of

the problems. It is not a problem. Yet

we are here, facing this bill, S. 565, the

Product Liability—it is called Fairness—Act when this is not a problem.

Why do I say this? First, this country

has an enviable record of producing

safe products. All the countries in the

world wonder how we do it. Well, we

have laws that hold people responsible

if they produce a dangerous product.

The people who want this bill want to

change that law.

Why should we tinker with laws that

contribute to one of the best safety

records for products known to human

kind? The only thing I can imagine is

that there are some special interests

who do not like it.

That is why, I think, we are here discussing S. 565, because it certainly is

not going to contribute to safer products. Indeed, I say, if it passes—and I

am doing everything I can so that it

does not pass and it does not become

law—it is going to contribute to unsafe

products, products that harm the people of my State and products that will

harm the people of this country.

Second, there are those who say that

we have an explosion of frivolous lawsuits related to product liability, to

dangerous products. I want to say unequivocally, and I will repeat it many

times during this debate, that it is a

figment of someone’s imagination that

there is an explosion of litigation

around dangerous products.

Let me give the facts, because there

is a lot of rhetoric around here. Product liability lawsuits are only onethird of 1 percent of all civil lawsuits

in State courts. Let me repeat: They

are one-third of 1 percent of all civil

lawsuits in State courts.

Listen to this: In 25 years, the last 25

years, there have only been 355 punitive damage awards. Now, what is a

‘‘punitive damage award?’’ Punitive—

meaning to punish. When a company

harms an American citizen, a person

using a product, because of shoddy

manufacturing and a mistake was

made, and the person is injured, say,

burned beyond recognition, that company is sued for punitive damages,

meaning, ‘‘Let us punish the people

who caused this grief’’—sometimes for

loss of life and limb.

In a single year during that 25-year

time period, there were an average of

11 punitive damage awards. Yet this

bill is going to limit punitive damages—the ability of an average person

to walk into court and get justice—because this Congress has decided it

knows better than a jury. There is no

wave of frivolous lawsuits here. We

know where the frivolous lawsuits are:

businesses suing businesses. That is

where the explosion is, but this bill

does not deal with that. This is the

Business Protection Act.

I find it really intriguing that many

of the Senators who were pushing this

bill, which would take precedence over

State law, are the very ones who say

let the States do everything else. ‘‘Oh,

let the States do the School Lunch

Program. But we know better, all of a

sudden, than the States and the State

legislatures, when it comes to products

liability.’’ I find that really astounding.

This is a rigid law. How could we determine now what the cap on punitive

damages should be? I assure my colleagues, if a multibillion-dollar corporation makes a mistake in building a

bus and the bus explodes, to punish a

multibillion-dollar corporation $250,000

or three times economic damages is

not going to cut it. Why not just repeal

punitive damages while you are at it?

The reason is they cannot get the votes

to do that.

This law would pretend to know all

the facts of every case in advance without seeing them. We are the all-seeing

Senators here. We are the all-knowing

Senators here. We know every case in

advance here, and we can say here,

without any problem, we ought to

limit the ability of juries and judges to

make awards. We know all the scientific evidence, I suppose, and all the

circumstances under which a product

was sold and manufactured. That is

what this bill says.

There are billions of products manufactured each and every year, and this

bill says we can foresee that under no

circumstances should a company have

punitive awards greater than $250,000,

or three times economic damages. We,

the almighty Senators, know—better

than a jury, better than the States.

S. 565 would shift the current level

playing field against the average person in favor of big corporations and

there is no question about it. It would

remove much of the responsibility of

manufacturers and sellers of dangerous

products. They do not have to fear a

big jury award. They can just write it

off as a cost of business. So what if a

drug you took made you infertile? So

what if a product your child got a hold

of caused that child great damage to

his brain or his limbs? It would take

away the hard-won rights of average

citizens to a safe marketplace for