S6148 CONGRESSIONAL RECORD— SENATE May 4, 1995 

anti-Western sentiment. Since its inception, Israel has experienced regional 

opposition from dictators such as 

Egypt’s Gamal Abdel Nasser and Iraq’s 

Saddam Hussein. Yet Israel has flourished amidst such hostility. Through 

open, democratic elections, majority 

rules representation, and the support 

of her allies, Israel has proven that a 

democracy can succeed in a region of 

otherwise undemocratic nations. Today 

we applaud the tenacity and the vision 

of the Israeli people and their success 

in making democracy work for nearly 

half a century. 

Israel’s charter reads that the new 

state ‘‘will rest upon the foundation of 

liberty, justice, and peace as envisioned by the prophets of Israel, and 

that it will be loyal to the principles of 

the United Nations Charter.’’ Almost 

immediately, President Truman recognized the similarity between the 

United States Constitution and the 

Israeli proclamation and became the 

first foreign leader to endorse the 

newly formed state. With the help of 

allies like the United States and the 

path-breaking leadership of individuals 

such as Menachim Begin and Former 

Egyptian President Anwar Sadat, 

Israel has been able to maintain and 

even expand its strategic alliances 

throughout the world. 

Mr. President, the State of Israel has 

made tremendous progress over the 

past 47 years. Israel has emerged as a 

scientific and technological leader. 

Last year, the Israeli economy grew 

more than 7 percent—a growth rate 

higher than the more advanced economies. This is clear evidence of Israel’s 

commitment to progress, and the willingness of countries all over the globe 

to recognize Israel as a viable trade 

partner. The Israeli people have repeatedly looked beyond the events of the 

day and maintained a focus on the need 

building a strong scientific and technological base. Neither terrorism nor war 

has diminished their desire to maintain 

a strong, independent nation. 

Without a doubt, the people of Israel 

could not have flourished so quickly 

without the support of friends and family living abroad. By conveying their 

support for Israel, Jewish people living 

in the diaspora have demonstrated 

their commitment to a Jewish homeland. Israeli Foreign Minister Shimon 

Peres recently stated that, ‘‘No nation 

has been helped as much by its brothers and sisters.’’ Americans of all religions and creeds are brothers and sisters of the people of Israel. Our nations 

share a bond of similar values. Our experiences are their lessons. Israel and 

the United States of America have 

demonstrated that a democratic society can withstand the forces of hate, 

oppression, and terror. That is why we 

have embraced Jews living within this 

Nation and have pledged our support to 

their homeland. 

In spite of a housing shortage, Israel 

maintains an open door to Jewish immigrants. The Israeli Government has 

made it clear that it will not refuse the 

admission of Jewish immigrants due to 

external political pressures. To do so 

would contradict a major principle of 

the Jewish faith—that ‘‘all Jews are responsible for one another.’’ President 

Weizman recently reaffirmed this belief by insisting that, ‘‘The significance 

of sons and daughters coming to Israel 

in large numbers to feel and breathe 

the atmosphere cannot be overemphasized. Israelis, on their part, will take 

them to their hearts.’’ This long-standing policy has been a beacon of hope for 

the 600,000 Soviet and 50,000 Ethiopian 

Jews who fled their besieged countries 

and settled in their new homeland. 

Today’s celebration of Israeli independence should bring to mind the determined spirit of the Jewish people. 

After centuries of struggle and persecution, the Jewish people finally have a 

cultural, political, and religious sanctuary. To our friends in Israel, we 

Americans share in your continuing efforts to achieve regional peace and the 

further economic progress of your 

homeland. The celebration of Israeli 

independence is a celebration of the 

permanence of democracy. We recognize that no force can defeat your spirit of self-determination. In the words of 

Foreign Minister Shimon Peres, ‘‘neither war not holocaust nor threats nor 

animosity could cut the energy of your 

people.’’

Mr. President, today is a great day 

for all Jewish people and all people in 

democratic societies. The nation of 

Israel stands as a great tribute to the 

fortitude of the human spirit. I am 

pleased to join with my colleagues in 

wishing the Jewish people, especially 

those in my home State of South Dakota, a happy and peaceful 47th Yom 

Ha’atzmaut. 

f 

CONCLUSION OF MORNING 

BUSINESS 

The PRESIDING OFFICER. Morning 

business is now closed. 

f 

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT 

The PRESIDING OFFICER. Under 

the previous order, the Senate will now 

resume consideration of H.R. 956, which 

the clerk will report. 

The assistant legislative clerk read 

as follows: 

A bill (H.R. 956) to establish legal standards and procedures for product liability litigation, and for other purposes. 

The Senate resumed consideration of 

the bill. 

Pending: 

(1) Gorton amendment No. 596, in the nature of a substitute. 

(2) Abraham amendment No. 600 (to amendment No. 596), to provide for proportionate 

liability for noneconomic damages in all 

civil actions whose subject matter affects 

commerce. 

(3) Kyl amendment No. 681 (to amendment 

No. 596), to make improvements concerning 

alternative dispute resolution. 

(4) Hollings amendment No. 682 (to Amendment No. 596), to provide for product liability insurance reporting. 

Mr. GORTON. Mr. President, I yield 

10 minutes to the Senator from Arizona. 

Mr. KYL. Mr. President, I thank the 

Senator from Washington for yielding. 

First, I want to begin by saying that 

the comments of the Senator from 

Georgia just now are right on the mark 

in terms of the amendment that we 

will be voting on. I certainly subscribe 

both to what he said and what the Senator from Washington has previously 

said about this. 

My conversation, Mr. President, this 

morning, has to do with a very specific 

amendment which we will be voting on, 

the Kyl-McCain amendment, which 

will have the effect of striking section 

103 of H.R. 956. 

This amendment preserves State law 

on alternative dispute resolution procedures and ensures the plaintiffs and 

defendants are treated equally through 

the ADR, or alternative dispute resolution process. 

The amendment strikes section 103, 

which says when alternative dispute 

resolution procedures are employed, 

these procedures are enforceable only 

against the defendant, not against the 

plaintiff. Currently, of course, under 

the State laws under which this would 

be applied, ADR provisions are equally 

applicable to the plaintiffs and to the 

defendants. Of course, it should remain 

that way. 

Mr. President, a fundamental tenet 

of American jurisprudence is that all 

parties go into court with equal rights. 

As a matter of fact, Americans, I submit, would not submit their disputes, 

their lives, and their fortunes to a decision by the judge or a jury if they knew 

that the deck was stacked against 

them when they began. 

That is precisely what this section 

103 of the bill does today. That is why 

we are striking this section. 

What this section says is that when a 

State has an alternative dispute resolution procedure, the parties may use 

it. Well, that adds nothing to current 

law. That is the law of the States. Parties can take advantage of those alternative dispute procedures, and they 

should. 

As a matter of fact, we are trying to 

encourage more alternatives to proceeding through the actual trial of the 

case. The second part of section 103 

provides for the notice by one party or 

the other that that party wants to invoke those procedures. Again, this 

amendment or this bill changes nothing in that regard. 

The part that changes the law and 

that we wish to strike is titled ‘‘Defendant’s Penalty for Unreasonable Refusal,’’ meaning unreasonable refusal 

to go through the alternative dispute 

resolution process. Defendant’s penalty; there is no concomitant plaintiff’s penalty. 

In other words, the authors of this 

section have provided that, although 

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May 4, 1995 CONGRESSIONAL RECORD— SENATE S6149 

the defendant would suffer the consequences of refusing to go through alternative dispute resolution, if the defendant wishes to go through that 

process—and we all encourage them to 

do so—and the plaintiff unreasonably 

refuses to do so, there is no penalty on 

the plaintiff. 

Mr. President, that is fundamentally 

unfair. It is exactly the kind of thing 

the American people wish Members to 

reform in this litigation process that 

we engage in in our country. 

The whole idea of reform here, the 

whole notion of what we are debating, 

is fairness. This provision would inject 

a fundamental element of unfairness 

where one party is penalized for not 

going forward with alternative dispute 

resolution, and the other party suffers 

no adverse consequences at all. It is 

fundamentally unfair. 

Now, what the provision states is 

that the court shall assess reasonable 

attorney’s fees and costs against a defendant who refuses to proceed; final 

judgment is entered against that defendant that that refusal was unreasonable or not made in good faith. 

That is typical of the State alternative dispute procedures here, that 

where either parties says, ‘‘Let’s go to 

alternative dispute rather than going 

all the way through trial’’, and the 

other party says, ‘‘No, I do thought 

want to do that,’’ and it turns out the 

other party loses and the court finds 

that that party’s refusal to go through 

the alternative dispute resolution procedure was unreasonable or not made 

in good faith, then costs and attorney’s 

fees can be assessed against that losing 

party. That is the law in many States 

today. We should preserve that law. 

This section of the bill changes that 

procedure in State law. It says, ‘‘No, 

even though you say that the losing 

party who refuses to go through the alternative dispute resolution in good 

faith should have a penalty, we are 

going to strike that in the case of only 

one-half of the parties, the plaintiff.’’

The plaintiff gets a free ride. The 

plaintiff can refuse alternative dispute 

resolution in bad faith and still not be 

penalized. A defendant who refuses alternative dispute resolution and who 

loses, and the court determines he has 

done that in bad faith, has a penalty 

rendered against him. 

Mr. President, I could argue either 

way that there should or should not be 

a penalty. I do not want to change the 

State law in that regard. That is why, 

instead of saying that the penalty 

would lie to both the defendant and the 

plaintiff, which we could have done 

with this amendment, we have simply 

said ‘‘Let’s strike the section and leave 

State law the way it is. State law 

treats both parties fairly. That is the 

way it should be.’’

So I urge all my colleagues who for 

the last several days have been arguing 

that this is not something that the 

Federal Government should be involved in, that we should let the States 

experiment, that we should let them 

decide their own procedures here—I 

urge them to support this resolution, 

my amendment, because my amendment allows the State law to be preserved as it is today with no change on 

alternative dispute resolution. I think 

we want to encourage alternative dispute resolution. We will certainly not 

be encouraging it if we say we believe 

in it but only if it is a stacked deck, 

only if it can be used against the defendant but not against the plaintiff. 

It is fundamentally unfair, and we 

should never be a party to changing 

the law of the States in a way that will 

result in unfairness to one side or the 

other in litigation. So I urge my colleagues when we vote in about an hour 

on these various amendments to the 

bill to support the Kyl-McCain amendment to strike section 103 and thus preserve State ADR proceedings and preserve the balance between plaintiffs 

and defendants proceeding under those 

procedures. 

I yield the floor, Mr. President. 

Mr. HEFLIN. I wonder if the Senator 

can respond to a question or two? 

Mr. KYL. I will be happy to reply. 

Mr. HEFLIN. I have come to somewhat agree with the Senator in regards 

to this. I have always been sort of puzzled as why that was put in there. 

Of course, in original ideas on alternate dispute resolution methods, some 

of the States have had what they call 

court-annexed arbitration, and they 

put a penalty relative to the failure to 

bind on the claimant, plaintiff, when 

this occurs, which raises an issue that 

it could be a violation of the seventh 

amendment, of the right to a trial by 

jury, by saying anything is mandatory 

under the concept of court-annexed 

provisions. Previous bills, as I recall, 

said if the judgment that occurred was 

less than what the award had been in 

an arbitration proceeding which is a 

part of the alternate dispute resolution, that then plaintiff would have to 

pay the reasonable attorney’s fees and 

court costs and so on. And that raised 

the question of whether that was causing a claimant to be deprived of the 

right of trial by jury. 

This language here has, in section 

103(a)(1), that they can have an offer to 

proceed to voluntary, nonbinding alternate dispute resolution. If it is voluntary and nonbinding, I do not understand why you would, in effect—unless 

it is sort of an effort to have an encouragement for defendants, realizing that 

claimants would be the ones who would 

probably want a nonbinding, voluntary 

alternate dispute procedure to start in 

order to more rapidly dispose of their 

claims. In particular, in the States 

that have had procedure, they usually 

have a dollar amount limitation. 

Actually, this is already authorized 

under existing law which we voted on 

several years ago, the Biden Civil Justice Act. I do not remember the specific title and name of it, but it authorized nonbinding alternate dispute resolutions in the Federal courts. You 

could have such a proceeding under 

this existing statute. 

So, I have been puzzled why proponents attempted to have the provision for a possible defendants’ penalty. 

The only reason I see is I thought they 

were probably doing it for window 

dressing, purely for the purpose of trying to say we are giving something to 

the claimant; while we are taking away 

100 different things, we are going to 

give you 1 with the alternative dispute 

resolution provision. 

Of course they use the word ‘‘unreasonable’’ in this section which allows 

for some leeway on behalf of a defendant. 

But overall, in fairness, I sort of tend 

to support the Senator’s amendment 

here to strike the provision from the 

underlying Gorton substitute. I do not 

know what the others will do but as it 

is right now, unless I am convinced 

otherwise, I may well vote with you. 

Mr. KYL. I appreciate the comments 

of the Senator from Alabama. That 

helps to give us more background on 

this as well. I think he is absolutely 

correct, that as a matter of States 

rights many States have these procedures today. If they have them, we 

leave them in place. But to the extent 

that we change them by saying in effect they only apply to one party, we, 

at the Federal Government level, will 

have injected an element of unfairness 

and I just do not think we want to be 

a party to doing that. 

I know the Senator from Washington 

wishes to proceed so that is all I will 

say about that, but I appreciate the 

comments of the Senator from Alabama. I certainly agree with him on 

that. 

The PRESIDING OFFICER. The Senator from Washington. 

Mr. GORTON. Mr. President, we are 

at this last half-hour or 45 minutes before a series of votes, speaking to several amendments: The underlying 

broad amendment by the Senator from 

Michigan to extend the joint liability 

provisions of this bill to all litigation; 

the amendment proposed by the Senator from Arizona and discussed during 

the course of the last few minutes; and 

an amendment by the Senator from 

South Carolina on insurance data collection and reporting requirements. 

While he spoke briefly to that last 

night, I think it important to outline 

for the benefit of my colleagues who 

will soon be voting on it what that 

amendment actually does. The amendment is not so much an insurance reporting act, though it does add inevitably to the huge amount of paperwork 

with which our society and economy is 

already burdened, as it is another skillful attempt for all practical purposes 

to kill this bill, this whole idea. 

What the amendment would do would 

be to sunset all of the substantive provisions of the proposal which is now before us. I want to repeat that. It would 

sunset all of them. 

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S6150 CONGRESSIONAL RECORD— SENATE May 4, 1995 

I am sorry. Mr. President, I apologize. The notes I have here—the Senator from South Carolina has crossed 

those provisions out of this provision. 

Now, it simply requires costly and unnecessary reporting requirements and 

institutes a brandnew Government bureaucracy. 

It stems from the proposition from 

the opponents to this bill that the only 

goal of the bill is to lower insurance 

costs. Yet, I do not believe that either 

the Senator from West Virginia or I 

have ever included lower interest costs 

as one of the rationales for the passage 

of this bill. We hope that it might well 

be an incidental impact of the passage 

of the bill. But it is not central to our 

arguments. 

To go back to the beginning, each of 

us has said that it is designed to improve the competitiveness of American 

businesses, large and small, to increase 

economic growth and to create more 

jobs, to make the present system more 

fair by making it more open to small 

claims through an alternative dispute 

resolution mechanism and by creating 

a uniform and in many cases in many 

States a more generous statute of limitation on claims and to reduce overall 

liability costs. But whatever the situation may have been 25 or 30 years ago, 

overall liability costs are a large universe, of which insurance premium 

costs are only one and one increasingly 

less important element. Why? For 

three reasons: 

First, in many States, punitive damage awards cannot be insured against. 

It is not true in all cases but it is true 

in many States. It is the arbitrary nature of punitive damage verdicts, 

which is a major goal of the reforms 

contained in this bill. 

Second, several years ago through a 

solution developed in the Commerce 

Committee, of which both the Senator 

from South Carolina and I are members, a market solution was created for 

the nonresponsiveness of insurance premiums to market changes by a Federal 

Risk Retention Act which allows small 

businesses to pool themselves together 

to self-insure in the area of product liability, an act which has been utilized 

by thousands of small businesses across 

the country. So they are outside of the 

insurance field entirely. 

Finally, of course, most very large 

businesses, many of the business enterprises which have abandoned product 

lines or decided not to continue to develop new product lines, are self-insurers. They do not go to insurance companies to insure themselves against 

product liability costs. They make 

their own business judgments about 

what they will develop and what they 

will market. 

My friend and colleague from West 

Virginia is constantly brought up as 

being originally a sponsor of a bill like 

this a number of years ago. It is true 

that he was. But as I trust is the case 

with all of us, changing circumstances 

and greater thoughtfulness change our 

minds on particular courses of action. 

It has changed my mind on the substance of this bill. There was at least 

one previous product liability bill in 

the Commerce Committee which I opposed in the committee, one quite different from this. But when Senator 

ROCKEFELLER, several Congresses ago, 

offered an amendment like this, the 

product liability bill that we were dealing with included strict limits on liability, caps on pain and suffering damages, which this one does not. We did 

not have the Risk Retention Act in existence at that time. It was a much 

better argument at that point that this 

proposal would have a clear cost-cutting effect on insurance. 

Mr. HEFLIN. Mr. President, will the 

Senator yield for a question? 

Mr. GORTON. Yes; I am happy to 

yield for a question. 

Mr. HEFLIN. I was interested in 

what the Senator had to say about 

whether the Senator really does anticipate that the passage of this bill would 

reduce insurance costs. The Senator 

has given a couple of reasons why certain things are outside. But as I understand it, one of the main ideas has been 

that this would cut transaction costs, 

which I question, because it bifurcates 

a trial requiring additional hearings. 

But basically, will the Senator agree 

that where companies have liability insurance that there is in practically all 

policies no limit on transactional 

costs? The defense that occurs to the 

company as a result of liability insurance is borne by the insurance companies. Therefore, I raise the issue. 

One of the arguments is the cost. I 

have heard the Senator talk about it—

defense fees, the deposition fees, and 

those things from the defense side 

which really would be borne by the insurance companies. Therefore, it would 

have some relationship to the overall 

cost of insurance, would it not? 

Mr. GORTON. I am not entirely certain what the question from the Senator from Alabama consists of. But I 

think I understand it. I will do the best 

that I can to answer it. 

Yes; one of the goals of this bill is to 

reduce transaction costs. It is to see to 

it that more of the money that goes 

into the legal system goes to actual 

victims, whether product liability as 

the bill is now more inclusive, medical 

malpractice. We find it an absolute 

scandal that for every dollar that goes 

into the product liability system only 

40 cents or so gets to victims. And 60 

cents goes to transaction costs, most of 

which goes to lawyers. 

We have not separated out how much 

of those lawyer fees are defendants’

fees. That is a matter I suspect of indifference to the victim. It is 60 percent. 

Of course, for most insurance policies 

there is no limit on the amount that 

the insurance company will spend in 

defending the defendant in such a case. 

There hardly could be. Under those circumstances the claimant’s attorney 

would simply drive the engine until 

that level had been reached and then 

no longer would have any opposition. 

What we are attempting to do in this 

bill is, one, create more situations in 

which there was a prompt settlement 

through something less than full litigation through the ADR provisions in the 

bill; second, by limiting to in some respects consistent with the Constitution—in fact, a response to the invitation from the Supreme Court of the 

United States under the Constitution 

to do so—somehow limiting the possibility of huge punitive damage verdicts 

causing cases to settle earlier, and at a 

more reasonable price and at a lower 

transaction cost; third, of course, simply doing more justice in the system. 

We hope that it will modestly cut back 

on the number of lawsuits that are 

brought in the first place, especially 

frivolous ones, and cause the meritorious lawsuits to be settled more 

quickly and even when they go to trial 

to be settled less frequently with 

lengthy appeals to appellate courts. 

This Senator did not say, I report, 

Mr. President, to my friend, that we 

did not believe that there would be any 

reduction in liability insurance costs. 

The Senator said that we were not utilizing that, we were not making that 

prediction as an argument in favor of 

the bill. The argument in favor of the 

bill is greater justice, especially for 

smaller claims, the increase in economic growth and the creation of jobs, 

and the encouragement of the development of new and improved products on 

the part of the American business community. 

If you ask this Senator does he think 

that liability insurance costs will go 

down, he does. He certainly hopes so. 

But the point is that if they do not, unlike the situation 8 or 10 years ago, 

those who have to purchase the insurance or who face product liability 

claims will have an alternative, an alternative that we created for them in 

risk retention pools. If the competitive 

market among big insurance companies does not lower the costs, those 

risk retention pools certainly will, and 

they are not a subject of this amendment. 

Mr. HEFLIN. I might inquire of the 

Senator if there was testimony—I do 

not know whether it was this year or 

last year—from the American Insurance Association, one of their officers, 

which basically said that passage of 

the bill would not, I repeat, not, bring 

about any reduction in liability insurance premiums? Some words are that 

there would be insurance cost savings. 

I do not remember right offhand the 

person who said it, but I remember seeing that in a previous report of the 

Commerce Committee. 

Does the Senator remember that testimony? 

Mr. GORTON. I do not remember 

that testimony this year. I believe the 

Senator from Alabama is probably correct about some such testimony for 

years past. But to exactly the extent 

that that is true, the amendment 

which we are discussing is irrelevant 

and has no impact other than probably 

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May 4, 1995 CONGRESSIONAL RECORD— SENATE S6151 

to drive up costs because it drives up 

the paperwork involved in the entire 

system. 

Mr. HEFLIN. In regard to the alternate dispute resolution, if I recall 

right—I do not have it before me right 

now—there was a GAO study which indicated that they thought the bill 

would increase the transaction costs 

and that one of the reasons for it was 

the way the alternate dispute resolution provision was contained in the 

bill. Does the Senator recall that testimony? 

Mr. GORTON. I am sorry; I was distracted. 

Mr. HEFLIN. I was speaking of the 

GAO report. I do not have it before me. 

But as I recall the GAO report indicated that the provisions of the bill—

maybe it was a predecessor of it—in 

their judgment would not reduce transactions costs, and that one of the reasons was they felt it could possibly increase it was because of the alternate 

dispute resolution methods that were 

there—increasing it another hearing as 

well as the provisions dealing with bifurcation, separate hearings that you 

would have to go through—thereby 

bringing about additional lawyer’s fees 

in regards to those proceedings, particularly on the defendant’s side where 

there is an hour billable approach. 

Does the Senator recall that? 

Mr. GORTON. I have to say to my 

friend from Alabama I do not recall 

that. As the alternative dispute resolution provisions in these bills have 

changed from year to year, certainly 

no such report has been filed in connection with the alternative dispute resolution proceedings, or, rather, sections 

in this bill. 

I see, Mr. President, it is now 5 minutes after 12. I know my colleague from 

West Virginia wishes to speak, and I 

yield the floor. 

Mr. ROCKEFELLER addressed the 

Chair. 

The PRESIDING OFFICER (Mr. 

THOMAS). The Senator from West Virginia. 

Mr. ROCKEFELLER. Mr. President, 

as one of the managers of what was 

once solely a bill to reform our product 

liability system, I wish to speak to my 

colleagues, those who share in a general sense the purpose of what we are 

trying to do here, about at least my 

views on the business before us. 

At 12:15, in 10 minutes, the Senate 

will vote on three pending amendments 

to this bill, and then vote on the first 

of two cloture motions. The second cloture motion vote is expected at 2 

o’clock, maybe 2:15. I am not sure. 

I am going to make a motion to table 

both the Abraham amendment on joint 

and several liability and the Kyl 

amendment that tries to delete the alternative dispute resolution section of 

this bill, alter it in ways which I find 

distasteful, but the message I wish to 

get across most strongly is that I will 

vote against both cloture motions. I 

will vote against the one at—whenever 

the first one comes, and I will vote 

against the second one. I will not vote 

for one and against the other, against 

one and for the other. I will vote 

against both. I want both to fail because there are those of us who believe 

that this bill needs to be kept to product liability—and I think there are 

many of us—so that we can at least get 

some tort reform accomplished, which 

we will not in any other event. Those 

folks need to vote in their conscience, 

if that is where their conscience dictates, against both cloture motions, to 

vote no on both cloture motions. And I 

hope anybody interested in achieving 

actual results on product liability reform will do the same and vote no on 

both cloture motions today. 

This past week, frankly, has been 

rather astonishing to me, Mr. President. One would think, when a majority of Senators get the chance finally, 

without a filibuster on the motion to 

proceed, when we finally get to work 

on a bipartisan, balanced, focused piece 

of legislation to deal with this very serious problem, that is precisely how 

they would spend their time here. 

But, no, instead, we have watched 

Senator after Senator come eagerly to 

the floor to add one more ornament to 

the tree. As I have said before, anyone 

who has ever decorated a Christmas 

tree knows that if at some point you 

put too many ornaments on, too many 

bows on one side of the tree, that tree 

is going to fall over and crash down 

and you lose the ornaments, the tree, 

the Christmas spirit, and it is a terrible vacation. That is the situation I 

see before us right now. And the 

amendments from Senators ABRAHAM

and KYL are going to assist in sending 

this tree to the ground. 

The Senate has had absolutely no opportunity that I know of to consider 

whether the joint and several provisions in the product liability bill make 

sense for the rest of civil actions. I do 

not know of any hearing on the topic. 

I do not see a bill from the Judiciary 

Committee on the topic, or a report 

laying out the arguments on an idea as 

significant as this one. Yes, the House 

of Representatives made a sudden decision to throw the idea into their stew 

of legislation on tort reform that 

passed a couple weeks ago. But this 

body is supposed to keep a standard of 

actually thinking about what it is on 

which we vote. We pride ourselves on 

that. And the idea of deleting the section in this bill that promotes alternative dispute resolution is appalling 

to me. 

Maybe I need to restate the obvious. 

Legislation becomes law when interests are balanced, when legislators 

work out difficult problems together, 

when problems are addressed with 

practical remedies. 

The alternative dispute resolution 

provision in our product liability bill is 

there for these reasons. Here is one of 

the parts of this bill designed solely 

and specifically to deal with one of the 

most maddening problems in product 

liability. Victims have to wait too long 

for compensation. The system is too 

slow and too inefficient. If I am a small 

farmer from West Virginia or some 

other place and I do not have any 

money, and I do not have any money to 

hire lawyers or any money to pay for 

time for 3 years to go by, I can avail 

myself of the alternative dispute resolution. 

We want to encourage that small 

farmer who does not have the resources, the small business person, the 

person of very modest means. And this 

is the way we do it, by allowing him 

this particular advantage. That is why 

we want to promote alternative dispute 

resolutions in a way that will speed 

things up so that that small farmer 

will, in fact, come in and probably just 

speak for himself and the case will be 

simply handled right there on the spot, 

no lawyer, no problem, no time, no expenditure of money. 

I really do not think we have to 

apologize for devising an approach that 

is slanted toward the victim when we 

are talking about encouraging them to 

resolve their cases earlier. Remember, 

they have wait to 3 years now. We are 

trying to encourage people to get that 

amount of time down. 

So in the strongest possible terms, I 

urge my colleagues to defeat both of 

these amendments. And I urge my colleagues, again, to vote against cloture, 

not just the first cloture vote but also 

the second one that will take place this 

afternoon at about 2 o’clock. 

We now have a bill that has become 

deformed, disfigured. A small group of 

Senators has refused to follow the discipline of working out with the rest of 

us who are interested in enacting product liability reform what we will do to 

accomplish that. Until they do, we 

should bring this bill to a halt. 

A majority of Senators are clearly 

interested in a balanced, moderate 

product liability reform bill—I am convinced of that; I deeply believe that—

that serves consumers, victims of defective products, and business in a balanced way. We still have that opportunity. The pending cloture votes will 

demonstrate what it takes to succeed. 

Mr. President, I thank the Chair and 

yield the floor. 

Mr. HEFLIN addressed the Chair. 

The PRESIDING OFFICER (Mr. 

THOMAS). The Senator from Alabama. 

Mr. HEFLIN. Mr. President, I am delighted to hear Senator ROCKEFELLER

state that the way the bill stands now, 

it is deformed and disfigured. That reminds me that this bill, as it stands 

right now, is pretty much similar to 

what the House passed. I do not think 

whatever we pass here in the Senate, 

when it goes to conference, is going to 

come out much different from the 

House bill. I think we know that the 

Speaker over there has great influence. 

I just feel that, basically, whatever 

we do here which passes the Senate and 

goes to conference will reflect the 

Speaker’s position on this overall 

issue. I think the key battle is the battle here in the Senate and the Senate’s 

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S6152 CONGRESSIONAL RECORD— SENATE May 4, 1995 

1 Hensler, Deborah R. et al, ‘‘Trends in Tort Litigation: The Story Behind the Statistics,’’ Rand Corporation, Institute for Civil Justice, Santa Monica, 

CA, 1987, p. 25. 2 Ibid., p. 25. 

role to be deliberate and to prevent unwise, unfair legislation. 

Now, if there is a disfigurement and a 

deformity by extending the language 

pertaining to punitive damages, by extending the language eliminating joint 

and several liability to cover all civil 

actions, then that is a recognition that 

there is a fault with that extension, 

there is a fault with the overall underlying principle that is being brought 

forth here in regard to punitive damages and also to eliminating joint and 

several liability. 

The PRESIDING OFFICER. Under 

the order, a vote is to occur at 12:15. 

Mr. HEFLIN. Mr. President, I ask 

unanimous consent that I be allowed to 

proceed for 3 more minutes. 

Mr. GORTON. No objection. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. HEFLIN. I send to the desk and 

will ask to have printed in the RECORD

a letter, dated May 25, 1990, to the Honorable RICHARD H. BRYAN, then chairman of the Subcommittee on Consumer 

Affairs, Committee on Commerce, 

Science, and Transportation, pertaining to the GAO study. 

One of the questions that he asked 

was: 

In your research of the current product liability system, have you found any evidence 

that would support the argument that the 

current tort system has led to an increase in 

transaction costs? 

And they ended up saying: ‘‘We believe that S. 1400’’—which was a predecessor bill—‘‘is unlikely to reduce 

transaction costs in product liability 

suits.’’

I send that letter to the desk and ask 

unanimous consent that it be printed 

in the RECORD. 

There being no objection, the letter 

was ordered to be printed in the 

RECORD, as follows: 

GENERAL ACCOUNTING OFFICE, 

Washington, DC, May 25, 1990. 

Hon. RICHARD H. BRYAN, 

Chairman, Subcommittee on Consumer, Committee on Commerce, Science, and Transportation, U.S. Senate. 

DEAR MR. CHAIRMAN: Enclosed are my responses to your questions regarding my February 28, 1990, testimony on product liability. If you have additional questions or if I 

can be of further assistance, please call me, 

or Cynthia Bascetta. 

Sincerely yours, 

JOSEPH F. DELFICO, 

Director, Income Security Issues. 

Enclosure. 

1. In your research of the current product 

liability system, have you found any evidence that would support the argument that 

the current tort system has led to an increase in transaction costs? What are the 

major factors that contribute to the level of 

transaction costs? Do you believe that S. 

1400 would reduce transaction costs in product liability suits? 

In our review, we did not collect data over 

time to assess whether the current tort system has led to an increase in transaction 

costs. We reviewed a 1987 study by the Rand 

Corporation, however, that reported that between 1980 and 1985, the annual growth rate 

for the amount of tort litigation was about 3 

or 4 percent. Expenditures for this litigation 

grew at about 6 percent for automobile-related litigation and about 15 percent for 

other tort claims, including product liability.1 Although the literature is replete with 

general concerns about the costs of litigation, we did not find any other research documenting trends in transaction costs associated with the current tort system. 

The major factor affecting the level of 

transaction costs is the length of litigation. 

As we reported, cases we reviewed took years 

to process—almost 2-1⁄2 years to move from 

filing of a complaint to the beginning of the 

trial. On average, appealed cases took 10 

more months. In our review, we noted two 

possible reasons for lengthy litigation in 

product liability cases. First, the law has 

been evolving in many states, which may increase the complexity of the legal decisionmaking process. Breaking new ground and 

establishing new precedents, for instance, 

take more time than cases where the law is 

clearer and requires little deliberation or interpretation. Second, both plaintiffs and defendants have little incentive to cut corners. 

Although plaintiffs have incentives to expedite the process so that they can receive 

compensation, their attorneys may want to 

invest substantial resources in developing 

cases to deter manufacturers from making 

harmful products. Defendants may prefer not 

to settle cases to deter further suits over the 

same product. Pretrial discovery—a timeconsuming and expensive feature of litigation—therefore becomes an important part 

of product liability suits for both parties. 

We believe that S. 1400 is unlikely to reduce transactions costs in product liability 

suits. For cases that are litigated, the procedural features of the tort system would not 

be changed by the bill. It is also not clear 

that the bill provides strong incentives for 

alternative dispute resolution, which could 

cut litigation costs. Moreover, the alternative dispute resolution mechanisms that 

may be used are left to the discretion of the 

states. If these mechanisms are not binding, 

then they may add to rather than substitute 

for litigation. If this happened, costs could 

actually increase. 

2. Your study found that product liability 

cases were quite time consuming: 

A. Could you please identify the specific 

factors that make these cases time consuming? 

B. Are there any benefits to the judicial 

process for having prolongated cases? For example, is lengthy litigation ever justified in 

order to insure an accurate record in a complicated case? 

C. What are the disadvantages for having 

lengthy litigation? 

D. Do you believe S. 1400 would reduce litigation time in product liability cases? 

A. Specific factors that make these cases 

time-consuming are the steps required in the 

legal process. In the vast majority of cases 

we reviewed, we noted that defendants often 

used the maximum amount of time legally 

required. Delays caused by defendants were 

also common. In most cases, manufacturers 

have little incentive to settle cases, as we 

said in response to the first question, although some may be concerned about adverse publicity regarding their products. 

In the typical case in our review, the defense was first granted 30 days to respond to 

a petition. The defense typically argued, at 

the end of the 30 day period, that the plaintiff did not use the product or that negligence was the cause, at least in part, of the 

harm. This began the legal process known as 

discovery, in which the burden was on the 

plaintiff to build a record by collecting data 

on product design, specifications, and other 

(often proprietary) information from defendants. The preparation of interrogatories—

testimonial evidence from eyewitnesses, expert witnesses, and others—was another 

lengthy process needed for the record. We 

also found frequent motions to extend and 

delay court dates. 

B. In any case, a complete and accurate 

record would be necessary to ensure a fair 

legal outcome. In this sense, lengthy litigation and its attendant costs might be justified. Generally, however, we believe litigation should be shorter, and as a result, we 

would expect lower overhead costs and higher net compensation for injured parties. In 

our report, we concluded that we cannot determine the degree to which the benefits of 

the judicial process balance substantial administrative costs. We also noted that benefits thought to accrue from the judicial process include providing incentives for product 

safety. The Rand Corporation noted in its 

1987 study that ‘‘there is no ready measure of 

the inherent reasonableness of the system’s 

transaction costs. Especially when we focus 

on the tort system’s goal of deterrence, we 

might encounter circumstances in which we 

find very high transactions costs acceptable.’’ 2

C. There are two primary disadvantages of 

lengthy litigation. First, as we have already 

discussed, time greatly increases costs. Second, protracted litigation means that injured 

parties wait longer for compensation. 

D. S. 1400 will probably not reduce litigation time in product liability cases because 

discovery and other legal processes would 

not be affected by the bill. And, because the 

effect of S. 1400 on alternative dispute resolutions is unclear, we cannot predict the extent to which lengthy litigation could be 

avoided if product liability reform were enacted. 

3. Your study indicated that the data needed to give a complete evaluation of the effects of tort reforms is not readily available. 

Do you have any recommendations on how 

the relevant and necessary data might be 

collected? If so, what is your projection of 

the length of time it would take to collect 

such data? 

When we began our review, we found that 

with the exception of ongoing work at the 

Rand Corporation, very little data had been 

gathered in any systematic way about the 

outcomes of tort reforms. According to researchers at Rand, neither critics nor defenders of the civil justice system have much 

solid evidence to support their views. In fact, 

the legal system is notorious for its fragmentation and dearth of records on finances 

and workloads. Our review confirmed serious 

inadequacies in available databases, methodological difficulties in designing rigorous 

studies, and an overall lack of empirical evidence that impede efforts to evaluate the effects of tort reforms. 

For a comprehensive assessment of research prospects in this area, we refer you to 

the following Rand Corporation publications: 

(1) Hensler, Deborah R., ‘‘Researching Civil 

Justice: Problems and Pitfalls,’’ Summer 

1988; (2) Reuter, Peter, ‘‘The Economic Consequences of Expanded Corporate Liability: 

An Exploratory Study,’’ November 1988; and 

(3) Carroll, Stephen J., ‘‘Assessing the Effects of Tort Reforms,’’ 1987. 

Mr. HEFLIN. Senator HOLLINGS is 

unable to be here. He was called down 

to the White House on a budget matter. 

In regard to his amendment, he has 

asked that I point out that his same 

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May 4, 1995 CONGRESSIONAL RECORD— SENATE S6153 

amendment was accepted by unanimous consent last year. The proponents of the bill, Senator GORTON

and Senator ROCKEFELLER, accepted 

the amendment by unanimous consent 

in the last Congress. So I am just repeating that at the request of Senator 

HOLLINGS relative to this matter. 

But overall, this bill is a very unfair 

bill. It has added to it to make it much 

more encompassing, to make this matter of punitive damages now extend to 

other suits far into what it does. 

There are other provisions, such as 

the Abraham amendment, that, in effect, extends the elimination joint and 

several liability to all sorts of suits. 

Now, in our courts, you either have 

criminal cases or you have civil cases. 

Under this, it extends it to all civil 

suits brought under any theory whatsoever. So it is very broad and comprehensive, and very much covering almost every conceivable type of civil 

lawsuit that you might have, including 

such things as State antitrust laws. 

Sexual harassment in State laws 

would be covered; disability protections in State laws; Americans with 

disabilities would be covered, as it 

would apply, by State laws relative to 

this; automobile accident cases, all 

sorts of things in regard to it. 

It is an extremely broad and encompassing bill. I think it ought to be defeated. 

ABRAHAM AMENDMENT NO. 600 ON JOINT AND

SEVERAL LIABILITY

Mr. LEVIN. Mr. President, I intend 

to vote against the Abraham amendment to extend limitations on joint 

and several liability for noneconomic 

damages to all civil actions. 

The sponsors of this bill, and this 

amendment, have pointed out that 

there are problems with joint and several liability. In some cases, a defendant who has only a marginal role in the 

case ends up holding the bag for all of 

the damages. That doesn’t seem fair. 

On the other hand, there are good 

reasons for the doctrine of joint and 

several liability. We all know that 

cause and effect cannot accurately be 

assigned on a percentage basis. There 

may be many causes of an event, the 

absence of any one of which would have 

prevented the event from occurring. 

Because the injury would not have occurred without each of these so-called 

but for causes, each is, in a very real 

sense, 100 percent responsible for the 

resulting injury. 

This bill and this amendment, however, do not recognize that in the real 

world, multiple wrongdoers may each 

cause the same injury. They insist that 

responsibility be portioned out, with 

damages divided up into pieces. Under 

this approach, the more causes the 

event can be attributed to, the less 

each defendant will have to pay. 

Unless the person who has been injured can successfully sue all guilty 

parties, he or she will not be compensated for his or her entire loss. The 

real world result is that most plaintiffs 

will not be made whole, even if they 

manage to overcome the burdens or our 

legal system and prevail in court. 

Wouldn’t it be more fair to say that 

any wrongdoers who caused the injury 

should bear the risk that one of them 

might not be able to pay its share? Put 

another way, isn’t it more fair for all 

of the wrongdoers who cause an injury 

to bear this risk than for the victim to 

carry the burden of uncompensated 

loss? 

More than 30 States either maintain 

the doctrine of joint and several liability or have come up with creative approaches to address the potential unfairness of imposing joint and several 

liability in some cases without unfairly 

hurting the injured party. Because 

these State laws are more favorable to 

the injured party than the approach 

adopted in this amendment, so they 

would all be preempted. 

As far as I am aware, no hearings 

have been held on this broad proposal 

to abolish joint and several liability for 

noneconomic damages in all civil 

cases. There has been no discussion of 

the range of State laws that would be 

overridden by this amendment and the 

effect that overriding them would 

have. This amendment is unfair and 

unbalanced, and I cannot support it. 

PUNITIVE DAMAGE CAPS FOR SMALL BUSINESSES

Mr. BRADLEY. Mr. President, I rise 

today to express my support for the 

amendment offered by my colleague 

from Ohio, Senator DEWINE, and accepted by the Senate yesterday. The 

amendment provides for a $250,000 cap 

on punitive damages for individuals 

whose net worth does not exceed 

$500,000 and corporations, partnerships, 

associations, and units of local governments with fewer than 25 employees. 

Mr. President, small businesses are 

the engine that drives the American 

economy and provide for at least half 

of this country’s new employment opportunities. As such, Mr. President, as 

we debate the issue of imposing a punitive damages cap, we need to ensure 

that small businesses are not punished 

disproportionately when they take actions which call for the imposition of 

such damages. 

Mr. President, punitive damages are 

designed to punish the offender and 

protect the public by deterring conduct 

that is harmful. I am, therefore, a 

strong proponent of the right of courts 

to police egregious conduct through 

the award of punitive damages. Thus, 

while a cap on punitive damage awards 

should be sufficient to punish and deter 

future action, it should also reflect the 

fact that a cap that may be sufficient 

to punish a large corporation may in 

fact push a small business into the 

abyss of bankruptcy. 

Mr. President, I have spoken to small 

business owners in New Jersey on this 

issue. What I have heard over and over 

again is that if they commit offenses 

that merit an award of punitive damages, they should be punished; however, the punishment and deterrent effect should reflect the economic situation of the small business offender. Mr. 

President, a $250,000 punitive damage 

award against a small business with assets of $400,000 may drive the owner out 

of business, while a $5 million punitive 

award against a large corporation with 

assets in excess of $500 million will 

have less of a deterrent effect. I cannot 

support such a disproportionate impact 

on small businesses struggling to meet 

their bottom line. 

Therefore, Mr. President, I am 

pleased to support the amendment offered by my colleague from Ohio which 

serves to balance our national interest 

in punishing and deterring harmful 

conduct and protecting the viability of 

small businesses. 

Mr. DODD. Mr. President, I have 

been working on product liability reform for more than a decade. During 

that time, a wide range of my constituents—consumers, manufacturers, small 

businesses, and workers—have told me 

about the serious problems with the 

present system. 

Injured people are upset about both 

the length of time it takes to receive 

fair compensation and the high cost of 

legal fees. Manufacturers are reluctant 

to introduce new products because of 

the inconsistent product liability laws 

in the 50 States. Small businesses are 

hurt by the costs of defending themselves against unjustified lawsuits. 

Workers fear that the costs in the 

present system will drag the economy 

down. Consumers question whether 

they are getting high quality products 

at a fair price. 

We need reform that will improve the 

system for everyone. To do that, we 

must strike a balance between many 

competing interests. We must not 

adopt reform that tips the balance too 

far in any direction. In the past, I have 

opposed measures that unfairly limited 

the rights of consumers, and I will continue to do so. 

Because 70 percent of all products 

move in interstate commerce, this is 

an appropriate area for Federal standards. A national, more uniform system 

would lower costs and speed the resolution of disputes. At the same time, we 

need to be careful about making other 

changes in the legal system that have 

not been as carefully thought out. 

The original bill, crafted by Senators 

ROCKEFELLER and GORTON, offered the 

kind of carefully focused, balanced reform that would improve the system 

for everyone. I am a cosponsor of that 

bill. I am concerned, however, about a 

number of changes that were made to 

the legislation during the past week. 

For example, the bill now contains a 

separate title on medical malpractice 

reform. I agree that there are significant problems with medical malpractice litigation and that Congress 

should enact carefully considered reforms. The proposal that was added to 

the product liability bill, however, is 

flawed. 

It contains, for example, a provision 

that would make it harder to bring 

lawsuits against obstetricians who are 

seeing the patient for the first time. 

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S6154 CONGRESSIONAL RECORD— SENATE May 4, 1995 

This provision might not have much of 

an effect on wealthier patients who 

would have a primary doctor supervising the obstetric services. But what 

about those poor women who only see 

the doctor during the actual delivery of 

the baby? If they were injured, they 

would have a difficult time receiving 

compensation. 

The Gorton-Rockefeller bill was expanded in other ways. For example, 

there is now a cap on punitive damages 

in all civil cases—not just product liability cases. There have been a number of studies and commentaries about 

the problems with punitive damages in 

product liability cases. Those analyses 

suggest that some reform is needed for 

those cases. However, it is not clear 

that we need to reform punitive damage awards in all civil cases. In my 

view, we ought to engage in more extensive debate before taking such drastic steps. 

Additionally, I have concerns about 

putting arbitrary limits on damages. 

Because caps limit flexibility, they can 

lead to unjust results in some cases. I 

have filed an amendment that would 

address this problem. Under my amendment, the jury would determine whether punitive damages are appropriate, 

but the judge would set the amount. 

Hopefully, we will resume debate on 

the bill and consider this amendment. 

Because of these and other concerns, 

I will vote against cloture. There is 

still much work that needs to be done 

on this bill, and this is not the time to 

cut off debate. I still support product 

liability reform and will work with my 

colleagues to enact careful, balanced 

reforms. But I will not support efforts 

to ram through other changes in the 

legal system that go far beyond the 

balanced product liability bill I cosponsored. 

We have a real chance to actually 

pass meaningful and fair product liability reform this year, and I will not support anything that endangers those 

chances. In my view, there is a bipartisan majority of Senators that would 

support that approach, and I look forward to working with them to pass a 

good bill. 

VOTE ON MOTION TO TABLE AMENDMENT NO. 600

The PRESIDING OFFICER. Under 

the previous order, the question now 

occurs on amendment No. 600. 

Mr. GORTON. Has a rollcall been ordered? 

The PRESIDING OFFICER. It has 

not. 

Mr. GORTON. I ask for the yeas and 

nays. 

Mr. ROCKEFELLER. If the Senator 

will yield for a moment, I move to 

table the Abraham amendment, and I 

ask for the yeas and nays. 

The PRESIDING OFFICER. Is there a 

sufficient second? There appears to be 

a sufficient second. 

The yeas and nays were ordered. 

The PRESIDING OFFICER. Under 

the order, the question now occurs on 

the motion of the Senator from West 

Virginia [Mr. ROCKEFELLER] to table 

amendment No. 600, offered by the Senator from Michigan [Mr. ABRAHAM]. 

The yeas and nays have been ordered. 

The clerk will call the roll. 

The legislative clerk called the roll. 

Mr. FORD. I announce that the Senator from Rhode Island [Mr. PELL] is 

absent on official business. 

I further announce that, if present 

and voting, the Senator from Rhode Island [Mr. PELL] would vote ‘‘aye.’’

The PRESIDING OFFICER. Are there 

any other Senators in the Chamber 

who desire to vote? 

The result was announced—yeas 51, 

nays 48, as follows: 

[Rollcall Vote No. 148 Leg.] 

YEAS—51 

Akaka 

Baucus 

Biden 

Bingaman 

Boxer 

Bradley 

Breaux 

Bryan 

Bumpers 

Byrd 

Cohen 

Conrad 

D’Amato 

Daschle 

Dodd 

Dorgan 

Exon 

Feingold 

Feinstein 

Ford 

Gorton 

Graham 

Harkin 

Heflin 

Hollings 

Inouye 

Jeffords 

Johnston 

Kennedy 

Kerrey 

Kerry 

Lautenberg 

Leahy 

Levin 

Mikulski 

Moseley-Braun 

Moynihan 

Murray 

Nunn 

Packwood 

Pryor 

Reid 

Robb 

Rockefeller 

Sarbanes 

Shelby 

Simon 

Specter 

Stevens 

Thompson 

Wellstone 

NAYS—48 

Abraham 

Ashcroft 

Bennett 

Bond 

Brown 

Burns 

Campbell 

Chafee 

Coats 

Cochran 

Coverdell 

Craig 

DeWine 

Dole 

Domenici 

Faircloth 

Frist 

Glenn 

Gramm 

Grams 

Grassley 

Gregg 

Hatch 

Hatfield 

Helms 

Hutchison 

Inhofe 

Kassebaum 

Kempthorne 

Kohl 

Kyl 

Lieberman 

Lott 

Lugar 

Mack 

McCain 

McConnell 

Murkowski 

Nickles 

Pressler 

Roth 

Santorum 

Simpson 

Smith 

Snowe 

Thomas 

Thurmond 

Warner 

NOT VOTING—1 

Pell 

So the motion to lay on the table the 

amendment (No. 600) was agreed to. 

Mr. ROCKEFELLER. Mr. President, I 

move to reconsider the vote. 

Mr. GORTON. I move to lay that motion on the table. 

The motion to lay on the table was 

agreed to. 

VOTE ON AMENDMENT NO. 681

The PRESIDING OFFICER. The 

question now occurs on amendment No. 

681, offered by the Senator from Arizona. 

Mr. GORTON. Mr. President, I 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 amendment. 

The clerk will call the roll. 

Mr. FORD. I announce that the Senator from Rhode Island [Mr. PELL] is 

absent on official business. 

I further announce that, if present 

and voting, the Senator from Rhode Island [Mr. PELL], would vote ‘‘nay.’’

The PRESIDING OFFICER. Are there 

any other Senators in the Chamber desiring to vote? 

The result was announced—yeas 60, 

nays 39, as follows: 

[Rollcall Vote No. 149 Leg.] 

YEAS—60 

Abraham 

Ashcroft 

Baucus 

Bennett 

Bond 

Brown 

Bumpers 

Burns 

Campbell 

Chafee 

Coats 

Cochran 

Coverdell 

Craig 

D’Amato 

DeWine 

Dole 

Domenici 

Faircloth 

Frist 

Gramm 

Grams 

Grassley 

Gregg 

Harkin 

Hatch 

Hatfield 

Heflin 

Helms 

Hollings 

Hutchison 

Inhofe 

Jeffords 

Kassebaum 

Kempthorne 

Kyl 

Lott 

Lugar 

Mack 

McCain 

McConnell 

Murkowski 

Nickles 

Nunn 

Packwood 

Pressler 

Reid 

Roth 

Santorum 

Shelby 

Simpson 

Smith 

Snowe 

Specter 

Stevens 

Thomas 

Thompson 

Thurmond 

Warner 

Wellstone 

NAYS—39 

Akaka 

Biden 

Bingaman 

Boxer 

Bradley 

Breaux 

Bryan 

Byrd 

Cohen 

Conrad 

Daschle 

Dodd 

Dorgan 

Exon 

Feingold 

Feinstein 

Ford 

Glenn 

Gorton 

Graham 

Inouye 

Johnston 

Kennedy 

Kerrey 

Kerry 

Kohl 

Lautenberg 

Leahy 

Levin 

Lieberman 

Mikulski 

Moseley-Braun 

Moynihan 

Murray 

Pryor 

Robb 

Rockefeller 

Sarbanes 

Simon 

NOT VOTING—1 

Pell 

So the amendment (No. 681) was 

agreed to. 

Mr. GORTON. Mr. President, I move 

to reconsider the vote by which the 

motion to lay on the table was agreed 

to. 

VOTE ON MOTION TO TABLE AMENDMENT NO. 682

The PRESIDING OFFICER. Under 

the order the question occurs on 

amendment 682 offered by the Senator 

from South Carolina [Mr. HOLLINGS]. 

Mr. GORTON. Mr. President, I move 

to table the Hollings amendment, and I 

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 South Carolina. On this 

question, the yeas and nays have been 

ordered, and the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. FORD. I announce that the Senator from Rhode Island [Mr. PELL] is 

absent on official business. 

I further announce that, if present 

and voting, the Senator from Rhode Island [Mr. PELL] would vote ‘‘nay.’’

The PRESIDING OFFICER (Mr. 

KYL). Are there any other Senators in 

the Chamber who desire to vote? 

The result was announced—yeas 56, 

nays 43, as follows: 

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May 4, 1995 CONGRESSIONAL RECORD— SENATE S6155 

[Rollcall Vote No. 150 Leg.] 

YEAS—56 

Abraham 

Ashcroft 

Baucus 

Bennett 

Bond 

Brown 

Burns 

Campbell 

Chafee 

Coats 

Cochran 

Coverdell 

Craig 

D’Amato 

DeWine 

Dodd 

Dole 

Domenici 

Dorgan 

Exon 

Faircloth 

Frist 

Gorton 

Gramm 

Grams 

Grassley 

Gregg 

Heflin 

Helms 

Hutchison 

Inhofe 

Jeffords 

Kassebaum 

Kempthorne 

Kyl 

Lott 

Lugar 

Mack 

McCain 

McConnell 

Moseley-Braun 

Murkowski 

Nickles 

Pressler 

Pryor 

Robb 

Rockefeller 

Roth 

Santorum 

Smith 

Snowe 

Specter 

Stevens 

Thomas 

Thompson 

Warner 

NAYS—43 

Akaka 

Biden 

Bingaman 

Boxer 

Bradley 

Breaux 

Bryan 

Bumpers 

Byrd 

Cohen 

Conrad 

Daschle 

Feingold 

Feinstein 

Ford 

Glenn 

Graham 

Harkin 

Hatch 

Hatfield 

Hollings 

Inouye 

Johnston 

Kennedy 

Kerrey 

Kerry 

Kohl 

Lautenberg 

Leahy 

Levin 

Lieberman 

Mikulski 

Moynihan 

Murray 

Nunn 

Packwood 

Reid 

Sarbanes 

Shelby 

Simon 

Simpson 

Thurmond 

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. LOTT. I move to lay that motion 

on the table. 

The motion to lay on the table was 

agreed to. 

f 

CLOTURE MOTION 

The PRESIDING OFFICER (Mr. 

KYL). Under the previous order, the 

clerk will report the motion to invoke 

cloture. 

The legislative clerk read as follows: 

CLOTURE MOTION

We the undersigned Senators in accordance 

with the provisions of rule XXII of the 

Standing Rules of the Senate do hereby 

move to bring to a close debate on the Gorton Amendment No. 596 to H.R. 956, the 

Product Liability bill. 

Bob Dole, Slade Gorton, Rick Santorum, 

Jim Inhofe, Conrad Burns, Pete V. 

Domenici, Hank Brown, Spencer Abraham, Paul D. Coverdell, Larry E. Craig, 

Dirk Kempthorne, Bob Smith, Trent 

Lott, Chuck Grassley, Judd Gregg, 

Mitch McConnell. 

f 

CALL OF THE ROLL 

The PRESIDING OFFICER. By unanimous consent, the call of the roll has 

been waived. 

f 

VOTE 

The PRESIDING OFFICER. The 

question is, Is it the sense of the Senate that debate on the Gorton amendment numbered 596 to H.R. 956, the 

product liability bill, shall be brought 

to a close? The yeas and nays are required. The clerk will call the roll. 

The assistant legislative clerk called 

the roll. 

Mr. FORD. I announce that the Senator from Rhode Island [Mr. PELL] is 

absent on official business. 

I further announce that, if present 

and voting, the Senator from Rhode Island [Mr. PELL] would vote ‘‘aye.’’

The PRESIDING OFFICER. Are there 

any other Senators in the Chamber 

who desire to vote? 

The yeas and nays resulted—yeas 46, 

nays 53, as follows: 

[Rollcall Vote No. 151 Leg.] 

YEAS—46 

Abraham 

Ashcroft 

Bennett 

Bond 

Brown 

Burns 

Campbell 

Chafee 

Coats 

Coverdell 

Craig 

DeWine 

Dole 

Domenici 

Exon 

Faircloth 

Frist 

Gorton 

Gramm 

Grams 

Grassley 

Gregg 

Hatch 

Hatfield 

Helms 

Hutchison 

Inhofe 

Jeffords 

Kassebaum 

Kempthorne 

Kyl 

Lieberman 

Lott 

Lugar 

Mack 

McCain 

McConnell 

Murkowski 

Nickles 

Pressler 

Santorum 

Smith 

Snowe 

Stevens 

Thomas 

Warner 

NAYS—53 

Akaka 

Baucus 

Biden 

Bingaman 

Boxer 

Bradley 

Breaux 

Bryan 

Bumpers 

Byrd 

Cochran 

Cohen 

Conrad 

D’Amato 

Daschle 

Dodd 

Dorgan 

Feingold 

Feinstein 

Ford 

Glenn 

Graham 

Harkin 

Heflin 

Hollings 

Inouye 

Johnston 

Kennedy 

Kerrey 

Kerry 

Kohl 

Lautenberg 

Leahy 

Levin 

Mikulski 

Moseley-Braun 

Moynihan 

Murray 

Nunn 

Packwood 

Pryor 

Reid 

Robb 

Rockefeller 

Roth 

Sarbanes 

Shelby 

Simon 

Simpson 

Specter 

Thompson 

Thurmond 

Wellstone 

NOT VOTING—1 

Pell 

The PRESIDING OFFICER. On this 

vote, the yeas are 46, the nays are 53. 

Three-fifths of the Senators duly chosen and sworn, not having voted in the 

affirmative, the motion is rejected. 

Mr. ROCKEFELLER addressed the 

Chair. 

The PRESIDING OFFICER. The Senator from West Virginia. 

Mr. ROCKEFELLER. Mr. President, 

assuming that this is free time, I ask 

unanimous consent that the Senator 

from California, Senator FEINSTEIN, be 

allowed to speak for 10 minutes. 

The PRESIDING OFFICER. Time is 

controlled and equally divided. Without objection, the Senator from California is recognized. 

Mrs. FEINSTEIN. I thank the Chair 

and I thank the Senator from West Virginia. 

Mr. President, I have listened carefully over the past weeks of this debate—pro and con—on product liability. I am not an attorney, so I have 

tried hard to work through what is fair 

and what is not. While I would like to 

have an opportunity to vote for cloture 

on a more narrowly crafted bill, I cannot vote for this bill with the Dole 

amendment included. To do so, I believe, would extend the impact of the 

bill far beyond the limited field of 

product liability, and impose major 

limitations to redress of grievances 

across the board in all civil actions, 

without the opportunity of Committee 

hearings in the Senate and consideration of how the bill would impact 

other specific areas of the law. 

Anyone who has read ‘‘The Rainmaker,’’ the newest best seller, can see 

what impact the Dole amendment 

would have, for example, in insurance 

cases. Insurance companies would be 

able to do exactly what was done in 

that book, act in bad faith. And I simply cannot support this. 

I believe that Senators GORTON and 

ROCKEFELLER have worked hard to 

craft a bill with reasonable reforms 

that could pass this body. I was particularly pleased with the compromise 

reached with the Snowe amendment to 

limit punitive damages to two times 

compensatory, which is now part of 

this bill. This replaces the original 

fixed cap of $250,000, or three times economic damages, whichever is greater. I 

believe this would be a fair model 

which takes into consideration both 

women and children whose earnings 

may be limited or nonexistent. 

I find myself in strong support of 

other major provisions of this bill, as 

well. Specifically, I support the imposition of a 2-year statute of limitations 

from the time the injury and its cause 

are discovered for a plaintiff to bring a 

lawsuit. This provision is actually 

more permissive than that in many 

States, and California. This provision 

is actually victim and plaintiff friendly. 

Two, the imposition of a 20-year statute of repose, an outer time limit on 

litigation involving workplace durable 

and capital goods. This is a fair standard of repose. 

The bill would eliminate product 

seller’s liability—including that 

against wholesalers, distributors, and 

retailers—for a manufacturer’s errors. 

Sellers would remain liable in cases of 

their own negligence. For example, if a 

seller removed the manufacturer’s 

label from a toy that said it is not appropriate for children under 6 years of 

age, and a child was subsequently injured, the seller would be liable. 

The bill would preserve a plaintiff’s 

power to sue one defendant, theoretically the deep pocket, for the full 

amount of economic damages, but 

eliminate such joint and several liability for noneconomic damages, such as 

pain and suffering. 

It would allow either party to offer 

to participate in alternative dispute 

resolution—something that I very 

much thought and hoped would be part 

of this bill, and which I believe is an 

important part, especially for the 

plaintiffs who have small claims. 

The bill would bar recovery of a 

plaintiff who is more than 50 percent 

responsible for causing their accident 

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