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[Congressional Record Volume 141, Number 76 (Tuesday, May 9, 1995)]
[Senate]
[Pages S6292-S6294]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                            COMPROMISE NEAR

  Mr. DASCHLE. I wish the President a good morning. I want to comment 
briefly on the series of votes that we will be taking this morning. As 
the distinguished acting majority leader indicated, there will be a 
cloture vote this morning.
  I think in that regard it is important for people to understand the 
current circumstances. Senator Dole has offered an amendment. Senator 
Rockefeller and Senator Gorton have also offered an amendment, a 
substitute. We will have the opportunity at some point to vote on 
those.
  I would hope people will vote against cloture again this morning 
simply to preserve the options that we think are going to be very 
important, if indeed we reach a compromise here. I think we are getting 
closer now in the last 48 hours to meaningful compromise.
  In that regard, let me specifically single out the distinguished 
Senator from West Virginia for his remarkable efforts to bring people 
together, to attempt to find a way to resolve the outstanding 
differences. He and the distinguished Senator from Washington, Senator 
Gorton, have done an extraordinary job in the last couple of days in 
addressing many of the concerns that people have raised. I think we are 
now beginning to come together in a way that will accommodate some of 
the concerns that have been raised during the last couple of weeks.
  I know that others, as well, have concluded that a compromise is 
within reach. My distinguished colleague from Louisiana, Senator 
Breaux, has also been working on ways to accommodate some of these 
concerns and bring all sides together.
   [[Page S6293]] Senator Breaux and others have in the last couple of 
days talked with people on both sides of the aisle in an effort to try 
to reach a compromise on punitive damages, on joint and several 
liability, on the statute of repose. I think we are at a point now 
where we may be able to resolve these outstanding issues in a way that 
will facilitate a compromise and ultimately bring Members to a 
resolution on this issue.
  In order to allow the Senator time to discuss this particular 
compromise, I would like to yield the balance of my leader time to 
Senator Breaux. Again, I commend Senator Breaux for his effort in this 
regard. I believe that he may have found a way with which to bridge the 
differences and provide Members with an opportunity to resolve the many 
outstanding issues that still exist. With that, Mr. President, I yield 
the balance of my time to Senator Breaux.
  The PRESIDING OFFICER. There are 17\1/2\ minutes remaining.
                      Standard of Fairness Desired

  Mr. BREAUX. I thank the distinguished Democratic leader for his 
comments and his effort in trying to bring about a compromise that 
makes sense. A lot of people have been working very diligently on this 
issue of product liability. The Senate and the Congress has worked on 
it for a number of years. We have all struggled with it.
  I think the standard that we are all trying to reach is a standard of 
fairness, to give neither people who are injured by faulty products an 
advantage or people who manufacture those products an unfair advantage. 
The key I think is a level playing field. The key is fairness to 
everyone. That is something that has been very difficult.
  I want to particularly commend the ranking member of the Commerce 
Committee, which I serve, Senator Hollings, for the great work that he 
has done in trying to make sure that fairness is the standard by which 
we operate.
  Also, Senator Heflin, I think, has made a great contribution to 
ensuring that we do not act in haste, but do this very, very carefully.
  There have been a number of Members on the Republican side--the 
distinguished occupant of the chair, the Presiding Officer of the 
Senate this morning--has also been very involved in trying to create a 
package that is fair and creates that level playing field that we are 
all striving for.
  There are a number of other Senators I have not mentioned that have 
been involved in trying to bring all Members together in doing 
something that makes sense. My own preference is that this is something 
that the States ought to do. I am a States righter when it comes to 
personal injury and the tort system, and how the States can handle this 
can best be decided by the States.
  I think, Mr. President, in trying to reach an agreement here today I 
would urge my colleagues to vote no on the first cloture motion this 
morning in order to allow Members to present to the Senate what I think 
is a fair and reasonable compromise, and tries to balance those who 
think that nothing should be done on the Federal level and those that 
think that everything should be done by the Federal Government here in 
Washington.
  I think that the pending amendment that is out there that has been 
talked about, as a proposed compromise, the so-called Gorton-
Rockefeller, their second proposal, is defective in a number of ways, 
and can be improved in order to reach a fair settlement of this issue, 
and put it to rest once and for all.
  I think Gorton-Rockefeller is effective in a couple of ways. My 
substitute, which I will offer after cloture is not invoked, will be an 
amendment to the Dole-Coverdell substitute, which will still be 
pending, tries to address those defects in the Gorton-Rockefeller in 
the following ways: No. 1, on punitive damages. This has always been 
something that has been very controversial, but there is a reason for 
punitive damages. It says to a manufacturer of defective products, ``Do 
not do it again.''
  The damages that are awarded have to be in relation to the ability of 
the defendant to pay. Obviously, a multibillion-dollar corporation is 
not going to really be affected by a small fine of $100,000. They will 
just say it is the cost of doing business, and continue to manufacture 
the defective product.
  So punitive damages serve a purpose. It says to the manufacturers of 
products that harm people in this country, ``Do not do it anymore.'' It 
has been very effective. There are products today that are not on the 
market because of punitive damages. Companies have said ``We can't 
afford to do this anymore and we are not going to do it anymore.'' 
There are a number of products that are no longer manufactured--Dalkon 
shield, asbestos products, products dealing with breast implants. Some 
automobile manufacturers are no longer producing types of cars, because 
they know that if they do they will cause problems and they will be 
penalized doing it. So they make a very practical decision: ``We are 
not doing it anymore.''
  The problem with the Gorton-Rockefeller substitute is that, I think, 
it is fatally flawed. They try and solve this problem by saying that 
small businesses will not be liable for punitive damages if they have 
25 or fewer employees. They make a separate category for small 
businesses of 25 or fewer employees.
  That is an interesting way of approaching it. What would happen is 
that many companies would just structure their operations with 25 or 
fewer employees. A trucking company, each truck could be a separate 
company. A cab company, each cab could be a separate company. A boat 
company, each one could be a separate company. What do we do in 
companies that have 23 employees at the time of the injury, or 25 
employees later on during a year?
  It is very complicated and it really, I think, calls for companies to 
structure themselves so they can avoid ever having to pay for any 
punitive damages for products that would cause problems to individual 
people.
  In addition, they say that, well, if the judge thinks that punitive 
damages should be awarded more than this cap, then the judge can do it; 
but if the defendant does not like what the judge does, he can ask for 
another trial. Why do we have to be so complicated? That provision just 
calls for additional litigation, more cost, more expense, additional 
trials, by directing a very, very, complicated situation I think is not 
necessary.
  What my amendment will do is to take from the suggestions of other 
Members who have suggested ideas that address this problem in a fair 
way. Our colleague, Senator Dodd from Connecticut, has suggested 
something that I think makes sense and is the essence of my amendment. 
It says that when a jury finds that punitive damages are warranted 
because of conscious and flagrant violations by the manufacturer of a 
product, then the decision on how much the punitive damages should be 
will be decided by the judge. He does it by looking at that particular 
defendant, determining their ability to pay, determining how successful 
economically that company is, looking at their intent, how they handle 
everything, how long the violations continued, and then the judge will 
make a decision on the amount of the punitive damages that are 
necessary to prevent this from happening again in the future.
  Mr. President, and my colleagues, I think that is a fair way of 
resolving this problem. A very complicated structure that says 25 or 
less has one standard, and then the judge can overrule the jury if he 
wants to, but if the defendant does not like it they can ask for 
another trial, is too complicated, too time consuming, encourages too 
many additional trials, and is not the way to do it.
  I prefer the suggestion of Senator Dodd, which is in my amendment, 
which simply says if the jury finds the defendant was so negligent in a 
fashion that deserves punitive damages to be awarded, then the judge 
will decide what is an effective and correct amount to be awarded.
  Second, on the statute of repose, I think the Gorton-Rockefeller 
amendment is defective again. Remember this uniformity argument we 
talked about? They kept saying we need to pass this bill because we 
want to make it uniform throughout the United States. Their bill is 
defective because it says the statute of repose will be 25 years unless 
the State wants to make it less. That is not uniform. It says we 
 [[Page S6294]] can have 50 different States with 50 different statutes 
of repose and 50 different standards for a person who is injured to 
have to worry about. That is not uniformity at all.
  The statute of repose, of course, says that after a product has been 
in place for a period of time you can no longer bring a cause of action 
against that product because it is defective. My amendment says let us 
make it uniform, 25 years across the country, nationwide; it is the 
same in every State. That brings about uniformity both for the person 
who manufactured the product and uniformity for the person who may be 
injured by a defective product. I think that makes sense and is the 
right way to go.
  The third area I think they are defective in, in their suggestion, is 
on the question of joint and several liability. What they are trying to 
do is address the problem of a manufacturer or defendant that is just a 
little bit responsible, just a little bit negligent. Their argument is 
if someone is only responsible for 3 percent of the injury he or she 
should not be liable for 100 percent of the damages for noneconomic 
damages, that is the pain and suffering type of injuries that a person 
would receive from a defective product. But the way they have tried to 
handle this problem is say you are not going to have any joint 
liability for noneconomic damages and that will take care of the 
problem. Yes, that takes care of the problem. It wipes out the 
possibility of an injured person, perhaps, from getting any recovery at 
all.
  What I am going to suggest in my amendment is simply this--and this 
is the language, again, that has been suggested by Senator Specter, who 
has come up with I think a very good idea to solve this problem. I 
picked some from Democratic colleagues, Senator Dodd, some from our 
Republican colleagues, Senator Specter, and tried to put them together 
because that is what we have been talking about for the last several 
days. Senator Specter's suggestion, which I have included in my 
suggestion, is simply to say there is a de minimis standard. If a 
defendant is responsible for less than 15 percent of the injuries that 
were caused, they cannot be held jointly liable, they can only be held 
liable for that percentage of the damages that it has been determined 
they are at fault for, that they caused. If it is 3 percent they can 
only be responsible for 3 percent. But after that threshold, if they 
are 20 to 30 to 40 percent responsible, then they can be held jointly 
liable. I think that takes care of the so-called de minimis problem, 
whereby we should not hold someone responsible for the whole amount of 
damages if they only caused a very small, de minimis, portion of those 
damages. But after a certain point, joint liability should prevail.
  We picked up Senator Specter's suggestion, which I think is a very 
good one, that says if a person is 15 percent or more responsible for 
these losses, then they can be held jointly liable for noneconomic 
losses that they caused. That defendant, of course, has a cause of 
action for anybody else who is liable for the other portion of the 
damages. That is what normally occurs. The defendant then brings in the 
other party and they can be held responsible--to the defendant who has 
paid the entire amount--for their portion. So the system works very 
well. But my suggestion, I think, takes care of the de minimis concern 
that has been expressed by many of our colleagues.
  I will offer this amendment and will be able to offer it if the 
cloture motion is voted down. I think it would be a big mistake, when 
we are so close to coming up with a compromise agreement, to at this 
time invoke cloture and prevent the opportunity to offer this amendment 
with a chance of it becoming law. This is really an attempt to try to 
reach a legitimate compromise. We can debate this for a long time. We 
could continue to prevent cloture from being invoked.
  I think it is time the Senate bring this measure to a close. What I 
have tried to do is pick some of the best ideas from my colleagues. I 
continue to emphasize that many of the things I have in my legislation 
are the product of the suggestions of some of my colleagues--Senator 
Specter in particular with this de minimis standard, my colleague 
Senator Dodd with the concept of punitive damages being set by the 
judge after a trial has occurred that determines that punitive damages 
would be justified. I think that makes good sense, to try to 
incorporate Republican ideas and Democratic ideas, to put together a 
package which is truly a compromise.
  One of the things the advocates of this so-called tort reform 
legislation have advocated is a national standard when it talks to 
punitive damages. I have incorporated their ideas on the national 
standard being in fact that the plaintiff must show a conscious and 
flagrant indifference to safety concerns, and the plaintiff must do it 
and show it by clear and convincing evidence. That will be a national 
standard now for punitive damages in product liability cases. I have 
incorporated that suggestion. That is the same as in the Gorton-
Rockefeller legislation.
  In fact, much of what this substitute that I will offer really 
incorporates is the better features from the Gorton-Rockefeller 
language. But it also tries to address the three major areas in which I 
think they were defective, and those are how punitive damages are set, 
how they deal with joint and several liability, and how they deal with 
the statute of repose.
  So I hope when we come to the floor to vote on cloture this morning, 
which has already been set, our colleagues will know there is an effort 
among many of us who have been involved to some extent in this 
legislation to try to put together a package of amendments that is 
truly a genuine compromise, that tries to treat people who are injured 
by defective products on the same level playing field that we are 
trying to treat defendants who in fact have manufactured defective 
products.
  It is improper for this body to try to give advantage to one group 
over the other group. If we conclude there should be some national 
standards, then the national standards should apply both to those who 
are injured as well as to those who make the product that has caused 
injury, in the same way. It would be unfair and improper to say one 
side is going to get more fair treatment than the other. I am concerned 
the provisions that are pending in the Gorton-Rockefeller substitute in 
fact are not fair; in fact they do allow for more loopholes to be 
created with the 25-employee limitation, they do create some other 
problems with regard to the establishment of punitive damages, they 
encourage more trials, and they encourage, I think, abuse of how 
punitive damages would be set.
  We have tried to offer something that addresses all these problems in 
a fashion that truly represents a fair and just compromise. But we do 
need to ask our colleagues--who may be trying to figure out the 
situation as to where we are--ask them to vote against the cloture 
motion and allow us to come in with a compromise that I think for once 
and for all will settle this very, very difficult, very emotional set 
of issues that we have struggled with for so many days.
  The alternative I will offer, and hope to be joined by a number of 
our colleagues, will be something that will give everybody an 
opportunity to say we made some reforms but we did it ultimately and 
finally in a fashion that is fair to everyone involved. With that, Mr. 
President, is there any time left on the leader time?
  The PRESIDING OFFICER. Thirty seconds.
  Mr. BREAUX. I will just reserve that 30 seconds in case the leader 
needs it.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hutchison). Without objection, it is so 
ordered.

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