S5976 CONGRESSIONAL RECORD— SENATE May 2, 1995 

clung to the same strategy. And what 

have we seen for it? We have seen a 

lower standard of living in this country 

generally, lower wages, and we have 

seen American jobs move overseas. 

That has been the result of this strategy. It is a strategy that hurts this 

country, and it is a strategy that must 

be changed. 

We must get to a point where, if you 

close your eyes and simply listen, you 

can hear a difference between what 

people are saying on trade policy. You 

cannot anymore. There is no difference 

between what the Republicans say and 

what the Democrats say on trade. It 

sounds all the same to me. 

Oh, Senator HOLLINGS sounds different to me because he is talking a 

different kind of strategy—plus he 

comes from a different part of the 

country. And Senator BYRD sounds different because he is talking about 

trade in a completely different way. 

But it is very unusual, and we need to 

create a national debate on this subject. We need to do it soon. The merchandise trade deficit last year was 

$166 billion, the highest in history. 

Jobs left our country. Wages in this 

country were down. 

Our current strategy says to American workers they can now compete 

with 2 or 3 billion others in the world, 

some of whom are willing to work for 

12 cents an hour at the age of 12, for 12 

hours a day. That ought not be the 

competition for the American worker. 

No one should produce a product that 

enters our marketplace under those 

conditions. And we must, posthaste, 

create a national debate about trade 

strategy, looking out for the best interests of this country. 

I do not want a trade war. That does 

not serve anybody’s interests. But I do 

want our country to stand up for its 

own economic interests for a change. 

Can we not, for a change, just for once, 

have a trade negotiation that we win, 

or at least come out even on? We lose 

every time we pull up to the table. We 

lost on NAFTA; we lost on Canada; we 

lost on GATT. We can go all the way 

back. It is time for this country to 

stand up for its economic interests. 

f 

MEDICARE AND TAX CUTS FOR 

THE RICH 

Mr. DORGAN. I did not come to 

speak about trade, but I wanted to say 

something about what I saw this weekend—the Speaker of the House, the majority leader of the Senate, and now 

today I see the chairman of the Ways 

and Means Committee of the other 

body, all talking about Medicare. 

It was interesting to me. I was thinking about these old movies I used to see 

when I was a kid, when all these cowboys would whistle when they go into a 

box canyon and then when the trouble 

would start, they would start jumping 

off their horses, trying to find a place 

to hide. 

This is kind of a box canyon we have 

created in the last couple of months, 

just riding in, whistling all the way, 

with the Contract With America, saying: Do you know what we can do? We 

can balance the Federal budget easily. 

We can do it before lunch. We will not 

even break a sweat. We will just 

change the U.S. Constitution and use 

$1.3 trillion in the Social Security 

trust funds to offset against other revenues. We will balance the budget. 

Plus we will do more than that. We 

will promise you American people we 

will not only balance the budget, we 

will give you a tax cut. In fact, we will 

call it a middle-class tax cut. We will 

do all of that, and we will tame this 

Medicare and Medicaid problem. We 

will cut money out of Medicare and 

Medicaid and we will solve that problem. 

Then what happened? I think this 

weekend somehow these folks that rode 

into this box canyon understood the 

trouble they were in because, all of a 

sudden, the three dismounted and are 

scurrying in every direction. 

I noticed today the Ways and Means 

Committee in the House was asking 

the administration to give them advice 

on how to solve the Medicare and Medicaid problem. They were not asking 

for any advice when they talked about 

the tax cut bill or the welfare reform 

bill that they moved through there 

quickly. They did not need any advice 

then. But all of a sudden they find out 

their promises are coming home to 

pinch. What they are worried about is 

that the American people might see 

what has been created—a promise of 

tax cuts for the middle class that looks 

like this: 

This is the middle-class tax cut for 

those middle-class folks who live on 

Rodeo Drive. At least it must be Rodeo 

Drive because how else could you explain this chart? Who benefits from the 

tax bill? If you earn $30,000 or below, as 

an average family, you get an enormous tax cut, $134 a year. If your income is $200,000 or above as an American family, you get a check back for 

your tax bill, a tax cut of $11,266. 

I was on a radio talk show with a 

conservative host, somebody who believes in all of this, who said, ‘‘Well, 

Senator DORGAN, what do you think 

about this middle-income tax cut?’’ I 

said, ‘‘What middle-income tax cut? 

What on Earth are you talking about?’’

He said, ‘‘The one just passed by the 

House of Representatives which benefits the middle-income folks.’’ I said, 

‘‘Really? Do you understand it? Have 

you really seen the results of it?’’ I 

said, ‘‘If you are over $200,000, you get 

a $11,200 tax break; $30,000 or under, 

you get $134. That is middle income?’’

Not in my hometown, it is not middle 

income. 

But you know what has happened 

here. You know what the box canyon 

is—people are going to look and say, 

‘‘Gee. Now if we have a big deficit and 

we have economic troubles in our country and we are trying to reduce the 

budget deficit and give a $11,200 tax cut 

to families over $200,000 a year, and 

then the same folks who want to do it 

come along and say, ‘‘Do you know how 

we can pay for all of this? We can take 

a $300 billion or $400 billion out of 

Medicare and Medicaid. That is how we 

can pay for this.’’

All of a sudden I think a light bulb 

went on in the minds of some of these 

architects who said maybe we will get 

blamed for taking money away from 

people who are elderly or poor for their 

health care and using it to give a tax 

cut to those who are wealthy. Will not 

that be unfair for those of us who know 

the facts to stand up and talk about 

those folks? So all of a sudden we have 

seen in the last 48 hours, 72 hours, folks 

scurrying around town here saying, 

‘‘Wait a second. Do not be so quick on 

Medicare and Medicaid. That is not 

really what we meant. That is not what 

we said.’’

We do not really know what they 

mean because those same folks who 

were out here in an enormous hurry to 

change the U.S. Constitution were not 

in a very big hurry on April 1 when the 

law said they were required to bring a 

budget to the floor of the Senate. 

You see, you cannot change the Constitution and alter the deficit. If you 

change the Constitution with a constitutional amendment to require a 

balanced budget, you will not change 

the deficit by one nickel. What changes 

the budget deficit is when we bring a 

budget to the floor and make decisions. 

They were in a big hurry to change 

the Constitution, but somehow this 

enormous need to move quickly has 

left them. Now they simply cannot 

seem to get over here. The law says 

April 1 they should be here with their 

budget. Then it says by April 15 we 

should have a conference report. Well, 

April 1 came and went. April 15 is here 

and gone. May 1 is here and gone. No 

budget. But we have tax cuts for the 

big folks. 

If you make half a million dollars 

sitting there clipping coupons, using 

that channel changer to search to see 

what entertainment is on tonight for 

you, boy, you can look at this Congress, and, say, ‘‘What a Congress. 

What a bunch of folks those folks are. 

$11,000 I have to spend. I can buy some 

more radio equipment. In fact, I can 

probably lease a Rolls Royce for 6 or 8 

months, or lease a Mercedes Benz.’’

Could you not with $11,000 lease a Mercedes Benz for a year? Then you say to 

the person that is making $20,000 or 

$25,000 a year, maybe a hubcap. Maybe 

you will not be able to afford the hubcap. Maybe a radiator cap, but certainly not the Mercedes Benz we are 

going to give to the big folks. 

Here we are. No budget; got a tax cut, 

not middle-class tax cut, a tax cut that 

gives the bulk of the benefits to the 

wealthiest. It is the old cake and 

crumbs theory. Give the cake to the 

big shots. Leave a few crumbs to the 

rest and say everybody got something. 

It is like somebody going to Camden 

Yards and saying, ‘‘You know something. I am going to give away $100 

mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS

May 2, 1995 CONGRESSIONAL RECORD— SENATE S5977 

million in Camden Yards over at the 

baseball stadium in Baltimore.’’ So everybody files in with great expectations because it is going to be divided 

up among them. The person goes 

around to every seat and gives everybody a dollar. But the person sitting 

behind home plate, seat A, row one, 

that person gets $99,999,000—essentially 

the bulk of the tax cut, the bulk of the 

giveaway. That is what is happening 

here, and people understand that. 

So we are in a situation now where 

those of us who look at this contract 

and the strategy wonder what is real. 

They say, ‘‘I want a balanced budget. I 

want a balanced budget. I am willing to 

weigh in and lift for a balanced budget. 

I am going to propose a container of 

spending cuts that is real and substantial.’’

But as I said a couple of months ago, 

you know, I tuned in once to a television program and saw weight lifting 

and body building. They had the body 

building contest where the folks come 

out and pose. I had never seen this before. They oil themselves up and they 

come out and flex their muscles. And 

the announcer said, ‘‘In the sport of 

body building there is a big difference 

between lifting and posing.’’

I thought to myself. Gee. That sort of 

spells the difference in politics. There 

are a lot of folks who are terrific in 

posing. They come out here and flex 

around, get all oiled up, and look pretty and impress everybody. The question then on April 1 is what can you 

lift? The answer is apparently nothing. 

This is all posing. 

I think all of us here need to understand what the dimensions of the problem are for this country. We have serious dimensions in the problem of Medicare and Medicaid, and we have to resolve it. We have to reform the system. 

We ought to redress the rate of growth 

to the extent we can. We ought to do 

that in a bipartisan way. But nobody 

that I know of on this side of the aisle 

believes we ought to provide $11,000 tax 

cuts for the people with a couple hundred thousand dollars in income, and 

then say to the seniors in this country, 

‘‘We are sorry. We don’t have enough 

money to provide health care for you.’’

Those are the issues. Is it fair to juxtapose them? It is darned right it is 

fair. We intend to do that because I 

think we ought to pass a budget that 

moves us toward a balanced budget and 

get rid of these deficits. I think we 

ought to reform the welfare system. We 

ought to reduce the rate of growth in 

Medicare and Medicaid. We should reform the welfare system as well. We 

ought to reduce the rate of growth in 

health-care programs. 

But we ought not under any circumstance play this kind of a game 

where we can construct one more bit of 

evidence of reaching out to the 

wealthiest in our country and saying, 

‘‘By the way, let us give you an extra 

bonus, a little extra appreciation for 

what you do for America.’’ There is 

nothing wrong with being wealthy. I 

think everybody would like to be 

wealthy. But there are a whole lot of 

folks in this country who are not 

wealthy who work and try very hard 

and also need some help. 

I think the help we can give them in 

this country as a whole is to reduce 

this crushing budget deficit, do it in an 

honest way, address the wrenching 

issues of health care in an omnibus 

way, but especially with respect to 

Medicare and Medicaid. If we do that, 

then I think finally these kinds of 

things will be believable. 

I came today to discuss this only because I have seen the scurrying or the 

flurry of activity in the last couple of 

days by our majority leader, and by the 

Speaker, and by so many others who 

now say, ‘‘Well, it is true we were 

thinking of several hundred billion dollars in cuts in Medicare and Medicaid 

but now we want to talk about it in a 

different context.’’ Why the change? 

All of us know why the change. Because they understand that even those 

of us who went to the smallest schools 

can add and subtract, and when things 

do not add up, you have to live with 

the consequences. 

This kind of a chart does not add up 

against the backdrop of those who 

want to go after Medicare and Medicaid. It does not add up either that 

those who are most anxious to change 

the Constitution now somehow seem 

not anxious at all to bring the budget 

resolution to the floor of the Senate. 

My hope is that in the very near future all of us who care about this can 

work together and solve these problems together. 

You know, I supported, in 1993, a 

budget resolution that passed this 

Chamber by one vote, and I have never 

apologized and never intend to apologize to anybody for voting to do it. I 

am glad I did. It was the right vote. 

The easiest vote and the political 

vote would have been to vote no, because what we did was we cut some 

spending, we increased some taxes, and 

we reduced the deficit. 

Nearly half of our Chamber said, 

‘‘Count me out. I just want to talk 

about deficit reduction, but when it 

comes to voting for it, I ain’t going to 

vote for it in a minute, not an hour, 

not a year.’’ So we did not even get one 

Republican vote to pass the budget resolution. 

So I do not want people in this Chamber wondering whether the Senator 

from South Carolina or others are willing to balance the budget. We have 

been willing to cast the difficult votes 

and live with the consequences. And I 

am perfectly satisfied with that. 

But there is much, much more to do. 

The next step, and I hope the final 

step, in getting toward a balanced 

budget amendment requires, I think, 

sober, serious budget cuts. It requires 

us to jettison these kinds of approaches 

that are called middle-class tax cuts, 

that really once again reduce the revenues and increase the deficit in order 

to give tax cuts to the wealthy. 

Madam President, I see the Senator 

from South Carolina is on his feet. 

Those are the points I wanted to make 

today about wondering why the budget 

is not before us, No. 1; and, No. 2, trying to understand a bit, why so much 

activity in the last 72 hours by leaders 

of the other party on the Medicare and 

Medicaid reform issue? I think I understand it. I think they understand it. We 

will see in the coming days what results from it. 

I yield the floor. 

Mr. HOLLINGS addressed the Chair. 

The PRESIDING OFFICER (Mr. 

INHOFE). The Senator from South Carolina. 

Mr. HOLLINGS. Mr. President, I 

want to join in the comments of our 

distinguished colleague from North Dakota along the line of the difficulty 

with respect to the budget, and then 

let me also address Medicare and some 

of the comments made recently. 

I ask unanimous consent that a document released last January on the realities of truth in budgeting be printed 

in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

HOLLINGS RELEASES REALITIES ON TRUTH IN

BUDGETING

Reality No. 1: $1.2 trillion in spending cuts 

is necessary. 

Reality No. 2: There aren’t enough savings 

in entitlements. Have welfare reform, but a 

jobs program will cost; savings are questionable. Health reform can and should save 

some, but slowing growth from 10 to 5 percent doesn’t offer enough savings. Social Security won’t be cut and will be off-budget 

again. 

Reality No. 3: We should hold the line on 

the budget on Defense; that would be no savings. 

Reality No. 4: Savings must come from 

freezes and cuts in domestic discretionary 

spending but that’s not enough to stop hemorrhaging interest costs. 

Reality No. 5: Taxes are necessary to stop 

hemorrhage in interest costs. 

1996 1997 1998 1999 2000 2001 2002 

Deficit CBO Jan. 1995 (using trust funds) ....................................................................................................................... 207 224 225 253 284 297 322 

Freeze discretionary outlays after 1998 ............................................................................................................................. 0 0 0 ¥19 ¥38 ¥58 ¥78 

Spending cuts .................................................................................................................................................................... ¥37 ¥74 ¥111 ¥128 ¥146 ¥163 ¥180 

Interest savings .................................................................................................................................................................. ¥1 ¥5 ¥11 ¥20 ¥32 ¥46 ¥64 

Total savings ($1.2 trillion) ...................................................................................................................................... ¥38 ¥79 ¥122 ¥167 ¥216 ¥267 ¥322 

Remaining deficit using trust funds ................................................................................................................................. 169 145 103 86 68 30 0 

mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS

S5978 CONGRESSIONAL RECORD— SENATE May 2, 1995 

1996 1997 1998 1999 2000 2001 2002 

Remaining deficit excluding trust funds ........................................................................................................................... 287 264 222 202 185 149 121 

5 percent VAT ..................................................................................................................................................................... 96 155 172 184 190 196 200 

Net deficit excluding trust funds ....................................................................................................................................... 187 97 27 (17 ) (54 ) (111 ) (159 ) 

Gross debt .......................................................................................................................................................................... 5,142 5,257 5,300 5,305 5,272 5,200 5,091 

Average interest rate on debt (percent) ............................................................................................................................ 7.0 7.1 6.9 6.8 6.7 6.7 6.7 

Interest cost on the debt ................................................................................................................................................... 367 370 368 368 366 360 354 

Note.—Figures are in billions. Figures don’t include the billions necessary for a middle-class tax cut. 

Nondefense discretionary spending cuts 1996 1997 

Space station .................................................................... 2 .1 2 .1 

Eliminate CDBG ................................................................ 2 .0 2 .0 

Eliminate low-income home energy assistance ............... 1 .4 1 .5 

Eliminate arts funding ..................................................... 1 .0 1 .0 

Eliminate funding for campus based aid ........................ 1 .4 1 .4 

Eliminate funding for impact aid .................................... 1 .0 1 .0 

Reduce law enforcement funding to control drugs ......... 1 .5 1 .8 

Eliminate Federal wastewater grants ............................... 0 .8 1 .6 

Eliminate SBA loans ......................................................... 0 .21 0 .282 

Reduce Federal aid for mass transit ............................... 0 .5 0 .1 

Eliminate EDA ................................................................... 0 .02 0 .1 

Reduce Federal rent subsidies ......................................... 0 .1 0 .2 

Reduce overhead for university research ......................... 0 .2 0 .3 

Repeal Davis-Bacon .......................................................... 0 .2 0 .5 

Reduce State Dept. funding and end misc. activities .... 0 .1 0 .2 

End P.L. 480 title I and III sales ..................................... 0 .4 0 .6 

Eliminate overseas broadcasting ..................................... 0 .458 0 .570 

Eliminate the Bureau of Mines ........................................ 0 .1 0 .2 

Eliminate expansion of rural housing assistance ............ 0 .1 0 .2 

Eliminate USTTA ................................................................ 0 .012 0 .16 

Eliminate ATP .................................................................... 0 .1 0 .2 

Eliminate airport grant in aids ........................................ 0 .3 1 .0 

Eliminate Federal highway demonstration projects ......... 0 .1 0 .3 

Eliminate Amtrak subsidies .............................................. 0 .4 0 .4 

Eliminate RDA loan guarantees ....................................... 0 .0 0 .1 

Eliminate Appalachian Regional Commission .................. 0 .0 0 .1 

Eliminate untargeted funds for math and science ......... 0 .1 0 .2 

Cut Federal salaries by 4 percent .................................... 4 .0 4 .0 

Charge Federal employees commercial rates for parking 0 .1 0 .1 

Reduce agricultural research extension activities ........... 0 .2 0 .2 

Cancel advanced solid rocket motor ................................ 0 .3 0 .4 

Eliminate legal services ................................................... 0 .4 0 .4 

Reduce Federal travel by 30 percent ............................... 0 .4 0 .4 

Reduce energy funding for Energy Technology Develop. .. 0 .2 0 .5 

Reduce Superfund cleanup costs ..................................... 0 .2 0 .4 

Reduce REA subsidies ...................................................... 0 .1 0 .1 

Eliminate postal subsidies for nonprofits ........................ 0 .1 0 .1 

Reduce NIH funding .......................................................... 0 .5 1 .1 

Eliminate Federal Crop Insurance Program ..................... 0 .3 0 .3 

Reduce Justice State-local assistance grants ................. 0 .1 0 .2 

Reduce export-import direct loans ................................... 0 .1 0 .2 

Eliminate library programs ............................................... 0 .1 0 .1 

Modify Service Contract Act ............................................. 0 .2 0 .2 

Eliminate HUD special purpose grants ............................ 0 .2 0 .3 

Reduce housing programs ................................................ 0 .4 1 .0 

Eliminate Community Investment Program ...................... 0 .1 0 .4 

Reduce Strategic Petroleum Program ............................... 0 .1 0 .1 

Eliminate Senior Community Service Program ................. 0 .1 0 .4 

Reduce USDA spending for export marketing .................. 0 .02 0 .02 

Reduce maternal and child health grants ....................... 0 .2 0 .4 

Close veterans hospitals .................................................. 0 .1 0 .2 

Reduce number of political employees ............................ 0 .1 0 .1 

Reduce management costs for VA health care ............... 0 .2 0 .4 

Reduce PMA subsidy ......................................................... 0 .0 1 .2 

Reduce below cost timber sales ...................................... 0 .0 0 .1 

Reduce the legislative branch 15 percent ....................... 0 .3 0 .3 

Eliminate Small Business Development Centers ............. 0 .056 0 .074 

Eliminate minority assistance—Score, Small Business 

Institute and other technical assistance programs, 

women’s business assistance, international trade assistance, empowerment zones ..................................... 0 .033 0 .046 

Eliminate new State Department construction projects .. 0 .010 0 .023 

Eliminate Int’l Boundaries and Water Commission ......... 0 .013 0 .02 

Eliminate Asia Foundation ................................................ 0 .013 0 .015 

Eliminate International Fisheries Commission ................. 0 .015 0 .015 

Eliminate Arms Control Disarmament Agency ................. 0 .041 0 .054 

Eliminate NED ................................................................... 0 .014 0 .034 

Eliminate Fulbright and other international exchanges .. 0 .119 0 .207 

Eliminate North-South Center ........................................... 0 .002 0 .004 

Eliminate U.S. contribution to WHO, OAS and other 

international organizations including the United Nations .............................................................................. 0 .873 0 .873 

Eliminate participation in U.N. peacekeeping .................. 0 .533 0 .533 

Eliminate Byrne grant ....................................................... 0 .112 0 .306 

Eliminate Community Policing Program ........................... 0 .286 0 .780 

Moratorium on new Federal prison construction .............. 0 .028 0 .140 

Reduce coast guard 10 percent ....................................... 0 .208 0 .260 

Eliminate Manufacturing Extension Program ................... 0 .03 0 .06 

Eliminate coastal zone management ............................... 0 .03 0 .06 

Eliminate national marine sanctuaries ............................ 0 .007 0 .012 

Eliminate climate and global change research ............... 0 .047 0 .078 

Eliminate national sea grant ........................................... 0 .032 0 .054 

Eliminate State weather modification grant .................... 0 .002 0 .003 

Cut weather service operations 10 percent ..................... 0 .031 0 .051 

Eliminate regional climate centers .................................. 0 .002 0 .003 

Eliminate Minority Business Development Agency ........... 0 .022 0 .044 

Eliminate Public Telecommunications Facilities Program 

grant ............................................................................. 0 .003 0 .016 

Eliminate children’s educational television ..................... 0 .0 0 .002 

Eliminate national information infrastructure grant ....... 0 .001 0 .032 

Cut Pell grants 20 percent ............................................... 0 .250 1 .24 

Eliminate education research ........................................... 0 .042 0 .283 

Cut Head Start 50 percent ............................................... 0 .840 1 .8 

Eliminate meals and services for the elderly .................. 0 .335 0 .473 

Eliminate title II social service block grant ..................... 2 .7 2 .8 

Eliminate community services block grant ...................... 0 .317 0 .470 

Eliminate rehabilitation services ...................................... 1 .85 2 .30 

Eliminate vocational education ........................................ 0 .176 1 .2 

Reduce chapter 1 20 percent ........................................... 0 .173 1 .16 

Reduce special education 20 percent .............................. 0 .072 0 .480 

Eliminate bilingual education .......................................... 0 .029 0 .196 

Eliminate JTPA .................................................................. 0 .250 4 .5 

Nondefense discretionary spending cuts 1996 1997 

Eliminate child welfare services ...................................... 0 .240 0 .289 

Eliminate CDC Breast Cancer Program ............................ 0 .048 0 .089 

Eliminate CDC AIDS Control Program .............................. 0 .283 0 .525 

Eliminate Ryan White AIDS Program ................................ 0 .228 0 .468 

Eliminate maternal and child health ............................... 0 .246 0 .506 

Eliminate Family Planning Program ................................. 0 .069 0 .143 

Eliminate CDC Immunization Program ............................. 0 .168 0 .345 

Eliminate Tuberculosis Program ....................................... 0 .042 0 .087 

Eliminate agricultural research service ........................... 0 .546 0 .656 

Reduce WIC 50 percent .................................................... 1 .579 1 .735 

Eliminate TEFAP: 

Administrative .......................................................... 0 .024 0 .040 

Commodities ............................................................ 0 .025 0 .025 

Reduce cooperative State research service 20 percent ... 0 .044 0 .070 

Reduce animal plant health inspection service 10 percent ............................................................................... 0 .036 0 .044 

Reduce food safety inspection service 10 percent .......... 0 .047 0 .052 

Total ......................................................................... 36 .941 58 .402 

AMENDMENT INTENDED TO BE PROPOSED BY

MR. HOLLINGS

At the appropriate place insert the following: 

SEC. . SENSE OF THE SENATE CONCERNING 

CONGRESSIONAL ENFORCEMENT OF 

A BALANCED BUDGET. 

It is the Sense of the Senate 

(A) that the Congress should move to 

eliminate the biggest unfunded mandate—interest on the national debt, which drives the 

increasing federal burden on state and local 

governments; and 

(B) that prior to adopting in the first session of the 104th Congress a joint resolution 

proposing an amendment to the Constitution 

requiring a balanced budget—

(1) the Congress set forth specific outlay 

and revenue changes to achieve a balanced 

federal budget by the year 2002; and 

(2) enforce through the Congressional 

budget process the requirement to achieve a 

balanced federal budget by the year 2002. 

Mr. HOLLINGS. Mr. President, in 

this particular document, I went as seriously in purpose as I possibly could 

to try my dead-level best to do what 

the contract said. 

As you well know, Mr. President, I 

have voted for and supported a balanced budget. I voted for one in 1968 

and 1969. As chairman of the Budget 

Committee, we cut the deficit materially. I opposed the tax cuts of President Reagan and favored the spending 

cuts, which was very costly to me politically. But I knew we had to do it. I 

knew what the problem was. 

I, thereupon, recommended a freeze 

when our friend, Senator Howard 

Baker, was the majority leader, and we 

worked on that. I later worked, of 

course, with Senator GRAMM and Senator RUDMAN on Gramm–Rudman-Hollings, where we sequestered, cut right 

straight across the board, reduced the 

deficit for awhile, and fought like a 

tiger at 12:41 a.m., October 19, 1990, 

when they repealed Gramm–RudmanHollings on that point of order, with 

Senator GRAMM voting to repeal it. 

And I have been disillusioned by that. 

But I had tried the freeze; I tried the 

cuts. And then, under President Bush, 

talking with his OMB Director, Dick 

Darman, I said to Dick, ‘‘If you can get 

President Bush to go along now, we 

will have to have not only the spending 

cuts, the spending freezes, the elimination of tax loopholes, but we need 

revenues to get on top of this.’’

Because I will show in later debate 

where President Reagan got us the 

first $100 billion deficit and the first 

$200 billion. President Bush got us the 

first $300 billion deficit and the first 

$400 billion deficit. And I will show 

that by actual record. 

As I have said, we have to get on top 

of this monster. I testified before the 

Finance Committee for a value-added 

tax. So I put this particular item that 

I have referred to in the RECORD just 

once again to justify my capacity and 

sincerity to talk on this particular 

point. 

Because I listed the very, very difficult task that was confronting us 

whereby, in a line, you are not going to 

save that much in entitlements and 

welfare reform and health reform or 

Social Security or defense, but rather 

you are going to have to look for domestic discretionary spending. And to 

put us on a glidepath that first year, 

you had to cut $37 billion in domestic 

discretionary spending and even then, 

you would not accomplish it because 

interest costs grows this year by $43 

billion. 

So like ‘‘Alice in Wonderland,’’ in 

order to stay where you are, you have 

to run as fast as you can; in order to 

get ahead, you have to run even faster. 

So it is a far, far more serious problem. 

And the talk about tax cuts, that is 

out of the whole cloth. Everybody likes 

tax cuts. I joined with Senator FEINGOLD from Wisconsin earlier this year 

in saying forget about cutting the revenues. The problem is you need revenues, because we have spending on 

automatic pilot. 

I can tell you here and now, irrespective of what they are saying, as we talk 

this particular day, May 2, 1995, we 

have spent another $1 billion. And tomorrow, we will spend another $1 billion; Thursday, another $1 billion; and 

Friday another $1 billion; and Saturday, another $1 billion; and Sunday, 

another $1 billion, just in interest 

costs, on automatic pilot. 

How do you get on top of this monster? Well, you have to do all the above 

and, yes, it is going to take bipartisanship and not going to take politics. 

I want to make reference now to the 

statement just made by the Senator 

from North Dakota about Medicare, because we hear a lot of whooping and 

wailing about Medicare and, above all, 

about the President of the United 

States. 

Now, heavens above, if there is one 

thing—and I think President William 

Jefferson Clinton has been blamed for 

everything up here—but if there is one 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5979 

thing that President Clinton cannot be 

blamed for, that is any deficit in Medicare-Medicaid. He was back home in 

Little Rock, AR, when we were up here 

creating these deficits. So let us not 

blame the President. 

Moreover, let us not blame him since 

he has come to town. He put this as the 

No. 1 issue. They are talking about 

AWOL now. I am going to get to this 

point. Here is the gentleman they talk 

about being AWOL. He came to town 

with health care reform as his No. 1 interest and issue. Along with that, he 

submitted a cut of $125 billion. And the 

then-chairman of our Finance Committee was the distinguished Senator 

from New York, Senator MOYNIHAN. He 

described that as fantasy. And Senator 

PACKWOOD, the ranking member, joined 

in with him—a $125 billion cut was fantasy. It just could not be done. 

But we worked on it. And we worked 

on spending cuts. We worked on controlling entitlements, and we worked 

on tax increases. And, yes, we came up, 

finally, with a plan that year with all 

three of them, without a single, single, 

single Republican vote in either the 

Senate or the U. S. House of Representatives. 

We reduced the deficit some $500 billion. We eliminated over 100,000 Government jobs. We increased taxes on 

gasoline, liquor, and cigarettes. We increased taxes even on Social Security. 

And, finally, we did get an agreement, 

after hard work, of a $56 billion cut in 

Medicare. 

Now, remember, in the last 24 hours, 

we have heard AWOL: The President is 

AWOL; took a walk; waved the flag of 

surrender; AWOL. 

Here was a President who led and got 

his Vice President over and all to get 

the necessary votes so we could get 

those cuts in Medicare. 

Thereupon, the President came last 

year with another $80 billion in cuts, 

along with health care reform, and 

what did they do? They rebuffed him 

and beat up on him and ridiculed the 

First Lady. But she worked, and, agree 

or disagree, you could not say that Hillary Rodham Clinton was AWOL or 

that William Jefferson Clinton was 

AWOL. 

Now what they want to do, Mr. President—and this is the interesting thing 

and I am going to include this in the 

RECORD—they wanted the President of 

the United States to do all the dirty 

work, all the cuts. I want to show you 

the Dole-Domenici alternative entitled 

‘‘Because Government, Not People, 

Should Be the First to Sacrifice.’’ Mr. 

President, I ask unanimous consent 

that the Dole-Domenici alternative be 

printed in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

The Dole/Domenici Alternative: Because government, not people, should be the first to sacrifice 

Billions 1

Drop all proposed spending addons ............................................ ¥$124 

Billions 1

Drop investment 

Drop stimulus 

Permit new spending if paid for 

by added spending cuts 

Eliminate proposed taxes ............ ¥295 

Drop all individual income 

taxes 

Drop President Clinton’s proposed new energy tax 

Drop all business income taxes 

Eliminate Social Security tax 

increase 

Eliminate all proposed user fees .. ¥18 

Accept all proposed mandatory 

and discretionary cuts .............. ¥241 

Accept all mandatory savings 

Accept all discretionary savings (Defense and non-Defense) 

Restore $20 billion in Defense 

budget ....................................... +20 

Specific details await President’s budget submission 

Freeze domestic discretionary 

baseline ..................................... ¥92 

Freeze fiscal year 1994 domestic 

discretionary BA except for 

increased funding for child 

immunization and WIC programs ($500 million in 1994) 

Extend domestic discretionary 

sequester to enforce freeze 

and savings 

Revenues: 

Pay for R&E and other investment tax incentives: 

Cap non-Social Security mandatory spending ............................ ¥93.1 

Total non-Social Security mandatory savings: $177 billion 

over 5 years 

Cap on Medicare and Medicaid 

spending 

(CPI+population+4%) 

Debt savings ................................ ¥38 

Real deficit reduction2 ....... ¥444.2 

Sasser assumptions on debt management .................................... 16.1 

Total deficit reduction ....... ¥460.4 

1 Numbers are based on CBO capped baseline. 

2 Deficit in 1998 would drop to $168.4 billion and 

continue falling into the next century. 

Process reform proposals: 

Establish discretionary spending caps for 

defense and non-defense domestic programs. 

Create fixed deficit targets with enforcement through across the board cuts if targets breached. 

Assumes zero-based budgeting to control 

future spending. 

Mr. HOLLINGS. Mr. President, this 

is the Dole-Domenici alternative budget they put up in March 1993. The language is: ‘‘Accept all proposed mandatory and discretionary cuts, $241 billion.’’ They not only accepted the 

President’s cuts but on top of that they 

capped non-Social Security mandatory 

spending—a cap on Medicare and Medicaid. So they could go to the 1994 election and say, ‘‘Look at what they have 

done. The President wants to cut your 

Medicare.’’

And in 1994, here is what they had. 

This one is entitled ‘‘GOP Alternative 

Deficit Reduction and Tax Relief, 

Slashing the Deficit, Cutting MiddleClass Taxes.’’ Mr. President, I ask 

unanimous consent to print the GOP 

alternative in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

GOP ALTERNATIVE: DEFICIT REDUCTION AND

TAX RELIEF

SLASHING THE DEFICIT, CUTTING MIDDLE CLASS

TAXES

The Republican Alternative Budget will reduce the deficit $318 billion over the next 

five years—$287 billion in policy savings and 

$31 billion from interest savings. This is $322 

billion more in deficit reduction than the 

President proposes and $303 billion more in 

deficit reduction than the House-passed resolution contains. 

Moreover, the GOP alternative budget 

helps President Clinton achieve two of his 

most important campaign promises—to cut 

the deficit in half in four years and provide 

a middle-class tax cut. The GOP plan: 

Reduces the deficit to $99 billion in 1999. 

This is $106 billion less than the 1999 deficit 

projected under the Clinton budget. 

Even under this budget Federal spending 

will continue to grow. 

Total spending would increase from $1.48 

trillion in FY 1995 to more than $1.7 trillion 

in FY 1999. 

Medicare would grow by 7.8-percent a year 

rather than the projected 10.6-percent. Medicaid’s growth would slow to 8.1-percent annually rather than the projected 12-percent a 

year growth. 

It increases funding for President Clinton’s 

defense request by the $20 billion shortfall 

acknowledged by the Pentagon. 

Provides promised tax relief to American 

families and small business: 

Provides tax relief to middle-class families 

by providing a $500 tax credit for each child 

in the household. The provision grants needed tax relief to the families of 52 million 

American children. The tax credit provides a 

typical family of four $80 every month for 

family expenses and savings. 

Restores deductibility for interest on student loans—321,000 for 25,000. 

Indexes capital gains for inflation and allows for capital loss on principal residence. 

Creates new incentives for family savings 

and investments through new IRA proposals 

that would allow penalty free withdrawals 

for first time homebuyers, educational and 

medical expenses. 

Establishes new Individual Retirement Account for homemakers. 

Extends R&E tax credit for one-year and 

provides for a one-year exclusion of employer provided educational assistance. 

Adjusts depreciation schedules for inflation (neutral cost recovery). 

Tax provisions result in total tax cut of $88 

billion over five years. 

Fully funds the Senate Crime Bill Trust 

Fund, providing $22 billion for anti-crime 

measures over the next five years. The Clinton budget does not. The House-passed budget does not. The Chairman’s mark does not. 

Accepts the President’s proposed $113 billion level in nondefense discretionary spending reductions and then secures additional 

savings by freezing aggregate nondefense 

sending for five years. 

Accepts the President’s proposed reductions in the Medicare program and indexes 

the current $100 annual Part ‘‘B’’ deductible 

for inflation. Total Medicare savings would 

reach $80 billion over the next five years. 

Achieves $64 billion in Medicaid savings 

over the next five years, by capping Medicaid 

payments, reducing and freezing Disproportionate Share Hospital payments at their 

1994 level. 

Achieves additional savings through reform of our welfare system totaling $33 billion over the next five years. 

Repeals Davis-Bacon, reduces the number 

of political appointees, reduces overhead expenditures for university research, and 

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S5980 CONGRESSIONAL RECORD— SENATE May 2, 1995 

achieves savings from a cap on civilian 

FTE’s. 

Mr. HOLLINGS. Mr. President, now 

we have in March of last year: ‘‘Accept 

the President’s proposed reduction in 

the Medicare program, and index the 

Part B deductible. Total Medicare savings would reach $80 billion over the 

next 5 years.’’

So there is a conscious awareness in 

the distinguished majority leader when 

he talks of the President being AWOL 

on Medicare. Rather than being AWOL, 

he has been wounded in the front lines 

while these others have been all back 

in the barracks and not even attending 

the battle. In fact, back in the barracks, the cattle call was what we 

needed was portability so you can 

carry your coverage from job to job—a 

little bit of this, that and the other, 

just some minor adjustments—why is 

there all this problem, there is no real 

problem in medical coverage in America. 

Now it is a crisis. When? In 2002. I am 

trying to get by tomorrow. I am trying 

to stop spending a billion dollars a day 

today, tomorrow, and the next day. If I 

can stop doing that, I can get on top of 

the problems in the year 2002. But to 

come forward at this particular time 

and run all over the national TV talking about taking a walk and going 

AWOL when the poor fellow has been 

ground into the ground, he has been totally rebuffed. He has tried and fought 

the good fight. So now they come with 

all of this ‘‘Let’s have bipartisanship.’’

They would not give us a single vote, 

and now they want to get bipartisan, 

now they want to get commissions, 

now we are AWOL because we are 

ready to try to put the truth to their 

so-called contract. 

The rubber is now meeting the road, 

and if you look at that contract, Mr. 

President, talking about Medicare and 

AWOL, who shoots the troops out there 

on the front line, the Medicare troops? 

The contract does, for the simple reason that we in raising Social Security 

taxes—and this Senator voted to raise 

Social Security taxes—we raised 25 billion bucks and allocated it to Medicare. 

And what does the contract call for? 

Abolish that tax and not give the $25 

billion, rather let us shoot the Medicare troops and add to the Medicare 

deficit. 

Do not come with your contract and 

tell me how serious you are about this 

deficit and all the costs of Medicare. 

Then you say, oh, by the way, that 

problem that the President said for 2 

years was the principal cause of the 

deficit and you shot him down, the 

President is AWOL. You know it. It 

was adopted momentarily by the distinguished majority leader, because 

one of these alternatives says ‘‘the 

GOP alternative,’’ and I take it the 

majority of the GOP certainly was for 

it in March of last year. It is in the 

RECORD. Read it. And now you say that 

the President is AWOL, he does not 

even know the problem and he will not 

come front and center. He has used 

good common sense, as they call it, 

commonsense budgets, or whatever is 

supposed to be common sense around 

here. He used common sense on this 

one. 

He has tried and fought the good 

fight. But to be accused, of all things, 

of being AWOL when they come with a 

contract trying to increase the Medicare deficit some 25 billion bucks and 

saying those who have led the fight 

since they have been in office and 

never caused any of it are AWOL. The 

President has been in the front lines 

leading the battle and fighting the 

fight. 

My suggestion is they get out of the 

barracks and get out there on the line 

themselves and put out the full meaning of their so-called deficit reduction 

package. 

On that score, I have been the chairman of the Budget Committee, and I 

have been the ranking member of the 

Budget Committee. I have worked on it 

since 1974, the only remaining Member 

of either the House or the Senate who 

has been on it all that time. And I can 

tell you here and now, in trying to get 

prompt consideration so the authorizing committees would know what to 

do and how to do it, we finally put into 

law that you had the budget out of the 

committee by April 1 and passed the 

Senate and passed both Houses by 

April 15 the concurrent resolution. 

As of this minute, we have not met 

to discuss—we had some cursory hearings the first of the year—but we have 

not met in 2 months on this budget. 

They do not even call a meeting. They 

do not call a discussion. And yet they 

have the audacity to run around here 

as leaders and talk about people being 

AWOL on Medicare and Medicaid. 

We have done our best, and we will 

continue to do our best. But if they 

want to get any kind of following, they 

are not going to get any following out 

of this Senator as long as they continue these political shenanigans. They 

know it and everybody else knows it. I 

hope the press will report it, because 

that is all they do now. They treat it 

like a spectator sport up here and just 

avoid dealing with the real issue. 

I have pointed out the virtual impossibility of attaining—what Chairman 

KASICH says on the other side—a balanced budget by the year 2002 without 

taxes. They can be put on notice, now 

that I am speaking, that I will join 

with them on any plan they have so 

long as it includes revenue. 

The reason I say that is because I 

have tried it every other way—and I 

am not dumb enough now, having 

struggled with this thing for 20 years 

on the Budget Committee with half a 

haircut. I do not want a little bit here 

in cuts and a little bit here and a halfway going there and saying, oh, we are 

going to save $170 billion in interest 

costs by 2002 and give $170 billion over 

to the Finance Committee so they can 

give a middle class tax cut, and beginning to play politics that way. We do 

not have the money. We are borrowing 

every day to keep this Government 

going. They put a bunch of numbers 

down on paper, then they all wink at 

each other and say, ‘‘Well, who is going 

to be here in 2002?’’

We can project it just as economists 

have projected it. We can put it down 

in black and white when we all know 

differently. If you are going for a real 

budget deficit reduction, by having the 

Government operating in the black by 

the year 2002, you have my vote. We 

will give, and take, all the way around 

because I am committed to the spending cuts and what have you, but not 

overall, unless you are going to agree 

to have the revenues. I put in a 5 percent value added tax because it is needed. But you have to have substantial 

revenues and not tax cuts for middle 

class and capital gains and family cuts 

and all these other kinds of things that 

they have in, just to buy the 1996 election. No half a haircut for me. If you 

want to have truth in budgeting, then 

you have my cooperation and vote. But 

if you are going to have a half truth, 

which is worse than any at all, a half a 

haircut, keep it yourself and get it 

passed by yourself. 

Now, Mr. President, I have quite a bit 

to say with respect to punitive damages, because there have been more 

than enough articles written on this 

particular score. Let me ask at this 

point that we have printed in the 

RECORD an article by Thomas Lambert 

with respect to punitive damages, outlining, if you please, the various cases 

that are brought about safety in America. It is an article of some years ago. 

I ask unanimous consent that it be 

printed in the RECORD. 

There being no objection, the article 

was ordered to be printed in the 

RECORD, as follows: 

SUING FOR SAFETY

(By Thomas F. Lambert, Jr.) 

It has been well and truly said, ‘‘If you 

would plant for a year, plant grain; for a decade, plant trees; but if you would plant for 

eternity, educate a man.’’ For nearly four 

generations, ATLA has been teaching its 

men and women, and they have been demonstrating to one another, that you can sue 

for safety. Indeed, one of the most practical 

measures for cutting down accidents and injuries in the field of product failure is a successful lawsuit against the supplier of the 

flawed product. Here, as well as elsewhere in 

Tort Law, immunity breeds irresponsibility 

while liability induces the taking of preventive vigilance. The best way to make a merchant responsible is to make him accountable for harms caused by his defective products. The responsible merchant is the answerable merchant. 

Harm is the tort signature. The primary 

aim of Tort Law, of the civil liability system, is compensation for harm. Tort Law 

also has a secondary, auxiliary and supportive function—the accident prevention 

function or prophylactic purpose of tort 

law—sometimes called the deterrent or admonitory function. Accident prevention, of 

course, is even better than accident compensation, an insight leading to ATLA’s 

longstanding credo: ‘‘A Fence at the Top of 

the Cliff Is Better Than an Ambulance in the 

Valley Below.’’

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5981 

As trial lawyers say, however, ‘‘If you 

would fortify, specify.’’ The proposition that 

you can sue for safety is readily demonstrable because it is laced and leavened with 

specificities. They swarm as easily to mind 

as leaves to the trees. 

ACCIDENT PREVENTION THROUGH SUCCESSFUL

SUITS IN THE PRODUCTS LIABILITY FIELD

(1) Case of the Charcoal Briquets Causing 

Death from Carbon Monoxide. Liability was 

imposed on the manufacturer of charcoal briquets for the carbon monoxide death and injury of young men who used the briquets indoors to heat an unvented mountain cabin. 

The 10-pound bags read, ‘‘Quick to Give Off 

Heat’’ and ‘‘Ideal for Cooking in or Out of 

Doors.’’ The manufacturer was guilty of failure to warn of a lethal latent danger. Any 

misuse of the product was foreseeable because it was virtually invited. Next time you 

stop in at the local supermarket or hardware 

store, glance at the label on the bags of charcoal briquets. In large capital letters you 

will find the following: ‘‘WARNING. DO NOT 

USE FOR INDOOR HEATING OR COOKING 

UNLESS VENTILATION IS PROVIDED FOR 

EXHAUSTING FUMES TO OUTSIDE. TOXIC 

FUMES MAY ACCUMULATE AND CAUSE 

DEATH.’’ Liability here inspired and exacted 

a harder, more emphatic warning, once again 

reducing the level of excessive preventable 

danger. 

(2) Case of the Exploding Cans of Drano. 

When granular Drano is combined with 

water, its caustic soda interacts with aluminum, another ingredient in its formula 

and produces intensive heat, converting any 

water into steam at a rapid rate. If the mixture is confined, the pressure builds up until 

an explosion results. The manufacturer’s use 

of a screw-on top in the teeth of such well 

known hazard was a design for tragedy. The 

expectable came to pass (as is the fashion 

with expectability). In Moore v. Jewel Tea 

Co., a 48-year-old housewife suffered total 

blindness from the explosion of a Drano can 

with a screw-on top, eventuating in a $900,000 

compensatory and $10,000 punitive award to 

the wife and a $20,000 award to her husband 

for loss of conjugal fellowship. 

A high school chemistry student could see 

that what was needed was a ‘‘flip top’’ or 

‘‘snap cap’’ designed to come off at a pressure of, say, 15–20 pounds per square inch. 

After a series of adverse judgments, the manufacturer substituted the safer flip top. Of 

course, even the Drano flip top will be 

marked for failure if not accompanied by 

adequate testing and quality control. Capers 

involved a suit for irreversible blindness suffered by 10-year-old Joe Capers when the redesigned flip top of a can of Drano failed to 

snap off when the can fell into the bathtub 

and the caustic contents spurted 81⁄2 feet 

high impacting Joe in the face and eyes with 

resulting total blindness. The shortcomings 

in testing the can with the reformulated design cost the company an award of $805,000. 

As a great Torts scholar has said, ‘‘Defective 

products should be scrapped in the factory, 

not dodged in the home.’’

Drayton v. Jiffee Chemical Corp., is a grim 

and striking companion case to the Drano 

decisions mentioned above, and it underscores the same engineering verities of those 

cases: the place to design out dangers is on 

the drawing boards or when prescribing the 

chemical formula. a one-year-old black girl 

suffered horrendous facial injuries, ‘‘saponification’’ or fusion of her facial features, 

when an uncapped container of Liquid-Plumr 

was inadvertently tipped over. At the time of 

the accident, this excessively and unnecessarily caustic drain cleaner was composed of 

26 percent sodium hydroxide, i.e., lye. No 

antidote existed because, as the manufacturer knew. Liquid-Plumr would dissolve 

human tissue in a fraction of a second. To a 

child (or any human being) a chemical bath 

of the drain cleaner could be as disfiguring 

as falling into a pool of piranha fish. LiquidPlumr, mind you was a household product, 

which means that its expectable environment of use must contemplate the ‘‘patter of 

little feet’’ as the children’s hour in the 

American home encompasses 24 hours of the 

day. 

At the time of marketing this highly caustic drain cleaner, having made no tests as to 

its effect on human tissue within the existing state of the art, the defendant could have 

reformulated the design to use 5 percent potassium bydroxide which would have been 

less expensive, just as effective and much 

safer. After some 59 other Liquid-Plumr injuries were reported to defendant, it finally reformulated its design to produce a safer 

product. In Drayton the defendant was allowed to argue in defense and mitigation 

that its management was new, that it had 

learned from its prior claims and litigation 

experience and that it had purged the enterprise of its prior egregious misconduct. 

To open the courtroom door is often to 

open a school door for predatory producers. 

(3) Case of the Tip-Over Steam Vaporizer. 

A tip-over steam vaporizer true to that ominous description was upset by a little girl 

who tripped over the unit’s electric outlet 

cord on the way to the bathroom in the middle of the night. The sudden spillage of scalding water in the vaporizer’s glass jar severely burned the 3-year old child. The worst 

injuries in the world are burn injuries. The 

cause of the catastrophe was a loose-lidded 

top which could have been eliminated by 

adopting any one of several accessible, safe, 

practical, available, desirable and feasible 

design alternatives, such as a screw-on or 

child guard top. The truth is that the manufacturer, Hankscraft, had experienced a 

dozen prior similar disasters. In the instant 

case, the little girl recovered a $150,000 judgment against the heedless manufacturer, impeaching the vaporizer’s design because of 

lack of screw-on or child-guard top. When 

the manufacturer, with icy indifference to 

the serious risks to infant users of its household product, refused to take its liability 

carrier’s advice to recall and redesign its 

loose-lidded vaporizer, persisting in its stubborn refusal when over 100 claims had been 

filed against it, the carrier finally balked 

and refused to continue coverage unless the 

company would recall and redesign. Then 

and only then did Hankscraft stir itself to 

redeem and correct the faulty design of its 

product, thereafter proudly proclaiming (and 

I quote), ‘‘Cover-lock top protects against 

sudden spillage if accidentally tipped.’’ Once 

again Tort Law had to play professor and policeman and teach another manufacturer 

that safety does not cost: It pays. Under 

what might be called the Cost-Cost formula, 

the manufacturer will add safety features 

when it comes to understand that the cost of 

accidents is greater than the cost of their 

prevention. The Tip-Over Steam Vaporizer 

case is the most graphic example known to 

us showing that corporate management can 

be recalled to its social responsibilities by 

threat of stringent liability, enhanced by deserved civil punishment via punitive damages, and that belief in such a proposition is 

more than an ivory tower illusion. 

A good companion case to the Tip-OverSteam-Vaporizer case, serving the same Tort 

Touchstone of Deterrence, is the supremely 

instructive Case of the Remington Mohawk 

600 Rifle. While a 14-year-old boy was seeking 

to unload one of these rifles, pushing the 

safety to the ‘‘off’’ position as required for 

the purpose, the rifle discharged with the 

bullet entering the boy’s father’s back, leaving him paralyzed and near death for a long 

time. The agony of his guilt, his feeling that 

he was to blame for his father’s devastating 

injuries, pressed down on the boy’s brow like 

a crown of thorns and almost unhinged his 

sanity. Assiduous investigation by the family’s lawyer unearthed expert evidence of unsafe design and construction and lax quality 

control of the safety selector and trigger assemblies of the Mohawk 600. 

The result of the exertions of the plaintiff’s lawyer, deeply and redoubtedly involved in challenging the safety history of 

the rifle model, was a capitulation by Remington and an agreement to settle the father’s claim (he was a seasoned and successful defense trial lawyer) for $6.8 million. 

Remington also wrote the son a letter, 

muting some of his anguish by stating that 

the weapon was the whole problem and that 

he was in no way responsible for his father’s 

injuries. Then, facing the threat of cancelled 

coverage from its carriers for skyrocketing 

premiums in the projection of other multimillion dollar awards, Remington commendably served the public interest by announcing the recall campaign in which we see another electrifying example of Tort Law litigating another hazardous product feature 

from the market. 

Remington’s nationwide recall program affected 200,000 firearms; notices in newspapers 

and magazines similar to this one that appeared in the January 1979 issue of Field and 

Stream cut back on the harvest of hurt and 

heartbreak: ‘‘IMPORTANT MESSAGE TO 

OWNERS OF REMINGTON MODEL 600 and 

660 RIFLES, MOHAWK 600 RIFLES, AND 

XP–100 PISTOLS. Under certain unusual circumstances, the safety selector and trigger 

of these firearms could be manipulated in a 

way that could result in accidental discharge. The installation of a new trigger assembly will remedy this situation. Remington is therefore recalling all Model 600 rifles except those with a serial number starting with an ‘A’. . . Remington recommends 

that prior to any further usage of guns included in the recall, they be inspected and 

modified if necessary. [Directions are then 

given for obtaining name and address of 

nearest Remington Recommended Gunsmith 

who would perform the inspection and modification service free of charge.].’’

Tort Law forced Remington to look down 

the barrel and see what it was up against. 

Once again Tort Law was the death knell to 

excessive preventable danger. 

For a wonderfully absorbing account of 

The Mohawk 600, see Stuart M. Speiser’s 

justly praised Lawsuit (Horizon Press, New 

York, 1980) 348–55. 

(4) Case of MER/29, the Anti-Cholesterol 

Drug Which Turned out to Cause Cataracts. 

Many trial lawyers will recall the prescription drug MER 29 marketed for its benign 

and benevolent effect in lowering blood cholesterol levels and treating hardening of the 

arteries but which turned out to have an unpleasant and unbargained for effect on users, 

the risk of causing cataracts. As Peter 

DeVries recently observed, ‘‘There is nothing 

like a calamity to help us fight our troubles.’’ Blatant fraud and suppression of evidence from animal experiments were proved 

on the manufacturer’s part in the marketing 

of this dangerous drug. Who did more—the 

federal government or private trial lawyers—

in getting this dangerous drug off the market and compensating the numerous victims 

left in its wake? The question carries its own 

answer. The United States drug industry has 

annual sales of 16 billion dollars per year, 

while the Food and Drug Administration has 

an annual budget of 65 million dollars to 

oversee all drug manufacture, production 

and safety. How can the foothills keep the 

Alps under surveillance? Worse, as shown by 

the MER/29 experience, enforcement of the 

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S5982 CONGRESSIONAL RECORD— SENATE May 2, 1995 

law in that situation, far from being vigorous and vigilant, was lame, limp and lackluster. It was only private suits advanced by 

trial lawyers that furnished the real muscle 

of enforcement and sanction, compensation 

for victims, deterrence of wrongdoing, and 

discouragement of corporate attitudes toward the public recalling that attributed to 

Commodore Vanderbilt. 

As to the indispensible role and mission of 

the trial lawyer in Suing for Safety, it 

should not be overlooked that the current 

Administration has moved to sharply restrict the regulation of product safety by the 

Consumer Product Safety Commission. The 

1982 Budget for the commission was reduced 

by 30 percent in the first round of Reagan 

Administration budget cuts and is marked 

for further cuts in the future. 

As the Thalidomide, MER/29, Dalkon 

Shield, Asbestos, DES, Slip-into-Reverse 

Transmissions and Fuel Tank scandals have 

been starkly revealed, we have crime in the 

suites as well as crime in the streets. Corporate culpability calls for corporate accountability, and our society has developed 

no better instrument to encourage socially 

responsible corporate behavior than the vehicle of adverse judgments beefed up by punitive damages. In the MER/29 situation, for 

example, the criminal fines levied on the 

corporate producer and its executives were 

slap-on-the-wrist trivial when contrasted 

with the deterrent impact of punitive damage awards in current uncrashworthiness 

cases where flagrant corporate indifference 

to public safety was established. 

Our leading scholar in the field of punitive 

damages, writing with verve and virtuosity 

on that subject, concluded in 1976 that punitive damages awards should be permitted in 

appropriate products liability cases. Writing 

in 1982 with the same unbeatable authority, 

Professor David G. Owen traces the ferment 

and developments of doctrine in the ensuing 

years and then delivers a conclusion informed by exhaustive research, seasoned reflection, and an obvious morality of mind. ‘‘I 

remain convinced of the need to retain this 

tool of legal control over corporate abuses. 

...’’

(5) Case of the Infant Who Died from 

Drinking Toxic Furniture Polish Where Manufacturer Failed to Warn Mother to Keep 

Toxic Product out of Reach of Children. This 

is the celebrated case of Spruill v. BoyleMidway, Inc., in which a 14-month old child 

reached over from his crib and pulled a doily 

off a bureau, causing a bottle of Old English 

Red Oil Furniture Polish, manufactured by 

the defendant, to fall into the toddler’s crib. 

During the few minutes his mother was out 

of the room, the baby got the cap off the bottle and drank a little bit of the polish. He 

was dead within two days of resulting chemical pneumonia. The bottle had a separate 

warning about combustibility in letters 1⁄8

inch high, but only in the midst of other text 

entitled ‘‘Directions’’ in letters 1⁄32 inch high 

did it say ‘‘contains refined petroleum distillates. May be harmful if swallowed, especially by children.’’ The mother testified 

that she saw the warning about combustibility but did not read the directions because she knew how to use furniture polish. 

In a negligence action against the maker, 

the jury found that both defendant and the 

baby’s mother were negligent and awarded 

wrongful death damages to the child’s father 

and siblings but not to the mother. The 

Fourth Circuit in keeping with the grain of 

modern authority held that it was irrelevant 

that the child’s ingestion of the toxic polish 

was an unintended use of the product. The 

jury could properly find that in the absence 

of an adequate warning to the mother that 

she could read and heed—to keep the polish 

out of the reach of children—such misuse of 

the product was a foreseeable one. The defect 

was to be tested not only by intended uses 

but by foreseeable misuses. 

The jury could find that the manufacturer’s placement of the warning was designed 

more to conceal than reveal, especially in 

view of the greater prominence given the fire 

warning 1⁄8 of an inch compared to the Lilliputian print, 1⁄32 of an inch, as to the contents containing ‘‘refined petroleum distillates’’. The poison warning could be found 

to fall short of what was required to convey 

to the average person the dangerous nature 

of this household product. The label suggested that harm from drinking the polish 

was not certain but merely possible, while 

experts on both sides agreed that a single 

teaspoon would be lethal to children. 

The warning in short could properly be 

found to be inadequate—too soft, 

mispositioned and not sufficiently eye arresting. Defendant admitted in answer to interrogatories that it knew of 32 prior cases of 

poisoning from ingestion of its ‘‘Old English 

Red Polish.’’

Did the imposition of liability in this seminal Spruill case supra stimulate, goad or 

spur the manufacturer to take safety measures against the foreseeable risk of ingestion 

by innocent children? A trip to the local 

hardware store a couple of days ago reveals 

that Old English Red Oil Polish now sports 

the following on its label: ‘‘DANGER HARMFUL OR FATAL IF SWALLOWED. COMBUSTIBLE. KEEP OUT OF REACH OF 

CHILDREN. SAFETY CAP.’’

An error is not a mistake unless you refuse 

to correct it. 

(6) Case Holding Manufacturer of PAM (Intended to Keep Food from Sticking to Cooking Surfaces) Liable for Death of Teen-Ager 

from Inhalation of PAM’s Concentrated Vapors. Harless v. Boyle Midway Div. of Amer. 

Home Products, involved an increasing number of teenagers who were dying of a ‘‘gluesniffing syndrome,’’ inhaling the concentrated vapors of PAM, a household product intended to keep food from sticking to 

cooking surfaces. Originally, the manufacturer used only a soft warning on the can’s 

label: ‘‘Avoid direct inhalation of concentrated vapors. Keep out of the reach of 

children.’’ However, to the knowledge of defendant, the children continued sniffing and 

dying. Then the manufacturer, as an increasing number of lawsuits were pressed upon it 

for the preventable deaths of such children, 

changed the warning on its label, shifting to 

a harder warning: ‘‘CAUTION: Use only as directed, intentional misuse by deliberately 

concentrating and inhaling the contents can 

be fatal.’’ This was, of course, a much harder 

and more emphatic warning. The Fifth Circuit held that it was reversible error to exclude plaintiff’s evidence (in an action for 

the wrongful death of a PAM-sniffing 14- 

year-old) that no deaths had occurred from 

PAM sniffing after the defendant had hardened its warning by warning against the danger of death, the ultimate trauma. 

On remand the jury brought in a verdict 

for the boy’s estate in the amount of $585,000 

with an additional finding by the jury that 

the lad’s administrator was entitled to an 

award of punitive damages. Prior to the punitive damages suit, the case was settled for 

a total of $1.25 million. It was uncontested 

that prior to the lad’s death the manufacturer knew of 45 inhalation deaths from foreseeable misuse of its product, and upon remand admitted to an additional 68 from the 

same expectable cause. 

If you will examine the label on the can of 

PAM on your shelf, as the writer has just 

done, you will find: ‘‘WARNING USE ONLY 

AS DIRECTED, INTENTIONAL MISUSE BY 

DELIBERATELY CONCENTRATING AND 

INHALING THE CONTENTS CAN BE HARMFUL OR FATAL.’’ Once again the pressures 

of liability, stimulated a producer to avoid 

excessive preventable dangers in its product’s use by strengthening its warning label, 

thereby enhancing consumer protection. 

(7) Case of the Poisonous Insecticide Holding That Warnings Must Contain Appropriate Symbols, Such as Skull and Crossbones, Where Manufacturer Knows That 

Product May Be Used by Illiterate Workers 

(Spanish-Speaking Imported Puerto Rican 

Laborers) Who Would Not Understand 

English. This is the salutary holding in the 

celebrated case of Hubbard-Hall Chem. Co. v. 

Silverman. The First Circuit upheld judgments entered on jury verdicts for the 

wrongful death of two illiterate migrant 

farm workers who were imported by a Massachusetts tobacco farmer and killed by contact with a highly toxic insecticide manufactured and distributed by defendant. Even 

though the comprehensive and detailed danger warnings on the sacks fully complied 

with label requirements of the Department 

of Agriculture, the jury could properly find 

that because of the lack of a skull or crossbones or other comparable symbols the 

warning was inadequate. Use of the admittedly dangerous product by persons who were 

of limited education and reading ability was 

within the range of apprehension of the manufacturer. While evidence of compliance with 

governmental regulations was admissible, it 

was not decisive. Governmental standards 

are ‘‘minimums,’’ a floor not a ceiling, and 

so far as adequate precautions are concerned, 

federal regulations do not oust the possibly 

higher common-law standards of the Commonwealth of Massachusetts. 

The steady, unflagging pressures of litigation against the inertia, complacency and 

moral obtuseness of manufacturers have not 

only resulted in enhanced safety in the field 

of conscious design choices (substituting 

child-guard screw-on tops on tip-over steam 

vaporizers or over-the-axle fuel tanks for 

those mispositioned more vulnerably in front 

of the axle or adding rear-view mirrors to 

blind behemothic earth-moving machines 

whose design obstructs the vision of a reversing operator, etc.) but also in inducing product suppliers to reduce marketing defects in 

the products they sell by strengthening the 

adequacy of the instructions and warnings 

that accompany their products set afloat in 

the stream of commerce. 

The net affect of such benign and beneficial litigation has been to improve the adequacy and efficacy of the educational information given to consumers by producers via 

improvements in the conspicuousness of 

warnings given; making them more prominent, eye-arresting, comprehensive, complete and emphatic; placing the warnings in 

more effective locations; avoiding ambiguous 

warnings; extending warnings to the safe disposition of the product; and avoiding any dilution of the warnings given. In short, the 

bottom line, as indicated in the cited representative sampling of cases, is that successful lawsuits operate as safety incentives 

to ‘‘inspire’’ product suppliers to furnish instructions and warnings that are in ratio to 

the risk and in proportion to the perils attending foreseeable uses of the marketed 

products. 

Here, too, we see the conspicuous usefulness of the lawsuit as the weapon for ferreting out marketing defects, whether ingenious or ingenuous, in selling dangerously 

defective products. 

(8) Case of Marketing Carbon Tetrochloride 

Using Warnings Found to Be Inadequate Because Inconspicuous. Suppose a defendant 

sells carbon tetrachloride and places on all 

four sides of the can, in large letters, the 

words ‘‘Safety Kleen,’’ and then uses small 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5983 

letters (Lilliputian print) to warn of the serious risk of using the cleaning fluid in an 

unventilated place for places the fine print 

warning only on the bottom of the can). It 

requires no tongue of prophecy to predict 

that this warning will be found inadequate 

because too inconspicuous. It was so held in 

Maize v. Atlantic Refining Co. Not only was 

the warning inadequate because not conspicuous enough, but the representation of 

safety (‘‘Safety Kleen’’) operated to dilute, 

weaken, and counteract the warning. Moreover in Tampa Drug Co. v. Wait, the court 

upheld a judgment for the wrongful death of 

a 38-year-old husband who died from carbon 

tetrachloride poisoning after using a jug of 

the product to clean the floors of his home. 

While the label warned that the vapor from 

the liquid was harmful and that prolonged 

breathing of it or repeated contact with the 

skin should be avoided and that the product 

should only be used in well ventilated areas, 

the court with laser-beam accuracy ruled 

that the warning nonetheless could be found 

inadequate because of its failure to warn 

with qualitative sufficiency as to deadly effects or fatal potentialities which might follow from exposure to its fumes. 

Decisions such as Maize and Wait supra 

were the prologue and predicate for the action taken by the FDA in 1970, under the 

Federal Hazardous Substances Act, to ban 

and outlaw carbon tetrachloride. 

Torts archivists know that successful private lawsuits to recover for harm from products simply too dangerous to be sold at all, 

regardless of the completeness or urgency of 

the warning given, frequently lead to a recall 

and reformulation of the product’s design or 

to a decision to ban the product from the 

market. Life and limb are too important to 

trade off against unmarketed inventory. 

(9) Case of the 8-Year-Old Boy Who Choked 

to Death from Strangling on a Quarter-Inch 

Rubber Rivet, Part of a Riviton Toy Kit 

Given Him for Christmas. This case will indeed rivet the attention (in the sense of attract, fasten and hold) of concerned citizens 

who wish to understand how the threat of liability operates as a spur to safety on the 

part of product producers. The present example involves a toymaker whose work is indeed ‘‘child’s play.’’

Parker Brothers, a General Mills subsidary 

headquartered some 18 miles north of Boston, had big plans for Riviton. This was a toy 

kit consisting of plastic parts, rubber rivets 

and a riveting tool with which overjoyed 

children could put together anything from a 

windmill to an airplane. In the first year on 

the market in 1977, the Riviton set seemed 

on its way to becoming one of those classic 

toys that parents will buy everlastingly. 

However, one of the 450,000 Riviton sets 

bought in 1977 ended up under the Christmas 

tree of an 8-year-old boy in Menomonee 

Falls, Wis. He played with it daily for three 

weeks. Then he put one of the quarter-inch 

long rubber rivets into his mouth and choked 

to death. Ten months later, with Riviton 

sales well on their way to an expected $8.5 

million for the year, a second child strangled 

on a rivet. 

What should the company do? Just shrug 

off the two fatal child strangulations, ascribe the deaths to freakish mischance, try 

to shift the blame to parental failure to supervise and police their children at play, or 

assign responsibility to the child’s abnormal 

misuse or abuse of their product? Could not 

the company cap its disavowal of responsibility by a bormidic disclaimer that, ‘‘After 

all, peanuts are the greatest cause of strangulation among children and nobody advocates the banning of the peanut.’’? 

However, as manufacturers, Parker Brothers well knew that they would be held liable 

to an expert’s skill and knowledge in the 

particular business of toymaking and were 

bound to keep reasonably abreast of scientific knowledge, discoveries and hazards 

associated with toys in their expectable environment of use by unsupervised children in 

the home. The toymaker knew that the 

Riviton set must be so designed and accompanied by proper instructions and warnings 

that its parts would be reasonably safe for 

purposes for which it was intended but also 

for other uses which, in the hands of the inexperienced, impulsive and artless children, 

were reasonably foreseeable. When you manufacture for children, you produce for the 

improvident, the impetuous, the irresponsible. As a seasoned judge put it: ‘‘The concept of a prudent child, God forbid, is a grotesque combination.’’ Much must be expected from children not to be anticipated 

when you are dealing with adults, especially 

the propensity of children to put dangerous 

or toxic or air-stopping objects into their 

mouths. The motto of childhood seems to be: 

‘‘When in doubt, eat it.’’ Knowledge of such 

childish propensity is imputed to all manufacturers who produce products, especially 

toys, which are intended for the use of or exposure to children. Cases abound to document this axiom. 

Recently, Wham-O Manufacturing Co. of 

San Gabriel, Calif., voluntarily recalled its 

Water Wiggle, a garden hose attachment 

that drowned a child when it jammed in its 

throat. Still more recently, Mattel, Inc. of 

Hawthorne, Calif., initiated a recall of missiles fired by its Battlestar Gallactica toys 

when a 4-year-old boy inhaled one and died. 

The manufacturer of a ‘‘Play Family’’ set of 

toy figurines would have been well advised to 

pull from the market and redesign the small 

carved and molded figures in the toy set, intended for children of the teething age. A 14- 

month-old child swallowed one of the toy figures 13⁄4′′ high and 7⁄8′′ in diameter, and before 

it could be extricated from his throat at a 

hospital’s emergency room, the child was reduced to vegetable status as a result of irreversible brain damage from the toy’s windpipe blockage of air supply to the brain. The 

manufacturer’s dereliction of design and 

lack of product testing were to cost it a $3.1 

million jury verdict for the child and his parents. 

Against the marketing milieu and the 

legal setting sketched above, what should be 

the proper response of Parker Brothers, manufacturers of the Riviton toy set, when its 

executives learned of the second child’s 

death from strangulation on the quarterinch rubber rivet in the toy kit? Should they 

have tried to tough it out or luck it out in 

the well known lottery ‘‘do nothing and wait 

and see’’? The company was sensitive not 

only to the constraints of the law (liability 

follows the marketing of defective products), 

but also to the imperatives of moral duty 

and social responsibility, and the commercial value of an untarnished public image. 

Parker Brothers decided to halt sales and recall the toy. As the company president succinctly stated. ‘‘Were we supposed to sit 

back and wait for death No. 3?’’

Business, the Frenchman observed, is a 

combination of war and sport. Tort Law 

pressures business to realize how profitless it 

may prove to war against children or to trifle and jest with their safety. The commendable conduct of Parker Brothers in this case 

is one of the most striking tributes we know 

to the deterrent value and efficacy of Tort 

Law and the example would make a splendid 

case study for the nation’s business schools. 

(10) Case of the Recycling Washing Machine That Pulled out a Boy’s Arm. In Carcia 

v. Halsett. The plaintiff, an 11-year-old boy, 

sued the owner of a coin-operated laundromat for injuries inflicted while he was 

using one of the washing machines in the 

launderette. He waited several minutes after 

the machine had stopped its spin cycle before 

opening the door to unload his clothing. As 

he was inserting his hand into the machine a 

second time to remove a second handful of 

clothes the machine suddenly recycled and 

started spinning, entangling his arm in the 

clothing, causing him serious resulting injuries. The evidence was clear that a common 

$2 micro switch—feasible, desirable, long 

available—would have prevented the accident by automatically shutting off the electricity in the machine when the door was 

opened. The reviewing court held the launderette owner strictly liable for defective design because the machine lacked a necessary 

safety device, an available micro switch. 

Shortly thereafter the defendant obtained 12 

of these micro switches and installed them 

himself on the machines. Once again, the 

threat of tort liability serves to deter—the 

prophylactic purpose of Tort Law at work. 

The deterrent function of Tort Law is not 

just an idea in the air; it has landing gear, 

has come down to earth and gone to work. 

SUMMARY

The foregoing 10 cases and categories are 

merely random and representative examples, 

not intended to be complete or exhaustive, of 

the deterrent aim and effective of Tort Law 

in the field of product failure or disappointment. 

It needs to be emphasized that the preventive aim of Tort Law is pervasive and runs 

like a red thread throughout the entire corpus of Torts. For example, the private Tort 

litigation system has served, continues to 

serve, as an effective and useful therapeutic 

and prophylactic tool in achieving better 

health care for our people by discouraging 

and thereby reducing the incidence of medical mistakes, mishaps and ‘‘misadventures.’’

An error does not become a mistake unless 

you refuse to correct it. For example, successful medical malpractice suits have induced hospitals and doctors to introduce 

such safety procedures as sponge counts, 

electrical grounding of anesthesia machines, 

the padding of shoulder bars on operating tables, and the avoidance of colorless sterilizing solutions in spinal anesthesia agents. 

Remember, the fraudulent butchery practiced on defenseless patients by the notorious Dr. John Nork was not unearthed, pilloried or ended by the vigilant action of hospital administrators, peer review groups, or 

medical societies but by successful, energetically pressed malpractice actions prosecuted by trial lawyers in behalf of the victimized patients. 

So we come full circle and end as we began: 

Accident Prevention Is Better Than Accident 

Compensation: ‘‘A Fence at the Top of the 

Cliff Is Better Than an Ambulance in the 

Valley Below.’’ A successful lawsuit and the 

pressures of stringent liability are one of the 

most effective means for cutting down on excessive preventable dangers in our risk-beleaguered society. 

My hero in the foregoing chronicle of good 

lawyering has been the hard-working trial 

lawyer with his care, commitment and concern for public safety, the civil religion of us 

all. 

He more than any other professional has 

proved that we can indeed Sue for Safety. 

My tribute to him is in words Raymond 

Chandler used to salute his hero: ‘‘Down 

these mean streets a man must go who is not 

himself mean, who is neither tarnished nor 

afraid.’’

Mr. HOLLINGS. Mr. President, I 

think the point of the article, Mr. 

President, is that we really should be 

focusing on the issue of safety. We have 

a magnificent record here in the United 

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S5984 CONGRESSIONAL RECORD— SENATE May 2, 1995 

States of America with respect to the 

safety of products, and one of the best 

articles I have ever seen on this is the 

one just printed in the RECORD entitled 

‘‘Suing For Safety’’ by Thomas F. 

Lambert. He goes down the various 

cases up until that particular point 

some years ago. He says: 

Tort law also has a secondary, auxiliary 

and supportive function—

In addition to compensation for the 

injured party. 

sometimes called the deterrent or admonitory function. 

He cites then the various cases that 

come to mind. ‘‘Accident Prevention 

Through Successful Suits in the Products Liability Field.’’

Case of the charcoal briquets causing death 

from carbon monoxide. Liability was imposed on the manufacturer of charcoal briquets for the carbon monoxide death and injury of a young who used the briquets indoors . . . 

They produce these in my backyard 

in South Carolina. The warning is: 

Do not use for indoor heating or cooking 

unless ventilation is provided for exhausting 

fumes to outside. Toxic fumes may accumulate and cause death. 

That is exactly what happened in 

that case. 

So we have hundreds and hundreds, 

maybe thousands, of individuals that 

have been saved from death by this one 

particular case. Specifically, the Moore 

versus Jewel Tea Co., where ‘‘a 48-yearold housewife suffered total blindness 

from a Drano can***’’ They had an 

imperfect screw on top of the can and, 

of course, it came under tremendous 

pressure and the Drano exploded and 

caused her blindness. 

We also have the case of the LiquidPlumber, where in almost the same 

way injuries were reported to defendant. They reformulated its design to 

produce a safer product. ‘‘After some 59 

Liquid-Plumber injuries were reported 

to defendant, it finally reformulated 

its design to produce a safer product.’’

Then you have the Tip-over Steam 

Vaporizor. 

A tip-over steam vaporizer scalded a 

young kid who was walking and tripped 

and pulled the particular electrical 

cord, turning it over. The insurance 

carrier finally balked after hundred 

claims, and went to the manufacturer 

and said, ‘‘Look, we are not going to 

continue coverage on your company 

unless you have recall and redesign.’’

thereafter, the company proudly proclaimed 

Cover-lock top protects against sudden 

spillage if accidentally tipped. 

Once again, the tort law had to play 

professor and policeman and teach another manufacturer that safety does 

not cost, it pays. All this about consumer cost, I am rather embarrassed to 

hear some of the arguments. A companion case goes to the Remington Mohawk 600 Rifle case, where when a 

young lad was trying to put the safety 

on to the off position, it discharged and 

shot the boy’s father in the back. After 

pressure was brought Remington sent 

out this notice: 

Important message to owners of Remington Model 600 and 660 rifles, Mohawk 600 

rifles and XP–100 pistols. Under certain unusual circumstances, the safety selector and 

trigger of these firearms could be manipulated in a way that could result in accidental 

discharge. The installation of a new trigger 

assembly will remedy this situation. Remington is therefore recalling all Model 600 rifles except those with serial numbers starting with an ‘‘A’’. . . Remington recommends 

that prior to any further usage of guns included in the recall, they be inspected and 

modified if necessary. [Directions are then 

given for obtaining name and address of the 

nearest Remington recommended 

gunsmith . . . 

Then of course, there was MER/29, 

the anti-cholesterol drug which turned 

out to cause cataracts. It would cause 

a calamity, and blatant fraud was 

proved on the manufacturer’s part 

when they got into the manufacturer’s 

record. In that particular case, they 

were manufacturing a dangerous drug. 

Who did more? Did the Federal Government or private trial lawyers do more 

in getting this dangerous drug off the 

market? The question carries its own 

answer. 

The U.S. drug industry has annual 

sales of $16 billion per year, while the 

Food and Drug Administration has an 

annual budget of $65 million to oversee 

drug manufacture safety. How can the 

foothills keep the Alps under surveillance. Worse, as shown by the Mer/29 

experience, enforcement of the law in 

that situation, far from being vigorous 

and vigilant, was lame, limp, and lackluster. 

So it was the trial lawyers, product 

liability, all those who are talking 

about consumers. We are talking about 

consumers, manufacturers, and everybody else. 

The Consumer Product Safety Commission came about at that particular 

time. That is when we instituted it. 

The 1982 budget, of course, under President Reagan, cut it some 30 percent. 

Talking about spending cuts in the 

Government, in Government spending, 

in cut spending. 

Now, looking at the Dalkon shield, 

asbestos, DES, slip into reverse transmission, fuel tank scandals—all the 

way down the list—and we find we have 

crime in the suites as well as crime in 

the streets. 

We have the case of the infant who 

died drinking toxic furniture polish, 

while the manufacturer failed to warn 

the mother to keep the toxic product 

away and out of the reach of the children. 

We have warning changes as to the 

foreseeable misuse: ‘‘DANGER. HARMFUL OR FATAL IF SWALLOWED. 

COMBUSTIBLE. KEEP OUT OF 

REACH OF CHILDREN,’’ and so forth. 

That was done. 

Then we have the case holding the 

manufacturer of PAM liable for the 

death of a teenager from inhalation of 

the PAM concentrated vapors, in the 

Harless versus Boyle-Midway Division 

of American Home Products case. 

It was uncontested that prior to the lad’s 

death the manufacturer knew of 45 inhalation deaths from the foreseeable misuse of 

its product, and upon remand admitted to an 

additional 68 from the same expectable 

cause. 

In examining the label on the can of 

PAM on the shelf, Mr. President, we 

have: ‘‘WARNING: USE ONLY AS DIRECTED. INTENTIONAL MISUSE BY 

DELIBERATELY CONCENTRATING 

AND INHALING THE CONTENTS CAN 

BE HARMFUL OR FATAL.’’

We go even to the language difficulties—down in the distinguished Presiding Officer’s backyard, they speak 

Spanish fluently—the case of the poisonous insecticide, holding that warning labels must contain appropriate 

symbols. Where they cannot read the 

language, at least they see the symbol. 

For wrongful death, in the case of Hubbard-Hall Chemical Co. versus Silverman, Puerto Rican laborers that could 

not understand English had to have, 

thereupon, the proper symbols. 

The First Circuit upheld judgments entered on jury verdicts for the wrongful death 

of two illiterate migrant farm workers who 

were imported by a Massachusetts tobacco 

farmer and killed by contact with a highly 

toxic insecticide manufactured and distributed by defendant. 

We see here, of course, the conspicuous usefulness of the lawsuit as 

the weapon for ferreting out marketing 

defects, whether ingenious or ingenuous, in selling dangerously defective 

products. 

We have the case, Mr. President, of 

marketing carbon tetrachloride. That 

was finally taken, of course, off the 

market by the FDA as a result of this 

very disastrous case in Maize versus 

Atlantic Refining Co. and Tampa Drug 

Co. versus Wait. The court found that 

life and limb were too important to 

trade off against unmarketed inventory. 

We have the case, Mr. President, of 

the 8-year-old boy who choked to death 

in strangling on a quarter-inch rubber 

rivet, part of a Riviton toy kit given 

him for Christmas. The toymaker knew 

that the Riviton set must be so designed and accompanied by proper instructions and warnings that its parts 

would be reasonably safe for purposes 

for which it was intended but also for 

other uses which, in the hands of the 

inexperienced, impulsive and artless 

children, were reasonably foreseeable. 

So we had that decision. Parker 

Brothers decided to halt the sales and 

recall the toy. The company president, 

Mr. President, succinctly stated: ‘‘Were 

we supposed to sit back and wait for 

death No. 3?’’

So there is a responsible manufacturer responding to product liability, 

saving thousands of others that are 

buying these toys and games. The commendable conduct of Parker Brothers 

in this case is one of the most striking 

tributes we know to the deterrent 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5985 

value and efficacy of tort law. The example would make a splendid case 

study for the Nation’s business schools. 

The case then, Mr. President, of the 

recycling washing machine that pulled 

out a boy’s arm. He had waited for the 

washing machine at the laundromat for 

several minutes after the machine had 

stopped the spin cycle before opening 

the door to unload the clothing. As he 

was inserting his hand into the machine a second time to remove a second 

handful of clothes, the machine suddenly recycled and started spinning 

and tore his arm off. 

The reviewing court held the launderette owner strictly liable for defective design because the machine lacked 

the necessary safety device, and of 

course thereafter they installed what 

they call a microswitch, which gave 

safe operation. 

I could pursue this on and on, and I 

should. All we have heard here is a 

sham pose of how we are, on the floor 

of the U.S. Senate, sponsoring this bill 

to save the consumer the cost, the cost 

of the product, the thrust recognized 

with the Consumer Product Safety 

Commission, which has done outstanding work, and that is why this 

came about. 

I could go into flammable pajamas, 

in the textile field, in my particular 

backyard. I visited, Mr. President, at 

Penney’s safety laboratory on the 14th 

floor on Lexington Avenue in downtown New York. I was amazed at what 

Penney was doing. This was years ago. 

I went up on that floor and they had 

all kinds of safety tests for all the toys 

and articles going into Penney stores 

around the country. That is responsible, corporate leadership. That is 

what product liability has brought 

about. The manufacturers and the retailers, Penney knows, under joint and 

several liability, they could be held liable. So they do not just take a product 

that appears good which they can 

make a profit on without looking at it 

themselves. 

So we have the large marketing operations like Penney’s which have instituted a safety laboratory. This has 

really saved money, and consumers—I 

wish they could find for me the word 

consumer in the Constitution. That is 

all I hear about with the sham trade 

policy they have. We are supposed to be 

saving the manufacturers’ backbone, 

the jobs in the country. 

We just referred a little while ago to 

manufacturing trade. Twenty-five 

years ago, in 1970, 10 percent of the 

manufactured products consumed in 

the United States of America was represented in imports—just 10 percent. 

Today, in 1995, 25 years later, over 50 

percent of manufactured products consumed in the United States is represented in imports. If we were back to 

1970, with 90 percent of manufactured 

products consumed in the United 

States produced in the United States, 

we would automatically have 10 million more manufacturing jobs. 

That is middle class. Those running 

around here wanting to do something 

for the middle class: We should build it, 

we should expand upon it, we should 

employ them, let them be able to afford a home, afford sending their kids 

to college. 

We are going like the country of 

Great Britain, where they told them 

years ago, ‘‘Do not worry.’’ Instead of a 

nation of brawn, we will be a nation of 

brains; instead of producing products, 

we will provide services, a service economy. Instead of creating wealth, we are 

going to handle it and be a financial 

center. 

England has gone to hell in an economic handbasket, with two classes of 

society, in exactly the way we had it 

here in the United States of America. 

When we get to product liability, we 

have one of the finest initiatives ever 

to come about in law. National problem—heavens above. Manufacturers 

come from the world around and gladly 

respond to product liability, bragging 

about their quality and safety, production. 

That is what I have in my backyard. 

I see it. I talk to the Federal judges 

there. Most of them have been appointed by President Bush, President 

Reagan, President Nixon, President 

FORD —all of them. 

They are good appointments. I am 

proud of them. I joined in them in confirming. I know them intimately. They 

will say, about product liability—they 

will laugh and they say they know it is 

a political issue gotten up by Victor 

Schwartz, the National Association of 

Manufacturers, the Business Round 

Table, and the conference board, and 

they run around and ask candidates for 

the U.S. Senate, the U.S. House of Representatives, to commit. They use the 

buzzword reform. ‘‘Will you help us on 

product liability reform?’’

I would say 95 percent of those asked 

as candidates have never tried or were 

aware of a product liability case. The 

easy answer, running for reelection or 

election, be that as it may, is to solve 

rather than create problems. If you 

have large financially supportive 

groups like the Conference Board, the 

Business Round Table, the Chamber of 

Commerce, the National Association of 

Manufacturers asking you, your immediate response is, ‘‘Well, sure, yes, I am 

for reform.’’

That is why we have been able to 

hold it up. Because the merit is on our 

side. This is a solution looking for a 

problem. There is not a national problem in product liability. Of all civil 

claims in the United States of America, torts are 9 percent of all civil filings. Of that 9 percent, only 4 percent 

of the 9,—36/100 of 1 percent—is in product liability. The States, over the past 

15 years, with this issue raised, have all 

reformed—practically all—their product liability laws. 

Why change on punitive damages, 

now the law of 45 States, at the national level? Why change that? Has 

anybody from the States come up and 

asked? Not a soul. The nearest they 

could get—and I remember politically 

when they changed it in the Governors 

Conference. I was waiting for the Governors because I have been a Governor. 

You could not find a Governor coming 

up and saying there is a terrible problem in my State. Because you would 

have to say: Wait a minute, I am a 

Governor. What did I propose? What 

did I try to do? So they sent up the executive secretary, who just rattled off 

some nostrums about litigation. He did 

not even know what he was talking 

about. 

They brought up other witnesses. It 

was an embarrassment. In the Alabama 

cases they talked of businesses suing 

businesses. It had nothing to do with 

product liability. The hearings that we 

had before the Commerce Committee 

were an embarrassment, the way they 

were trying to get this thing on. And 

that is all it is and that is what is holding us up. 

On the budget, we have not spent any 

time on the budget—serious national 

problems. Welfare reform—serious national problems. Crime, if they want to 

go back into the crime bill, or terrorism—serious national problems. 

Telecommunications—serious national 

problems. 

But here they come with 36/100 of 1 

percent of tort claims, which habitually have been held, for over 200-andsomething years under the English 

rule, at the State level. They are 

preaching, if you please, Jeffersonian 

government, ‘‘That government nearest to the people is the best government’’ and that is why we have to get 

rid of this Washington bureaucracy, 

what they call the ‘‘corrupt, liberal 

welfare state.’’ Take housing, block 

grants back; welfare, block grants 

back; crime, no policemen on the beat, 

block grants back—everything back in 

block grants, save this manufacturers 

bill. And by the way, as we enunciate 

the rules and regulations and compliance to the users and so forth, for the 

lawyers, let us not make them pertain 

or apply these to the manufacturers 

themselves. 

The unmitigated gall of presenting 

this in a serious fashion on the floor of 

the U.S. Senate is an embarrassment 

to this Senator. I feel very keenly 

about it. I know I have behind me the 

American Bar Association. I know I 

have behind me the Association of 

State Legislatures. I know I have behind me the States Attorneys General. 

I know I have behind me the Association of State Supreme Court Justices. I 

know I have a list of over 130 organizations that we put in there comprising, 

amongst others, all the leading consumer organizations in the United 

States. Yet they have the audacity to 

keep pleading here, we have to save the 

cost to the consumer, the cost to the 

consumer. 

I yield the floor. 

Several Senators addressed the 

Chair. 

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S5986 CONGRESSIONAL RECORD— SENATE May 2, 1995 

The PRESIDING OFFICER. The Senator from Washington. 

ORDER OF PROCEDURE

Mr. GORTON. Mr. President, I simply 

would like to inform my colleagues on 

the status of debate. We have two 

amendments to the Dole amendment 

that have been placed before us. One, 

by the Senator from Maine [Ms. 

SNOWE] is identical to the amendment 

that was agreed to this morning as an 

add-on to medical malpractice. I hope, 

and ask my colleagues who are here 

present—I hope we can simply adopt 

that amendment by a voice vote. We 

had a rollcall vote this morning on an 

identical proposition. Then, after an 

opportunity for Members to come to 

the floor and to debate the Dorgan 

amendment, I intend to move to table 

the Dorgan amendment. 

The majority leader has said there 

will be votes, at least one additional 

vote and maybe more this evening. 

All attempts during the afternoon 

have been made to secure a unanimousconsent agreement under which we 

could complete the debate on all 

amendments relating to punitive damages this evening and in a brief time 

tomorrow morning and then have a series of votes on punitive damages tomorrow morning, very much like those 

on medical malpractice today. We have 

been unable to secure that unanimousconsent agreement. In the absence of 

being able to secure it, the only way 

that any progress can be made is by 

motions to table and record votes on 

the amendments that are before us or 

are going to be in front of us. 

So I intend at this point to yield so 

the Senator from Wisconsin may 

speak, I assume on one of these subjects. 

Immediately after he has completed 

speaking I will ask unanimous-consent 

that we—I will ask we simply take a 

voice vote on the amendment by the 

Senator from Maine, Senator SNOWE. 

And then after the Senator from North 

Dakota has an opportunity to speak on 

his amendment, we will move to table 

it unless we can secure the unanimousconsent agreement we have been looking for. 

I plead with our colleagues to try to 

do this in an orderly fashion. This is 

not the end of the bill. We are only attempting by tomorrow to finish up 

dealing with the subject of punitive 

damages. 

With that, Mr. President, I yield the 

floor. I think the Member who has been 

waiting here the longest time to speak 

is the Senator from Wisconsin. 

Mr. DOLE addressed the Chair. 

The PRESIDING OFFICER. The majority leader. 

Mr. DOLE. Mr. President, I will just 

take a second. I wonder if the Senator 

from Wisconsin can give us some idea 

how long he may wish to speak, and 

then the Senator from North Dakota, I 

understand, wishes to speak, too, on 

his amendment? 

I would say before they respond, I 

share the views just expressed by the 

Senator from Washington. We had 

thought we would have an agreement 

where amendments would be offered 

this evening and then tomorrow morning we would start voting on amendments in the order they were offered. 

Apparently we cannot. Agreement has 

not been cleared on that side of the 

aisle. 

We are still prepared to negotiate 

that agreement. That would get us finished with punitive damages on any 

and all second-degree amendments. 

Failing that, I do not see any alternative than to stay here late tonight 

and dispose of as many amendments as 

we can between now and 11 o’clock or 

midnight. 

If I could just inquire of the Senator 

from Wisconsin how long he may wish? 

Mr. FEINGOLD. I advise the majority leader, about 15 minutes. 

Mr. DOLE. How much time does the 

Senator from North Dakota require? 

Mr. DORGAN. Mr. President, I had 

hoped we would have a lengthier period 

of debate for my amendment. I offered 

my amendment prior to a couple of 

presentations and debate recently on 

the floor. I had not anticipated my 

amendment would be voted on tonight. 

When I originally discussed this with 

the Senator from Washington, I understand they were at that point working 

on a unanimous-consent agreement. I 

do not know why that unanimous consent agreement has not been agreed to 

at this point. 

But I do know that there are others 

who wish to speak on my amendment. 

I would hope that if, however, you dispose of the Snowe amendment, that 

you would provide further opportunity 

for some additional debate. It is certainly not my intention to stretch out 

this process. But, by the same token, I 

think the Senator would admit that 

when you offer an amendment, they 

come to the floor and suggest we have 

a vote. 

Mr. DOLE. Can we vote at 8 o’clock? 

Mr. DORGAN. I have some other people who would like to speak on the 

amendment. But the intention of the 

Senator from Kansas is to do what? 

Mr. DOLE. My original intent was to 

try to get an agreement where we 

could offer amendments tonight and 

vote on those tomorrow which I 

thought the Senator from North Dakota was supporting and obviously is 

supporting. For some reason we cannot 

reach that. The only other alternative 

we have is to stay here and grind 

through the amendments because we 

are now on the second week on this legislation. It seems to me that there may 

be other things we want to do in the 

next couple of weeks. But I would be 

prepared if we can reach an agreement. 

I certainly am not going to shut off the 

Senator from North Dakota. But if we 

could reach some reasonable agreement upon what time we could move to 

table the amendment, because we are 

going to stay here late tonight, late tomorrow night, and late the next night 

if we cannot reach an agreement. We 

do not have any alternative. Would the 

Senator have any indication of how 

much time he might need? 

Mr. DORGAN. I might say to the majority leader, Mr. President, that I 

would like to visit with some other 

Members who would like to speak on 

my amendment. My understanding 

when I offered the amendment—I discussed it with the Senator from Washington—was that we were going to 

have a series of votes tomorrow morning. Apparently that has not materialized, at least in an agreement, at this 

point. But that was my understanding 

when I offered it. 

My intention is that the proposal I 

have offered would eliminate the punitive damages cap in the underlying legislation. There will be a series of proposals on punitive damages, and there 

already have been some. And there will 

be others. This is probably the only opportunity the Senate will have on the 

issue of eliminating the cap on the underlying bill. I would hate to see a discussion on that issue go by in 15 or 20 

minutes. I have spoken briefly. I know 

others would like to speak on the same 

subject. 

Mr. DOLE. I am trying to reach an 

agreement. You say 8 o’clock is not 

enough time. Nine o’clock? Sooner or 

later we will move to table, if we cannot reach an agreement. We do not 

have any other recourse. We are the 

majority. We have to move legislation. 

I think the Senator from Washington 

has a good suggestion. I think we will 

proceed and let the Senator from Wisconsin proceed, and then I will be recognized at that point either to make a 

tabling motion or reach an agreement. 

Mr. FEINGOLD addressed the Chair. 

The PRESIDING OFFICER (Mr. 

ASHCROFT). The Senator from Wisconsin. 

Mr. FEINGOLD. I thank the Chair, 

and I thank the majority leader. 

Mr. President, I believe my remarks 

at this point are not only relevant to 

the whole bill but in particular to the 

contents of the Dole amendment and 

some of the contents of the further 

amendments of the Senator from North 

Dakota. 

I would like to take this opportunity 

to respond to statements made during 

the debate last week by the senior Senator from Washington that suggests 

that somehow or another the arguments that this bill has seventh 

amendment implications is somehow a 

bizarre argument. 

In effect, that statement was made 

by the distinguished Senator from 

Washington on the opening day of this 

debate, on April 24, following the opening remarks by the Senator from South 

Carolina. On April 26, after my own remarks referencing the seventh amendment to the U.S. Constitution, the Senator from Washington described references to the seventh amendment in 

this context as both curious and bizarre. 

I note that the Senator from Washington was very careful not to assert 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5987 

that either the Senator from South 

Carolina or the Senator from Wisconsin were making the argument that 

the pending legislation literally violated the seventh amendment, but 

rather he stated that we were ‘‘somehow or another implicating the seventh 

amendment right of trial by jury into 

this debate and thereby implied at 

least that the bill before us somehow 

or another restricts that constitutional 

right to trial by jury.’’ That is the end 

of his statement. 

Mr. President, I find the statements 

made by the Senator from Washington 

to be somewhat curious for two reasons: 

First, a number of State courts have 

already struck down State statutes imposing limitations on amount of damages that juries can award as violating 

State constitutional guarantees of a 

right to trial by jury. 

There is nothing strange or bizarre 

about suggesting that such limitations 

on the ability to recover may violate 

fundamental right to trial by jury 

since a number of State courts have already made precisely that determination with respect to similar State laws, 

and similar State constitutional provision. 

For example, in Smith v. Department 

of Insurance, 507 So. 2d 1080 (Fla 1987) a 

$450,000 cap on noneconomic damager 

in tort actions was found to violate a 

right of access to the courts and the 

right to a trial by jury. 

In Kansas Malpractice Victims Coalition v. Bell, 757 P 2d 251 (Kan 1988), a 

limit on noneconomic damages and on 

total damages was held to violate the 

state guarantee of right to remedy and 

jury trial. 

In Sophie v. Fibreboard Corporation, 

771 P. 2d 711 (Wash, 1989) a cap on noneconomic damages in tort actions was 

found to violate the State constitutional right to a jury trial. The Court 

said in the Sophie case that ‘‘[the state 

of Washington] has consistently looked 

to the jury to determine damages as a 

factual issue, especially in the area of 

noneconomic damages. The jury function receives constitutional protection 

[under the State constitution] which 

commands that the right of trial by 

jury shall remain inviolate’’. 

There has thus been a series of State 

cases holding that statutory limitations quite similar to those proposed in 

the pending legislation violate State 

constitutional provisions guaranteeing 

a right to a trial by jury. 

As the Senator from Washington well 

knows, the seventh amendment has not 

been held to apply to State court proceedings. Indeed, both the Senator 

from South Carolina and I have been 

careful not to argue that the legislation violates the seventh amendment 

as applied to State court proceedings. 

However, many State constitutions 

provide for constitutional guarantees 

for trial by jury in State court proceedings that parallel the seventh 

amendment, and, as I have cited, a 

number of courts have held that limitations in State laws similar to those 

proposed in this legislation which limit 

the ability of a jury to award damages 

violate the right to a trial by jury 

under those State constitutional provisions. 

So, Mr. President, that is the first 

reason it is neither bizarre nor inappropriate to argue about the right to trial 

by jury and the impact this legislation 

may have on it. But there is a second 

reason, Mr. President. 

Second, it is clear that this legislation is an assault upon the American 

jury system and that is precisely what 

the proponents intend—an assault upon 

the American jury system. 

Repeatedly, supporters of this legislation have asserted that it is needed 

because of excessive jury awards in 

product liability and other tort litigation. 

They have repeatedly argued that the 

legislation is necessary to curb American juries from making these excessive awards. 

This debate has been full of so-called 

examples of excessive jury awards, 

starting with the infamous McDonald 

coffee case. 

In fact, this is a specious argument. 

To the extent that jury verdicts have 

been excessive, courts have routinely 

stepped in and reduced the awards, 

using their long-established powers of 

remittitur. 

The infamous McDonald coffee case 

is an excellent example. The court 

there reduced the jury award from $2.7 

million to $480,000. 

I ask unanimous consent that a 

‘‘Dear Colleague’’ I recently circulated 

dealing with the myth of excessive jury 

awards be printed in the RECORD at the 

conclusion of my remarks. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

(See exhibit 1.) 

Mr. FEINGOLD. Mr. President, this 

legislation would not only curtail the 

power of juries to determine the 

amount of punitive damages to be 

awarded; it would also prevent certain 

evidence relating to damages from 

even being presented to the jury in the 

first place. That has something to do 

with the right to trial by jury. 

Section 107 provides that evidence relating to the punitive damages, for example, evidence of willful misconduct, 

would be inadmissible during the compensatory damages stage of the proceeding. 

That section 107 also provides that 

evidence relating to a defendant’s 

wealth, which I think is clearly a relevant factor in assessing what level of 

punitive damages should be assessed, 

could not be presented to the jury, 

which, in my view, is another serious 

derogation from the right to trial by 

jury. 

Other proposals which may soon be 

added to this measure would do even 

more of the same. 

They would prevent juries from making punitive damages awards entirely, 

leaving those decisions not to the jury 

but to judges alone. 

All of these proposals, in my view, 

evidence a clear and very disturbing 

distrust of the jury system itself. And 

it looks to me like a presumption 

somehow that juries are incapable of 

reaching good decisions without these 

kinds of federally mandated restraints 

and constraints on the jury. That is 

what this is—a new Federal mandate 

that constrains and restrains juries. 

Mr. President, as we debate whether 

Congress should place these kinds of 

mandates or restrictions on the deliberation of juries, it may help actually 

to take just a few moments to reflect 

upon the historical importance placed 

upon the jury system in our Nation. 

The right to a trial by jury in civil as 

well as criminal cases was one of the 

most important rights that was sought 

by the framers of our Constitution. 

Indeed, one of the primary grievances 

of the American colonists against the 

British was the extensive effort by the 

British to shift the adjudication of 

civil and criminal disputes from the colonial courts, where the local juries 

traditionally sat, to the vice-admiralty 

courts and other nonjury tribunals administered by judges who were, of 

course, completely beholden to the 

British Crown. 

So this is not something that we just 

came up with recently. This goes back 

as far as our country’s history to the 

colonial era. 

This anger over the fact that under 

the British rule juries were being deprived of their authority was actually 

expressed in the Declaration of Independence itself, which cites among the 

many grievances lodged at the British, 

‘‘For depriving us in many cases, of the 

benefits of Trial by Jury.’’

Thomas Jefferson described the jury 

in his writings as ‘‘the only anchor yet 

imagined by man, by which a government can be held to the principle of its 

Constitution.’’

Mr. President, in the constitutional 

convention, the proposed Constitution 

included the right to trial by jury in 

criminal cases under article III, but the 

absence of an expressed guarantee of 

the right in civil actions was condemned by the antifederalists as sufficient cause to reject the entire Constitution. 

So the entire Constitution was in 

some jeopardy because of that omission. And, of course, it was those kinds 

of concerns of those who were not entirely happy with the Constitution 

itself that led to our Bill of Rights, 

specifically their demand for an explicit guarantee for the right of a trial 

by jury for civil cases, that led to its 

inclusion in the seventh amendment to 

the U.S. Constitution in our Bill of 

Rights. 

Mr. President, it was included from 

the first among Madison’s proposals for 

the Bill of Rights, noting ‘‘in suits at 

common law, the trial by jury, as one 

of the best securities to the right of the 

people, ought to remain inviolate.’’

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S5988 CONGRESSIONAL RECORD— SENATE May 2, 1995 

Juries were regarded by the Framers, 

according to one constitutional scholar, Morris Arnold, in a 1980 University 

of Pennsylvania Law Review article, 

‘‘A Historical Inquiry into the Right to 

Trial by Jury in Complex Civil Litigation,’’ ‘‘as more than a ‘mode of trial’

they were instruments of local government as well.’’

I find that very interesting. The 104th 

Congress, I think, should be given the 

most credit on any issue perhaps so far 

for having dealt with that whole overriding issue of unfunded mandates, of 

showing respect for the local levels of 

government. 

Mr. President, our Framers perceived 

the jury as one of those local levels of 

government, one of those institutions 

that was made up of the people back 

home not specifically beholden either 

to this Federal Government or, before 

the revolution, the British Crown. 

Indeed, this view of juries as a critical element of the American democracy prompted Alexis de Tocqueville to 

observe in ‘‘Democracy in America,’’

‘‘The jury is, above all, a political institution, and it must be regarded in 

that light in order to be duly appreciated.’’

More recently in our modern history, 

Chief Justice Rehnquist recognized the 

historical role of the American jury in 

his dissenting opinion in Parklane Hosiery Co. versus Shore in 1979, in which 

our current Chief Justice stated, ‘‘The 

founders of our nation considered the 

right of trial by jury in civil cases an 

important bulwark against tyranny 

and corruption, a safeguard too precious to be left to the whim of the sovereign.’’

Mr. President, that is what this bill 

is all about today. This is the sovereign, the Federal Government, choosing to override the right of State and 

local juries to make the decisions 

about what a jury should be free to do. 

This is exactly what Chief Justice 

Rehnquist must have meant. 

The Supreme Court has repeatedly 

recognized the fundamental importance of trial by jury, stating in 

Dimmick versus Schiedt, that ‘‘Maintenance of the jury as a fact-finding 

body is of such importance and occupies so firm a place in our history and 

jurisprudence that any seeming curtailment to the right to a jury trial 

should be scrutinized with the utmost 

care.’’

Tort reform, particularly limits on 

the amount of damages that juries may 

award, clearly implicates this right to 

trial by jury, as a number of State 

court decisions have held with respect 

to State laws and constitutional guarantees to trial by jury. 

As the Washington Supreme Court 

found in the Sophie case, statutory 

damage limits interfere with the jury’s 

traditional function to determine damages. 

That case also contains a very instructive discussion of the difference 

between a trial judge’s power of 

remittitur to reduce a jury verdict and 

a statutory cap, an overall, across-theboard cap, on the amount of damages a 

jury can award. 

The court observed that the judicial 

finding that an award is too high in a 

particular case is fundamentally different from a legislatively imposed 

‘‘remittitur’’ that operates automatically in all cases without regard to the 

facts and justice of the case. 

A judge implements remittitur only 

under well-developed constitutional 

guidelines that provide that a judge 

can only reduce a jury’s damages determination when that determination was 

wholly unsupported by the evidence, 

obviously motivated by passion or prejudice, or when in certain cases it actually shocks the conscience just for a 

jury to have given such an excessive 

award. 

Mr. President, absent such factors, 

there is a strong presumption in favor 

of the jury’s determination. And that 

comes to us all the way back from the 

Framers and the seventh amendment. 

Finally, the opposing party in cases 

of remittitur has the choice generally 

of accepting the reduction or seeking a 

new trial. It is not necessarily completely the end of the line. 

None of these safeguards, as was observed by the court in the Sophie case, 

is present in one of these across-theboard statutory damage limits that is 

contemplated by the legislation before 

us. 

The system of remittitur thus operates in a fashion very different from 

the kind of statutory caps that are 

being advocated by the people who are 

presenting the so-called tort reform. 

Mr. President, I do not intend to get 

into an extensive debate about whether 

or not the pending legislation violates 

the seventh amendment in practical 

terms, since the seventh amendment 

has not, to this date, actually been applied to the States through the 14th 

amendment, although it is certainly 

applicable, of course, to proceedings in 

Federal court. 

It certainly, however, Mr. President, 

violates the spirit of the seventh 

amendment, which was intended to assure that local juries, local folks on 

local juries comprised of one’s peers, 

not just governmental officials in 

Washington, would be the ones to 

makes these decisions. 

I am advised that this measure, 

should it be enacted, Mr. President, 

will be challenged in court before the 

ink is dry, both on the basis of the seventh amendment and on the basis of 

last week’s decision in United States 

versus Lopez, which restricts the right 

of Congress to intrude upon areas 

which have been traditionally regulated by the States under their own 

powers. 

The decision in Lopez states that the 

scope of constitutional authority under 

the interstate commerce power ‘‘must 

be considered in light of our dual system of government and not be extended 

so as to embrace effects upon interstate commerce so indirect and remote 

that to embrace them, in view of our 

complex society, would effectually obliterate the distinction between what 

is national and what is local and create 

a completely centralized government.’’

Now that sounds like language, Mr. 

President, of the so-called Contract 

With America—let us not take away 

the power of the States and the local 

governments. But, in a very real sense, 

that is the best description of this bill 

I have heard. 

Mr. President, I am one of the few 

Members of Congress who voted 

against the 1994 crime bill; in fact, one 

of only two Democrats to vote against 

the crime bill. I did it, in part, because 

I believe it represented an inappropriate incursion of the Federal Government into areas of law enforcement 

which had throughout our history been 

within the province of State and local 

law enforcement agencies. 

My reasons at the time were based 

upon policy concerns that the Federal 

Government ought to do a better job 

with the responsibilities that clearly 

rested at the Federal level than seeking to usurp State and local law enforcement responsibilities. 

Last week’s decision, of course, by 

the U.S. Supreme Court adds an even 

more compelling argument to the debate. 

Congress does need to learn to restrain itself from trying to take on 

every problem that gets a headline in 

the newspaper. We need to learn to say 

that some problems are better addressed at the State and local level. 

That is why I voted for the unfunded 

mandates bill, and I believe, Mr. President, if especially the new Senators 

take a look at this bill, tort reform is 

clearly one of those areas that belongs 

with the States. I do not think the 

Federal Government knows better than 

the 50 States of this country as to what 

should be a law in this area. 

There is often a great deal of rhetoric 

about what the Founding Fathers 

might think about various contemporary problems and how our Government deals with those problems. All we 

can do is speculate. It was 200 years 

ago. But every argument makes us 

want to know, even though we cannot 

know for sure, what the Framers would 

have said. 

At least one of the proponents of this 

legislation argued last week that if we 

asked the Framers, they would not 

have wanted juries to consider medical 

malpractice or product liability cases. 

I do not agree with that at all. I think 

that would have made a lot of sense to 

them. 

I, for one, believe that the Framers 

would be horrified—horrified—at the 

idea of the Federal Government passing legislation like this to preempt the 

powers of State governments, to require State courts to follow Federal 

law in an area which has been the domain of the States and local governments and local juries for 200 years. 

They would have been horrified to 

hear the arguments that somehow the 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5989 

common citizens, the average folk of 

this country who comprise American 

juries, are somehow out of control and 

that they need the Federal Government in Washington to check their 

powers. That is about as direct an offense to the folks back home as I can 

think of, saying they cannot handle it 

on these juries, that they are out of 

control. 

I think the American patriots who 

fought against the British attempts to 

take power away from colonial courts, 

to prevent local juries from rendering 

decisions would turn over in their 

graves to hear such arguments advanced in their name and in defense of 

this legislation. 

Mr. President, this legislation is 

nothing more or less than an assault on 

the American jury system. It is predicated on a belief that local juries are 

not capable of rendering fair decisions. 

It is an attempt—a serious attempt—to 

diminish the role of juries, a role which 

our Framers regarded as vital to our 

democracy and system of government, 

and I think it should be soundly rejected. 

I just want to raise one last point 

that actually came out during the 

Commerce Committee hearing, and I 

think it is worth repeating. 

Testifying on behalf of the Conference of Chief Justices and in opposition to this bill was the Honorable 

Stanley Feldman, the chief justice of 

the Arizona State supreme court. The 

chief justice pointed out that in many 

States, we have entrusted juries with 

virtually all major decisions, including 

the decision of whether or not to sentence a criminal defendant to death. 

In criminal courts, we say to the juries, here are the facts of the case, here 

is what the prosecution claims the defendant did, here is the defendant’s 

alibi or confession and here is the doctor’s psychiatric evaluation. We give 

the juries all of this information, and 

then we ask them to make a final judgment about whether a person should 

live or die. 

As Chief Justice Feldman illustrated, 

it is almost bizarre that those who believe we should entrust with juries the 

power to put people to death also maintain that juries are unable to objectively calculate what a reasonable punitive damage award should be. 

I find it unfathomable that we can 

say that juries are qualified to impose 

the death penalty on criminal defendants but underqualified and incapable 

to assess monetary penalties against 

civil defendants. I am afraid that says 

something about what our society has 

come to value in this day and age. 

Mr. President, to conclude, this may 

not literally be an issue of whether the 

seventh amendment literally applies in 

this situation. It may, as constitutional interpretation has done with respect to Federal aspects of this bill. 

But, obviously, the right to trial by 

jury has to have some core meaning 

and, at some point, if you limit what a 

jury can do to make a person whole or 

you restrict the evidence a jury can 

hear to make its decision, it has to 

have an impact on the right to trial by 

jury. 

Maybe we have not reached that 

point yet in our legislation in this 

country, but I believe this bill takes us 

quite far over the line and does seriously diminish what I think most 

Americans would agree is properly the 

role of the jury, not the role of the U.S. 

Congress. 

I thank the Chair, and I yield the 

floor. 

EXHIBIT 1 

DEAR COLLEAGUE: As the debate continues 

around the product liability bill, I wanted to 

address one of the many myths circulating 

about the need for this legislation: that juries are out of control and they are subject 

to no restraints under current law. Quite 

simply, I believe this attack upon the jury 

system is unwarranted. 

For over two hundred years Americans 

have valued the jury box as much as they 

have valued the ballot box. Perhaps there is 

nothing more symbolic of or distinguishing 

about the American judicial system—the 

greatest judicial system in the world—than 

the principal of trial by jury. 

The one distinguishing characteristic 

about American jurors is that they have no 

distinguishing characteristics. A juror could 

be the waitress that served you breakfast 

this morning. It could be the person who delivers your mail. It could be your doctor, a 

family member or even your favorite celebrity. And we must remember that jurors 

today are just as capable of administering 

fair and equal justice as were jurors in 1791, 

the year the Seventh Amendment and the 

Bill of Rights were ratified. 

Unfortunately, the powerful supporters of 

S. 565 have run an effective campaign of misinformation about jury verdicts in recent 

months. They have tried to convince this 

country that jurors are determined to drive 

American manufacturers and corporations 

into bankruptcy. Of course, nothing could be 

further from the truth. 

A well-known study by Professors Michael 

Rustad and Thomas Koening—referred to by 

the Supreme Court as the ‘‘the most exhaustive study’’ ever on punitive damages—found 

only 355 punitive damages awards in federal 

and state courts for product liability cases 

between the years 1965–1990. Not counting 

the cases that related to asbestos, that is an 

average of about 10 punitive damage awards 

a year—hardly a situation of vindictive juries running amok in America. 

Does this mean that juries are inhuman 

and incapable of mistakes? Does it mean 

that jury decisions should be absolute with 

no checks or limits? Of course not. In fact, 

just last year the Supreme Court affirmed in 

Honda Motor Company v. Oberg that judges 

have a clear authority and obligation to 

limit punitive damages awarded by juries. As 

Justice Stevens wrote in his majority opinion, ‘‘. . . judicial review of the size of punitive damage awards has been a safeguard 

against excessive verdicts for as long as punitive damages have been awarded.’’

In their study, Professors Rustad and 

Koening found that of the 355 punitive damage awards in the past 25 years, 90 of these 

awards—about 25 percent—were either reversed or remitted by the presiding judge. 

Take the infamous McDonald’s coffee case. 

The jury awarded $2.7 million in that case—

the equivalent of two days’ worth of McDonald’s coffee sales. The judge reduced this to 

$480,000 or three times the plaintiff’s economic damages. Judges can and do reduce 

these awards. 

In short, this is reflective of a system of 

justice in which juries prescribe appropriate 

sanctions against parties that have been 

found guilty in a product liability action and 

at the same time bestows upon judges a necessary oversight role that is exercised with 

frequency and prudence. 

The fundamental issue here is this: If an 

injured consumer sues a manufacturer in a 

state court, who do you trust to administer 

justice in that case—the judge and the jury, 

or Congress? 

Best regards, 

RUSSELL D. FEINGOLD. 

Mrs. HUTCHISON addressed the 

Chair. 

The PRESIDING OFFICER. The Senator from Texas. 

Mrs. HUTCHISON. Mr. President, the 

time has come for us to put some common sense in our court system. There 

is no question that we must make sure 

that every person has a right to go to 

court if that person has been injured. 

But we see courts being overcrowded, 

we see defendants having to settle because it is less expensive to settle than 

to go ahead and try a case. We have 

seen research, particularly in the area 

of women’s health, being shut off because the drug companies and the pharmaceuticals just cannot do it. They 

cannot do it because of the liabilities 

they are afraid they will incur. 

This is the eighth consecutive Congress in which the Senate or the Commerce Committee has considered product liability. During that time, the 

need for product liability reform has 

grown by leaps and bounds. A study by 

the Texas Public Policy Foundation 

found that from the early 1980’s to the 

early 1990’s, the total number of punitive damage awards in Dallas County 

was 14 times greater and the average 

award, adjusted for inflation, was 19 

times higher. 

In Harris County, which is Houston, 

total awards were up 26-fold and the 

average award was up eightfold, and 

that is from a House Judiciary Committee report. 

My State of Texas and the State of 

California have begun to take steps to 

control this growth. But this is all over 

the country. These things are happening all over our country, and it is 

affecting the price of our products and 

the ability to do research. 

In a recent letter, Robert Bork, the 

judge, explained how product liability 

laws force national manufacturers to 

plan and protect themselves against 

lawsuits in the most litigious States. 

He said a State like California or Texas 

can impose its views of appropriate 

product design and the penalties for 

falling short on manufacturers and distributors across the Nation. He found 

this to be a perversion of federalism. 

Instead of national standards being set 

by the National Legislature, national 

standards are set by the courts and juries of particular States. He was making the case that it is Congress’ role at 

the Federal level to take control of 

this situation. It is a matter of interstate commerce. It is something that 

we must deal with. 

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S5990 CONGRESSIONAL RECORD— SENATE May 2, 1995 

Today, we are talking about an 

amendment by the majority leader—

and I am a cosponsor of this amendment—to provide the same protection 

from excessive punitive damage awards 

that this bill provides for manufacturers and retailers, to civic groups, to 

charities, to churches, and to local governments. Our courts are being misused. People who have not done anything wrong are being held up for settlements, and now this applies to Girl 

Scouts and Boy Scouts, to our Boys 

and Girls Clubs of America. 

Congress must take control. We can 

lower prices, we can lower insurance 

premiums, we can have new business 

starts, we can get new products and 

drugs on the market, we can increase 

jobs, and we can free the people who 

want to volunteer to do that without 

fear of retribution by a lawsuit. 

We can keep cities and towns from 

being bankrupted by lawsuits over 

playground accidents. We can keep volunteers helping the needy by maintaining a proportionality between compensatory and punitive damage awards in 

tort actions. We must expand the product liability bill to protect all Americans from unnecessary and frivolous 

lawsuits, from excessive damages for 

injuries they did not cause. 

This bill, under the leadership of Senators GORTON and ROCKEFELLER, goes a 

long way in the right direction to try 

to bring these abuses to heel. It is time 

to end the judicial lottery and put 

common sense back in the courts. If we 

are going to do that, Mr. President, I 

think we must apply it to the cities because, after all, it is the taxpayer who 

always foots the bill when there is a 

lawsuit that gets an award that the 

city’s insurance does not cover. Who 

pays? You know. We all know. It is the 

taxpayers of this country. When it is 

the Girl Scouts selling cookies and 

they have a frivolous lawsuit because 

it is just assumed they would have deep 

pockets, who pays? It is all the good 

deeds and the leadership qualities that 

Girl Scouts give that will suffer. 

It goes on and on, Mr. President. We 

must take control of the situation. I 

hope the Senate will not let this bill go 

by the wayside. I hope we do not argue 

and bicker so that we are not able to 

get a good bill out of this body, so that 

we can go to conference and work with 

the House and send something to the 

President that I hope he will sign. If we 

can do that, we will be able to reopen 

research that has been left out of the 

game right now because people are just 

not able to afford to do it, because they 

cannot protect themselves from the 

litigation attempts. 

So I am hoping that we will take action so that we can open up the research capabilities and open up our 

playgrounds and swimming pools. Personal responsibility is a new theme in 

America that has been rejuvenated 

from the past. I think personal responsibility is part of what we are about. 

We are not talking about legitimate 

issues of a person being injured. We are 

not talking about the right to have 

economic damages, some damages for 

pain and suffering—absolutely not. I 

have heard stories on the floor for the 

last week that are heart wrenching. 

There is no question that some people are entitled to damages. But we 

have to curb the excesses. We have to 

bring common sense back into the mix. 

That is what this bill will do. I urge my 

colleagues to support the Dole amendment so that everyone will have the 

same coverage as the corporations do. I 

urge my colleagues to look at the big 

picture and try to make the decision to 

get a good bill out of the Senate so 

that we can send something to the 

President that I hope he will, in the 

name of responsibility, be able to sign. 

I yield the floor. 

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. SHELBY. Mr. President, I ask 

unanimous consent that the order for 

the quorum call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. SHELBY. Mr. President, the legislation that we are considering today 

has no place on the Senate floor or on 

the Senate calendar. This legislation is 

a blatant attempt to eliminate over 750 

years of Anglo-American common law 

and to federalize over 200 years of State 

Tort law in this country. 

I want to return power to the States, 

not federalize important areas of State 

control. I thought that returning power 

to the States was a major part of the 

philosophical victory of the Republican 

party, my party, which occurred last 

fall. 

Mr. President, our current legal system, based on Anglo-American law, has 

its beginning in A.D. 1215 when the barons of England forced King John to 

sign the Magna Carta at Runnymede. 

The Magna Carta placed the King 

under the law and put limits on royal 

power. It also created remedies for 

many of the abuses that were occurring 

in England and gave legal protection to 

the English ruling class, which was 

later expanded to all Englishmen. Following the Magna Carta other English 

legal documents provided for additional legal protections for British citizens and the concept of rule of law. 

Ultimately, the Magna Carta has 

come to stand for the proposition that 

no man is above the law. 

English courts, after the Magna 

Carta, went on to develop a system of 

common law to provide legal protection to all men and women, the likes of 

which the world had never seen. Common law, including all Tort law, is basically judge-made law. For hundreds 

of years English judges decided cases 

which in turn formed the basis for future decisions. 

Under the Magna Carta, the later 

laws passed by the British Parliament, 

and the English common law, men were 

for the first time given certain basic 

rights in the legal system such as due 

process, jury trials, and the right to 

cross examine witnesses. 

Mr. President, this system of AngloAmerican law was brought to our 

shores by English settlers and was 

adopted by our Founding Fathers when 

they wrote the United States Constitution—the single most important document in our land. Many of the provisions of the Magna Carta anticipate 

rights that were embedded in the U.S. 

Constitution and American law. 

Our Constitution created a Federal 

system of Government. Under this system, that so many in this body appear 

to want to do away with, the Federal 

Government has certain areas of responsibilities and the States have their 

areas of influence. 

As early as 1648 in the Maryland Act 

for the Liberties of the People, American colonists explicitly recognized 

that they were protected and governed 

by the common law. In 1774, the Declaration of Rights of the First Continental Congress stated that the ‘‘Colonies are entitled to the common law of 

England.’’ After the American Revolution, the colonies, and later the 13 

States developed and adopted the common law to their own needs and circumstances. Common law, including 

Tort law, has remained solely a responsibility of the States for over 200 years. 

Mr. President, I would like to direct 

my colleagues’ attention to the tenth 

amendment of the U.S. Constitution, 

the tenth amendment states that: 

The powers not delegated to the United 

States by the Constitution, nor prohibited 

by it to the States, are reserved to the 

States respectively, or to the people. 

For over 200 years, the States have 

had the responsibility and a duty, Mr. 

President, to develop tort law. They 

have done so. 

The bill we are considering today is 

the first step, I believe, in destroying 

the States’ important role in developing and administering rules and laws 

for the redress and compensation for 

various torts, including product liability cases. 

In addition to eliminating over 750 

years of Anglo-American common law, 

this bill violates the 10th amendment 

of our Constitution and the basic principles of American federalism. 

Mr. President, the States have truly 

served as laboratories of democracy 

over the last 20 years in the area of 

tort reform. Virtually every State in 

the country has significantly reformed 

its legal system as it relates to product 

liability. 

Where there have been problems, the 

States have examined their legal systems and corrected the problems. As 

Supreme Court Justice Powell has 

stated, 

Our 50 States have developed a complicated and effective system of tort laws 

and where there have been problems, the 

States have acted to fix those problems. 

There is no current justification, I 

believe, Mr. President, for federalizing 

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May 2, 1995 CONGRESSIONAL RECORD— SENATE S5991 

our Nation’s tort system. Under the 

logic of this bill, if we carry it a step 

farther, if we federalize all product liability cases, why do we not federalize 

all civil and criminal statutes? 

The Federal Government can usurp 

all State power. We know that. Unfortunately, Mr. President, there are 

many in this body who see federalizing 

product liability law and other things 

as a first step to federalizing all legal 

matters. 

This bill will substantially disrupt 

and may end our country’s State common law system. It will result in additional litigation in both State and Federal courts. 

Mr. President, I hope that my colleagues will think long and hard before 

they go down the path toward ending 

federalism as we know it and preempting all State common law. 

The Federal Government, including 

the Congress, I believe, cannot solve all 

of our society’s ills by Federal statute. 

I find this legislation totally unacceptable, and I urge all my colleagues 

to vote and work against it. 

AMENDMENT NO. 621 TO AMENDMENT NO. 617

(Purpose: To provide that a defendant may 

be liable for certain damages if the alleged 

harm to a claimant is death and certain 

damages are provided for under State law, 

and for other purposes) 

Mr. SHELBY. Mr. President, I send 

an amendment to the desk and ask for 

its immediate consideration. 

The PRESIDING OFFICER. The 

pending question is the Gorton amendment No. 620. 

Mr. SHELBY. Mr. President, I ask 

unanimous consent that this amendment be made a second-degree amendment to the Dole amendment. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. The clerk 

will report. 

The assistant legislative clerk read 

as follows: 

The Senator from Alabama [Mr. SHELBY], 

for himself and Mr. HEFLIN, proposes an 

amendment numbered 621. 

Mr. SHELBY. Mr. President, I ask 

unanimous consent that the reading be 

dispensed with. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The amendment is as follows: 

At the appropriate place insert the following: 

SEC. . LIABILITY FOR CERTAIN CLAIMS RELATING TO DEATH. 

In any civil action in which the alleged 

harm to the claimant is death and the applicable State law provides, or has been construed to provide, for damages only punitive 

in nature, a defendant may be liable for any 

such damages regardless of whether a claim 

is asserted under this section. The recovery 

of any such damages shall not bar a claim 

under this section. 

Mr. SHELBY. Mr. President, I have 

made statements in the past about the 

negative effects this bill will have on 

State laws and federalism in general. 

Tonight, I want to be more specific. 

My State of Alabama has a wrongful 

death statute whose damages are construed as only punitive in nature—yes, 

only punitive in nature. 

Under the product liability bill that 

we are considering today in the Senate, 

along with some of the proposed 

amendments to this bill, people who 

have committed or are guilty of a 

wrongful death in my State of Alabama, the damages available will be severely limited. 

In 1852, quite a while ago, the Alabama legislature passed what is known 

as the Alabama Homicide Act. This act 

permits a personal representative to 

recover damages for a death caused by 

a wrongful act, omission, or negligence. For the past 140 years, the Alabama Supreme Court has interpreted 

this statute as imposing punitive damages for any conduct which causes 

death. 

Alabama believes that all people 

have equal worth in our society, so the 

financial position of a person is not 

used as the measure of damages in 

wrongful death cases in my State. The 

entire focus of Alabama’s wrongful 

death civil action is on the cause of the 

death. 

The amendment that I am offering 

tonight on behalf of myself and my colleague, Senator HEFLIN, will provide 

that in any civil action where the alleged harm to the claimants is death 

and the applicable State law only allows for punitive damages such as Alabama, the punitive damages provision 

of this bill will not apply—in other 

words, of the Federal statute if it were 

to pass. 

Mr. President, I believe there are legitimate reasons to exclude from coverage of this bill actions such as those 

brought under Alabama’s wrongful 

death statute. 

I urge all of my colleagues to support 

this important amendment to my 

State. 

Mr. HEFLIN. Mr. President, I rise in 

support of the Shelby amendment. 

In all of the 50 States, Alabama has a 

different and unique recovery in the 

event that a decision is made by a 

court or jury in regard to the death of 

an individual, whether it be brought by 

negligence or any form of action. Alabama’s wrongful death statute is unlike any other State’s wrongful death 

statute because its damages are punitive only. A person cannot prove, in a 

wrongful death case in Alabama, compensatory damages. An Alabama plaintiff cannot show his wages, his doctor 

bills, or anything similar of an economic or noneconomic nature. Alabama’s statute is very unique and different from any other State. 

The language of the Shelby amendment was included in a number of previous bills that were reported out of 

the Commerce Committee. In the 102d 

Congress, in the bill that was reported 

out, S. 640, and in several bills that 

were reported out of the Commerce 

Committee on product liability previous to that, they contained the exact 

language of the pending Shelby amendment. This had been worked on, and 

there had been several drafts and everybody agreed that it was a proper 

amendment to be included. 

I suppose since I have opposed the 

overall product liability, this provision 

may have been taken out. What I am 

saying is that the citizens of Alabama 

ought not to be at a disadvantage in regard to recovery under whatever product liability bill is passed. 

The language of this amendment was 

agreed to and was in previous bills but 

has been omitted from this bill. Basically, it allows for punitive damages as 

the element of damages that is allowable. A person is not allowed to have 

compensatory damages. A wrongful 

death statute does not allow even for 

the matters pertaining to loss of wages 

or pain and suffering or anything else. 

It is strictly a matter left to the jury 

on the wrongful death issue, and has 

been in existence for a long time. The 

defense bar, the plaintiff bar, have all 

agreed that this is a type of damage 

that ought to prevail, pertaining to 

wrongful death in Alabama. 

This concept was developed many 

years ago in what we know as the Lord 

Campbell Act. The Lord Campbell Act 

was passed because English jurisprudence realized that a defect existed in 

common law in that there were questions as to whether or not when someone died, that the cause of action survived. 

Many States passed wrongful death 

statutes, and following the Lord Campbell Act that was passed in England, 

the Alabama Supreme Court a number 

of years ago, well over 100 years ago, 

interpreted that act as being punitive 

in nature only and compensatory damages could not be proved. 

As a result, under the current language of punitive damage provisions in 

the product liability bill, unless the 

Shelby amendment is adopted, then a 

person who is killed in my State in a 

wrongful manner could not recover any 

damages. 

I support the Shelby amendment. I 

think it ought to be adopted. I think if 

we look back into the past history and 

those that have dealt with it, we see 

that everybody at a previous time who 

worked on this came up with an agreement language, and it is one, I think, 

that ought to be adopted by the Senate. 

I want Members to check with various people involved in this, and I 

think it is a legitimate amendment. It 

ought to be passed, or otherwise the 

people in the State of Alabama will be 

the only State in the Nation that could 

not recover when an individual is 

killed by negligence or by gross negligence or recklessness or wantonness 

or any type of proof that is necessary 

to prove a cause of action. 

I suggest the absence of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The assistant legislative clerk proceeded to call. 

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S5992 CONGRESSIONAL RECORD— SENATE May 2, 1995 

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

quorum call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

AMENDMENT NO. 617, AS MODIFIED

Mr. DOLE. Mr. President, I send a 

modification to my amendment to the 

desk. 

The PRESIDING OFFICER. The Senator has that right. The amendment is 

so modified. 

The amendment (No. 617), as modified, is as follows: 

On page 19, strike line 12 through line 5 on 

page 21, and insert the following: 

SEC. 107. PUNITIVE DAMAGES IN CIVIL ACTIONS. 

(a) FINDINGS.—The Congress finds that—

(1) punitive damages are imposed pursuant 

to vague, subjective, and often retrospective 

standards of liability, and these standards 

vary from State to State; 

(2) the magnitude and unpredictability of 

punitive damage awards in civil actions have 

increased dramatically over the last 40 

years, unreasonably inflating the cost of settling litigation, and discouraging socially 

useful and productive activity; 

(3) excessive, arbitrary, and unpredictable 

punitive damage awards impair and burden 

commerce, imposing unreasonable and unjustified costs on consumers, taxpayers, governmental entities, large and small businesses, volunteer organizations, and nonprofit entities; 

(4) products and services originating in a 

State with reasonable punitive damage provisions are still subject to excessive punitive 

damage awards because claimants have an 

economic incentive to bring suit in States in 

which punitive damage awards are arbitrary 

and inadequately controlled; 

(5) because of the national scope of the 

problems created by excessive, arbitrary, and 

unpredictable punitive damage awards, it is 

not possible for the several States to enact 

laws that fully and effectively respond to the 

national economic and constitutional problems created by punitive damages; and 

(6) the Supreme Court of the United States 

has recognized that punitive damages can 

produce grossly excessive, wholly unreasonable, and often arbitrary punishment, and 

therefore raise serious constitutional due 

process concerns. 

(b) GENERAL RULE.—Notwithstanding any 

other provision of this Act, in any civil action whose subject matter affects commerce 

brought in any Federal or State court on any 

theory, punitive damages may, to the extent 

permitted by applicable State law, be awarded against a defendant only if the claimant 

establishes by clear and convincing evidence 

that the harm that is the subject of the action was the result of conduct by the defendant that was either—

(1) specifically intended to cause harm; or 

(2) carried out with conscious, flagrant disregard to the rights or safety of others. 

(c) PROPORTIONAL AWARDS.—The amount of 

punitive damages that may be awarded to a 

claimant in any civil action subject to this 

section shall not exceed 2 times the sum of—

(1) the amount awarded to the claimant for 

economic loss; and 

(2) the amount awarded to the claimant for 

noneconomic loss. 

This subsection shall be applied by the court 

and the application of this subsection shall 

not be disclosed to the jury. 

(d) BIFURCATION.—At the request of any 

party, the trier of fact shall consider in a 

separate proceeding whether punitive damages are to be awarded and the amount of 

such an award. If a separate proceeding is requested—

(1) evidence relevant only to the claim of 

punitive damages, as determined by applicable State law, shall be inadmissible in any 

proceeding to determine whether compensatory damages are to be awarded; and 

(2) evidence admissible in the punitive 

damages proceeding may include evidence of 

the defendant’s profits, if any, from its alleged wrongdoing. 

(e) APPLICABILITY.—Nothing in this section 

shall be construed to—

(1) waive or affect any defense of sovereign 

immunity asserted by the United States, or 

by any State, under any law; 

(2) create any cause of action or any right 

to punitive damages; 

(3) supersede or alter any Federal law; 

(4) preempt, supersede, or alter any State 

law to the extent that such law would further limit the availability or amount of punitive damages; 

(5) affect the applicability of any provision 

of chapter 97 of title 28, United States Code; 

(6) preempt State choice-of-law rules with 

respect to claims brought by a foreign nation 

or a citizen of a foreign nation; or 

(7) affect the right of any court to transfer 

venue or to apply the law of a foreign nation 

or to dismiss a claim of a foreign nation or 

of a citizen of a foreign nation on the ground 

of inconvenient forum. 

(f) FEDERAL CAUSE OF ACTION PRECLUDED.—

Nothing in this section shall confer jurisdiction on the Federal district courts of the 

United States under section 1331 or 1337 of 

title 28, United States Code, over any civil 

action covered under this section. 

(g) DEFINITIONS.—For purposes of this section: 

(1) The term ‘‘claimant’’ means any person 

who brings a civil action and any person on 

whose behalf such an action is brought. If 

such action is brought through or on behalf 

of an estate, the term includes the decedent. 

If such action is brought through or on behalf of a minor or incompetent, the term includes the legal guardian of the minor or incompetent. 

(2) The term ‘‘clear and convincing evidence’’ means that measure or degree of 

proof that will produce in the mind of the 

trier of fact a firm belief or conviction as to 

the truth of the allegations sought to be established. The level of proof required to satisfy such standard shall be more than that 

required under preponderance of the evidence, and less than that required for proof 

beyond a reasonable doubt. 

(3) The term ‘‘commerce’’ means commerce 

between or among the several States, or with 

foreign nations. 

(4)(A) The term ‘‘economic loss’’ means 

any objectively verifiable monetary losses 

resulting from the harm suffered, including 

past and future medical expenses, loss of 

past and future earnings, burial costs, costs 

of repair or replacement, costs of replacement services in the home, including child 

care, transportation, food preparation, and 

household care, costs of making reasonable 

accommodations to a personal residence, 

loss of employment, and loss of business or 

employment opportunities, to the extent recovery for such losses is allowed under applicable State law. 

(B) The term ‘‘economic loss’’ shall not include noneconomic loss. 

(5) The term ‘‘harm’’ means any legally 

cognizable wrong or injury for which damages may be imposed. 

(6)(A) The term ‘‘noneconomic loss’’ means 

subjective, nonmonetary loss resulting from 

harm, including pain, suffering, inconvenience, mental suffering, emotional distress, 

loss of society and companionship, loss of 

consortium, injury to reputation, and humiliation. 

(B) The term ‘‘noneconomic loss’’ shall not 

include economic loss or punitive damages. 

(7) The term ‘‘punitive damages’’ means 

damages awarded against any person or entity to punish such person or entity or to deter 

such person or entity, or others, from engaging in similar behavior in the future. 

(8) The term ‘‘State’’ means any State of 

the United States, the District of Columbia, 

the Commonwealth of Puerto Rico, the 

Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and any 

other territory or possession of the United 

States, or any political subdivision of any of 

the foregoing. 

f 

UNANIMOUS CONSENT 

AGREEMENT 

Mr. DOLE. Mr. President, I think we 

have a consent agreement now. I will 

recite it. If there are any questions I 

will be happy to respond. 

I ask unanimous consent that during 

the Senate’s consideration of H.R. 956, 

all second-degree amendments to the 

Dole amendment must be debated during today’s session of the Senate. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. DOLE. I further ask that any 

votes ordered on or in relation to second-degree amendments to the Dole 

amendment, No. 617, occur beginning 

at 11:15, and that the final vote in the 

sequence be on or in relation to the 

Dole amendment, No. 617, as amended, 

if amended. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. HEFLIN. Just a moment. I reserve the right to object. 

I mean if the final—oh, I see; in the 

sequence in relationship. So it does not 

mean that that is the final vote of the 

day or anything like that? 

Mr. DOLE. No. I wish it were. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. DOLE. I further ask that at the 

hour of 10:15 a.m. there be 1 hour for 

debate to be equally divided between 

the two managers for discussion on any 

of the pending amendments to the Dole 

amendment. 

Mr. HEFLIN. I assume that, in regards to that, it is to the managers, between the managers. That means that 

people who are opponents to the various amendments rather than the managers would be——

Mr. DOLE. I think that provision is 

set to accommodate the Senator from 

Alabama. If the Senator from West Virginia has no objection, I can say to the 

Members in opposition——

Mr. ROCKEFELLER. The Senator 

from West Virginia will do it in any 

way that is equitable. 

Mr. HEFLIN. Why not put it that 

half of the time be under control of 

Senator HOLLINGS or his designee? 

Mr. DOLE. Would that be all right 

with the Senator from West Virginia? 

Mr. ROCKEFELLER. That will be 

fine. 

Mr. DOLE. So I modify the request, 

time to be equally divided between 

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