May 9, 1995 CONGRESSIONAL RECORD — SENATE S6297

about guns, gun control, gun owners, the

anti-gun media and what’s happening to our

freedoms.

I hope you’ll read it and use it in your own

personal campaign in New York to defend

the Constitution. Use Guns, Crime, and Freedom to help you keep the pressure on Congress, write letters to the editor and teach

other Americans about the battle we’re

fighting today. Thanks again for your support and friendship.

NATIONAL RIFLE

ASSOCIATION OF AMERICA,

Fairfax, VA, May 3, 1995.

Hon. CARL LEVIN,

U.S. Senate,

Washington, DC.

DEAR SENATOR LEVIN: While I concede that

some of the language in the NRA fundraising

letter you refer to might have been rhetorically impassioned—as is most political direct mail—that in no way disparages the

NRA, nor diminishes the seriousness of the

alleged federal law enforcement abuses to

which the letter refers. And it is certainly in

no way related to the terrorist bombing in

Oklahoma City.

You asked if we can ‘‘honestly justify’’

rhetoric decrying such abuses of federal

power. That’s what we want to find out. In

January 1994, the American Civil Liberties

Union, the National Rifle Association and

others wrote to President Clinton, petitioning him to appoint a commission to investigate 25 documented cases of alleged federal

law enforcement abuse. Our request was ignored. So again in January 1995, the ACLU,

NRA and others petitioned the President. All

we ask is a full, fair and open examination

the facts—a request that, so far, has been denied.

This isn’t just some petty gripe against the

enforcement of anti-gun laws by the Bureau

of Alcohol, Tobacco and Firearms. On the

contrary, the inquiry we requested was to

focus on all 53 federal law enforcement agencies, and on charges ranging from the denial

of basic civil rights, to the confiscation and

destruction of property, to the improper use

of deadly force against unarmed civilians.

I agree, senator, that the partisan posturing and political exploitation of the Oklahoma City tragedy is reprehensible and

should stop. But before you condemn NRA’s

criticism of federal law enforcement abuses

as ‘‘totally inappropriate,’’ I urge you to

help us find out if it really is.

Let’s get all the facts out on the table regarding these cases. If the accusations

against federal law enforcement are baseless,

let’s expose them as such and vindicate the

officers accused. If, on the other hand, particular officers are operating outside the

rule of law, let’s find them, remove them and

prosecute them for the good of the whole.

Whatever the case, let’s put the grievances

to rest once and for all.

Doing so, I believe, could help reverse the

public’s documented and growing distrust of

federal power. Blaming the rhetoric—whether in a fundraising letter or anywhere else in

political discourse—serves only to silence

dissent and aggravate that distrust.

Sincerely yours,

THOMAS L. WASHINGTON,

President,

National Rifle Association of America.

Mr. LEVIN. Madam President, I will

defend LaPierre’s, Mr. Washington’s,

and the NRA’s right to free speech, but

I continue to hope that the membership of the NRA and the American public will demand that this patently false

statement that the President has authorized the murder of law-abiding

citizens be retracted. There is a crucial

difference between what someone has a

right to say and what it is right to say.

This statement in the NRA letter is

wrong. It deserves to be condemned,

and it should be withdrawn.

Madam President, I believe I have an

allotted amount of morning business

time, and if so I would yield 3 minutes

to my friend from Rhode Island.

The PRESIDING OFFICER. The Senator from Rhode Island is recognized

for 3 minutes.

Mr. CHAFEE. I thank the Chair. I

thank the distinguished senior Senator

from Michigan for giving me a few

minutes.

Madam President, I believe the tactics used by Mr. LaPierre in his recent

fundraising letter for the National

Rifle Association are just plain wrong.

This letter does not contribute to any

informed debate. Instead, it is inaccurate and irrational. It borders on the

hysterical. And this kind of hysteria

only encourages paranoia, which we

certainly do not need at this time in

our Nation.

Madam President, I know that the

Senator from Michigan has touched on

some of the quotes from the letter, but

I would just like to mention a few that

stand out. Here is one paragraph from

the letter:

It doesn’t matter to them that the semiauto ban gives jack-booted government

thugs more power to take away our Constitutional rights, break in our doors, seize

our guns, destroy our property, and even injure or kill us.

This is another paragraph:

In Clinton’s administration, if you have a

badge, you have the government’s go-ahead

to harass, intimidate, even murder law-abiding citizens. Not too long ago, it was unthinkable for Federal agents wearing nazi

bucket helmets and black storm trooper uniforms to attack law-abiding citizens.

And another:

They’ve launched a new wave of brainwashing propaganda aimed at further destroying our Constitutional freedoms.

And on it goes, Madam President.

Now, Madam President, the apocalypse described in this fundraising letter is not familiar to me. The Government described in these pages is not familiar to me. This is not a description

of reality. It is a description of terror

designed for one purpose: to provoke a

visceral reaction against the U.S. Government—and at the end of the day, to

raise money.

There are many powerful and ugly

words used in this letter. They are insulting to American law enforcement

and to American citizens. Why does

Mr. LaPierre use them? I suppose in

order to tap into the rage that some

feel against the U.S. Government, to

feed that rage, and to use that rage to

gain donations.

In various interviews, Mr. LaPierre

has acknowledged the NRA letter went

too far. I believe it behooves him and

the leadership of the NRA to apologize

to the men and women in Federal law

enforcement and to the American people for this letter’s rhetoric, and to refrain from this kind of inflammatory

prose in the future.

I thank the distinguished Senator

from Michigan for giving me a few

minutes.

Mr. LEVIN. I thank the Senator from

Rhode Island for his comments on this

letter.

Madam President, on another matter, we have a bill pending before us

which I would like to briefly address as

part of my time.

THE PRODUCT LIABILITY

FAIRNESS ACT

fMr. LEVIN. Madam President, the

bill that we will be voting on later this

morning is called the Product Liability

Fairness Act of 1995. One of the arguments for it is that we need uniformity

in a tort system. As a matter of fact,

Madam President, the bill is carefully

structured to authorize States to diverge from these standards in order to

provide more favorable treatment to

defendants than the bill provides, but

the bill prohibits States from providing

more favorable treatment to plaintiffs.

In other words, this bill does not provide us with uniformity. When we look

down the provisions in the bill, we will

see in a moment that the bill does not

assure that there will be a uniform application of these provisions to all

plaintiffs and all defendants. The bill

prohibits a State law attempting to

provide more favorable treatment to

those who have been injured, but it allows State laws that are more favorable to those who allegedly cause the

injury.

Now there is a reasonable argument

for uniformity in product liability law,

since many products are sold across

State lines. But, this bill does not provide that uniformity. States can be

more restrictive than the so-called national standards in the bill. A patchwork of State laws is still permitted,

provided that the divergences are in

the direction of greater restriction on

the injured party.

For instance, the bill contains a socalled statute of repose barring any

product liability action against a manufacturer of a product that is more

than 20 years old. This provision prohibits States from providing a longer

period for those who are injured. But

the bill expressly authorizes States to

adopt a shorter and more restrictive

period in order to benefit defendants.

Similarly, the bill contains standards

for the imposition of punitive damages,

but the provision by its own terms only

applies to the extent that punitive

damages are permitted by State law.

The committee report states that:

It is not the committee’s intention that

this act preempt State legislation or any

other rule of State law that provides for defenses or places limitations on the amount of

damages that may be recovered.

In other words, if a State has more

lenient standards for the award of punitive damages, the bill overrides those
S6298 CONGRESSIONAL RECORD — SENATE May 9, 1995

standards—States cannot do that—but

if a State has more restrictive standards, lower caps, additional limitations, or even bars punitive damages

altogether, that is allowed by this bill.

While I am on the topic of punitive

damages, I would like to point out that

the so-called fix adopted by the Gorton-Rockefeller substitute is, in fact,

no fix at all. Punitive damages would

be capped under the substitute as they

are capped by the underlying bill. The

substitute limits the punitive damages

that maybe awarded by a jury at two

times compensatory damages, or

$250,000, whichever is greater. The substitute then purports to authorize

judges to increase punitive damages in

cases where a jury award is ‘‘insufficient to punish the egregious conduct

of the defendant.’’

But, Madam President, the authority

under this substitute we will be voting

on, which is given to the judge, is an illusion. Because if the defendant objects

to the increased damages, he or she is

entitled to a new trial on the subject of

punitive damages. Judgment is not entered on liability or damages until the

completion of the new trial. So the

plaintiff cannot get a dime until after

the new trial is completed.

Nothing in the substitute indicates

that the judge’s decision to increase

the punitive damages award may be

considered at this new trial. Nothing in

the substitute indicates that the caps

on punitive damages would be waived

at the new trial. So it even appears

that the same old caps may apply.

Under these circumstances, what defendant would not insist on a new trial

on punitive damages? And what plaintiff would be willing to forego all compensatory damages while awaiting a

new trial on the subject of punitive

damages?

Those of my colleagues who favor punitive damage caps should feel very

comfortable indeed voting for cloture

on this substitute. But those who oppose caps should be forewarned. The

caps in this substitute are every bit as

real as the caps in the underlying bill.

Back to the uniformity issue. These

are one-way limits.

This chart shows which State laws

would be prohibited and which would

be allowed. Categories of State laws

that would be prohibited are shown in

red. Categories of State laws that

would be allowed are shown in green.

In the left-hand column, we see that

every single type of State law that

would be more favorable to the injured

party is prohibited. Every State law

that would vary from the so-called

standard in order to benefit a plaintiff

in any of the areas covered by this bill

is prohibited by the bill; it is preempted. But in the right-hand column,

we see that, with one exception, State

law provisions that are more favorable

to defendants are allowed.

We have heard a lot of talk about the

need for national standards for product

liability. But what this chart shows is

that where the bill provides true national standards, it is only where plaintiffs are prohibited from gaining the

benefit of any State law that varies

from the so-called standard. But with

one exception, State laws are allowed

to vary from the so-called standard and

to have more restrictive rules that benefit the defendant.

These are not national standards.

These are one-way rules that limit

only plaintiffs, and if defendants are

able to get more restrictive laws passed

by the States, they will not restrict defendants.

Let us look at one example of how

this one-way preemption provision

would work. The bill would override

State laws that provide joint and several liability for noneconomic damages. Joint and several liability is the

doctrine under which any one defendant may be held responsible for 100 percent of the damages in a case, even if

other wrongdoers also contributed to

the injury.

The sponsors of this bill, and this

amendment, have pointed out that

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

causing the damage ends up holding

the bag for all of the damages. That

does not seem fair.

On the other hand, there are good

reasons for the doctrine of joint and

several liability. Cause and effect often

cannot be assigned on a percentage

basis with accuracy. There may be

many causes of an event, the absence

of any one of which would have prevented the event from occurring. Because the injury would not have occurred without each of these so-called

but-for causes, each is, in a very real

sense, 100 percent responsible for the

resulting injury.

This bill, however, does not recognize

that in the real world, multiple wrongdoers may each be a cause of the same

injury. It insists that responsibility be

portioned out, with damages divided up

into pieces, and the liability of each

defendant limited to a single piece.

Under this approach, the more causes

the event can be attributed to, the less

each defendant will have to pay.

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

who contributed to the injury, he or

she will not be compensated for his entire loss. The real world result is that

most plaintiffs will not be made whole,

even if they manage to overcome the

burdens of our legal system and prevail

in court. Would it not be more fair to

say that the wrongdoers, each of whom

caused the injury, should bear the risk

that one or more of them might not be

able to pay its share than it is for the

injured party to be only partially compensated for his or her loss?

The bill before us completely ignores

the complexity of this issue with its

one-way approach to Federal preemption. States which are more favorable

to defendants are allowed to retain

their laws. But State laws that try to

reach a balanced approach between

plaintiffs and defendants would be preempted.

Roughly half the States choose to

protect the injured party through the

doctrine of joint and several liability.

Another half dozen States have adopted creative approaches to joint and several liability, seeking to balance the

rights of plaintiffs and defendants.

Let me give you a few examples.

Louisiana law provides joint and several liability only to the extent necessary for the plaintiff to recover 50

percent of damages; there is no joint

and several liability at all in cases

where the plaintiff’s contributory fault

was greater than the defendant’s fault.

Mississippi law provides joint and

several liability only to the extent necessary for the plaintiff to recover 50

percent of damages, and for any defendant who actively took part in the

wrongdoing.

New Jersey law provides joint and

several liability in the case of defendants who are 60 percent or more responsible for the harm; joint and several liability for economic loss only in

the case of defendants who are 20 to 60

percent responsible; and no joint and

several liability at all for defendants

who are less than 20 percent responsible.

New York law provides joint and several liability for defendants who are

more than 50 percent responsible for

the harm; joint and several liability is

limited to economic loss in the case of

defendants who are less than 50 percent

responsible.

South Dakota law provides that a defendant that is less than 50 percent responsible for the harm caused to the

claimant may not be liable for more

than twice the percentage of fault assigned to it.

Texas law provides joint and several

liability only for defendants who are

more than 20 percent responsible for

the harm caused to the claimant.

All of these State laws are efforts to

address a complex problem in a balanced manner, with full recognition of

factors unique to the State. Because

they are all more favorable to the injured party than the approach adopted

in this bill, however, they would all be

prohibited.

Perhaps this is one reason why the

National Conference of State Legislatures opposes this bill. As the NCSL explains:

Tort law traditionally has been a state responsibility, and the imposition of federal

products standards into the complex context

of state tort law would create confusion in

state courts. Without imposing one-size-fitsall federal standards, states may act on their

own initiative to reform product liability

law in ways that are tailored to meet their

particular needs and that fit into the context

of existing state law.

The proponents of S. 565 want Washington

to dictate the legal standards and evidentiary rules that fifty state court systems

use to adjudicate injury disputes involving

allegedly defective products. There is no

precedent for such congressional imposition

of federal rules by which state courts will be

forced to decide civil disputes.
May 9, 1995 CONGRESSIONAL RECORD — SENATE S6299

For NCSL, the question is not which tort

reforms are appropriate, but who makes that

decision. The issue is who has responsibility

for state civil justice. This is a federalism

issue of major consequence. It should not be

ignored.

Madam President, what kind of national standard is it that prohibits

State laws only when they are more favorable to plaintiffs than Federal law

and not when they vary from Federal

law to favor defendants? What kind of

fairness bill is it that contains such a

blatant double standard?

Madam President, the bill before us

is called the Product Liability Fairness

Act of 1995. If you read the title, it

sounds pretty good. Who could be

against bringing greater fairness to our

product liability system, or to our

legal system in general?

There is a list of problems in our

legal system that we could all go

through. Going to court takes too

much time and it costs too much

money. There are many stories of

plaintiffs winning what seem like absurdly high verdicts or, on the other

hand, being denied a day in court by

defendants with deep pockets who engage in such hard-ball tactics as investigations into the private lives of

plaintiffs, grueling depositions, unreasonable requests for medical and psychological histories of plaintiffs, and

multiple motions to dismiss.

As Senator GORTON, one of the lead

authors of the bill before us, explained

at the outset of this debate:

[T]he victims of this system are very often

the claimants, the plaintiffs themselves, who

suffer by the actual negligence of a product

manufacturer, and frequently are unable to

afford to undertake the high cost of legal

fees over an extended period of time. Frequently, they are forced into settlements

that are inadequate because they lack resources to pay for their immediate needs,

their medical and rehabilitation expenses,

their actual out-of-pocket costs.

In 1989, a General Accounting Office study

found that on average, cases take 21⁄2 to 3

years to be resolved, and even longer when

there is an appeal. One case studied by the

GAO took 91⁄2 years to move through our

court system. In one of many hearings held

on this issue over the years, University of

Virginia law professor Jeffrey O’Connell explained, and I quote him: ‘‘If you are badly

injured in our society by a product and you

go to the highly skilled lawyer, in all honesty the lawyer cannot tell you what you

will be paid, when you will be paid or, indeed, if you will be paid.’’

Senator GORTON concluded his

thought as follows:

Uncertainty in the present system is a reason for change. Plaintiffs, those injured by

faulty products, need quicker, more certain

recovery—recovery that fully compensates

them for their genuine losses. Defendants,

those who produced the products, need greater certainty as to the scope of their liability.

I agree with Senator GORTON that

there is unfairness in our current legal

system. There is unfairness to defendants in some cases, and there is unfairness to plaintiffs. However, this bill

does not address the problems faced by

plaintiffs at all. There is virtually

nothing in this bill to assist those who

have been hurt by defective products

and face the difficult burdens of trying

to recover damages through our legal

system.

For instance, this bill does nothing

to address the hardball litigation tactics used by some defendants in product liability cases, such as excessive

investigations, depositions, and motions practice that often mars such

litigation. It does nothing to help bring

to public light documents revealing defendants’ knowledge of product defects,

or to shorten the time required to litigate these cases and obtain relief.

Instead this bill would limit the

money that can be recovered by plaintiffs who manage to navigate the hazards of our legal system and provide in

court that they were hurt by defective

products. The bill contains any number

of provisions addressing compensation

to plaintiffs which is too high, but not

a single provision addressing the cases

in which, as the sponsors themselves

acknowledge, compensation is too low.

This bill is not balanced, it is not

uniform, and I cannot support it.

Madam President, if I have any additional time remaining, I will be happy

to yield to the Senator from Alabama.

Mr. HEFLIN. Madam President, I

only want to speak briefly right now

relative to this matter. I think the

Senator from Michigan has covered the

issue on additur very adequately.

In the case of Dimick versus Schiedt,

a 1935 Supreme Court case, the High

Court ruled that the district court

lacked the power to deny a plaintiff a

new trial, sought on the ground that

the jury award of damages was too low,

when the trial court judge proposed to

increase the damages and the defendant had consented in order to avoid a

new trial. The Supreme Court held that

the power to increase a damage award,

known as an additur, was a violation of

the right of trial by jury. According to

the Court, the amount of damages

must be determined by juries, not

judges, in the Federal court, subject to

the right of courts to set aside jury

awards that are clearly excessive.

Some State courts have held that

additur violates their State’s constitution as well.

That is the major point that I want

to make on this issue. Senator LEVIN

mentioned this matter pertaining to

the lack of uniformity.

I want to also point out that all

State courts under the bill and the substitute—any of the substitutes—are to

accept as binding precedents in the

construing act, the decision of a Federal court of appeals covering this

mandate.

This mandate, in my judgment, is

clearly unconstitutional and contrary

to article III of section 1 of the Constitution, which provides that the judicial power of the United States shall be

vested in one Supreme Court, which

has always been construed to mean

that State courts must follow the decisions of the Supreme Court and not the

lower Federal courts.

With the addition of the punitive

damage additur provision in the substitute, there is an expansion by Congress of an extraordinary nature to encroach on the power of the State

courts. Rules concerning the use of

additur and remittitur have always

been left to the State courts, as have

also every other State rule of civil procedure.

I just wanted to mention that. I

think there are others who are desiring

to speak. I yield the floor at this time.

Several Senators addressed the

Chair.

The PRESIDING OFFICER. Under

the previous order, the Senator from

Pennsylvania is recognized to speak up

to 10 minutes.

Mr. GLENN. Parliamentary inquiry.

Is there a 5-minute limit on speeches

this morning?

The PRESIDING OFFICER. Under

the previous order, the Senator from

Pennsylvania has been allocated 10

minutes to speak, after which there is

a 10:30 a.m. vote.

Mr. GLENN. I thank the Chair.

Mr. SANTORUM. Madam President, I

yield 5 minutes of my time to the Senator from Oklahoma.

The PRESIDING OFFICER. The Senator from Oklahoma is recognized.

STOP THE DEMAGOGING

fMr. INHOFE. Madam President, I

thank the Senator from Pennsylvania

for yielding a portion of his time. I do

not think I will take the 5 minutes.

After the trauma and the tragedy

that we have gone through in Oklahoma, it has diverted our attention

from many of the other significant

things that are taking place in this

body. I think the most significant

thing, second only to that tragedy in

Oklahoma, is the tragedy, the revelation that was recently discovered of

what is going to happen to Medicare in

America and the demagoging that is

taking place in this and other bodies

concerning that trauma.

Specifically, a report was released by

the Medicare trustees that has come to

the incontrovertible conclusion that

our Medicare system, in absence of

change, is going to go broke in the year

2002, approximately 61⁄2 years from now.

I think it is important to look and

see who was it who looked at the data,

who studied the actuarial reports and

came to that conclusion.

There are six members of the Board

of Trustees of Medicare. They are Robert Rubin, the Secretary of the Treasury, who was appointed by President

Clinton; Robert Reich, Secretary of

Labor, appointed by President Clinton;

Donna Shalala, Secretary of HHS, appointed by President Clinton; Shirley

Carter, Commissioner of Social Security, appointed by President Clinton;

and Stanford Ross and David Walker.

Four of the six members are appointments and work in the Clinton administration, and they have come up with

the conclusion that Medicare will, in