May 1, 1995 CONGRESSIONAL RECORD — SENATE S5909

too concerned about the lawyers. Lawyers can generally take care of themselves.

But, Mr. President, I think what we

have to look at when we look at some

of these limitations on fees is what impact it will have on the market, what

impact it will have on poor people’s

ability to get into the ball game. And

in this case, getting into the ball game

means getting into court.

If some of these well-intentioned,

well-sounding amendments do in fact

hinder poorer people from having access to the courthouse door, then I

think the right thing to do would be to

oppose them. We need to preserve access to the courtroom for people who

have been harmed. We should do this to

their benefit, not for the benefit of the

lawyers.

Last week, Mr. President, I voted for

an amendment that would force lawyers to disclose their fees. I think that

is a good idea. I voted for another

amendment that would make sanctions

mandatory in cases when lawyers bring

lawsuits that are legally determined to

be frivolous by a trial judge. I think

that is a good idea, too.

But I do part company with the proponents of this legislation when they

do things that would limit the legal

rights of indigent plaintiffs. I believe

that that is precisely what some of

these amendments would have the effect of doing.

Mr. President, over the last 4

months, I have had more than 55 meetings with concerned Ohioans and others about the faults and merits of this

legislation. I intend, Mr. President, to

be working over the next couple of

days and probably weeks to improve

the system—to improve the system,

but also to make sure we do not abandon some of the extremely positive effects of the legal system we have built

up over the last 200 years.

Mr. President, that concludes my

statement this evening on this issue.

Mr. President, at this point, on behalf of the leader, I ask unanimous

consent that the pending amendment

be set aside.

The PRESIDING OFFICER. Without

objection, it is so ordered.

AMENDMENT NO. 616 TO AMENDMENT NO. 603

(Purpose: To provide for uniform standards

for the awarding of punitive damages)

Mr. DEWINE. Mr. President, I send

an amendment to the desk on behalf of

Senator DODD.

The PRESIDING OFFICER. The

clerk will report the amendment.

The assistant legislative clerk read

as follows:

The Senator from Ohio [Mr. DEWINE], for

Mr. DODD, proposes an amendment numbered

616 to amendment No. 603.

Mr. DEWINE. Mr. President, I ask

unanimous consent that reading of the

amendment be dispensed with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

Strike section 15 of the amendment and

insert the following new section:

SEC. 15. UNIFORM STANDARDS FOR AWARD OF

PUNITIVE DAMAGES.

(a) GENERAL RULE.—Notwithstanding any

other provision of law, punitive damages

may, to the extent permitted by applicable

State law, be awarded against a defendant in

an action that is subject to this Act if the

claimant establishes by clear and convincing

evidence that the harm that is the subject of

the action was the result of conduct that was

carried out by the defendant with a conscious, flagrant indifference to the safety of

others.

(b) BIFURCATION AND JUDICIAL DETERMINATION.—

(1) IN GENERAL.—Notwithstanding any

other provision of law, in an action that is

subject to this Act in which punitive damages are sought, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall be conducted by the

court to determine the amount of such damages to be awarded.

(2) ADMISSIBLE EVIDENCE.—

(A) INADMISSIBILITY OF EVIDENCE RELATIVE

ONLY TO A CLAIM OF PUNITIVE DAMAGES IN A

BIFURCATED PROCEEDING.—Notwithstanding

any other provision of law, in any proceeding

to determine whether the claimant in an action that is subject to this Act may be

awarded compensatory damages and punitive

damages, evidence of the defendant’s financial condition and other evidence bearing on

the amount of punitive damages shall not be

admissible unless the evidence is admissible

for a purpose other than for determining the

amount of punitive damages.

(B) PROCEEDING WITH RESPECT TO PUNITIVE

DAMAGES.—Evidence that is admissible in a

separate proceeding conducted under paragraph (1) shall include evidence that bears on

the factors listed in paragraph (3).

(3) FACTORS.—Notwithstanding any other

provision of law, in determining the amount

of punitive damages awarded in an action

that is subject to this Act, the court shall

consider the following factors:

(A) The likelihood that serious harm would

arise from the misconduct of the defendant

in question.

(B) The degree of the awareness of the defendant in question of that likelihood.

(C) The profitability of the misconduct to

the defendant in question.

(D) The duration of the misconduct and

any concealment of the conduct by the defendant in question.

(E) The attitude and conduct of the defendant in question upon the discovery of the

misconduct and whether the misconduct has

terminated.

(F) The financial condition of the defendant in question.

(G) The total effect of other punishment

imposed or likely to be imposed upon the defendant in question as a result of the misconduct, including any awards of punitive or

exemplary damages to persons similarly situated to the claimant and the severity of

criminal penalties to which the defendant in

question has been or is likely to be subjected.

(H) Any other factor that the court determines to be appropriate.

(4) REASONS FOR SETTING AWARD AMOUNT.—

(A) IN GENERAL.—Notwithstanding any

other provision of law, with respect to an

award of punitive damages in an action that

is subject to this Act, in findings of fact and

conclusions of law issued by the court, the

court shall clearly state the reasons of the

court for setting the amount of the award.

The statements referred to in the preceding

sentence shall demonstrate the consideration of the factors listed in subparagraphs

(A) through (G) of paragraph (3). If the court

considers a factor under subparagraph (H) of

paragraph (3), the court shall state the effect

of the consideration of the factor on setting

the amount of the award.

(B) REVIEW OF DETERMINATION OF AWARD

AMOUNT.—The determination of the amount

of the award shall only be reviewed by a

court as a factual finding and shall not be

set aside by a court unless the court determines that the amount of the award is clearly erroneous.

Mr. DEWINE. Mr. President, I have

only offered this amendment for Senator DODD so that it would qualify

under the consent agreement, in that

Senator DODD, at this point, is unable

to be on the floor.

Mr. DE

MORNING BUSINESS

WINE. Mr. President, I ask

funanimous consent that there now be a

period for the transaction of morning

business, with Senators permitted to

speak for up to 5 minutes each.

The PRESIDING OFFICER. Without

objection, it is so ordered.

MEASURES PLACED ON THE

fCALENDAR

The following bill was read the second time and placed on the calendar:

S. 735. A bill to prevent and punish acts of

terrorism, and for other purposes.

EXECUTIVE AND OTHER

COMMUNICATIONS

fThe following communications were

laid before the Senate, together with

accompanying papers, reports, and documents, which were referred as indicated:

EC–746. A communication from the Assistant Secretary of Defense (Economic Security), transmitting, pursuant to law, the report on the Metric Transition Program; to

the Committee on Commerce, Science, and

Transportation.

EC–747. A communication from the Secretary of Transportation, transmitting, a

draft proposed legislation entitled ‘‘The

Commercial Space Launch Act Amendments

of 1995’’; to the Committee on Commerce,

Science, and Transportation.

INTRODUCTION OF BILLS AND

JOINT RESOLUTIONS

fThe following bills and joint resolutions were introduced, read the first

and second time by unanimous consent, and referred as indicated:

By Mr. THOMAS (for himself, Mr. MURKOWSKI, Mr. HELMS, Mr. LAUTENBERG,

Mr. GRAMS, and Mr. CRAIG):

S. 738. A bill to amend the Helium Act to

prohibit the Bureau of Mines from refining

helium and selling refined helium, to dispose

of the United States helium reserve, and for

other purposes; to the Committee on Energy

and Natural Resources.

By Mr. PACKWOOD:

S. 739. A bill to authorize the Secretary of

Transportation to issue a certificate of documentation with appropriate endorsement for

employment in the coastwise trade for the

vessel SISU, and for other purposes; to the

Committee on Commerce, Science, and

Transportation.