May 8, 1995 CONGRESSIONAL RECORD — SENATE S6237

automobile was widely noted in the law

reviews. I have therefore had occasion

to do very extensive research in the

area, although that was some substantial time ago.

I believe that a very key provision

for limiting frivolous lawsuits would be

to tighten up the current mechanism

to give greater authority under rule 11

to the judges who sit on those cases to

try to influence or discourage frivolous

lawsuits.

My reading of the substitute amendment shows that the amendment offered by the distinguished Senator

from Colorado, Senator BROWN, an

amendment which I supported and

which I think would be of substantial

help in discouraging frivolous litigation, and therefore a provision which I

think ought to be in the bill, has been

deleted.

With respect to the issue of punitive

damages, I am very reluctant to see

the provisions of the current bill enacted into law, because there are so

many cases which have been disclosed

in product liability litigation where

companies, major companies, have

made a calculated determination that

it is in their financial interest not to

make repairs or changes, because the

damages awarded in litigation will be

lesser than the costs of making the

modifications.

Perhaps the most celebrated case—

but there are many others like it—is

the Pinto case, where the gas tank was

left in a very dangerous position in the

rear of the car and resulted in explosions when there was impact, a very

common kind of accident in automobile driving, rear-end collisions.

As a result of product liability litigation, it was disclosed that there was a

memorandum in the files of the defendant company, Ford Motor Co., actually

a letter to the National Highway

Transportation Safety Administration,

in which there was a computation as to

what it would cost to pay damages for

people injured or killed as a result of

the placement of the gas tank, as to

what it would cost to make the repairs.

The calculated decision was not to

make the repairs.

And then you have the famous cases

of IUD’s made by A.H. Robins, in which

it was known for a long period of time

they would cause problems for women,

such as infections and sterilization.

There were blood cases with AIDS

being transmitted, and a failure to

take appropriate action. And there

were the flammable pajamas. There

have been many cases, some even resulting in criminal prosecutions. I discussed many of these cases last week.

So on the current state of the record,

my own sense is that there needs to be

further refinement of the provision on

punitive damages.

The revised bill does contain an

amendment offered by the distinguished Senator from Ohio, Senator

DEWINE, which would limit punitive

damages to small businesses, and small

businesses are defined as those having

fewer than 25 employees or a net worth

of under $500,000. It may be that this

provision would go far beyond product

liability cases and would affect all

ranges of tort litigation, including

medical malpractice cases. I do not

know if that is the intent.

It also may be that this amendment

to protect small businesses does not

bear a sufficient nexus to interstate

commerce in affecting all tort cases, so

that we may be legislating beyond our

authority, as interpreted by the Supreme Court of the United States recently in the Lopez case. I think that

is another matter which requires some

amplification.

I do believe that there is some limitation appropriate on punitive damages

where small businesses are involved. I

have heard the complaint that a defendant small business is often compelled to make a settlement that it

would not make if it was not betting

the business on it. I have filed a proposed amendment, and will refile it so

it would survive postcloture, if cloture

is invoked, so that the amendment will

be on record to be considered, which

would limit punitive damages to 10 percent of the net worth of a business, so

that there would not be a problem of

betting the business in litigation.

The substitute also deletes alternative dispute resolution, which I regret to see, because I think that is a

way of eliminating many cases from

the litigation process, by having alternative dispute resolution, which is a

fancy name for arbitration or mediation. That is not present in the current bill.

I express again the concern about totally eliminating joint liability for

noneconomic damages as a Federal

standard, where some States have

elected to do that as a matter of States

rights and others have not. I note

again my support for the amendment

offered by the distinguished Senator

from Tennessee, Senator THOMPSON,

which would have limited this bill to

litigation in Federal courts, which

would have been more in accordance

with the mood of the Congress and the

country now to let the States decide

these matters for themselves.

On the issue of joint liability, I am

very sympathetic to the claim that

some people or some defendants are in

it, people or individuals or companies,

to a very slight extent—maybe 1 percent—and they have the full responsibility for the verdict. I have filed another possible amendment which would

limit joint liability for noneconomic

damages if the defendant was not responsible for in excess of 15 percent of

the injury, which I think would provide

a better balance there.

Again, I will comment about the case

involving the death of our late colleague, Senator John Heinz, where

there was a collision between a helicopter and the plane in which Senator

Heinz was a passenger. The planes fell

into a schoolyard where there were

children on the ground, and some were

killed and some were injured. Those

victims could not have been compensated fully if joint liability had

been eliminated.

While it is always a difficult choice

as to who will bear the loss, and difficult for some defendants who are involved to a lesser extent where other

defendants are insolvent, but as between injured plaintiffs who are not responsible at all for what has happened

and those who have been held liable

and are subject to payment for joint liability, my own sense is that there

ought not to be the total elimination

of joint liability for noneconomic damages, which is the thrust of the present

legislation.

I am hopeful, Mr. President, that we

can craft legislation which will make

an improvement in product liability

litigation. But on the current state of

the record, I think the substitute still

does not address the real needs of consumers and does not strike an appropriate balance between those who are

sued and those who are bringing

claims.

I thank the Chair and I yield the

floor.

COMMEMORATING THE 50TH ANNIVERSARY OF THE FORCED

fMARCH OF AMERICAN PRISONERS OF WAR FROM STALAG

LUFT IV

Mr. WARNER. Mr. President, today

we commemorate the 50th anniversary

of the end of World War II in Europe.

Victory in Europe Day is one of the

milestone dates of this century. I rise

today to honor a group of Americans

who made a large contribution to the

Allied victory in Europe while also enduring more than their fair share of

personal suffering and sacrifice: The

brave men who were prisoners of war.

I believe it is appropriate to commemorate our World War II POW’s by

describing one incident from the war

that is emblematic of the unique service rendered by those special people.

This is the story of an 86-day, 488-mile

forced march that commenced at a

POW camp known as Stalag Luft IV,

near Gross Tychon, Poland, on February 6, 1945, and ended in Halle, Germany on April 26, 1945. The ordeal of

the 9,500 men, most of whom were U.S.

Army Air Force Bomber Command

noncommissioned officers, who suffered

through incredible hardships on the

march yet survived, stands as an everlasting testimonial to the triumph of

the American spirit over immeasurable

adversity and of the indomitable ability of camaraderie, teamwork, and fortitude to overcome brutality, horrible

conditions, and human suffering.

Bomber crews shot down over Axis

countries often went through terrifying experiences even before being confined in concentration camps. Flying

through withering flak, while also having to fight off enemy fighters, the

bomber crews routinely saw other aircraft in their formations blown to bits
S6238 CONGRESSIONAL RECORD — SENATE May 8, 1995

or turned into fiery coffins. Those who

were taken POW had to endure their

own planes being shot down or otherwise damaged sufficiently to cause the

crews to bail out. Often crewmates—

close friends—did not make it out of

the burning aircraft. Those lucky

enough to see their parachutes open,

had to then go through a perilous descent amid flak and gunfire from the

ground.

Many crews were then captured by

incensed civilians who had seen their

property destroyed or had loved ones

killed or maimed by Allied bombs.

Those civilians at times would beat,

spit upon, or even try to lynch the captured crews. And in the case of Stalag

Luft IV, once the POW’s had arrived at

the railroad station near the camp,

though exhausted, unfed, and often

wounded, many were forced to run the

2 miles to the camp at the points of

bayonets. Those who dropped behind

were either bayonetted or bitten on the

legs by police dogs. And all that was

just the prelude to their incarceration

where they were underfed, overcrowded, and often maltreated.

In February 1945, the Soviet offensive

was rapidly pushing toward Stalag

Luft IV. The German High Command

determined that it was necessary that

the POW’s be evacuated and moved

into Germany. But by that stage of the

war, German materiel was at a premium, and neither sufficient railcars

nor trucks were available to move prisoners. Therefore the decision was made

to move the Allied prisoners by foot in

a forced road march.

The 86-day march was, by all accounts, savage. Men who for months,

and in some cases years, had been denied proper nutrition, personal hygiene, and medical care, were forced to

do something that would be difficult

for well-nourished, healthy, and appropriately trained infantry soldiers to accomplish. The late Doctor [Major] Leslie Caplan, an American flight surgeon

who was the chief medical officer for

the 2,500-man section C from Stalag

Luft IV, summed up the march up this

year:

It was a march of great hardship * * * (W)e

marched long distances in bitter weather and

on starvation rations. We lived in filth and

slept in open fields or barns. Cothing, medical facilities and sanitary facilities were utterly inadequate. Hundreds of men suffered

from malnutrition, exposure, trench foot, exhaustion, dysentery, tuberculosis, and other

diseases.

A number of American POW’s on the

march did not survive. Others suffered

amputations of limbs or appendages

while many more endured maladies

that remained or will remain with

them for the remainder of their lives.

For nearly 500 miles and over 86 days,

enduring unbelievably inhumane conditions, the men from Stalag Luft IV

walked, limped and, in some cases,

crawled onward until they reached the

end of their march, with their liberation by the American 104th Infantry

Division on April 26, 1945.

Unfortunately, the story of the men

of Stalag Luft IV, replete with tales of

the selfless and often heroic deeds of

prisoners looking after other prisoners

and helping each other to survive

under deplorable conditions, is not well

known. I therefore rise today to bring

their saga of victory over incredible

adversity to the attention of my colleagues. I trust that these comments

will serve as a springboard for a wider

awareness among the American people

of what the prisoners from Stalag Luft

IV—and all prisoner of war camps—endured in the pursuit of freedom.

I especially want to honor three Stalag Luft IV veterans who endured and

survived the march. Cpl. Bob

McVicker, a fellow Virginian from Alexandria, S. Sgt. Ralph Pippens of Alexandria, LA, and Sgt. Arthur

Duchesneau of Daytona Beach, FL,

brought this important piece of history

to my attention and provided me with

in-depth information, to include testimony by Dr. Caplan, articles, personal

diaries and photographs.

Mr. McVicker, Mr. Pippens, and Mr.

Duchesneau, at different points along

the march, were each too impaired to

walk under their own power. Mr.

McVicker suffered frostbite to the extent that Dr. Caplan told him, along

the way, that he would likely lose his

hands and feet—miraculously, he did

not; Mr. Pippens was too weak from

malnutrition to walk on his own during the initial stages of the march; and

Mr. Duchesneau almost became completely incapacitated from dysentery.

By the end of the march, all three men

had lost so much weight that their bodies were mere shells of what they had

been prior to their capture—Mr.

McVicker, for example, at 5 foot, 8

inches, weighed but 80 pounds. Yet they

each survived, mostly because of the

efforts of the other two—American

crewmates compassionately and selflessly helping buddies in need.

Mr. President, I am sure that my colleagues join me in saluting Mr.

McVicker, Mr. Pippens, Mr.

Duchesneau, the late Dr. Caplan, the

other survivors of the Stalag Luft IV

march, and all the brave Americans

who were prisoners of war in World

War II. Their service was twofold: first

as fighting men putting their lives on

the line, each day, in the cause of freedom and then as prisoners of war, stoically enduring incredible hardships

and showing their captors that the

American spirit cannot be broken, no

matter how terrible the conditions. We

owe them a great debt of gratitude and

the memory of their service our undying respect.

FRANKLIN, NH, MARKS ITS

CENTENNIAL

fMr. GREGG. Mr. President, I ask my

Senate colleagues to join me in recognizing the city of Franklin, NH, on

the occasion of its centennial and in

appreciation of the contributions its

citizens have made to our Nation.

Founded at a gathering spot of the

Penacook Tribe, where the

Pemigewasset and Winnipesaukee Rivers meet to form the Merrimack River,

Franklin proudly traces its roots deep

into the history of our State and our

Nation. It is here, at the original settlement of Lower Falls, where Franklin’s most famous native son, Daniel

Webster, would commence a career as

lawyer and statesman and, eventually,

go on to establish both an honored

place in this Senate and a prominent

role in the shaping of America.

From this settlement, Capt. Ebenezer

Webster, Daniel’s father, would lead a

company of local men to earn distinction in the Revolutionary War and help

win the independence of a new nation.

Their heroics during the campaign at

Saratoga begins an unbroken line of

Franklin’s sons and daughters serving

our Nation and the cause of liberty

with honor, loyalty, and valor.

Successful in commerce, Franklin

was incorporated as a town in 1828 and

as the city of Franklin in 1895. The historic mill town would give rise to the

engineering ingenuity of Boston John

Clark and the technological innovations of Walter Aiken and make significant economic contributions to our

society. Spurring inventions from the

deceptively simple hacksaw and the

latch needle to the complexity of the

circular knitting machine, Franklin

would again play a pivotal role in the

second industrial revolution, which

propelled us forward as a modern nation.

Today, the city of Franklin continues to exhibit the character and enterprise of its distinguished past. Hardworking, first in citizenship, and steadfast in its sense of community, Franklin continues to show the can-do spirit

that marked its beginnings and first

100 years as a city. Recently, named

one of the 100 best small communities

in America, a base for advanced industry, rich in heritage, and energetic in

shaping its future, Franklin is truly a

‘‘Small City on the Move.’’

Join me to proudly salute Franklin,

NH, the birthplace of Daniel Webster,

and the enterprising spirit that has enriched a community, the State of New

Hampshire, and our Nation.

Mr. CRAIG. Mr. President, 50 years

V–E DAY 1995

fago, U.S. forces, along with those of

our valiant and embattled allies, formally ended the victorious struggle to

contain a horrific evil that had spread

across the European continent. For

those Americans who attended the

ceremonies that marked the Nazi surrender, it was a solemn moment, for

the struggle had been long and bloody,

and the price to defend freedom had

come at a very high cost. For the world

there was joy, renewed hope of lasting

peace, and resolve to protect the freedom for which so many had offered up

their lives. Today many of those hopes

which are held deeply in the hearts of