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[Congressional Record Volume 141, Number 77 (Wednesday, May 10, 1995)]
[Senate]
[Pages S6370-S6414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                             CHANGE OF VOTE

  Mr. PACKWOOD. Mr. President, on rollcall vote 159 I voted ``no.'' It 
was my intention to vote ``yea.'' I ask unanimous consent I be 
permitted to change my vote. This will in no way change the outcome of 
the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.

           Amendment No. 629 to Amendment No. 690, as amended

         (Purpose: To eliminate caps on punitive damage awards)

  Mr. DORGAN. Mr. President, I would like to offer amendment No. 629. 
The amendment is at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from North Dakota [Mr. Dorgan] proposes an 
     amendment numbered 629 to amendment No. 690, as amended:

  The amendment is as follows:

       Insert at the appropriate place: ``Notwithstanding any 
     other provision of this Act, nothing in this Act shall impose 
     limitations on punitive damage awards.''

  Mr. DORGAN. Mr. President, the amendment which I have offered is not 
identical but nearly identical to the amendment I offered prior to 
cloture. The amendment deals with the punitive damage cap. The 
amendment I offered previously I offered to the Dole substitute. I now 
offer this amendment to the underlying bill.
  Very simply, my amendment would remove the cap on punitive damages 
that exists in the bill. The amendment that I offered previously was 
defeated by a vote of 51 to 49. I would like for the Senate to express 
itself on that issue in light of the activities on this legislation 
since the Senate voted on it. While I think there is merit in a product 
liability reform bill and while I think there is merit on both sides of 
this issue, I believe the legislation should be like the legislation on 
product liability we considered last year. That legislation came to the 
floor of the Senate and was voted on with respect to the last cloture 
vote without any cap on punitive damages.
  Last year, the bill that originated in the Commerce Committee and 
brought to the floor, did not include a cap on punitive damages. This 
year, the legislation, as it emerged in the Commerce Committee by the 
same authors, included a cap on punitive damages. I believe they were 
right last year and wrong this year on that particular section of the 
bill.
  I believe some reform necessary in this area, but I believe their 
best impulses and best instincts last year served them better than this 
year when they decided to impose an arbitrary cap on punitive damages.
  After all, the legislation requires you to provide clear and 
convincing evidence as a burden of proof that the harm caused was 
carried out with a--let me quote this--``conscious and flagrant 
indifference to the safety of others.'' If a plaintiff has gone through 
trial and provided clear and convincing evidence that harm was caused 
or carried out with a conscious and flagrant indifference to the safety 
of others, then I do not understand why someone would suggest we ought 
to have a cap on punitive damages.
  [[Page S6371]] The legislation that is before us contains a cap on 
punitive damages in several different steps. It is, as I understand it, 
two times compensatory damages to a maximum of $250,000, a distinction 
from that particular cap for small businesses, certain designated small 
businesses in the bill, and, third, a provision that a judge could 
increase the punitive damage award upon a petition by the plaintiff. 
That is my understanding of what is in the legislation that is before 
the Senate. My amendment says, notwithstanding any other provision of 
this act, nothing in this act shall impose limitations on punitive 
damage awards.
  Again and finally, let me say that this is the same position Senator 
Rockefeller and Senator Gorton had last year, no cap on punitive 
damages. And I think it is appropriate. The reason I think it is 
appropriate is we have changed the bar that you must get over in order 
to prove punitive damages. It requires clear and convincing evidence 
that the harm caused was carried out with conscious and flagrant 
indifference to the safety of others.
  I just do not understand how, if you meet that burden of proof and 
demonstrate conscious and flagrant indifference to the safety of 
others, you can say to a corporation worth several billions of dollars, 
it would cost less to pay awards than it would to fix the problems. A 
punitive damages cap is appropriate. I really believe the Senate would 
improve this legislation by adopting the very position the two managers 
of the bill had last year. Their first and best instinct was not to 
have a punitive damages cap then. I believe that is the position the 
Senate ought to adopt now.
  Mr. President, with that, I would hope, when we have another vote on 
this, the Senate will decide to eliminate the punitive damages cap. 
With that, I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, unlike the situation at the time at which 
the Senator from North Dakota presented this amendment a week or so 
ago, we now have a bill in the Chamber in which there is no cap on 
punitive damages. I say that not in triumph but in regret. I believe 
that one of the great vices at which legislation of this sort properly 
should be aimed is at creating some kind of relationship between the 
actual damages caused by a tort, caused by a wrong, and the damages 
that can be recovered as a result. But with the latest set of 
amendments here, we have permitted a judge on certain findings of 
egregious conduct to go beyond what juries are permitted successfully 
to impose in the way of punitive damages.
  The entire matter, Mr. President, is at one level an argument on 
philosophy but at another level it is a debate about the Constitution 
of the United States. The Supreme Court in several recent cases, while 
not setting a specific ceiling or cap on punitive damages itself, has 
spoken of serious constitutional questions caused by unlimited punitive 
damages, or by punitive damages that are not related in any rational 
fashion to actual damages found by a jury or determined by a court.
  In other words, the Supreme Court of the United States has invited 
the Congress to do exactly what I had hoped we would do more 
successfully than we have accomplished in this bill.
  But just to go over it again, we have said that the maximum punitive 
damages that can effectively be awarded by a jury are in an amount 
twice the total of all economic damages and all noneconomic damages 
that go for pain and suffering. And since those damages, in very 
serious cases of people being maimed for life, can well go into eight 
figures, and sometimes do, we have a very large potential remaining for 
punitive damages. But in addition to that provision, in the so-called 
Snowe amendment is a $250,000 figure when twice the total of economic 
and noneconomic damages would be less than $250,000, together with the 
right of a judge to go beyond even the Snowe formula where the judge 
feels that formula to be too limited not to permit proper punitive 
damages for particularly egregious conduct.
  So the Senator from North Dakota, in a number of respects, has 
already succeeded. There is no number. There is no specific formula 
which limits punitive damages.
  As I have said frequently, I think there should be. Working with the 
laws of my own State and a handful of other States where punitive 
damages are not allowed at all, where the cap is zero in most cases, we 
find no difference in the safety or carefulness of business enterprises 
in those States. No case has been proven for the efficacy of punitive 
damages as a deterrent, in any event. My own view is that the original 
limitation in this bill was an appropriate one, but that original 
limitation has twice been liberalized in the course of this debate. And 
I express the fervent hope that in concerning ourselves with the 
proposition that we should not permit absolutely unlimited discretion 
on the part of juries, we should not have no maximum sentence in civil 
cases for wrongs, that we will make the partial and halting move toward 
some kind of rationalization which is now contained in this bill.
  Mr. President, we are in a peculiar situation here this morning in 
that we have a potential of this amendment and one other to be dealt 
with and we do not have specific limitations on the amount of time that 
can be utilized for them. So I hope that, when either the Senator from 
West Virginia or the Senator from North Dakota next speaks, we can get 
an indication as to when they will finish to allow the other amendment 
to take place. There will be votes on any other amendments which come 
up, but we will be asking unanimous consent that those votes take place 
after closing arguments and before the vote on final passage. So the 
sooner we know how long these two amendments will be debated, the 
earlier we will be able to predict to our Senators who are not here 
when they will have to come back to the floor to vote.
  Mr. ROCKEFELLER addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, a couple of points. I agree with what 
the Senator from the State of Washington said in argument to this 
amendment.
  Just for the edification of my colleagues--this fact has not been 
brought out, I do not believe, in the debate--we have removed caps, but 
people do not realize, I think, often that there are caps on some 
rather extraordinary crimes in the Federal statutes. I will give some 
examples.
  Many Federal criminal fines, even for particularly egregious crimes, 
do not exceed $250,000. And that was our original proposal, economic 
damages times three or $250,000, whichever is greater.
  Listen to this. If you tamper with consumer products and it results 
in death, the Federal statute limitation is $100,000 for punitive 
damages. If you retaliate against a witness, it is $250,000. If you 
assault the President, it is $10,000. If you rob a bank with the use of 
a deadly weapon, the punitive damage limit cap is $10,000. Sexual 
exploitation of children for an individual, $100,000; in terms of an 
organization--however that would work out--$200,000. For treason--for 
treason--$10,000.
  Now I say that in no way to defend caps, because the Senator from 
West Virginia has fought for the removal of caps and we have, I 
believe, been able to do that.
  I would, in closing, remind my esteemed friend and colleague from the 
State of North Dakota, who is as principled a person as I have ever 
met, that the Senator from the State of Washington and I have so 
bloodied ourselves in making sure we come back with effective removal 
of caps that we have said, and that we have been unable to obtain 
unanimous consent in this body to, in effect, make the cap total and 
complete because of a matter of 60 seconds in filing the amendment, 
that if we bring back the amendment with anything but the cap removed, 
that we will vote against the motion for cloture should there be a 
filibuster on the conference report.
  So I really do believe that we are operating not only in good faith 
but in good substance on removal of the cap. I hope, therefore, that 
what I consider a redundant amendment by the Senator from North Dakota 
would be defeated.
  I thank the Chair and yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
   [[Page S6372]] Mr. DORGAN. I shall not prolong the debate. When I 
have completed with my remarks, I see no reason that you could not 
enter a unanimous-consent request to have a vote. I have no objection 
to a vote.
  First, let me make a couple of comments. The Senator from Washington 
said, and I think the Senator from West Virginia also seemed to say, 
the way the bill is constructed, there really are not caps on punitive 
damage awards. If that, in fact, is the case, then I would think that 
they would have no objection to accepting language that says there are 
no caps on punitive damage awards. That is what my amendment says.
  That was the Commerce Committee position last year on this bill. It 
was the right position. We raised the bar on what you must prove to 
receive a punitive damage award. Once we raised the bar, we felt it 
inappropriate to include caps. Now this year they want to include caps.
  When the two Senators say there are not really caps, I understand 
what they are referencing. But, honestly, I think the claimants will 
find there are caps. There is $250,000 written in. That is written 
there for a reason. Because, under ordinary circumstances, that will be 
a cap, two times compensatory damages.
  Let me make two other quick points.
  Mr. ROCKEFELLER. Will the Senator yield?
  Mr. DORGAN. I am happy to yield.
  Mr. ROCKEFELLER. Just as a point of clarification, the reason that 
the $250,000 was put in there in its new configuration was not in terms 
of the caps. We made certain that there was an alternate ceiling. So 
that if the economic damages and the noneconomic damages did not appear 
to arrive at $250,000 multiplied by two, that the claimant would be 
guaranteed the $250,000. It is an alternate ceiling.
  Mr. DORGAN. If the Senators were building a floor rather than 
creating a cap, I say, God bless the floor and let us just get rid of 
the cap. Let us vote for my amendment and we will solve this.
  But, let me make two other comments. First, if a company, a large 
company with vast resources, produces a product or a device that will 
be used in the field of medicine discovers, during its testing, the 
product is sufficiently faulty in its operation and it may cause some 
deaths; if the company fails to disclose that information and the 
product goes to market and some unsuspecting patient lies on a hospital 
gurney going into the operating room and dies during a routine 
procedure and later the family discovers that person died because the 
product used was faulty and the company knew it, I suppose they would 
want to bring a lawsuit against the company. In that case, I think 
society would want that company to be punished sufficiently so that 
other companies would understand you cannot do that, that kills people; 
you ought to be punished for it. You ought not get a slap on the wrist, 
you ought to be punished for it.
  That is what punitive damage awards are for. The case I just 
mentioned is a real case, and there are plenty of cases like that.
  There is not an epidemic of punitive damage awards in this country. 
It happens rarely because it requires a substantial burden of proof, 
and we have increased that burden. There is no litigation crisis with 
respect to punitive damages. In 25 years, the survey that I have seen--
1965 to 1990--says that 355 punitive damages were awarded in State and 
Federal product liability lawsuits nationwide. This is a country of 250 
million people; 355 punitive damage awards nationwide. Of those awards, 
35 are larger than $10 million. All but one of these awards were 
reduced, and 11 of the 35 were reduced to zero.
  The point I make is, this is not an epidemic or crisis. Punitive 
damage awards have not been escalating out of control. But I do think 
there are certain circumstances where an enterprise worth billions 
makes a conscious decision that we will risk whatever awards exist out 
there because we will gain more profit by selling this, knowing the 
defects, than we will risk paying the damages to someone injured or 
killed by that product.
  My own view is that there is merit on both sides of the debate on 
product liability. That is why I have decided to support and have 
supported moving forward, increasing the standards, trying to shut down 
some of the litigation in this country, because there is too much 
frivolous litigation, as a matter of fact. The country is just prone to 
litigate almost everything. We have too many lawyers in America. And we 
keep training more and more every year.
  I think there is merit to the position of the two Senators, that we 
ought to do something in a reasonable way on product liability. I think 
there is no merit to putting a cap on punitive damages. There was not 
merit to it last year. They did not have it in the bill last year. They 
changed their minds. Their first instinct is correct. Always stick with 
your first instinct. My amendment will allow us to stick with your 
first instinct. If the Senate agrees, we will live with your victory of 
last year deciding there shall not be punitive damages in the product 
liability bill.
  Mr. President, with that, I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Very briefly, Mr. President, I think that Members should 
know that this amendment by the Senator from North Dakota is all-
encompassing and that it overrides the amendment which was supported by 
the vast majority of Members of the Senate that does have strict limits 
on punitive damages in cases involving small businesses, businesses 
with fewer than 25 employees and individuals of relatively modest means 
whose total assets are less than half a million dollars.
  So they, after having been the beneficiary of the last week of that 
very careful protection, protection against absolute bankruptcy, should 
the Dorgan amendment be adopted, they will be thrown into a situation 
in which absolutely unlimited punitive damages can be awarded against 
them. It is important for Members to understand that.

                      Unanimous Consent Agreement

  Mr. GORTON. With that, Mr. President, now having cleared this with 
the Democratic side, I ask unanimous consent that the vote on, or in 
relation to, the Dorgan amendment, or in relation to any other 
amendment in order, and final passage occur back to back at the 
conclusion of the previously allotted time with the first vote limited 
to 15 minutes and the other consecutive votes in the voting sequence 
limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, I was going to ask for the yeas and nays.
  Mr. GORTON. I move to table the Dorgan amendment and ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. HEFLIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. HEFLIN. Mr. President, I rise to speak against passage of this 
bill. I realize that, with cloture having been invoked, my words may 
not change many votes, but maybe they might change one or two. And then 
I feel like maybe my remarks, in a strong adversarial posture, might 
appeal to the reason of Senators to encourage them to eliminate some of 
the grossly unfair provisions that are in this bill.
  I might say in the beginning that I believe the difference between 
the caps that are put in this bill and the fact that there were no caps 
in the last bill reflects a change in the makeup of the Senate, as a 
result of last November's elections.
  There are caps in this bill with an additur provision whereby a judge 
could increase a jury's award of punitive damages. Clearly, that has 
already been ruled on by the Supreme Court as being unconstitutional. 
The case of Dimick versus Schiedt was decided in 1935 on that issue and 
makes the additur provision unconstitutional.
  In my judgment, there are a number of other unconstitutional elements 
that should be pointed out. One is the matter pertaining to the role of 
the U.S. circuit courts of appeal being able to determine controlling 
precedent on the State courts within the jurisdiction of the Federal 
circuit.
   [[Page S6373]] 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, has been construed to mean that the State courts 
must follow the decision of the Supreme Court and not the lower Federal 
courts.
  The case of Erie versus Tompkins basically says that the Federal 
courts, in diversity cases, shall follow the substantive law of the 
State. There is no question that the Federal courts, through its 
rulemaking process and Congress, pursuant to its powers under the Rules 
Enabling Act, control in regards to procedural matters. I just want to 
mention that.
  I want to direct the Senate's attention to a chart that Senator Levin 
produced and used in a previous argument. I thought it was an excellent 
presentation, and I ask unanimous consent that this table be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  PREEMPTION OF STATE PRODUCT LIABILITY LAWS UNDER S. 565, AS REPORTED  
------------------------------------------------------------------------
                                                  State laws  State laws
                                                     more        more   
                                                   favorable   favorable
                                                      to          to    
                                                  plaintiffs  defendants
------------------------------------------------------------------------
Liability of product sellers....................  Prohibited  Allowed.  
Alcohol or drug abuse defense...................  ......do..      Do.   
Misuse or alteration of product defense.........  ......do..      Do.   
Punitive damage limitations.....................  ......do..      Do.   
Statute of limitations..........................  ......do..  Prohibited
                                                               .        
Statute of repose...............................  ......do..  Allowed.  
Joint and several liability (non-economic         ......do..      Do.   
 damages).                                                              
Biomaterials provisions.........................  ......do..      Do.   
------------------------------------------------------------------------

  Mr. HEFLIN. Mr. President, this is chart entitled ``Preemption of 
State Product Liability Laws,'' and it has a column of State laws more 
favorable to plaintiffs and State laws more favorable to defendants and 
what happens as regards preemption under this legislation. First as to 
the liability of product sellers, that is retailers, this bill 
prohibits any laws more favorable to plaintiff, but it allows laws more 
favorable to the defendants. Second, with respect to the alcohol or 
drug abuse defense, the bill prohibits State laws more favorable to 
plaintiffs but it allows State laws more favorable to defendants. 
Third, as to the misuse or alteration of product defense, the bill 
prohibits State laws more favorable to plaintiffs but allows State laws 
more favorable to defendants.
  Punitive damage limitations are treated the same way--unfavorable as 
to plaintiffs and favorable as to defendants. As to the statutes of 
limitations, that is the one and only provision that really exists in 
this whole bill is as to uniformity.
  With regard to the statute of repose provision of 20 years, this bill 
preempts State laws more favorable to plaintiffs but not those State 
laws more favorable to defendants.
  On the issue of eliminating joint and several liability for 
noneconomic damages, this bill preempts State laws which are more 
favorable to plaintiffs but allow State laws which are more favorable 
to defendants. And you have the biomaterials provisions which are 
treated in the same manner. I think this chart Senator Levin prepared 
is a very excellent chart, and I hope my colleagues will take time to 
reflect upon it.
  Now, I want to also direct my colleagues attention to the potential 
costs of the bill, an issue which I hope will be investigated, because 
I do not believe CBO or anyone else has looked at this matter very 
closely. There is language in the bill that includes within the scope 
of the word ``claimant'' a governmental entity which includes the 
Federal Government and all of its entities.
  I do not think there is any question that the purpose of this bill is 
to save product manufacturers money. The Government, as a claimant, 
would be bringing suit against a defendant, and if the purpose of the 
bill is to save money, it means it saves money for the defendant, for 
corporate America, when the Federal Government brings suit.
  So the cost to the Government has never been calculated, and there 
are so many things that are involved, particularly like the statute of 
limitations and statute of repose as to helicopters, tanks, NASA 
equipment, and all of GSA's equipment, and every conceivable way 
regarding which products are purchased by the Government. The issue of 
costs to the Government ought to be looked at more closely in my 
judgment.
  Now, there is also a provision dealing with foreign nationals and 
foreign governments, and I realize that this is under statutory 
construction, that nothing in this title can be construed to preempt 
State choice of law rules with respect to claims brought by a foreign 
nation or a citizen of a foreign nation and, in effect, 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 grounds of inconvenient forum.
  In the world of terrorism today, these issues ought to be addressed. 
Hopefully, in the terrorist bill that will come before the Senate in 
the coming weeks, we will give some consideration regarding this issue. 
The Senate ought to make certain that the provisions of this product 
liability bill do not in some unintended way give some advantage to a 
terrorist entity.
  I think one of the most unfair provisions in this legislation is the 
provision that says that an injured party cannot introduce in the 
compensatory damage part of a trial elements of conduct that constitute 
a cause of action for punitive damages. Therefore, as I have pointed 
out before, gross negligence, recklessness, wantonness, intentional 
conduct, and all activity of a similar nature, is prohibited from being 
considered in the main trial for compensatory damages. To me, that is 
one of the most unfair provisions that exist in this bill.
  The biomaterials section and the definition of implants therein, 
where there is language regarding coming in contact through a 
surgically produced opening and coming in contact with bodily fluids or 
tissue, in my judgment, is a wide-open situation for a great deal of 
problems pertaining to component parts of the implant, and I urge that 
that be carefully reviewed.
  Some of these issues which I have just reviewed--and I hope some 
people in the White House are listening to me as I speak about this--
ought to be carefully considered not only by the Department of Justice 
and every agency of Government that could be affected. Certainly, the 
FDA ought to consider the language that is being placed into this bill 
as to matters dealing with the human body in that biomaterial 
definition of ``loss.''
  Of course, the very basic unfairness of the bill begins with the fact 
that commercial loss, which is a business loss, is excluded from being 
within the purview of this bill.
  Of course, I have given illustrations on the floor about the fact 
that if a factory blows up and people that are injured from the faulty, 
defective product, they come under this bill; but for commercial law, 
they do not.
  Some say the commercial loss exemption might be applied to 
individuals. I remember there was a ``Dear Colleague'' letter 
circulated on this issue. I would imagine in that instance we would 
find it would be rarely ever used, we might find out of 2,000 employees 
in a factory where a boiler blows up, we might find that there might be 
one moonlighting sock salesman. That would be the only way that we 
would have, basically, any commercial loss that would occur to that 
individual.
  Now, most of all of the business litigation and most of the punitive 
damages awards that have come about are business or commercial losses. 
The case of Pennzoil versus Texaco was, for example, probably the 
largest punitive damages case that has ever been awarded, and it was a 
commercial litigation where business was suing other business.
  There are other provisions throughout the bill that are very unfair, 
and I have listed them in previous arguments. I hope that this bill 
will be carefully reviewed in conference and we will see the removal of 
a great number unwise provisions.
  I just appeal to the conscience of the people that are involved who 
will be in conference on this, and appeal to the White House to look at 
this matter when it reaches conference between the House and Senate. It 
just shocks the conscience to see the unfairness that exists in all the 
various provisions of this bill and I hope that I have pointed out the 
key issue very clearly for my colleagues to consider. Mr. President, I 
urge that we vote no on final passage.
   [[Page S6374]] Mr. ROCKEFELLER. Mr. President, I encourage my 
colleagues would vote aye on this bill.
  Mr. President, while I had my doubts, I have believed for a long time 
that the Senate would eventually come to this point. Inexorably, it 
would happen. After many years of debate, many years of filibusters on 
this Senate floor, this body finally has a chance to cast its vote for 
what I think is responsible, balanced punitive damages tort reform.
  I think the vote yesterday was historic. The Senate, for the first 
time, broke the log jam that has blocked action on what I referred to 
last night as a deadly serious issue, and the Senate has blocked that 
for years and years. Now the Senate has said, ``proceed.''
  My belief that this time would come is based on several points. First 
and foremost, the problems with our punitive damages system cry out for 
solutions. We are here for that purpose. We were elected to address the 
problems that require attention and action. We have done so to the best 
of our ability.
  In this case, because products by definition, virtually, involve 
interstate commerce--that point has been made but not accepted, I 
suppose, by all--70 percent of everything we make in West Virginia is 
sold in another State. By definition, States cannot preoccupy this 
field. This is precisely an area where Congress needs to step in.
  Each State really cannot fix the flaws of the country's interstate 
product liability system. That is because the biggest problem involves 
the patchwork--varied, unpredictable nature--of every State in the 
union having different product liability rules and standards.
  Businesses that sell or manufacture products are subject to the 
endless confusion, the hassle, the court costs, the wasteful costs, in 
general, of this maze.
  Consumers who want safe products want more products that will 
increase their safety and cannot get them. Consumers who are victims of 
defective products and cannot get recompensed for an average of 3 
years, are also hurt by the delays and the costs that stem from the 
product liability system. So businesses hurt, consumers are hurt. We 
have a problem.
  My interest in these problems really stem from seeing the way they 
hurt my own State of West Virginia. Manufacturers, small businesses, 
the fear, consumers, workers, and the victims of defective products.
  The Senator from North Dakota several moments ago said that there has 
only been x numbers of liability cases in the last 2 years, 10 years 
whatever. That argument has been used many, many times. It is a very 
misleading, false argument. It is not the number of punitive damages 
awards that have been granted. It is the threat which exists in every 
case, in every suit, of which there are unending numbers in this 
litigious society.
  It is the threat of litigation that is the problem and has crushed so 
much innovation and research and development which would help 
consumers.
  My interest, again, in West Virginia comes from knowing people who 
directly have suffered from this and have gone out of business from 
this, as well as victims who have been hurt by this. I have seen the 
victims who came back from the Persian Gulf war with something called a 
mystery syndrome illness which the Defense Department says does not 
exist, but I see these people and I know it does exist.
  When we see the people, and we see the individuals and we see they 
are hurt, we want to help them. To put it simply, then, the product 
liability system is broken. The Congress and the President must have 
parity.
  Second, I have believed that a product liability reform bill would 
eventually pass this Senate because of the way some Members have 
approached the effort to cause it to pass, which I believe it will.
  Members of both sides of the aisle have been troubled by the problems 
with product liability. Some time ago the bipartisan team work 
necessary to enact legislation began to form. In the past 4 years, the 
Senator from the State of Washington and I have had the job of leading 
that team. The Senator from Washington and I made a pact: To promote a 
balanced, moderate, serious, legislative remedy to these problems in 
product liability, tort reform.
  We let the businesses interested in reform know that the consumers 
and victims had to be the winners of reform, too. We made that very 
clear and have made that very clear up until the very last moments.
 We have kept making it clear.

  We explained to the general public that the harm done to business by 
the problems with product liability also hurt the general public, which 
is called the rest of the country. They cost jobs, they stifle the 
innovation needed to make safer drugs and products, and they impose an 
enormous hidden tax on every American.
  That is why we devised a bill to deal with the range of problems that 
affect different sectors of the society, and we did it fairly. In this 
legislation we promote quicker settlements through alternative dispute 
resolution. We insisted on that so victims get compensation faster. We 
give the victims of harm done by substances like asbestos enough time 
to seek relief by saying the clock can only run after they discover the 
harm that they are suffering and, again, the reason, the cause of the 
harm they are suffering.
  We have made a number of adjustments in the way businesses are made 
liable for the impact of products where the rules are not fair to them.
  But my point is also that this bill reflects the balance and the 
moderation that emerges when Members of both sides of the aisle choose 
to work together, choose to trust one another, choose to accommodate 
the diverse concerns that arise when a complicated topic like product 
liability comes up.
  We are not seeing a lot of bipartisanship in the legislative process 
these days, and it is sad. It is more than sad for the country, it is 
grievous. I find all of that very troublesome. I think it is 
essentially a disservice to the country. We are a diverse nation with a 
Government designed to represent our differences and built with checks 
and balances on one another. We should draw on the strength of that 
diversity. Democrats and Republicans in the Senate should spend more 
time, I think, working together on the country's problems, working out 
solutions that will last and that will take root.
  I think we do that in this bill. And when we do have bipartisan 
cooperation and it works, it only encourages us to do more, I hope. 
That is why the Senator from Washington and I formed the team to deal 
with the problems of product liability, and we intend to maintain that 
bipartisanship until we see a bill signed into law sometime later this 
year.
  Finally, my belief that product liability legislation would pass has 
been based on the talent and the leadership that have been invested in 
this effort. Many Members of this body have contributed to this 
arduous, difficult effort. Senators Dodd and Lieberman have been 
staunch allies, and their staffs, Tony Orza and Nina Bang-Jensen. 
Senators on the other side of the aisle, from the majority leader to 
the chairmen of the Commerce and Judiciary Committees, have played 
essential roles in this. It is impossible to fully explain how much I 
respect and appreciate the Senator from Washington, Slade Gorton. I 
think he stands out for, first of all, his acumen, his amazing mind, 
his tenacity, the wisdom of his counsel, his calmness under substantial 
fire, and his commitment to reform.
  The staff who have assisted in this effort I think deserve medals for 
their valor and service and for their, by the way, exhaustion. On 
Senator Gorton's staff, Lance Bultena and Trent Erickson have been 
steady, quiet, dogged, and perfect in helping us work this through.
  Assisting me, I cannot thank enough, and I would need to start with 
Tamera Stanton, who is my legislative director who sits at my left as I 
speak, who masters all subjects with tenacity and with understanding, 
is skillful in her sense of nuance, strategy, politics, and policy; 
Ellen Doneski, who does not know how to stop working, and as a result 
never does stop working and accomplishes incredible, amazing things, 
often many at the same time, so she just never stops working; Jim 
Gottlieb and Bill Brew, both in fact lawyers, which we need in our 
office. And they have both been brilliant, skillful, dogged, and 
successful. Without their labors and their incredible talent we would 
not be at this point.
   [[Page S6375]] I do not want to take the body's time, but I just 
want to make the point again that, if you pick up the paper, you will 
read Senator Gorton's name. If you listen to the television, you will 
hear his name and Senator Hollings' name. And they can both do all of 
this on their own, pretty much, anyway. But actually it does not quite 
work out that way. Just as Senator Hollings, Kevin Curtin, and others--
it is the public that needs to know, while they are in their orgy of 
dislike for the Federal Government, that there are incredible people 
called staff of the U.S. Senators who make possible what it is that we 
do.
  I want to acknowledge with respect the persistence and commitment of 
the flag-bearers who took the other side on this issue. The Senators 
from Alabama and South Carolina are daunting in their own legal minds 
and ferocity when it comes to this issue--both of them. They are 
different in many ways, the same in many ways, but both of them are 
extraordinary in their commitment to their beliefs. I hope they would 
agree it was a fair and open debate. They prevailed in the past without 
exception. It worked out the other way this time.
  This has not been an easy issue for anybody involved. The legal 
system is a very serious part of our national fabric and life. The 
rights of every American are fundamental and are not to be tampered 
with easily. I have always felt that, as I have fought for product 
liability reform, in a sense I restate my pledge to navigate the 
remainder of the legislative process with a deep commitment to the 
principles of fairness and justice.
  But I remain absolutely sure that it is time to fix this broken part 
of our legal system, and I think we have done a lot of it. The country 
is saddled with costs, with waste, with problems that can be eased with 
the reforms in this legislation.
  The PRESIDING OFFICER (Mr. Santorum). The time of the Senator has 
expired.
  Mr. ROCKEFELLER. Mr. President, I ask for an additional 60 seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. I am proud to give the Senate a chance, finally, to 
cast its vote on a balanced legislative remedy. I am relieved we 
restored a bill simply dealing with product liability and with the 
important changes worked out in the final hours that represent the 
bipartisanship and the balance that we sought from the beginning of 
this effort.
  I am confident that President Clinton will sign this bill with 
whatever perfections we can make. I hope we will soon see the benefits 
of reform and demonstrate to the skeptics that the changes are in the 
entire Nation's interests.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, first a procedural announcement. Thirty 
minutes remains under the order with respect to debate on product 
liability. Senators in their offices, therefore, should be on notice 
that approximately at 11:40 there will be a vote on my motion to table 
the Dorgan amendment, followed immediately by a vote on final passage 
of the product liability bill with, we think, the substitute adopted by 
voice vote. So Members should be prepared to come to the floor at or 
shortly after 11:40.
  On a second matter, in which I know I am joined by my colleague from 
West Virginia, regrettably, due to the inability of the Senators from 
Washington and West Virginia to get unanimous consent to make one 
additional change in their proposal, the so-called new trial provision 
after an additur remains in this bill.
 The Senators from West Virginia and Washington have pledged that the 
bill will not be presented by them to this body with that provision in 
it, and that pledge remains.

  Other than that, this bill is the work of many years of effort 
culminated in this Congress, as in the last Congress, by the joint 
efforts of the Senator from West Virginia and myself, and of many 
others whom I will mention after we have had a final vote. Together, 
with the input from Members on both sides of the aisle, I am confident 
that the bill will pass and that it will represent a significant step 
forward.
  Mr. President, one other comment that I make as a sponsor and one of 
the people who drafted this bill in the punitive damages section, we 
included an additive provision at the request of the Department of 
Justice of the United States, with the assurance that the provision is 
constitutional. That opinion, in my view, is correct. Such provisions 
are found in the laws of many States. If a court should, however, find 
the additive provisions to be unconstitutional, it is our intention 
that the remainder of the punitive damages provision will stand and 
that only the additive provision which is now found in section 
107(b)(3) would be severed.
  Mr. President, one argument against congressional legislation in this 
field, which has been raised by almost all of those who have come here 
to speak against it, is that we should not interfere in the Federal 
system with the laws of the 50 States. It is a curious argument as it 
is generally advanced by those Members of this body who are most 
anxious to interfere with the prerogatives of the States in many areas 
for which there is no explicit constitutional warrant. This, however, 
is a case in which congressional legislation is expressly warranted by 
the Constitution, and may very well have been anticipated, or would 
have been anticipated had they known what the economy of the United 
States would look like in the late 20th century, by those who wrote the 
Constitution itself. One of the principal reasons for the 
Constitutional Convention was the chaos that attended interstate 
commerce among the 13 States after the close of the War of the 
Revolution and before the adoption of the Constitution.
  So under article I, section 8, clause 3, the interstate commerce 
clause, the Congress is invited, is given plenary power over interstate 
commerce. Of course, most of the products with which this bill deals 
are made of materials that arrive in interstate commerce and are sold 
after they are manufactured in interstate commerce, and a far greater 
degree of uniformity that is now in this bill would be constitutionally 
warranted. The compromises in this bill are in certain cases political 
and in other cases highly principled attempts to provide a degree of 
predictability and uniformity which will lead to more economic 
development, greater jobs, and better products for consumers with the 
very real history of local control over our courts and over our 
litigation. But as long ago as in the Federalist Papers, Alexander 
Hamilton made it clear that one of the key purposes of the Constitution 
was to prevent interstate commerce from being, and I quote him: 
``Fettered, interrupted, and narrowed'' by parochial State regulations.
  That, regrettably, is exactly what we have, particularly in that 
handful of States, often in rural counties, in which we find repeated 
huge punitive damage awards, almost invariably entered against out-of-
State defendants or out-of-State corporations in a way which fetters, 
interrupts, and narrows interstate commerce by discouraging research 
and development and discouraging the marketing of new products. We have 
seen that happen in instance after instance in which companies large 
and small have found it improvident to develop new products to cure 
previously incurably diseases or to solve problems in our society 
because they might have an adverse impact on some individual, and that 
individual might sue and that individual might persuade a jury in 
someplace or another to award punitive damages in an amount that would 
make it utterly unprofitable ever to have entered that business in the 
first place.
  Perhaps worse, and perhaps a greater interference with interstate 
commerce, is successful defense litigation where large companies find 
that they have spent tens of millions of dollars successfully defending 
against product liability litigation over products, that gross price of 
which is far less than those legal fees. So they say, ``Why produce 
parts for implant into the bodies of people of the United States, as 
much good as those things do?"
  It is our hope to make a modest step forward in creating a balance, 
not by denying any person the right to go to court, not by limiting the 
actual damages that any individual can receive for an act which is the 
responsibility of the individual or company which is called upon to 
make payment, but to see to it that there are fewer arbitrary 
 [[Page S6376]] judgments; that less of the time defendants are 
required to pay for the negligence or for the acts of others.
  Mr. President, a day or so ago, the Senator from California [Mrs. 
Boxer], argued at length with respect to the McCain-Lieberman portions 
of this bill on biomaterials and that corporations would be allowed to 
set up shell subsidiaries and protect themselves from liabilities.
  That concern was raised in the Commerce Committee by the Senator from 
Nebraska [Mr. Exon], and expressly taken care of by an amendment that 
will allow piercing that corporate shell and not preventing the 
corporation, which is actually in control and which has assets, from 
protecting itself from the consequences of its own negligence.
  But basically, Mr. President, we now have a product liability bill 
which includes a statutory repose for products that are used in a 
business enterprise. We have a limitation on joint liability with 
respect to noneconomic damages--that is, pain and suffering--under 
which we simply say that you are responsible as a defendant for the 
degree to which you have harmed the claimant, but that a defendant that 
is only 10 or 20 percent responsible for these damages is not going to 
be charged for the entire verdict simply because some other defendant 
cannot be reached.
  We have imposed some modest rationality on the award of punitive 
damages. My colleague here this morning came up with one of the best 
sets of examples I have ever heard, something which has not been 
brought before the Senate in this 3 weeks, when he points out that for 
all practical purposes every Federal criminal statute which includes 
the right to a fine as a part of the sentence has a limitation on those 
fines, and yet to be subjected to a criminal fine one must be found 
guilty beyond a reasonable doubt. One has all of the protections of the 
fifth amendment against self-incrimination. And yet here we, the 
Congress of the United States, have set a maximum fine, $10,000; 
maximum fine, $25,000. I think the maximum fine they found was 
$250,000.
  We vote for these criminal penalties, and yet our opponents tell us 
how outrageous it is in a civil case, with no fifth amendment rights, 
no standard of proof beyond a reasonable doubt, how unreasonable it is 
to set any limit on what a jury can do in the way of punishment--
punishment over and beyond all of the damages that are actually proven 
by the claimant in a particular case.
  Mr. President, this bill is not a perfect bill, in my view, and it is 
not a perfect bill because it does not limit that form of arbitrary 
punishment sufficiently. But it does begin down a road which we have 
been invited to take by the Supreme Court of the United States which 
says without having set standards itself that there are constitutional 
implications to unlimited punitive damage verdicts. And so here we have 
an experiment. We attempt to balance the rights of trial lawyers 
against the necessity for a better and more effective economy, one in 
which people are encouraged to innovate, to create new jobs and to 
create new products for the American people.
  We have been at this for a long time. I know from personal experience 
that there were product liability bills in the Senate and in the 
Commerce Committee on which I serve as long ago as 1982. I suspect that 
they existed before that time. I can remember one product liability 
bill in that committee against which I voted myself because it seemed 
to me it went too far, that it was unbalanced on the other side. This 
one is not, Mr. President. This one is a good piece of legislation. It 
is something that will help the American economy and help the cause of 
balanced and appropriate justice.
  Finally, Mr. President, it is a precedent in a sense but it has one 
preceding element. A year or so ago, we passed a very modest product 
liability bill for piston driven aircraft. The legal system, the legal 
system defended by the other side here, had destroyed that business, 
reduced its production by 95 percent. A modest change in the law at the 
Federal level has already contributed to the recovery, the beginning of 
the recovery of that business--a dramatic illustration that the horror 
stories are not true and that the promises made by the proponents of 
this litigation have been proven to be valid by history. If my 
colleagues will vote for this, if we get it accepted by the House and 
signed by the President of the United States, this country will be 
significantly better off.
  Mr. HOLLINGS addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Oh, so reasoned, says my distinguished colleague from 
Washington. It is so balanced. GOPAC has taken over. Gingrich is the 
Speaker, and there is a contract. Look at the elements of this 
contract. Part and parcel either by way of amendments here or in bills 
on the House side or what they have in mind is not just product 
liability but they have limiting pain and suffering damages; they have 
limiting the punitive damages; they tried to fit in medical 
malpractice; they tried to then limit plaintiff's attorney's fees. They 
voted against the fees on the defendants. They were not making enough. 
They ought to make more than $133,000 a year. They tried to limit 
punitive damages in all civil cases. The English rule is in the bill 
over on the House side; the alternative dispute resolution with the 
plaintiff having to pay all the fees; the securities litigation, the 
FDA and FAA rules where they would bar damages if the product is 
approved by either of those entities; they exempt the medical devices 
and the doctors, a provision about frivolous suits, statutes of repose; 
restricted submission of evidence is in this bill, in the House bills, 
bifurcation of the trials, both actual and punitive damages. Then they 
even put in an unconstitutional additur provision here.
  Like the sheepdog had tasted blood, with product liability they are 
going to gobble up all the other rights and say it is so reasoned and 
so balanced.
  One exemption they have from all this, Mr. President. One exemption--
the manufacturers, the very crowd that through this bill continue to 
put in the amendments and everything else. They exempt the manufacturer 
and apply this all to the injured party and have the unmitigated gall 
to come up here and say they are for consumers. Why, heavens above. 
Come on.
  I ask unanimous consent to include in the Record the State-based 
organizations opposed to this legal reform bill.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

State Based Organizations Opposed to ``Legal Reform'' in the Senate (S. 
                                  565)

       Alaska PIRG.
       Arizona Citizen Action.
       California Citizen Action.
       Center for Public Interest Law at the University of San 
     Diego.
       California Crime Victims Legal Clinic.
       Fair Housing Council of San Gabriel Valley.
       Colorado Steelworkers Union Local 2102.
       Coalition of Silicon Survivors.
       Colorado DES Action.
       Denver UAW.
       Colorado ACLU.
       Denver Gray Panthers.
       Colorado Public Interest Research Group (CoPIRG).
       Colorado Clean Water Action.
       Colorado Senior Lobby.
       Connecticut Citizen Action Group.
       ConnPIRG (Connecticut Public Interest Research Group).
       Delaware Coalition for Accountability and Justice.
       Delaware AARP.
       Delaware Council of Senior Citizens.
       Delaware AFL-CIO.
       Delaware Federation of Women's Clubs.
       Delaware Women and Wellness.
       Delaware Breast Cancer Coalition.
       Building Trades Council of Delaware.
       UAW Local 1183--Delaware.
       Delaware Sierra Club.
       Delaware Audubon Society.
       Save the Wetlands and Bays--Delaware.
       Georgia Consumer Center.
       Idaho Citizens Action Network.
       Idaho Consumer Affairs, Inc.
       Illinois Council Against Handgun Violence.
       Citizens Action Coalition of Indiana.
       Planned Parenthood of Maryland.
       Law Foundation of Prince George's County.
       Maryland Sierra Club.
       Teamsters Joint Council No. 62.
       UFCW Local 440.
       White Lung Association & National Asbestos Victims.
       Sexual Assault/Domestic Violence Center, Inc.
       IBEW Local 24.
       Maryland Clean Water Action.
       Maryland Employment Lawyers Association.
       Health Education Resource Organization (H.E.R.O.).
       Environmental Action Foundation.
       [[Page S6377]] Massachusetts Consumer Association.
       Minnesotans for Safe Foods.
       Missouri PIRG.
       Montana PIRG.
       Nebraska Coalition for Accountability & Justice.
       Nebraska Farmers Union.
       Nebraska Women's Political Network.
       Nebraska National Organization for Women.
       United Rubber Workers of America, Local 286.
       Communications Workers of America, Local 7470.
       Nebraska Head Injury Association.
       Nebraska Center for Rural Affairs.
       White Lung Association of New Jersey.
       Consumers League of New Jersey.
       Cornucopia Network of New Jersey.
       New Jersey DES Action.
       New Jersey Environmental Federation.
       New Mexico Citizen Action.
       Essex West Hudson Labor Council.
       Uniformed Firefighters Association of Greater New York.
       New York Consumer Assembly.
       Niagara Consumer Association.
       North Carolina Consumers Council.
       North Dakota Public Employees Association.
       North Dakota DES Action.
       North Dakota Clean Water Action.
       Dakota Center for Independent Living.
       North Dakota Breast Implant Coalition.
       North Dakota Progressive Coalition.
       Laborer's International Union, Local 580.
       Boilermaker's Local 647.
       Ironworkers Local 793.
       United Transportation Union.
       Sierra Club, Agassiz Basin Group.
       Plumbers & Pipefitters Local 338.
       United Church of Christ.
       Teamsters Local 116.
       Teamsters Local 123.
       Plumbers & Pipefitters, Local 795.
       Workers Against Inhumane Treatment.
       Ohio Consumer League.
       Oregon Fair Share.
       Oregon Consumer League.
       Pennsylvania Citizens Consumer Council.
       Pennsylvania Institute for Community Services.
       SmokeFree Pennsylvania.
       South Dakota AFSCME.
       East River Group Sierra Club.
       Black Hills Group Sierra Club.
       South Dakota State University.
       IBEW, Local 426.
       South Dakota DES Action.
       South Dakota Peace & Justice Center.
       Native American Women's Health & Education Center.
       Native American Women's Reproductive Rights Coalition.
       South Dakota AFL-CIO.
       UFCW Local 304A.
       Yankton Sioux Tribe.
       South Dakota Coalition Against Domestic Violence.
       South Dakota Advocacy Network.
       South Dakota United Transportation Union.
       South Dakota United Paperworkers International Union.
       Texas Alliance for Human Needs.
       Texas Public Citizen.
       Vermont PIRG.
       WASHPIRG (Washington Public Interest Research Group).
       Wisconsin PIRG.
                                                                    ____

                                               Citizen Action,

                                   Montgomery, AL, April 26, 1995.
     Hon. Richard Shelby,
     U.S. Senate,
     Washington, DC.
       Dear Senator Shelby: On behalf of our members, I am writing 
     to thank you for your past opposition to federal ``tort 
     reform'' legislation and to offer our support in your efforts 
     this year.
       As you know, Governor Fob James, in his April 18th State of 
     the State Address, stated that ``intrusive federal law should 
     not dictate tort reform legislation to the states.'' You 
     might also be interested to know that similar sentiments have 
     been reflected by the majority of audiences in several forums 
     I have attended on the issued in the past month.
       Our members also are deeply concerned about the 
     consequences of capping punitive damages and eliminating 
     joint and several liability for non-economic damages. 
     Proposals such as these threaten public safety in Alabama by 
     removing the deterrent effect of punitive damages, and they 
     discriminate against those most likely to suffer non-economic 
     damages, such as women, seniors, and children.
       Thank you again for your leadership in fighting to uphold 
     the democratic principles embodied in our state civil justice 
     system and for voting ``no'' on the upcoming cloture votes on 
     S. 565. Please do not hesitate to call on me for any 
     assistance on this matter in the coming weeks.
           Sincerely yours,
                                                        Mike Odom,
     Executive Director.
                                                                    ____

                                    Arizona Consumers Council,

                                      Phoenix, AZ, April 19, 1995.
     Senator John McCain,
     Russell Office Building,
     Washington, DC.
       Dear Senator McCain: Two bills are expected to come to the 
     floor this week--The Telecommunications Competition and 
     Deregulation Act of 1995, and the Product Liability Fairness 
     Act of 1995. We believe that these bills are both anti-
     consumer and anti-competitive.
       Consumers have been strong in their requests to continue 
     regulation of cable and in feeling that their bills have gone 
     too high--three times the rate of inflation--for this 
     service. Reregulation was the ONLY bill which was passed over 
     the veto of President Bush.
       Your office asked me to represent you on KFYI in favor of 
     reregulation at that time. I did my best on that program.
       Local cable companies now have a network which pass 96% of 
     the homes in the country. They are best positioned to compete 
     with the monopoly local telephone companies. This bill would 
     permit these local monopolies to buy each other, merge or 
     joint venture, thus eliminating the most likely competitor in 
     each market. This means the promised benefits of competition, 
     including lower prices, greater innovation and better service 
     may never be realized by most consumers.
       S. 565 sets arbitrary limits on punitive damages and 
     eliminates joint and several liability for non-economic 
     damages. This bill will restrict the ability of injured 
     consumers to obtain full and fair compensation for their 
     injuries, and for juries to act to prevent further 
     wrongdoing.
       The Arizona Consumers Council which represents consumers in 
     all countries of the state and was organized in 1966 is also 
     a member of Consumer Federation of America, who represent 50 
     million consumers nationwide, we urge you to opposed S. 652. 
     and also S. 565.
           Sincerely,
                                                     Phyllis Rowe,
     President.
                                                                    ____

                                               Consumer Federation

                                                of California,

                                  Westminster, CA, April 18, 1995.
     Re Opposition to S. 565 and S. 454.

     Senator Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: On behalf of the Consumer Federation of 
     California, I wish to express strong opposition to S 565, the 
     ``Product Liability Fairness Act of 1995.'' Injured consumers 
     would not be able to obtain full and fair compensation if 
     this legislation is passed.
       The two major provisions of this legislation would have a 
     far reaching, negative impact on consumers and workers. 
     First, this bill would set arbitrary limits on punitive 
     damage awards of $250,000 or three times economic damages, 
     reducing the ability to deter corporations from inflicting 
     harm on others and threatening Americans' economic security 
     and well being. At a time when Congress is talking about 
     increasing personal responsibility, it makes no sense to 
     reduce the responsibility of corporations guilty of 
     manufacturing or selling dangerous products.
       Second, this bill would eliminate joint and several 
     liability for noneconomic damages, making it difficult for 
     consumers to recover costs related to injuries such as the 
     loss of reproductive capacity, loss of sight, or 
     disfigurement. Those injuries deserve to be compensated and 
     should not be treated as less important than the loss of high 
     salaries or investment income.
       Consumer Federation of California also urges you to oppose 
     S. 454, ``The Health Care Liability and Quality Assurance 
     Act'' which would severely affect the rights of injured 
     patients.
       I urge you to act to prevent passage of this legislation, 
     which would greatly restrict the ability of the consumer to 
     be compensated fully for injuries and to act to prevent 
     further wrong doing.
           Sincerely,
                                           Dr. Regene L. Mitchell,
     President.
                                                                    ____

                                                 Motor Voters,

                                   Sacramento, CA, April 19, 1995.
     Re S. 565: Oppose.
     Hon. Diane Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: Motor Voters is a non-profit, non-
     partisan auto safety organization founded in Lemon Grove, 
     outside San Diego, in 1979.
       This letter is to urge you to oppose S. 565, the product 
     liability measure. Our members include parents of children 
     who suffered permanent, debilitating brain injuries or who 
     were killed due to the deliberate disregard of auto 
     manufacturers.
       It would be impossible to tell you how strongly those 
     parents feel that companies need to be held accountable for 
     their actions. In fact, they wish to see the law strengthened 
     to provide for felony criminal penalties for corporate 
     executives who knowingly market unsafe products.
       Corporate executive are too insulated from the damage they 
     inflict upon their customers and the public at large. If they 
     were more personally accountable, it would provide a 
     desperately needed incentive for them to consider more than 
     their bottom line.
       In the absence of criminal penalties, the only hope we have 
     of curbing rampant corporate misconduct is through product 
     liability laws. It is appalling that special interests are 
     seeking to restrict remedies in consumers' court of last 
     resort. The ``loser pays'' concept is particularly 
     pernicious, as it entirely ignores the unequal footing of the 
     two 
      [[Page S6378]] parties. Individuals already risk a great 
     deal when they sue a giant corporation, and experience 
     tremendous stress. A family with a brain-injured child has 
     enough to worry about without the danger that, if their 
     attorney makes a mistake, they can be totally impoverished.
       Ironically, many advances in safety technology, spurred by 
     lawsuits, end up benefiting everyone--including companies. 
     For example, here in California, many former defense 
     contractors are converting to making auto safety components 
     such as air bags. The demand for improved safety is spawning 
     an entire new industry and creating new, high-tech jobs. It 
     is time to move forward, not back.
       For all of the above reasons, I urge your ``no'' vote on S. 
     565.
           Sincerely,
                                                  Rosemary Shahan,
     President.
                                                                    ____

                                        California Public Interest

                                               Research Group,

                                  Los Angeles, CA, April 24, 1995.
     Protect Victims of Dangerous Products--Oppose Cloture and 
         Vote ``No'' on S. 565.

     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein, We are writing on behalf of 
     CALPIRG's members, and on behalf of all residents of 
     California to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights of 
     victims of dangerous and defective products. As you know, 
     CALPIRG is a statewide, non-profit, nonpartisan consumer and 
     environmental advocacy group that has fought to protect the 
     rights of consumers for many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                     Mary Raftery,
     Legislative Director.
                                                                    ____

                                                     Coalition for

                                     Accountability & Justice,

                                                   April 21, 1995.
     Hon. Ben Nighthorse Campbell,
     U.S. Senate,
     Washington, DC.
       Dear Senator Campbell: We, the undersigned individuals and 
     organizations, urge you to oppose efforts to weaken America's 
     civil justice system. We urge you to vote against cloture on 
     S. 565, the product liability measure sponsored by Sens. 
     Gorton and Rockefeller, or any other legislation that would 
     weaken the rights of the citizens of Colorado.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages and deterring 
     harmful behavior. By giving ``non-economic'' damages second-
     class treatment, the bill discriminates against populations 
     with less earning power, specifically women, children, 
     seniors and low- and middle-income workers. Under S. 565, the 
     U.S. would have a two-tier system of justice where rich, 
     high-salaried workers would be accorded better treatment and 
     higher damage awards than the rest of us. Finally, by 
     establishing brand new federal rules for product liability 
     cases, S. 565 removes from state authority and oversight a 
     civil justice system that, despite the hyperbole of the big 
     business interests backing this legislation, has served 
     consumers and the residents of Colorado exceedingly well.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen, or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years. Moreover, S. 565 adds protection for manufacturers of 
     raw materials in medical devices and for rental car 
     companies, and reduces manufacturer liability for misuses or 
     alterations made to the product by anyone else--provisions 
     that were not in last year's bill. Even if one reasonably 
     believes that the measure introduced by Sens. Gorton and 
     Rockefeller is sound public policy (which we do not), it must 
     ultimately be reconciled with the extreme revisions to the 
     civil justice system recently adopted by the House of 
     Representatives. H.R. 956, in addition to the provisions 
     outlined above, enacts an arbitrary cap on pain and suffering 
     awards in medical malpractice and cases involving drugs and 
     medical devices, at the same time it offers an automatic 
     punitive damages shield for products that have received FDA 
     approval. In addition, the House measure extends the cap on 
     punitive damages to all civil lawsuits, and establishes an 
     arbitrary 15 year statute of repose for product liability 
     cases.
       Passage of either of these measures, or a combination of 
     the two, would cause grievous harm to the people who have 
     elected you--and depend on you--to represent their interests 
     in Congress. We urge you to oppose any effort to weaken or 
     federalize product liability laws, and to vote ``no'' on 
     cloture on S. 565, on S. 565, and on any conference committee 
     reported-measure restricting the rights of consumers.
           Sincerely,
         Julie Shiels, Son killed by defective bunkbed; 
           International Steelworkers Union, Local 2102; Coalition 
           of Silicon Survivors; DES Action, Colorado Chapter; 
           Denver United Auto Workers; ACLU of Colorado; Gray 
           Panthers of Denver; Colorado Public Interest Research 
           Group (CoPIRG); Clean Water Action, Colorado Chapter; 
           Ann Ives, Silicon breast survivor, DES survivor; Oil, 
           Chemical & Atomic Worker International Union, AFL-CIO; 
           Colorado Senior Lobby.
                                                                    ____

                                          Colorado Public Interest

                                               Research Group,

                                       Denver, CO, April 24, 1995.
     Re Protect Victims of Dangerous Products--Oppose Cloture and 
         Vote No. on S. 565.

     Hon. Ben Nighthorse Campbell,
     U.S. Senate,
     Washington, DC.
       Dear Senator Nighthorse Campbell: We are writing on behalf 
     of COPIRG's members, and on behalf of all residents of 
     Colorado to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights of 
     victims of dangerous and defective products. As you know, 
     COPIRG is a statewide, non-profit, nonpartisan consumer and 
     environmental advocacy group that has fought to protect the 
     rights of consumers for many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                               Richard McClintock,
     Executive Director.
                                                                    ____

                                       Connecticut Public Interest

                                               Research Group,

                                     Hartford, CT, April 24, 1995.
     Re Protect Victims of Dangerous Products--Oppose Cloture and 
         Vote ``No'' on S. 565

     Hon. Chris Dodd,
     U.S. Senate
     Washington, DC.
       Dear Senator Dodd: We are writing on behalf of ConnPIRG's 
     members, and on behalf of all residents of Connecticut to 
     urge your strong opposition to proposed legislation, S. 565, 
     that would eviscerate the rights of victims of dangerous and 
     defective products. As you know, ConnPIRG is a statewide; 
     non-profit, nonpartisan consumer and environmental advocacy 
     group that has fought to protect the rights of consumers for 
     many years.
       [[Page S6379]] Each year, more than 28 million Americans 
     are injured by consumer products and 21,000 are killed. Why 
     should this Senate pass legislation that limits the legal 
     rights of victims at the same time as it is cutting back 
     funding for the federal agencies that are supposed to protect 
     consumers from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its cap on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                  James Amspacher,
     Organizing Director.
                                                                    ____

                                               Connecticut Citizen

                                                 Action Group,

                                                West Hartford, CT.
     Senator Christopher Dodd,
     Senate Office Building,
     Washington, DC
       Dear Senator Dodd: On behalf of the Connecticut Citizen 
     Action Group, I'm asking you to oppose Senate Bill 565 and to 
     vote against cloture. S. 565, called the ``Product Liability 
     Fairness Act'' does nothing to protect consumers. Instead, it 
     lets corporate wrongdoers off the hook when they produce 
     products that injure consumers.
       First, this bill sets arbitrary caps on punitive damages of 
     $250,000 or three times the out-of-pocket expenses. Ordinary 
     citizens serving on juries use these awards to punish and 
     deter outrageous and dangerous behavior by corporations.
       Second, this bill makes it more difficult for victims with 
     less earning power--particularly seniors, women and 
     children--to recover the fair cost of their injuries. 
     Consumers and workers injured through no fault of their own, 
     but by the actions of more than one wrongdoer would have to 
     prove the degree of fault of each liable party. If any 
     wrongdoer were unable to pay its share, the injured consumer 
     would have to bear the cost.
       Senator Dodd, these reforms are wrong-minded. They imperil 
     ordinary consumers and we ask that you work to defeat such 
     measures. Again, please vote against S. 565 and against 
     cloture.
                                                   Gregory Haddad,
     Legislative Director.
                                                                    ____

                                            Delaware Coalition for

                                   Accountability and Justice,

                                                   April 24, 1995.
     Hon. William Roth,
     Hon. Joseph Biden,
     U.S. Senate,
     Washington, DC.
       Dear Senators: We, the undersigned individuals and 
     organizations, urge you to oppose efforts to weaken America's 
     civil justice system. We urge you to vote against cloture on 
     S. 565, the product liability measure sponsored by Sens. 
     Gorton and Rockefeller, or any other legislation that would 
     weaken the rights of the citizens of Delaware.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages, and deterring 
     harmful behavior. By giving ``noneconomic'' damages second-
     class treatment, the bill discriminates against populations 
     with less earning power, specifically women, children, 
     seniors and low- and middle-income workers. Under S. 565, the 
     U.S. would have a two-tiered system of justice where rich, 
     high-salaried workers would be accorded better treatment and 
     higher damage awards than the rest of us. Finally, by 
     establishing brand new federal rules for product liability 
     cases, S. 565 removes from state authority and oversight a 
     civil justice system that, despite the hyperbole of the big 
     business interests backing this legislation, has served 
     consumers and the residents of Delaware exceedingly well.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years. Moreover, S. 565 adds protections for manufacturers of 
     raw materials in medical devices and for rental car 
     companies, and reduces manufacturer liability for misuse or 
     alterations made to the product by anyone else--provisions 
     that were not in last year's bill.
       Even if one reasonably believes that the measure introduced 
     by Sens. Gorton and Rockefeller is sound public policy (which 
     we do not), it must ultimately be reconciled with the extreme 
     revisions to the civil justice system recently adopted by the 
     House of Representatives. H.R. 959, in addition to the 
     provisions outlines above, enacts an arbitrary cap on pain 
     and suffering awards in medical malpractice and cases 
     involving drugs and medical devices, at the same time it 
     offers an automatic punitive damages shield for products that 
     have received FDA approval. In addition, the House measure 
     extends the cap on punitive damages to all civil lawsuits, 
     and establishes an arbitrary 15 year statute of repose for 
     product liability cases.
       Passage of either of these measures, or a combination of 
     the two, would cause grievous harm to the people who have 
     elected you--and depend on you--to represent their interests 
     in Congress. We urge you to oppose any effort to weaken or 
     federalize product liability laws, and to vote ``no'' on 
     cloture on S. 565, on S. 565, and on any conference committee 
     reported-measure restricting the rights of consumers.
           Sincerely,
         Edward Cahill, State Director, Delaware AARP; Edward 
           Peterson, President, Delaware AFL-CIO; Deirdre 
           O'Connoll, Executive Director, Women and Wellness; Rick 
           Crawford, President, Building Trades Council of 
           Delaware; Debbie Heaton, President, Delaware Sierra 
           Club; Til Purnell, Executive Director, Save Wetlands 
           and Bays; Amos McCluney, Jr., President, Delaware 
           Council of Senior Citizens; May Northwood, President, 
           Delaware Federation of Women's Clubs;\1\ Maureen 
           Lauterbach, Women and Wellness and National Breast 
           Cancer Coalition;\1\ Don Cordell, President, United 
           Auto Workers Local 1183; Ann Rydgren, President, 
           Delaware Audubon Society.
     \1\For identification purposes only. Endorsements are by the 
     individual, not the organization.
                                                                    ____

                                         Consumer Fraud Watch,

                                  Tallahassee, FL, April 19, 1995.
     Senator Connie Mack,
     U.S. Senate,
     Washington, DC.
       Dear Senator Mack: I want to express our strong opposition 
     to S. 565, the ``Product Liability Fairness Act of 1995''. 
     This bill would restrict the ability of injured consumers to 
     obtain full and fair compensation and for citizen juries to 
     impose adequate deterrents to prevent further injuries.
       There are two major provisions of this legislation which 
     would have a negative effect on consumers and workers. First, 
     this bill would set arbitrary limits on punitive damage 
     awards of $250,000 or three times economic damages, reducing 
     the ability to deter corporations from inflicting harm on 
     others and threatening Americans' economic security and well-
     being. At a time when Congress is talking about increasing 
     personal responsibility, it makes no sense to reduce the 
     responsibility of corporations guilty of manufacturing or 
     selling dangerous products.
       Second, this bill would eliminate joint and several 
     liability for non-economic damages, making it difficult for 
     consumers to recover costs related to injuries such as the 
     loss of reproductive capacity, loss of sight, or 
     disfigurement. Those injuries deserve to be compensated and 
     should not be treated as less important than THE loss of high 
     salaries or investment income. For similar reasons as those 
     described, CFA also urges you to oppose S. 454, ``The Health 
     Care Liability and Quality Assurance Act'' which would 
     severely affect the rights of injured patients.
       I urge you to act to prevent passage of this legislation, 
     which would greatly restrict the ability of injured consumers 
     to be compensated fully and for juries to act to prevent 
     further wrongdoing.
           Sincerely,
                                               Walter T. Dartland,
     Executive Director.
                                                                    ____

                              Florida Consumer Action Network,

                                  Tallahassee, FL, April 24, 1995.
     Senator Bob Graham,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Graham: The Florida Consumer Action Network 
     (FCAN) is requesting that you vote ``NO'' on Senate Bill 565, 
     the Product Liability Bill. Additionally, we are asking you 
     to vote against cloture. If this bill passes, it will have a 
     devastating effect on the more than 40,000 families that are 
     members of FCAN and on all Florida consumers.
       By capping punitive damages at $250,000 or three times the 
     economic loss (whichever is greater) the legislation removes 
     the punitive impact from punitive sanctions, rendering them 
     meaningless as punishment in most cases. It will be cheaper 
     for many corporations to pay such damages rather than rectify 
     their faulty products.
       Eliminating joint and several liability for non-economic 
     damages saddles the victim for the costs of damages incurred 
     by the wrongdoing parties. It is unjust and particularly 
     discriminatory for women, children and senior citizens.
       Obviously this bill is not in the best interest of 
     Florida's consumers. We again ask for 
      [[Page S6380]] your vote against S. 565 and against cloture 
     in the upcoming debate.
           Sincerely,
                                                  Monte E. Belote,
     Executive Director.
                                                                    ____

                                                     Florida PIRG,

                       Florida Public Interest Research Group,

                                  Tallahassee, FL, April 24, 1995.
     Re Protect Victims of Dangerous Products, Oppose Cloture and 
         Vote No on S. 565.

     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senator Graham: We are writing on behalf of Florida 
     PIRG's members, and on behalf of all residents of Florida to 
     urge your strong opposition to proposed legislation, S. 565, 
     that would eviscerate the rights of victims of dangerous and 
     defective products. As you know, Florida PIRG is a statewide, 
     non-profit, nonpartisan consumer and environmental advocacy 
     group that has fought to protect the rights of consumers for 
     many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                    Ann Whitfield,
     Executive Director.
                                                                    ____

                                               Citizen Action,

                                      Atlanta, GA, April 18, 1995.
     Hon. Paul Coverdell,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Coverdell: On behalf of the 40,000 members of 
     Georgia Citizen Action, I am writing to express our 
     opposition to S. 565 and to urge you to vote against cloture.
       S. 565, the Product Liability Fairness Act of 1995, is 
     anything but fair to consumers. In fact, it will effectively 
     leave citizens unprotected against the manufacture and sale 
     of hazardous or defective products. Capping punitive damages 
     at $250,000 or three times economic loss defeats the purpose 
     of punitive damages, which is to punish for a wrongdoing. 
     Multi-million dollar corporations will consider these caps 
     merely the cost of doing business, rather than a punishment 
     for injuring unsuspecting consumers, and consequently, 
     punitive damages will no longer serve as a deterrent to 
     irresponsible and unscrupulous companies who would 
     manufacture or sell harmful products.
       Additionally, the provisions to eliminate joint and several 
     liability for non-economic damages discriminates against 
     women, children, and senior citizens as they are less likely 
     to recover high economic damages (i.e. lost wages). Joint and 
     several liability ensures that the parties at fault pay, not 
     the victim, and by eliminating this, those victims who suffer 
     loss of reproductive capacity, disfigurement, or loss of 
     sight, for example, could be further wronged by not being 
     able to recover the full amount of their awarded damages.
       For these reasons, Georgia Citizen Action strongly urges 
     you to oppose S. 565 and to vote against cloture. Please 
     inform us of your actions regarding this bill.
           Sincerely,
                                                   Lori Glidewell,
     Director.
                                                                    ____

                                      Citizen Advocacy Center,

                                     Elmhurst, IL, April 20, 1995.
     Hon. Carol Moseley-Braun,
     U.S. Senate,
     Washington, DC.
       Dear Senator Moseley-Braun: The Citizen Advocacy Center, a 
     non-partisan, not-for-profit organization in DuPage County, 
     is dedicated to building democracy for the 21st century. We 
     promote good citizenship, participation in civic affairs, 
     access to justice, and accountability of local governments to 
     the citizens of the western suburbs of Chicago. We are 
     writing to urge you to vote ``no'' both on the upcoming 
     cloture vote of S. 565, and the vote on the merits. We oppose 
     any legislation that makes access to justice more difficult 
     for individual citizens.
       As you know Senator Braun, the large crossover vote in the 
     western suburbs of Chicago, particularly the crossover vote 
     of women, helped to elect you to represent our interests in 
     the United States Senate. We expect you to make access to 
     justice easier, not more difficult, for consumers viciously 
     injured by defective products. The provisions of S. 565 are 
     an undisguised attempt to take control and common sense away 
     from Illinois citizens in the jury box and to replace it with 
     Washington-dictated arbitrariness designed to protect and 
     payback the business interests that have paid so handsomely 
     for this legislation. In particular, we find the provisions 
     of S. 565 do great damage to women--and as one of the few 
     women Senators, we frankly expect you to take a good hard 
     look at how the specific provisions of this bill will prevent 
     women with low economic damage awards from being adequately 
     compensated for lifelong injuries caused by corporate greed.
       Moreover, after last Sunday's Chicago Tribune Magazine 
     cover story, it seems that you are burnishing your business 
     image after having recently secured a seat on the Finance 
     Committee. Nonetheless, Illinois voters remember that last 
     year you voted against a less damaging products liability 
     bill, and a flip-flop vote now will look like you are selling 
     out ordinary citizens and consumers to cozy up to business 
     interests. We are happy that you have won a seat on the 
     committee, but we expect you to use that seat to remain true 
     to the agenda that put you in the Senate in the first place. 
     Please do not sell out the citizens of Illinois.
           Very truly yours,

                                                Theresa Amato,

                                               Executive Director,
     Citizen Advocacy Center.
                                                                    ____

         Chicago and Central States Joint Board, ACTWU, 
           Amalgamated Clothing and Textile Workers Union,
                                      Chicago, IL, March 31, 1995.
     Senator Carol Moseley-Braun,
     U.S. Senate,
     Washington, DC.
       Dear Senator Moseley-Braun: On behalf of the members of our 
     union we urge you to vote against consideration of any 
     legislation that lessons the financial responsibility of 
     corporate polluters or manufacturers of dangerous products. 
     These, so called, efforts at ``tort reform'' are more aptly 
     known as the Wrongdoer Protection Act.
       Furthermore, these attempts at reform are plainly anti-
     workers and anti-consumer.
       Your opposition to the more onerous parts of these tort 
     reforms proposals is not enough. Your leadership is needed to 
     stop passage of any restrictions limiting the access of 
     consumers and workers to the courts.
       Your leadership against these tort restrictions can send a 
     positive signal that you stand on the side of workers and 
     consumers.
           Sincerely,
     James K. Tribble,
       International Vice President.
     Ronald Willis,
       Manager, ACTWU, Chicago and Central States Joint Board.
                                                                    ____

                                                Public Action,

                                      Chicago, IL, April 24, 1995.
     Senator Carol Moseley-Braun,
     U.S. Senate,
     Washington, DC.
       Dear Senator Moseley-Braun: Illinois Public Action is 
     requesting that you vote ``NO'' on Senate Bill 565. 
     Additionally we are asking you to vote against cloture. If 
     this bill passes, it will have a devastating effect on the 
     215,000 families that are members of Public Action and on all 
     Illinois consumers.
       By capping punitive damages at $250,000 or three times the 
     economic loss (which ever is greater), the legislation 
     removes the punitive impact from punitive sanctions, 
     rendering them meaningless as punishment in most cases. It 
     will be cheaper for many corporations to pay such damages 
     than rectify their faulty products.
       Eliminating joint and several liability for non-economic 
     damages saddles the victim for the costs of the damages 
     incurred by the wrongdoing parties. It is unjust and 
     particularly discriminatory for women, children and senior 
     citizens.
       Obviously this bill is not in the best interest of the 
     Illinois public. We again ask for your vote against the bill 
     and against cloture in the coming debate.
           Sincerely,
                                                Robert B. Creamer,
     Executive Director.
                                                                    ____

                                    Illinois PIRG, Illinois Public

                                      Interest Research Group,

                                      Chicago, IL, April 24, 1995.
     Re: Protect Victims of Dangerous Products, Oppose Cloture and 
         Vote No on S. 565.

     Hon. Carol Moseley-Braun,
     U.S. Senate,
     Wshington, DC.
       Dear Senator Moseley-Braun: We are writing on behalf of 
     Illinois PIRG's members, and on behalf of all residents of 
     Illinois to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights of 
     victims of dangerous and defective products. As you know, 
     Illinois PIRG is a statewide, non-profit, nonpartisan 
     consumer and environmental advocacy group that has 
      [[Page S6381]] fought to protect the rights of consumers for 
     many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                      Diane Brown,
     Executive Director.
                                                                    ____

                                                      Iowa Citizen

                                               Action Network,

                                   Des Moines, IA, April 14, 1995.
     Hon. Tom Harkin,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Harkin: We are writing to communicate ICAN's 
     views about the so-called Products Liability ``Fairness'' 
     Act--S. 565. It is our understanding that S. 565 is set for 
     two weeks of debate on the Senate floor, beginning on or 
     about April 24.
       We are pleased that you have indicated that, as in the 
     past, you will lead the fight against this legislation. We 
     heartily commend your determination to use all means 
     available to keep the bill from coming to a vote on final 
     passage.
       S. 565 is a bill that would produce extremely detrimental 
     consequences for citizens, workers, and consumers. There are 
     a number of objectionable provisions in the legislation, but 
     for the purposes of this letter we would like to focus on 
     provisions relating to joint and several liability and 
     punitive damages.
       As you know, S. 565 eliminates joint and several liability 
     for non-economic damages. This clearly discriminates against 
     women, children, senior citizens, persons with disabilities, 
     the poor, and low-wage workers, who more often receive the 
     bulk of compensation for their injuries due to sustained non-
     economic losses, such as loss of reproductive capacity, loss 
     of vision, disfigurement, etc. S. 565 treats these first rate 
     members of society as second class citizens.
       Under current Iowa law, in cases where more than one party 
     is found to have been at fault in causing a plaintiff's 
     injuries, a guilty party that caused more than 50% of the 
     harm can be held jointly and severally liable for damages. S. 
     565 would supersede Iowa law, making it more likely that 
     injured parties would be forced to forego amounts of 
     compensation for their non-economic losses when one or more 
     of the defendants are unable to pay. This Washington-Knows-
     Best bill reshuffles the cards and stacks the deck against 
     plaintiffs in Iowa.
       S. 565 also imposes an arbitrary and unreasonable cap on 
     punitive damages that would undermine the important deterrent 
     effect which these damages have on corporate wrongdoers. This 
     is unnecessary and rash in light of the fact that punitive 
     damages in product liability cases are rare but have made 
     Americans much safer.
       The bill limits punitive damage judgments to the greater of 
     three times the amount of economic losses or $250,000. Once 
     again, this provision is a slap in the face to women, 
     children, senior citizens, persons with disabilities, the 
     poor, and low-wage workers. And the provision sends a warped 
     message to corporate wrongdoers: If you injure a woman, a 
     child, an elderly grandparent, a disabled person, or a 
     minimum wage worker, you are likely to be punished less than 
     if you injure a corporate CEO. The consequences of such a 
     legal policy would be lethal to many average Americans.
       In addition, S. 565 imposes an unreasonable standard of 
     ``conscious flagrant indifference to safety'' for assessment 
     of punitive damages. A defendant whose conduct was merely 
     ``reckless'' or ``wanton'' would escape punitive damages. If 
     the superheightened punitive damage standards in S. 565 had 
     applied to the Exxon-Valdez case, Exxon would probably not 
     have paid a dime in punitive damages since the punitive 
     damages were awarded for ``reckless'' conduct. Moreover, 
     proving a corporate defendant's ``state of mind'' would be 
     next to impossible in most product liability cases.
       S. 565 is imprudent and unwarranted legislation. Product 
     liability tort filings make up an extremely small percentage 
     of all civil filings and the number of product liability 
     filings has been steadily declining. We are mobilizing 
     concerned citizens in Iowa to oppose this bogus bill.
       We are grateful for your leadership in opposing this 
     legislation. Please let us know whether and how we can 
     provide any information or assistance to support your 
     efforts.
       Your commitment to civil justice for all Americans is 
     greatly appreciated.
           Respectfully,
     Steve Siegel/bl
       President.
     Brad Lint,
       Executive Director.
                                                                    ____

                                           UAW Sub-Regional Office

                                                     Region 4,

                                   Des Moines, IA, April 20, 1995.
     Hon. Tom Harkin,
     U.S. Senate,
     Washington, DC.
       Dear Senator Harkin: On behalf of the UAW men and women who 
     live, work, and vote in Iowa, I am writing to express our 
     opposition to S. 565--the so-called Products Liability 
     ``Fairness'' Act. This legislation is grossly unfair and one-
     sided.
       S. 565 would, without a doubt, take away the right of 
     workers to hold large corporations fully accountable for the 
     injuries they cause when they manufacture and sell defective 
     products--including dangerous workplace machinery. Employers 
     claims, however, appear to be unaffected by the law--only 
     workers would lose their right to be heard.
       S. 565 sets up a series of hurdles and obstacles to the 
     ability of injured workers and consumers to recover from the 
     manufacturers of defective products. In fact, under the 
     bill's statute of repose, workers injured by defective 
     machinery more than twenty years old could not recover at 
     all, but businesses apparently could recover all their 
     losses--including lost profits.
       S. 565 would also cap punitive damages far below the point 
     of effectiveness. If the bill becomes law it would be much 
     more difficult for ordinary Iowans to punish and deter 
     corporate misbehavior, even when they are maimed or killed by 
     the recklessness or negligence of a corporation.
       In summary, S. 565 is unfair to workers and consumers. The 
     UAW is delighted that you will be voting against cloture 
     during debate and, if needed, against the bill on final 
     passage.
       Thank you for your firm commitment to civil justice for 
     workers and consumers.
           Respectfully,
                                                    Chuck Gifford,
     President.
                                                                    ____

                                                Iowa State Council

                                           of Senior Citizens,

                                     Waterloo, IA, April 20, 1995.
     Hon. Tom Harkin,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Harkin: I am writing to express our concern 
     about S. 565--the so-called Products Liability ``Fairness'' 
     Act. The Iowa State Council of Senior Citizens believes the 
     bill to be unfair to senior citizens and we are grateful for 
     your announced opposition to it.
       It is my understanding that S. 565 eliminates joint and 
     several liability for non-economic losses. Senior citizens do 
     not generally incur substantial economic losses when they are 
     injured by defective products. They tend to receive 
     compensation for non-economic losses resulting from 
     disfigurement, loss of vision, pain and suffering, etc.
       Under S. 565 when multiple parties are found to have caused 
     the harm to an injured consumer the amount of compensation 
     for non-economic losses would, without exception, be reduced 
     when one or more of the at-fault parties is unable to pay. 
     This situation would be worse than current Iowa law where 
     injured consumers can at least recover non-economic damages 
     jointly and severally whenever one of the parties at fault is 
     more than 50% responsible for the harm caused to the injured 
     consumer.
       It is also my understanding that S. 565 limits punitive 
     damages in product liability cases to the greater of three 
     times the amount of economic losses or $250,000. This 
     provision also discriminates against senior citizens. Again, 
     since seniors do not usually have large economic losses, 
     corporate wrongdoers who injure a senior are likely--if their 
     misconduct was bad enough to warrant punitive damages--to be 
     punished less than if they injure a corporate executive who 
     has large earnings. Is this wise legal policy?
       The Iowa State Council of Senior Citizens believes that, 
     taken together, these two discriminatory provisions could 
     lead to less safe medical devices and consumer products 
     primarily manufactured for use by senior citizens. Women, 
     children, disabled persons, and low-wage workers are also 
     likely to be adversely affected by these ill-conceived 
     provisions.
       S. 565 could have a devastating effect on the economic 
     security and safety of older Iowans. The Iowa State Council 
     Citizens is glad you will oppose S. 565 during the coming 
     Senate debate by voting against cloture and, if necessary, 
     against the bill.
       Thank you for your considerate attention to our point of 
     view. Please let us know if we can be of any further 
     assistance.
           Respectfully,
                                                  Frank Alexander,
     President.
                                                                    ____

                                               [[Page S6382]]

                                               Citizen Action,

                                   Louisville, KY, March 14, 1995.
     Hon. Mitch McConnell,
     U.S. Senate, Senate Russell Office Building, Washington, DC.
       Dear Senator McConnell: On behalf of Kentucky Citizen 
     Action, I would like to express our strong opposition to the 
     so-called ``Product Liability Fairness Act'', S. 565. I urge 
     you to vote against efforts to pass this legislation, as it 
     is anything but fair to your constituents or to any 
     individual American citizen.
       While the proponents of this bill have attempted to cast a 
     ``moderate'' light on the legislation, painting it as more 
     fair and equitable than proposed legal reforms which came 
     before it, our careful study from the consumer's perspective 
     has revealed that it is neither fair nor equitable to real 
     Americans. Areas of particular concern include:
       Punitive damage caps of $250,000 or three times the 
     economic loss. Imposing such caps completely undermines the 
     important deterrent effect which these damages have on 
     corporate wrongdoing. While punitive damages are rarely used, 
     the very threat that their existence presents has proven to 
     be critical in persuading manufacturers to improve the safety 
     of their products or in actually removing unsafe products 
     from the marketplace. If you undermine this system, American 
     consumers truly will be at the mercy of big business.
       Elimination of joint and several liability for non-economic 
     damages. This provision discriminates against the most 
     vulnerable members of our society--women, children, seniors, 
     the poor--whose form of compensation would most likely be in 
     the form of non-economic damages. This legislation says that 
     only the wealthy should be empowered to hold wrongdoers 
     accountable for their egregious behavior. These damages also 
     cover a great deal more than just pain and suffering, as is 
     often thought. They also cover loss of reproductive capacity, 
     loss of sight, and disfigurement. Is it fair to punish 
     individuals who have suffered these tragedies?
       S. 565 is not fair, although its name attempts to imply 
     otherwise. It is not fair to the workers, to women, to 
     children, to the real people of this country. It is a one-
     sided, unjustified and cynical attempt to provide a subsidy 
     to big business at the expense of the American consumer.
       We understand that S. 565 will be brought to the floor on 
     Monday, April 25 and a vote on cloture could come within a 
     few days of this. We urge you to cast your vote on behalf of 
     your constituents and all American citizens and oppose S. 565 
     by voting ``No'' on cloture.
           Sincerely,
                                                    Lori Everhart,
     State Director.
                                                                    ____

                                               Citizen Action,

                                  Baton Rouge, LA, April 14, 1995.
     Hon. John Breaux,
     U.S. Senate,
     Washington, DC.
       Dear Senator Breaux: On behalf of our members, your 
     constituents, Louisiana Citizen Action once again asks that 
     you vote ``No'' on S. 565 and ``No'' on cloture. We strongly 
     believe that it is your responsibility to hold negligent 
     businesses accountable to the public.
       By setting caps on punitive damages, S. 565 would send a 
     clear message that corporations do not really have to worry 
     about liability for dangerous products and practices. 
     Punitive damages, after all, were meant to be deterrents to 
     corporate misconduct.
       This law, which favors the financial interests of big 
     business over protecting the public, is especially 
     threatening to the most vulnerable--women, children, and 
     seniors. Elimination of joint and several liability for non-
     economic damages deeply undervalues the impact of injuries 
     upon these citizens.
       Please take a firm stand to support fairness and 
     responsibility in our judicial system. We will be happy to 
     inform our members when you vote no to S. 565 and no to 
     cloture. Thank you for your consideration on this issue.
           Sincerely,
                                                  Paula Henderson,
     State Director.
                                                                    ____

                                      Maine People's Alliance.

                                                   April 21, 1995.
     Senator Olympia Snowe,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Snowe: As you know, debate will begin next 
     week on the Rockefeller-Gorton Bill (S. 565). We wanted to 
     write you in hopes that with your concern for the citizens of 
     Maine--particularly women, children and other economically 
     underprivileged--you will join with us in opposition to that 
     bill. The Contract With America effort is bulldozing ahead 
     with legal reforms that only benefit the manufacturers of 
     defective products.
       The bill's supporters claim it is designed to reduce the 
     ``explosion'' of product liability lawsuits, but there is no 
     evidence suggesting that such a problem exists. In fact, 
     close study of 30 years of case law in Maine reveals that 
     punitive damages have been awarded in only three cases. At 
     $250,000, companies will not be deterred and will simply 
     write the cost of a punitive damage award into the cost of 
     doing business.
       An especially worrisome provision of this bill will be the 
     elimination of joint and several liability for non-economic 
     damages. Since women, seniors, and children are more likely 
     to suffer non-economic injuries than high economic injuries 
     (e.g. lost wages), the elimination of joint and several 
     liability discriminates against them. This provision 
     basically states that corporations which manufacture child 
     car seats or children's pajamas can be less careful than 
     manufacturers of golf carts.
       As you know, our organization has differed with you on some 
     issues in the past, however we know that you will join with 
     us in opposing this tort reform effort. The notion of Federal 
     Legislation that would preempt the ability of states like 
     Maine to hold wrong doers accountable and deter their future 
     wrongdoing is unacceptable. As you know our organization has 
     had differences with you in the past, but we hope that you 
     will join us in standing against the bill. All Mainers, 
     especially those without the largest salaries (especially 
     women and children) deserve access to a fair and supportive 
     legal system.
           Sincerely,
                                                        Joe Ditre,
     Executive Director.
                                                                    ____

                                               Citizen Action,

                                     Bethesda, MD, April 17, 1995.
     Hon. Barbara Mikulski,
     Hart Building,
     Washington, DC.
       Dear Senator Mikulski: On behalf of Maryland Citizen Action 
     and our 50,000 members I am writing to urge you to oppose 
     ``The Product Liability Fairness Act'' (S. 565). Please vote 
     pro-consumer and against cloture when this bill comes up in 
     the Senate. If enacted the most vulnerable citizens in our 
     state would be further disadvantaged and the rights of 
     consumers to hold irresponsible manufacturers accountable for 
     their wrongful behavior would be severely limited.
       As a champion of women's health, working people and 
     children, I am sure you know that these groups are 
     disproportionately affected by faulty products--breast 
     implants, asbestos, and flammable pajamas to name just a few. 
     S. 565 limits the ability of these people to collect fair 
     compensation for their injuries or losses because it would 
     eliminate joint and several liability for non-economic 
     damages. Under current law, a plaintiff is paid only once, 
     and the cost is covered by the wrongdoers who contributed to 
     the victim's loss. Under S. 565, non-economic damages, such 
     as a women's loss of fertility or a worker's loss of a limb, 
     would not be fully compensated if one of the wrongdoers is 
     unavailable or insolvent. The victim would be forced to carry 
     the burden.
       S. 565 also imposes a cap on punitive damages ($250,000 or 
     3 times economic damages) which undermines the important 
     deterrent effect that these damages have on corporate 
     wrongdoers. Under our current system punitive damages are 
     often the only means available to deter irresponsible 
     behavior such as that exhibited by Dow Corning when it 
     knowingly sold hundreds of thousands of faulty and dangerous 
     breast implants to women. Under S. 565, large corporations, 
     such as Dow Corning, may find it more cost effective to 
     continue their harmful behavior and risk paying punitive 
     damages.
       Please stand up for consumers in Maryland by opposing S. 
     565 and voting against cloture. We are counting on your 
     admirable leadership and your great fighting spirit to halt 
     the current attack on average consumers, women, families and 
     children.
       Please let me know how you intend to vote.
           Sincerely,
                                                    Shelli Craver,
     Director, Maryland Citizen Action.
                                                                    ____

                                           Maryland State Teachers

                                             Association--NEA,

                                    Baltimore, MD, March 29, 1995.
     Hon. Paul S. Sarbanes,
     U.S. Senate, Senate Office Building, Washington, DC.
       Dear Senator Sarbanes: The Maryland State Teachers 
     Association has very strong reservations about the so-called 
     ``Common Sense Legal Reforms Act,'' which the Senate appears 
     to be rushing forward without full debate or careful 
     analysis. We urge you to vote against this bill as anti-
     consumer legislation.
       We see this bill as restricting the ability of injured 
     consumers and workers to obtain full and fair compensation 
     for such injuries. While all of us have a stake in making 
     sure that frivolous law suits become less common than they 
     appear to be, we also all have a stake in making sure that 
     individuals maintain rights to protest and recover damages 
     from product manufactures which have been shown to be 
     dangerous.
       Therefore, I urge your opposition to this and similar 
     legislation.
           Yours truly,
                                                    Karl K. Pence,
     President.
                                                                    ____

                                          Maryland Public Interest

                                               Research Group,

                                    Baltimore, MD, April 24, 1995.

 Protect Victims of Dangerous Products--Oppose Cloture and Vote ``No'' 
                               on S. 565

     Hon. Barbara Mikulski,
     U.S. Senate,
     Washington, DC.
       Dear Senator Mikulski: We are writing on behalf of 
     MaryPIRG's members, and on behalf of all residents of 
     Maryland to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights 
      [[Page S6383]] of victims of dangerous and defective 
     products. As you know, MaryPIRG is a statewide, non-profit, 
     nonpartisan consumer and environmental advocacy group that 
     has fought to protect the rights of consumers for many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                  Daniel Pontious,
     Executive Director.
                                                                    ____

                                                   April 24, 1995.
     Hon. Barbara A. Mikulski,
     Hon. Paul S. Sarbanes,
     U.S. Senate,
     Washington, DC.
       Dear Senators: We, the undersigned organizations, urge you 
     to oppose efforts to weaken America's civil justice system. 
     We urge you to vote against cloture on S. 565, the product 
     liability measure sponsored by Sens. Gorton and Rockefeller, 
     or any other legislation that would weaken the rights of the 
     citizens of Maryland.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages and deterring 
     harmful behavior. By giving ``non-economic'' damages second-
     class treatment, the bill discriminates against populations 
     with less earning power, specifically women, children, 
     seniors and low- and middle-income workers. Under S. 565, the 
     U.S. would have a two-tiered system of justice where rich, 
     high-salaried workers would be accorded better treatment and 
     higher damage awards than the rest of us. Finally, by 
     establishing brand new federal rules for product liability 
     cases, S. 565 removes from state authority and oversight a 
     civil justice system that, despite the hyperbole of the big 
     business interests backing this legislation, has served 
     consumers and the residents of Maryland exceedingly well.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen, or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years. Moreover, S. 565 adds protections for manufacturers of 
     raw materials in medical devices and for rental car 
     companies, and reduces manufacturer liability for misuses or 
     alterations made to the product by anyone else--provisions 
     that were not in last year's bill.
       Even if one reasonably believes that the measure introduced 
     by Sens. Gorton and Rockefeller is sound public policy (which 
     we do not), it must ultimately be reconciled with the extreme 
     revisions to the civil justice system recently adopted by the 
     House of Representatives. H.R. 956, in addition to the 
     provisions outlined above, enacts an arbitrary cap on pain 
     and suffering awards in medical malpractice and cases 
     involving drugs and medical devices, at the same time it 
     offers an automatic punitive damages shield for products that 
     have received FDA approval. In addition, the House measure 
     extends the cap on punitive damages to all civil lawsuits, 
     and establishes an arbitrary 15 year statute of repose for 
     product liability cases.
       Passage of either of these measures, or a combination of 
     the two, would cause grievous harm to the people who have 
     elected you--and depend on you--to represent their interests 
     in Congress. We urge you to oppose any effort to weaken or 
     federalize product liability laws, and to vote ``no'' on 
     cloture on S. 565, on S. 565, and on any conference committee 
     reported-measure restricting the rights of consumers.
           Sincerely,
         Jennifer L. Marshall, Coalition for Accountability and 
           Justice; Anne D. LoPiano, Law Foundation of Prince 
           George's County, MD Inc.; Nancy Davis, Maryland Sierra 
           Club; Ken Reichard, United Food and Commercial Workers, 
           Local 400; Cynthia K. Bailey, LCSWC, Sexual Assault/
           Domestic Violence Center, Inc.; Dru Schmidt-Perkins, 
           Clean Water Action; Dr. Leonardo Ortega, Health 
           Education Resource Organization--HERO; Michele Douglas, 
           Planned Parenthood of Maryland, Inc.; Dan Pontious, 
           Maryland PIRG; Bob Turner, Teamsters Joint Council No. 
           62; Paul Safchuck, White Lung Association & National 
           Asbestos Victims; Woody McNemar, International 
           Brotherhood of Electrical Workers, Local 24; Kathleen 
           Cahill, Maryland Employment Lawyers Association; 
           Margaret Morgan-Hubbard, Environmental Action 
           Foundation.
                                                                    ____

                                            Jobs With Justice,

                                    Combridge, MA, April 21, 1995.
     Senator Edward Kennedy,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Kennedy: We, the undersigned supporters of 
     Jobs With Justice, a workers' rights coalition, are extremely 
     concerned about the negative effects on the rights of workers 
     and consumers which will result from proposals before the 
     Senate to change the civil justice system. We urge you to 
     oppose these proposals, particularly the ``Product Liability 
     Fairness Act,'' (S. 565) cosponsored by Senators Rockefeller 
     and Gorton, and to oppose cloture, for the following reasons:
       Elimination of Joint and Several Liability for Non-Economic 
     Damages--The Rockefeller/Gorton bill would shift costs from 
     parties that caused injuries to injured workers and 
     consumers. By eliminating joint and several liability for 
     non-economic damages, injured workers and consumers whose 
     compensation includes losses related to lifelong excruciating 
     pain, loss of fertility, loss of mobility, and disfigurement 
     may be left to bear the cost of those injuries. Joint and 
     several liability requires that those judged responsible for 
     an injury be responsible for paying the costs of that injury. 
     Elimination of it for non-economic damages unfairly hurts 
     workers and consumers, especially those who don't earn high 
     incomes or are older since their damages often are mostly 
     non-economic.
       Caps On Punitive Damages--Rockefeller/Gorton would limit 
     punitive damages to $250,000 or three times economic damages, 
     whichever is greater, and would make it much harder to impose 
     them. Punitive damages, though rarely awarded, are a powerful 
     tool in preventing repetition of preventable injuries. 
     Limiting them would lessen the motivation of corporations to 
     make safe products. As a result, more workers and consumers 
     will be injured.
       Statute of Repose--This would make it impossible for a 
     worker injured by defective machinery and equipment to 
     receive compensation from the manufacturer if the machinery 
     and equipment had been on the market for twenty years.
       For the above reasons, we urge you to protect workers and 
     consumers by opposing the Rockefeller/Gorton bill and similar 
     legislation and to oppose cloture.
       Sincerely,
         Juana Hernandez, Staff, Immigrant Workers Resource Ctr.; 
           Melanie Kasperian, Vice President, Mass Teachers 
           Association; Edward Kelly, Executive Director, Citizen 
           Action of Massachusetts; Miles Calvey, Business 
           Manager, I.B.E.W. Local 2222; Phil Mamber, President, 
           United Electrical Workers, District 2; John Williams, 
           Executive Director, Mass. Toxics Campaign; John Murphy, 
           Secretary Treasurer, Teamsters Local 122; Richard 
           Reardon, Business Agent, Teamsters Local 25; John 
           O'Connor, Executive Director, Jobs & Environment 
           Campaign; Rand Wilson, Director, Massachusetts Jobs 
           with Justice.
                                                                    ____

                                               Citizen Action,

                                    Cambridge, MA, April 20, 1995.
     Senator John Kerry,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Kerry: On behalf of the members of Citizen 
     Action of Massachusetts, I strongly urge you to oppose S. 
     565, and similar product liability bills, and to vote against 
     cloture on them.
       There is no ``litigation explosion.'' Defective products 
     cases represent less than one-hundredth of one percent of the 
     total caseload in state courts, according to the National 
     Center for State Courts. Since 1990, total state tort filings 
     have decreased. Nor have punitive damage awards been 
     widespread. Between 1965 and 1990, punitive damages were 
     awarded in less than 15 products liability cases each year, 
     one quarter of which involved asbestos.
       S. 565, and similar bills make it more difficult for 
     consumers who obtain an award of damages caused by 
     irresponsible corporate behavior from actually collecting 
     those damages where more than one corporation is responsible 
     for their injuries. In addition S. 565 and similar bills seek 
     to drastically limit the ability of citizen juries to award 
     punitive damages: the kind of damages which deter the 
     production and marketing of unsafe products. At time of 
     decreasing regulatory oversight, the possibility of punitive 
     damages represents a vital pro-consumer bulwark against 
     unsafe and defective products. Punitive damages, because they 
     can be high, 
      [[Page S6384]] make corporations take notice and treat 
     product safety seriously.
       S. 565 and similar bills are irresponsible and anti-
     consumer. I strongly urge you to oppose them and to vote 
     against cloture.
           Sincerely,
                                                  Edward F. Kelly,
     Executive Director.
                                                                    ____

         Massachusetts Public Interest Research Group,
                                        Boston, MA, 24 April 1995.
     Hon. John Kerry,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kerry: We are writing on behalf of MASSPIRG's 
     members, and on behalf of all residents of Massachusetts to 
     urge your strong opposition to proposed legislation, S. 565, 
     that would eviscerate the rights of victims of dangerous and 
     defective products. As you know, MASSPIRG is a statewide, 
     non-profit, nonpartisan consumer and environmental advocacy 
     group that has fought to protect the rights of consumers for 
     many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                 Deirdre Cummings,
     Consumer Program Director.
                                                                    ____

                                 Michigan Consumer Federation,

                                                   April 18, 1995.
     Hon. Carl Levin,
     U.S. Senator, Russell Senate Office Building, Washington, DC.
       Dear Senator Levin: I appreciated meeting you at the 
     ``Teddy Bear Clinic'' where you so ably pointed out the 
     threat to public safety posed by the Republican's 
     ``regulatory moratorium.'' Your leadership for consumer 
     safety has always been appreciated.
       We need your leadership in another consumer safety area--
     products liability. With federal cutbacks in regulatory 
     programs, we look to the legal system as one of the few 
     effective means of improving product safety. Time and time 
     again, it has been private lawsuits--or the perceived threat 
     of lawsuits--which has forced corporations to either remove 
     defective products from the marketplace or improve them.
       I know you are a fan of ``cost-benefit'' analyses. So are 
     manufacturers. In a well-known memo, Ford Motor Company 
     calculated that it would cost more to prevent Pintos from 
     exploding than it would pay out in legal expenses. 
     Consequently, many Pinto owners were incinerated. Why would 
     we want to cap the only means of making ``cost-benefit'' 
     assessments favor consumer safety?
       The Michigan Consumer Federation is a member of the 
     Consumer Federation of America. Annually, CFA bestows its 
     highest honor for consumer advocacy--the Philip A. Hart 
     award. We are proud that the nation's largest and most 
     respected consumer organization recognized a Michigan giant 
     and former United States Senator for its most prestigious 
     award. That places a great deal of responsibility for those 
     of us in Michigan.
       S. 565 isn't about fairness. It's about corporations 
     wanting to ``get away with murder.'' Let's not tilt the 
     playing field in their favor. Vote for a strong system of 
     individual legal rights for victims of corporate wrongdoing. 
     It helps make products safer for all of us.
           Sincerely,
                                                      Rick Gamber,
     Executive Vice President.
                                                                    ____

                                               Citizen Action,

                                 East Lansing, MI, April 24, 1995.
     Senator Spencer Abraham,
     Dirksen Senate Office Building, Washington, DC.
       Dear Senator Abraham: On behalf of the 300,000 members of 
     Michigan Citizen Action, I want to express our strong 
     opposition to the so-called ``Product Liability Fairness 
     Act.'' I urge you to vote against efforts to move this anti-
     consumer, anti-worker legislation.
       There are three major provisions in S. 565 which have been 
     introduced in the Senate and which would have a negative 
     effect on consumers and workers. First, all bills set 
     arbitrary limits on punitive damage awards of $250,000 or 
     three times economic damages, reducing the ability to deter 
     corporations from inflicting harm on others and threatening 
     Americans' economic security and well-being. At a time when 
     Congress is talking about increasing personal responsibility, 
     it makes no sense to reduce the responsibility of 
     corporations guilty of manufacturing or selling dangerous 
     products.
       Second, S. 565 eliminates joint and several liability for 
     non-economic damages, making it difficult for consumers to 
     recover costs related to injuries such as the loss of 
     reproductive capacity, loss of sight, or disfigurement. Those 
     injuries deserve to be compensated and should not be treated 
     as less important than the loss of high salaries or 
     investment income.
       Third, S. 565 prevents workers and consumers--but not 
     businesses--from recovering for losses caused by defective 
     machines or products over 20 years old.
       I urge you to act to prevent passage of this legislation 
     which would greatly restrict the ability of injured consumers 
     to be compensated fully and for juries to act to prevent 
     future wrongdoing. this bill is not in the best interest of 
     Michigan residents. Vote ``NO'' on cloture and ``NO'' on the 
     bill.
           Yours Truly,
                                                  Linda A. Teeter,
     Program Director.
                                                                    ____

                                          Public Interest Research

                                            Group in Michigan,

                                    Ann Arbor, MI, April 25, 1995.
     Hon. Carl Levin,
     U.S. Senate,
     Washington, DC.
       Dear Senator Levin. We are writing on behalf of PIRGIM's 
     members, and on behalf of all residents of Michigan to urge 
     your strong opposition to proposed legislation, S. 565, that 
     would eviscerate the rights of victims of dangerous and 
     defective products. As you know, PIRGIM is a statewide, non-
     profit, nonpartisan consumer and environmental advocacy group 
     that has fought to protect the right of consumers for many 
     years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from the dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                  Timeen Wegmeyer,
     Campaign Director.
                                                                    ____

                                              Minnesota COACT,

                                     St. Paul, MN, April 24, 1995.
     Senator Paul Wellstone,
     Hart Office Building,
     Washington, DC.
       Dear Senator Wellstone: On behalf of Minnesota COACT's 
     40,000 statewide members, I am writing to urge you to vote 
     ``no'' on S. 565 and to vote against cloture. As a national 
     leader in the fight for health care reform, you probably 
     recognize that this legislation will seriously undermine the 
     ability of consumers to be protected from and compensated for 
     medical malpractice negligence.
       By capping the punitive damages at $250,000 or three times 
     the economic loss (whichever is greater), S. 565 restricts a 
     person's ability to obtain full and fair compensation and 
     dramatically reduces the ability to deter future wrongdoing.
       Furthermore, S. 565 eliminated joint and several liability 
     for punitive damages and non-economic loss but not for 
     economic damages. This distinction will aggravate the 
     disparity in awards between high-income earners and low-
     income earners.
       Medical malpractice causes 80,000 deaths and up to 300,000 
     serious injuries each year according to a recent Harvard 
     Medical Practice Study. For the health and safety of 
     consumers throughout Minnesota, please vote ``no'' on S. 565 
     and vote against cloture on the Senate floor.
           Sincerely,
                                                    Jon Youngdahl,
     Executive Director.
                                                                    ____

                                               [[Page S6385]]

                                      Missouri Citizen Action,

                                                   April 24, 1995.
     Senator John Ashcroft,
     Senate Office Building,
     Washington, DC.
       Dear Senator Ashcroft, Missouri Citizen Action strongly 
     urges you to vote ``no'' on Senate Bill 565. In addition, we 
     urge you to vote against cloture when the bill is debated on 
     the Senate floor. As Missouri's largest consumer coalition, 
     we can tell you that this bill could have a major negative 
     impact on the rights, and lives, of the tens of thousands of 
     Missouri consumers and families which we represent.
       Caps on punitive damages, such as those in S.B. 565, gut 
     the ability of our civil justice system to threaten real 
     punishment of those whose negligence or greed may tempt them 
     to put a product on the market which could injure us or our 
     family members. Without the threat of real punitive damages, 
     these potential corporate wrongdoers will see damages awards 
     as just another predictable cost of doing business, to be 
     factored into the price of a defective product.
       The elimination of joint and several liability for non-
     economic damages will, likewise, have a negative effect on 
     average Missourians. This provision of S.B. 565 strikes 
     especially at women, children, and seniors.
       Clearly this legislation is not in the interest of working 
     Missourians. It is merely an attempt to shield wrongdoers 
     from the consequences of their actions. In that you have 
     consistently voiced a strong opinion in favor of ``getting 
     tough'' on criminals who prey on our communities, we believe 
     that it would be inconsistent on your part to now vote to 
     protect those whose potential to harm innocent victims in the 
     pursuit of profit. Once again, we urge you to vote ``no'' on 
     S.B. 565, and to vote against cloture.
           Sincerely,
                                                   Patrick Harvey,
     Executive Director.
                                                                    ____

                                               Citizen Action,

                                      Lincoln, NE, March 28, 1995.
     Senator Bob Kerrey,
     Hart Office Building, Washington, DC.
       Dear Senator: As director of Nebraska Citizen Action, with 
     over 8,000 active members, I want to express our strong 
     opposition to the so-called ``Common Sense Legal Reforms 
     Act.'' The Senate is rushing this bill forward without full 
     debate or time for careful analysis. I urge you to vote 
     against efforts to move this anti-consumer legislation 
     forward, including procedural moves to cut off debate.
       This and similar bills pending in the Senate would restrict 
     the ability of injured consumers and workers to obtain full 
     and fair compensation and for citizen juries to impose 
     adequate deterrents to prevent future injuries.
       There are two major provisions which are common to all the 
     bills which have been introduced in the Senate and which 
     would have a negative effect on consumers and workers. First, 
     all bills would set arbitrary limits on punitive damage 
     awards of $250,000 or three times economic damages, reducing 
     the ability to deter corporations from inflicting harm on 
     others and threatening Americans' economic security and well-
     being. At a time when Congress is talking about increasing 
     personal responsibility, it makes no sense to reduce the 
     responsibility of corporations guilty of manufacturing or 
     selling dangerous products.
       Second, all bills would eliminate joint and several 
     liability for non-economic damages, making it difficult for 
     consumers to recover costs related to injuries such as the 
     loss of reproductive capacity, loss of sight, or 
     disfigurement. Those injuries deserve to be compensated and 
     should not be treated as less important than the loss of high 
     salaries or investment income. It defies all principals of 
     fairness to base how we determine compensation for damages, 
     only on a persons yearly salary.
       I urge you to act to prevent passage of this legislation, 
     which would greatly restrict the ability of injured consumers 
     to be compensated fully and for juries to act to prevent 
     future wrongdoing.
           Sincerely,
                                                      Walt Bleich,
     Director.
                                                                    ____

         Coalition for Accountability & Justice,
                                                   April 24, 1995.
     Hon. J. James Exon,
     U.S. Senate,
     Washington, DC.
       Dear Senator Exon: We, the undersigned organizations, urge 
     you to oppose efforts to weaken America's civil justice 
     system. We urge you to vote against cloture on S. 565, the 
     product liability measure sponsored by Sens. Gorton and 
     Rockefeller, or any other legislation that would weaken the 
     rights of the citizens of Nebraska.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages and deterring 
     harmful behavior. By giving ``non-economic'' damages second-
     class treatment, the bill discriminates against populations 
     with less earning power, specifically women, children, 
     seniors and low- and middle-income workers. Under S. 565, the 
     U.S. would have a two-tiered system of justice where rich, 
     high-salaried workers would be accorded better treatment and 
     higher damage awards than the rest of us. Finally, by 
     establishing new federal rules for product liability cases, 
     S. 565 removes from state authority and oversight a civil 
     justice system that has served consumers and the residents of 
     Nebraska exceedingly well. As you noted during our meeting, 
     your efforts at medical malpractice reform is but one 
     example.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen, or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years. Moreover, S. 565 adds protections for manufacturers of 
     raw materials in medical devices and for rental car 
     companies, and reduces manufacturer liability for misuses or 
     alterations made to the product by anyone else--provisions 
     that were not in last year's bill.
       One must also keep in mind that S. 565 must ultimately be 
     reconciled with the extreme revisions to the civil justice 
     system recently adopted by the House of Representatives. H.R. 
     956, in addition to the provisions outlined above, enacts an 
     arbitrary cap on pain and suffering awards in automatic 
     punitive damages shield for products that have received FDA 
     approval. In addition, the House measure extends the cap on 
     punitive damages to all civil lawsuits, and establishes an 
     arbitrary 15 year statute of repose for product liability 
     cases.
       Passage of either of these measures, or a combination of 
     the two, would cause grievous harm to the people who have 
     elected you--and depend on you--to represent their interests 
     in Congress. S. 565 does nothing to bring the rights and 
     remedies available to Nebraskans up to the proposed federal 
     standards, and yet it limits our ability to shape state law 
     in a way that would address the unique needs and concerns of 
     Nebraska citizens.
       We urge you to oppose any effort to weaken or federalize 
     product liability laws, and to vote ``no'' on cloture on S. 
     565, on S. 565, and on any conference committee reported-
     measure restricting the rights of consumers.
           Sincerely,
         John Hansen, President, Nebraska Farmers Union; Carol 
           McShane, Nebraska Women's Political Network; Jared 
           Teichmeier, President, United Rubber Workers of America 
           Local 286; Linda Burkey, Executive Director, Nebraska 
           Head Injury Association; Walt Bleich, Executive 
           Director, Nebraska Citizen Action; Cristina Sherman, 
           State Coordinator, National Organization for Women; 
           Marv Morrison, Secretary-Treasurer, Communications 
           Workers of America Local 7470; Marty Strange, Program 
           Director, Center for Rural Affairs.
                                                                    ____

         New Hampshire Citizen Action,
                                      Concord, NH, April 20, 1995.
     Senator Judd Gregg,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Gregg: I am writing to express my concerns 
     about S. 565--the Rockefeller-Gorton bill. The expressed goal 
     of this bill is to reduce the supposed explosion of product 
     liability lawsuits. It does this by effectively limiting the 
     awards a plaintive could receive: capping punitive damages 
     and eliminating joint and several liability.
       I have three problems with this bill. First, I do not think 
     that it will accomplish its goals. I am aware of no evidence 
     that capping awards will in fact reduce the number of suits 
     filed. Capping awards could in fact increase the total dollar 
     amount of liability awards if it removes the incentive for a 
     producer to correct a dangerous flaw in its product, such 
     that more injuries occur and more suits are filed.
       Second, I was under the impression that the Republican 
     Party was a supporter of the rights of victims as opposed to 
     criminals. Punitive damages are one way of compensating 
     victims injured through criminal negligence. Protecting the 
     assets of the perpetrator is wrong.
       Third is the issue of states' rights. You and your 
     Republican colleagues have gone on and on about returning 
     decision making power to the states. Yet in this bill, by 
     preempting state statutes, you would gather in to the federal 
     government powers that have belonged to the states for over 
     two hundred years. That, sir, is as big a flip-flop as Dick 
     Swett ever made!
       I urge you not to support this bill, and not to support any 
     vote for cloture on debate of this bill. Thank you.
           Sincerely,
                                            Robert D. Yager, M.D.,
       P.S.: I have been sued and lost a case involving punitive 
     damages. Despite that personal experience, I still think this 
     is a bad bill.
                                                                    ____

                                    New Jersey Citizen Action,

                                   Hackensack, NJ, April 18, 1995.
     Hon. Bill Bradley,
     Senate Office Building, Washington, DC.
       Dear Senator Bradley: New Jersey Citizen Action in 
     requesting that you vote ``NO'' on Senate Bill 565. 
     Additionally we are asking you to vote against cloture. If 
     this bill is passed, it will have a devastating effect on the 
     115,000 families that are members of N.J.C.A.
       [[Page S6386]] By capping punitive damages at $250,000 or 
     three times the economic loss (which ever is greater) the 
     legislation removes ``the punishment'' that is supposed to be 
     reflected in the damages. It becomes cheaper to pay the 
     damages than to rectify the situation.
       Eliminating joint and several liability for non-economic 
     damages discriminates against women, children, and seniors. 
     Non-economic loss is much more than pain and suffering--it 
     could also be loss of reproductive capacity, loss of sight or 
     disfigurement.
       Obviously this bill is not in the best interests of New 
     Jersey residents. Once again we ask you to vote ``NO'' on 
     Senate Bill 565 and vote against cloture.
           Very truly yours,
                                              Phyllis Salowe-Kaye,
     Executive Director.
                                                                    ____

                                        New Jersey Public Interest

                                               Research Group,

                                      Trenton, NJ, April 24, 1995.
     Hon. Frank Lautenberg,
     U.S. Senate, Washington, DC.
       Dear Senator Lautenberg: We are writing on behalf of 
     NJPIRG's members, and on behalf of all residents of New 
     Jersey to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights of 
     victims of dangerous and defective products. As you know, 
     NJPIRG is a statewide, non-profit, nonpartisan consumer and 
     environmental advocacy group that has fought to protect the 
     rights of consumers for many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                     Andy Igrejas,
     Consumer Advocate.
                                                                    ____

                              New Jersey Tenants Organization,

                                   Hackensack, NJ, April 20, 1995.
     Hon. Frank Lautenberg,
     U.S. Senate, Washington, DC.
       Dear Senator Lautenberg: The New Jersey Tenants 
     Organization (NJTO) opposes any changes in joint and several 
     liability and the imposition of punitive damage caps. This is 
     not reform; it is war on consumers.
       Please oppose the tort reform legislation now before the 
     Senate and vote ``NO.''
       Thank you for your anticipated stand in favor of the 
     consumers of the State of New Jersey.
           Yours truly,
                                                   Bonnie Shapiro,
     Administrative Director.
                                                                    ____

                                   Citizen Action of New York,

                                       Albany, NY, April 24, 1995.
     Hon. Daniel Patrick Moynihan,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Moynihan: We are writing to urge that you 
     protect victims of dangerous products by voting to be sure 
     that S. 565 never comes to the Senate floor and continuing to 
     oppose S. 565 and any other measures that would strip victims 
     of dangerous products, incompetent doctors or other negligent 
     parties of their fundamental rights to justice and fair 
     compensation.
       Those who would vote for S. 565 forget the famous exploding 
     Pinto, a traveling bomb that Ford's bean counters let stay on 
     the road rather than spend a few dollars to fix the gas tank. 
     They would forget the damage to women from the Dalkon shield 
     and breast implants, products that the manufacturers knew 
     might cause harm. They would forget those children who were 
     horribly burned by flammable pajamas. And they would forget 
     the thousands of workers who were exposed to asbestos decades 
     after the manufacturers knew that the material caused cancer.
       There are very few cases a year, 15, in which punitive 
     damages are awarded. But the threat of these damages is too 
     often the only barrier to more companies making the cold 
     calculation that making a safe product isn't worth the cost. 
     Artificial caps on punitive damages will result in a slap on 
     the wrist to negligent corporations and expose American 
     consumers to dangerous products.
       The provision in S. 565 that would not allow workers or 
     consumers to sue over damages caused by older products, but 
     allows companies to sue, reveals the vicious anti-consumer 
     bias of this bill. If the bill were honestly concerned about 
     the legal system why would it allow businesses to sue but not 
     consumers or workers? The exemption for businesses shows that 
     the authors primary motive is to protect corporations from 
     being punished for the harm their negligence causes to 
     consumers and employees.
       We also urge your opposition to changes in joint and 
     several liability. This provision only increases the 
     likelihood that a victim will not be fairly compensated for 
     the injuries and suffering caused by negligence. Those who 
     are the most vulnerable, women, children and the elderly, 
     will lose the most if joint and several liability is 
     eliminated.
       Finally, we remain concerned that the Senate will consider 
     establishing a cap on pain and suffering in medical 
     malpractice cases. Such an action would be particularly 
     ironic coming just after well publicized incidents of medical 
     malpractice. The facts remain that, as the Office of 
     Technology Assessment found in a recent report, caps on 
     malpractice awards will have no impact on the nation's health 
     care costs but they will save money for doctors at the 
     expense of victims of gross malpractice.
       We urge your continued vigilance on behalf of victims of 
     negligence by voting against cloture for S. 565 and working 
     vigorously to oppose any other measures that would gut the 
     civil justice system.
           Sincerely,
                                                   Richard Kirsch,
     Executive Director.
                                                                    ____

                            Empire State Consumer Association,

                                    Rochester, NY, April 19, 1995.
     Hon. Alfonse M. D'Amato,
     Hart Building, U.S. Senate, Washington, DC.
       Dear Senator D'Amato: I want to express our strong 
     opposition to S. 565, the ``Product Liability Fairness Act of 
     1995.'' This bill would restrict the ability of injured 
     consumers to obtain full and fair compensation and for 
     citizen juries to impose adequate deterrents to prevent 
     further injuries.
       There are two major provisions of this legislation which 
     would have a negative effect on consumers and workers. First, 
     this bill would set arbitrary limits on punitive damage 
     awards of $250,000 or three times economic damages, reducing 
     the ability to deter corporations from inflicting harm on 
     others and threatening Americans' economic security and well-
     being. At a time when Congress is talking about increasing 
     personal responsibility, it makes no sense to reduce the 
     responsibility of corporations guilty of manufacturing or 
     selling dangerous products.
       Second, this bill would eliminate joint and several 
     liability for non-economic damages, making it difficult for 
     consumers to recover costs related to injuries such as the 
     loss of reproductive capacity, loss of sight, or 
     disfigurement. Those injuries deserve to be compensated and 
     should not be treated as less important than THE loss of high 
     salaries or investment income. For similar reasons as those 
     described, CFA also urges you to oppose S. 454, ``The Health 
     Care Liability and Quality Act'' which would severely affect 
     the rights of injured patients.
       I urge you to act to prevent passage of this legislation, 
     which would greatly restrict the ability of injured consumers 
     to be compensated fully and for juries to act to prevent 
     further wrongdoing.
           Sincerely yours,
     Judy Braiman.
                                                                    ____

                                               Citizen Action,

                                      Raleigh, NC, March 14, 1995.
     Hon. D.M. Lauch Faircloth,
     U.S. Senate, Hart Office Building, Washington, DC.
       Dear Senator Faircloth: On behalf of North Carolina Citizen 
     Action, I would like to express our strong opposition to the 
     so-called ``Product Liability Fairness Act'', S. 565. I urge 
     you to vote against efforts to pass this legislation, as it 
     is anything but fair to your constituents or to any 
     individual American citizen.
       While the proponents of this bill have attempted to cast a 
     ``moderate'' light on the legislation, painting it as more 
     fair and equitable than proposed legal reforms which came 
     before it, our careful study from the consumer's perspective 
     has revealed that it is neither fair nor equitable to real 
     Americans. Areas of particular concern include:
       Punitive damage caps of $250,000 or three times the 
     economic loss. Imposing such caps completely undermines the 
     important deterrent effect which these damages have on 
     corporate wrongdoing. While punitive damages are rarely used, 
     the very threat of that their existence presents has proven 
     to be critical in persuading manufacturers to improve the 
     safety of their products or in actually removing unsafe 
     products from the marketplace. If you undermine this system, 
     American consumers truly will be at the mercy of big 
     business.
       Elimination of joint and several liability for non-economic 
     damages. This provision discriminates against the most 
     vulnerable members of our society--women, children, seniors, 
     the poor--whose form of compensation would most likely be in 
     the form of non-economic damages. This legislation says that 
     only the wealthy should be empowered to hold wrongdoers 
     accountable for their 
      [[Page S6387]] egregious behavior. These damages also cover 
     a great deal more than just pain and suffering, as is often 
     thought. They also cover loss of reproductive capacity, loss 
     of sight, and disfigurement. Is it fair to punish individuals 
     who have suffered these tragedies?
       S. 565 is not fair, although its name attempts to imply 
     otherwise. It is not fair to the workers, to women, to 
     children, to the real people of this country. It is a one-
     sided, unjustified and cynical attempt to provide a subsidy 
     to big business at the expense of the American consumer.
       We understand that S. 565 will be brought to the floor on 
     Monday, April 24 and a vote on cloture could come within a 
     few days of this. We urge you to cast your vote on behalf of 
     your constituents and all American citizens and oppose S. 565 
     by voting ``NO'' on cloture.
           Sincerely,
                                                    Lori Everhart,
     State Director.
                                                                    ____

                                      Coalition for Accountability

                                                  and Justice,

                                                    April 4, 1995.
     Hon. Kent Conrad,
     Hon. Byron Dorgan,
     U.S. Senate, Washington, DC.
       Dear Senators: We, the undersigned organizations, urge you 
     to oppose efforts to weaken America's civil justice system, 
     and to vote ``no'' on S. 565, the product liability measure 
     sponsored by Sens. Gorton and Rockefeller.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages and deterring 
     harmful behavior. By limiting pain and suffering damages in 
     some cases, the bill will severely restrict awards to certain 
     groups--including seniors, women, and children--and favor the 
     rich who, in the case of death or serious injury, have high 
     lost wages, over the rights of low- and middle-income wage 
     earners. Finally, by establishing brand new federal rules for 
     product liability cases, S. 565 removes from state authority 
     and oversight a civil justice system that, despite the 
     hyperbole of the big business interests backing this 
     legislation, has served consumers and the residents of North 
     Dakota exceedingly well.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen, or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years.
       Even if one reasonably believes that the measure introduced 
     by Sens. Gorton and Rockefeller is sound public policy (which 
     we do not), it must ultimately be reconciled with the extreme 
     revisions to the civil justice system recently adopted by the 
     House of Representatives. H.R. 956, in addition to the 
     provisions outlined above, enacts an arbitrary cap on pain 
     and suffering awards in medical malpractice and cases 
     involving drugs and medical devices, at the same time it 
     offers an automatic punitive damages shield for products that 
     have received FDA approval. In addition, the House measure 
     extends the cap on punitive damages to all civil lawsuits, 
     and establishes an arbitrary 15 year statute of repose for 
     product liability cases. Passage of either of these measures, 
     or a combination of the two, would cause grievous harm to the 
     people who have elected you--and depend on you--to represent 
     their interest in Congress. We urge you to oppose any effort 
     to weaken or federalize product liability laws, and to vote 
     ``no'' on cloture on S. 565, and on any conference committee 
     reported-measure restricting the rights of consumers.
           Sincerely,
         Gerrard Friesz, North Dakota Public Employees 
           Association.
         Pam Solwey, North Dakota DES Action.
         Sherry Shadley, North Dakota Clean Water Action.
         Chuck Stebbins, Dakota Center for Independent Living.
         Pauline Nygaard, North Dakota Breast Implant Coalition.
         Don Morrison, North Dakota Progressive Coalition.
         Lani Weatherly, Laborers International Union, Local 580.
         Jude M. Reilly, Boilermakers Local 647.
         Gary L. Nelson, Ironworkers Local 793.
         John Risch, United Transportation Union.
         Dexter Perkins, Sierra Club, Agassiz Basin Group.
         Gary McKenzie, Plumbers and Pipefitters Local 338.
         Rev. Jack Seville, United Church of Christ (organization 
           for identification only).
         Dean Cypher, Teamsters Local 116.
         Al Thomas, Teamsters Local 123.
         Norman Stuhlmiller, (former chairperson, Legislative 
           Committee, North Dakota AARP).
         Logan Dockter, Plumbers and Pipefitters Local 795.
         Jeff Husebye, Doug Swanson, Workers Against Inhumane 
           Treatment.
                                                                    ____

                                               Citizen Action,

                                                   April 24, 1995.
     Members of the U.S. Senate, Washington, DC:
       Dear Senators: I am writing on behalf of Ohio Citizen 
     Action, Ohio's largest consumer and environmental 
     organization, to urge Members of the Senate to oppose S. 565 
     and to vote against cloture. There are a number of reasons 
     for our opposition to this bill, but we will briefly mention 
     only two.
       First, the cap on punitive damages would unquestionably 
     undermine the potential for such assessments to truly punish 
     wrongdoers. While punitive damage assessments are rare in 
     product liability cases, they often are the only means for 
     citizens to stop the reckless behavior of a wrongdoer. With 
     the arbitrary cap, not only would future punitive damage 
     assessments not adequately punish the wrongdoer, but 
     companies could calculate whether it would be more cost-
     effective to produce a safe product or risk punitive damages.
       Second, the statute of repose would deny workers and 
     consumers their right to seek compensation if they are 
     injured by a product that is more than twenty years old. It 
     is, by no means, uncommon for workplace equipment to exceed 
     this limit. At the same time, however, businesses are exempt 
     from this restriction. The company can still sue for 
     commercial losses.
       S. 565 would be a giant step backwards in a legal system 
     that now works reasonably well to protect average Americans. 
     We urge you to oppose S. 565 and to vote against cloture.
       Thank you for your consideration.
           Sincerely,
                                                       Shari Weir,
     Consumer Issues Director.
                                                                    ____

         Ohio Public Interest Research Group,
                                     Columbus, OH, April 25, 1995.
     Hon. Mike DeWine,
     U.S. Senate, Washington, DC.
       Dear Senator DeWine: We are writing on behalf of Ohio 
     PIRG's members, and on behalf of all residents of Ohio to 
     urge your strong opposition to proposed legislation, S. 565, 
     that would eviscerate the rights of victims of dangerous and 
     defective products. As you know, Ohio PIRG is a statewide, 
     non-profit, nonpartisan consumer and environmental advocacy 
     group that has fought to protect the rights of consumers for 
     many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                      Amy Simpson,
     Campaign Director.
                                                                    ____

         Oregon State Public Interest Research Group,
                                     Portland, OR, April 25, 1995.
     Hon. Mark Hatfield,
     U.S. Senate, Washington, DC.
       Dear Senator Hatfield: We are writing on behalf of OSPIRG's 
     members, and on behalf of all residents of Oregon to urge 
     your strong opposition to proposed legislation, S. 565, that 
     would eviscerate the rights of victims of dangerous and 
     defective products. As you know, OSPIRG is a statewide, non-
     profit, nonpartisan consumer and environmental advocacy group 
     that has fought to protect the rights of consumers for many 
     years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. It caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       [[Page S6388]] These anti-consumer provisions of S. 565 
     make it unacceptable. Yet the Senate must also consider that, 
     if passed, S. 565 would have to be reconciled with the even 
     more egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
           Sincerely,
                                                     Maureen Kirk,
                                               Executive Director.
                                Victims Against Lethal Valves,

                                    Pittsburg, PA, April 19, 1995.
     Hon. Arlen Specter,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: As founder and leader of V.A.L.V. 
     (Victims Against Lethal Valves) I am writing to you for all 
     implanted victims of the Bjorg/Shiley ConvexoConcave heart 
     valve to urge you to vote against bill S. 565.
       We oppose this legislation as it definitely limits the 
     rights of consumers in our civil justice system. We believe 
     bill S. 565 is an anti-consumer legislative move that will 
     only enhance the rights of big business, i.e., manufacturers. 
     We believe that this bill will only encourage manufacturers 
     to have a stronger attitude of uncaring towards the products 
     they produce and place in the marketplace for the consumer. 
     Today, with workers' relaxed attitudes and work ethics it 
     would hardly be a feasible idea to give the manufacturers a 
     freer hand in the quality control of products. This is a time 
     when we need stronger controls over big business, not the 
     consumer. The consumer is being hurt enough as it is with the 
     dangerous quality of products that is being turned out to 
     them now.
       Injuries that are the result of a manufacturer's flaw 
     should be compensated to the injured. When products are 
     marketed as being wonderful and safe in fancy, expensive 
     advertisements to draw in the consumer to purchase, the 
     manufacturer should be responsible for any consequence after 
     the sale of their product if it has been flawed from the 
     manufacturing process.
       V.A.L.V. members throughout the state of Pennsylvania 
     strongly urge you to vote against bill S. 565 as well as 
     similar legislation and to vote against cloture.
       We thank you for considering our fears.
           Respectfully yours,
                                               Elaine S. Levenson,
     Founder.
                                                                    ____

                                                   Citizen Action/

                                         Pennsylvania Chapter,

                                                   April 21, 1995.
     Hon. Arlen Specter,
     U.S. Senate, Washington, DC
       Dear Senator Specter: On behalf of our 40,000 members in 
     Pennsylvania, we are writing to express our strong opposition 
     to S. 565, the so-called ``Product Liability Fairness Act'' 
     sponsored by Senators Rockefeller and Gorton. We urge you to 
     oppose any effort to move this anti-consumer, anti-worker 
     legislation forward, including procedural moves to cut off 
     debate.
       S. 565 would drastically limit the ability of injured 
     consumers and workers to obtain full and fair compensation, 
     and would restrict the ability of citizen juries to impose 
     adequate deterrents to prevent future injuries.
       Specifically, S. 565 would place caps on punitive damage 
     awards of $250,000 or three times economic damages. Such 
     awards, while rare, are designed to punish corporations that 
     intentionally or recklessly disregard the safety of 
     consumers, and to deter other corporations from such 
     behavior. Placing arbitrary limits on punitive damages will 
     only serve to encourage such behavior, placing consumers at 
     greater risk.
       S. 565 would also eliminate joint and several liability for 
     noneconomic damages, making it difficult for consumers to 
     recover costs related to injuries such as the loss of child-
     bearing capacity, loss of sight or limb, or disfigurement. 
     This provision places a greater value on lost income, thereby 
     discriminating against women, children, and senior citizens.
       Finally, this bill would prevent workers and consumers--but 
     not businesses--from recovering damages for losses caused by 
     defective machines or products that are more than 20 years 
     old.
       We strongly urge you to protect the legal rights of 
     consumers and workers throughout Pennsylvania by voting 
     against passage of S. 565 and voting against cloture. Thank 
     you for your consideration.
           Sincerely,
     Lauren Townsend,
       Philadelphia Area Director.
     Jennifer O'Donnell,
       Pittsburgh Area Director.
                                                                    ____

         Pennsylvania Public Interest Research Group,
                                 Philadelphia, PA, April 24, 1995.
     Protect Victims of Dangerous Products--Oppose Cloture and 
         Vote No on S. 565.
     Hon. Arlan Specter,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: We are writing on behalf of 
     PennPIRG's members, and on behalf of all residents of 
     Pennsylvania to urge your strong opposition to proposed 
     legislation, S. 565, that would eviscerate the rights of 
     victims of dangerous and defective products. As you know, 
     PennPIRG is a statewide, non-profit, nonpartisan consumer and 
     environmental advocacy group that has fought to protect the 
     rights of consumers for many years.
       Each year, more than 28 million Americans are injured by 
     consumer products and 21,000 are killed. Why should this 
     Senate pass legislation that limits the legal rights of 
     victims at the same time as it is cutting back funding for 
     the federal agencies that are supposed to protect consumers 
     from these dangerous products?
       S. 565, the so-called Product Liability ``Fairness'' Act 
     is, in fact, manifestly unfair to consumers. We have numerous 
     problems with the bill. Its caps on punitive damages will 
     encourage faulty product design. Its limits on pain and 
     suffering damages unfairly and unjustly restrict awards to 
     women, children and senior citizens who are harmed. Its 
     preemption of numerous stronger state laws is unfair to all 
     consumers.
       These anti-consumer provisions of S. 565 make it 
     unacceptable. Yet the Senate must also consider that, if 
     passed, S. 565 would have to be reconciled with the even more 
     egregious and extreme House-passed bill. H.R. 1075, in 
     addition to the measures above, arbitrarily caps pain and 
     suffering awards in medical malpractice cases and establishes 
     an automatic punitive damages shield for FDA-approved 
     products. Worse, the House cap on punitive damages extends to 
     all civil lawsuits, not only to product liability cases.
       We urge you to vote against cloture on S. 565, against S. 
     565 and against any conference measure restricting the rights 
     of consumers. We look forward to hearing your views on this 
     important legislation. Please contact me if you or your staff 
     have any questions.
       Sincerely,
                                                 Stephanie Haynes,
     Campaign Director.
                                                                    ____

                                                   DES Action,

                                    Nescopeck, PA, April 24, 1995.
       Dear Senator Rick Santorum: On behalf of 480,000 DES 
     exposed in Pa. we deplore you to oppose S.B. 565.
       We still deserve to have a trial by jury and also awarded 
     as they see fit. That means no PS!
       Common Sense Legal Reform was written to protect major 
     corporations and forgetting the real victims. Such as 10 
     million DES exposed.
       Our spouses deserve to receive compensation for * * * 
     several liability.
       DES Action Pa. would urge you to prevent passage of any 
     legislation, which would greatly restrict the ability of 
     injured consumers to be compensated fully and * * * injured 
     to act to prevent further wrongdoing.
           Sincerely,
     Mary Jean Greco Golomb.
                                                                    ____

                                         Pennsylvania AFL-CIO,

                                    Harrisburg, PA, April 6, 1995.
     Re S. 565--Product Liability.
     Hon. Rich Santorum,
     U.S. Senate, Dirkson Bldg.,
     Washington, DC.
       Dear Senator Santorum: We are writing to urge your strong 
     opposition to S. 565, reforms to the Product Liability Law. 
     S. 565 will have its most dramatic effect on working men and 
     women who are injured by defective machinery. It is our 
     understanding that 60% of the Product Liability claims arise 
     from workplace injuries.
       First and foremost, we are concerned that weakening the 
     Product Liability Law will undermine safety in the workplace. 
     As a practical matter, it is the threat of a lawsuit that 
     encourages manufacturers to design and produce safe 
     machinery. OSHA, which could play some role, has been 
     ineffective in regulating in this area and is likely to 
     continue to be ineffective. We must look to the Product 
     Liability Law as the single most important force for safety 
     machinery in the workplace.
       The specific changes proposed by S. 565 will not only 
     undermine safety, but unfairly deny injured workers 
     compensation for loss of body part or body function.
       Several issues are of priority concern for Pennsylvania 
     workers:
       (1) Twenty-year Statute of Repose:
       The statute of repose would deny the right to file a claim 
     if a worker is injured by machinery more than 20 years old. 
     Pennsylvania, as you know, is a mature industrial state. Many 
     of our workers are working with machinery that is older than 
     20 years.
       To cut off their rights by a fixed time limitation is 
     artificial and will deny those injured any remedy. The age of 
     the machine should be taken into account in determining the 
     defect, but the proposed change is inflexible and unfair. 
     Finally, it will create a market for used machinery rather 
     than encourage
      new manufacturing of safer equipment.
       (2) The overriding of both the Federal Employers' Liability 
     Act and the Longshoremen's and Harbor Workers Compensation 
     Act will hurt those covered by these laws in Pennsylvania--
     specifically our Longshoremen and Railroad and Airline 
     workers.
       (3) The elimination of joint and several liability could 
     end up leaving injured workers with no responsible party to 
     pay for a judgement and award.
       [[Page S6389]] (4) The cap on punitive damages again is 
     arbitrary and will undermine the incentive to produce safe 
     machinery. The cap of $250,000 is artificially low and fails 
     to consider the reality that few punitive damages are awarded 
     under current Pennsylvania law.
       The real purpose of punitive damages is to control 
     outrageous conduct on the part of manufacturers.
       These are just some of our major concerns with S. 565.
       We urge you to strongly oppose this legislation and vote in 
     support of encouraging the manufacture of safe products. Each 
     year, 150,000 Pennsylvanians experience serious workplace 
     injuries and close to 5,000 occupationally caused deaths 
     occur. Many of these injuries and diseases are caused by 
     defective products. S. 565 will only add to the pain and 
     suffering of those who go to work each day with an 
     expectation of returning home safe.
       Thank you.
           Sincerely,
     William M. George,
       President.
     Richard W. Bloomingdale,
       Secretary-Treasurer.
                                                                    ____

                                      Coalition for Accountability

                                                     & Justice

                                                   April 24, 1995.
     Hon. Larry Pressler,
     Hon. Thomas Daschle,
     U.S. Senate, Washington, DC.
       Dear Senator: We, the undersigned organizations, urge you 
     to oppose efforts to weaken America's civil justice system. 
     We urge you to vote against cloture on S. 565, the product 
     liability measure sponsored by Sens. Gorton and Rockefeller, 
     or any other legislation that would weaken the rights of the 
     citizens of South Dakota.
       By restricting the rights of victims of dangerous and 
     defective products, this measure undermines the role of the 
     civil justice system in redressing damages and deterring 
     harmful behavior. By giving ``non-economic'' damages second-
     class treatment, the bill discriminates against populations 
     with less earning power, specifically women, children, 
     seniors and low- and middle-income workers. Under S. 565, the 
     U.S. would have a two-tiered system of justice where rich, 
     high-salaried workers would be accorded better treatment and 
     higher damage awards than the rest of us. Finally, by 
     establishing brand new federal rules for product liability 
     cases, S. 565 removes from state authority and oversight and 
     civil justice system that, despite the hyperbole of the big 
     business interests backing this legislation, has served 
     consumers and the residents of South Dakota exceedingly well.
       S. 565 is far more restrictive than last year's Senate 
     product liability bill. First and foremost, the bill 
     establishes a cap on punitive damages of three times economic 
     loss, or $250,000, whichever is greater. Under this cap, 
     corporations will be punished more if they injure or kill a 
     corporate executive than if the same conduct harms a child, a 
     senior citizen, or a schoolteacher. How can this be fair? In 
     addition, the bill establishes a 20 year limit on lawsuits 
     for capital goods--in last year's bill, the limit was 25 
     years. Moreover, S. 565 adds protections for manufacturers of 
     raw materials in medical devices and for rental car 
     companies, and reduces manufacturer liability for misuses or 
     alterations made to the product by anyone else--provisions 
     that were not in last year's bill.
       Even if one reasonably believes that the measure introduced 
     by Sens. Gorton and Rockfeller is sound public policy (which 
     we do not), it must ultimately be reconciled with the extreme 
     revisions to the civil justice system recently adopted by the 
     House of Representatives. H.R. 956, in
      addition to the provisions outlined above, enacts an 
     arbitrary cap on pain and suffering awards in medical 
     malpractice and cases involving drugs and medical devices, 
     at the same time it offers an automatic punitive damages 
     shield for products that have received FDA approval. In 
     addition, the House measure extends the cap on punitive 
     damages to all civil lawsuits, and establishes an 
     arbitrary 15 year statute of repose for product liability 
     cases.
       Passage of either of these measures, or a combination of 
     the two, would cause grievous harm to the people who have 
     elected you--and depend on you--to represent their interests 
     in Congress. We urge you to oppose any effort to weaken or 
     federalize product liability laws, and to vote ``no'' on 
     cloture on S. 565, on S. 565, and on any conference committee 
     reported-measure restricting the rights of consumers.
           Sincerely,
         Mike Coffey, AFSCME; Bob Burns, South Dakota State 
           University; Jeanne Koster, South Dakota Peace and 
           Justice Center; Jack E. Dudley, South Dakota AFL-CIO; 
           Roann Redlin, South Dakota Coalition Against Domestic 
           Violence; Phyllis Bitterman, United Paperworks 
           International Union; Karen Fogas, East River Group 
           Sierra Club; David Feller, IBEW, Local 426; Charon 
           Asetoyer, Native American Women's Health and Education 
           Center; Jim Larson, UFCW Local 304A; Roann Redlin, 
           South Dakota Advocacy Network; Sam Clauson, Black Hills 
           Group Sierra Club; Mary Kirkus, South Dakota DES 
           Action; Charon Asetoyer, Native American Women's 
           Reproductive Rights Coalition; Darrell Drapeau, Yankton 
           Sioux Tribe; Rick Davids, United Transportation Union.
                                                                    ____

                                               Citizen Action,

                                    Nashville, TN, April 20, 1995.
     Hon. Fred Thompson,
     Dirksen Senate Office Building, Washington, DC.
       Dear Senator Thompson: Greetings from Nashville. I am 
     director of Tennessee Citizen Action, a grassroots consumer 
     group with over 5,000 members across the state. I am writing 
     to express Citizen Action's strong concerns about S. 565, the 
     product liability bill to be considered next week on the 
     Senate floor.
       It is our view that this legislation would have serious 
     implications for the health and safety of your constituents. 
     S. 565 would impose federal requirements, for the first time 
     in over two hundred years, on an area which has been under 
     state authority. In doing so, we believe that it would limit 
     both the ability of injured consumers to obtain fair 
     compensation and the ability of citizen juries to hold guilty 
     parties accountable for their actions. As a result, the 
     incentives which have convinced many companies to improve the 
     safety of their products will be lessened.
       While there are a number of troubling provisions in S. 565, 
     I would like to raise two key issues. First, the bill would 
     destroy the ability of citizen juries to impose penalties on 
     wrongdoers in order to prevent future injuries. Punitive 
     damages are rarely used. In fact, over the last 25 years, 
     punitive damages have been awarded in less than 15 cases each 
     year (less than 11 cases excluding asbestos cases). But 
     punitive damages have proven to be critical in persuading 
     manufacturers to improve the safety of their products or 
     remove unsafe products from the marketplace. By placing 
     arbitrary caps on awards, S. 565 would make it virtually 
     impossible for citizen juries to act to protect society from 
     future harm. At a time when Congress is considering limits on 
     federal regulation, it makes little sense to further erode 
     the ability of people to use the courts as a way to improve 
     the safety of the marketplace.
       Second, S. 565 would establish a discriminatory legal 
     system in which the level of compensation is based not on the 
     level of the injury, but on the economic status of the 
     injured consumer. By eliminating joint and several liability 
     for non-economic damages, the bill states that it is not 
     important to compensate individuals for having to live with 
     excruciating pain, disfigurement, blindness, or loss of the 
     ability to bear children.
       Given these and other provisions, Tennessee Citizen Action 
     believes that the passage of S. 565 would be detrimental to 
     consumers and the nation. We appreciate your consideration of 
     our views and look forward to learning your position on these 
     important issues.
           Sincerely,
                                                 C. Brian McGuire,
                                                   State Director.
     
                                                                    ____
                                         Texas Citizen Action,
                                       Austin, TX, April 23, 1995.
     Hon. Phil Gramm,
     U.S. Senate, Washington, DC.
       Dear Senator Gramm: We are writing you to ask for your vote 
     against cloture on S.565 the ``Unfair Product Liability Act'' 
     introduced by Senator Rockefeller. We are extremely concerned 
     about the impact this will have on the safety standards of 
     everyday products for consumers and innocent citizens. We 
     believe there are several provisions of the bill which will 
     eliminate the consumers ability to hold wrongdoers 
     accountable for their actions, and limit innocent victims 
     recourse to fully recover for damages they have accrued.
       Capping punitive damages will do nothing to increase safety 
     standards for innocent consumers. By limiting punitive damage 
     awards to $250,000 or three times economic damages you are 
     creating a nuisance expense for multi-billion dollar 
     companies such as Ford Motor Company or Dow Chemical. This is 
     creating a predictability in the market place for the minute 
     number of companies who act negligently allowing them to 
     calculate their risk for producing a less than safe product 
     and further lets them rest assured they will never be held 
     liable past a certain dollar amount.
       S.565 prevents consumers from holding manufacturers of 
     products which cause significant harm or injury accountable 
     if the product is older than 20 years. Many products are 
     intended to last longer than 20 years. This law however, 
     would eliminate all consumer rights to be made whole if a 20 
     year old product caused significant harm or damages. This is 
     an example of corporate wrongdoers being protected at the 
     expense of consumers protection.
       The elimination of ``Joint and Several Liability'' is a 
     slap in the face to innocent individuals, families, and 
     communities. Allowing guilty defendants off the hook without 
     having to make innocent victims 100% whole is a disgrace. We 
     will without a doubt see victims paying for portions of their 
     damages even when they were completely without fault. This 
     will not only affect individuals but likewise families, 
     communities, cities, and states. We will see wrongdoers 
     getting off free of charge while cities, towns, and families 
     pick up the tab for the irresponsible behavior of others.
       Texas Citizen Action has a membership of well over 150,000 
     citizens. These people have joined our organization because 
     they believe in the positions we take on consumer protection 
     issues. The passage of S.565 will be a major step backwards 
     for individuals and communities and their rights to hold 
     others 
      [[Page S6390]] accountable for wrongs they may commit. We 
     ask you to vote against cloture on S.565 for the citizens of 
     Texas.
           Sincerely,
                                                     Daniel Lambe,
     Program Director.
                                                                    ____

                            Defenders of the Rights of Texans,

                                       Austin, TX, April 24, 1995.
     Re S. 565.
     Hon. Kay Bailey Hutchison,
     U.S. Senate, Washington, DC.
       Dear Senator Hutchison: Defenders of the Rights of Texans 
     (DRT) is asking you to vote against cloture on S. 565, Sen. 
     Rockefeller's ``Unfair Product Liability Act.'' This bill 
     will adversely impact the safety standards of products which 
     we consumers utilize on a daily basis. We strongly feel that 
     victims of unsafe products must retain the ability to hold 
     accountable those who produce products which kill and maim. 
     Limiting damages does not protect consumers, it protects 
     manufacturers of products that injure consumers. That should 
     not happen!
       The effect of eliminating some of the current protections 
     in the law will be to make the victim pay twice, even when 
     they contributed nothing to the accident or injury. If 
     Congress eliminates ``Joint and Several Liability'', you will 
     make it difficult for your constituents to recover fully from 
     their misfortune. The only pain and suffering you will be 
     eliminating is that of the offending party. We support 
     victims' rights, not the rights of those corporations or 
     individuals who do not want to take responsibility when their 
     products harm the American public.
       We oppose capping punitive damages because we know that it 
     takes significant awards to get the attention of 
     manufacturers who continue to foist its products on an 
     unsuspecting public years after the corporation knows the 
     product to be unsafe. Why Congress would consider rewarding 
     such unacceptable behavior is beyond our organization's 
     comprehension.
       Defenders of the Rights of Texans is a coalition of 
     individuals and organizations--consumer, environmental, 
     worker, academic, clergy, student, and victims--who oppose 
     sacrificing our rights on the alter of corporate greed. We 
     ask you to represent our interests by voting against cloture 
     on S. 565.
           Sincerely,
                                                      Bob Comeaux,
     San Antonio, TX.
                                                                    ____

                                    Virginia National Organization

                                                    For Women,

                                                   April 15, 1995.
     Hon. Charles Robb,
     U.S. Senate, Washington, DC.
       Dear Senator Robb, Virginia N.O.W., represents some 20,000 
     Virginia women. We are writing to urge you to vote no on 
     cloture and no on S. 565 and any other measure that restricts 
     individual legal rights.
       S. 565, the ``Product Liability Fairness Act'', is in fact, 
     unfair. By limiting non-economic damages, it give wealthy 
     individuals and corporations greater rights than middle-
     income citizens and families. Additionally, S. 565 transfers 
     authority for the civil justice system from the states to the 
     federal government. States know better how to serve its 
     individual citizens and the issues that impact the citizens 
     than the Washington bureaucracy. Whatever happened to the 
     idea of states' rights and limiting the power of the federal 
     government? S. 565 caps pain and suffering awards on medical 
     malpractice suits. Why single out a particular type of 
     lawsuit to cap awards?
       Virginia N.O.W. has supported many women who have filed 
     lawsuits, for both international and negligent injuries. 
     During the 1995 legislative session we along with other 
     citizens groups such as the VTLA, NAACP, ACLU, LofWV, worked 
     hard to obtain a compromise on the Virginia Human Rights Act. 
     A bill which passed the legislative session only to be vetoed 
     by the Governor. The bill reverses the Lockhart decision, 
     which basically prevents a small business employee from 
     filing a lawsuit based on race, color, sex or national 
     origin. Additionally, VA N.O.W. supports lawsuits for sexual 
     harassment, defective products, product liability, employment 
     discrimination and of course intentional injury. Economic 
     justice as well as civil justice must be preserved. S. 565 
     seeks to destroy both, please vote ``no'' on S. 565.
       People all across America are closely watching the new 
     Republican majority in Congress in an effort to determine 
     whether it truly represents the people or big business. 
     Surely, the outcome and deliberations of S. 565 will provide 
     an answer.
           Sincerely,
     Dulaney S. Nickerson.
                                                                    ____

                                               Citizen Action,

                              Charlottesville, VA, April 17, 1995.
     Hon. Charles S. Robb,
     Russell Senate Office Building, Washington, DC.
       Dear Senator Robb: I am writing on behalf of Virginia 
     Citizen Action and its over 50,000 members to ask you to 
     oppose S. 565, the ``Product Liability Fairness Act.'' We 
     would ask you that you do whatever is necessary to defeat 
     this bill, including voting against any effort invoke cloture 
     on debate.
       Senator, this bill would make America a much more dangerous 
     place for all of us. By capping punitive damages, this bill 
     will send a signal to corporate wrongdoers that they can 
     escape any real punishment for making and selling products 
     that will kill or injure innocent people. S. 565 would 
     eliminate the deterrent effect of punitive damages and remove 
     one of the real protections Americans have had for over 200 
     years.
       This bill is anything but fair. By eliminating joint and 
     several liability for non-economic damages, it discriminates 
     against women, children and seniors. Non-economic damages are 
     not just pain and suffering. What about a women's loss of the 
     ability to bear children or a child's disfigurement for life!
       Senator, S. 565 is not ``moderate'' and it is not ``fair''. 
     We hope that you will work to defeat this bill and protect 
     every Virginian and every American from those special 
     interests who want to escape responsibility for their actions 
     at the expense of the health and safety of the American 
     people.
           Sincerely,
                                                  Marc Wetherhorn,
     State Director.
                                                                    ____

                           Virginia Citizens Consumer Council,

                                     Yorktown, VA, April 25, 1995.
     Re S. 565.
     Hon. Charles S. Robb,
     U.S. Senate,
     Washington, DC.
       Dear Senator Robb: The Virginia Citizens Consumer Council 
     strongly urges you to oppose S. 565, the ``Product Liability 
     Fairness Act of 1995. This bill will do irreparable harm to 
     Virginia consumers by restricting the ability of injured 
     consumers to obtain full and fair compensation and for 
     citizen juries to impose adequate deterrents to prevent 
     further injuries. Corporate wrongdoers must be held 
     accountable when consumers are harmed by the products they 
     buy as a matter of simple justice and to foster confidence in 
     the American marketplace.
       Two major provisions of this legislation will have a 
     negative impact on consumers and workers. First, this bill 
     sets arbitrary limits on punitive damage awards of $250,000 
     or three times the economic damages, reducing the ability to 
     deter corporations from inflicting harm on others and 
     threatening Virginians' economic security and well-being. At 
     a time when Congress is talking about increasing personal 
     responsibility, it makes no sense to reduce the 
     responsibility of corporations guilty of manufacturing or 
     selling dangerous products.
       Second, this bill eliminates joint and several liability 
     for non-economic damages, making it difficult for consumers 
     to recover costs related to injuries such as the loss of 
     reproductive capacity, loss of sight, or disfigurement. Those 
     injuries deserve to be compensated and should not be treated 
     as less important than the loss of high salaries or 
     investment income. For similar reasons, VCCC urges you to 
     oppose S. 454, ``The Health Care Liability and Quality 
     Assurance Act'' which would severely affect the rights of 
     injured patients.
       VCCC urges you to act to prevent passage of this 
     legislation, which will greatly restrict the ability of 
     injured consumers to be compensated fully and for juries to 
     act to prevent further wrongdoing. Virginia consumers count 
     on you to act in our best interest by voting NO on this anti-
     consumer, auto-worker bill. Please let me know the outcome of 
     the Senate votes on S. 565 and S. 454 and how you cast your 
     votes. Thank you.
           Sincerely,
                                                     Jean Ann Fox,
     President.
                                                                    ____

                                        Washington Citizen Action,

                                           State Headquarters,

                                      Seattle, WA, April 19, 1995.
     Hon. Slade Gorton:
       On behalf of our 42,000 members statewide and our 20 
     affiliate community, church, labor, and senior organizations, 
     Washington Citizen Action urges you to oppose Senate Bill 565 
     and to vote against cloture. This bill is one of the most 
     anti-consumer pieces of legislation to make it to the Senate 
     floor in decades. Please do all that you can to stop S. 565 
     from passing.
       The arbitrary caps on punitive damages would eliminate the 
     incentive to produce safe products and would allow negligent 
     corporations to operate with little to no accountability. S. 
     565 will undoubtedly result in a multitude of injuries, 
     disfigurements, and deaths. In addition, these limits will 
     take away all recourse society has to punish wrongdoers that 
     knowingly and repeatedly maim and kill people with deadly 
     products and negligent actions.
       By eliminating joint and several liability for non-economic 
     damages, S. 565 would weaken the ability of ordinary 
     Americans to receive fair compensation when they are injured 
     by unsafe products and practices. The bill is unfair to 
     women, children, seniors, working families, small businesses, 
     and lower to middle income Americans. Victims and their 
     families will be rendered unable to receive adequate 
     compensation for their injuries while the guilty parties are 
     let off the hook. This is not our idea of American justice.
       In America, the courts have proven to be the major 
     protection citizens have against negligent corporations and 
     unsafe products. We cannot afford to let our civil justice 
     system be dismantled by the provisions of S. 565. Vote NO on 
     S. 565! Vote NO on cloture!
           Sincerely,
                                                       David West,
     Executive Director.
                                                                    ____

                                               [[Page S6391]]

                           West Virginia-Citizen Action Group,

                                   Charleston, WV, April 24, 1995.
     Re Proposed legislation concerning Civil Justice System (S. 
         565).
     Hon. John D. Rockefeller, IV,
     U.S. Senate,
     Washington, DC.
       Dear Senator Rockefeller. On behalf of the twenty thousand 
     members of the West Virginia-Citizen Action Group (WV-CAG), I 
     am writing this brief letter to encourage you to rethink your 
     support for S. 565. However well-intentioned this legislation 
     may be, I honestly believe that the potential--and 
     unintended--consequences are so great as to offset any 
     perceived benefits.
       I realize, of course, that the House-passed ``Common Sense 
     Legal Reform Act'' is more draconian than S. 565. This does 
     not ameliorate the many deficiencies contained in the Senate 
     bill, including the two most egregious (as follows):
       By capping punitive damage caps at $250,000 or three times 
     the economic loss (whichever is greater), the proposed 
     legislation removes the ``punishment'' that is supposed to be 
     reflected in damages. As a result, it will become cheaper in 
     many instances to pay the damages than to rectify the 
     problem.
       By eliminating joint and several liability for non-economic 
     damages, the proposed legislation unfairly discriminates 
     against women, children, and seniors. Non-economic loss is 
     much more than pain and suffering; it can also be loss of 
     reproductive capacity, loss of right or disfigurement.
       After studying this, and related tort reform proposals for 
     many year, we are convinced that such efforts are contrary to 
     public policy and will jeopardize the hand-earned rights of 
     injured West Virginians. Accordingly, I would like to urge 
     you to reconsider your position and fight, as you have done 
     so often in the past, for the rights of West Virginia 
     consumers.
       Thank you very much for your time and consideration. I hope 
     to see and/or talk with you again soon. If you need any 
     further information, please feel free to contact me.
           Sincerely,
                                        State Senator David Grubb,
     Executive Director.
                                                                    ____

                                   Wisconsin Consumers League,

                                                    Milwaukee, WI.
     Re SB 565 and 454.
     Senator Herbert Kohl,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kohl: We write to urge your opposition to the 
     so-called ``Common Sense Legal Reforms Act'' submitted as 
     part of the Contract with America. This package of bills 
     would substantially modify existing product liability and 
     medical malpractice laws. It is largely unsupported by the 
     vast majority of the rigorous evidence which has been 
     developed on these topics. Rather, it is seemingly being 
     swept along on a wave of anecdote, innuendo and, in some 
     cases, outright untruths.
       There can be little doubt that product liability and 
     medical malpractice laws have evolved to reflect emerging 
     technologies. They have had the desired effects of modifying 
     behavior to the optimum end of preventing injury to consumers 
     and workers. The claims regarding the alleged stultifying 
     effects of these bodies of common law are generally 
     unsupported by credible, systematic evidence. For example, 
     the work of Professor Galanter, at the UW Law School, 
     compellingly refutes allegations regarding any alleged 
     `litigation explosion'. The punitive damages which S. 565 
     would limit are only relatively rarely awarded. Such `sledge-
     hammer' approaches to ``reforming'' such legal standards, 
     while politically satisfying, are only coincidentally related 
     to thoughtful policy-making.
       It is, in our view, remarkably arrogant for legislators to 
     substitute their prospective judgments regarding equitable 
     outcomes for specific factual cases yet to arise for the 
     judgment of juries, which, by definition, can examine each 
     case on its own unique, and prospectively unknowable, facts. 
     How can anyone think they can be more fair regarding 
     situations yet to occur than can juries with the benefit of 
     hindsight?
       We repeat our opposition to these unnecessarily broad 
     attempts to weaken the preventative impacts of the common 
     law.
            Very truly yours,
                                                   James L. Brown,
     President.
                                                                    ____

                                     Wisconsin Citizen Action,

                                    Milwaukee, WI, April 21, 1995.
     Hon. Russ Feingold,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feingold: On behalf of our 103,000 members and 
     our coalition of 110 labor, senior, religious, environmental, 
     women's, farm and community organizations, we are writing to 
     urge you to oppose S. 565 and to vote against cloture. We 
     very much appreciated your help last year in the defeat of S. 
     687, this bill's predecessor. We're confident we can count on 
     you again.
       This bill is very similar to the product liability 
     ``reform'' Bob Kasten used to push when he represented 
     Wisconsin in the United States Senate. We like to think that 
     one of the reasons why Wisconsin voters chose not to re-elect 
     Bob Kasten to the Senate is because they repudiated his 
     consistently anti-consumer positions. S. 565 is similarly out 
     of step with the interests of Wisconsin consumers.
       The provisions in this bill cannot claim to be 
     ``moderate.'' A punitive damage cap of $250,000 or three 
     times the economic loss to a victim of an injurious product 
     is no more than a slap on the wrist to the corporations 
     responsible for the deaths and injuries caused by products 
     like the Ford Pinto, the Dalkon Shield, silicone-gel breast 
     implants and flammable baby pajamas. The manufacturer of the 
     ``Slip 'N' Slide'' water slide, which caused a 35-year old 
     Wisconsin mechanic to break his neck, become temporarily 
     quadriplegic and suffer permanent spasms, would have had its 
     punishment reduced to one-thirtieth of what a jury thought 
     appropriate. The U.S. Senate would be changing the punishment 
     so that it cannot possible fit the crime in an era of public 
     sentiment to get tough on wrongdoers.
       We have no idea how many similar horror stories like those 
     are waiting to happen. Corporate wrongdoers would face a 
     dollar and cent deterrent too cheap to stay their pursuit of 
     profit without regard for consumer health and safety. The 
     temptation for corporations to proceed with dangerous 
     products, even if they are eventually found guilty in a 
     lawsuit, would get that much easier. S. 565 will weaken the 
     ability of our civil justice system to act as both deterrent 
     and remedy.
       The elimination of joint and several liability for 
     noneconomic damages discriminates against the most vulnerable 
     populations in our society--women, children and seniors. 
     These are the members of our society who are usually forced 
     to claim noneconomic losses, and these constituencies would 
     now be forced to shoulder the burden of being only partially 
     compensated. Noneconomic damages include the loss of 
     reproductive capacity, loss of sight and permanent 
     disfigurement, not just ``pain and suffering.'' It is simply 
     unfair that a party found to be negligent should not be 
     required to make these vulnerable people whole after they 
     have been injured.
       The U.S. Consumer Product Safety Commission once estimated 
     that some 33,000,000 people are injured by defective or 
     dangerous products every year. 29,000 of them die. Only 1.6% 
     of the injured parties sue. S. 565 solves no problem in our 
     civil justice system, but it will create a very real human 
     toll if it is allowed to pass. We respectfully urge you to 
     vote against the bill and to vote against cloture.
       Thanks once again for your outstanding leadership in 
     defeating the anti-consumer product liability ``reform'' bill 
     in last year's Congress. We appreciate all your help in 
     continuing that effort by defeating this bill again, albeit 
     in a tougher political climate. Thank you for attention in 
     this matter.
           Sincerely,
                                                       Larry Marx,
     Executive Director.
                                                                    ____

                                                 Center for Public

                                         Representation, Inc.,

                                      Madison, WI, April 21, 1995.
     Re Senate bill 565.
     Senator Herb Kohl,
     Washington, DC.
       Dear Senator Kohl: As you know S. 565, the misleadingly-
     named ``Common Sense Product Liability and Legal Reform Act 
     of 1995'' will soon be considered by the Senate. As one of 
     the major consumer advocacy groups in Wisconsin, we urge you 
     to oppose this anti-consumer measure.
       While certain aspects of our tort system are certainly in 
     need of reform, this bill totally misses the mark. Instead of 
     protecting consumers from some of the excesses of our legal 
     system, it would protect manufacturers of defective products 
     from assuming full responsibility for their actions. Seizing 
     upon such highly publicized and distorted cases like the 
     ``burning McDonald's coffee'' proponents of this measure (as 
     well as similar proposals in numerous state legislatures 
     including Wisconsin) would eviscerate the ability of our 
     legal system to effectively enforce rules on product safety 
     and punish those who violate them.
       The proposed restrictions on punitive damages are 
     completely counter-intuitive. By encouraging corporations to 
     produce safe products, punitive damages (which, insurance 
     industry rhetoric notwithstanding, are rarely awarded by 
     juries or upheld on appeal) actually help corporations save 
     money. Safe products mean fewer, not more lawsuits. Safe 
     products mean fewer, not more medical insurance claims filed 
     by consumers. Safe products mean fewer government recalls. 
     And safe products mean an improved quality of life for all 
     consumers.
       The elimination of joint and several liability for non-
     economic damages is also misplaced. On first blush, this 
     common law concept may seem unfair; why should one 
     corporation that is only slightly liable have to pick up the 
     tab for a more culpable corporation that happens to be 
     insolvent? But when you look closer, joint and several 
     liability is the fairest resolution to a difficult dilemma. 
     It looks at all of the parties involved in a products 
     liability lawsuit and decides that the costs should be spread 
     so as to fully compensate the victim who, after all, is the 
     only innocent party. And since non-economic damages are 
     frequently awarded to the most vulnerable members of society; 
     the poor, young children, senior citizens, this provision 
     would affect such groups disproportionately.
       The elimination of liability for products more than twenty 
     years old is also unfair to consumers. Again, this provision 
     would disproportionately harm the most vulnerable consumers, 
     since they rely more heavily on 
      [[Page S6392]] older, used products. The anti-consumer 
     nature of this bill is especially apparent in this provision, 
     since it exempts companies who suffer commercial losses.
       Another particularly disturbing provision in S. 565 from 
     the Wisconsin perspective is its preemption of state consumer 
     protection laws. As you know, Wisconsin is a national leader 
     in the area of consumer protection. Its well-deserved 
     reputation in this area has been built up over many decades. 
     S. 565 would tarnish that image and bring Wisconsin down to 
     the lowest common denominator in protecting its citizens from 
     consumer abuse.
       There are other consumer-unfriendly aspects to S. 565, 
     including its exemption from liability for the sellers of 
     products and the special treatment provided for suppliers of 
     materials for medical devices. Moreover, the bill exempts 
     corporations from many of the restrictions on damages which 
     it imposes on individual consumers.
       Consumer groups in Wisconsin and around the country have 
     fought long and hard over the past few decades to insure that 
     consumers have access to safe and effective products. S. 565 
     would annul much of this hard work in one fell swoop. On 
     behalf of all of Wisconsin's consumers, we urge you to oppose 
     it.
       Thank you.
           Yours truly,
                                                 Stephen E. Meili,
                                    Director, Consumer Law Clinic.

  Mr. HOLLINGS. There it is. I did not want to really fill up the 
Record, but every responsible, credible consumer entity in any of the 
50 States is opposed to this initiative, and the other side knows it. 
But they come around and talk balance and they talk consumers and they 
say you cannot produce products.
  I ask unanimous consent to insert in the Record these two 
advertisements by the pharmaceutical companies, February 23, 1995, and 
April 5, 1995, in the Washington Post.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Feb. 23, 1995]

    Drug Companies Target Major Diseases With Record R&D Investment

       Pharmaceutical companies will spend nearly $15 billion on 
     drug research and development in 1995. New medicines in 
     development for leading diseases include: 86 for heart 
     disease and stroke, 124 for cancer, 107 for AIDS and AIDS-
     related diseases, 19 for Alzheimer's, 46 for mental diseases, 
     and 79 for infectious diseases.
                                                                    ____

                [From the Washington Post, Apr. 5, 1995]

          Who Leads the World In Discovering Major New Drugs?

       Between 1970 and 1992, close to half of the important new 
     drugs sold in major markets around the world were introduced 
     by U.S. pharmaceutical companies. And here at home, the drug 
     industry has been making 9 out of every 10 new drug 
     discoveries. So when a breakthrough medicine is created for 
     AIDS, heart disease, Alzheimer's, stroke, cancer or any other 
     disease, chances are it will come from America's drug 
     research companies.
  Mr. HOLLINGS. Just the one in February, one statement:

       Pharmaceutical companies will spend nearly $15 billion on 
     drug research and development in 1995.

  According to the Senator from Washington, they cannot spend. They 
just cannot work anymore with this law. And right here in April:

       Between 1970 and 1992, close to half of the important new 
     drugs sold in major markets around the world were introduced 
     by U.S. pharmaceutical companies. And here at home the drug 
     industry is making nine out of every ten new drug 
     discoveries. Breakthrough medicines that are going to be 
     created for AIDS, heart disease, Alzheimer's, stroke, cancer, 
     or any other disease will come from the American drug 
     companies.

  But according to the Senator from Washington, they cannot bring out 
products. Come on. They have tried every trick in the book.
  What we really have afoot, Mr. President, when they cite the 
Constitution is just that--an assault against the constitutional right 
of trial by jury guaranteed by the seventh amendment. People who say 
they do not trust politicians anymore are waiting for the politicians 
to behave as though they trust the people. You and I trust them to 
elect us, but when they get us 12 men and women on a jury sworn to 
listen to the facts and make their finding, according to their sworn 
oath, ``They do not know what they are doing; they have gone ape; they 
are just runaway juries,'' and everything else of that kind.
  But we up here, the bureaucracy in Washington, we should decide 
rather than letting the juries decide back home.
  We have a right, Mr. President, that has worked over the many, many 
years. You have safe drug products. Thank heavens, we have product 
liability and we have taken off Dalkon shield and all the rest of these 
other things--cancer causing products. We have safer automobiles.
  Why do you think Chrysler the other day said they were going to 
recall I think some 350,000 or several million cars? I had the 
summation. Seventy-one million automobiles in the last 10 years, 
American and foreign manufacture, have been recalled. They do not 
recall them because of the goodness of their heart. They recall them on 
account of product liability. What we have in hand here they want to 
destroy. We have always had in this land ``salus populi suprema lex.'' 
Safety of the people is the supreme law.
  Now they come with this measure, the profits of the manufacturers is 
the supreme law, and whine that they are for the consumers and they 
cannot put out products.
  How does this come about? I have been in this for 40 years and I have 
watched it develop: Pollster politics. They tell you when you come to 
this national office up here that you have to get a poll and get to 
four or five hot-button items and then you have to identify with them. 
You are for jobs, everybody is for jobs; you are against crime; you are 
against taxes. They just go down the list.
  Then they tell you, and in fact GOPAC puts on a school over there for 
the young Congressmen that are elected, they say, ``You have only got a 
20-second time bite to give your message, so you need words that count, 
words that excite, inflame.''
  And do you know what they call us up here now? I quote the Speaker. 
He terms the U.S. Government that pledged to preserve, protect, and 
defend, he calls it the corrupt liberal welfare State.
  And when you can come in this anti-Government drive with the Contract 
With America and you see it in the morning paper and if you read it 
closely, it is gone: ``Get rid of the Government. The Government is not 
the solution, the Government is the problem. The Government is the 
enemy.''
  That has been the drumbeat. If you can wrap it together in tort 
reform, you can get against the lawyers and against the Government both 
and you can really have a winner.
  Well, for 15 years we have defended against this assault. President 
Ford helped us 15 years ago. He appointed a commission. And when 
President Ford appointed that commission, they had a 4-year study that 
came out and found that the States for 200 years have been handling 
this properly, basic tort law.
  Incidentally, of all the civil findings, only 9 percent are tort. And 
of all the tort, only 4 percent of the 9 percent, or 0.38, thirty-eight 
one-hundredths of 1 percent of what we are supposed to be dealing with. 
It is not a problem at all.
  They said the States were handling it. And now we know by record in 
the hearing that the States have reformed, they have acted. The 
legislators are not asleep, the Governors are not asleep, the attorneys 
general are not asleep back in the States. They can handle this 
problem. That is the plea of the contract in reality. Get all of these 
things, housing grants, block grants to the States, welfare block 
grants, whatever it is. Give it back to the States.
  Not on this one. You are in the hands of the Philistines, that 
manufacturing crowd out there--the Conference Board, the NFIB, the 
Chamber of Commerce.
  I have been elected six times and they do not come running.
  That crowd that we have, they come running. Yes, the Chamber wants to 
know where you stand, the NFIB, the Conference Board, everything else. 
They talk about trial lawyers giving you money. They give money but the 
others, the manufacturing and insurance crowd, they give more money and 
they have the votes.
  And the people who really oppose this bill do not have a PAC. Have 
you ever seen a PAC for the American Bar Association? Have you ever 
seen a PAC for the Consumer Association, Public Citizen, Association 
for State Supreme Court Justices, Association of State Legislators, law 
school deans--they have all appeared in the polls--the State attorneys 
general? They do not have PAC's.
   [[Page S6393]] But there they come with all this. And we have been 
working with them, but we have the contract now. And we have had many 
of these Senators that finally changed their votes who said, ``You 
know, I got in trouble. I committed a year ago.''
  That is how it happens, if people want to know. When all the powerful 
organizations come to you in a campaign and you are for reform--``Yeah, 
I'm for reform. I'm for reform.'' They have been reminded in the last 
several days in this debate here how they gave their commitment.
  So I went to them, I said, ``How do you change your vote?'' They 
said, ``Well, I got in trouble a year ago or 2 years ago when I was 
running.'' And that explains it. But it does not change the lack of 
merit in this particular initiative and the danger of it all.
  So what we have is ``Kill all the lawyers.'' You could see it in the 
amendments. That is what they have.
  Our friend Dan Quayle started that before the American Bar 
Association some 4 years ago and we still have it going. If you can 
vote against the lawyers and say they are running away and getting all 
the money and everything else like that, you have mob action on foot 
and you can get it moving.
  Well, Mr. President, it is bad law. What happens is they do not give 
you a Federal cause of action. If they had come in--and I have been 
insisting for the 15-year period, if you want to make a finding under 
the interstate commerce clause that they plea, that we are going to 
make a congressional finding that there is a national problem and give 
a Federal cause of action, that is one thing. No, that is not what they 
want. They say they are trying to get simplicity, eliminate complexity, 
get uniformity. But then they put guidelines down for the 50 States to 
interpret and then can go into the Federal court and, by the way, 
exempt the manufacturer. Any of these things that I have talked of, any 
of these initiatives, any of these amendments, just exempt the crowd 
that wrote the bill.
  Now I can tell you here and now if that is not hypocrisy, I do not 
know what the heck is. And yet they are saying they are proud now and 
they want to thank everybody, tell them about their balance and 
everything else like that.
  This is one of the most dangerous initiatives. It has been held up 
for 15 years by all of these organizations. It is a nonproblem. They 
know it. It is a solution looking for a problem, in all reality.
  And we are headed, yes, with the English rule, we are headed with two 
levels of society. ``Get rid of the jurors and people with common sense 
back home. We know it all up here.''
  They started over 130 years ago diminishing that guaranteed right of 
trial by jury. So today, less than 2 percent of civil cases go to a 
jury trial in England. And you are told that the issues are too 
complex, you do not have sense enough to understand and what have you. 
And that is the initiative that starts today on the floor of the U.S. 
Senate.
  They know in their hearts it is bad law. They have tried everything 
from the Girl Scouts, and had to withdraw that; they tried the Little 
League and had to withdraw that. They put George McGovern on TV and had 
to pull him off. They tried everything--the McDonald's case, then when 
that was explained to them, you do not hear them talk about the 
McDonald's case. Always these little anecdotal things that they bring 
up.
  But they got one winner: ``Let's get rid of the lawyers.'' We can get 
a majority vote on that. We can get a majority vote on that. And so it 
is.
  In essence, what you are really doing is getting rid of the jurors. 
The trial by jury, they are eroding it, nibbling at it bit by bit is 
the intent and purpose, just like they had in England where you do not 
even get a review of facts or anything else. You cannot even ask the 
jurors any questions; you cannot find the background.
  I could go down the list, but my time is now limited and I am 
practically out of time.
  I simply say that it is a sad day in the history of government 
because it brings to culmination the so-called contract of reform which 
goes totally in contradiction to the entire theme of the contract back 
home. The people know--you are going to hear it now in the budget. The 
people back home need a tax cut because they know how to spend the 
money better than the Government up here. All of these pleas and 
everything. The people back home know this, they know that, they know 
everything except the facts of the case that they are sworn to uphold.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. HOLLINGS. I yield the floor.
  Mr. GORTON. Mr. President, again, for the information of Members, we 
will now have the vote on my motion to table the Dorgan amendment.
  There are then two other amendments, all amounting to the same thing, 
that will come before final passage. I hope that those two amendments 
will be adopted by voice vote. I will then ask for a rollcall on final 
passage of the bill.
  The PRESIDING OFFICER. Under the previous order, the question occurs 
on agreeing to the motion to table amendment No. 629 offered by the 
Senator from North Dakota [Mr. Dorgan]. The yeas and nays have been 
ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Virginia [Mr. Warner] is 
necessarily absent.
  Mr. FORD. I announce that the Senator from Connecticut [Mr. 
Lieberman] is absent because of death in the family.
  I further announce that, if present and voting, the Senator from 
Connecticut [Mr. Lieberman] would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 44, as follows:

                      [Rollcall Vote No. 160 Leg.]

                                YEAS--54

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Coverdell
     Craig
     DeWine
     Dodd
     Dole
     Domenici
     Exon
     Faircloth
     Frist
     Glenn
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pell
     Pressler
     Robb
     Rockefeller
     Santorum
     Smith
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond

                                NAYS--44

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Cohen
     Conrad
     D'Amato
     Daschle
     Dorgan
     Feingold
     Feinstein
     Ford
     Graham
     Harkin
     Heflin
     Hollings
     Inouye
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pryor
     Reid
     Roth
     Sarbanes
     Shelby
     Simon
     Simpson
     Specter
     Wellstone

                             NOT VOTING--2

     Lieberman
     Warner
       
  So the motion to lay on the table the amendment (No. 629) was agreed 
to.
  Mr. GORTON. Mr. President, I move to reconsider the vote.
  Mr. GRAMM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                               toxic harm

  Ms. MIKULSKI. Are asbestos-related injuries and deaths covered by the 
toxic harm exception to the statute of repose in S. 565?
  Mr. ROCKEFELLER. Yes, asbestos-related injuries and deaths are 
covered by the toxic harm exception to the statute of repose.

                           amendment no. 790

  Mr. HATCH. Mr. President, I wish to discuss language in the Gorton-
Rockefeller-Dole substitute amendment concerning punitive damages. The 
substitute language includes a formula for calculating the amount of 
punitive damages allowed to be awarded to a claimant against a 
defendant. This formula originated with Senator Snowe and was added to 
the Dole-Exon-Hatch amendment last week, with my support. It remains 
part of the underlying substitute amendment. The formula to which I 
refer provides generally that the amount awarded to the claimant for 
punitive damages in a products liability action shall not exceed the 
greater of two times the sum of the amount awarded for economic loss 
and 
 [[Page S6394]] noneconomic loss, or $250,000. In the case of a small 
business, a special rule provides that the amount of punitive damages 
shall not exceed the lesser of two times the sum of the amount awarded 
to the claimant for economic loss and noneconomic loss, or $250,000.
  It is my understanding that the formula for calculating the amount of 
punitive damages is intended to take into account the separate 
provision in the bill that makes a defendant only severally liable for 
noneconomic losses. Thus, when doubling the amount of noneconomic 
losses in computing the upper limit of punitive damages which may be 
awarded against a defendant, it is appropriate only to consider the 
share of noneconomic loss attributable to that defendant. It would be 
unfair and inconsistent with other provisions in this act to expand the 
base multiplier in the punitive damages section of this bill to include 
noneconomic losses not attributable to a defendant.
  Mr. HELMS. Mr. President, the pending Product Liability Fairness Act, 
even though it has been watered down considerably by our Democrat 
colleagues, is nonetheless needed to remedy the morass of product 
liability laws plaguing our judicial system today. We have a duty to 
ensure that Americans are fairly compensated when they are injured by 
faulty products. But today's legal system has been maneuvered into a 
position of encouraging many people to file frivolous suits demanding 
unreasonably high damage awards.
  I am extremely disappointed that the medical malpractice provisions, 
approved by the Senate on May 2, were deleted because of threats by the 
Democrats that they would block passage of the entire bill.
  Americans are suing each other too often, for too much money and for 
too little reason. Last year, more than 70,000 product liability 
lawsuits clogged U.S. courts. And by 1992, lawyer fees accounted for 61 
percent of the total amount spent on product liability claims.
  In so many cases, those who are injured least tend to receive the 
largest settlements, while many of the most severely injured spend 
years in the legal system, sometimes never receiving the compensation 
they deserve.
  Mr. President, the pending legislation will be a first step toward 
remedying these problems with the current system by:
  First, giving manufacturers and consumers certainty as to the rules 
of the game when it comes to product liability lawsuits;
  Second, allowing consumers with valid claims to receive fair awards, 
and receive these awards faster;
  Third, reducing costs of litigation and insurance premiums, which in 
turn, will lead to lower prices for consumer products;
  Fourth, giving consumers with valid claims more time to file 
complaints against negligent manufacturers; and
  Fifth, eliminating unwarranted lawsuits which threaten to bankrupt 
small businesses--the segment of our economy that provides most of the 
jobs in this country.
  Mr. President, rather than expound on the problems with the current 
system, I will share with my colleagues a letter from the plant manager 
of Butler Manufacturing, a small business in Laurinburg, NC. His letter 
is similar to many I have received from 99 other small businessmen from 
my State. It reads:

       Dear Senator Helms: As you know, Butler Manufacturing has a 
     plant in Laurinburg, North Carolina which employs two hundred 
     workers. We urge your support of S. 565, the Product 
     Liability Fairness Act, which offers some of the reforms 
     needed in the product liability area.
       Our company spends hundreds of thousands of dollars each 
     year for product liability insurance and legal fees and our 
     employees devote hundreds of hours of their time to help our 
     attorneys defend unwarranted product liability claims.
       Many times we settle a claim which we honestly believe has 
     little merit because it is less expensive to settle than to 
     litigate or to expose the Company's assets to punitive 
     damages.
       Our Company competes in the international market place. To 
     be competitive we cannot bear the cost of product liability 
     insurance, huge punitive damage expense, and large costs to 
     defend unwarranted claims which our competitors do not bear.
       We believe persons injured by faulty products through no 
     fault of their own ought to be compensated for their out-of-
     pocket losses. However, current court-made rules allow much 
     greater compensation than is justified and also make it 
     difficult for companies to properly defend themselves.

  Mr. President, this explains why small businesses--not the Fortune 
500 companies--are the ones most threatened if nothing is done to 
reform the current legal system.
  According to the National Federation of Independent Businesses, the 
cost and availability of liability insurance rank No. 5 out of a list 
of 75 problems facing small businesses today. They are constantly in 
danger of being pulled into unwarranted
 lawsuits, where the fear of punitive damages forces them to settle in 
cases in which they should never have been involved.

  About half of all small business owners earn about $50,000 a year. 
However, a Rand Institute study shows that it costs the same small 
businessman an average of $100,000 to defend against a lawsuit--
regardless of the suit's merit. Thus, defending even a single 
unwarranted lawsuit costs twice as much as the average small business 
owner earns in a year.
  Perhaps the most critical problem for small businesses is something 
lawyers know as joint and several liability, which permits plaintiffs 
to recover the full amount of damages from any one of the defendants--
regardless of the amount of fault of the individual defendant. So, even 
if a small businessman is responsible for only 10 percent of the damage 
caused the plaintiff, under the current system, that businessman can 
still be held liable for 100 percent of the damages. The pending bill 
fixes this problem by holding a defendant liable for the percentage of 
noneconomic damages for which he or she is responsible.
  Mr. President, I have many friends who are trial lawyers. They have 
made some compelling arguments in favor of the current system; however, 
in this matter, we have had to agree to disagree.
  For example, trial lawyers argue that: First, limits on punitive 
damage awards are unnecessary because courts don't frequently award 
punitive damages; and Second, when they are awarded, punitive damages 
generally do not amount to very large sums.
  As every first year law student knows--or should know--there are 
three kinds of damages awarded in civil lawsuits.
  The first--economic damages--reimburses an injured person for lost 
wages, medical care, and out-of-pocket costs incurred as a result of 
the injury.
  Second--noneconomic damages--are awarded for things such as pain and 
suffering, and
  Finally, there are punitive damages. The purpose of punitive damages 
is not to compensate the injured person, but rather to punish the 
defendant for his or her negligent behavior. Most of the disagreement 
in the pending bill surrounds punitive damages.
  Mr. President, are punitive damages rarely awarded as trial lawyers 
claim? No. Injured parties routinely request punitive damages in 
product liability and other tort claims. They do so because they know 
that's where the big bucks are. Not only are punitive damages routinely 
requested, the amount of punitive damages awarded is increasing. In 
Cook County, IL, the average punitive damage award was $6.7 million. In 
1984, the average punitive award in San Francisco was $743,000.
  In North Carolina punitive damages have been awarded only once. 
Despite this fact, any time a product manufactured in North Carolina 
ends up in another State, the North Carolina manufacturer can still be 
hauled into an out-of-State court and sued for outrageous punitive 
damage amounts.
  Mr. President, trial lawyers also assert that product liability 
reforms are unnecessary because so very few lawsuits filed today are 
product liability cases. They claim that contract disputes and domestic 
relations cases make up more of the current case load in today's 
courts.
  That product liability cases make up a small piece of all tort cases 
ignores one important and critical point: It only takes one product 
liability lawsuit to bankrupt a small manufacturing firm. Even if the 
manufacturer is not found negligent, it still costs that small business 
a small fortune to defend the lawsuit.
  Lastly, lawyers argue that product liability reform will not lower 
liability 
 [[Page S6395]] insurance premiums that manufacturers pay. I disagree. 
Over the past 40 years, liability insurance costs have increased 4 
times the rate of growth of the national economy.
  Moreover, for every extra dollar a company pays in product liability 
insurance, that's a dollar less in an employee's pocket, or a dollar 
less used to develop new products.
  In closing, let me return to the letter from the plant manager in 
Laurinburg, NC. This is a small business pleading for fairness and for 
an opportunity to compete fairly for business. If this plant, and the 
other 99 small businesses who've written me, are to prosper, they 
cannot afford to defend unwarranted claims every time they turn around.
  We cannot continue to tie the hands of small businesses by forcing 
them to defend case after case in a legal system that is unfair, 
inconsistent, and unpredictable. The pending bill does nothing to 
impede an injured person's right to recover reasonable damages for his 
or her injuries. Nor does the bill favor any particular industry. It 
simply weeds out frivolous and unwise lawsuits, making it easier and 
for injured individuals to obtain the recovery they deserve.
        product liability--states' rights and one-way preemption

  Mr. FEINGOLD. Mr. President, I rise to briefly discuss one of the 
more interesting--and most distressing--components of S. 565, the so-
called Product Liability Fairness Act. That, Mr. President, is the 
conscious and flagrant expropriation of the rights of the State and 
local governments to fashion their own civil justice systems.
  Over and over in the early months of the 104th Congress we have heard 
the distinguished majority leader announce his intent to ``dust off the 
10th amendment''. That amendment, part of the Bill of Rights and 
sometimes thought of as the forgotten child of the Bill of Rights, 
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.

  Well, here is a power that has been reserved by the States for over 
200 years. And I cannot help but note the hypocrisy present here. We 
have heard the thunderous voices of States rights advocates, railing 
against Washington bureaucrats and proclaiming that this new Congress 
is committed to the proposition of shifting control of policies from 
Washington back to the States.
  But then many of the same advocates of States rights also support 
legislation such as this that is designed to seize control over a 
policy area that has been the domain of the States since our Nation's 
founding and turn it over to 535 Members of the Congress.
  Make no mistake about it: Under this legislation, we are going to 
tell the States--even in instances where there is no Federal 
jurisdiction over a tort case--the parameters within which they are to 
conduct their judicial proceedings.
  That means that if a consumer in Sheboygan sues a manufacturer in 
Green Bay, they will have to litigate under Federal standards, such as 
a Federal cap on punitive damages, even though this is a completely 
intrastate judicial question.
  There is also a provision that states that a decision of a U.S. 
circuit court of appeals interpreting the provisions of this 
legislation shall be controlling precedent to be followed by each and 
every Federal and State court within that circuit unless overruled or 
modified by the Supreme Court.
  This provision was denounced by Stanley Feldman, chief justice of the 
Arizona State Supreme Court in his testimony to the Senate Commerce 
Committee on April 3 on behalf of the conference of chief justices. 
Chief Justice Feldman said that:

       . . . This provision will be the first time in the history 
     of America that any Federal court has been given the 
     authority to decide a question of State law, a subject which 
     raises the chills on the back of every member of the 
     conference of chief justices.

  What happened to the commitment of those on the other side of the 
aisle to return power back to the State governments? What happened to 
all of those criticisms we heard of health care reform and other 
initiatives last year where the other side derided the one-size-fits-
all approach to solving problems?
  When I made my opening statements on this bill I mentioned a 
statement made by the Speaker of the House in his address to the Nation 
on April 7 about the intent of the congressional Republicans in the 
104th Congress. The Speaker stated that:

       We must restore freedom by ending bureaucratic 
     micromanagement here in Washington . . . This country is too 
     big and too diverse for Washington to have the knowledge to 
     make the right decision on local matters; we've got to return 
     power back to you--to your families, your neighborhoods, your 
     local and State governments.

  Mr. President, I don't say this very often, but when the Speaker of 
the House says: ``This country is too big and too diverse for 
Washington to have the knowledge to make the right decision on local 
matters,'' I tend to agree with him.
  That is precisely why I opposed last year's crime bill. Enforcement 
of our criminal laws is best left in the hands of our local police and 
sheriffs' departments, because what works and is needed in the inner 
city of Milwaukee is not necessarily what works and is needed in the 
rural confines of Rusk County. It is problematic enough for a Senator 
from Wisconsin to understand these regional distinctions, but to 
suggest that 524 Members of Congress from 49 other States will know how 
to address the idiosyncrasies of fighting crime in Onalaska, WI, seems 
a bit farfetched to me.
  This same principle holds true for our tort systems. Maybe one of our 
rural farming States has purposely fashioned their legal system so as 
to protect farmers from defective machinery that is commonplace in that 
State. Maybe another State that attracts large numbers of retired 
persons has used the availability of punitive damages to deter certain 
products from being sold that are unsafe and would disproportionately 
affect the elderly.
  The other side talks a good game when it is expressed over and over 
again that State legislatures and governments are best equipped to 
solve problems that are local in nature. But whether it is crime 
legislation, or civil justice reform, or even term limits, there is a 
clear assumption that local or private decisions are best made by those 
in Washington, DC.
  I served in the Wisconsin State Senate for over 10 years and I know 
how the various State legislatures around the country would react to 
this bill. In fact, the national conference of State legislatures 
strongly opposes the Product Liability Fairness Act. In a letter sent 
to all Members of this body, the conference states:

       State civil justice systems are expressions of local values 
     and needs, as the Founders intended when they established our 
     system of Constitutional federalism. National product 
     liability standards put at risk this fundamental expression 
     of self-government and federalism.
       Moreover, the confusion resulting from superimposing a one-
     size-fits-all Federal standard for product liability over 
     existing State tort law presents a risk to the efficient 
     administration of justice in State courts.

  Mr. President, I think it is abundantly clear that the notion of 
States' rights is about to go right out the window as we usurp over 200 
years of State control over their tort systems. Another organization 
comprised of those who are involved in local judicial systems is the 
conference of State chief justices. Let me quote from a statement 
submitted by the chief justices expressing their opposition to Federal 
product liability legislation. They say;

       The negative consequences of S. 565 for federalism are 
     incalculable. With the proposed legislation reaching so far 
     into substantive civil law, States will be forced to provide 
     the judicial structure, but will not be permitted to decide 
     the social and economic questions in the law that their 
     courts administer. Enactment of S. 565 would alter, in one 
     stroke, the fundamental principles of federalism inherent in 
     this country's tort law. . . .
       S. 565 is a radical departure from our current legal regime 
     and is neither justified by experience nor wise as a matter 
     of policy.

  So I think it is clear what a dramatic and radical arrogation of 
power this legislation represents. But even if you
 accept this notion that we should have Federal standards with regard 
to product liability actions--and I don't--but even if you do believe 
such standards are necessary, this legislation is light-years away from 
bringing any sense of uniformity to our civil justice system.

  The supporters of this legislation have made it clear that they 
believe Federal uniform standards for our product liability laws are 
warranted, 
 [[Page S6396]] presumably to address the supposed uncertainty and 
unpredictability of our legal system.
  Those of us on the other side disagree. We believe the system was 
designed to protect innocent consumers who have been injured by 
defective products, and more importantly, we are reluctant to usurp the 
authority of the States over an area that for 200 years has been the 
domain of the State legislatures.
  As I stated earlier, many of us are also bewildered as to why some 
would make changes to the legal system that are opposed by the National 
Conference of State Legislatures, the Conference of Chief Justices, the 
American Bar Association and law professors throughout the country.
  But I think it is important to point out the great fallacy in the 
notion that this bill provides uniform Federal standards. It clearly 
does not. What it does provide, is a line in the sand. This bill says 
that State laws and State reforms that are designed to protect 
consumers, children, working people, and the elderly are no longer 
applicable.
  It says that those States do not know how to protect consumers--we 
here in Washington, DC know best how to do that. If you are on that 
side of the line in the sand, well sorry but you are out of luck 
because apparently it is the Congress that knows best how to protect 
farmers in Iowa, factory workers in Michigan, and children in 
California.
  But if you are on the other side of that line, if there are State 
laws or State reforms that are designed to protect the interests of the 
business and manufacturing communities, well those are OK. This bill 
says that those State legislatures know exactly what they are doing and 
we should not preempt any of their efforts.
  These are uniform Federal standards? Let me raise a couple of 
examples to illustrate just how unfair and unbalanced the bill is in 
this regard. The punitive damage cap is an obvious example. The 
underlying bill calls for a cap on punitive damages equal to the 
greater of two times compensatory damages of $250,000. In addition, 
under certain circumstances a judge may award supplementary punitive 
damages above the amount the jury has rewarded.
  I think the layperson would look at this provision and assume that 
this cap--a Federal cap of $250,000 or two times compensatory damages--
would apply across the board. In other words, whether you were injured 
by a defective product in Wisconsin, New York, or Mississippi and filed 
suit in any of those State courts, a jury would be able to award 
punitive damages of up to $250,000 or two times compensatory damages.
  Unfortunately, especially for those who support uniformity, that is 
not what this legislation would do. Under the now-amended bill, the 
punitive damage cap would not preempt, supersede, or alter any State 
law to the extent that such law would further limit the availability or 
amount of punitive damages. Those State laws would not be preempted.
  In other words, if a State allowed unlimited punitive damages, or 
even had a cap but that cap was higher than this new Federal cap, that 
State law would be preempted by this legislation.
  But if a State prohibited punitive damage awards, or had a cap lower 
than the cap in the underlying bill, that State law is hailed as 
responsible and fair and allowed to continue under this legislation.
  I wonder if any of my colleagues are familiar with the ``Slip 'n 
Slide'' case we had in Wisconsin just a few short years ago. The Slip 
'n Slide is a sort of water slide that is spread out over the ground. 
You are supposed to get a good running start, jump head first on the 
wet plastic and then slide along the rest of the wet plastic. It was a 
product that was manufactured for families and obviously, targeted 
especially for children.
  The plaintiff in this case, a 35-year-old father of two, dove onto 
this water slide, struck his chin on the ground and broke his neck. He 
was rendered an incomplete quadriplegic. The plaintiff was unable to
 return to his $12,000 a year job and had no means to pay the $46,000 
in medical bills he was saddled with.

  During the trial, the plaintiff alleged that the product was 
unreasonably dangerous for its intended purpose. This was compounded by 
the fact that the water slide's warnings were inadequate because they 
were not prominently displayed among the product's list of instructions 
and warnings.
  Testimony was presented showing that other users had experienced 
similar injuries and one individual had even died from such an 
accident. It was also made clear that the manufacturer continued to 
market the product even after it was made aware that numerous neck 
injuries such as this were occurring.
  Let me say that again; the facts showed that the manufacturer knew 
the product was causing neck injuries and yet still continued to market 
the product.
  The jury in this case, in a Wisconsin State court, found that the 
manufacturer was 100 percent at fault and awarded over $12 million to 
the plaintiff, including $10 million in punitive damages. This judgment 
was later reduced so that the plaintiff and his family in the end 
received about $5 million.
  We know what the other side's response to this is; ``$10 million? 
That jury must be out of control.''
  Some of us, however, have faith in the ability of the American people 
to serve on juries and administer justice in a fair and equitable 
manner.
  You can bet, Mr. President, that the manufacturer of the Slip 'n 
Slide is thrilled about this legislation. Those on the other side want 
to insulate such companies from juries and the threat of extensive 
punitive damages. Why? Because such a large punitive damage award might 
force the manufacturer to take a product off the market that has been 
considerably profitable for that manufacturer.
  But I would contend, Mr. President, that our civil justice system is 
designed to do just that--to sanction parties that knowingly market a 
defective product and to protect the consumers that are victimized by 
these products.
  That Wisconsin jury awarded a large punitive damage award for two 
reasons: One, to get a dangerous product off the market that is often 
used by young children and that was causing numerous neck injuries and 
paralysis; and second, to punish the manufacturer for continuing to 
market the product with knowledge of its very serious defects and to 
deter other manufacturers from engaging in similar conduct.
  I would say that in this case, the jury--in a State court--knew 
exactly what it was doing and justice was served.
  Mr. President, the Wisconsin jury in this case awarded $10 million in 
punitive damages in the slip 'n slide case. I have no doubt that most 
of the proponents of this bill believe that this is a classic case of a 
jury run amok.
  Here is what I find interesting though. That jury found the 
manufacturer in this case 100 percent at fault. Suppose this was a 
criminal defendant on trial for assault with a deadly weapon. After 
all, the manufacturer in this case was marketing a product that they 
knew was causing neck injuries and paralysis.
  The fact is, if this had been a criminal defendant I have no doubt 
that there would have been a bidding war on the other side to see who 
could propose the stiffest criminal sentence for this defendant.
  We can only speculate about what the fate of the Slip 'n Slide would 
have been had this accident and litigation occurred in a State that 
currently prohibits punitive damage awards. Most likely, more neck 
injuries and maybe some fatalities would have occurred until a suit had 
been filed in a court where punitive damages were permitted.
  Had the underlying bill been in effect 4 years ago, that Wisconsin 
jury would have had to award an amount consistent with the arbitrary 
cap. One can only wonder if the manufacturer would have pulled this 
dangerous product because of a $250,000 slap on the wrist.
  Let me say this one more time: The jury in this case--a State jury--
found the manufacturer to be 100 percent at fault. The jury found that 
the manufacturer continued to market the product--a product targeted 
mostly at children--even after the manufacturer discovered that the 
product was causing numerous neck injuries and paralysis.
  The jury elected to award substantial punitive damages to punish the 
manufacturer for this reprehensible behavior 
 [[Page S6397]] and to deter other manufacturers from engaging in 
similar conduct.
  I say to my colleagues that this is exactly what our civil justice 
system, grounded in the principle of trial by jury, was designed to do 
and I am confounded as to why the supporters of this bill are unwilling 
to trust those Americans that meet their civil duties by serving on 
juries.
  How troubling that at a time when Americans are so distrustful of 
their Government that we in Government are not willing to trust 
Americans to administer civil justice.
  Mr. President, I am somewhat mystified as to how supporters of this 
bill can suggest that this bill is proconsumer when they want to place 
this kind of a straightjacket on juries. In addition, I find it 
absolutely ludicrous that the supporters of this bill would suggest 
that we are providing uniformity when we are going to have completely 
different punitive damage standards throughout the 50 States.
  Let me provide another example of how this bill would pre-empt State 
laws to the extent that those laws are proconsumer.
  S. 565 creates a new Federal standard for the number of years a 
manufacturer or product seller can be held liable for a harm caused by 
a particular product. Known as a statute of repose, that period is 20 
years under this bill. Why 20 years? Good question.
  The product liability legislation considered in the last Congress, 
written by the same two principal authors, contained a 25-year statute 
of repose--5 years longer. Why? Well a footnote in the committee report 
from last year justified 25 years by pointing out that according to 
testimony received by the Commerce Committee, and I quote,

       Thirty percent of the lawsuits brought against machine tool 
     manufacturers involve machines that over 25 years old.

  Therefore, presumably, the authors of this bill selected 25 years as 
the life expectancy of all products manufactured in the United States.
  But now we have a new bill that the supporters have tried to 
characterize as much more moderate and much narrower than either the 
House-passed legal reform legislation or the product liability bill 
considered by the Senate just last year. But remarkably, the 25-year 
statute of repose has been dropped to 20 years.
  Why? Once again, good question. This year's committee report 
conspicuously leave out that footnote about the machine
 tool testimony, and makes absolutely no mention whatsoever as to why 
20 years was selected.

  Instead, the committee report promotes the consistency of this 
statute of repose with the General Aircraft Revitalization Act of 1994, 
passed by this body last year. Mr. President, I voted for that 
legislation. But that legislation provided an 18 year statute of repose 
for a very narrow segment of our manufacturing base.
  This body came to the conclusion, the overwhelming conclusion as I 
recall that vote, that 18 years was a reasonable length of time for 
liability claims associated with the general aviation aircraft.
  This statute of repose, however, is entirely different. His 20-year 
period would apply to all durable products across the board with a few 
limited exceptions. Machine tools, farm equipment, football helmets--
you name it. This Congress is going to decide that the life expectancy 
of virtually every product in America is 20 years.
  But this takes us back to the issue of selective preemption of State 
authority over liability laws. Section 108(B)(2) reads;

       . . . If pursuant to an applicable State law, an action 
     described in such paragraph is required to be filed during a 
     period that is shorter than the 20-year period that is 
     shorter than the 20-year period specified in such paragraph, 
     the State law shall apply with respect to such period.

  In other words, if a state legislature has decided against having a 
statute of repose, or has decided on a statute that is longer than 20 
years, this new Federal law will override the judgment of that State 
legislature. Again, so much for uniform Federal standards.
  Ironically, this year's committee report also justifies a Federal 
statute of repose on the basis that Japan is poised to enact a short 
10-year statute of repose. So now apparently the Japanese Government 
knows better than the State of Wisconsin how to properly administer 
civil justice in cases involving Wisconsin litigants. I wonder how the 
Framers of the Constitution would feel about that assertion.
  Before I conclude my remarks, Mr. President, I would like to remind 
my colleagues of the giant precedent we are about to set, or the 
radical departure from our current system as the Chief Justices put it. 
This legislation would make dramatic alterations to some of the oldest 
and most fundamental underlying principles of our judicial system.
  Product liability is just a first step--the majority has made their 
intention clear to pursue legislation that would overhaul our entire 
civil justice system.
  As we make these sort of tremendously consequential decisions, there 
are a variety of groups and individuals we can seek advice from. Those 
of us that oppose this legislation have chosen to listen to the experts 
on this issue--whether it is Chief Justices, the American Bar 
Association or the National Conference of State Legislatures.
  But those who support this legislation do not want to listen to State 
legislators, judges or even the consumer organizations that this bill 
purports to protect. Instead, the other side has chosen to listen to 
the advice of corporate America on how to best to shield those who 
manufacture and sell defective products from any sort of liability. 
That is unfortunate for all of us.
  Thank you, Mr. President, and I yield the floor.
  Mr. DOMENICI. Mr. President, I am pleased to support the efforts of 
my colleagues today to reform our system of products liability 
litigation. The Senator from Washington [Mr. Gorton], the Senator from 
Utah [Mr. Hatch], and the Senator from West Virginia [Mr. Rockefeller] 
deserve a lot of credit for putting together a bipartisan approach to 
solving the problems associated with products liability.
  I have watched this debate over the past 2 weeks with great interest. 
I was pleased to see that there was some interest in expanding this 
bill in order to achieve general across-the-board legal reform, and I 
supported many of the thoughtful amendments which were brought to the 
floor. I would have preferred to include the rule 11 amendment offered 
by the distinguished Senator From Colorado [Mr. Brown] and the 
amendment on joint and several liability offered by the distinguished 
Senator from Michigan [Mr. Abraham] in any bill we might eventually 
pass. But I realize that in the interest of compromise, changes had to 
be made in order to get something passed, and unfortunately that 
compromise will not include comprehensive legal reform.
  I am no stranger to legal reform. I have been trying to fix our 
broken securities class action system for several years, and many of 
the problems associated with securities litigation are inherent to our 
general tort system. I also have introduced legislation in past years 
to fix some of the problems associated with medical malpractice.
  I am disappointed that we will not address medical malpractice 
litigation reform in this bill. The distinguished Senator from Kentucky 
[Mr. McConnell] and the chairperson of the Labor Committee, the 
gentlewoman from Kansas [Mrs. Kassebaum], did a fine job putting 
together a comprehensive and fair overhaul of our medical malpractice 
system. There were several provisions in the medical malpractice 
amendment which I included in my health care reform bill last Congress, 
and I believe that the amendment would have gone a long way toward 
reducing health care costs for all American citizens. For that reason, 
I hope that we will take up medical malpractice reform later on in this 
Congress.
  Particularly, I would like to address collateral source reform, which 
would prevent duplicative payments by insurance companies for the same 
injuries. I heard just last week from an individual who works for a 
company that sells insurance in my home State of New Mexico. He told me 
about a case that he just handled where a claimant was paid five 
different ways for the same injury. He told me that four ways was 
common, but that this was his first five-way case. He told me that if 
we want to achieve significant reform, preventing 
 [[Page S6398]] this sort of duplicative payment and the litigation 
that goes along with it will substantially strengthen our system. I 
hope we will continue to pursue collateral source reform later this 
year.
  I also had hoped that we would be able to include general rule 11 
reform in this bill and the Senator from Colorado, Senator Brown, 
should be commended for bringing his important amendment to the floor. 
Prior to 1993, courts were required to sanction attorneys who filed a 
frivolous complaint, and rule 11 served as a healthy deterrent to 
strike suits. However, rule 11 was weakened in 1993 and judges were 
given the discretion to impose sanctions even when they found that a 
complaint truly was frivolous. Senator Brown's amendment would return 
us to the pre-1993 standard and adopt a preference for the sanction to 
be payment of the attorneys fees and costs of the opposing party.
  It also would limit fishing expedition lawsuits by requiring 
attorneys to make an adequate inquiry into the facts prior to the 
filing of a complaint. Attorneys should be required to stop, think and 
investigate the facts before filing lawsuits which could have a 
potentially devastating effect, and Senator Brown's amendment would 
have done just that. I believe that this issue also should be re-
visited later in the year.
  As for products liability, there can be no doubt that the current 
system in place in this country extracts tremendous costs from the 
business community and from consumers. The great expense associated 
with products liability lawsuits drives up the cost of producing and 
selling goods, and these costs are passed on to the American consumer. 
We have heard several Senators talk about how half of the cost of a 
$200 football helmet is associated with products liability litigation, 
and how $8 out of the cost of a $12 vaccine goes to products liability 
costs. We can no longer afford to require our consumers to pay this 
tort tax.
  Because of the high costs associated with products liability 
litigation, American companies often find it difficult to obtain 
liability insurance. The insurance industry has estimated that the 
current cost to business and consumers of the U.S. tort system is over 
$100 billion. Insurance costs in the United States are 15 to 20 times 
greater than those of our competitors in Europe and Japan. Much of this 
money ends up in the pockets of lawyers, who exploit the system and 
reap huge fee awards while plaintiffs go undercompensated and our 
businesses suffer.
  For companies involved in the manufacture of certain products, like 
machine tools, medical devices, and vaccines, this means that 
beneficial products go undeveloped, or after they are developed, they 
do not make it to the marketplace out of fear of being sued. This 
hampers our competitiveness abroad, and limits the products available 
to consumers. Harvard Business School Prof. Michael Porter has written 
about how products liability affects American competitiveness. He 
wrote:

       In the United States * * * product liability is so extreme 
     and uncertain as to retard innovation. The legal and 
     regulatory climate places firms in constant jeopardy of 
     costly, and, as importantly, lengthy product liability suits. 
     The existing approach goes beyond any reasonable need to 
     protect consumers, as other nations have demonstrated through 
     more pragmatic approaches.

  In the case of manufacturers of vaccines and other medical devices, 
the cost of our unreasonable and certainly unpragmatic products 
liability litigation system often means that potentially life-saving 
innovations never make it to the American public. Products liability 
adds $3,000 to the cost of a pacemaker, and $170 to the cost of a 
motorized wheelchair. It also has caused the DuPont Co. to cease 
manufacturing the polyester yarn used in heart surgery out of fears of 
products liability litigation. Five cents worth of yarn cost them $5 
million to defend a case, and DuPont decided that they simply could not 
afford further litigation costs. Now, foreign companies manufacture the 
yarn and will not sell it in the United States out of fear of also 
being sued.
  In cases where a truly defective product has injured an individual, 
the litigation process is too slow, too costly, and too unpredictable. 
This bill, because it creates a Federal system of products liability 
law, will return some certainty to a system that now often 
undercompensates those really injured by defective products and 
overcompensates those with frivolous claims.
  Those injured by defective products often must wait 4 to 5 years to 
receive compensation. This leads victims to settle more quickly in 
order to receive relief within a reasonable time. Companies must expend 
huge amounts of money in legal fees to settle or litigate these long, 
complicated cases. These again are resources that could be better spent 
developing new products or improving the designs of existing ones.
  Another major problem with our tort system is with punitive damages. 
As their name implies, punitive damages are designed to punish 
companies and deter future wrongful conduct. They are assessed in these 
cases in addition to the actual damages suffered by injured victims.
  Unfortunately, these damages have little effect except to line the 
pockets of lawyers. They serve relatively little deterent purpose and 
led former Supreme Court Justice Lewis Powell to describe them as 
inviting ``punishment so arbitrary as to be virtually random.'' Because 
juries can impose virtually limitless punitive damages, in Justice 
Powell's words, they act as ``legislator and judge, without the 
training, experience, or guidance of either.'' Justice Powell is 
absolutely correct, and I applaud the drafters of this bill for dealing 
with the problems associated with these types of damages.
  Reform of punitive damages will return some common sense to the 
system. Under the current system, punitive damages do little to deter 
wrongful conduct and merely serve to line the pockets of contingency 
fee lawyers. Huge punitive damage awards also threaten to wipe out 
small businesses and charitable organizations. By limiting the amount 
of punitive damages available in these cases and raising the legal 
threshold for an award of punitive damages, this bill will relieve some 
of the pressure on even the most innocent defendant to settle or face 
an award which could potentially bankrupt the company. It also will 
provide some uniformity and certainty in States which still allow 
punitives. Finally, for those States which do not allow punitive 
damages, I think the bill makes it clear that they may continue to do 
so.
  The drafters of this bill also have taken the wise step to reform 
joint liability, without limiting the ability of plaintiffs to recover 
their economic damages. The bill abolishes joint liability for 
noneconomic damages, like pain and suffering, but allows States to 
retain it for economic damages like hospital bills. This will reduce 
the pressure on defendants who are only nominally responsible for the 
injury to settle the case or risk huge liability out of proportion to 
their degree of fault, while ensuring that injured victims get 
compensated for their out-of-pocket loss.
  I would have liked to see this extended across the board to all civil 
cases and I voted for the Abraham amendment, but at least in the area 
of products liability, this provision strikes a fair balance between 
the rights of injured plaintiffs and those of those defendants brought 
into cases merely because of their deep pocket.
  The bill also limits liability in cases where the victim altered or 
misused the allegedly defective product in an unforeseeable way. It 
simply is unfair to hold manufacturers liable in cases where consumers 
use products in ways for which they were not intended. It also is 
unfair to hold defendants liable in cases where the plaintiff's use of 
alcohol or drugs significantly contributed to their injury. I am happy 
to see that this bill provides an absolute defense in such cases.
  Mr. President, as I said earlier, I am no stranger to legal reform. 
Many of those who are responsible for this important and well-crafted 
legislation are cosponsors of the securities reform bill Senator Dodd 
and I hope to bring to the floor soon after this bill. I hope that we 
can follow our colleagues in the House and enact comprehensive but fair 
legal reform in the 104th Congress. I appreciate all of the hard work 
that went into this bill and hope that we will pass it.
  Mr. GLENN. Mr. President, product liability reform is long overdue 
and I am pleased that the Senate is acting 
 [[Page S6399]] favorably on this bill. I have cosponsored product 
liability reform legislation in three previous Congresses.
  I believe that this legislation is good for both consumers and 
businesses. Our product liability system is out of control and reform 
is desperately needed. Under our current system manufacturers of 
products are subject to a patchwork of varying State laws whose 
beneficiaries are most often lawyers instead of litigants.
  The Congress is currently debating the proper role of the Federal 
Government across a broad range of issue areas. Many believe that 
functions now conducted at the Federal level should be moved to the 
States. On this issue I believe that we need a more uniform system of 
product liability and therefore Federal standards are necessary.
  The current system is unfair to consumers. Much too much of the money 
paid by manufacturers goes to attorneys' fees instead of the injured 
party. the high cost of product liability insurance means higher costs 
for consumers. Because of the unpredictability of the current system, 
many severely injured consumers receive less than they deserve while 
mildly injured consumers often recover more. Furthermore, because of 
unpredictability, cases which are substantially similar receive very 
different results. Product liability cases often require a great deal 
of time and many claimants are forced to settle because of economic 
necessity.
  The current system is unfair to manufacturers. The cost of litigation 
is a substantial expense to companies. Companies spend more on legal 
costs and less on other important areas such as research and 
development. In some cases manufacturers decide not to invest in or 
develop new products because of product liability concerns. Ultimately 
this burden or product liability makes our companies less competitive 
in world markets than foreign companies.
  During the debate on this legislation, I have been particularly 
concerned that as we reform our product liability laws we do not affect 
the rights of individuals to bring suits when they have been harmed. On 
the contrary, it is my intent to bring rationality to a system that has 
become more like a lottery. For me, legal reform does not mean putting 
a padlock on the court house door.
  There are several very important improvements that this legislation 
will provide. A statute of repose of 20 years is established for 
durable goods in the workplace. After 20
 years no suit may be brought unless there is an expressed warranty.

  Joint liability is abolished for noneconomic damages in product 
liability cases. Defendants are liable only in direct proportion to 
their responsibility for harm. Therefore, fault will be the controlling 
factor in the award of damages, not the size of a defendant's wallet.
  Another important area is punitive damages. I am supportive of 
raising the standard of proof to clear and convincing evidence. I am 
very concerned, however, about the establishment of caps on punitive 
damages and that the bill not impose a one size fits all prescription. 
In fact this is the issue that kept me from cosponsoring this 
legislation during this Congress. The bill originally provided for a 
proportional cap based on economic damages. During the amending 
process, that cap was improved by including all compensatory damages. 
Even with that improvement, however, the bill remained too restrictive. 
I support the further inclusion of the judge additur provision allowing 
an increase in punitive damage awards in especially egregious cases.
  However, I believe that an additional provision in the additur 
section is without merit. That provision would allow a defendant 
another trial on damages should additur occur. This goes against the 
fundamental principles behind product liability reform--fairness, 
simplification and streamlining the system. Instead, this provision 
could provide a never ending litigation cycle which will insure full 
employment for all lawyers. And it increases the burden on an already 
overburdened legal system. This one provision is so egregious, that it 
prompted my vote against cloture on the Gorton-Rockefeller compromise 
which I found otherwise acceptable. I am pleased that Senators 
Rockefeller and Gorton intend to address this language in conference.
  Unfortunately, the product liability legislation this year turned 
into a Christmas tree attracting numerous unrelated items that had 
never been in the bill before. The expansion of the legislation to 
include medical malpractice and general civil liability litigation, as 
Senator Rockefeller has accurately pointed out, caused the tree to 
topple over. Those matters should and will be addressed more completely 
in separate legislation.
  During the debate, the Senate considered several amendments 
addressing medical malpractice. I believe action is needed to ensure 
timely and appropriate awards for patients who are harmed by negligent 
medical care, while at the same time protecting health care providers 
from unwarranted lawsuits and the need to practice costly defensive 
medicine.
  I supported a medical malpractice amendment offered by Senator 
Kennedy which was based on provisions contained in comprehensive health 
care reform legislation in the last Congress. This approach requires 
States to establish alternative dispute resolution mechanisms so that 
cases can get an early hearing, and it limits attorney's contingency 
fees to one-third of the first $150,000 awarded and 25 percent 
thereafter. I regret that this amendment, which would have modified 
Senator McConnell's medical malpractice amendment, was defeated.
  I oppose Senator McConnell's medical malpractice amendment, for both 
substantive and procedural reasons. I was concerned that the amendment 
did not allow States to adopt their own medical malpractice laws if 
they were more beneficial to consumers, and I opposed its caps on 
punitive damages.
  I am hopeful that the Senate will return to the important issue of 
medical malpractice reform when the Labor and Human Resources Committee 
reports the bill it has approved and during debate on health care 
reform measures.
  With the addition of medical malpractice and general civil liability, 
efforts to pass product liability bill reform were diminished. All of 
these extraneous items have threatened passage of a good product 
liability bill and the White House has also made it clear that they 
would veto such Christmas tree legislation.
  In an effort to pare the bill back to its core principles, I opposed 
motions to cut off debate on the bill. I believe that through this 
process, the bill now provides effective product liability reform and 
its chances of enactment are improved. I applaud the efforts of 
Senators Rockefeller and Gorton in the enormous amount of work 
undertaken to pass this legislation.
  Mr. ROTH. Mr. President, the Senate's debate on product liability 
reform has revealed that many citizens and many members of the business 
community strongly favor legislation that would alter significant 
aspects of tort law. Products liability law traditionally has been a 
matter of State law, and the primary venue for products cases 
traditionally has been the State courts, which are our Nation's courts 
of general jurisdiction. Proponents of the products liability 
legislation have asked us, then, to change the laws of each State by 
creating Federal standards that would apply in all products cases, 
whether they are brought in Federal or State courts.
  I oppose Federal products liability legislation because it will 
preempt whole areas of State law that have been developed incrementally 
over many, many years. The legislation does not deal with Federal 
question jurisdiction or any Federal cause of action. Instead, it 
pertains to an area of law that has long been the primary 
responsibility of State courts. If it is to occur, the reinvention of 
tort law should occur through the State courts and legislatures, which 
are best situated to determine and control the impact of reform within 
their own communities.
  We are not dealing in an area where the States have proven incapable 
of enacting change. The vast majority of States have already adopted 
some type of tort reform, and many States are considering further 
changes. These reform measures have varied widely. Some have involved 
more dramatic changes than the Senate has debated; some have involved 
more modest 
 [[Page S6400]] changes; and some have involved referendums on 
important Sate constitutional provisions. In my own State of Delaware, 
the State legislature has before it several different tort reform 
proposals.
  The impact of the reforms passed so far at the State level is 
unclear, but at least by one measure, the State reforms appear to be 
having a positive effect. In a recent survey involving 1993 data, 
American businesses for the first time in many years reported that they 
spent less on insurance and other risk-related expenses than they did 
the year before. Much of the savings came from changes enacted by 
States to their workers compensation laws, which have enabled employers 
to contain their workers compensation costs in various ways. The survey 
reported that the cost businesses paid for liability risks, which 
includes products liability, had leveled out. This is encouraging news.
  The patchwork course of tort reform at the State level has not 
happened with the alacrity or the uniformity that many reform 
proponents would like to see. But the State efforts demonstrate why 
Federal legislation in this area is so profoundly misguided. In the 
best tradition of our Federal form of Government, the States have 
balanced, and in many instances are still considering how to balance, 
the competing interests in the tort reform debate for their own 
communities. We stand poised to upend that State-based process in favor 
of legislation that purports to create uniform Federal standards. In 
doing so, we are involving the Federal Government intimately in an area 
where it does not belong.
  The Supreme Court's recent ruling in United States versus Lopez, the 
case which struck down as unconstitutional the Federal Gun Free School 
Zones Act, raises a serious question as to whether the Federal 
Government is permitted to take over the law of products liability.
  I oppose the products liability legislation not because of any 
specific provisions being debated, but because the federalization of 
this area of the law is a bad idea. Federalizing products liability law 
embarks us, I fear, on a course where over the years Congress will 
succumb to a creeping temptation to federalize other areas of State law 
solely, as in this case, on the grounds of convenience. I am wary of 
where that course leads.
  (At the request of Mr. Rockefeller, the following statement was 
ordered to be printed in the Record.)
 Mr. LIEBERMAN. Mr. President, due to the death of a close 
family member, I am regrettably unable to be present on the Senate 
floor today to join my colleagues in passing product liability 
legislation. It is day long awaited by those of us who have been 
working on behalf of reform for years only to be denied, not only 
passage of a bill, but full and open debate. I was proud to be a 
cosponsor of past product liability bills, including this year's bill, 
S. 565.
  Credit for this remarkable turn of events is due to Senators 
Rockefeller and Gorton, who have labored long and hard on the Senate 
floor over the last 2 weeks and, quite literally, for years to produce 
a fair bill. It is their perseverance and fair treatment of all that is 
responsible for our success today. Their staffs have done extraordinary 
work on their behalf and deserve all of our thanks--Tamera Stanton, 
Ellen Doneski, Lance Bultena, Trent Erickson, and others.
  Were I present today, I would have voted to table Harkin amendment 
No. 749, to table Dorgan amendment No. 629 and, of course, I would have 
enthusiastically voted ``yes'' for final passage.
  Mr. President, I would ask unanimous consent that I be added as a 
cosponsor of the bill as passed by the Senate today. This is an 
important first step toward comprehensive reform of our legal system. 
It is incremental reform, but it's significance should be understated. 
It establishes some important principles for further reform: parties 
responsible for harm must be held fully accountable and parties who 
have caused no harm should not be bullied into settlements by a system 
that does more to compensate lawyers than to achieve justice for 
injured people.
  Mr. PRESSLER. Mr. President, as we conclude the debate over S. 565, 
the Product Liability Fairness Act, we have come full circle.

                            committee action

  On March 15 I joined with Senators Gorton and Rockefeller in 
introducing legislation designed to reform that portion of America's 
tort system dealing with products liability. Two days of hearings were 
conducted on the bill and on April 6 the Senate Committee on Commerce, 
Science, and Transportation, of which I am chairman, met in executive 
session to consider the legislation.
  During the committee process there was talk of expanding the bill to 
encompass a broader array of tort reform. As chairman, I resisted 
efforts to expand the legislation into any areas that did not fall 
within the jurisdiction of the Commerce Committee. Do not get me wrong. 
I support more broad-based tort reform. My voting record over the past 
2 weeks proves that fact. However, during committee consideration I 
believed it was important not to add provisions that fall under the 
province of other Senate committees. As a result, on April 6 the 
Commerce Committee voted 13 to 6 to send a products liability reform 
bill to the full Senate.

                          senate consideration

  On April 24 the full Senate took up the measure. Over the past 2\1/2\ 
weeks the legislation has consumed some 90 hours of Senate debate. It 
has been a constructive process. No one can say this body did not fully 
explore the issues involved. No one can say we blocked any attempts to 
make changes to the legislation. Indeed, it was those--like myself--who 
favored a broader bill that found themselves blocked.
  Since April 24, we have debated and voted upon over 30 amendments. 
Roughly a dozen of those dealt with reforming the medical malpractice 
system. Senator McConnell introduced a broad
 reform amendment similar to legislation that had been fully debated by 
the Committee on Labor and Human Resources. That major amendment, 
together with a number of smaller malpractice reform measures passed 
the Senate and became part of the bill. I was proud to support these 
efforts and voted for many of the malpractice initiatives.

  Next the Senate turned its attention toward broadening reforms 
concerning punitive damages. By considering some half dozen punitive 
damages amendments and adopting several--including major provisions 
offered by Senators Dole and Hatch, by Senator Snowe and by Senator 
DeWine--a majority of the Senate worked its will to expand the reform 
of punitive damage awards from product liability cases to include all 
civil cases. Again I supported these efforts and worked for their 
passage.
  Finally, the Senate turned to a consideration of joint and several 
liability. S. 565 as reported contained a provision abolishing joint 
liability for noneconomic damages. As to these damages, defendants 
would be liable only in direct proportion to their responsibility for 
the claimant's harm. They would not be responsible for the harm caused 
by another defendant who later was found unable to pay the compensation 
awarded. In other words, with regard to noneconomic damages, a 
defendant's liability would be several and not joint. Senator Abraham 
offered an amendment on the floor to extend this concept to all civil 
cases. Unfortunately, that amendment was tabled.
  Mr. President, these actions brought us to Thursday of last week. 
They also put a majority of the Senate on record in favor of broad-
based legal reform. Most importantly, our efforts produced a fair, 
reasonable, and balanced bill.
  Sadly, our efforts were not enough. Last Thursday the Senate failed 
in two votes to end debate, allow a vote on final passage of the bill, 
and move to a conference with the House of Representatives to work out 
the difference between our bill and the much more sweeping legislation 
passed by the House earlier this year.
  As a result, Senate leadership crafted an alternative bill. That 
measure, introduced Friday as a substitute to the pending legislation, 
returned the reform initiative to its Commerce Committee roots. That 
proposal, along with the amendment we are debating today, is very 
similar to S. 565 as reported by the Commerce Committee.
  How did this happen? Quite simply the opponents of broad-based tort 
reform were highly effective in their 
 [[Page S6401]] campaign against the legislation. Like much of the 
debate over the issue of civil justice reform, the rhetoric tended to 
get very emotional and often strayed off course.

                        the truth about the bill

  Mr. President, the truth is this legislation would not change any of 
what is right with our current legal system. The courthouse doors would 
remain open. Consumers would still have a full range of rights. Persons 
wrongfully injured still would be compensated. Tort cases could be used 
to provide a strong check on corporate behavior. Contingent fees would 
continue to allow ordinary citizens with limited means the ability to 
bring suit. What would change is that frivolous lawsuits would be 
curtailed--pure and simple.
  In an earlier statement I outlined how the bill's provisions 
concerning punitive damages, the statutes of limitations and repose, 
joint and several liability, defenses for alcohol and drug abuse, and 
biomaterial suppliers would benefit small business, consumers, and 
those injured by products. Therefore, I will not take the Senate's time 
to reexamine those issues today. It is not necessary. Under the latest 
alternative we have before us today, the things I said in that 
statement continue to apply.
  I would add only a few comments concerning the views of the American 
people--specifically the citizens of my home State of South Dakota--
with regard to our legal system. A recent poll conducted in my State 
found that 83 percent of survey respondents say that ``the present 
liability system has problems and should be improved,'' while only 10 
percent say that ``the present liability lawsuit system is working well 
and should not be changed.''
  In addition, this is not a partisan issue: 78 percent of Democrats, 
83 percent of Independents, and 88 percent of Republicans in South 
Dakota responding to the survey say there are problems that need to be 
improved. of those who had served on a civil trial jury, 79 percent say 
the system has problems and needs improvement.
  Mr. President, the pending measure is not as broad as I would like. I 
truly wish we could have done more to address the problems of the tort 
system generally and not limit ourselves simply to product liability 
cases. However, I am gratified the model used by the Senate for product 
liability reform continues to be the bill reported to this body by the 
Commerce Committee. It represents an excellent move forward and I 
strongly urge all of my colleagues to vote for this legislation.
  Mr. BINGAMAN. Mr. President, I rise today in opposition to H.R. 956, 
the Product Liability Act of 1995.
  I have closely followed the debate on this legislation over the past 
2 weeks and I have come to the conclusion that despite the efforts of 
many of this Chamber, including my good friend from West Virginia, to 
craft a balanced bill, the bill we are voting on today falls short of 
that goal.
  Mr. President, the issues we have debated over the course of the past 
2 weeks are complex and far reaching. Contrary to what some would have 
the American public believe, the solutions to the problems facing our 
legal system cannot be explained away in 30-second sound bites or by 
anecdotal evidence. Each day throughout this country, judges and juries 
struggle to determine what is meant by justice, and, I believe in the 
vast majority of cases, these people, our neighbors, friends, coworkers 
and family, do a remarkable job of determining what is fair and what is 
just.
  I have supported reforms to our legal system in the past and was 
prepared to support a reasonable reform measure at the end of this 
debate. I am a cosponsor of S. 240, the Securities Litigation Reform 
Act of 1995, authored by my colleagues from New Mexico and Connecticut. 
I have supported my own State's efforts at reform in the area of 
product liability and medical malpractice, and I worked with my 
colleagues on the Labor and Human Resources Committee last year to 
fashion reasonable medical malpractice reform during the health care 
reform debate. Last week, I voted for an amendment by my colleague from 
Massachusetts, Senator Kennedy, that was a reasonable approach to 
medical malpractice reform and would have protected the rights of 
States such as New Mexico to enact their own reform.
  Indeed, a proposal that would have significantly improved this 
legislation was considered by Senator Breaux. This amendment would have 
created a truly uniform statute of repose and addressed the concerns 
about the elimination of joint and several liability in a reasoned and 
balanced matter. The amendment also would have allowed a jury to 
determine whether or not punitive damages are warranted in a particular 
case and would have allowed the judge to determine the amount of 
punitive damages that should be awarded. Unfortunately, Senator Breaux 
did not have the opportunity to offer his amendment and the Senate did 
not have the opportunity to debate it as a result of cloture being 
invoked yesterday.
  I have come to the conclusion that the bill that we vote on today 
tilts the scales too heavily against protection of the rights of 
injured victims and against just punishment of dangerous practices. 
Also, Mr. President, I am concerned about the provision limiting the 
award of punitive damages in cases filed against a small business. I 
take a back seat to no one in my concern for small businesses and have 
worked throughout my career in the Senate to promote the growth and 
prosperity of small businesses especially in my home State. However, 
the provision contained in this bill is not well considered; I am 
afraid that it would lead to more litigation, not less, and arbitrarily 
eliminate the opportunity for injured plaintiffs to recover fair and 
just compensation for damages inflicted as a result of conscious and 
flagrant indifference to their safety. That is what we are talking 
about Mr. President, not simply a mistake, but a conscious and flagrant 
indifference to the safety of consumers.
  Mr. President, I would say to my friend from West Virginia, Senator 
Rockefeller, and my friend from Washington, Senator Gorton, that I 
commend them for their efforts during this debate to bring reason to 
our deliberations. I know that they have worked diligently and in good 
faith to develop meaningful and balanced legislation in this area. 
Unfortunately, I do not believe that the bill before us reaches those 
objectives and for that reason I intend to vote against this bill and 
urge my colleagues to join me.
  Mr. KERRY. Mr. President, when we talk about reforming product 
liability law, we are talking about taking away the rights of U.S. 
citizens. This is serious business--among the most serious things we 
can do in the Senate, and it is from this perspective that we must 
approach this debate.
  Cloture has been invoked and we are about to vote on final passage. 
But before we haphazardly strip citizens of their rights, we need to 
take a long, hard look at what this means to people--how it affects 
families and children and average, hard-working people who have 
suffered.
  Let us take a representative case. It is a wrongful death case.
  A woman drives a Pinto to the super-market. Someone bumps into the 
rear of the car, and the car explodes--it explodes. She is tragically 
burned alive--a wife, a mother, a human being burned alive because of 
what, after years of legal hassling and thousands of dollars in legal 
fees, lawyers hours, and a legal battle that has become part of tort 
history, Ford had calculated that it was cheaper to settle than to 
protect the lives of every Pinto owner with a recall.
  It made good business sense to take the risk of people dying.
  Mr. President, that kind of business sense is exactly what I am here 
to fight against.
  I am here to fight for the husband of that woman in the Pinto. I ask 
my colleagues--would you settle for $250,000 in exchange for losing 
your spouse and destroying your life?
  Is that fair? Is that just?
  Mr. President, if this bill were to become law, you would not even 
get the $250,000 because there is not a lawyer in the country who would 
take the case.
  No law firm could afford to go up against the Ford Motor Co., with 
its host of attorneys and huge legal budget, and an infinite ability to 
push motions and appeals to the limit and slow down the process to 
their advantage. It just would not happen.
  Mr. President, I cannot sanction stripping this legal right from even 
one American. I cannot do it. And anyone who can, should look into the 
eyes of 
 [[Page S6402]] that husband. They should look into the face of the 
thousands and thousands of victims across this country who seek simple 
justice and fairness and ask only to be given a chance to fight the big 
guys.
  It is a matter of fairness. It assures that those who do not have the 
resources to fight the richest and most prominent American corporations 
when they are wrong will have a chance for simple justice.
  I am here to fight for average hard-working Americans and to put a 
face to this legislation--to talk about how this bill will affect real 
Americans. Real Americans, like the 5-year-old boy in New Bedford, MA, 
who died in a house fire after the flammable material on a couch 
ignited, or the 8-month-old baby who suffered second- and third-degree 
burns on his arms, legs, and back in a house fire that started when the 
bedding in his crib was ignited by a portable electric heater.
  Or, the eight working-class families in Woburn who sued two of our 
Nation's biggest corporations because they suspected the companies had 
polluted the East Woburn water supply with highly toxic industrial 
solvents, causing death and injury to their children.
  The Woburn case took 9 years, and the attorney that pleaded the case 
spent $1 million of his own money on it. The jury ultimately found one 
of the companies negligent, and the scientific research done during the 
9-year trial demonstrated the link between the industrial solvents in 
the water supply and human disease. The company is now helping to clean 
up the polluted aquifer. The attorney has said that if this bill were 
law today, he would never have considered the case.
  If we pass the Dole substitute to H.R. 956, I fear we will be doing 
great harm. Our votes will have a serious impact on real Americans.
  Mr. President, our laws play a critical role in fostering a 
competitive economic environment by establishing groundrules for fair 
competition and by helping to reduce the costs of doing business. But I 
believe Congress has a special responsibility to ensure the laws we 
write are reasonable and fair; we must weigh the impact of laws will 
have on both consumers and business.
  In the 10 years I have considered product liability reform at the 
Federal level, I have heard proponents of reform argue that consumers 
lose under the present system. They have argued that injured consumers 
receive inadequate compensation, and that injured consumers wait 
unreasonable amounts of time in litigation--on the average of 3 years--
before they receive compensation. They have also argued that injured 
consumers face closed courthouse doors because the statutes of 
limitation have expired on their cases.
  Proponents of reform have stressed that companies in the United 
States also lose under the current system. They have pointed to 
insurance rates that disable American manufacturers by forcing them to 
pay 10 to 50 times more for product liability insurance than their 
foreign competitors. They have claimed there is an explosion in 
products liability litigation, with uncontrollable punitive damages 
awards. They have argued that the present system of lottery liability, 
where liability differs from State to State, does not enhance the 
safety of U.S. products.
  Each time the Senate has considered products liability legislation, I 
have measured the legislation against four tests: Is it fair to injured 
consumers; will it help lower insurance rates for American business; 
will it help reduce the number of tort cases and lower the cost of 
litigation, the transaction costs, for American business; and will it 
create uniformity in the laws covering products liability or generate 
more confusion in the legal system?
  In my examination of whether S. 565, the products Liability Fairness 
Act, and the Dole substitute satisfy these tests, I have concluded that 
this legislation fails on each account. It does not address the real 
concerns of business, nor is it fair to consumers.

                 is the legislation fair to consumers?

  Consumer products are responsible for an estimated 29,000 deaths and 
30 million injuries each year. But, according to the most authoritative 
study on punitive damages, conducted in 1993 by professors at Boston's 
Suffolk University Law School and Northeastern University, there were 
only 355 awards in products suits from 1965 to 1990, and half of these 
awards were reduced or overturned. In my own State of Massachusetts, 
there were absolutely no punitive damages awarded in products cases.
  Contrary to ensuring that injured consumers will receive adequate 
compensation in relation to their actual damages, this legislation 
imposes a cap on punitive damages. This is perhaps the most damaging 
aspect of this legislation to consumer interests. Although the cap has 
been amended to equal the sum of economic and noneconomic damages, a 
cap is still a cap.
  In our civil justice system compensatory damages--economic and 
noneconomic for pain and suffering--compensate victims; in addition, 
punitive damages may be awarded by juries to punish the wrongdoer.
  As such, punitive damages are often the only way individual Americans 
can force reckless defendants to change their conduct. However, despite 
the effectiveness of punitive damages as deterrents, they are 
exceedingly rare.
  And the new standards imposed for punitives in this bill will make 
them more rare than the Alabama sturgeon.
  Under most State laws, the defendant can be found liable for punitive 
damages if they engaged in reckless or willful and wanton or grossly 
negligent type of behavior.
  But under this bill, Mr. President, such behavior is not enough. A 
plaintiff must show that a company engaged in conduct manifesting a 
``conscious, flagrant, indifference to safety''. I have no idea what 
that means, Mr. President. but it certainly appears to be a tougher 
standard to meet.
  Moreover, it is unclear how the cap on punitives in this bill would 
affect the 39 States that presently either do not permit punitive 
damage awards or have enacted measures that significantly reduce the 
size and frequency of such awards.
  Far from ensuring injured consumers will enjoy expeditious resolution 
of their case, this legislation could prolong litigation by allowing 
either party to request a separate hearing in order for punitive 
damages to be awarded. Far from ensuring courthouse doors remain open 
to injured consumers, this bill imposes a 2-year statute of limitation 
and shortens the statute of repose by 5 years from last year's bill.
  If this bill truly protects consumers interests, why is it opposed by 
every major consumer group in America?
  If this legislation had been in effect, many cases would simply not 
have been possible. Let me give just one more example here:
  In 1988, Playtex removed from the market its super-absorbent tampons 
linked to Toxic Shock Syndrome only after a $10 million punitive 
damages award following the death of a woman who used the tampons.
  The Tenth Circuit Court of Appeals found ``Playtex deliberately 
disregarded studies and medical reports linking high-absorbency tampons 
fibers with increased risk of toxic shock at a time when other 
manufacturers were responding to this information by modifying or 
withdrawing their high-absorbency tampons.''
  Playtex subsequently strengthened its warnings and began a public 
awareness campaign about the dangers of toxic shock. It is doubtful 
whether a cap of $250,000 on punitive damages would have caused Playtex 
to alter its behavior.
  If the cap on punitive damages contained in this legislation is 
enacted, wrongdoers may find it more cost effective to continue their 
bad behavior and risk paying punitive damages. I do not believe we 
should pass a bill that reduces the incentive for companies to produce 
the safest products.

      will this legislation lower insurance costs for businesses?

  In testimony before the Commerce Committee several years ago, the 
American Insurance Association stated:

       The bill is likely to have little or no beneficial impact 
     on the frequency or severity of product liability claims * * 
     * And it is not likely to reduce claims or improve the 
     insurance market.

  So, this legislation will not provide businesses with cheaper 
insurance rates. Insurance premiums for most industries account for 
less than 1 percent of a business' gross receipts. Such a small 
percentage hardly threatens the 
 [[Page S6403]] viability of business and should not result in 
increased costs to consumers.
  Over the last decade, product liability insurance cost 26 cents per 
$100 of retail product sales, which would account for $26 on the price 
of a $10,000 automobile. Since 1987, according to a study by the 
Consumer Federal of America, product liability insurance premiums have 
actually dropped by 47 percent, from $4 billion to $2.7 billion, a fact 
that was confirmed by a 1992 Commerce Department study.
  Let us take a look at Florida. In Florida's 1986 tort reform law, the 
State eliminated joint and several liability, limited noneconomic 
damages to $450,000, limited punitive damages, and required the 
insurance industry to make rate filings indicating the effect of the 
changes in its tort laws on product liability insurance rates.
  Yet, Aetna's subsequent rate filing listed the effect of each change 
on its rates as zero. If such dramatic changes in Florida's tort reform 
law resulted in no lowering of liability insurance costs for a major 
carrier like Aetna, where is the evidence to suggest this bill will 
produce different results?

 will the legislation lower the cost of products liability litigation 
                            for businesses?

  Proponents of this legislation speak in terms of an explosion in 
product liability litigation. However, the evidence belies this 
characterization. In fact, the number of nonasbestos products liability 
suits in Federal courts has declined almost 40 percent since 1985. In 
State courts, where most products liability claims are filed, lawsuits 
have remained constant since 1990, according to testimony presented to 
the committee on April 3, by the National Center for State Courts.
  The 1992 annual report of the National Center for State Courts found 
that tort cases are approximately 9 percent of the 10 million civil 
filings in State courts and products cases are 4 percent of these--
40,000.
  Only one-third of 1 percent of all tort filings in State courts are 
product filings.
  Of all tort filings in 1991, 58 percent were related to automobile 
liability; 33 percent were miscellaneous; 5 percent were malpractice; 
and 4 percent were products. Since 1990, the national total of State 
tort filings has fallen by 2 percent.
  In 1990, the Rand Corp. found that most injured Americans never file 
a lawsuit for their injuries: only 10 percent of injury victims ever 
use the tort system to seek compensation for their injuries.
  This report also found that only 7 percent of all compensation for 
accident victims is paid through the tort system. The report observed:

       Americans' behavior does not accord with the more extreme 
     characterizations of litigiousness that have been put forward 
     by some.

  If there has been a litigation explosion, it is not in the area of 
products liability. Once again, this legislation misses the target in 
addressing the real litigation problems facing business.

    will this legislation bring uniformity to product liability law?

  Tort law has traditionally been a State responsibility, and the 
imposition of Federal products standards upon State tort law would, 
according to the National Conference of State Legislatures, ``create 
confusion in State courts.''
  Testimony by the Conference of Chief Justices was even more emphatic:

       If the primary goal of this legislation is to provide 
     consistency and uniformity in tort litigation, we are 
     concerned that its effect will be the opposite.
       Preempting each State's existing tort law in favor of a 
     broad Federal product liability law will create additional 
     complexities and unpredictability for tort litigation in both 
     State and Federal courts, while depriving victims of 
     defective products of carefully reasoned principles and 
     procedures already developed at the State level.

  This bill will not end the search of the sponsors for a single 
settled law because it does not create Federal question jurisdiction. 
The legislation would preempt all related State law and substitute 
Federal standards, but it would impose the Federal standards in a 
single overlay upon the 56 existing State court systems as well as the 
Federal courts.
  The result will be both State and Federal courts applying a mix of 
State and Federal law in the same case; State supreme courts will no 
longer be the final arbiters of their tort law. The U.S. Supreme Court, 
which many experts argue is already overburdened, will become the final 
arbiter of this new legal thicket.
  So, here we have what is indeed an irony: Those who ordinarily preach 
the virtue of reserving power to the States are instead advancing 
legislation to usurp the legitimate authority of States.
  At a time when many in Congress are intent upon returning 
responsibility for many Federal programs to the States, this 
legislation would preempt State law.
  Mr. President, the sponsors of this legislation have worked extremely 
hard, and I particularly wish to commend my friend from West Virginia 
for his tireless efforts on behalf
 of this legislation. I also commend the ranking Democrat on the 
Commerce Committee, Senator Hollings, for his stalwart defense of 
consumer interests.

  For all of this effort, I regret that I cannot support this bill. I 
cannot support it for two very simple reasons. The legislation is 
patently unfair to consumers, and it will not resolve the products 
liability problems businesses tell me they face.
  It will remove from ordinary Americans the power they retain in the 
jury box to force accountability for dangerous, careless, or reckless 
behavior. In the jury box, each American can bring about positive 
change. If we undermine the ability of our citizens to force changes in 
bad behavior, we will have compromised our Nation's core values.
  While many Americans increasingly sense an erosion of personal 
responsibility, our civil justice system remains one institution that 
holds individuals and organizations accountable for their behavior. 
Make no mistake, by restricting the civil justice system, this bill 
will take rights away from Americans.
  All of the available evidence on this legislation shows it will not 
make businesses more competitive by reducing insurance rates or the 
costs of corporate litigation, and it will not create national 
uniformity in products liability law.
  A great deal of hype has been generated about this issue, and after 
15 years, it appears to have taken on a life of its own. But all the 
lobbying and advertising cannot convince me that this legislation will 
accomplish its stated goals.
  The Dole substitute to H.R. 956 fails to strike a reasonable balance 
between promoting the competitive interests of business and protecting 
the rights of consumers. It will create a nightmarish new legal thicket 
that should be avoided rather than embraced. It is unfortunate that 
after all the effort we could not have achieved a reasonable balance.
  After we have argued all the complicated points of law, after we have 
poured over horror story after horror story, the issues boil down to 
one simple point: This bill is not fair, and it should be rejected.
  I yield the floor.
  Mr. GORTON. Mr. President, I ask unanimous consent that a letter I 
received from the National Federation of State High School Associations 
be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                      National Federation of State

                                     High School Associations,

                                     Kansas City, MO, May 9, 1995.
     Hon. Slade Gorton,
     U.S. Senate, Washington, DC.
       Dear Senator Gorton: On behalf of the National Federation 
     of State High School Associations, I want to commend you for 
     your leadership on legislation to address the long overdue 
     reform of our civil justice system. We applaud your efforts 
     to rein in the exploding costs of litigation that, if 
     unchecked, threaten to bankrupt non-profit organizations such 
     as ours and our member affiliates. The National Federation is 
     comprised of 51 state high school associations, with the 
     primary purpose of promulgating sports and non-sports playing 
     rules, including those specific to safety issues, for more 
     than 20,000 schools and approximately 10,000,000 students 
     each year. Additionally, our member associations establish 
     and enforce the eligibility rules under which all boys and 
     girls compete in high school athletics.
       The legislation pending before the United States Senate, 
     The Product Liability Fairness Act of 1995 (H.R. 956), sets 
     limits on all product liability cases. Furthermore, the bill 
     as currently amended, would eliminate joint 
      [[Page S6404]] liability for non-economic damages. Instead, 
     only several liability would be allowed which means that each 
     defendant would be liable only for his, her, or its portion 
     by reason of its proportion of the fault causing the injury. 
     Economic damages, i.e. lost wages, medical costs, etc. would 
     remain joint and several at the discretion of each state.
       We strongly agree with your comment on the floor this past 
     week stating ``it is unfair and unproductive to make 
     defendants pay for damages of a nature that are literally 
     beyond their control or beyond their fault.'' This 
     fundamental concept should apply to the civil justice system 
     as well.
       Let me cite two examples of costly litigation we recently 
     incurred which epitomize the unfairness and counterproductive 
     nature of current civil law. Both occurred in school swimming 
     pools.
       First, in Indiana a high school boy was ``leap frogging'' 
     off the starting platform, prior to the start of practice, 
     despite repeated warnings from his
      coach. On one such leap, his foot got caught under the 
     platform; he fell head first into the water and struck his 
     head on the pool bottom. Tragically, he suffered a neck 
     injury that ultimately resulted in quadriplegla. While 
     this unimaginably horrible accident was not related to any 
     swimming competition, the National Federation was sued 
     simply because it writes the rules for interscholastic 
     swimming, including rules related to standards for 
     equipment and facilities such as the depth of swimming 
     pools.
       Yet another incident occurred in Michigan during a water 
     polo practice. This incident involved a high school boy who 
     jumped off the platform over a lane designation rope and 
     struck his head on the pool bottom. This seemingly harmless 
     leap resulted in a lifetime of paralysis from the neck down. 
     While the National Federation does not even write water polo 
     rules, nor rules for the practice sessions for any sport, we 
     were included in the law suit and incurred exorbitant legal 
     fees for a defense that should not have been necessary.
       These are but two examples of what has become a nightmare 
     of litigation for the National Federation and its member 
     affiliates. Without radical reforms to our system of civil 
     justice, organizations such as ours whose sole mission is to 
     build a consensus for safe sports competition will be 
     unfairly jeopardized and possibly destroyed.
       Unfortunately, lawyers often join sanctioning bodies such 
     as ours in law suits as a trial strategy rather than because 
     of a reasonable belief that the injury was caused in any way 
     by the action of the sanctioning body. Current law 
     discourages sanctioning bodies from setting minimum safety 
     standards because of their fear of being joined in subsequent 
     litigation. This is bad public policy.
       Therefore, in addition to holding firm in your effort to 
     reform the civil justice system, we urge you to include an 
     exemption in the law for sanctioning bodies such as ours who 
     are joined in law suits solely because they recommend minimum 
     standards for facilities and equipment for the purpose of 
     reducing risk inherent in participation in almost any given 
     sport. This exemption would be consistent with your stated 
     belief that it is unfair and unproductive to make defendants 
     liable for incidents that are ``literally beyond their 
     control or beyond their fault.''
       Again, thank you for your leadership on this vital issue. 
     The members of the National Federation of State High School 
     Associations and I look forward to assisting you in achieving 
     these needed reforms.
           Sincerely,
                                                 Robert F. Kanaby,
                                               Executive Director.

  Mr. BYRD. Mr. President, the Senate has been considering legislation 
related to product liability for almost 2 weeks. During that time I 
have heard from a number of West Virginians who have been harmed or 
injured by defective products, as well as from businesses that have 
been seriously impacted by lawsuits brought against them--at times 
somewhat unfairly. I have listened to the debate and considered how the 
Senate can best balance these competing interests, and have concluded 
that the substitute amendment offered by Senators Gorton and 
Rockefeller does not adequately protect the rights of injured parties 
and consumers in two critical areas.
  The first involves the issue of several or proportional liability, 
versus joint and several liability. Under the concept of proportional 
liability, a defendant is only responsible for a percentage of 
liability directly contributing to the injury or harm caused by the 
defective product. On the other hand, joint and several liability 
provides that each defendant who contributes to causing a plaintiff's 
injury may be held liable for the total amount of damages. Joint and 
several liability, by enabling a plaintiff to recover all of his or her 
damages from a single defendant with the greatest financial assets or 
resources--the so-called ``deep pocket''--makes it more likely that the 
plaintiff will obtain full recovery in the event that one defendant 
does not have the assets to pay part of the judgment.
  The proposed legislation completely eliminates joint and several 
liability for noneconomic damages, such as pain and suffering, while 
retaining it for economic damages. This means that victims would fully 
recover their economic damages in the form of lost income or medical 
expenses, but victims with higher lost incomes, such as business 
executives, would receive greater compensation. Victims would fully 
recover their economic damages, even if only one defendant among 
several defendants is still solvent, because the ``deep pocket'' would 
provide full compensation for economic damages; however, due to the 
elimination of joint and several liability for noneconomic damages the 
parties would only receive partial compensation for pain and suffering.
  This provision could significantly reduce compensation in cases where 
the individual could still earn a livelihood, and thus not have large 
economic damages, yet that same individual could still have significant 
noneconomic damages. In this context, noneconomic damages could include 
not just pain and suffering, but also any diminishment of the quality 
of life, such as infertility or the loss of a limb.
  The result of completely eliminating joint and several liability for 
noneconomic damages, then, would be that the innocent victim might not 
receive a majority of the compensation due if the other wrongful 
defendants were insolvent. I have concluded that this
 provision in the legislation shifts the balance too far in the 
direction of defendants at the expense of the victims of wrong doing in 
the form of defective products.

  The other key provision of the legislation is the section dealing 
with punitive damages. Punitive damages are intended to punish willful 
or wanton misconduct on the part of a manufacturer or business. 
Furthermore, by punishing misconduct, punitive damages are intended to 
deter such behavior in the future.
  Punitive damages therefore must take into consideration the financial 
assets of the defendant or guilty party. A punitive damage judgment of 
$250,000 may be both harsh punishment and a significant deterrent to a 
small business, but it is insignificant to a large corporation. Any cap 
on punitive damages can only serve to benefit, if not condone, 
egregious and wanton behavior by large corporations.
  The legislation limits punitive damages to the greater of $250,000 or 
two times the total economic and noneconomic damages. The bill also 
stipulates that a judge may add to these punitive damages, and exceed 
the cap, at his discretion. I am concerned that this ``judge additur'' 
provision does not fully resolve the problem of capping punitive 
damages for large corporations. First, many judges may be reluctant to 
overrule a jury's decision, and add to the punitive judgment. Second, 
the effect could be arbitrary, as some judges may opt to add to 
punitive judgments, while others may not. Third, the burden of proof 
would be on judges to demonstrate why a larger punitive judgment that 
would exceed the cap is necessary, which could discourage judges from 
adding to punitive judgments. Fourth, it strikes at the heart of our 
tradition of jury judgments in such product liability and civil 
litigation.
  I recognize that the current product liability system, which involves 
different laws in each of the 50 States, imposes a considerable 
hardship on some manufacturers, particularly in the case of small 
business. I endorse the goal of establishing some type of national 
uniformity in this area. However, I regret that I cannot support the 
legislation that is now before the Senate. While national uniformity is 
a laudable goal, any national standard must also fully protect the 
rights of consumers and victims of harm caused by defective products.
  While I may disagree on several of the provisions included in this 
measure, I would be remiss if I did not acknowledge and salute the hard 
work and leadership of Senator Rockefeller. He believes in this 
legislation. He has put his heart into working on it, and I believe 
that he is correct in that there are inequities in the present system 
which need to be addressed. My opposition notwithstanding, I want to 
commend both Senator Rockefeller and Senator Gorton for their tireless 
 [[Page S6405]] efforts on behalf of product liability reform.
  Mr. LEVIN. Mr. President, I believe that there is a strong argument 
to be made for uniformity in product liability law since so many 
products are sold across State lines.
  But there is no uniformity in this bill. This bill contains limits 
and restrictions on compensation for injuries caused by defective 
products, but those limits and restrictions are not uniform. On the 
contrary, the bill contains a one-way preemption provision, which 
allows States to adopt virtually any law that differs from the so-
called national standard, as long as that law is more restrictive than 
that standard. A patchwork of State laws is still permitted, provided 
that the divergences are in the direction of greater restrictions on 
the injured party.
  As I pointed out earlier in this debate, every single provision of 
this bill is written to prohibit State laws that are more favorable to 
plaintiffs. But the only provision of the bill that would prohibit 
State laws that are more favorable to defendants is the statute of 
limitations. We are not adopting true national standards at all.
  This bill is not balanced, it is not uniform, and I cannot support 
it.
  I ask unanimous consent that a table demonstrating the one-way nature 
of the preemption in this bill be printed in the Record.
  There being no objection, the table was ordered to be printed in the 
Record, as follows:

  PREEMPTION OF STATE PRODUCT LIABILITY LAWS UNDER S. 565, AS REPORTED  
------------------------------------------------------------------------
                                                  State laws  State laws
                                                     more        more   
                                                   favorable   favorable
                                                      to          to    
                                                  plaintiffs  defendants
------------------------------------------------------------------------
Liability of product sellers....................  Prohibited  Allowed.  
Alcohol or drug abuse defense...................  ......do..      Do.   
Misuse or alteration of product defense.........  ......do..      Do.   
Punitive damage limitations.....................  ......do..      Do.   
Statute of limitations..........................  ......do..  Prohibited
                                                               .        
Statute of repose...............................  ......do..  Allowed.  
Joint and several liability (non-economic         ......do..      Do.   
 damages).                                                              
Biomaterials provisions.........................  ......do..      Do.   
------------------------------------------------------------------------

  Ms. MIKULSKI. Mr. President, I voted for cloture on the product 
liability bill because I believe it is important to the economy, job 
creation, international investment, and our ability to do research, 
especially on issues of women's health.
  Mr. President, much has been said about caps. I do not like caps--
caps on job creation or caps on innovative research. I do not like caps 
on technological advancement or caps on our ability to go global. I am 
opposed to caps on profits, caps on wages, or caps on opportunity.
  My job as a U.S. Senator is to save jobs, save lives and save 
communities. I support efforts to reduce frivolous law suits and 
improve the efficiency of our legal system.
  I have heard of cost estimates for cases that are in the millions. 
That's outrageous. We should make every effort to establish consistency 
and uniformity, but not at the price of people's fundamental right to 
redress.
  When it comes to public health and safety I want to ensure that those 
responsible are in fact held accountable for their actions. For that 
reason, I will not support any legislation which closes the courthouse 
door to citizens with legitimate cases.
  This is the kind of balance I support and that I believe we, as 
Members of Congress, need to achieve with this legislation.
  Mr. President, today's cloture vote was a difficult decision for me. 
Product liability involves very complex and complicated issues, 
including joint and several liability, noneconomic versus economic 
damages, statute of repose, punitive damages, and alternate dispute 
resolution. To help me better understand product liability and its 
impact on people's day to day lives, I met with people on both sides of 
this issue. I met with business organizations and consumer 
organizations. All the groups made legitimate arguments expressing 
worthwhile and important concerns.
  Some businesses are concerned about how our current system ultimately 
impacts their decisions about innovation and competitiveness, small 
businesses are concerned about going out of business all together. We 
should take every step we can to cut unnecessary liability costs and 
encourage innovation. Innovation will ultimately lead to jobs today and 
jobs tomorrow. We must acknowledge that innovation, particularly in the 
health field, is critical for out Nation's economic stability and 
competitiveness, and it is critical to the health and safety of 
American citizens.
  I was particularly moved by the National Family Planning and 
Reproductive Health Association's position that tort reform is needed 
to increase investment in women's health research and technologies. Mr. 
President, the product liability issue has been around for quite some 
time. There was no doubt that I could not sign on to previous product 
liability reform bills introduced in the early 1980's. But, I believe 
the current legislation is an attempt to achieve a reasonable balance 
at this point.
  Is this bill perfect? Of course, it is not. In this case, it is hard 
to put forth a perfect bill. There is no doubt that we should review 
this issue in the coming years and make sure it is working. If it is 
not working, we in Congress have the option to review it and make 
changes. Looking at our current system, I believe there are areas that 
can be improved. For that reason, I am willing to support Federal 
product liability reform. Many of the reforms proposed by this 
legislation have already been done at the State level. So, in many ways 
we are acting consistently with respect to the States.
  Mr. President, I want to make it clear. The House bill goes too far. 
It includes a number of bad provisions, including severe caps on pain 
and suffering. To move beyond the Senate bill would be a mistake. The 
scales on this issue are delicately balanced. If those scales are 
tipped, it is unlikely I will support this bill.
  Mr. PELL. Mr. President, today the Senate has passed by a convincing 
margin the product liability bill. It was a difficult and contentious 
effort, much akin to the debate that this area has generated over the 
last decade. I was pleased that the Senate saw fit to pass this 
legislation and am hopeful that a productive and successful conference 
with the House will follow and eventually that the President will sign 
this legislation into law.
  I have long supported product liability reform even when it began as 
a somewhat lonely effort over a decade ago. Finally, with a supportive 
Congress, it seems that we may be coming up with a bill that can 
actually become the law of the land. It must be noted that in order to 
preserve the best possible chance of reaching that result, other areas 
of legal reform, such as medical malpractice and broad tort reform, 
have been excluded. I joined in the effort to keep this bill clean from 
those additions but I want to state that I support reform in those 
areas as well and look forward to addressing them in the future. I 
simply felt that this legislation was an inappropriate forum for 
dealing with those issues. In the end, this bill represents a workable 
and reasonable balance for reforming the legal procedures and standards 
governing how one can seek redress for harm caused by faulty products.
  I congratulate the hard work of my colleagues, in particular Senators 
Rockefeller and Gorton, who artfully and doggedly crafted a compromise 
that was acceptable to the Senate. They have worked hard and long, 
indeed for years, on this legislation and they are to be commended for 
their accomplishment. I await the conference report on this legislation 
with anticipation and express my hope for speedy final consideration.
  Mr. BRADLEY. Mr. President, I rise in opposition to the Product 
Liability Fairness Act of 1995. Let me first say, Mr. President, that I 
share the concerns of the people of New Jersey and this country that 
our society is too litigious. I share the concerns of my colleagues and 
the American people that the cost of this litigation explosion is 
injurious to the social and economic future of this country. However, 
after reviewing this bill and assessing the arguments, both pro and 
con, I do not think that this bill strikes the appropriate balance 
between the desires of manufacturers and product sellers to streamline 
the product liability process and the ability of ordinary Americans to 
bring lawsuits seeking relief from injuries resulting from defective 
and dangerous products.
  Mr. President, I favor a cap on punitive damages for small 
businesses. I supported the amendment of my colleague from Ohio, 
Senator DeWine, 
 [[Page S6406]] which provides for a cap on punitive damages for small 
businesses with 25 or fewer employees and individuals with assets of 
less than $500,000. Small businesses are the engine that drives the 
American economy and provide for at least half of this country's new 
employment opportunities. While a cap on punitive damage awards should 
be sufficient to punish and deter future action, it should also reflect 
the fact that a cap that may be sufficient to punish a large 
corporation may in fact push a small business into the abyss of 
bankruptcy.
  However, Mr. President, I have grave concerns about the overall cap 
on punitive damages. The purpose of punitive awards is to punish the 
wrongdoer for egregious behavior and deter such behavior in the future. 
I believe that if we place a low cap on punitive damages, some 
corporations will not be discouraged from exposing consumers to 
dangerous products. Indeed, with predictable caps, Mr. President, 
wrongdoers may find it more cost effective to make dangerous decisions 
and risk paying punitive damages. Moreover, Mr. President, while this 
bill authorizes judges to increase an award of punitive damages beyond 
the limits of the cap, this safeguard is illusory because defendants 
have the right to receive a new trial--a right which they will surely 
exercise. Indeed, the provision in the bill will only lead to 
repetitive litigation, increase costs and prevent deserving consumers 
from obtaining their awards in a timely manner.
  Mr. President, I do not need to repeat the horror stories about women 
who have tragically suffered and died from using dangerous products, 
children who have been burned by flammable clothing, or hard working 
Americans, who have senselessly been injured and killed as a result of 
defective automobiles. What needs to be repeated is that the one 
constant in all of these horror stories is that the manufacturer knew 
of the dangerous defect and failed to take adequate steps to protect 
the public. Mr. President, punitive damages are available to police 
conduct that is so egregious that the offender disregarded forseeable 
dangerous consequences. Indeed, as this bill provides, punitive damages 
are only available where there is clear and convincing evidence of a 
conscious, flagrant indifference to the safety of others. Given the 
nature of the offense, Mr. President, I firmly believe that placing a 
cap on punitive damages will be counterproductive to
 society's efforts to police and deter such egregious conduct.

  Mr. President, under the present caps, cigarette manufacturers and 
those who irresponsibly market alcohol to intoxicated persons or minors 
who then kill or injure innocent victims in traffic crashes would 
continue to manufacture and market these products of destruction with 
less fear of having to one day pay the price for the massive damage 
that their products inflict on society. Moreover, firearms and 
ammunition are virtually the only unregulated consumer product in 
America. As such, the tort system is the only check on the safety of 
consumers. I am not willing, Mr. President, to place a cap on punitive 
damages when the result will be that such action will lessen the 
liability of the manufacturers who profit from these destructive 
products.
  Mr. President, while I also think that there is a need for joint and 
several liability reform, I cannot endorse the blanket elimination of 
joint and several liability for noneconomic damages that is in the 
present bill. Instead, Mr. President, I favor the approach currently in 
operation in New Jersey, which provides for proportional liability if 
the defendant is responsible for 20 percent or less of the harm, 
several liability for noneconomic damages if a defendant is responsible 
for between 20 percent and 60 percent of the harm, and joint and 
several liability if the defendant is responsible for 60 percent or 
more of the harm.
  Mr. President, this bill would preempt State product liability law 
``to the extent that state law applies to an issue covered under the 
Act.'' Proponents of product liability reform argue that Federal 
legislation is needed to establish uniformity. However, the bill does 
not require States to have uniform State laws. For example, those 
States that do not now allow punitive damages would not be required to 
award them, even though the bill provides for the award of such 
damages. The effect of this provision is that States can offer their 
individual citizens fewer rights, but not more.
  Mr. President, this bill also excludes actions involving commercial 
loss. By excluding such actions, the bill places restrictions on the 
ability of individuals to seek redress from defective products, but 
does not place any restrictions on corporations to seek redress. For 
example, if a product explodes in a factory, the worker's recovery for 
injuries is limited by this bill; however, the factory owner may sue 
the product manufacturer or seller free from the restrictions of the 
bill for such speculative damages as the factory's loss of profits 
because of delays in production. Thus, the effect of this provision is 
to value material property over the health and safety of individual 
citizens.
  Mr. President, we have been told that there is a litigation explosion 
with respect to product liability and that corporations and the 
business community are suffering under the weight of this explosion. 
However, Mr. President, excluding cases of asbestos, product liability 
claims in Federal courts have declined by approximately 36 percent 
between 1985 and 1991. Moreover, in State courts, product liability 
cases are approximately 4 percent of all tort filings, .0036 percent of 
all civil caseloads and .00097 percent of the total State court 
caseloads.
  Mr. President, although there have been relatively few punitive 
damage awards in product liability cases over the last 25 years, we 
have been told that the threat of punitive damages
 encourages many product manufacturers to settle cases that they would 
have no problem winning in an effort to avoid having claims for 
punitive damages go to juries unfamiliar with the precautions that are 
now taken to insure that products are safe. However, Mr. President, the 
numbers simply do not add up to the conclusion that the business 
community is being treated unfairly by juries. Indeed, almost 60 
percent of the product liability cases brought in 1993, plaintiffs were 
the losing parties.

  Mr. President, it has additionally been argued that these lawsuits 
increase the costs of producing products in this country and thus hurt 
American competitiveness. However, a 1987 Conference Board survey of 
risk managers of 232 corporations shows that product liability costs 
for most businesses are 1 percent or less of the final price of a 
product, and have very little impact on larger economic issues such as 
market share or jobs. In addition, the American Insurance Association, 
the largest trade association representing the insurance industry, has 
testified that this legislation will have virtually no effect on 
insurance costs.
  Mr. President, to put it succinctly, I do not think that the bill 
will really do what its proponents say it will do. As mentioned 
earlier, the proponents of this bill argue that the business community 
is suffering under the weight of a litigation explosion. They contend 
that this bill will decrease both the incidence and cost of litigation. 
Mr. President, no one disagrees that we are an overly litigious 
society. However, I am not convinced that this bill can correct the 
problem of litigiousness in society. Indeed, Mr. President, the fact is 
that the punitive caps provision providing for the automatic right to a 
new trial by defendants will serve to only increase the delay and cost 
of litigation. This bill tilts the scales of justice too far to the 
disadvantage of individual consumers. Thus, I cannot support 
legislation which will endanger the health and safety of hard working 
Americans.
  In conclusion, Mr. President, because of the above stated concerns, I 
must oppose the Product Liability Fairness Act of 1995.
                 Vote on Amendment No. 690, as Amended

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
numbered 690, the Coverdell-Dole substitute, as amended.
  So the amendment (No. 690), as amended, was agreed to.

                 Vote on Amendment No. 596, as Amended

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
numbered 596, the Gorton substitute, as amended.
  So the amendment (No. 596), as amended, was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment of the 
 [[Page S6407]] amendments and third reading of the bill.
  The amendments were ordered to be engrossed, and the bill to be read 
a third time.
  The bill was read a third time.
  Mr. GORTON. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill pass?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Virginia [Mr. Warner] is 
necessarily absent.
  Mr. FORD. I announce that the Senator from Connecticut [Mr. 
Lieberman] is absent because of death in the family.
  I further announce that, if present and voting, the Senator from 
Connecticut [Mr. Lieberman] would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 61, nays 37, as follows:

                      [Rollcall Vote No. 161 Leg.]

                                YEAS--61

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Conrad
     Coverdell
     Craig
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feinstein
     Frist
     Glenn
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kohl
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Murkowski
     Nickles
     Nunn
     Pell
     Pressler
     Pryor
     Robb
     Rockefeller
     Santorum
     Smith
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond

                                NAYS--37

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Cohen
     D'Amato
     Daschle
     Feingold
     Ford
     Graham
     Harkin
     Heflin
     Hollings
     Inouye
     Kennedy
     Kerrey
     Kerry
     Lautenberg
     Leahy
     Levin
     Moynihan
     Murray
     Packwood
     Reid
     Roth
     Sarbanes
     Shelby
     Simon
     Simpson
     Specter
     Wellstone

                             NOT VOTING--2

     Lieberman
     Warner
       
  So the bill (H.R. 956), as amended, was passed, as follows:

       Resolved, That the bill from the House of Representatives 
     (H.R. 956) entitled ``An Act to establish legal standards and 
     procedures for product liability litigation, and for other 
     purposes'', do pass with the following amendment:
       Strike out all after the enacting clause and insert:
     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Product Liability Fairness 
     Act of 1995''.
                       TITLE I--PRODUCT LIABILITY

     SEC. 101. DEFINITIONS.

       For purposes of this Act, the following definitions shall 
     apply:
       (1) Actual malice.--The term ``actual malice'' means 
     specific intent to cause serious physical injury, illness, 
     disease, or damage to property, or death.
       (2) Claimant.--The term ``claimant'' means any person who 
     brings a product liability action and any person on whose 
     behalf such an action is brought. If an action is brought 
     through or on behalf of--
       (A) an estate, the term includes the decedent; or
       (B) a minor or incompetent, the term includes the legal 
     guardian of the minor or incompetent.
       (3) Claimant's benefits.--The term ``claimant's benefits'' 
     means the amount paid to an employee as workers' compensation 
     benefits.
       (4) Clear and convincing evidence.--
       (A) In general.--Subject to subparagraph (A), the term 
     ``clear and convincing evidence'' is that measure of 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.
       (B) Degree of proof.--The degree of proof required to 
     satisfy the standard of clear and convincing evidence shall 
     be--
       (i) greater than the degree of proof required to meet the 
     standard of preponderance of the evidence; and
       (ii) less than the degree of proof required to meet the 
     standard of proof beyond a reasonable doubt.
       (5) Commercial loss.--The term ``commercial loss'' means 
     any loss or damage to a product itself, loss relating to a 
     dispute over its value, or consequential economic loss the 
     recovery of which is governed by the Uniform Commercial Code 
     or analogous State commercial law, not including harm.
       (6) Durable good.--The term ``durable good'' means any 
     product, or any component of any such product, which has a 
     normal life expectancy of 3 or more years or is of a 
     character subject to allowance for depreciation under the 
     Internal Revenue Code of 1986, and which is--
       (A) used in a trade or business;
       (B) held for the production of income; or
       (C) sold or donated to a governmental or private entity for 
     the production of goods, training, demonstration, or any 
     other similar purpose.
       (7) Economic loss.--The term ``economic loss'' means any 
     pecuniary loss resulting from harm (including any medical 
     expense loss, work loss, replacement services loss, loss due 
     to death, burial costs, and loss of business or employment 
     opportunities), to the extent that recovery for the loss is 
     permitted under applicable State law.
       (8) Harm.--The term ``harm'' means any physical injury, 
     illness, disease, or death, or damage to property, caused by 
     a product. The term does not include commercial loss or loss 
     or damage to a product itself.
       (9) Insurer.--The term ``insurer'' means the employer of a 
     claimant, if the employer is self-insured, or the workers' 
     compensation insurer of an employer.
       (10) Manufacturer.--The term ``manufacturer'' means--
       (A) any person who is engaged in a business to produce, 
     create, make, or construct any product (or component part of 
     a product), and who designs or formulates the product (or 
     component part of the product), or has engaged another person 
     to design or formulate the product (or component part of the 
     product);
       (B) a product seller, but only with respect to those 
     aspects of a product (or component part of a product) which 
     are created or affected when, before placing the product in 
     the stream of commerce, the product seller produces, creates, 
     makes, constructs, designs, or formulates, or has engaged 
     another person to design or formulate, an aspect of a product 
     (or component part of a product) made by another person; or
       (C) any product seller that is not described in 
     subparagraph (B) that holds itself out as a manufacturer to 
     the user of the product.
       (11) Noneconomic loss.--The term ``noneconomic loss''--
       (A) 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; and
       (B) does not include economic loss.
       (12) Person.--The term ``person'' means any individual, 
     corporation, company, association, firm, partnership, 
     society, joint stock company, or any other entity (including 
     any governmental entity).
       (13) Product.--
       (A) In general.--The term ``product'' means any object, 
     substance, mixture, or raw material in a gaseous, liquid, or 
     solid state that--
       (i) is capable of delivery itself or as an assembled whole, 
     in a mixed or combined state, or as a component part or 
     ingredient;
       (ii) is produced for introduction into trade or commerce;
       (iii) has intrinsic economic value; and
       (iv) is intended for sale or lease to persons for 
     commercial or personal use.
       (B) Exclusion.--The term ``product'' does not include--
       (i) tissue, organs, blood, and blood products used for 
     therapeutic or medical purposes, except to the extent that 
     such tissue, organs, blood, and blood products (or the 
     provision thereof) are subject, under applicable State law, 
     to a standard of liability other than negligence; and
       (ii) electricity, water delivered by a utility, natural 
     gas, or steam.
       (14) Product liability action.--The term ``product 
     liability action'' means a civil action brought on any theory 
     for harm caused by a product.
       (15) Product seller.--
       (A) In general.--The term ``product seller'' means a person 
     who--
       (i) in the course of a business conducted for that purpose, 
     sells, distributes, rents, leases, prepares, blends, 
     packages, labels, or otherwise is involved in placing a 
     product in the stream of commerce; or
       (ii) installs, repairs, refurbishes, reconditions, or 
     maintains the harm-causing aspect of the product.
       (B) Exclusion.--The term ``product seller'' does not 
     include--
       (i) a seller or lessor of real property;
       (ii) a provider of professional services in any case in 
     which the sale or use of a product is incidental to the 
     transaction and the essence of the transaction is the 
     furnishing of judgment, skill, or services; or
       (iii) any person who--

       (I) acts in only a financial capacity with respect to the 
     sale of a product; or
       (II) leases a product under a lease arrangement in which 
     the lessor does not initially select the leased product and 
     does not during the lease term ordinarily control the daily 
     operations and maintenance of the product.

       (16) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
     American Samoa, and the Commonwealth of the Northern Mariana 
     Islands, and any other territory or possession of the United 
     States, or any political subdivision thereof.
     [[Page S6408]]   (17) Time of delivery.--The term ``time of 
     delivery'' means the time when a product is delivered to the 
     first purchaser or lessee of the product that was not 
     involved in manufacturing or selling the product, or using 
     the product as a component part of another product to be 
     sold.

     SEC. 102. APPLICABILITY; PREEMPTION.

       (a) Applicability.--
       (1) Actions covered.--Subject to paragraph (2), this title 
     applies to any product liability action commenced on or after 
     the date of enactment of this Act, without regard to whether 
     the harm that is the subject of the action or the conduct 
     that caused the harm occurred before such date of enactment.
       (2) Actions excluded.--
       (A) Actions for damage to product or commercial loss.--A 
     civil action brought for loss or damage to a product itself 
     or for commercial loss, shall not be subject to the 
     provisions of this title governing product liability actions, 
     but shall be subject to any applicable commercial or contract 
     law.
       (B) Actions for negligent entrustment.--A civil action for 
     negligent entrustment shall not be subject to the provisions 
     of this title governing product liability actions, but shall 
     be subject to any applicable State law.
       (b) Scope of Preemption.--
       (1) In general.--This Act supersedes a State law only to 
     the extent that State law applies to an issue covered under 
     this title.
       (2) Issues not covered under this act.--Any issue that is 
     not covered under this title, including any standard of 
     liability applicable to a manufacturer, shall not be subject 
     to this title, but shall be subject to applicable Federal or 
     State law.
       (c) Statutory Construction.--Nothing in this title may be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by any State under any law;
       (2) supersede or alter any Federal law;
       (3) waive or affect any defense of sovereign immunity 
     asserted by the United States;
       (4) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (5) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation or a citizen of a foreign 
     nation;
       (6) 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; or
       (7) supersede or modify any statutory or common law, 
     including any law providing for an action to abate a 
     nuisance, that authorizes a person to institute an action for 
     civil damages or civil penalties, cleanup costs, injunctions, 
     restitution, cost recovery, punitive damages, or any other 
     form of relief for remediation of the environment (as defined 
     in section 101(8) of the Comprehensive Environmental 
     Response, Compensation, and Liability Act of 1980, 42 U.S.C. 
     9601(8)) or the threat of such remediation.
       (d) Construction.--To promote uniformity of law in the 
     various jurisdictions, this title shall be construed and 
     applied after consideration of its legislative history.
       (e) Effect of Court of Appeals Decisions.--Notwithstanding 
     any other provision of law, any decision of a circuit court 
     of appeals interpreting a provision of this title (except to 
     the extent that the decision is overruled or otherwise 
     modified by the Supreme Court) shall be considered a 
     controlling precedent with respect to any subsequent decision 
     made concerning the interpretation of such provision by any 
     Federal or State court within the geographical boundaries of 
     the area under the jurisdiction of the circuit court of 
     appeals.

     SEC. 103. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.

       (a) Service of Offer.--A claimant or a defendant in a 
     product liability action that is subject to this title may, 
     not later than 60 days after the service of the initial 
     complaint of the claimant or the applicable deadline for a 
     responsive pleading (whichever is later), serve upon an 
     adverse party an offer to proceed pursuant to any voluntary, 
     nonbinding alternative dispute resolution procedure 
     established or recognized under the law of the State in which 
     the product liability action is brought or under the rules of 
     the court in which such action is maintained.
       (b) Written Notice of Acceptance or Rejection.--Except as 
     provided in subsection (c), not later than 10 days after the 
     service of an offer to proceed under subsection (a), an 
     offeree shall file a written notice of acceptance or 
     rejection of the offer.
       (c) Extension.--The court may, upon motion by an offeree 
     made prior to the expiration of the 10-day period specified 
     in subsection (b), extend the period for filing a written 
     notice under such subsection for a period of not more than 60 
     days after the date of expiration of the period specified in 
     subsection (b). Discovery may be permitted during such 
     period.

     SEC. 104. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS.

       (a) General Rule.--
       (1) In general.--In any product liability action that is 
     subject to this title filed by a claimant for harm caused by 
     a product, a product seller other than a manufacturer shall 
     be liable to a claimant, only if the claimant establishes--
       (A) that--
       (i) the product that allegedly caused the harm that is the 
     subject of the complaint was sold, rented, or leased by the 
     product seller;
       (ii) the product seller failed to exercise reasonable care 
     with respect to the product; and
       (iii) the failure to exercise reasonable care was a 
     proximate cause of harm to the claimant; or
       (B) that--
       (i) the product seller made an express warranty applicable 
     to the product that allegedly caused the harm that is the 
     subject of the complaint, independent of any express warranty 
     made by a manufacturer as to the same product;
       (ii) the product failed to conform to the warranty; and
       (iii) the failure of the product to conform to the warranty 
     caused harm to the claimant; or
       (C) that--
       (i) the product seller engaged in intentional wrongdoing, 
     as determined under applicable State law; and
       (ii) such intentional wrongdoing was a 
     proximate cause of the harm that is the subject of the 
     complaint.
       (2) Reasonable opportunity for inspection.--For purposes of 
     paragraph (1)(A)(ii), a product seller shall not be 
     considered to have failed to exercise reasonable care with 
     respect to a product based upon an alleged failure to inspect 
     a product if the product seller had no reasonable opportunity 
     to inspect the product that allegedly caused harm to the 
     claimant.
       (b) Special Rule.--
       (1) In general.--A product seller shall be deemed to be 
     liable as a manufacturer of a product for harm caused by the 
     product if--
       (A) the manufacturer is not subject to service of process 
     under the laws of any State in which the action may be 
     brought; or
       (B) the court determines that the claimant would be unable 
     to enforce a judgment against the manufacturer.
       (2) Statute of limitations.--For purposes of this 
     subsection only, the statute of limitations applicable to 
     claims asserting liability of a product seller as a 
     manufacturer shall be tolled from the date of the filing of a 
     complaint against the manufacturer to the date that judgment 
     is entered against the manufacturer.
       (c) Rented or Leased Products.--
       (1) Notwithstanding any other provision of law, any person 
     engaged in the business of renting or leasing a product 
     (other than a person excluded from the definition of product 
     seller under section 101 (14)(B)) shall be subject to 
     liability in a product liability action under subsection (a), 
     but any person engaged in the business of renting or leasing 
     a product shall not be liable to a claimant for the tortious 
     act of another solely by reason of ownership of such product.
       (2) For purposes of paragraph (1), and for determining the 
     applicability of this title to any person subject to 
     paragraph (1), the term ``product liability action'' means a 
     civil action brought on any theory for harm caused by a 
     product or product use.

     SEC. 105. DEFENSES INVOLVING INTOXICATING ALCOHOL OR DRUGS.

       (a) General Rule.--Notwithstanding any other provision of 
     law, a defendant in a product liability action that is 
     subject to this title shall have a complete defense in the 
     action if the defendant proves that--
       (1) the claimant was under the influence of intoxicating 
     alcohol or any drug that may not lawfully be sold over-the-
     counter without a prescription, and was not prescribed by a 
     physician for use by the claimant; and
       (2) the claimant, as a result of the influence of the 
     alcohol or drug, was more than 50 percent responsible for the 
     accident or event which resulted in the harm to the claimant.
       (b) Construction.--For purposes of this section, the 
     determination of whether a person was intoxicated or was 
     under the influence of intoxicating alcohol or any drug shall 
     be made pursuant to applicable State law.

     SEC. 106. REDUCTION FOR MISUSE OR ALTERATION OF PRODUCT.

       (a) General Rule.--
       (1) In general.--Except as provided in subsection (c), in a 
     product liability action that is subject to this title, the 
     damages for which a defendant is otherwise liable under 
     applicable State law shall be reduced by the percentage of 
     responsibility for the harm to the claimant attributable to 
     misuse or alteration of a product by any person if the 
     defendant establishes that such percentage of the harm was 
     proximately caused by a use or alteration of a product--
       (A) in violation of, or contrary to, the express warnings 
     or instructions of the defendant if the warnings or 
     instructions are determined to be adequate pursuant to 
     applicable State law; or
       (B) involving a risk of harm which was known or should have 
     been known by the ordinary person who uses or consumes the 
     product with the knowledge common to the class of persons who 
     used or would be reasonably anticipated to use the product.
       (2) Use intended by a manufacturer is not misuse or 
     alteration.--For the purposes of this title, a use of a 
     product that is intended by the manufacturer of the product 
     does not constitute a misuse or alteration of the product.
       (b) State Law.--Notwithstanding section 3(b), subsection 
     (a) of this section shall supersede State law concerning 
     misuse or alteration of a product only to the extent that 
     State law is inconsistent with such subsection.
     [[Page S6409]]   (c) Workplace Injury.--Notwithstanding 
     subsection (a), the amount of damages for which a defendant 
     is otherwise liable under State law shall not be reduced by 
     the application of this section with respect to the conduct 
     of any employer or coemployee of the plaintiff who is, under 
     applicable State law concerning workplace injuries, immune 
     from being subject to an action by the claimant.

     SEC. 107. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       (a) General Rule.--Punitive damages may, to the extent 
     permitted by applicable State law, be awarded against a 
     defendant in a product liability action that is subject to 
     this title 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) Limitation on Amount.--
       (1) In general.--Except as provided in paragraphs (2) and 
     (3), the amount of punitive damages that may be awarded to a 
     claimant in a product liability action that is subject to 
     this title shall not exceed the greater of--
       (A) 2 times the sum of--
       (i) the amount awarded to the claimant for economic loss; 
     and
       (ii) the amount awarded to the claimant for noneconomic 
     loss; or
       (B) $250,000.
       (2) Special rule.--The amount of punitive damages that may 
     be awarded in a product liability action that is subject to 
     this title against an individual whose net worth does not 
     exceed $500,000 or against an owner of an unincorporated 
     business, or any partnership, corporation, association, unit 
     of local government, or organization which has fewer than 25 
     full-time employees, shall not exceed the lesser of--
       (A) 2 times the sum of--
       (i) the amount awarded to the claimant for economic loss; 
     and
       (ii) the amount awarded to the claimant for noneconomic 
     loss; or
       (B) $250,000.
       (3) Exception.--
       (A) Determination by court.--Notwithstanding subparagraph 
     (C), in a product liability action that is subject to this 
     title, if the court makes a determination, after considering 
     each of the factors in subparagraph (B), that the application 
     of paragraph (1) would result in an award of punitive damages 
     that is insufficient to punish the egregious conduct of the 
     defendant against whom the punitive damages are to be awarded 
     or to deter such conduct in the future, the court shall 
     determine the additional amount of punitive damages in excess 
     of the amount determined in accordance with paragraph (1) to 
     be awarded to the claimant (referred to in this paragraph as 
     the ``additur'') in a separate proceeding in accordance with 
     this paragraph.
       (B) Factors for consideration.--In any proceeding under 
     subparagraph (A), the court shall consider--
       (i) the extent to which the defendant acted with actual 
     malice;
       (ii) the likelihood that serious harm would arise from the 
     misconduct of the defendant;
       (iii) the degree of the awareness of the defendant of that 
     likelihood;
       (iv) the profitability of the misconduct to the defendant;
       (v) the duration of the misconduct and any concurrent or 
     subsequent concealment of the conduct by the defendant;
       (vi) the attitude and conduct of the defendant upon the 
     discovery of the misconduct and whether the misconduct has 
     terminated;
       (vii) the financial condition of the defendant; and
       (viii) the cumulative deterrent effect of other losses, 
     damages, and punishment suffered by the defendant as a result 
     of the misconduct, reducing the amount of punitive damages on 
     the basis of the economic impact and severity of all measures 
     to which the defendant has been or may be subjected, 
     including--

       (I) compensatory and punitive damage awards to similarly 
     situated claimants;
       (II) the adverse economic effect of stigma or loss of 
     reputation;
       (III) civil fines and criminal and administrative 
     penalties; and
       (IV) stop sale, cease and desist, and other remedial or 
     enforcement orders.

       (C) Requirements for awarding additurs.--If the court 
     awards an additur under this paragraph, the court shall state 
     its reasons for setting the amount of the additur in findings 
     of fact and conclusions of law. If the additur is--
       (i) accepted by the defendant, it shall be entered by the 
     court as a final judgment;
       (ii) accepted by the defendant under protest, the order may 
     be reviewed on appeal; or
       (iii) not accepted by the defense, the court shall set 
     aside the punitive damages award and order a new trial on the 
     issue of punitive damages only, and judgment shall enter upon 
     the verdict of liability and damages after the issue of 
     punitive damages is decided.
       (4) Application by court.--This subsection shall be applied 
     by the court and the application of this subsection shall not 
     be disclosed to the jury.
       (5) Remittiturs.--Nothing in this subsection shall modify 
     or reduce the ability of courts to order remittiturs.
       (c) Bifurcation at Request of Any Party.--
       (1) In general.--At the request of any party, the trier of 
     fact in a product liability action that is subject to this 
     title shall consider in a separate proceeding whether 
     punitive damages are to be awarded for the harm that is the 
     subject of the action and the amount of the award.
       (2) Inadmissibility of evidence relative only to a claim of 
     punitive damages in a proceeding concerning compensatory 
     damages.--If any party requests a separate proceeding under 
     paragraph (1), in any proceeding to determine whether the 
     claimant may be awarded compensatory damages, any evidence 
     that is relevant only to the claim of punitive damages, as 
     determined by applicable State law, shall be inadmissible.

     SEC. 108. LIABILITY FOR CERTAIN CLAIMS RELATING TO DEATH.

       In any civil action in which the alleged harm to the 
     claimant is death and, as of the effective date of this Act, 
     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 without regard to section 107, 
     but only during such time as the State law so provides. This 
     section shall cease to be effective September 1, 1996.

      SEC. 109. UNIFORM TIME LIMITATIONS ON LIABILITY.

       (a) Statute of Limitations.--
       (1) In general.--Except as provided in paragraph (2) and 
     subsection (b), a product liability action that is subject to 
     this title may be filed not later than 2 years after the date 
     on which the claimant discovered or, in the exercise of 
     reasonable care, should have discovered, the harm that is the 
     subject of the action and the cause of the harm.
       (2) Exceptions.--
       (A) Person with a legal disability.--A person with a legal 
     disability (as determined under applicable law) may file a 
     product liability action that is subject to this title not 
     later than 2 years after the date on which the person ceases 
     to have the legal disability.
       (B) Effect of stay or injunction.--If the commencement of a 
     civil action that is subject to this title is stayed or 
     enjoined, the running of the statute of limitations under 
     this section shall be suspended until the end of the period 
     that the stay or injunction is in effect.
       (b) Statute of Repose.--
       (1) In general.--Subject to paragraphs (2) and (3), no 
     product liability action that is subject to this title 
     concerning a product that is a durable good alleged to have 
     caused harm (other than toxic harm) may be filed after the 
     20-year period beginning at the time of delivery of the 
     product.
       (2) State law.--Notwithstanding paragraph (1), if pursuant 
     to an applicable State law, an action described in such 
     paragraph is required to be filed during a period that is 
     shorter than the 20-year period specified in such paragraph, 
     the State law shall apply with respect to such period.
       (3) Exceptions.--
       (A) A motor vehicle, vessel, aircraft, or train that is 
     used primarily to transport passengers for hire shall not be 
     subject to this subsection.
       (B) Paragraph (1) does not bar a product liability action 
     against a defendant who made an express warranty in writing 
     as to the safety of the specific product involved which was 
     longer than 20 years, but it will apply at the expiration of 
     that warranty.
       (C) Paragraph (1) does not affect the limitations period 
     established by the General Aviation Revitalization Act of 
     1994 (49 U.S.C. 40101 note).
       (c) Transitional Provision Relating to Extension of Period 
     for Bringing Certain Actions.--If any provision of subsection 
     (a) or (b) shortens the period during which a product 
     liability action that could be otherwise brought pursuant to 
     another provision of law, the claimant may, notwithstanding 
     subsections (a) and (b), bring the product liability action 
     pursuant to this title not later than 1 year after the date 
     of enactment of this Act.

     SEC. 110. SEVERAL LIABILITY FOR NONECONOMIC LOSS.

       (a) General Rule.--In a product liability action that is 
     subject to this title, the liability of each defendant for 
     noneconomic loss shall be several only and shall not be 
     joint.
       (b) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic loss allocated to the defendant in 
     direct proportion to the percentage of responsibility of the 
     defendant (determined in accordance with paragraph (2)) for 
     the harm to the claimant with respect to which the defendant 
     is liable. The court shall render a separate judgment against 
     each defendant in an amount determined pursuant to the 
     preceding sentence.
       (2) Percentage of responsibility.--For purposes of 
     determining the amount of noneconomic loss allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person 
     responsible for the claimant's harm, whether or not such 
     person is a party to the action.

      SEC. 111. WORKERS' COMPENSATION SUBROGATION STANDARDS.

       (a) General Rule.--
       (1) Right of subrogation.--
       (A) In general.--An insurer shall have a right of 
     subrogation against a manufacturer or product seller to 
     recover any claimant's benefits relating to harm that is the 
     subject [[Page S6410]] of a product liability action that is 
     subject to this title.
       (B) Written notification.--To assert a right of subrogation 
     under subparagraph (A), the insurer shall provide written 
     notice to the court in which the product liability action is 
     brought.
       (C) Insurer not required to be a party.--An insurer shall 
     not be required to be a necessary and proper party in a 
     product liability action covered under subparagraph (A).
       (2) Settlements and other legal proceedings.--
       (A) In general.--In any proceeding relating to harm or 
     settlement with the manufacturer or product seller by a 
     claimant who files a product liability action that is subject 
     to this title, an insurer may participate to assert a right 
     of subrogation for claimant's benefits with respect to any 
     payment made by the manufacturer or product seller by reason 
     of such harm, without regard to whether the payment is made--
       (i) as part of a settlement;
       (ii) in satisfaction of judgment;
       (iii) as consideration for a covenant not to sue; or
       (iv) in another manner.
       (B) Written notification.--Except as provided in 
     subparagraph (C), an employee shall not make any settlement 
     with or accept any payment from the manufacturer or product 
     seller without written notification to the employer.
       (C) Exemption.--Subparagraph (B) shall not apply in any 
     case in which the insurer has been compensated for the full 
     amount of the claimant's benefits.
       (3) Harm resulting from action of employer or coemployee.--
       (A) In general.--If, with respect to a product liability 
     action that is subject to this title, the manufacturer or 
     product seller attempts to persuade the trier of fact that 
     the harm to the claimant was caused by the fault of the 
     employer of the claimant or any coemployee of the claimant, 
     the issue of that fault shall be submitted to the trier of 
     fact, but only after the manufacturer or product seller has 
     provided timely written notice to the employer.
       (B) Rights of employer.--
       (i) In general.--Notwithstanding any other provision of 
     law, with respect to an issue of fault submitted to a trier 
     of fact pursuant to subparagraph (A), an employer shall, in 
     the same manner as any party in the action (even if the 
     employer is not a named party in the action), have the right 
     to--

       (I) appear;
       (II) be represented;
       (III) introduce evidence;
       (IV) cross-examine adverse witnesses; and
       (V) present arguments to the trier of fact.

       (ii) Last issue.--The issue of harm resulting from an 
     action of an employer or coemployee shall be the last issue 
     that is presented to the trier of fact.
       (C) Reduction of damages.--If the trier of fact finds by 
     clear and convincing evidence that the harm to the claimant 
     that is the subject of the product liability action was 
     caused by the fault of the employer or a coemployee of the 
     claimant--
       (i) the court shall reduce by the amount of the claimant's 
     benefits--

       (I) the damages awarded against the manufacturer or product 
     seller; and
       (II) any corresponding insurer's subrogation lien; and

       (ii) the manufacturer or product seller shall have no 
     further right by way of contribution or otherwise against the 
     employer.
       (D) Certain rights of subrogation not affected.--
     Notwithstanding a finding by the trier of fact described in 
     subparagraph (C), the insurer shall not lose any right of 
     subrogation related to any--
       (i) intentional tort committed against the claimant by a 
     coemployee; or
       (ii) act committed by a coemployee outside the scope of 
     normal work practices.
       (b) Attorney's Fees.--If, in a product liability action 
     that is subject to this section, the court finds that harm to 
     a claimant was not caused by the fault of the employer or a 
     coemployee of the claimant, the manufacturer or product 
     seller shall reimburse the insurer for reasonable attorney's 
     fees and court costs incurred by the insurer in the action, 
     as determined by the court.

     SEC. 112. FEDERAL CAUSE OF ACTION PRECLUDED.

       The district courts of the United States shall not have 
     jurisdiction under section 1331 or 1337 of title 28, United 
     States Code, over any product liability action covered under 
     this title.
                TITLE II--BIOMATERIALS ACCESS ASSURANCE

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Biomaterials Access 
     Assurance Act of 1995''.

     SEC. 202. FINDINGS.

       Congress finds that--
       (1) each year millions of citizens of the United States 
     depend on the availability of lifesaving or life-enhancing 
     medical devices, many of which are permanently implantable 
     within the human body;
       (2) a continued supply of raw materials and component parts 
     is necessary for the invention, development, improvement, and 
     maintenance of the supply of the devices;
       (3) most of the medical devices are made with raw materials 
     and component parts that--
       (A) are not designed or manufactured specifically for use 
     in medical devices; and
       (B) come in contact with internal human tissue;
       (4) the raw materials and component parts also are used in 
     a variety of nonmedical products;
       (5) because small quantities of the raw materials and 
     component parts are used for medical devices, sales of raw 
     materials and component parts for medical devices constitute 
     an extremely small portion of the overall market for the raw 
     materials and medical devices;
       (6) under the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 301 et seq.), manufacturers of medical devices are 
     required to demonstrate that the medical devices are safe and 
     effective, including demonstrating that the products are 
     properly designed and have adequate warnings or instructions;
       (7) notwithstanding the fact that raw materials and 
     component parts suppliers do not design, produce, or test a 
     final medical device, the suppliers have been the subject of 
     actions alleging inadequate--
       (A) design and testing of medical devices manufactured with 
     materials or parts supplied by the suppliers; or
       (B) warnings related to the use of such medical devices;
       (8) even though suppliers of raw materials and component 
     parts have very rarely been held liable in such actions, such 
     suppliers have ceased supplying certain raw materials and 
     component parts for use in medical devices because the costs 
     associated with litigation in order to ensure a favorable 
     judgment for the suppliers far exceeds the total potential 
     sales revenues from sales by such suppliers to the medical 
     device industry;
       (9) unless alternate sources of supply can be found, the 
     unavailability of raw materials and component parts for 
     medical devices will lead to unavailability of lifesaving and 
     life-enhancing medical devices;
       (10) because other suppliers of the raw materials and 
     component parts in foreign nations are refusing to sell raw 
     materials or component parts for use in manufacturing certain 
     medical devices in the United States, the prospects for 
     development of new sources of supply for the full range of 
     threatened raw materials and component parts for medical 
     devices are remote;
       (11) it is unlikely that the small market for such raw 
     materials and component parts in the United States could 
     support the large investment needed to develop new suppliers 
     of such raw materials and component parts;
       (12) attempts to develop such new suppliers would raise the 
     cost of medical devices;
       (13) courts that have considered the duties of the 
     suppliers of the raw materials and component parts have 
     generally found that the suppliers do not have a duty--
       (A) to evaluate the safety and efficacy of the use of a raw 
     material or component part in a medical device; and
       (B) to warn consumers concerning the safety and 
     effectiveness of a medical device;
       (14) attempts to impose the duties referred to in 
     subparagraphs (A) and (B) of paragraph (13) on suppliers of 
     the raw materials and component parts would cause more harm 
     than good by driving the suppliers to cease supplying 
     manufacturers of medical devices; and
       (15) in order to safeguard the availability of a wide 
     variety of lifesaving and life-enhancing medical devices, 
     immediate action is needed--
       (A) to clarify the permissible bases of liability for 
     suppliers of raw materials and component parts for medical 
     devices; and
       (B) to provide expeditious procedures to dispose of 
     unwarranted suits against the suppliers in such manner as to 
     minimize litigation costs.

     SEC. 203. DEFINITIONS.

       As used in this title:
       (1) Biomaterials supplier.--
       (A) In general.--The term ``biomaterials supplier'' means 
     an entity that directly or indirectly supplies a component 
     part or raw material for use in the manufacture of an 
     implant.
       (B) Persons included.--Such term includes any person who--
       (i) has submitted master files to the Secretary for 
     purposes of premarket approval of a medical device; or
       (ii) licenses a biomaterials supplier to produce component 
     parts or raw materials.
       (2) Claimant.--
       (A) In general.--The term ``claimant'' means any person who 
     brings a civil action, or on whose behalf a civil action is 
     brought, arising from harm allegedly caused directly or 
     indirectly by an implant, including a person other than the 
     individual into whose body, or in contact with whose blood or 
     tissue, the implant is placed, who claims to have suffered 
     harm as a result of the implant.
       (B) Action brought on behalf of an estate.--With respect to 
     an action brought on behalf or through the estate of an 
     individual into whose body, or in contact with whose blood or 
     tissue the implant is placed, such term includes the decedent 
     that is the subject of the action.
       (C) Action brought on behalf of a minor.--With respect to 
     an action brought on behalf or through a minor, such term 
     includes the parent or guardian of the minor.
       (D) Exclusions.--Such term does not include--
       (i) a provider of professional services, in any case in 
     which--

       (I) the sale or use of an implant is incidental to the 
     transaction; and
       (II) the essence of the transaction is the furnishing of 
     judgment, skill, or services; or [[Page S6411]] 

       (ii) a manufacturer, seller, or biomaterials supplier.
       (3) Component part.--
       (A) In general.--The term ``component part'' means a 
     manufactured piece of an implant.
       (B) Certain components.--Such term includes a manufactured 
     piece of an implant that--
       (i) has significant nonimplant applications; and
       (ii) alone, has no implant value or purpose, but when 
     combined with other component parts and materials, 
     constitutes an implant.
       (4) Harm.--
       (A) In general.--The term ``harm'' means--
       (i) any injury to or damage suffered by an individual;
       (ii) any illness, disease, or death of that individual 
     resulting from that injury or damage; and
       (iii) any loss to that individual or any other individual 
     resulting from that injury or damage.
       (B) Exclusion.--The term does not include any commercial 
     loss or loss of or damage to an implant.
       (5) Implant.--The term ``implant'' means--
       (A) a medical device that is intended by the manufacturer 
     of the device--
       (i) to be placed into a surgically or naturally formed or 
     existing cavity of the body for a period of at least 30 days; 
     or
       (ii) to remain in contact with bodily fluids or internal 
     human tissue through a surgically produced opening for a 
     period of less than 30 days; and
       (B) suture materials used in implant procedures.
       (6) Manufacturer.--The term ``manufacturer'' means any 
     person who, with respect to an implant--
       (A) is engaged in the manufacture, preparation, 
     propagation, compounding, or processing (as defined in 
     section 510(a)(1) of the Federal Food, Drug, and Cosmetic Act 
     (21 U.S.C. 360(a)(1)) of the implant; and
       (B) is required--
       (i) to register with the Secretary pursuant to section 510 
     of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360) 
     and the regulations issued under such section; and
       (ii) to include the implant on a list of devices filed with 
     the Secretary pursuant to section 510(j) of such Act (21 
     U.S.C. 360(j)) and the regulations issued under such section.
       (7) Medical device.--The term ``medical device'' means a 
     device, as defined in section 201(h) of the Federal Food, 
     Drug, and Cosmetic Act (21 U.S.C. 321(h)).
       (8) Raw material.--The term ``raw material'' means a 
     substance or product that--
       (A) has a generic use; and
       (B) may be used in an application other than an implant.
       (9) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
       (10) Seller.--
       (A) In general.--The term ``seller'' means a person who, in 
     the course of a business conducted for that purpose, sells, 
     distributes, leases, packages, labels, or otherwise places an 
     implant in the stream of commerce.
       (B) Exclusions.--The term does not include--
       (i) a seller or lessor of real property;
       (ii) a provider of professional services, in any case in 
     which the sale or use of an implant is incidental to the 
     transaction and the essence of the transaction is the 
     furnishing of judgment, skill, or services; or
       (iii) any person who acts in only a financial capacity with 
     respect to the sale of an implant.

     SEC. 204. GENERAL REQUIREMENTS; APPLICABILITY; PREEMPTION.

       (a) General Requirements.--
       (1) In general.--In any civil action covered by this title, 
     a biomaterials supplier may raise any defense set forth in 
     section 205.
       (2) Procedures.--Notwithstanding any other provision of 
     law, the Federal or State court in which a civil action 
     covered by this title is pending shall, in connection with a 
     motion for dismissal or judgment based on a defense described 
     in paragraph (1), use the procedures set forth in section 
     206.
       (b) Applicability.--
       (1) In general.--Except as provided in paragraph (2), 
     notwithstanding any other provision of law, this title 
     applies to any civil action brought by a claimant, whether in 
     a Federal or State court, against a manufacturer, seller, or 
     biomaterials supplier, on the basis of any legal theory, for 
     harm allegedly caused by an implant.
       (2) Exclusion.--A civil action brought by a purchaser of a 
     medical device for use in providing professional services 
     against a manufacturer, seller, or biomaterials supplier for 
     loss or damage to an implant or for commercial loss to the 
     purchaser--
       (A) shall not be considered an action that is subject to 
     this title; and
       (B) shall be governed by applicable commercial or contract 
     law.
       (c) Scope of Preemption.--
       (1) In general.--This title supersedes any State law 
     regarding recovery for harm caused by an implant and any rule 
     of procedure applicable to a civil action to recover damages 
     for such harm only to the extent that this title establishes 
     a rule of law applicable to the recovery of such damages.
       (2) Applicability of other laws.--Any issue that arises 
     under this title and that is not governed by a rule of law 
     applicable to the recovery of damages described in paragraph 
     (1) shall be governed by applicable Federal or State law.
       (d) Statutory Construction.--Nothing in this title may be 
     construed--
       (1) to affect any defense available to a defendant under 
     any other provisions of Federal or State law in an action 
     alleging harm caused by an implant; or
       (2) to create a cause of action or Federal court 
     jurisdiction pursuant to section 1331 or 1337 of title 28, 
     United States Code, that otherwise would not exist under 
     applicable Federal or State law.

     SEC. 205. LIABILITY OF BIOMATERIALS SUPPLIERS.

       (a) In General.--
       (1) Exclusion from liability.--Except as provided in 
     paragraph (2), a biomaterials supplier shall not be liable 
     for harm to a claimant caused by an implant.
       (2) Liability.--A biomaterials supplier that--
       (A) is a manufacturer may be liable for harm to a claimant 
     described in subsection (b);
       (B) is a seller may be liable for harm to a claimant 
     described in subsection (c); and
       (C) furnishes raw materials or component parts that fail to 
     meet applicable contractual requirements or specifications 
     may be liable for a harm to a claimant described in 
     subsection (d).
       (b) Liability as Manufacturer.--
       (1) In general.--A biomaterials supplier may, to the extent 
     required and permitted by any other applicable law, be liable 
     for harm to a claimant caused by an implant if the 
     biomaterials supplier is the manufacturer of the implant.
       (2) Grounds for liability.--The biomaterials supplier may 
     be considered the manufacturer of the implant that allegedly 
     caused harm to a claimant only if the biomaterials supplier--
       (A)(i) has registered with the Secretary pursuant to 
     section 510 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 360) and the regulations issued under such section; 
     and
       (ii) included the implant on a list of devices filed with 
     the Secretary pursuant to section 510(j) of such Act (21 
     U.S.C. 360(j)) and the regulations issued under such section;
       (B) is the subject of a declaration issued by the Secretary 
     pursuant to paragraph (3) that states that the supplier, with 
     respect to the implant that allegedly caused harm to the 
     claimant, was required to--
       (i) register with the Secretary under section 510 of such 
     Act (21 U.S.C. 360), and the regulations issued under such 
     section, but failed to do so; or
       (ii) include the implant on a list of devices filed with 
     the Secretary pursuant to section 510(j) of such Act (21 
     U.S.C. 360(j)) and the regulations issued under such section, 
     but failed to do so; or
       (C) is related by common ownership or control to a person 
     meeting all the requirements described in subparagraph (A) or 
     (B), if the court deciding a motion to dismiss in accordance 
     with section 206(c)(3)(B)(i) finds, on the basis of 
     affidavits submitted in accordance with section 206, that it 
     is necessary to impose liability on the biomaterials supplier 
     as a manufacturer because the related manufacturer meeting 
     the requirements of subparagraph (A) or (B) lacks sufficient 
     financial resources to satisfy any judgment that the court 
     feels it is likely to enter should the claimant prevail.
       (3) Administrative procedures.--
       (A) In general.--The Secretary may issue a declaration 
     described in paragraph (2)(B) on the motion of the Secretary 
     or on petition by any person, after providing--
       (i) notice to the affected persons; and
       (ii) an opportunity for an informal hearing.
       (B) Docketing and final decision.--Immediately upon receipt 
     of a petition filed pursuant to this paragraph, the Secretary 
     shall docket the petition. Not later than 180 days after the 
     petition is filed, the Secretary shall issue a final decision 
     on the petition.
       (C) Applicability of statute of limitations.--Any 
     applicable statute of limitations shall toll during the 
     period during which a claimant has filed a petition with the 
     Secretary under this paragraph.
       (c) Liability as Seller.--A biomaterials supplier may, to 
     the extent required and permitted by any other applicable 
     law, be liable as a seller for harm to a claimant caused by 
     an implant if--
       (1) the biomaterials supplier--
       (A) held title to the implant that allegedly caused harm to 
     the claimant as a result of purchasing the implant after--
       (i) the manufacture of the implant; and
       (ii) the entrance of the implant in the stream of commerce; 
     and
       (B) subsequently resold the implant; or
       (2) the biomaterials supplier is related by common 
     ownership or control to a person meeting all the requirements 
     described in paragraph (1), if a court deciding a motion to 
     dismiss in accordance with section 206(c)(3)(B)(i) finds, on 
     the basis of affidavits submitted in accordance with section 
     206, that it is necessary to impose liability on the 
     biomaterials supplier as a seller because the related 
     manufacturer meeting the requirements of paragraph (1) lacks 
     sufficient financial resources to satisfy any judgment that 
     the court feels it is likely to enter should the claimant 
     prevail.
       (d) Liability for Violating Contractual Requirements or 
     Specifications.--A [[Page S6412]] biomaterials supplier may, 
     to the extent required and permitted by any other applicable 
     law, be liable for harm to a claimant caused by an implant, 
     if the claimant in an action shows, by a preponderance of the 
     evidence, that--
       (1) the raw materials or component parts delivered by the 
     biomaterials supplier either--
       (A) did not constitute the product described in the 
     contract between the biomaterials supplier and the person who 
     contracted for delivery of the product; or
       (B) failed to meet any specifications that were--
       (i) provided to the biomaterials supplier and not expressly 
     repudiated by the biomaterials supplier prior to acceptance 
     of delivery of the raw materials or component parts;
       (ii)(I) published by the biomaterials supplier;
       (II) provided to the manufacturer by the biomaterials 
     supplier; or
       (III) contained in a master file that was submitted by the 
     biomaterials supplier to the Secretary and that is currently 
     maintained by the biomaterials supplier for purposes of 
     premarket approval of medical devices; or
       (iii)(I) included in the submissions for purposes of 
     premarket approval or review by the Secretary under section 
     510, 513, 515, or 520 of the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 360, 360c, 360e, or 360j); and
       (II) have received clearance from the Secretary,
     if such specifications were provided by the manufacturer to 
     the biomaterials supplier and were not expressly repudiated 
     by the biomaterials supplier prior to the acceptance by the 
     manufacturer of delivery of the raw materials or component 
     parts; and
       (2) such conduct was an actual and proximate cause of the 
     harm to the claimant.

     SEC. 206. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST 
                   BIOMATERIALS SUPPLIERS.

       (a) Motion To Dismiss.--In any action that is subject to 
     this title, a biomaterials supplier who is a defendant in 
     such action may, at any time during which a motion to dismiss 
     may be filed under an applicable law, move to dismiss the 
     action on the grounds that--
       (1) the defendant is a biomaterials supplier; and
       (2)(A) the defendant should not, for the purposes of--
       (i) section 205(b), be considered to be a manufacturer of 
     the implant that is subject to such section; or
       (ii) section 205(c), be considered to be a seller of the 
     implant that allegedly caused harm to the claimant; or
       (B)(i) the claimant has failed to establish, pursuant to 
     section 205(d), that the supplier furnished raw materials or 
     component parts in violation of contractual requirements or 
     specifications; or
       (ii) the claimant has failed to comply with the procedural 
     requirements of subsection (b).
       (b) Manufacturer of Implant Shall Be Named a Party.--The 
     claimant shall be required to name the manufacturer of the 
     implant as a party to the action, unless--
       (1) the manufacturer is subject to service of process 
     solely in a jurisdiction in which the biomaterials supplier 
     is not domiciled or subject to a service of process; or
       (2) an action against the manufacturer is barred by 
     applicable law.
       (c) Proceeding on Motion To Dismiss.--The following rules 
     shall apply to any proceeding on a motion to dismiss filed 
     under this section:
       (1) Affidavits relating to listing and declarations.--
       (A) In general.--The defendant in the action may submit an 
     affidavit demonstrating that defendant has not included the 
     implant on a list, if any, filed with the Secretary pursuant 
     to section 510(j) of the Federal Food, Drug, and Cosmetic Act 
     (21 U.S.C. 360(j)).
       (B) Response to motion to dismiss.--In response to the 
     motion to dismiss, the claimant may submit an affidavit 
     demonstrating that--
       (i) the Secretary has, with respect to the defendant and 
     the implant that allegedly caused harm to the claimant, 
     issued a declaration pursuant to section 205(b)(2)(B); or
       (ii) the defendant who filed the motion to dismiss is a 
     seller of the implant who is liable under section 205(c).
       (2) Effect of motion to dismiss on discovery.--
       (A) In general.--If a defendant files a motion to dismiss 
     under paragraph (1) or (2) of subsection (a), no discovery 
     shall be permitted in connection to the action that is the 
     subject of the motion, other than discovery necessary to 
     determine a motion to dismiss for lack of jurisdiction, until 
     such time as the court rules on the motion to dismiss in 
     accordance with the affidavits submitted by the parties in 
     accordance with this section.
       (B) Discovery.--If a defendant files a motion to dismiss 
     under subsection (a)(2) on the grounds that the biomaterials 
     supplier did not furnish raw materials or component parts in 
     violation of contractual requirements or specifications, the 
     court may permit discovery, as ordered by the court. The 
     discovery conducted pursuant to this subparagraph shall be 
     limited to issues that are directly relevant to--
       (i) the pending motion to dismiss; or
       (ii) the jurisdiction of the court.
       (3) Affidavits relating status of defendant.--
       (A) In general.--Except as provided in clauses (i) and (ii) 
     of subparagraph (B), the court shall consider a defendant to 
     be a biomaterials supplier who is not subject to an action 
     for harm to a claimant caused by an implant, other than an 
     action relating to liability for a violation of contractual 
     requirements or specifications described in subsection (d).
       (B) Responses to motion to dismiss.--The court shall grant 
     a motion to dismiss any action that asserts liability of the 
     defendant under subsection (b) or (c) of section 205 on the 
     grounds that the defendant is not a manufacturer subject to 
     such section 205(b) or seller subject to section 205(c), 
     unless the claimant submits a valid affidavit that 
     demonstrates that--
       (i) with respect to a motion to dismiss contending the 
     defendant is not a manufacturer, the defendant meets the 
     applicable requirements for liability as a manufacturer under 
     section 205(b); or
       (ii) with respect to a motion to dismiss contending that 
     the defendant is not a seller, the defendant meets the 
     applicable requirements for liability as a seller under 
     section 205(c).
       (4) Basis of ruling on motion to dismiss.--
       (A) In general.--The court shall rule on a motion to 
     dismiss filed under subsection (a) solely on the basis of the 
     pleadings of the parties made pursuant to this section and 
     any affidavits submitted by the parties pursuant to this 
     section.
       (B) Motion for summary judgment.--Notwithstanding any other 
     provision of law, if the court determines that the pleadings 
     and affidavits made by parties pursuant to this section raise 
     genuine issues as concerning material facts with respect to a 
     motion concerning contractual requirements and 
     specifications, the court may deem the motion to dismiss to 
     be a motion for summary judgment made pursuant to subsection 
     (d).
       (d) Summary Judgment.--
       (1) In general.--
       (A) Basis for entry of judgment.--A biomaterials supplier 
     shall be entitled to entry of judgment without trial if the 
     court finds there is no genuine issue as concerning any 
     material fact for each applicable element set forth in 
     paragraphs (1) and (2) of section 205(d).
       (B) Issues of material fact.--With respect to a finding 
     made under subparagraph (A), the court shall consider a 
     genuine issue of material fact to exist only if the evidence 
     submitted by claimant would be sufficient to allow a 
     reasonable jury to reach a verdict for the claimant if the 
     jury found the evidence to be credible.
       (2) Discovery made prior to a ruling on a motion for 
     summary judgment.--If, under applicable rules, the court 
     permits discovery prior to a ruling on a motion for summary 
     judgment made pursuant to this subsection, such discovery 
     shall be limited solely to establishing whether a genuine 
     issue of material fact exists.
       (3) Discovery with respect to a biomaterials supplier.--A 
     biomaterials supplier shall be subject to discovery in 
     connection with a motion seeking dismissal or summary 
     judgment on the basis of the inapplicability of section 
     205(d) or the failure to establish the applicable elements of 
     section 205(d) solely to the extent permitted by the 
     applicable Federal or State rules for discovery against 
     nonparties.
       (e) Stay Pending Petition for Declaration.--If a claimant 
     has filed a petition for a declaration pursuant to section 
     205(b) with respect to a defendant, and the Secretary has not 
     issued a final decision on the petition, the court shall stay 
     all proceedings with respect to that defendant until such 
     time as the Secretary has issued a final decision on the 
     petition.
       (f) Manufacturer Conduct of Proceeding.--The manufacturer 
     of an implant that is the subject of an action covered under 
     this title shall be permitted to file and conduct a 
     proceeding on any motion for summary judgment or dismissal 
     filed by a biomaterials supplier who is a defendant under 
     this section if the manufacturer and any other defendant in 
     such action enter into a valid and applicable contractual 
     agreement under which the manufacturer agrees to bear the 
     cost of such proceeding or to conduct such proceeding.
       (g) Attorney Fees.--The court shall require the claimant to 
     compensate the biomaterials supplier (or a manufacturer 
     appearing in lieu of a supplier pursuant to subsection (f)) 
     for attorney fees and costs, if--
       (1) the claimant named or joined the biomaterials supplier; 
     and
       (2) the court found the claim against the biomaterials 
     supplier to be without merit and frivolous.

     SEC. 207. APPLICABILITY.

       This title shall apply to all civil actions covered under 
     this title that are commenced on or after the date of 
     enactment of this Act, including any such action with respect 
     to which the harm asserted in the action or the conduct that 
     caused the harm occurred before the date of enactment of this 
     Act.

  Mr. GORTON. Mr. President, I move to reconsider the vote.
  Mr. ROCKEFELLER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  [[Page S6413]] Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, I would want to take this opportunity to 
first congratulate the majority of the Members of the Senate and 
Members on both sides of the aisle for by far the most significant step 
in legal reform which has been taken by the Senate in many, many years, 
perhaps in the memory of the most senior of the sitting Senators. This 
has been a project by members of the Commerce Committee which has 
lasted for a decade and a half. It also, I may say, after 2\1/2\ weeks 
of debate, has been one in which the views of the Members had an 
impact, had an impact in showing that a majority of the Senate, a bare 
majority, wants a broader legal reform package than is included in this 
bill, but that others worried about particular details were willing to 
work on those details, and to cast their votes accordingly. So I 
believe that the Senate has worked its will in a particularly fine 
fashion.
  I want to pay particular tribute to my colleague, the Senator from 
West Virginia [Mr. Rockefeller]. In many respects this has been a far 
more difficult task for him than it has been for me. I represent a 
broad coalition of views within my own political party with only a few 
having had differences. Senator Rockefeller throughout this entire 
period of time has spoken for a significant number of Members of his 
colleagues but by no means a majority of them. But his dedication to 
the cause of this reform has been exemplary, and his persuasive ability 
with many of those colleagues has constantly left me in awe and with a 
great deal of inspiration. I believe that his persistence has paid off, 
and how wonderfully that it has done so.
  I have gotten to know Tamera Stanton, his legislative director, and 
Ellen Doneski, his legislative assistant, very well during the course 
of this period of time and know how much they have contributed to his 
success, as has Trent Erickson, Lance Bultena, Jeanne Bumpus for me, 
and the majority leader's assistant, Kyle McSlarrow.
  Other Senators have contributed significantly to this result, the 
chairman of the Commerce Committee, Senator Pressler, Senator 
Coverdell, and Senators Snowe and DeWine who came up with the formula 
for punitive damages which appealed to the majority of Members of this 
body.
  I only regret that Senator Lieberman, the other principal cosponsor 
of this bill, through a family emergency is absent today. I know that 
he would like to have been in on the end of this. But his contributions 
are greatly appreciated. And he is one of the primary authors of the 
portion of this bill that deals with medical devices.
  Now we go on to try to get a final proposal passed by the Congress 
and through the President of the United States.
  The majority leader has been patient in allowing us 2\1/2\ weeks on 
this, and was an absolute key to its success as well.
  With that, I think he wishes us to go on to another subject.
  Mr. HOLLINGS addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, I too want to at this moment thank those 
who have been in the trenches over the years and, of course, most of 
all my distinguished colleague, the Senator from Alabama. It is always 
good to get in behind the chief justice because you know you are on the 
side of the law and of equity, and you know you are on the side of the 
judgment. Certainly it is, as we all revere him ethically, that you are 
on the side of ethics and equity.
  I thank publicly Senator Heflin for his leadership, and particularly 
Winston Lett, a member of his staff. On my staff, Kevin Curtin, Jim 
Drewry, Moses Boyd, James Leventis, and Lloyd Ator. They have been 
working around the clock, Kevin and Moses and others have been working 
in sort of a minority position on this measure.
  The record would show that my particular Commerce Committee has over 
the past several Congresses voted by a majority to report this bill. So 
we have had a sort of uphill fight. I still feel that, of course, we 
had the merit. I guess they feel they had the merit. But in any event, 
I think the 15-year holdup was because of that on our side. I also 
would like to thank Senator Biden's staff, the Senator himself, Sean 
Moylan, Karen Robb. And then with respect to, of course, the medical 
malpractice part, we did not have hearings but Health and Human 
Resources did. The distinguished former chairman, Senator Kennedy, was 
the leader on that.
  We had, of course, the vigorous help of Senator Boxer and Senator 
Wellstone. So it has been thoroughly aired and properly heard. The 
Senate has voted. But let us see what the House crowd comes up with in 
the contract.
  I yield the floor.
  Mr. HEFLIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. HEFLIN. Mr. President, I would like to congratulate Senator 
Hollings for his outstanding work in regard to it, although we did not 
come out victorious. He is a great comrade in arms and has had a vast 
amount of experience on this matter. I suppose that looking back over 
the years, 15 or more years, he has fought these battles and I have 
been with him throughout, and he has tremendous knowledge in this area.
  Originally, this bill was designed not to go to Judiciary. It was 
designed to go to Commerce. At that time, Senator Hollings was not 
chairman. But obviously, it is a bill that deals with the judicial 
system. From the very beginning it was designed to avoid a careful 
scrutiny in regards its judicial impact. Fortunately, over the years, 
we had an individual who was an outstanding lawyer, and who had been an 
outstanding trial lawyer, Senator Hollings in the State of South 
Carolina, and who has been there to deal with this matter.
  I would also like to thank the staffs of Senator Hollings and others 
who have been so important. They have really exhibited tremendous 
knowledge of the law. They have followed this legislation diligently 
and have done a tremendous job. Senator Hollings has named them, and I 
will not repeat their names. But on my staff, Winston Lett and Jim 
Whiddon have worked tirelessly and diligently on this legislation, and 
I thank them for their great service in our legislative efforts.
  I also want to congratulate Senator Rockefeller and Senator Gorton 
for their advocacy in pushing forward on their bill. They just seem to 
have better allies than we did. I always at the end of a lawsuit, 
whether I won or lost, went over and congratulated my opposing counsel, 
and do so today. We will be having other battles as they come down the 
road, and sometimes we will be compatriots. We will be cosponsors and 
joint fighters in the same cause. Then, as it is with all Senators, we 
will be on opposite sides again in the future on some issue. But that 
is the way the Senate works; that is the way democracy works. During 
the debate on a great issue, you can disagree but you do not have to be 
disagreeable.
  I think that Senator Gorton and Senator Rockefeller never showed any 
disagreeable nature. I disagreed with them with respect to the cause 
the were advancing, but not in the manner they advanced it; they played 
fair and square. I want to thank them particularly for working out a 
settlement in regard to the unique and different situation as to 
Alabama's wrongful death statute.
  We worked out a situation by which the amendment was adopted giving 
time to our State legislature or to our courts or to both to find a 
solution to be able to fit into this bill, if it is finally passed.
  Then I want to say, while I will congratulate them, please do not 
take that as any indication that I have ceased to fight. I have not 
surrendered and will not give up in my efforts to maintain the 
traditional role of the 50 States in allowing them to fashion their own 
solutions to problems which may arise with regard to product liability 
laws. I believe the 10th amendment to the U.S. Constitution still has 
some meaning, and I will continue to assert the primacy of the States 
on these matters.
  There are appeals. There are appeals to conference, there are appeals 
to the White House, there are appeals to the President to eliminate the 
unfairness of the bill or to see the death of this unfair bill. So we 
will continue to fight. The battle is not over. We have not 
surrendered, and we will continue to battle in the future because we 
feel we are battling for the injured parties, 
 [[Page S6414]] the consumers of America, and that we have right on our 
side. And we ask the Lord to give us a little more guidance in regard 
to these appeals as we move forward.
  So I thank everybody concerned who has put up with me, and we will 
continue to battle on this issue as well as other issues that come up 
that affect the rights of the people.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. DOLE. Mr. President, let me thank all of my colleagues for the 
fact we finished this bill. It has been 2 weeks and 2 days, but there 
were a couple of interruptions--the death of former Senator Stennis and 
other matters. So it was not solid. We probably did it in about 8 or 9 
days.
  We have had a lot of good debate on both sides. I congratulate all 
the principal players, Senators Heflin and Hollings, also Senator 
Rockefeller and Senator Gorton, who were on the winning side of this 
issue. I think they did a remarkable job in keeping a very fragile, 
narrow coalition together. We broadened the bill with narrow margins. I 
think we knew at the time those provisions would not be in the bill or 
we could not obtain the 60 votes we needed for cloture, so adjustments 
were made. But at least we made a record on medical malpractice, on 
punitive damages, and on other issues that we believe are very 
important and we believe will be back before the Senate.
  I also wish to thank Senator Coverdell for his work with outside 
groups as sort of the coordinator, and my colleague, Senator Lott of 
Mississippi, the majority whip, who did an excellent job, along with 
his staff and members of my staff and others because we had some very 
difficult votes.
  I think we have had a dramatic step forward. The product liability 
bill has been introduced in every Congress for the last decade. In most 
cases, however, we could not even muster the votes to consider the 
legislation. We could not get the 60 votes to even talk about it 
because we had strong opposition and we had a lot of what we thought 
were distortions. The other side would say not.
  So I think passage today is an important victory for common sense and 
the American people. It is also important to note that we have just 
passed a bill that was stronger than bills introduced in previous 
years, stronger because of the efforts of some of our Members in the 
Chamber that added small business protections.
  I wish to pay tribute to our newest Members, who as a group provided 
energy, ideas, and determination in this debate. Senators Snowe and 
DeWine made a significant contribution that allowed us to obtain 
meaningful protection from abusive punitive damages while protecting 
small businesses.
  Senators Abraham and Kyl responded to the call of the American people 
in last year's elections by their efforts to expand these protections 
to include volunteer and charitable organizations and to add needed 
civil justice reforms. Together with Senators Kassebaum and McConnell, 
who introduced medical malpractice reforms, they produced something 
never before seen on the Senate floor--clearer majorities for broader 
reform. For various reasons, we could not get the 60 votes to bring 
debate to a close on these broader reforms, but we have had the 
opportunity and I think it is certainly important.
  Just 3 days ago, I received a letter from the head of the Boy Scouts 
of America, Mr. Jere Ratcliffe. In just the second line of his letter, 
Mr. Ratcliffe says something that ought to cause all of us to pause. I 
quote:

       The civil justice system, as it now exists, has 
     consequences which worked a chilling effect on our 
     willingness and ability to continue to pursue activities that 
     are beneficial to all of us. . . . This is particularly so in 
     the case of volunteer service organizations.

  That is what he believes. That is what many of us believe. So we have 
heard from the trial lawyers. They say everything is fine, but the 
volunteer organizations tell us a different story.
  I would just say that we hope to bring up sometime later this year 
or, if not, next year the McConnell-Lieberman-Kassebaum health care 
liability bill--hopefully, later this year. The amendment was added by 
a 53 to 47 vote. In addition, some Senators support medical malpractice 
reform but voted against that amendment last week because they wanted 
to pursue only a product liability bill. So we are going to revisit 
that later in the year. We have a lot of work to do. I do not know how 
late it is going to be. But in any event, we will be taking a hard look 
at that legislation, hopefully this year; if not, early next year.
  So, again, I thank the managers, Senator Gorton and Senator 
Rockefeller. This is a bipartisan effort, as are most things in the 
Senate because without a bipartisan effort, you cannot get the 60 votes 
to shut off debate and pass the bill. That is the way it works. Some 
people may not totally understand it, may disagree with it, but that is 
the way it works. So now we move to another legislative matter, which I 
would ask the Chair to report.

                          ____________________
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