May 9, 1995 CONGRESSIONAL RECORD — SENATE S6299

For NCSL, the question is not which tort

reforms are appropriate, but who makes that

decision. The issue is who has responsibility

for state civil justice. This is a federalism

issue of major consequence. It should not be

ignored.

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

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

and not when they vary from Federal

law to favor defendants? What kind of

fairness bill is it that contains such a

blatant double standard?

Madam President, the bill before us

is called the Product Liability Fairness

Act of 1995. If you read the title, it

sounds pretty good. Who could be

against bringing greater fairness to our

product liability system, or to our

legal system in general?

There is a list of problems in our

legal system that we could all go

through. Going to court takes too

much time and it costs too much

money. There are many stories of

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

hand, being denied a day in court by

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

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

multiple motions to dismiss.

As Senator GORTON, one of the lead

authors of the bill before us, explained

at the outset of this debate:

[T]he victims of this system are very often

the claimants, the plaintiffs themselves, who

suffer by the actual negligence of a product

manufacturer, and frequently are unable to

afford to undertake the high cost of legal

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

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

their medical and rehabilitation expenses,

their actual out-of-pocket costs.

In 1989, a General Accounting Office study

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

years to be resolved, and even longer when

there is an appeal. One case studied by the

GAO took 91⁄2 years to move through our

court system. In one of many hearings held

on this issue over the years, University of

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

injured in our society by a product and you

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

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

Senator GORTON concluded his

thought as follows:

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

faulty products, need quicker, more certain

recovery—recovery that fully compensates

them for their genuine losses. Defendants,

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

I agree with Senator GORTON that

there is unfairness in our current legal

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

does not address the problems faced by

plaintiffs at all. There is virtually

nothing in this bill to assist those who

have been hurt by defective products

and face the difficult burdens of trying

to recover damages through our legal

system.

For instance, this bill does nothing

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

investigations, depositions, and motions practice that often mars such

litigation. It does nothing to help bring

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

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

Instead this bill would limit the

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

court that they were hurt by defective

products. The bill contains any number

of provisions addressing compensation

to plaintiffs which is too high, but not

a single provision addressing the cases

in which, as the sponsors themselves

acknowledge, compensation is too low.

This bill is not balanced, it is not

uniform, and I cannot support it.

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

to yield to the Senator from Alabama.

Mr. HEFLIN. Madam President, I

only want to speak briefly right now

relative to this matter. I think the

Senator from Michigan has covered the

issue on additur very adequately.

In the case of Dimick versus Schiedt,

a 1935 Supreme Court case, the High

Court ruled that the district court

lacked the power to deny a plaintiff a

new trial, sought on the ground that

the jury award of damages was too low,

when the trial court judge proposed to

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

new trial. The Supreme Court held that

the power to increase a damage award,

known as an additur, was a violation of

the right of trial by jury. According to

the Court, the amount of damages

must be determined by juries, not

judges, in the Federal court, subject to

the right of courts to set aside jury

awards that are clearly excessive.

Some State courts have held that

additur violates their State’s constitution as well.

That is the major point that I want

to make on this issue. Senator LEVIN

mentioned this matter pertaining to

the lack of uniformity.

I want to also point out that all

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

accept as binding precedents in the

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

mandate.

This mandate, in my judgment, is

clearly unconstitutional and contrary

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

vested in one Supreme Court, which

has always been construed to mean

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

lower Federal courts.

With the addition of the punitive

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

courts. Rules concerning the use of

additur and remittitur have always

been left to the State courts, as have

also every other State rule of civil procedure.

I just wanted to mention that. I

think there are others who are desiring

to speak. I yield the floor at this time.

Several Senators addressed the

Chair.

The PRESIDING OFFICER. Under

the previous order, the Senator from

Pennsylvania is recognized to speak up

to 10 minutes.

Mr. GLENN. Parliamentary inquiry.

Is there a 5-minute limit on speeches

this morning?

The PRESIDING OFFICER. Under

the previous order, the Senator from

Pennsylvania has been allocated 10

minutes to speak, after which there is

a 10:30 a.m. vote.

Mr. GLENN. I thank the Chair.

Mr. SANTORUM. Madam President, I

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

The PRESIDING OFFICER. The Senator from Oklahoma is recognized.

STOP THE DEMAGOGING

fMr. INHOFE. Madam President, I

thank the Senator from Pennsylvania

for yielding a portion of his time. I do

not think I will take the 5 minutes.

After the trauma and the tragedy

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

from many of the other significant

things that are taking place in this

body. I think the most significant

thing, second only to that tragedy in

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

what is going to happen to Medicare in

America and the demagoging that is

taking place in this and other bodies

concerning that trauma.

Specifically, a report was released by

the Medicare trustees that has come to

the incontrovertible conclusion that

our Medicare system, in absence of

change, is going to go broke in the year

2002, approximately 61⁄2 years from now.

I think it is important to look and

see who was it who looked at the data,

who studied the actuarial reports and

came to that conclusion.

There are six members of the Board

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

Clinton; Robert Reich, Secretary of

Labor, appointed by President Clinton;

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

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

and Stanford Ross and David Walker.

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

the conclusion that Medicare will, in
S6300 CONGRESSIONAL RECORD — SENATE May 9, 1995

fact, go broke in the year 2002. I think

we know the reasons for it, and I will

not get into that.

Quoting from the report, it says,

Medicare is ‘‘severely out of financial

balance and the trustees believe that

Congress must take timely action to

establish long-term financial stability

for the program. The trustees believe

that prompt, effective and decisive action is necessary.’’

Madam President, these are the

trustees that were appointed by President Clinton, and what has happened

since that time? Absolutely nothing.

We have not heard one word out of the

Clinton administration. We hear a lot

of people criticizing Republicans because we want to do something to save

a system, and they come up and say,

‘‘The Republicans are suggesting that

they are going to cut Medicare in order

to pass a tax reduction.’’ Nothing could

be further from the truth, and that certainly is not true. But for the President to do nothing in facing this crisis

is something that cannot be tolerated.

The proposal that has been discussed

by the Budget Committee chairman,

Senator DOMENICI from New Mexico,

has suggested that we put caps on the

system, somewhere around 7 to 7.5 percent growth caps. In other words, the

Republican budget is suggesting not

that we have cuts in Medicare, but that

we have increases in Medicare, but

those increases will be capped somewhere between 7 and 7.5 percent, at an

amount that has been actuarially determined that we will now have Medicare and it will not go bankrupt in the

year 2002.

Right now, Madam President, we

have some 36 million people on Medicare. It is projected by the time 2002

comes, we will have something like 50

million Americans, 20 percent of all

Americans, including myself, will be

eligible for Medicare at that time.

So I only say, it is time to stop the

demagoging. We have a very serious

problem on our hands. I believe the Republicans have a solution to that problem, but we should be getting some

leadership from the White House at

this time. This is not something with

which we should be playing politics.

I yield back to the Senator from

Pennsylvania.

Mr. SANTORUM. Madam President, I

A CRISIS IN MEDICARE

fthank the Senator from Oklahoma for

his comments. I wholeheartedly agree

with him. I think this is a question of

leadership, what kind of leadership we

are going to see not only out of the

White House but out of the U.S. Senate.

I think the rhetoric to date has not

served this institution well. There is,

indeed, a crisis in Medicare. I know

there are a lot of folks on the other

side of the aisle who are saying we

knew about this crisis, you folks denied there was a health care crisis. We

are not talking about a health care crisis, we are talking about a Medicare

crisis. We are talking about a trust

fund problem that says there is not

enough money in the trust fund to be

able to fund Medicare past a 7-year

window. That is immediate, that is

real, and that is something that we

have to deal with, and I believe we will

only deal with if we do so in a bipartisan way.

If this becomes a partisan issue

where one seeks to take political gain

at the expense of doing something that

is responsible action, we will not succeed and the trust fund will continue

to go further and further to the brink

of insolvency, and we will be left with

not a lot of options but very dramatic

choices that are going to affect a lot of

taxpayers and a lot of seniors and the

availability of Medicare benefits into

the future.

The other comment I keep hearing is,

‘‘Well, this crisis has been around a

long time and we have known. This is

not the first trustees report that has

been published that says Medicare is in

trouble and will go bankrupt in a few

years.’’

That is true. In fact, over the last 10,

15 years, the average solvency of the

Medicare trust fund has been about 12

years. Now it is at 7, which is I think

a low. That is the shortest timeframe

that we have seen recently where Medicare is in trouble and scheduled to go

bankrupt. So it is important, but we

are usually running around 12, 14 years

as the average.

So why the big hullabaloo now? The

reason for that is, once we get through

the next 12 years or so, to the year 2010,

we can do that pretty well by doing a

fix. Senator DOMENICI’s budget calls for

roughly $250 billion in reductions in

the growth rate of Medicare over the

next 7 years. That will fix Medicare,

again, to make it solvent for about 12

years from now, which will be about

average of where the fund has been.

The problem with that is not the 12

years, it is what happens in the 13th,

14th, 15th year and beyond, because

after 12 years from now or 13 years

from now that is when the baby

boomers begin to retire and that is

when Medicare really takes off.

Spending in Medicare just goes up astronomically once the baby boomers

and that big chunk of the population

starts getting into this program. So

when we look at Medicare funding now,

we have to look at it with a whole new

ball game in mind. We have to preserve

the long-term funding and solvency of

this program through a period where

we are going to see a rapid escalation,

not in the cost of Medicare and inflation, but in the number of people in the

program.

So when we look at Medicare now,

and I hope we will have this informed

discussion, that we will look at it over

the long term recognizing that Medicare costs, just by demographic reasons, are going to escalate beyond what

we have ever seen before in the history

of the Medicare program.

So I am hoping we can have this kind

of constructive dialog and we will not

use brinkmanship for political gain,

that we will have a good, bipartisan solution to the problem that faces this

country.

TRIBUTE TO THE NORTH DAKOTA

I yield the floor.

STATE UNIVERSITY WOMEN’S

fBASKETBALL TEAM

Mr. DORGAN. Madam President, I

want to take some time today to belatedly honor the North Dakota State

University women’s basketball team.

Outside of North Dakota, most people

probably don’t know that this team

won the NCAA division II national

championship. Not only did they win it

this year, but the Bison women have

won this honor for 3 straight years. I

think they deserve some national recognition.

The NDSU women had the additional

honor of being the first ever division II

women’s team to make it through a

season undefeated. This remarkable

team ended its season 32–0, and they

did it by focusing on one game at a

time.

I think we can all learn some important lessons about life by watching

these champions—about perseverance,

about working together and helping

each other, about being a good sport.

I want to congratulate each of these

women for the year of hard work that

culminated in their ultimate victory:

seniors Linda Davis and Lynette Mund

who provided experience and leadership, juniors LaShalle Boehm, Jessica

DeRemer, Jenni Rademacher, and Lori

Roufs; sophomore Kasey Morlock, who

was the most valuable player of the

tournament, and her fellow sophomores

Rhoda Birch and Andrea Kelly; and

freshmen Tanya Fischer, Erica Lyseng,

Amy Ornell, and Rachael Otto.

These women are even more special

because they will not be making millions of dollars playing in the NBA

when they graduate. They are playing

basketball because they love the game,

and in the process they are serving as

good role models for many young girls

who need active, successful young

women to look up to.

A lot of the credit for the success of

the NDSU program rests with Head

Coach Amy Ruley. She has led the

Bison to four championships in the last

five seasons. In fact, she is doing such

a good job that the University of Illinois and Long Beach State—two division I schools—both wanted her for

their programs, but I was glad to hear

recently that she has decided to stay

with us in North Dakota.

We also can not overlook the assistant coaches, Kelli Layman and Kathy

Wall; student assistant Darci Steere;

volunteer assistant Robin Kelly; student trainer Nikki Germann; and student manager Mary Schueller. Their

work behind the scenes plays an important role in the team’s success.