S6452 CONGRESSIONAL RECORD — SENATE May 10, 1995

whatever the sense of the Senate may

be, unless the Senate issues some kind

of an order. I know of no such procedure for such an order.

Mr. President, I am very much concerned about the officers, the Federal

officials, who were murdered in Oklahoma City. I think every American is.

I know the area very well.

I went to the University of Oklahoma, which is in Norman, 20 miles

away, and have a lot of friends in Oklahoma City. It is a catastrophe of the

first order. I think that we can best

serve the public interest and best pay

our respect to the victims in Oklahoma

City and best pay our respect to victims of terrorism everywhere if we act

and if we do what we can to clear the

air on any notion which may be current in the country that there has been

a coverup by the Federal Government,

or a failure to act or a failure to look

into what happened in Waco and Ruby

Ridge.

I think this resolution is a very reasonable approach to the issue, deferring from the date of May 18, which the

subcommittee has set, and deferring to

the full committee. It is not a matter

of who conducts the hearings. Let the

full committee do it. But let us do it

with reasonable promptness.

I think it is important that we not

talk about personal Senatorial prerogatives or about being ordered to do

something, not talk about conduct

them ‘‘if necessary,’’ after the House

holds it hearings, or not talk about the

vagaries of the near future. We need to

set a time when at least we will let all

Americans know we are going to move

ahead, we are not stonewalling, and although we are not having the hearing

on May 18, we will at least set a date

that will give public assurance—that

we will give the public assurance that

we will let the chips fall where they

may and there will be accountability in

America regardless of how high the officials may be.

Mr. CRAIG. Mr. President, I strongly

support the call for hearings into the

Federal Government’s handling of

standoffs in Naples, ID and Waco, TX.

Some of my colleagues may remember I have been pushing for many

months to get the Government to tell

what it knows about the incident in

my home State—often referred to as

Ruby Ridge. I asked for an investigation of the incident, which was done; I

pressed for release of the reports of

that investigation, which is presently

awaiting the consent of the local Idaho

prosecutor; and in January, I asked for

hearings in the Senate.

Government agents have already

been disciplined for acts and failures to

act at Ruby Ridge. Just a few weeks

ago, the Deputy Attorney General released a list of problems that she

thinks occurred there and asked the

heads of three agencies to report how

they are addressing these problems.

Yet there still has not been any public accounting as to what happened,

nor answers to the questions that continue to multiply.

Mr. President, the public has a right

to know. The Senate should hold hearings into this matter and into the handling of the Waco standoff, as well.

There are some who have suggested

that now is not the time for these hearings. They say we should wait until

Oklahoma City recovers, or until the

polls show a more favorable political

climate in the country, or some other

goal is met.

At the same time, we have been hearing a lot in the press and even in this

Chamber about the public’s so-called

‘‘paranoia’’—fear and mistrust of the

Federal Government that is being labeled as irrational.

I should not need to remind my colleagues: fear breeds in ignorance. Mistrust is fueled by rumor. The worst

thing this Congress could do to improve the situation would be to put

these issues on the shelf or try to drive

public discussion underground.

That is not the way a responsive, and

responsible, representative body should

operate. We depend upon our State and

Federal authorities to maintain order

and keep the peace, and we trust they

will do so in a way that is consistent

with the law and in keeping with the

trust we have placed in them. Sometimes a line is crossed that runs the

risk of breaking the trust and confidence Americans have place in our

Federal law enforcement community.

Many across America fear such a line

was crossed at Waco and at Ruby

Ridge. That fear has only increased,

not decreased, as the days and months

have passed without an adequate Congressional response.

Surely everyone in this Congress

would agree that it would be helpful to

have answers to these questions before

we respond to Federal law enforcement

requests for greater powers and resources. Hearings in this area may well

point out areas where additional help

is needed; conversely, they may point

out areas where additional powers may

contribute to the potential for abuse.

And if Congress deserves to know the

answers to these questions before making such an important policy determination, surely the public also deserves it.

Mr. President, it serves neither the

law enforcement community nor the

interests of civil liberties or delay addressing these incidents. We should

hold hearings and seek answers to the

legitimate questions that have been

raised—and we should do it now, rather

than allow the cancer of suspicion and

mistrust to grow.

Mr. SPECTER. Mr. President, I ask

for the yeas and nays.

The PRESIDING OFFICER. The Senator’s amendment is currently not

pending for those purposes. It takes

unanimous consent to order the yeas

and nays on your amendment, Senator.

Mr. SPECTER. Mr. President, I ask

unanimous consent that my amendment be considered as a freestanding

resolution which, as I understand from

the Parliamentarian, is permissible.

The PRESIDING OFFICER. It does

take unanimous consent.

Mr. SPECTER. I ask unanimous consent it be considered as a freestanding

resolution.

The PRESIDING OFFICER. In my

capacity as a Senator from Minnesota,

and acting as Chair, I do object.

Objection is heard.

Mr. SPECTER. I ask unanimous consent that the yeas and nays be ordered.

The PRESIDING OFFICER. Is there

objection that it be in order to order

the yeas and nays at this time?

Is there a sufficient second?

There is clearly not a sufficient second.

Mr. SPECTER. All Senators on the

floor are voting in favor of the yeas

and nays.

Come on now, Mr. President, I have

seen the yeas and nays ordered with

one Senator on the floor asking for the

yeas and nays constituting a sufficient

second.

The PRESIDING OFFICER. According to the Parliamentarian, a minimum of 11 Senators need to be on the

floor for a sufficient second.

Mr. SPECTER. Parliamentary inquiry, Mr. President. Will the Parliamentarian represent that the yeas

and nays have not been ordered in any

case he has seen where fewer than 11

Members of the Senate have asked for

the yeas and nays?

The PRESIDING OFFICER. Senator,

there is not a record kept of that, according to the Parliamentarian. So the

information would not be available.

Mr. SPECTER. I ask for his best

recollection but not necessarily a

record, Mr. President.

Mr. President, I ask unanimous consent that the yeas and nays be ordered.

The PRESIDING OFFICER. Is there

objection? Without objection, so ordered.

The yeas and nays were ordered.

Mr. SPECTER. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. SPECTER. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. SPECTER. Mr. President, I send

CLOTURE MOTION

fa motion to invoke cloture on the

pending matter to the desk.

The PRESIDING OFFICER. The cloture motion having been presented

under rule XXII, the Chair directs the

clerk to read the motion.

The legislative clerk read as follows:

CLOTURE MOTION

We the undersigned Senators in accordance

with the provisions of rule XXII of the

Standing Rules of the Senate do hereby
May 10, 1995 CONGRESSIONAL RECORD — SENATE S6453

move to bring to a close debate on the pending committee substitute amendment to S.

534, the solid waste disposal bill.

John H. Chafee, Bob Dole, Bob Smith,

Jim Jeffords, Hank Brown, Kit Bond,

Orrin Hatch, Spencer Abraham, Jon

Kyl, Larry E. Craig, Kay Bailey

Hutchison, Trent Lott, R.F. Bennett,

Pete V. Domenici, Dirk Kempthorne,

(During today’s session of the SenJesse Helms.

MORNING BUSINESS

fate, the following morning business

was transacted:)

PRODUCT LIABILITY FAIRNESS

fACT

Mr. DODD. Mr. President, today the

Senate passed the Product Liability

Fairness Act, which I have cosponsored, by an overwhelming vote of 61–

37. For those of us who have been working on this issue for a long time—my

involvement dates back to 1985—this is

an historic day. With passage of this

balanced measure, we have taken a

huge step toward improving the product liability system for everyone—for

the injured people who need fast and

fair compensation, for consumers who

need quality products to choose from,

for those American businesses who are

at the cutting edge of international

competition, and for workers who depend on a strong economy to support

their families.

I commend Senator ROCKEFELLER

and Senator GORTON, and their staffs,

for their heroic efforts on this measure.

From drafting the legislation, to skillfully guiding it through a lengthy debate on the Senate floor, they have

worked extremely effectively. Their

success is reflected in the broad bipartisan coalition that supported the bill.

I also commend Senator LIEBERMAN,

my colleague from my home State of

Connecticut. He authored an important

section on biomaterials. That provision

is designed to ensure that manufacturers of life-saving and life-enhancing

medical devices have access to raw materials. In recent years, the supply of

raw materials has been threatened by

litigation. This is a critical problem,

and I commend Senator LIEBERMAN for

crafting a promising solution.

Of course, like any compromise, this

bill will not please everyone in all respects. I had drafted, for example, an

amendment providing a different approach to punitive damages. under my

amendment, the jury would determine

whether punitive damages are appropriate, and the judge, guided by certain

factors, would determine the amount.

That procedure, in my view, offers a

better approach to punitive damages

than one which provides limits, or

caps. Senators ROCKEFELLER and GORTON incorporated some aspects of my

proposal in the final provision, and I

appreciate their efforts on this difficult

issue.

The final version of this bill does not

contain a provision that I have supported in the past—the Government

standards defense. One aspects of that

defense, related to approval of drugs

and medical devices by the Food and

Drug Administration, was passed by

voice vote in the House and will, I understand, be considered in conference. I

ask unanimous consent that a number

of letters supporting this provision be

printed in the RECORD at the end of my

remarks. As these letters point out, inappropriate punitive damages have

convinced many corporate researchers

to avoid the search for safer and more

effective drugs.

Once again, I commend my colleagues, particularly Senators ROCKEFELLER and GORTON, for their bipartisan efforts on the Product Liability

Fairness Act.

There being no objection, the letters

were ordered to be printed in the

RECORD, as follows:

PHARMACEUTICAL RESEARCH AND

MANUFACTURERS OF AMERICA,

Washington, DC, April 25, 1995.

Hon. CHRISTOPHER J. DODD,

U.S. Senate,

Washington, DC

DEAR SENATOR DODD: As a physician volunteer, I treat AIDS patients at the WhitmanWalker Clinic. The suffering that I see—and

the threat of an ever-wider epidemic—convince me that the greatest gift anyone could

give to society would be an AIDS vaccine. If

I were the chairman of a philanthropic foundation, I would invest every dollar in vaccine

research.

However, if I were CEO of a pharmaceutical company, knowing that the investment in my company represented the retirement and college savings of many of my

stockholders, I wouldn’t touch AIDS vaccine

research with a ten-foot pole—until the liability issue has been successfully addressed.

Even the safest, most widely accepted vaccines entail risks—and potentially bankrupting liability burdens. Childhood vaccines are

available in adequate supply only because

Congress passed the Childhood Vaccine Compensation Act. This came about only because

several manufacturers got out of the business of manufacturing childhood vaccines

due to liability concerns—raising fears of a

dangerous scarcity.

In 1975, a man who got polio after changing

his baby’s diaper sued the manufacturer of

the Sabin polio vaccine, which the baby had

received. The risk of polio transmission was

known, but small—about 1 in 1 million. Nevertheless, the jury awarded punitive damages. The award was later reversed, but only

by the narrowest possible margin. The very

fact that such a widely acclaimed health advance could expose a manufacturer to punitive damages would certainly give pause to

any manufacturer considering research on an

AIDS vaccine—which entails special liability

risks.

With a preventive AIDS vaccine, people

who are vaccinated will probably turn HIV

positive—with all the social stigma and

threat of job loss or insurance loss that this

involves. There is a risk that a very small

number of people will get AIDS from the vaccine. Additionally, there is the risk that the

vaccine won’t ‘‘take’’ in all cases and that

some people who think they are protected

may engage in risky behavior and come

down with AIDS. All of these eventualities

could result in lawsuits.

In the case of therapeutic vaccines for people who already have the disease, it would be

very difficult to distinguish the symptoms of

AIDS from any side-effects of the vaccine.

And people with AIDS, prodded by unscrupulous lawyers, might easily be tempted to sue

vaccine manufacturers.

Unless the liability threat is alleviated—at

least by exempting manufacturers of FDAapproved products from punitive damages—

developing an AIDS vaccine is decidedly a

‘‘no-win’’ proposition. This is outrageous,

unfair, tragic—but true.

Sincerely,

JOHN D. SIEGFRIED, M.D.

MAY 2, 1995.

Hon. CHRISTOPHER J. DODD,

U.S. Senate,

Washington, DC.

DEAR SENATOR DODD: We are writing to ask

that you vote in favor of a proposal that we

believe will have a positive effect on research and development of new medicines

and medical devices. American innovation is

in trouble in the courts particularly in the

high risk areas of reproductive health. Liability fears have caused the withdrawal of

new drugs and medical devices that the Food

and Drug Administration (FDA) considers

safe and effective. We understand that when

S. 565, the ‘‘Product Liability Fairness Act

of 1995’’ is considered on the Senate floor, an

amendment will be offered that would prevent juries from second-guessing the FDA’s

scientific decisions that a drug is safe insofar

as punitive damages are concerned.

The proposed FDA-approval defense to punitive damages would establish a defense to

punitive damages in tort actions involving

drugs or devices approved by the FDA and

subject to FDA regulation. The defense

would apply only to punitive damages, and

would not be available to a manufacturer

that has withheld or misrepresented information to the FDA, including all required

post-approval disclosure of unexpected adverse effects.

In the past twenty years, most companies

have halted U.S. research on contraceptives

and drugs to combat infertility and morning

sickness. As a case in point, Bendectin, a

morning-sickness drug, was removed from

the market by its manufacturer in 1984 after

more than 2,000 lawsuits were filed claiming

it caused birth defects. Merrell Dow has

spent over $100 million defending those suits

and is still doing so. Even though almost

every court which has looked at the issue

has determined that there is no scientific

evidence to support the contention that the

drug causes birth defects, and even though

Bendectin is still approved by the FDA for

use in pregnancy, no manufacturer will risk

making a morning sickness drug.

The 1970s brought more litigation over oral

contraceptives than any other drug. In the

early 1970s, there were 13 companies doing

research and development on contraceptives.

Eight of these were American. Today there

are only two major U.S. companies doing

such research. In 1990, a distinguished panel

of scientists put together by the National

Academy of Sciences noted that due to fear

of lawsuits, the United States is decades behind Europe and other countries in the contraceptive choices it offers women.

In early 1994, because it had spent tens of

millions of dollars defending against suits by

people claiming injury from tempero-mandibular joint implants, DuPont announced it

would no longer make polymers available to

the medical device industry in the United

States. These polymers are used in artificial

hearts, pacemakers, catheters, hip and knee

prostheses, and a host of other implantable

devices. We have not even begun to feel the

full impact of that decision.

The Senate is taking advantage of an unprecedented opportunity to fix a flawed product liability system. We ask that you include