Howard Berman

Mr. BERMAN

Mr. BERMAN. To work.

Mr. BERMAN. Mr. Chairman, I wonder if I could get the attention of the manager of the bill for one moment, the gentleman from Texas [Mr. Archer]. I wanted to ask you to explain what I find to be one of the most astonishing features of this particular provision which the issue is raised by this amendment. The majority has decided to deny a series of very important benefit programs to legal, taxpaying resident immigrants in this country, and has made one exception, that foreign farm workers, guest workers, H(2)(a)'s, people who come here on a temporary basis, will remain and will be the only group of immigrants that will remain eligible for Medicaid, housing, SSI, AFDC, and all of these programs. So that while you have thousands of domestic farm workers, many of them here as legal immigrants who are paying taxes and are ineligible for these benefits and are among the lowest-paid workers in American society, the agribusiness lobbyists will be able to, and their clients will be able to, bring in foreign guest workers to harvest crops instead of using the available domestic farm worker supply and still be subsidized for the health care and the housing and other benefits for these workers. How could this bill contain such an exception to this provision?

Mr. BERMAN. I yield to the gentleman from Texas.

Mr. BERMAN. I suggest a very different reason. I suggest that somewhere agribusiness stuck into this provision a bill to help subsidize the workers they want to import because they do not want to hire the domestic farm workers, and I find it just unbelievable that in a bill designed to encourage work you are helping to displace and subsidize foreign guest workers and displace American workers.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, this bill unfairly and without precedent ties disaster assistance for California's flood and earthquake victims to cuts in programs for low-income seniors and children. Because of that--in spite of how the Northridge Earthquake pounded my congressional district--I must oppose this bill. But I also oppose the motion to recommit. FEMA needs this money to repair earthquake damage to over 200 public schools, to libraries and hospitals, to police stations, museums, and homeless shelters. More victims applied for Federal assistance from the Northridge Earthquake than from Hurricanes Hugo and Andrew, and the floods in the Midwest, Georgia, and Texas combined. After the fact, it is wrong to shift funding from grants to loan guarantees, and shift the entire responsibility onto California's back without regard to its ability to pay. This is the mother of all unfunded mandates. Do not take out--on my constituents and those of Representatives McKeon, Beilenson, Farr, Woolsey, Riggs, and others--your anger at Pete Wilson's failure to do what he should have done for disaster victims-- and your anger at watching the Governor try to launch his Presidential campaign by blasting Washington while shirking his own responsibility to the victims of earthquakes and floods. Being victimized by Mother Nature is bad enough. We should not be victimized anew by Congress. That is why I oppose the motion to recommit.

Mr. BERMAN

Mr. BERMAN. I yield to the gentleman from Virginia.

Mr. BERMAN. I thank the gentleman for yielding me the time. Mr. Chairman, if the Gekas amendment were to deal specifically with the problem of double-dipping as the California law is focused on, I would support this amendment. I think in a tort action for negligence, the plantiff is entitled to be made whole. He is not entitled to be paid twice for the same occurrence. If his medical bills are being paid by one source, he is not entitled to pocket those payments again from another source. But the Gekas amendment goes far beyond the California Micra law and it goes far beyond medical malpractice. It deals with two issues I am very concerned with. It is written in a fashion that guarantees that the health care provider as the gentleman from Virginia [Mr. Scott] pointed out will not get subrogated, in fact it seems to prohibit that very act, that the malpractice insurer rather than the health insurance provider will get the protection, and more importantly by doing it as a matter of evidentiary question, it would be somewhat equivalent to my offering an amendment that said in the course of a trial, it is quite appropriate for the plaintiff's counsel to point out that the defendant is insured, create the sense of the deep pocket, the big pocket so that the recovery will be big and if we ever get to the issue of punitive damages, they will zap them good because they know that there is a place to get that money from.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, the intellectual weakness of the arguments of the proponents is really quite amazing, if you take just a couple of moments to think about it. First, every case they cite talks about the 1-percent negligent party, but the vast majority, I believe all the Republicans, voted for a rule which prohibited amendments to eliminate any minor wrongdoer, anyone below 20 percent, from having joint liability, while keeping the major wrongdoers in the case, because in the end, the issue is who is going to get shafted. Either it is the plaintiff, or it is one of the wrongdoers. We concede, at least in my amendment that I offered, and it was denied, that minor tort feasor should not have to pay the entire judgment. Second, a great deal is made about how important and logical this is, and it is only fair, but it does not apply to economic damages. The gentleman from Massachusetts [Mr. Frank] had an amendment to exclude anybody who is under for economic or noneconomic damages. If it is unfair to pay the pain and suffering, why is it fair to pay the economic damages? I know why you did not do it that way, because it looked too cruel, because the proponents of the amendment talk about ``We are just dealing with the feelings part of this.'' If a person becomes a quadriplegic because of the negligence of another, and they say ``You pay the medical bills and the wage loss and that is it, everything else is just about feelings,'' you amputate the wrong leg because of the negligence of the hospital or the doctor, you pay whatever wage loss there is, there may be none, you pay the medical bills, and then everything else is just feelings, we are talking about compensating the person and making them whole. Get rid of the minor tort feasors by excluding the 1 percent, 2 percent, 5 percent, 10 percent case. Do not let off the major wrongdoers, and leave the plaintiff without being made whole, without compensation. You talked about the drunk driving case. What you have passed with title II in this bill is a punitive-damages statute which keeps a person who is injured by a drunk driver from suing the drunk driver for punitive damages on State remedies. The amendment is so broad it reaches into the typical automobile case in a neighborhood in any city in America. It is not limited to product liability. It is not limited to interstate commerce. It is the most far-reaching, intrusive kind of amendment imaginable. The best comments I have heard today were from the gentleman from Virginia [Mr. Bateman], a true conservative, who wanted to know what business is it of Congress' whether in an automobile accident case at an intersection, there is joint and several liability or not? We can make arguments either way, but the State legislature and the Governor, they are the people to decide. They are the ones closest to the voters. There is no Federal question involved in this, but there are some economic interests and some insurance companies who want it, and I do not believe that is the motivation, because I am not into attributing motivations to people; some people see that perspective, but they do not see what is going to be left for the plaintiff or for the concept of Federalism. such time as I may consume. Mr. Chairman, the gentleman who just spoke stated ``It isn't limited to interstate commerce.'' Were that true, I would not support this amendment, but of course, it is expressly limited to interstate commerce, which is precisely the role of this Congress under Article 1, section 8. Mr. Chairman, I yield 2 minutes to the gentleman from Illinois [Mr. Hyde], the distinguished chairman of the Committee on the Judiciary.

Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding time to me. Just on this last point, the exemption from immunity for punitive damages is the defendant before or after premarket approval of a drug or device intentionally and wrongfully withheld from or misrepresented to the FDA information concerning such drug or device. It is not whether or not the party knew that harm could come from the product, whether there was any of that kind of conduct. It is withholding of information from the FDA. That is the only escape clause here. I disagree, from what I have heard about this case, with the gentleman. The point I would like to make follows up a little bit on the gentleman from Michigan's point. We are getting, sometimes there is a great deal of pressure on the FDA to loosen up its regulatory process to allow drug approval quicker. In my own area where the medical device manufacturers, they are furious and being driven crazy by the delays they have in getting products on the market. But never one has ever said to me that they should be able to get away from accountability and responsibility for their negligence or avoid punitive damages for the conduct, intentional or wanton disregard, conduct, or reckless conduct from tort liability. I just find it very strange that the same party that is promoting the concept of deregulation so strongly now wants to undermine the other way in which we can keep parties responsible to a high standard of conduct, which is the accountability through the judicial process. When you do both, I promise you the consequence is going to be greater negligence, greater harm, less willingness to take the kinds of precautions necessary to avoid danger. That is why I think this is a bad situation. I would like to read about one case myself. In 1980 the drug Zomax, a painkiller, was marketed by the McNeil Drug Co. Reports in 1982 of allergic reactions causing death and severe illness came to McNeil. McNeil reported those adverse drug reactions to the FDA as required, thereby not getting out of avoiding that problem of the punitive damage suit if this were to be in effect, and the company embarked on a massive selling campaign to get rid of the supply before the word spread about the negative side effects. The salesmen were instructed to not bring up the subject. During the McNeil sales campaign 14 people died and over 400 suffered life-threatening allergic reactions. Incidentally, McNeil Pharmaceutical called its Zomax campaign one-eleven, representing the $111 million sales target by McNeil. When you have this law in place, FDA has approved it, FDA had all the information, but Zomax acted wrongfully and in an intentional--McNeil acted wrongfully and in an intentional fashion to market a product they knew had adverse reactions without advising the consumers of this and without letting the FDA know that they were increasing their marketing.

Mr. BERMAN. Mr. Chairman, to close the debate, I yield the balance of my time to the gentleman from Texas [Mr. Doggett].

Mr. BERMAN. Mr. Chairman, I yield such time as he may consume to the gentleman from Maryland [Mr. Cardin]. (Mr. CARDIN asked and was given permission to revise and extend his remarks.)

Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from New York [Mr. Nadler].

Mr. BERMAN. Mr. Chairman, I yield 1 minute and 30 seconds to the gentleman from Michigan [Mr. Dingell]. (Mr. DINGELL asked and was given permission to revise and extend his remarks.)

Mr. BERMAN. Mr. Chairman, I yield 2 minutes to the gentleman from North Dakota [Mr. Pomeroy], a nonlawyer.

Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from California [Mr. Waxman].

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I listened to the gentleman from Ohio and I finally got it. New Jersey has a law that provides punitive damages uncapped for suits against sexual predators. They have a standard of ``preponderance of the evidence.'' How can we allow 50 different States to have 50 different standards against sexual predators? Sexual predators should know what the uniform, nationwide, 50-State standard is for punitive damages. This is a punitive kind of a thing. We have to protect these people against actions against them. Stream of commerce? Come on. Give me a break.

Mr. BERMAN. But what he has not said one word about is why we should be pushing our judgment onto a State in an area of which there is no Federal interest in deciding whether it wants a higher standard or a lower standard.

Mr. BERMAN. The gentleman makes a very good, well-documented case for the appropriateness of the clear and convincing standard.

Mr. BERMAN. Mr. Chairman, will the gentleman yield?

Mr. BERMAN. Mr. Chairman, I yield myself the balance of my time. that the Committee on Energy and Commerce over several years has been passing and promoting on a bipartisan basis, the one that the gentleman from Ohio [Mr. Oxley] always supported, was a product liability bill limiting the statute of repose to capital goods and providing 25 years. This is any product, any manufactured product, any manufactured product 15 years. And now you are taking out the medical benefit.

Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from Texas [Mr. Doggett].

Mr. BERMAN. Mr. Chairman, I yield myself 30 seconds. Mr. Chairman, it is a balance. We are not talking about punitives. We are not talking about pain and suffering. We are not talking about wage loss. We are talking about the medical bills this injured person has to pay to get treatment. In this small set of cases, which side do we come down on? Do we come down on the manufacturer of the machinery, the product, or do we come down on the side of plaintiff who has no medical insurance, who has no way of paying his medical bills? Mr. Chairman, I yield 3 minutes to the gentleman from Texas [Mr. Bryant].

Mr. BERMAN. Mr. Chairman, I yield myself 2 minutes. Mr. Chairman, we are dealing here probably with the only amendment I think on the status of repose. When I saw the language as it came out of the two committees and was reintroduced in this new bill, H.R. 1075, I said, well, this is not a bad effort. We are federalizing the product liability law in this one title. We will not even talk about what we are doing in the rest of the bill. We are providing the manufacturers with a certainty in terms of the amount of years. We are exempting it based on an amendment that the gentleman from Illinois, the chairman, accepted in committee for express warranties. If we could just get the Bryant amendment, to deal with a manufacturer who intentionally conceals problems with his product. We have a provision in the bill that says this subsection shall apply only if the court determines that the claimant has received or would be eligible to receive full compensation from any source for medical expense losses. I thought with the addition of the Bryant amendment, which the Committee on Rules prevented him from offering, you could have a reasonable statute of repose as part of this federalization of the product liabilities scheme. Lo and behold, the Committee on Rules does not grant Mr. Bryant's amendment, but instead grants an amendment that says when the person is injured by the defective product, if it occurs after the period of the statute of repose, even if he has no insurance, no other way of paying any of his medical bills, we are going to put him off on the county, put him into indigency, make him go on the dole in order to pay for the injuries which he suffered, which could be very extensive, because of this amendment. What you looked like you were giving, you now, in substantial part, have taken away with this amendment. I think this is the wrong amendment. I am surprised that gentleman is offering it. It was a balance, it was a nice balance to the proposal. It is being totally thrown out of whack.

Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from Virginia [Mr. Scott].

Mr. BERMAN. Mr. Chairman, I rise in opposition to the amendment.