Howard Berman

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from Michigan [Ms. Rivers].

Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from Oklahoma [Mr. Istook].

Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentleman from Illinois [Mr. Durbin].

Mr. BERMAN. Mr. Chairman, I yield myself two minutes. Mr. Chairman, let me initially correct some of what I am sure are the inadvertent misrepresentations of the gentleman from California. No. 1, California's health care premiums did not go down 33 percent over what they would have been. The gentleman is referring to the malpractice premiums paid by physicians, not the health care premiums paid by citizens. Second, this bill is not in any fashion limited to medical malpractice. It covers, with a $250,000 limit on pain and suffering, any health care liability action which is defined in this bill under any theory, tort, or contract, that a contractor could have a provision for liquidated damages, anything like that that goes beyond the medical costs and the lost wages, and it seeks to put this $250,000 limit on that. The anomaly is when this day is done, if this amendment passes, and you ride in a car which is manufactured defectively, it explodes, and you are paralyzed, there is no limit on what you can get for pain and suffering. Difficult to quantify, but very real. You are paralyzed for the rest of your life, you are a quadriplegic, the wrong leg is amputated, there is something there beyond wage loss, and there is something there beyond just the simple cost of your medical treatment. If you are injured in that explosion by that defective car, no limit. If you are injured because of the negligence in a defective medical device and it results in your being paralyzed, you are capped at $250,000. What is the logic of the distinction? I do not know. I will be interested in hearing the gentleman speak to that particular issue. Once again, we have gone way beyond the issue of product liability and gone way beyond the issue of medical malpractice. In California there are a series of damage remedies for bad faith insurance practices. If it is a health insurance policy and the health insurance company does not pay and the result is serious injury to the person, if he is arbitrarily canceled and there are massive losses and a breach of contract, under that theory, no matter what the contract provision provides for damages, this comes in and caps the pain and suffering with those limitations.

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

Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from Texas [Mr. Bryant] for purposes of a dialog. ask the gentleman, the doctor, who just spoke, a question.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I urge the House to defeat the previous question, to allow an amended rule which would allow three amendments, all of them Republican amendments. The gentleman from Florida, Mr. McCollum's amendment to raise the cap on all punitive damage. The bill does not just restrict punitive damages caps to products liability. It covers every single State's punitive damages remedy that exists, to raise that cap from $250,000 to $500,000. Also, to allow the Oxley-Gordon amendment, which provides a million-dollar alternative cap for all punitive damages remedies. And the Schiff amendment, which limits the punitive damages cap to what every single speaker who comes down here on the majority side talks about, which is product liability. The bill before us provides a punitive damages cap for everything. If I were to have a product liability bill in title I and nationalize the steel industry in title II and I refused to discuss title II, I would be somewhat disingenuous. I suggest that as Republican after Republican comes down on this legislation and talks about product liability, never discusses the other issues, they are wrong. What did the Committee on Rules do here? Why is this so objectionable? I do not think you can have a product liability under an open rule. I know the Republican promise. I think it was silly. I think they should be allowed to change that promise. You cannot consider everything on an open rule. I do not even mind that it is a very modified time-restricted closed rule and the majority of the 82 amendments filed are not considered. But, in essence, what the Republicans in the Committee on Rules have done, what they are threatening to do if they adopt this rule, is to say, ``Yes, there is the status quo, and some people just want to keep the status quo and do not want to change it.'' I guess that is the position of the trial lawyers. Then there is what I consider the extreme of this bill and every amendment, which is somewhere between the status quo and the extreme of this bill offered by a Republican which has a chance to win will be denied a chance to be offered. So that, in effect, what you are doing is what you have been yelling about the Democrats doing; you blocked amendments that could win on the House floor and you were so sanctimonious during the campaign and afterward, the outrage of what the Democrats did. ``We had amendments that could win, but they would not let us offer them.'' That is what Mr. Schiff's amendment is, that is what Mr. McCollum's amendment is, that is what the Oxley-Gordon amendments are; not to let all the Democratic amendments come in, but to let these three amendments come in. I would urge the body to defeat the previous question and allow that very limited amendment to allow moderate proposals to come in. When Mr. Dreier spoke yesterday, when my friend from California on the floor, he talked about letting ideas from the left and the right come in. They will not even let ideas from the center come in. And that is what those I urge defeat of the previous question so that that amended rule may be offered.

Mr. BERMAN

Mr. BERMAN. That is directly contrary to what the ranking member of the Rules Committee and the ranking member of the Judiciary Committee have told me.

Mr. BERMAN. I might just add on that point that was not going to be my question.

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

Mr. BERMAN. Mr. Speaker, I rise not in opposition to this rule. This rule is only to deal with the general debate issue. I rise, and I hardly ever do, in opposition to a rule, the rule that is being filed tonight, because I am so outraged by what it has done. Let's talk for a moment about what the Republican majority is doing. On a bill which is different in many, many respects from the bill passed either out of Energy and Commerce or Judiciary, in other words, a bill unilaterally changed, we are being asked now to debate, without any kind of committee record on a number of its provisions, with a rule that will be offered tomorrow that will authorize amendments which were never raised in committee and which massively expand the scope of the bill. But neither one of those points I think are that critical. I have not been one of the people who have been decrying the Republican decision to limit the time. You have to limit the time in House with 435 Members. I am not even one who decries doing a modified closed rule. The balanced budget amendment I though was a fair rule. You gave the Democrats the change to take the shots they wanted to and the amendments that they had. But in this case, you are doing exactly and in the most outrageous and egregious form what you accuse the Democrats of doing. You are denying the Democrats the chance to participate in choosing their amendments and you are carefully selecting out of a large number of amendments that have been offered those amendments which would moderate this bill and the amendments which would moderate the excessive provisions of this bill and which have a chance of passage, which are in many cases being proposed by members of you own party, you are denying them the chance in allowing the amendments that are the most extreme, that raise the issue in the most clearer fashion and which are destined to lose. You are determining the results of the legislation by the process of the rules. It is just what you ran on in November and said you would never do. It is just what the Speaker said he would never do, after the election, in his acceptance speech, what you at every press conference scream about and in every rules debate scream about. You are denying the amendments. I am going to give a couple of examples. Punitive damages: There is a cap on punitive damages. The gentleman from New Mexico [Mr. Schiff], a Republican, proposes an amendment to limit that cap on all punitive damages just to product liability. He proposes another amendment to raise the cap to 3 times all damages, not just noneconomic damages. The gentleman from Florida [Mr. McCollum], a Republican proposes an amendment to raise the cap from $250,000 to $1 million and from $250,000 to $500,000. You deny each and every one of those amendments and every other Democratic amendment, except one, the amendment, which I think is a good amendment, but it is an amendment which has no chance of passage, by the gentlewoman from Oregon that eliminates the cap entirely, because you cannot stand the test of a suggestion that something less extreme than what you are proposing but which still addresses the problem of runaway punitive damages might be offered on the floor, might win. It is patently unfair, indefensible. I am waiting to hear the explanation for why the Schiff amendments, the McCollum amendments, the other Democratic amendments were not allowed, so you could allow the most far out amendment, an amendment that I plan to vote for, by the way, but an amendment that would totally wipe out any cap on punitive damages. Let's talk about joint and several liability. You allow no amendment to strike joint and several, the change in joint and several liability. You do not allow my amendment to say that the minor tort-feasors no longer have joint liability but the major tort-feasors do. And you allow a Cox amendment never offered in either committee to extend the elimination of joint liability to every tort case in the country. A little automobile accident case in a rural county in Montana is now preempted by the proposed Cox amendment which you allow, never offered, and allow no amendments to modify. You do not allow the Frank amendment which would have put a 20- percent limit on joint liability for both economic and noneconomic damages. It is an outrage, and I think tomorrow I am going to repeat this speech and I am going to find even better examples because you should have to face that you have betrayed everything you have been saying in this rule.

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

Mr. BERMAN. The question of the number of amendments that are Democratic and the number of Republican is all nonsense. Address the issue of why you allowed the amendment that was the most extreme and none of the amendments by Republicans or Democrats that sought to refine the bill. I submit, and you will have to show me why it is not so, that you went through a systematic process of making sure no amendment that might moderate this bill, that could win, could be offered, and only amendments that could not win would be allowed. You rigged the process, until you show me otherwise, and that is the real outrage of this rule.

Mr. BERMAN. Mr. Speaker, I thank the gentleman very much for yielding. I do not even want to get into the debate about what was said or who chose what because I was not there for any of the conversations.

Mr. BERMAN

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

Mr. BERMAN. Was the cap in non-product liabilities cases? Because I think the contract was only limited to caps on punitive damages in product liability cases.

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

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

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

Mr. BERMAN. This does sound like another clean-hands argument, but in the end, four dirty hands really do not help the process.

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

Mr. BERMAN. Mr. Chairman, I thank my friend, the ranking member of the Committee on the Judiciary, and I particularly thank the manager for the Committee on Commerce, a committee which I am not on, and to take a position which he does not share, and so I appreciate it. I would like to follow up on the themes of the last couple of speakers. We have a product liability bill on the floor. Personally I do not find it a bit offensive that the Congress chooses to federalize the whole question of the standards for product liability. I think a very good case can be made for giving the manufacturers uniform rules around the country, it makes sense to federalize it. I do not even quarrel with all of the features of this bill. A statute of repose, which tells a manufacturer there is a certain period of time after which that manufacturer has procured and sold the product, that will pass, and he will no longer be liable for things that go wrong with that product unless he intentionally misrepresented aspects of that product that he was selling. The Bryant amendment dealt with that slight change in the statute of repose. He was denied a chance to offer that amendment. I think that can make sense. And I think you can talk about punitive damages in the area of product liability. I personally think once you have left enough incentive for the plaintiff to pursue the punitive damages remedy, the notion that he might get a million or multimillion-dollar windfall is wrong, and that a significant portion of that should be shared with the State or a nonprofit agency or a third party, because the purpose of punitive damages is not to make that person whole. You need enough to go to him to let him have the incentive to pursue it, but the purpose is to punish and deter future conduct, and so amendments which speak to that issue in a fair fashion I find acceptable. But there are many changes about this bill that make me curious. And first of all, we keep hearing talk about product liability. The gentleman from Georgia [Mr. Barr] in the committee offered an amendment, findings and purposes, to establish the Federal interest under the commerce clause in doing this. He withdrew that amendment, but the amendment reappeared in a perhaps slightly different form in the bill we are not voting on, and I understand that. That is in title I. But there is not even a plausible effort to provide the constitutional basis for the Federal Government preempting a punitive damages award when Joe Smith hits Bill Jones on the street, and this has historically been a State interest and no Federal interest. All of a sudden the punitive damages for that intentional tort are federalized and capped. There is no premise for this. I have talked to several constitutional law professors, Professor Van Alstine at Duke and others, since this bill passed out of committee. They think this whole section is of doubtful constitutionality, and the proponents of the bill do not even make an attempt to justify it on any constitutional ground, a little less on a policy ground, a ground that would say we have an interest in what New Jersey's punitive damages award is against sexual predators or what California says for a lawyer who divulges certain kinds of information or a journalist who violates the shield law in some fashion. These are all, and there are dozens of other State remedies for punitive damages for intentional torts that the Federal Government has no interest in, and are not a cause of any particular problem. I do not understand why this bill has a provision in here which says a civil action brought for commercial loss shall be governed only by applicable commercial or contract law. Why if the parties to a contract provide for four times actual damages as liquidated damages clause, that is OK, when the only loss is commercial, but if a person is injured, they are capped, and they cannot get anywhere near that amount. It is a funny notion to put damage to property on such a higher pedestal than damage to the human body. I guess I just want to close my comments by dealing with the comments really made; I thought they were somewhat cheap and tawdry comments made by the gentleman from Ohio that essentially impugned the motives of the Democrats who are opposed to this bill for why they are voting against this bill. Like the gentleman from Texas [Mr. Bryant], I get contributions from the American Trial Lawyers' Association. I get far more contributions from the corporate and association PAC's that support this legislation. I have no doubt that my perspective on this bill perhaps is shaped by the fact that I was trained in a law school. I do not think the gentleman from Illinois [Mr. Hyde] is doing this because he is in somebody's hip pocket or the gentleman from Virginia [Mr. Bliley] or the gentleman from Ohio [Mr. Oxley]. I think we see the world a little bit differently, and that is what this whole place is supposed to be about, people coming from very different backgrounds. We are all affected by our life experiences and our careers, and we come down in different places, and the notion that everything comes down to who is in whose hip pocket debases the whole place, and while outsiders are always going to talk about it, the notion that people who are inside the process and rely on what is essentially a very cheap argument, I think, is not healthy to this process. I do not understand why the Republicans, who are against this bill, are they motivated by high motives, but the Democrats who are against this bill are motivated by low motives? I do not think anybody seriously believes that.

Mr. BERMAN. I want to make one other point. The gentleman from Virginia [Mr. Bliley] several times, my friend, said that if there was not some interest in this, why did they kill it for 20 years? For the same reason the House Committee on the Judiciary did not pass a balanced budget amendment or a school prayer amendment or a whole variety of things, because the majority of the committee at that time did not like the bill and we did not want to vote for it, and that is why we killed it, and that is why it did not come out to the House floor. It is no big mystery. It is part of the process. We just had a little change now; all of a sudden certain things we never thought of passing are rushing out here. It is part of the process.

Mr. BERMAN. I agree. It only applies to title I. It does not apply to title II. There is no ostensible constitutional basis for title II.

Mr. BERMAN. Will the gentleman yield?