Brian Bilbray

Mr. BILBRAY

Mr. BILBRAY. Regular order, Mr. Chairman.

Mr. BILBRAY. Mr. Chairman, I am not trying to be confrontational. I am trying to just communicate what a citizen sees in these proceedings. You know, we are talking about 137,000 children in his district that parents that could have access to this. Now, that is fine, and we can make those judgments. But do you realize that 2 years ago when this vote was, the tax increase was put in, my dear colleagues on the other side of the aisle, there was a commitment made that once the tax increase went in, you will see tough, tough budget cuts; you will see us reduce it; trust us. What happened this year with the President's budget? Will you agree that the credibility of the political process was destroyed when the President of the United States proposed a budget that had none of the cuts that were proposed 2 years ago when the tax increase goes in? And as a citizen, I ran for Congress because the credibility was being destroyed by making promises on one side to raise taxes and never coming across the other way. Mr. Chairman, I represent a diverse district along the Pacific coast, but I grew up and I live in a working-class neighborhood, and when I hear all the battle about the rich getting some benefit, I would wish my colleagues on the other side would be half as worried about the middle class getting their fair share of tax cuts rather than always worrying about something might happen that may benefit somebody who has been a little more prosperous. of work there, and I close with this, please, go outside and ask the security guards if they are rich that work in this Chamber. They make enough money to make that tax writeoff. Mr. Chairman, it is time to stop the class warfare.

Mr. BILBRAY

Mr. BILBRAY. Mr. Speaker, last week and again this morning, I happened to witness discussions about a system that we call the welfare system. Now, Mr. Speaker, I grew up in a neighborhood and I had friends and where we were was a working class neighborhood, but many of my friends and their families were on welfare. I also happened to have served for 10 years as a county supervisor in the county of San Diego which has a welfare system larger than 32 States of this Union. Let me tell you as somebody who grew up in the neighborhood and had to run the system, anybody who can face off with the American public and honestly say what we have called the welfare system for the last 30 or 40 years is somehow a great contribution to our country obviously ignores the atrocities that have been done under this so-called welfare system. The system that we call welfare is nothing short of subsidized misery. In fact, if you or I would treat our children in the manner that welfare treats children, it would not only by immoral, it would be illegal. Mr. Speaker, I will give you one example. If I gave my teenage daughter a check and told her to go live by herself in her own apartment, I would not only be abandoning my child, I would be actually committing child abuse by definition in the State of California and most States in this Union. I, as a parent, am not allowed to take a minor child and send him or her off to live by themselves. But, Mr. Speaker, that is what our welfare system has done for over 40 years. It is time that we rethink our well-intentioned but misguided concept here, that we have actually taken children and sent them off on their own under the guise that we have committed some great privilege and helped this individual. We have actually punished people who have tried to work their way out of welfare for decades in this country. If you were on welfare and you got a part-time job, what did Uncle Sam say to you? They said, ``For every dollar you earn in part-time, we will take a dollar away from you in benefits.'' Then we wonder why people do not work their way out of welfare. Mr. Speaker, I just would like to point out that the best welfare in society is a job, and we will work on that. I come from the county that started workfare in 1978, and it was called cruel. It was called heartless. It was called right wing radicalism. But as somebody who grew up in the neighborhood and operated the system, it was the most humane proposal we ever had, and it is time we bring dignity back. Mr. Speaker, I will tell you as somebody who administered the programs, you take off the Federal strings, you stop telling us how to run the system, and the people at the State and local level will provide the services that the so-called people who claim to be liberals always say ought to be provided. We are going to give free lunches to our children. We are just not going to give it to the Federal bureaucrats.

Mr. BILBRAY

Mr. BILBRAY. Mr. Chairman, I happen to be an individual that comes from a working-class background with a neighborhood where there are a lot of welfare recipients but also a lot of middle-class working people. I also happened to have been privileged to serve as a supervisor of a welfare system that was larger than the majority of the States of this Union. Let me tell you the frustration those of us that were trying to provide programs to the poor, especially when the Federal Government would stop us from doing innovative things. I think the problem here is a credibility gap. We did not hear about this 10 years ago. In 1978 when my county proposed an idea, we were called cruel, we were called inhumane, we were called terrible, because we proposed a concept called workfare in 1978, and the gentleman and the gentlewomen from the other side of the aisle attacked us in San Diego County for that. We proposed that people who get part-time jobs should not have their money taken away from them dollar for dollar in their benefits if they try to work out. The Federal bureaucracy has fought us for 10 years in this program. We just finally got them to get off our back so we can help the poor. The fact is my working-class people complain about the abuses of the welfare system. It is not the rich, powerful people who complain. It is the people that are in the neighborhoods who see the abuses. When they say they want to fight the abuses, it is the Federal bureaucracy that stands in the way, Mr. Chairman. I ask that we oppose the amendment and support the Republicans because they are the only ones with credibility.

Mr. BILBRAY

Mr. BILBRAY. Mr. Chairman, I stand here today not as a Member of Congress, but as somebody who operated a welfare system for a county that was larger than 30 States of the Union, San Diego County. I want to commend my colleague from Connecticut because she shows the awareness of the realities out there that have been ignored by the Federal Government for too long. I appreciate my colleague from Texas being concerned about the tragedies that have occurred. Those tragedies have occurred, Mr. Chairman, because of the lack of innovative approaches being allowed by local government. This amendment will actually allow women to participate in the child care process, to be part of the answer rather than part of the problem. And rather than what our colleagues on the other side of the aisle would like to do, always finance a larger, bigger bureaucracy, this allows the recipients to be part of the answer, to participate, to actually earn part of their benefits by participating in child care. Mr. Chairman, I think that the compassionate approach that our colleagues from Connecticut have shown should entice our colleagues on the other side to join us in this good amendment. Parliamentary Inquiry

Mr. BILBRAY

Mr. BILBRAY. Mr. Speaker, I was absent yesterday due to an illness. I would like the Record to show that had I been present, on rollcall 213 I would have voted ``nay,'' on rollcall 214 I would have voted ``nay,'' on rollcall 215 I would have voted ``nay,'' and on rollcall 216 I would have voted ``aye.''

Mr. BILBRAY

Mr. BILBRAY. Mr. Speaker, I submit the following article from the Washington Post because it encapsulates a unique perspective that I believe I bring to the debate we are having today on product liability reform. [From the Washington Post, Mar. 7, 1995] Getting Personal on Product Liability--Two Lawmakers' Opposing Views Stem From Their Own Painful Experiences (By Caroline E. Mayer) To Rep. Brian P. Bilbray (R-Calif.), product liability legislation is ``a personal blood and guts issue''--a measure needed to protect women and children who otherwise wouldn't be able to get the drugs they need. ``It's actual flesh and blood that we're talking about,'' said the freshman lawmaker, who saw his wife go into shock during a pregnancy 10 years ago because a drug she needed to help her deal with severe morning sickness had been pulled off the market by its manufacturer for fear of product liability suits. But to Rep. Patsy T. Mink (D-Hawaii), legislative efforts to make it harder to sue for damages from defective products is ``a great offense'' to women and children, especially DES mothers--among them herself--who, by taking a drug thought to prevent miscarriages, exposed her child to a greater risk of cancer. ``Having had the personal experience, I want to make sure the people who are voting for the bill will understand that justice is being thwarted for millions of Americans,'' said Mink, who collected a $250,000 settlement from a lawsuit over the medication. It should be no surprise that these two lawmakers--on different sides of the political aisle--have divergent views about the product liability legislation before the House this week. But it is the personal experience and intensity each brings to the debate that makes their positions stand out in the battle to overhaul the nation's tort laws. Mink's vociferous opposition stems from her use of DES, diesthylstilbestrol, when she was pregnant 43 years ago. ``Knowing the agonies that women in other kinds of product liability lawsuits went through, I have a special responsibility to speak out,'' she said. Approved by the Food and Drug Administration in 1947 to prevent miscarriages, DES was discovered, decades later, to cause significant damage to the babies born to mothers who used DES. In some cases, DES children have severely deformed sexual organs, cannot have children, have impaired immune systems or a high risk of developing a rare from of cancer. Mink was given DES as part of an experiment testing the drug's effectiveness, but did not know it until 25 years later, when she received a ``blunt letter'' from the university where she had been treated. The university asked if she or her daughter had developed cancer. Mink sued the university and company that supplied the DES, winning a $250,000 settlement. In addition, the university promised to care for all DES daughters of mothers developed a certain type of cancer of the vagina or cervix at any time before they are 70. ``Under the legislation under consideration, it is unlikely that any DES mother or child would have been able to recover any damages,'' Mink said. Bilbray has not been as eager to discuss his experience. ``It's not something I prefer to talk about.'' he said after a House Commerce Committee meeting last month. But that's what Bilbray did when the committee drafted its version of the product liability bill. ``Women and children are dying as a result of existing laws,'' Bilbray told his colleagues at the drafting session. ``Products that are needed are being pulled off the shelves because of lawsuits.'' Some people may think lawsuits may make all the pain better, he said. But, he added, ``please do not think there's any amount of money that's ever going to pay a parent back by never being able to hug their child.'' ``Listening to all these members stand up and talk about how consumer products have done all these terrible things, it was like a knife cutting into me * * * Sometimes you just have to stand up and scream,'' he said in an interview afterward. key facets of the legislation Product liability legislation to be considered by the House would: Preempt state laws and set a national standard for product liability lawsuits. Bar any lawsuit for damage incurred from products more than 15 years old unless they cause a chronic illness, such as cancer caused by asbestos or DES. Limit punitive damages to the greater of $250,000 or three times the economic damages. Require ``clear and convincing evidence'' that a manufacturer either intended to cause harm or acted with conscious, flagrant indifference for punitive damages. Bar damages if the person bringing the suit was intoxicated or under the influence of drugs when the harm occurred and if alcohol or drug use was the principal cause of the accident. Make retailers liable only if they engaged in intentional wrongdoing, negligence or if the product failed to comply with an express warranty made by the retailer. The retailer also would be liable if the manufacturer went bankrupt or could not be sued in the claimant's state. Sanction attorneys for filing frivolous pleadings in product liability actions. Separate legislation would require the loser of any lawsuit to pay the winner's legal costs if the loser rejected a settlement before the jury verdict. Even if a jury found in favor of the person bringing the suit, that person could still be required to pay the other side's legal fees if the jury award is less than a rejected settlement. Ten years ago, Bilbray's wife had to go into the intensive care unit ``when she couldn't get access to the drug she desperately need,'' he said. In three earlier pregnancies in a previous marriage, Karen Bilbray had taken a drug called Bendectin to control severe morning sickness. But in 1984, when she was pregnant with Bilbray's child, Bendectin was no longer available. The manufacturer, Merrell Dow Pharmaceuticals Inc., had removed the drug from the market after several women successfully sued the company, alleging that the drug produced birth deformities. Even though scientific data never proved it was harmful, Merrell stopped selling the drug. ``My wife was not allowed to make a decision on what she wanted to put into her body; it was made by a lawyer suing, maybe well-intentioned but misguided and very critical to her well-being,'' Bilbray said. Without Bendectin, Bilbray's wife became so sick she went into shock, he said. ``If it wasn't for a doctor willing to take the risk [and give her some Bendectin], I probably would have lost her.'' A son, Brian, was born several months later, to live only three months before he died of crib death. Bilbray is convinced that the trauma of his wife's first three months of pregnancy contributed to the child's death. ``People are going to suffer no matter what you do'' to reform the civil justice system, Bilbray said. But Congress ``needs to be more sensitive to the damage that these lawsuits create by denying benefits'' to people who may need them.

Mr. BILBRAY

Mr. BILBRAY. Mr. Chairman, tonight we are speaking a lot about lawyers, a lot about corporations, a lot about pharmaceutical companies, but we are talking about consumers only as victims. However, the victimization goes both ways, Mr. Chairman. We hear a lot about the things that go wrong in our society when people use products. We hear about the bad things that the consumer products do. However, Mr. Chairman, we do not talk about the fact, about the woman who goes to her pharmacist to be able to get a drug that she has used for years, but that drug no longer is available to her, not because the FDA found it not safe, not because a court found that it was not safe, but because of the huge liability that was being created by lawsuits that were being brought forward without merit, but with substantial resources, to the point where they were driving these products off the market. Mr. Chairman, for years Bendectin has been used by pregnant women for a long time, and it is not available today for one reason, and that is because of lawsuits.

Mr. BILBRAY. I thank the gentleman for yielding this time to me. Mr. Chairman, frankly, I think if you tried to explain this to the average citizen in the United States, they would think it is absurd that somebody is going to be given a fine and that fine is going to be given to the plaintiff. With fines and forfeitures in criminal cases, we do not have those fines and forfeitures going to the victim of the crime. That may be more logical than what we have here because at least in the criminal case they have not been made whole. By definition, they should have been made whole before punitive is ever considered. I think what we have to do is get the lottery out of this. I would ask that we support this amendment. I would prefer that all punitive damages go to a public fund because that is where penalty fees should be going. They go to a public fund in a criminal case. By definition, they should be going to such a fund.

Mr. BILBRAY

Mr. BILBRAY. Mr. Chairman, a core component of the American Dream is that hard work, creativity, and innovation is encouraged, and more often than not, rewarded with success. Unfortunately, for a vast number of small, fast-growing high-technology and biotech companies in southern California, the Silicon Valley, and elsewhere around the country, this dream has turned into a nightmare. A small fraternity of attorneys have discovered that exploitation of loopholes in our existing securities laws can be extremely lucrative, and they have elevated the cunning application of meritless class action lawsuits to an art form. Class action lawsuits, or strike suits, have had a devastating effect on biotech and high-technology firms, whose traits--volatile stock prices, rapid product development, and constantly evolving technology-- make them an easy target for strike suits. If a company's stock shifts abruptly in one direction or another, or quarterly earnings are less than projected, it is likely to be targeted by a strike suit filed by plaintiffs' attorneys alleging fraud. Often, these suits are filed within hours of the stock fluctuation. These suits have the effect of draining massive amounts of time and money from some of America's most competitive industries. A perverse result of these situations is that once hit with a strike suit, for many small companies it is cheaper to settle out of court--despite their innocence--in order to avoid a prolonged and costly court process. This amounts to legalized blackmail, and makes a mockery of that quaint concept of innocent until proven guilty. Far from benefiting investors--on whose behalf these suits are ostensibly filed--these settlements typically recover only pennies on the dollar for investors, while the attorneys who brought the suit recover an average of 30 percent from large pretrial settlements. Investors are also penalized in the long run, as another side effect of strike suits is to reduce the incentive for voluntary disclosure of forward-looking information by a given company. From my district in San Diego, up the State to the bay area, and elsewhere across the United States, these predatory strike suits have hamstrung some of our most competitive and growth-oriented industries, with predictable results. If a company is fortunate enough not to have to downsize or lay off employees, it is often forced to divert its resources from R&D, or product improvement. In many instances, these companies are researching cures for such diseases as Alzheimers', AIDS, or breast cancer, or are developing medical implant devices which can help prolong or improve the quality of life for the ill and the elderly. If such research is discouraged, as it now is, and these products are kept from the market, as many have been, who is actually benefiting? Certainly not the little guys whom the strike suit attorneys claim to represent. A cursory review of the average whose interests are truly being furthered. The bottom line is that American people are being taken for a ride under the current system--here's how: First, new drugs and medical products that American consumers need and want are being priced out of reach, or kept from the market altogether by meritless strike suits; Second, American taxpayers are footing the bill for the lengthy trial and appeal processes forced by these meritless strike suits; and Third, America's competitive advantage in high-technology and biotechnology markets is being crippled by meritless strike suits, which adversely affect local and regional economies through lost jobs and business opportunities, in addition to hamstringing our ability to compete in the international markets. H.R. 1058 will address these abuses, making rational, substantive, and fair changes in our system. It will benefit our economy, our competitiveness, and most importantly, the American people. Mr. Chairman, I urge my colleagues to rise in strong support of the Securities Litigation Reform Act; it's been a long time coming.

Mr. BILBRAY

Mr. BILBRAY. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I happen to have heard my colleague, the gentleman from Michigan, mention in not too glowing terms the concept of rascals and rogues who had capitalized off of certain situations in our society. My question is as to who are the rascals and who are the rogues. Frankly, when we have 40 percent of the cases under the RICO being identified as being not as the original intention to the depth of what the original intention was supposed to come out, Mr. Chairman, there are rascals and rogues who would manipulate the law for their own personal gains. This amendment would try to rectify that problem. I do not think anybody who voted for the original intention expected it to be a free ride for those in the legal profession, to be able to dig deep into other people's pockets, or to be able to have procedures that they could not use in any other civil cases. However, to take advantage of a law that was meant to stop racketeering, to take advantage of legislation that was meant to protect the people of this country from organized crime, truly is immoral. Frankly, I think that this abuse that has been recognized by the Supreme Court is probably a good example of why the bar associations of this country probably are not doing their job, and because of that, we need to do our job here to straighten out abuses that have become obvious, obvious to the point to where we have to correct the well-intentioned RICO regulations. Mr. Chairman, I think that we do have rascals and rogues out there, a segment of our society that refuses to live by the rulings and the good intentions that the rest of us take for granted. There are those that take a look at legislation and say what a great opportunity not to have to play by the rules. I think this amendment, Mr. Chairman, will help to straighten it out and say we will live by the rules, and I think that the amendment will say that the rules will be set the same for these cases.

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

Mr. BILBRAY. Here is the point: RICO is meant to go after racketeering. It is being misused by attorneys, because it means they do not have to play by the other rules.

Mr. BILBRAY. Of course not, Mr. Chairman. There are 40 percent of the cases being used under this. Is the gentleman saying that 40 percent of the cases under RICO are all racketeering?

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

Mr. BILBRAY. It does not constitute 40 percent of the legislation.

Mr. BILBRAY. Mr. Chairman, what we are talking about, those one or two sentences, are being manipulated for 40 percent of the actions. I do not think the legislation, and the gentleman was here, probably, I was not, I cannot believe the gentleman meant for 40 percent of this law to be used in this manner. I cannot believe that was his intention.

Mr. BILBRAY. I think that what the gentleman is saying, see, the gentleman is trying to use that. This law was meant to go after the Mafia. The fact is it is being abused.

Mr. BILBRAY

Mr. BILBRAY. I yield to the gentleman from Indiana.

Mr. BILBRAY. Mr. Chairman, I rise to strike the requisite number of words. Mr. Chairman, I oppose this amendment. We have an amendment that is trying to say that we will not enforce the regulations, or not allow the citizens to enforce the process to be able to identify what is true risk, what is true benefit. I think one of the concerns I have is that if we applied this amendment to every environmental regulation and every environmental law in this country, I think both sides of the aisle would agree that it would gut the public health protection aspects of the laws of this Nation. I think that that is the intent of this amendment, is to gut this bill, not to protect it, not to enhance it. Mr. Chairman, all I have to say is that those who stood in this House and spoke about the concerns about the lawyer full employment act, I sure hope to see them standing in line to support us as we get into tort reform. I think that is a problem. I agree with my colleagues that that is a major problem, one we must address, but this is not the source of the problem. That is going to be another day, another battle, another agenda. The source of the problem here is that we need that dose of reality in our environmental and public health strategy to make sure we protect the public health. What this amendment will do is say that the public would not have the right to be able to draw on the facts of the process to come to conclusions; that the judicial system would not be able to consider the fact that flawed data causes flawed results. Mr. Chairman, garbage in, garbage out. If the science that goes into making the conclusion is not sound, then the result is not going to be sound, and we have to look at the process as we get into it. I think the result is absolutely essential. I agree with my colleague that the result is what really matters. However, to judge the result we have to look at the evidence as it was being developed. If we ignore good science in the development of a strategy, we are ignoring the public's health and we are ignoring good public strategy. Therefore, Mr. Chairman, I ask strongly that stand up and say ``This is what we want to do across the board, we want to do this with all our environmental regulations, we want to eliminate judicial review and deny the public the ability to look at how bureaucrats come to these conclusions,'' but do not do it just with this bill. Have the guts to do it with all the bills that have been passed for the last 40 years through this House, because without that then we are picking up this alone.

Mr. BILBRAY. Reclaiming my time, Mr. Chairman, on the items that are being used to make the determination, the gentleman is. The trouble is when we eliminate that judicial review of the merits of the components to come to the conclusion, we are then denying all the facts to be on the table when these things are being considered. I would just like to say to my colleague, I am not impugning his intention. I am pointing out the fault of his strategy when it comes down to this, that the fact is that we do have a judicial system that is part of the environmental strategies of this country. It has always been, right from the beginning. Without that review you will then be saying that one group of environmental strategy will have judicial muscle throughout the entire process and one part from now on will not be allowed to flex that muscle, will not have access to that.

Mr. BILBRAY. I yield to the gentleman from Massachusetts.

Mr. BILBRAY. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in opposition to the amendment. I understand the concern of my friend, the gentleman from Massachusetts [Mr. Markey], that there may be a major problem here. However, let me just sort of quote a representative of the Environmental Defense Fund, who stated at testimony before the Committee on Commerce, ``I think in principle there are probably very few exclusions that I would make, as long as members of peer review panels are experts in their area and there is an appropriate balance.'' I wish to say to my friend, the gentleman from Massachusetts, that I have seen different peer review processes work. It is essential to get everybody who has expertise to be included in the process, and not to exclude them. I think what the gentleman fears with regard to conflicts, the conflicts come from many directions. I would not feel it would be appropriate that just because somebody happens to be employed by the Lung Association and actively involved in that process, that they should somehow be treated as if they are tainted and unacceptable to the review process. In fact, Mr. Chairman, as long as we understand that there is an agenda, and where they come from, it is a major contribution, because in reality we want those who may come from different spectrums to be at the table to build the consensus. There may be those that are scared of what may be termed the extremes finding consensus. I think we should not only not fear it, we should embrace the fact that consensus is what we want to find on these issues, and that is where we can.

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

Mr. BILBRAY. Mr. Chairman, what we are saying is if and when those details are considered, they should be considered to see if that is minutiae that would have determined or could determine fact from fantasy. If the gentleman is scared of judicial review looking at that fact or fantasy, then please understand that every other environmental law that we have on the books goes through the same process in the courts one way or the other. The trouble is it does not look at the cost- effectiveness, it just looks at how the process was followed going towards the execution of the law. What has happened now is we are trying to add this reasonable clause in, that it is a mandate that Government not only try to do something, it tries to do it intelligently. That is all we are asking.