John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.

Mr. CONYERS. Mr. Speaker, I yield 5 minutes to the gentleman from Texas [Mr. Stenholm]. (Mr. STENHOLM asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, I would ask the gentleman to check a little bit more carefully. I do not know how long he has seen the proposal that is on the floor. It was only put together rather recently, in remote corners of the Congress. It is different from the one that was debated at the time the he suggested. parliamentary inquiry

Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina [Mr. Hefner]. (Mr. HEFNER asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, will the gentleman yield?

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

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I want to thank the gentleman from Texas [Mr. Frost] for his management of the rule in this matter, and bring to the attention of the Members the one reason that this rule should be rejected. That is because the provision that I put in the bill that would have helped American consumers by making it easier to obtain legal process and discovery against foreign manufacturers was quietly dropped in conference, at the insistence of foreign lobbyists. It was dropped, even though we then instructed the conferees to retain this provision in conference, overwhelmingly bipartisan. So join me in rejecting the rule to have this amendment that would make foreign manufacturers liable like domestic manufacturers are for defective products.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I rise today in tribute to Dr. Angela Denise Dillard, assistant professor of history and Afro-American and African studies at the University of Minnesota. A native of Detroit, Dr. Dillard recently received her Ph.D. in American culture from the University of Michigan. I take particular pride in offering this tribute because Dr. Dillard's family and mine long have been active in the struggle for justice, jobs, and opportunity. Dr. Dillard's mother, Marilynn Dillard, and my father, the late John Conyers, Sr., were among the earliest members of the Trade Union Leadership Council, an organization formed in the 1950's to combat racism in management and unions. Marilynn Dillard served as secretary of TULC. Dr. Dillard's father, Paul Dillard, is a probation officer with the State of Michigan. In the 1960's the Dillard household was a gathering place for activities. The heated political and social discussions there left a lasting impression on Dr. Dillard and on her older brother, the Rev. Paul Anthony Dillard, Jr., who worked in my Detroit office as a congressional aide in the 1980's. The Rev. Dillard's premature death last year at the age of 36 ended an outstanding career as an advocate for the disadvantaged and the oppressed. At the time of his death, he was dean of the Imani Temple Cathedral in Washington, DC. Dr. Dillard recalls that the conversations she heard as a child whetted her curiosity and shaped her professional life. ``I developed an early interest in the history of ideas, and how ideas influence political and social life, culture and race relations . . . people's day-to-day existence,'' she says. ``My family and my family's friends talked about these issues constantly. Years later I started to remember all the old stories I had heard, and I decided, ``Wow, that would make a wonderful project.'' Her doctoral dissertation, ``From the Reverend Charles A. Hill to the Reverend Albert B. Cleage, Jr.; Patterns of Change and Continuity in the Patterns of Civil Rights Mobilization in Detroit, 1935-1967,'' was a result of those discussions. The late Reverend Hill of Hartford Avenue Baptist Church was a community activist who formed broad-based religious and ethnic coalitions to bring about social change. The Reverend Cleage, of the Shrine of the Black Madonna, eventually discarded integrationist tendencies and turned to black nationalism and black theology in the 1960's. Dr Dillard argues that Detroit underwent ``two major phases in its civil rights mobilizations, sustained by two distinct communities of protest. The first phase (and community) was generated by migration, depression, and the logic of industrial unionism; the second was generated by the rise of the southern civil rights movement and by the social and economic environment of post-World War II Detroit.'' Dr. Dillard's study emphasizes the tension, discontinuities, false starts, and realignments among those constituting and often reconstituting the city's civil rights-oriented left. A graduate of Immaculata High School, Dr. Dillard received her B.A. in 1988 from Michigan State University's James Madison College where she majored in justice, morality and constitutional democracy. In 1991, she received her M.A. in political science from the New School for Social Research; the next year she received an M.A. in American culture from the University of Michigan. In 1995, she received her Ph.D. in American culture from the University of Michigan. Dr. Dillard became an assistant professor at the University of Minnesota in September 1995. She taught African-American Political Thought in 1994 at James Madison College and she taught Tradition and Resistance: National Narratives and American Values, in 1993 at the University of Michigan. In 1991, she taught Political Implications of the ``Harlem Years.'' 1920-1935, at the New School for Social Research's Eugene Lang College. Numerous organizations have recognized her outstanding ability by awarding her a variety of grants and fellowships. In 1996, the University of Minnesota awarded her the McKnight Summer Research Fellowship. In 1994-95, she received the Committee on Institutional Cooperation Dissertation Fellowship, and in 1994 the University of Michigan nominated her for the National endowment for the Humanities Dissertation Fellowship. In addition to her dissertation, her papers and presentations include ``Rumblings on the right: Black Conservative Thought and the Lincoln Review,'' which was delivered at the Graduate Student Conference held at the University of Michigan's Center for African and African-American Studies in February 1994, and ``Sports, Race and African-American Autobiography,'' which was delivered at the Midwest Modern Language Association in November 1993. Her Master's thesis at the New School for Social Research was ``The Negro Problem and the Problem with `Negro': Name Changes in the Black/African-American Community. Through her scholarship and her teaching, Dr. Angela Denise Dillard keeps alive her family tradition of activism by focusing attention on the gallant struggles African-Americans have made for jobs, justice, and opportunity.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the distinguished gentleman from North Carolina [Mr. Watt], a member of the Committee on the Judiciary. (Mr. WATT of North Carolina asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the gentleman from California [Mr. Berman], a distinguished member of the Committee on the Judiciary. (Mr. BERMAN asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, I yield the balance of my time to the gentleman from Michigan [Mr. Dingell], the dean of the House, and ask unanimous consent that he be allowed to allocate that time.

Mr. CONYERS. Mr. Speaker, I yield myself 10 seconds. Mr. Speaker, I remind the distinguished gentleman from South Carolina [Mr. Inglis] that in his hypothetical, he used up 1 of the 14 punitive damages cases that occur annually in the U.S. courts. Mr. Speaker, I yield 3 minutes to the gentleman from Michigan [Mr. Bonior], the minority whip.

Mr. CONYERS. Mr. Speaker, how much time do I have remaining?

Mr. CONYERS. Mr. Speaker, this is a continuation of the war on public safety. We have before us a conference measure which would not only cap and limit the amount of damages an injured victim can recover, but would, in instances, completely cut off our consumers' and workers' rights to seek compensation, even in uncontested cases of negligence. Mr. Speaker, this bill, the conference measure before us, in every conceivable way has been designed to disadvantage American consumers and benefit negligent corporations. The question that hangs over this discussion is why. Remember, the Conyers amendment to get tough with foreign corporations, which we voted twice, was dropped in conference, to require the foreign corporations to subject themselves to the discovery and jurisdiction in the U.S. courts as a condition of doing business in this country, just like everybody else. What is wrong with this, and why did the conference committee specifically refute the judgment of the majority of Members, Democratic and Republican, about this provision? To make matters worse, Mr. Speaker, we are considering the bill at the same time the majority leader of the House, the gentleman from Texas, Mr. Armey, is proposing to completely eliminate safety agencies like the Consumer Product Safety Commission, while simultaneously slashing and eliminating safety regulations. Why? If Members do not think that the threat of private lawsuits can help keep dangerous products off the market, which is what we hope to continue to do in our legal system, just ask the parents of children who have been killed by flammable pajamas, or the women who have been maimed by the Dalkon shield. Both these products are now off the market, thanks to the threat of punitive damages. Mr. Speaker, this bill will not reduce litigation, but will stack jury awards in favor of those with large incomes or that can afford powerful legal counsel, and it would remove the most important deterrence that stopped dangerous products from coming into our homes and communities. So the bill will not reduce litigation, Mr. Speaker, because, contrary to the myth, product liability suits represent a minute portion of litigation in the United States. Is there a law student in any school in America that is not aware that product liability suits represent less than 2 percent of the litigation carried on in the U.S. courts? Is there anybody that does not know that? This is not a partisan fact, it is not a factoid: Less than 2 percent of all the suits in the country involve product liability; and also, that product liability premiums are going down. Punitive damages is also a myth that must be addressed among lawyers and Members of Congress. There are only an average of 14 awards a year in punitive damages. Please, 14 awards a year in punitive damages. When they are awarded, they prevent against deadly dangers in the marketplace, asbestos cases, dangerous intrauterine devices. The cap of $250,000 on punitive damages is tragic. No Fortune 500 company, or some not even Fortune 500, will be deterred from placing dangerous products on the market because of a quarter of a million dollar threat of punitive damages. It will be factored into the pricing. Mr. Speaker, I think more and more of us are aware of that, and are going to oppose this measure for those reasons. Mr. Speaker, in this measure before us, a conference bill, we limit the victim's rights to recover what are known as noneconomic damages when they are joint tort feasors. So if a dangerous product induces a loss of reproductive capacity in a housewife, say, she may likely be limited in her recovery where there are joint tort feasors; but if a corporate executive of some expense is injured by the same product or a different one and loses his large salary, the bill ensures that he will be fully compensated. Mr. Speaker, I appeal to Members on the sense of fairness, this is a one-way street of Federalism: Return power to the States, as long as it disadvantages consumers and working people. Finally, do not forget about the special interest favors lurking in the bill. Gun sellers and bar owners have obtained special language limiting their potential liability for careless sales to third parties. Did Members know that was there? It is. Electricity, water, and gas utilities corporations have obtained a provision overruling liability laws in States which hold them strictly liable for utility disasters. Do Members know that is in the bill? Like ministers, Congressmen can preach through little babies' cries. It does not bother me a bit. There are other hidden favors. Mothers Against Drunk Drivers are opposed to the bill. Special interests have poured $26 million into it to see these special things occur. Mr. Speaker, this bill is of special interests, by special interests, and for special interests. The administration has indicated that it will veto it. It is going nowhere, again, so vote against this extremely damaging, discriminatory piece of legislation. The following is a more detailed description of the final conference report, outlining my concerns with the bill. Section 1. Short Title and Table of Contents Sec. 2. Findings and Purposes.--Sets forth a number of findings, most notably that our nation is experiencing a litigation explosion which harms our competitiveness. What the conference report fails to note is that the most recent study by the Bureau of Justice Statistics found that product liability cases represent a mere 1.67 percent of civil cases. And the clear trend of product liability filings as well as damages awarded has been decreasing: according to the National Association of Insurance Commissioners, product liability insurance premiums have dropped more than 28 percent between 1989 and 1994. The incidence of punitive damages in product liability cases is far rarer yet: a study by Professor Michael Rustad, termed by the U.S. Supreme Court as the ``most exhaustive study'' ever, found an average of only 14 such cases per year from 1965-1990. The conference report also fails to note that the bill will have very little effect on American competitiveness, since the total of all product liability costs represent a mere one cent per five dollar purchase (according to a comprehensive study completed by the Consumer Federation of America). The one provision in the House bill which would have helped U.S. firms compete--by making it easier for American consumers to sue negligent foreign manufacturers on the same terms as American firms-- was quietly dropped in conference, even though the Conyers Amendment on this matter passed by a bipartisan vote of 285- 166, and the House later approved a motion instructing conferees to retain the provision by a vote of 256-142. Section 101. Definitions.--The term ``product'' is defined to include (i) electricity, water and gas utilities which are ordinarily subject to a strict liability in tort, and (ii) human tissue, organs, and blood products (both categories of items which were specifically excluded from the House-passed bill). The utility provision has the effect of granting utilities in 44 States the benefit of the various damage caps and limitations in the bill. No rationale has been proffered for treating utilities in these states more beneficially than others. Sec. 102. Applicability and Preemption.--The conference report preempts product liability law in all 50 states and the District of Columbia to the extent they are inconsistent with the report. This represents one of the most significant shifts ever in power from the states to the federal government. Despite the fact that 47 states have altered their product liability laws in the last decade, states will no longer be free to promulgate laws which protect their citizens from dangerous and harmful products (although the bill generally does not preempt states from having more restrictive anti-consumer laws). The bill does not apply to limit the product liability rights of businesses suing manufacturers because it includes a ``commercial loss'' exception. In other words, the bill only applies to limit the rights of workers and individual citizens, not corporations. Sec. 103. Seller and Lessor Liability.--Provides that a seller or lessor may only be sued for breach of an express warranty, failure to exercise reasonable care, or intentional wrongdoing, unless the court determines the victim would be unable to enforce a judgment against the manufacturer in any state court. This could force victims to bring actions in out-of-state venues against outside manufacturers, rather than being able to bring suit against their instate seller who could then bring the manufacturer into the action. This section could also have the effect of eliminating a seller's common law liability for failure to warn a consumer about its unsafe characteristics and eliminate the doctrine of implied product warranties by sellers. Although this section does not apply to ``negligent entrustment'' actions, such as those relating to careless sale of liquor or guns, the provision is drafted in a manner so that such liquor and gun sellers would benefit from the other sections of the bill (e.g., relating to limits on punitive damages and joint and several liability). The definition of ``manufacturer'' is so narrowly written that the entity who assembled the product may in some instances not be included within its scope (e.g., the assembler used the preexisting design of another party). In such an event there may be no responsible party for the injured victim to sue--the seller is relieved of liability and there is no ``manufacturer.'' Sec. 104. Defense Based on Claimant's use of Alcohol or Drugs.--Alters the common law rule of contributory negligence (under which a victim's damages are limited to the extent that his or her own negligence contributed to the accident in question) by specifying that it shall be a complete defense to a product liability action if the victim was intoxicated and was more than 50% responsible for the accident. Since the section provides for no exceptions, it can result in a number of unfair results. For example manufacturers of devices designed to protect against using a product while intoxicated--such as breathalyzers now installed on some cars--would appear to be fully immunized from liability. Sec. 105. Misuse or Alteration.--Defendants may have their liability lessened by the percentage of liability attributable to any alteration or misuse of the product. This would even apply in cases where a third party (other than an employer) was responsible for the alteration. Sec. 106. Time Limitations of Liability.--Section 106(a) provides for a nationwide two-year statute of limitations, preempting longer statutes in 25 states and the District of Columbia. Section 106(b) creates a new federal ``statute of repose,'' barring any product liability action for certain goods not brought within fifteen years of the date of delivery. The statute of repose applies not only to business goods (such as machinery), but to consumer goods (such as bicycles and microwaves) having a life expectancy of three or more years. The statute of repose provision would result in many occasions where a defective product leads to harm that is totally non-compensable. The one-sided nature of the statute of repose provision is highlighted by the fact that it does not preempt state laws providing for a shorter statute of repose. Sec. 107. Alternative Dispute Resolution Procedures.-- Parties are encouraged to pursue alternative dispute resolution under applicable state law, but there are no penalties for parties who refuse to participate. Sec. 108. Punitive Damages.--Would arbitrarily limit the maximum amount of punitive damages which may be awarded to the greater of two times compensatory damages or $250,000 (although the judge would have very limited discretion to allow an increased award based on a variety of very narrow extenuating factors). Lawsuits against individuals whose net worth does not exceed $500,000 and businesses with less than 25 full-time employees would be subject to a reduced punitive damages cap equal to the lesser of $250,000 or two times compensatory damages. The bill would also limit the award of punitive damages to only those cases where the victim had established by ``clear and convincing evidence'' that the injury was the ``proximate cause'' of conduct specifically intended to cause harm manifesting a ``conscious, flagrant indifference to the rights and safety of others.'' Finally, the section would permit any party to request a separate proceeding to determine whether punitive damages should be awarded and the extent of such damages. Again, the punitive damages cap is written so it only preempts states with no punitive damage caps or higher caps, it does not preempt states with lower caps. (This could create confusion to the extent a state's cap is more lenient in some respects, and more restrictive in other respects than the federal standard.) These changes would in large part eliminate the role of punitive damages in the product liability system, thereby reducing the system's overall deterrent effect. For a civil case, these proposed evidentiary and substantive standards come close to ``criminalizing'' tort law for purposes of punitive damages: in other words, an injured victim would almost have to show that a manufacturer acted with ``criminal intent''--and not gross negligence. Moreover, the legislation creates a standard of ``conscious indifference'' which appears to be so narrow as to be mutually exclusive. Permitting parties to bifurcate proceedings concerning the award of punitive damages will lead to far more costly and time consuming proceedings, generally working to the disadvantage of harmed victims. The proposed caps largely eliminate incentives for manufacturers to remove life- threatening products from the market place, and instead allow defendants to substitute ``cost-benefit'' analyses based on the estimated value of lives. The exception for ``small businesses'' would insulate more than \2/3\ of American businesses from significant punitive damages (according to Census Bureau data), and create perverse new incentives to avoid expanding employment opportunities. The ``additur'' procedure allowing the court to increase punitive damages above the statutory cap may well be held to be an unconstitutional violation of the defendant's right to a jury trial in federal court. See Dimick v. Schiedt, 293 U.S. 474 (1935). Sec. 109. Liability for Certain Claims Related to Death.-- This incorporates provisions from the Senate bill so that the punitive damages cap does not apply to a particular action brought in Alabama. Sec. 110. Joint and Several Liability--Would supersede traditional state common law by eliminating joint and several liability for non-economic damages, such as pain and suffering. (The justification for the common law rule is that it is better that a wrongdoer who can afford to do so pay more than its share, rather than an innocent victim obtain less than full recovery; also, a defendant who pays more than its share of damages can seek contribution from the other defendants.) The provision has the effect of discriminating against groups less likely to be able to establish significant economic damages, such as women, minorities, seniors and the poor. Moreover, the elimination of joint and several liability would actually increase courts' caseloads and increase litigation costs, by discouraging settlements and requiring injured consumers to initiate multiple claims. Sec. 111. Workers Compensation Subrogation--In addition to codifying certain state laws permitting employers to seek subrogation from their employees, this provision allows a responsible manufacturer to seek contribution from a negligent employer up to the amount of workers compensation benefits paid by the employer. (The provision also provides for reimbursement of the employer's legal fees by the manufacturer if the employer is wrongfully brought into an action.) Legal aspects of workers compensation are new issues that the House has never considered or debated before. Title II--Limitation on Liability relating to Medical Implants--Suppliers of raw material and component parts used to assemble medical implants (such as breast implants) would only be liable under State law if a victim establishes the supplier failed to meet the contract requirements or specifications for the implant. The bill also specifies new rules for bringing suits against biomaterials manufacturers and sellers, provides for an expedited removal procedure for the biomaterials suits and provides for reimbursement of the defendant's legal fees if the victim's claim against it is found to be meritless. (No reimbursement mechanism is provided for the victim if the suit is successful, however.) Title III--Limits on Application; Effective Date--Specifies that federal appellate court decisions supersede other court interpretations and the Act applies to lawsuits brought after the date of enactment. Mr. Speaker, I reserve the balance of my time.

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, I yield 15 minutes to the gentleman from Michigan [Mr. Dingell], former ranking member of the Committee on Commerce, the Dean of the House, and I ask unanimous consent that he be permitted to yield time in blocks.

Mr. CONYERS. Mr. Speaker, I yield myself 30 seconds to remind my friend from Pennsylvania, Mr. Gekas, that title II of the products liability conference report would prohibit most women from recovering any damages from the supplier of silicone gel, despite evidence that the supplier misled women and many of their doctors about the safety of that product. It would also prohibit suits against suppliers of biomaterials used in the manufacture of medical implants. Mr. Speaker, I yield 2 minutes to the gentleman from Virginia [Mr. Scott], a distinguished member of the Committee on the Judiciary. Mr. SCOTT, Mr. Speaker, there is no explosion in punitive damage products cases. This chart shows the total number of civil cases that are filed, now many are products liability cases. The products liability cases get decided by trial, and then when you get down to punitive damage awards in liability cases, it is in the millions; 391 million of the cases filed are punitive damage cases involving products. Mr. Speaker, one study in 1995 of cases decided in 1992 could only find three punitive damage cases in the entire United States. This bill is not balanced. It helps corporate wrongdoings at the expense of innocent victims. One is the limitation on punitive damages. Although they are rare, they have a deterrent effect. Those pajamas that the ranking member pointed out, for 3 cents per set of pajamas, they could have made them inflammable pajamas, and yet they wanted to make that extra 3 cents for every set of pajamas. It is only the punitive damages that took them off the market. Mr. Speaker, another benefit for wrongdoers is the issue of joint and several liability. Most States allow the wrongdoers to figure out who has to pay the total damages. This bill forces the innocent victim to chase all the insolvent, out of town, and uncooperative defendants in order to get their full cooperation. Another little benefit for the corporate wrongdoers is that only overturned State laws can benefit the consumers. The State laws are free to provide additional protection for the corporate wrongdoers, but not allowed to provide any more protection for the consumers. Mr. Speaker, this hurts the consumer, it helps the corporate wrongdoers, it eliminates the deterrent effect, it benefits the wrongdoers and forces the plaintiff to chase around for the defendants, and I think we should defeat this bill and keep the State laws as they are today.

Mr. CONYERS. Mr. Speaker, I yield 1 minute and 20 seconds to the gentleman from Massachusetts [Mr. Frank], the ranking member of the Subcommittee on the Constitution of the Committee on the Judiciary.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, medical malpractice is a widespread and serious problem in our society. Studies have established that it is the third leading cause of preventable death, second only to those deaths associated with cigarette smoking and alcohol abuse. More than 1.3 million hospitalized Americans, or nearly 1 in 25, are estimated to be injured annually by medical treatment, and about 100,000 such patients, or 1 in 400, die each year as a direct result of such injuries. Unfortunately, in federalizing this state law matter, the Republican proposals would absolutely decimate the protections the states have provided for against medical malpractice and other forms of misconduct. A summary of these provisions follows: A. Statute of Limitations/Sec. 281--Prohibits victims from bringing any state health care liability action more than two years after an injury is discovered or five years after the negligent conduct that caused the injury first occurred. Such a proposed new federal statute of limitations takes no account of the fact that many injuries caused by medical malpractice or faulty drugs often take years to manifest themselves. Thus under the proposal, a patient who is negligently inflicted with HIV-infected blood and develops AIDs six years later would be forever barred from filing a medical malpractice or product liability claim. B. $250,000 Cap on Non-economic Damages/Sec. 282(a)(1)--Caps the award of non-economic damages in medical malpractice actions at $250,000. The bulk of data indicates that dollar caps do not provide significant savings. Using information derived from a 1992 GAO study, the ABA's Special Committee on Medical Professional Liability found that state tort reform proposals ``have not had any measurable impact on overall health [care] costs'' and that personal health care spending had doubled between 1982 and 1990, regardless of the type of ``reforms'' adopted. A 1986 GAO study on the impact of specific tort changes on medical malpractice claims revealed that claims and insurance costs continue to rise despite state-adopted limits on victim compensation. Even the total elimination of malpractice costs would provide only negligible savings to the health care system. According to separate reviews by the U.S. Department of Health and Human Services and CBO, the total amount of all liability premiums paid in the United States represents less than 1% of the Nation's health care costs. And factoring in the costs of so-called ``defensive medicine'' would not result in any significant additional savings to the health care system, according to both the CBO and the Congressional Office of Technology Assessment. An additional concern with caps on non-economic damages is that they could unfairly penalize those victims who suffer the most severe injury and are most in need of financial security. Although harder to scientifically measure, non-economic damages compensate victims for real losses--such as loss of sight, disfigurement, inability to bear children, incontinence, inability to feed or bathe oneself, or loss of a limb--that are not accounted for in lost wages. And non-economic damage caps have been found to have a disproportionately negative impact on women, minorities, the poor, the young, and the unemployed; since they generally have less wages, a greater proportion of their losses is non-economic. C. Joint and Several Liability/Sec. 282(a)(2)--Eliminates the state doctrine of joint and several liability for non-economic damages. This will allow wrongdoers to profit at the expense of innocent victims, rather than forcing tortfeasors to allocate liability among themselves, as has traditionally been the case under state law. And since women, minorities, and the poor generally earn less wages, such limitations on non-economic damages could have a disproportionately negative impact on these groups. D. Limits on Punitive Damages/Sec. 282(b)--Caps punitive damage awards at the greater of $250,000 or three times economic damages; limit the state law standard for the award of punitive damages to intentional or ``consciously indifferent'' conduct; allow a bifurcated proceeding to determine issues relating to punitive damages; and completely ban punitive damages in the case of drugs or other devices that have been approved by the FDA or any other drug ``generally recognized as safe and effective'' pursuant to FDA-established conditions. These proposed limitations raise a number of concerns. Arbitrary caps on punitive damages may provide unjustified windfalls to the few tortfeasors responsible for blatant and wanton medical misconduct. (In fact, studies have shown that only 265 medical malpractice punitive awards were awarded in the United States in the 30 years between 1963 and 1993.) By insulating grossly negligent conduct, the proposed new federal standard for establishing punitive damages comes close to criminalizing tort law. Permitting defendants to bifurcate proceedings concerning the award of punitive damages may well lead to far more costly and time-consuming proceedings, again working to the disadvantage of injured victims. And banning punitive damages for FDA- approved products is likely to have a disproportionate impact on women, since they make up the largest class of victims of medical products. E. Periodic Payments/Sec. 282(c)--Grants wrongdoers the option of paying damage awards in excess of $50,000 on a periodic basis. This provision would apply not only to future economic damages realized over time, such as lost wages, but to non-economic losses, like the loss of a limb, that are realized all at once. Also, in contrast to many state law periodic payment provisions, the Republican proposal does not seek to protect the victim from the risk of nonpayment resulting from future insolvency by the wrongdoer or to specify that future payments should be increased to account for inflation or to reflect changed circumstances. F. Collateral Source and Subrogation/Sec. 282(d)--In most states under the collateral source rule, a victim is able to obtain compensation for the full amount of damages incurred, and his or her health insurance provider is able to seek subrogation in respect of its own payments to the victim. This ensures that the true cost of damages lies with the wrongdoer while eliminating the possibility of double recovery by the victim. The Republican proposal would turn this system on its head by allowing tortfeasors to introduce evidence of potential collateral payments owing from the insurer to the victim. This could have the effect of shifting costs from negligent doctors to the health insurance system in general and taxpayers in particular, resulting in increased health premiums paid by workers and businesses. Another problematic feature of Republican malpractice proposals has been their one-sided, anti-victim nature. For example, their proposal allows States to enact more restrictive caps and damage limitations, but not permit the states freedom to grant victims any greater legal rights. Their proposals also ignore a number of complex legal issues. For example, in the state law context, various damage caps have been held to violate state constitutional guarantees relating to equal protection, due process, and rights of trial by jury and access to the courts; and these very same concerns are likely to be present at the federal level. And by layering a system of federal rules on top of a two-century-old system of state common law, the Republican proposals will inevitably lead to confusing conflicts, not only within the federal and state courts, but between federal and state courts. I urge opposition to these proposals which would harm victims and insulate wrongdoers from liability.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am opposed to the regulatory reform provisions of the bill for the following reasons. On process: This bill has never been considered by the Judiciary Committee or by any other committee in the House. It's stealth process--we only saw the final draft late last night--continues the Republican record of disdain for the committees and for proper democratic process. This bill was created by a secret process in the House, and will allow special interests to secretly influence regulations in the executive branch. The secret influences of the few: Under the bill, so-called Regulatory Fairness Boards and Advocacy Panels are to be established to directly influence the content of regulations and the nature of regulatory enforcement. These boards are to be made up solely of a few favored small businesses, and can include exclusively campaign contributors. Ex parte contacts in reg writing: The boards and advocacy panels will provide an avenue for private ex parte contacts with the agencies and the OIRA administrator to influence regulations and enforcement--a departure from the commonly accepted principle that the regulation writing process should be open and on the record. They provide an ex parte and secret forum for these favored businesses to complain about how statutorily mandated regulations are written and enforced. Yet another attack on the environment: While we all support the concept of regulatory flexibility--that is helping small businesses comply with a vast array of Federal regulations--this bill takes the concept to the extreme. For it allows the waiver of some of our most important environmental penalties relating to safe drinking water and clean air. If, for example, it happens to be a small business that is operating a chemical manufacturing operation or a small business that is a water supplier, laws protecting citizens from drinking water hazards like cryptosporidium or other chemical contamination could simply be waived (section 323). Our environmental safety and health is at risk from these hazards regardless of the source of the hazards. Still more litigation for the lawyers: Section 611 allows for environmental regulations that protect our air, water, food, and workplaces to be suspended or even overturned by the courts if these and other ill-defined provisions are not strictly adhered to. This judicial review is different from what the House has voted on in the past--for past regulatory flexibility bills that we've voted on allow for judicial review of the reg flex analysis only. This bill, however, could put hundreds of environmental rules at risk, and subject them to endless litigation in the courts for merely procedural reasons that are only marginally related to the fundamental issues surrounding the promulgation of the rule.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I rise to make observations about two members of the Committee on the Judiciary, and I respect all of the members on the committee. First, I have asked the gentlewoman from Colorado, Patricia Schroeder, to manage this bill, because she will long be remembered for her sensitivity and dedication on a subject that is so difficult for all of us to deal with. The other Member whose attention I would draw the membership to is the gentleman from Florida [Mr. Canady], the author of this measure. Mr. Canady is not a doctor, has never been to medical school, and has created a misnomer in the title of this bill. There is no medical term called ``partial birth abortion.'' It is not in the medical dictionary, the American College of Obstetricians and Gynecologists do not use the term and in fact, has come out very strongly against the bill. Mr. Speaker, assuming that we are not doctors, let us just talk about the law that we have a responsibility to deal with. Since the measure of the Gentleman from Florida was introduced, a Federal court in Ohio has spoken on a very similar measure and the Ohio Federal court has said very, very clearly that this procedure, the dilation and extraction, or D and X procedure, which was banned by an Ohio statute, is unconstitutional. Similarly, this bill is unconstitutional. I urge my colleagues to consider that Roe versus Wade, through the constitutional process, has protected a woman's right to choose, for over 20 years. This attempt to ban a class of medically appropriate abortions is not only very discouraging, it is unconstitutional.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I yield 10 additional seconds to the gentlewoman from Florida.

Mr. CONYERS. Mr. Speaker, I yield 30 seconds to the gentlewoman from Florida [Mrs. Meek]. (Mrs. MEEK of Florida asked and was given permission to revise and extend her remarks.)

Mr. CONYERS. Mr. Speaker, I yield 10 seconds to the gentleman from California [Mr. Farr].

Mr. CONYERS. Mr. Speaker, I yield 30 seconds to the gentlewoman from Florida [Ms. Brown].