T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Wednesday, May 3, 1995 at 2 p.m. to hold a closed business meeting.

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Airland Forces of the Committee on Armed Services be authorized to meet at 2:30 p.m. on Wednesday, May 3, 1995, in open session, to receive testimony on peace operations.

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Antitrust, Business Rights, and Competition of the Committee on the Judiciary, be authorized to hold a hearing during the session of the Senate on Wednesday, May 3, 1995, to consider ``Antitrust Issues in Telecommunications Legislation.''

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Seapower of the Committee on Armed Services be authorized to meet at 9 a.m. on Wednesday, May 3, 1995, in open session, to receive testimony on the Marine Corps modernization programs and current operations in review of the defense authorization request for fiscal year 1996 and the Future Years Defense Program.

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Transportation and Infrastructure be granted permission to meet Wednesday, May 3, at 10 a.m., to consider S. 440, a bill to designate the National Highway System.

Mr. GORTON

Mr. GORTON. Mr. President, this is merely in the nature of an announcement to confirm what I had said earlier. At approximately 5:45 I will ask for regular order at the direction of the majority leader and move to table the Thompson amendment. And I am certain there will be a rollcall on that motion. So I would urge Members who wish to speak to the Thompson amendment, or for that matter the Abraham and McConnell amendment, to do so. The majority leader is working with the Democratic leader with respect to what will happen after that time and for tomorrow. But for the attention of all Members, at approximately 5:45 there will be a vote on the Thompson amendment. Mr. President, I suggest the absence of a quorum.

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that S. 735 be star printed to reflect the following changes which I send to the desk.

Mr. GORTON

Mr. GORTON. Mr. President, I wanted to speak briefly on the Thompson amendment and will do so only relatively briefly to give him some more ammunition for his wonderful presentation on this subject. I must start my remarks by confessing that he really had me dead impact of his own amendment. I will have to confess error and then say that I believe that error strengthens my case rather than weakens it. I had said earlier during the course of this debate that the result of the passage of this amendment, giving litigants in every State two choices of different laws to enforce would simply mean, because of the restrictions included in the bill here, that all plaintiffs' lawyers would seek to bring their actions in the State courts in order to avoid the restrictions on punitive damages and on joint liability. And the Senator from Tennessee quite properly pointed out that there are a number of instances in which this bill, the Rockefeller-Gorton bill, treats plaintiffs' claimants more liberally than do the laws of various States. He took the statute of repose, which is 20 years in this bill, 10 to 12 years in most States that have a statute of repose--obviously, if the cause of action was based on a piece of machinery or a product that was 15 years old, the choice would be to go into Federal court and get the advantage of that more liberal provision. He even spoke about my own State, which does not allow punitive damages and, therefore, would impel the plaintiff to go into Federal court if the plaintiff wished punitive damages rather than into the State court. He is correct. There are certainly some cases in which the claimant would have a better climate in which to bring such an action in Federal Court than in State court. But, Mr. President, one of the great vices of the present system, one of the vices that this bill--to focus on product liability for the moment--is designed to deal with is the myriad of 50 different sets of laws and procedures in the courts of 50 States. The justification, as the Senator from Tennessee pointed out himself, for any legislation in the field of product liability is the interstate commerce clause and the desire to smooth commerce among the several States, to have a degree of predictability. This bill does not attempt to do what bills a decade ago in this field did, and that is to define negligence and strict liability and deal with a number of other matters of substantive law. It calls for limitations only in the field of a statute of repose and joint liability and punitive damages and allows more restrictive regimes in the various States to remain enforced. But, certainly, as compared with the present status of the law, there will be a greater degree of predictability and a greater degree of uniformity. As the Senator from Tennessee so eloquently pointed out, if his amendment passes and should become law, instead of having 50 different systems in 50 different States, we would have 100 systems in 50 different States. We would double the complexity of the present system, because he is right--while I am right that in most States most plaintiffs would seek out the State court and attempt to avoid this law, under some circumstances in some States they would seek the Federal court in order to avoid the greater restrictions of State law. Not only would we not increase predictability and uniformity, we would double the degree of complexity. And there would be far more gaming of the system. I think that every small business in the United States should greatly fear the Thompson amendment, because now at least if the defendant is large and obviously capable of paying a large judgment, many plaintiffs will only sue the manufacturer of a particular product. That manufacturer will be from a different State than the plaintiff, a case which under most circumstances could be brought in Federal court. But if the plaintiff of the future does not want to be in Federal court, we can bet their sweet life if this is a piece of equipment, a stepladder, the subject of lawsuits, the Ace Hardware Store in the hometown of the plaintiff will end up being a defendant. There will be a lot more small business defendants in product liability litigation in the future if this amendment passes than there are now, because that will be the way to avoid diversity of citizenship and bring the action in State court when the State law is more favorable. There will be more defendants, Mr. President. There will be twice as many applicable laws--two in every State in the United States rather than one. And there will be less uniformity and less predictability. Now, Mr. President, it seems difficult for me to imagine any person thinking seriously about the practice of law and uniformity who really wants to overturn the doctrine in Erie Railroad versus Tompkins, in 1938, in which the Supreme Court said: ``We are going to end this forum shopping. We will say it does not matter whether a person brings the diverse action in State or Federal court; the same law is going to apply.'' This amendment would reverse that doctrine, would double the number of applicable laws in the United States, and increase infinitely the degree of forum shopping on the part of claimants' lawyers.

Mr. GORTON. I think the Senator from Washington has the floor.

Mr. GORTON. Then I will be relatively short.

Mr. GORTON. Has a rollcall been ordered? Madam President, I ask for the yeas and nays.

Mr. GORTON. What is the pending business, Madam President?

Mr. GORTON. Madam President, I move to table the Dorgan amendment and ask for the yeas and nays.

Mr. GORTON. Madam President, I move to reconsider the vote.

Mr. GORTON. Madam President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Energy Committee be discharged from further consideration of S. 103.

Mr. GORTON. I ask unanimous consent that the Senate proceed to its immediate consideration; that the bill be deemed read a third time and passed; the motion to reconsider be laid upon the table; and, that any statements relating to the bill be placed at the appropriate place in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Senate Resolution 114, submitted earlier today by Senator Hatch.

Mr. GORTON

Mr. GORTON. For the information of all Senators, there will be a series of stacked votes beginning at 12:15 tomorrow on or in relation to several amendments that were offered during today's session. Also, there will be at least one cloture vote on the Gorton substitute occurring at the end of the stacked sequence. In addition, under rule XXII, second-degree amendments must be filed at the desk 1 hour prior to the cloture vote.

Mr. GORTON

Mr. GORTON. If there is no further business to come before the Senate, following the remarks of the distinguished Democratic leader, Senator Daschle, I ask unanimous consent the Senate stand in recess under the previous order.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in recess until the hour of 9:30 a.m., Thursday, May 4, 1995; that following the prayer, the Journal of proceedings be deemed approved to date, the time for the two leaders be reserved for their use later in the day, and that there then be a period for the transaction of morning business not to extend beyond the hour of 11:30 a.m., with Senators permitted to speak for up to 5 minutes each except for the following: Senator Thomas, 30 minutes; Senator Bradley, 15 minutes; Senator Daschle or his designee, 30 minutes; Senator Lautenberg, 10 minutes; Senator Faircloth, 5 minutes; and Senator Kerrey, 15 minutes. I further ask unanimous consent that at the hour of 11:30, the Senate resume consideration of H.R. 956, the product liability bill.