Fritz Hollings

Mr. HOLLINGS

Mr. HOLLINGS. Reserving the right to object. That is a modification to the Senator's amendment?

Mr. HOLLINGS. The distinguished Senator from Washington and I had a discussion about another amendment. I am sitting around making sure that unanimous consent is not given for that amendment.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, the Senator from Alabama is right on target. I remember my children years ago used to listen to a little Saturday morning radio show, ``Big John and Sparky,'' and they had little squeaky Sparky with the voice: All the way through your life, Make this your goal, Keep your eye on the doughnut, And not on the hole. Keeping our eyes on the doughnut and trying to avoid falling into holes that these folks have on course, all we need do is go to the contract, the contract and what is really intended. The theme of the contract is that Government is not the solution; Government is the problem. The Government is the enemy. Abolish the Department of Education; abolish the Department of Commerce; abolish the Department of Housing and Urban Development; abolish the Department of Energy; get rid of public TV; get rid of private TV; abolish the Federal Communications Commission; abolish the Endowment for the Arts on the one hand, the Environmental Protection Agency on the other hand. And then, as concerns fundamental rights, we come to trial by jury. This is none other than an assault on the seventh amendment, the fundamental right given under our Government for a jury of your peers. I could quote Patrick Henry, James Madison, Thomas Jefferson. We could go right on down the line, up to Chief Justice Rehnquist --and we will have time to do that--very, very interesting observations, right up to date. But you can see it in that contract, the English rule. Now, you have to watch them closely to get the eye on the doughnut. It is not in there--tort reform--but it is over in H.R. 988, a separate bill. In that separate bill, yes, they have the English rule on the one hand, and interestingly, Mr. President, they sneaked in what the Senator from West Virginia said. Now we do not have that in our bill this year; that is, the settlement process whereby if you are offered a settlement and decline, and you get a verdict of less than that settlement, you have to pay the attorney's fees on the other side. That is the English rule of intimidation, and they have it in this separate bill. You can bet your boots they will get it in the conference. Yes, they constantly are reminding us that we lost. You are right. Tom Foley is not over there; Newt Gingrich is over there. I have seen him whip these young Congressmen from my own State into line. It was said conscientiously we did not have the money for a tax cut. We did not have it; no. They are opposed to a tax cut because we just did not have it. What we needed to do was pay the bill--on and on. But we are now in the bottom nine game. You either come out for practice or you do not play on the team. Speaker Gingrich is a hard taskmaster. You can bet your boots when this bill or any bill gets there, it needs little fixes at the end before cloture votes. Essentially, they are that; just momentary fixes to get just a title or anything that would relate to it over to the House side, for they know what they can get by an overwhelming Gingrich vote over there, and bring it back where the poor majority leader has to mimic because he is all wound up in a Presidential race. I know the distinguished Senator from Kansas does not want to do away with punitive damages in all civil cases. But anything you can do, I can do better. So you do one. So I up the ante and go to all civil cases. We will find out who is for who, and who ought to be the Republican nominee, and we will just out-Republican each other. And you have all kinds of mischief afoot if you do not keep your eye on the doughnut and watch it very, very closely. They never would apply this to the manufacturers. I just allude here to one case because they keep talking about punitive damages. It is the case of TXO Production Corp. verses Reliance Resources, decided just 2 years ago by whom? The U.S. Supreme Court, on punitive damages. What were the actual damages? They were $19,000. What were the punitive damages? They [[Page S6253]] were $10 million. You get all of this anecdotal nonsense. They come out in individual injury cases like it is so outrageous, that the poor lady who was burned with the McDonald's coffee was just outrageous, not this kind of percentage. They go to 1,000 percent. This is way more than that $19,000 actual, $10 million punitive, the most recent case on punitive damages before the U.S. Supreme Court in a civil action. So there it is. They do not believe in it because they will not apply that to themselves. They have the unmitigated gall to come around saying they represent the consumers, but they will not let it apply to the manufacturers. Come on. Come on. Do not give me that this bill is for consumers, and the consumer and the injured party are not getting enough money. Do not come with respect to the trial lawyers that bought the crowd. Come on. Everybody is in the contribution business. I would like to get some more from the trial lawyers. I would like to get more from the chamber of commerce. You do not think that the chamber of commerce, the National Association of Manufacturers, the Conference Board, the Business Round Table, and the National Federation of Independent Businesses, yes, they have PAC's. And they give away more money. But you cannot find it quoted in the newspaper. They not only give more in contributions but they have a better currency. They have organized PAC's and organized focus. I see them in my elections. They come to you, and they say, ``How about it, now? We want you to help us on this bill.'' I am getting the letters. I am getting the calls now. The people in a position of objecting to this heinous measure here, the Consumer Federation of America, the leading one, they do not have a PAC. They do not give you a nickel. Do you think you get calls at election time? The NFIB and the small business people out there are calling, the chamber of commerce is calling, big boys from the Business Round Table and the National Association of Manufacturers in my State are calling. The Consumer Federation of America does not have a PAC. Public Citizen does not have a PAC. The Association of State Legislatures does not have a PAC. The Association of State Supreme Court Justices does not have a PAC. The Attorneys General of the United States does not have a PAC. The American Bar Association does not have a PAC. Let us clear the air here and find out who is who, and who is supporting who. This insulting reference that this bill ought to just whip right on through, they do not believe in it themselves, or their own manufacturers that they represent. They do not believe it by way of contractors, because the contractors are sending everything back to the people. This bill is to take it away, take it away from the people; bring it to the Washington bureaucrats on the one hand, and take away the rights of trial by jury on the other. You do not just outright abolish the seventh amendment. You nibble at it. You nibble at it. You just erode it like a rat just gnawing at it gradually. Yes, get rid of punitive damages. Get rid of joint and several liability. Limit the evidence that goes in. Get a bifurcated--a divided--proof of actual and proof of punitive. Go right on down the list. Give them the English rule. Well, that is not 170 years ago. I had this quote from none other than the British National Council for Civil Liberties, what they had to say about the systematic erosion of the English jury system between 1967 and 1978: The jury system has been badly undermined in recent years. The prosecution in criminal cases, otherwise than civil cases, need no longer convince 12 jurors. They can convict on the views of only 10. They state that to come in now, to allow a check on the jurors' backgrounds, while the defense is not even allowed to know his occupation, the prosecution can secretly bet your all for their political loyalty, yet the defense is not even allowed to ask jurors questions in open court. The principle of randomness has been used to cut down defense challenges but leave prosecution challenges unlimited. A large percentage of the criminal work has been removed from the jury to the magistrates court. And on the civil side, we find that less than 2 percent of the civil cases are tried before a jury. I had a lawyer friend that went to the American Bar Association seminars and interviewed the prospective jurors at random. He kept going through, trying to find any that would serve. He could not find anybody in London. He went on up to Scotland. They just did not serve on juries. You have to be a member of the elite. So do not come and give me the English rule. I know about the unstudied mind of the ideas of the Magna Carta, King John at Runnymede. I remember, I say to the Senator, when we went over on one of these tourist trips to London. They got on the bus one afternoon and stopped at Runnymede, and my friend is as talkative as I am. He said, ``Now, what happened here?'' The bus driver called back and said, ``King John, the signing of the Magna Carta.'' And he said, ``Well, when was that?'' The driver shouted back, ``1215.'' He looked at his watch. He said, ``Florence, damn it, you are 2 hours late again. We are behind time.'' That is about how much this crowd knows about Runnymede and the Magna Carta. They do not know about the English system. They do not know it is totally eroded. The fundamental right of trial by jury here is being assaulted. Let us look at that so-called English rule that they have on another bill that they hope to put in in conference. I will never forget one case I had before I got elected to the Senate. In fact, it was settled after I got out of the law practice and in the Senate. My law partner and I were the only two who tried the case. There was a firm of 12 lawyers in Charleston. There was a firm of 17 lawyers in Columbia. There were some from New York that came in. They had 20-some lawyers. They had to get three tables. And just he and I had an injured party and we were trying the case. I think back to the fact that particular case never even received an offer of any kind of settlement until it went out to the jury, never a red cent of offer. It was one of the most injurious cases--injuries, clear-cut proof--that I had ever been engaged in. I never could understand why they would not make us an offer. But you have these insurance company lawyers who will say, ``We don't settle cases.'' They think that is macho and everything else. Translated, we factor it in the cost of litigation. So we have no idea of settling. So what happens? You intimidate the injured party. Look at a case we had last year in the district court under Judge Ross Anderson with General Motors. General Motors was represented by four of the biggest law firms. They had a grand total from those firms of 1,000 lawyers. Present in the courtroom representing General Motors was the former Attorney General Griffin Bell, the former Attorney General William Barr, the former Solicitor General, Kenneth Starr--you can go down the list--some of the most well known attorneys that you will ever find. They have to be paid $400 to $500 an hour. You would think that the plaintiff in that case would not bring the case when they have General Motors and all of those lawyers and everything else and have to run the risk of not prevailing and getting all 12 jurors. They talk about consumers and everything else. They are trying inch by inch, yard by yard to get rid of the trial by jury. It has happened in England and they would like to have it happen right now in the United States of America. That cannot be emphasized too much as it now concerns what we have before us because we have to look at the doughnut and not the hole. We look at all these little ramifications. They will put in any and every kind of amendment that you can possibly think of just to fix this vote or fix that vote or change the vote we had last week, knowing all along that they have kept their word and the amendment is clear. Then when they get on the other side, they will be telling the truth again when they say, ``Well, you know, Speaker Gingrich took over and this is his bill, and that is all we could get the House Members to vote for and that is what we got in the conference report.'' And then you really have all of this thing piled on you. That is why some of us in this Chamber struggle so because we can see exactly what is occurring. Everything that was reprehensible in these previous bills by the distinguished Senator from West Virginia, in [[Page S6254]] the House bills, and considered in separate bills over there and everything else of that kind, is being and is going to be reinserted. And so when they get to conference, just like this bill started as a product liability measure; it soon became a malpractice, a medical malpractice measure. And just as soon as it became a medical malpractice measure, the next thing you look around it was all civil cases that it would apply to. And that is exactly how the conference would go if we did exactly as they wish, and that is let us get this little change here and that little change there, and we will all be happy. We all have been working hard. We have been on this for several years. And the plea is to what you committed. Laws are really passed at campaign time. Too often it is that these eminent organizations come-- the National Federation of Independent Businesses--for one thing only, your vote on their bill. Necessarily you want their support. In fact, they give you a little award, a little statue, and that is the NFIB award. And it is the treasure board award that you get from that small business group. They have thousands of mailouts. I can tell you, trial lawyers do not have any thousands of mailouts. The others, as well, including consumer organizations, do not mail out anything. They just do not have any PAC's at the supreme courts of the 50 States. The American Bar Association, which opposes this measure, does not have any PAC. They do not have political mailouts. But the NFIB mails out; the chamber of commerce has its meetings as well as the mailouts. The National Association of Manufacturers is strong in my State. They come around, and they have not only mailouts but special manufacturers come around and meet with you and everything else of that kind. So if you are not studied as to the individual rights of injured parties, you may not realize how horrendous this legislation is, and the detrimental impact it will have on our Nation's civil justice system. What's worse is that it is based on a total distorted record. They lament and lament about punitive damages. However, according to the hearing record, the amount of all of product liability punitive damage awards in the last 30 years adds up to only a fraction of the $3 billion Pennzoil versus Texaco verdict, or the $3 billion verdict in the Exxon Valdez case. Are they really concerned about consumers? Are they really concerned about the injured parties? Mr. President, of all civil filings, torts represent 9 percent, and of those tort filings only 4 percent of the 9 percent, are product liability cases--.38--thirty-eight one-hundredths--percent. And this thing has taken 2 weeks now. To do what? To take it away from the States that have had jurisdiction for 230 years, the English law and everything else of that kind, or the regular statutes, the regular burdens of proof, the greater weight of the preponderance of evidence, all 12 jurors have to find it and on appeal and everything, injured party on a contingent basis. It has worked. The States themselves over the past 15 years have reformed their laws, and there is no question in my mind that they are handling it and handling it well. My judges tell me so, particularly my Republican judges that we have confirmed that I am proud of because I voted for their confirmation. But I wanted to make absolutely sure that we did not have that problem. I am assured of it. But they are trying now to get their foot in the door, and the ultimate goal is to restrict, if not totally eliminate, as they have in England, trial by jury. I yield the floor.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I move to reconsider the vote.

Mr. HOLLINGS

Mr. HOLLINGS. We have no objection.

Mr. HOLLINGS. Senator Thurmond.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I have discussed this with the leadership. I would have to object.

Mr. HOLLINGS

Mr. HOLLINGS. Ten minutes.

Mr. HOLLINGS. Is the Senator from South Carolina the majority or the minority? We have not clarified that. The time was supposed to be equally divided, and we have not said a word on this side.

Mr. HOLLINGS. I don't know if I need 5 minutes: I am being persuaded by my colleagues they have heard enough from me.

Mr. HOLLINGS. I will take 2 minutes. Mr. President, right to the point. We assume that the contention of the sponsors of this bill is that we need tort reform. This contention, however, has been totally contradicted by the data that have been collected on the product liability system. I will go right to the heart of the matter. Of all civil claims filed in the United States of America, 9 percent represent tort claims; and of all the tort claims filed, 4 percent of that 9 percent represent product liability, the subject matter at hand. If they really want to talk reform, they would obviously go to automobile accidents and many other tort cases, which represent the overwhelming majority of tort cases filed, not product liability. That refutes that particular contention. They contend, ``Well, wait a minute, there is a litigation explosion.'' That was refuted at all the hearings, and studies by the Rand Corp., the General Accounting Office, and Prof. Marc Galanter of the University of Wisconsin. What these studies have shown is that the fact of the matter is that product liability claims now are in a diminishing scale. That is why they say at the State's level, ``Look, we do not have a problem. We oppose this measure.'' Both the Association of State Legislatures, and the Association of State Supreme Court Justices are on record as opposing this bill. The American Bar Association, the Association of State Supreme Court Justices, the State attorneys general, everybody connected with the law on this particular score comes, testifies, and opposes this measure for the simple reason, No. 1, they do not really find a crisis, or cause for Federal action. And in the context of eliminating duplicity and confusion, the proponents of this bill will actually add to the confusion, add to the complexity, by enunciating rules of guidelines at the Federal level, to be interpreted and administered by the 50 States in accordance with their own law. However, their refusal to establish a Federal cause of action is evidence that they do not believe in their own bill. This bill, in fact, is a manufacturers bill--but they exempt themselves. I see the Chair now is limiting my time. It just goes against any kind of sound procedure. If everybody is in step, Senator, with the contract, this is exactly opposed to the contract. The contract says that They keep quoting Jefferson around here, and instead of block grants like they have for crime and block grants for welfare back to the States, block grants for housing back to the States, here they want to take the authority, the 200-some-year authority from the States and relegate it to the Federal bureaucrats. I am finally getting in step with the contract. I thank the Chair.

Mr. HOLLINGS. We will work it out. We have regular order at 2 o'clock--another vote.

Mr. HOLLINGS. Will the Senator yield? We will have our time? I know the majority leader is talking on leader's time.

Mr. HOLLINGS. Mr. President, what is the parliamentary situation now? How much time is on either side?

Mr. HOLLINGS. Are we talking about those for and against the bill? Are we deemed the minority side? I think by the recent vote we would be the majority side. I'll be glad to yield to the majority leader. I just wanted to have time.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I move to reconsider the vote by which the motion was rejected.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, before I have to leave to attend a budget meeting, I would like to try and expose the fraud in statements from Members on the other side of the aisle claiming that the President is unwilling to lead and that, much to their surprise, they just discovered that the Medicare trust fund is going broke. The truth of the matter is that they have been telling us for a while now that action by the President was not even necessary. I wish I could take us back to December 18 after the glorious Republican victory in November when Mr. Kasich and others were on the TV saying, We're not going to wait on any budgets. We have three budgets. In fact, we are going to take one of them and have them first and we're going to have the budget cuts before we get to tax cuts. I want the people to go back. For months they totally ignored the President and saying that his proposals were irrelevant, that they had their own plan, their own revolution, and were going to present their own budget. Having been a former chairman of the Budget Committee, that excited me. In January, I submitted a plan for the Record that showed how to put our Government back in the black by 2002. But then having gone back on their promise to give us a budget in January, they said, ``We're going to put the spending cuts in the bank before giving any tax cuts.'' Then, we had the circus out on the lawn, as the House passed the tax cuts. We are back to the days of Rome under Kasich, Gingrich, and that crowd. They went back home, had celebrations, waved flags, and everything else of that sort. But then, they came back to Washington and said, ``Whoops, we just found out that Medicare's going broke.'' As a result, we have Medicare hearings coming out of our ears. The Budget Committee has not given us the budget. They will not mark one up even though by law they are required to report out a budget by April 1. While we wait for the markup, they are having Medicare hearings all over the Hill. Mr. President, let me get right to the point and refer to the report of the board of trustees of the Federal Hospital Insurance Trust Fund last year, dated April 11, 1994, and addressed to Speaker Foley and Vice President Gore: Gentlemen: We have the honor of transmitting to you the 1994 annual report of the Federal Hospital Insurance Trust Fund. On page 2, it says: The trust fund ratio defined as a ratio of assets at the beginning of the year to disbursements during the year was 131 percent in 1993, and then under the intermediate assumptions is projected to decline steadily until the fund is completely exhausted in 2001. Under the low-cost assumptions, the trust fund ratio is projected to decline until the fund is completely exhausted in 2004. Under the high-cost assumptions, the trust fund ratio is projected to decrease rapidly until the fund is exhausted in the year 2000. These projections clearly demonstrate that the hospital insurance program is severely out of financial balance, using a range of plausible economic and demographic assumptions. Now, that makes it pretty clear. Why didn't the Contract With America face up to that point? They knew about it, but did not want to face up to it. Moreover, they rebuffed the President's attempts to address the problem. Let us remember that the President of the United States did not cause any kind of deficit in Medicare. He was down in Little Rock; if it was caused, it was caused by me and other Members of Congress, but certainly you cannot attribute it to him. Still, when he offered his proposal, we could not get any cooperation whatsoever from Republicans. I can say that categorically because when we finally got a $56 billion Medicare cut adopted, it was without a single Republican vote in the House of Representatives or in the U.S. Senate. In addition, we took $25 billion from the wealthiest Social Security recipients, and put the money into the HI trust fund. What does the Contract With America call for? It says repeal the Social Security tax increase of last year and thus hasten the insolvency of the HI trust fund. We ought to cut out this nonsense and tell them to give us a budget. I yield the floor, and I suggest the absence of a quorum.

Mr. HOLLINGS

Mr. HOLLINGS. No. What is particularly disturbing, in the accelerated hearings--I say accelerated--actual markup took place, when and even before, unbeknownst, I would say, to most members of the committee they added on the matter of rental cars, they added on the matter of component parts, and a lot of other things. And it has been like a sheep dog with the taste of blood, gobble up anything. Anything you can think of, put it on. We have had no hearings on any of this.

Mr. HOLLINGS. Madam President, once again, we are back now to the joint and several question with the Abraham amendment. I remember a few years ago this issue of competitiveness in Europe, for example, that they did not have this and we pointed out at that particular time, and I read again article V of the Directive of the Official Journal of the European Community: Where, as a result of the provisions of this directive, two or more persons are liable for the same damage, they shall be liable jointly and severally, without prejudice to the provisions of national law concerning the rights of contribution or recourse. So if they get on to the matter of competitiveness, I wanted to answer that in the first question, because the trend for joint and several without competitors is just that. The United States gives overwhelmingly predominant treatment--and in fact they call it fair treatment with respect to economic loss. Let us not misunderstand here. They characterize in the majority report what is fair. They use that word--and you can use--in the majority language of the report of the committee. Section 109 introduces fairness and uniformity to the law concerning joint and several liability and product liability actions by adopting the California rule, which holds that defendants are responsible only for their fair share of a claimant's subjective nonmonetary losses, including pain and suffering awards. Well, is that fair? It was on an initiative, Madam President-- proposition 51. That State of California is as goofy as it can come. They had, I remember, proposition 13 on property tax and wrecked the State. They can sell anything out there, mostly. They get a lot of money and a lot of advertising and a lot of TV and get a temper up and everything else like that. So they are ruining a magnificent school system. You could not get a license to build down in the capital, in Pasadena and Sacramento. I remember many instances, from friends out there, that it never has been the same since. They removed property tax support for general government and rolled it back, and now they have gone to an 8 percent sales tax and they have gone to a special gas tax for highways and everything else, and they have been struggling ever since with multibillion dollar deficits. They call it fair, the California rule. It is not the usual rule in the several States of America. It is the unusual rule, in this Senator's opinion, the unfair one. Why did we say that it is unfair? We go right to the idea as to economic loss. It should be joint and several. Now, that is a hypothesis; that is the premise of the amendment of the distinguished Senator from Michigan. He agrees that is sound. In fact, the majority of the committee agrees that is sound. In fact, the major sponsors, the Senators from West Virginia and Washington, the principal sponsors here of product liability, all agree that joint and several is sound and fair. But only for economic damages. What they are really doing is savaging the women and family population, savaging the women and family population of our country. That crowd that came to town with the family bill got a contract, and they are going to build a family. The majority of women, thank heavens, are the builders of the family, producing the family, caring for the family, and all without a salary--noneconomic loss, all with no compensation, so no compensatory situation. The family. Everybody I know down in my backyard, they have the big movement, the religious right and everything else. But they all say, ``I am for the family, the family, the family.'' But I can tell you here and now that they are gutting the family. Let us see what Professor Finley said with respect to the distinctions between economic loss and noneconomic loss damages harming women: Provisions that make distinctions between economic loss and noneconomic loss, favoring the former and disfavoring the latter, disadvantage women for several reasons. Noneconomic loss damages, which include compensation for loss of reproductive capacity, impairment of sexual function, harm to dignity and self-esteem, and emotional or psychic harm, are crucial category of damages for women, because many injuries that primarily or especially affect women are compensated largely, if at all, through noneconomic loss damages. For example, reproductive harm, including pregnancy loss, or noneconomic loss damages, because the greatest impact of these sorts of injuries is not on the ability to earn a paycheck, but rather on the ability to be a whole, fully functional female. Sexual harassment, sexual assault, sexual improprieties by health care providers are also examples of injuries that have profound impacts but are compensated primarily through noneconomic loss damages. Noneconomic loss damages are especially crucial to women in the area of drugs and medical devices. Unfortunately, far too many of the modern health and product liability disasters in the drug and device area involve products designed to be used in women's bodies, usually in connection with reproduction or sexuality: The anti-nausea drug thalidomide, which produced horrifying birth defects; the ineffective anti-miscarriage drug DES, which causes cervical cancer and infertility; the Dalkon Shield and Copper-7 IUDs, which caused sometimes fatal or sterilizing pelvic inflammatory disease and uterine perforations; silicone breast implants, which can cause debilitating autoimmune diseases and permanent disfigurement; the acne treatment drug Accutane, which if taken during the early stages of pregnancy causes serious birth defects; the drug Ritodine, which is prescribed to prevent premature labor, but has proven fatal to some women; the contraceptive Norplant, which is turning out to have serious side effects and to require expensive and dangerous invasive surgery to remove. The greatest extent of injuries caused by these products is to reproductive capacity, to the ability to bear a whole and healthy child, to intimacy and normal sexual functioning, to self esteem and dignity--all aspects of injury which are compensated by noneconomic loss damages. Studies also demonstrate that the prospect of liability can be a factor to encourage drug companies to more adequately include women in clinical trials of drugs and to perform more extensive testing of drugs and devices to be used in women's bodies. If you go with this Abraham amendment, I can tell you here and now, you have cut off clinical trials of women in this drug field, because there is no loss there. They have written that off now as a care in this society--the family crowd that has come to town wanting a family bill, a family tax cut, and a family this and that, and they want to savage the family here with this joint and several prohibition, or noneconomic damages. Going further with Professor Finley--and to make it absolutely clear, she is an outstanding professor. Lucinda M. Finley is her complete name. She says: Noneconomic loss damages are also of particular importance to women because a growing body of empirical research demonstrates that women recover far less than men for economic loss damages, and it is primarily thanks to the noneconomic loss category that women's tort recoveries move closer to the average for men. Women recover less under the economic loss category because on the whole they earn less than men; because their household labor, while recognized, is valued very low; because economic loss damages are often calculated using tables that presume that women earn less and will stop work earlier; and because so many injuries that happen to women have low economic loss value and injure primarily in noneconomic ways. These inequities in economic loss damages are also true for other social groups that earn little or less on average than white men: The elderly and retired, blacks, and Hispanics. Noneconomic loss damages can also make the tort recoveries of these economically less well off social groups more commensurate with what white men receive for similar injuries. Indeed, the nonpecuniary loss aspects of damages may be even more crucial for the elderly person or for the poorly paid minority clerical or domestic worker, because they are less likely than high wage earners to have disability and health insurance, a pension plan, or investments that can provide a security net in the event of catastrophic injury. For all these reasons, full recognition of noneconomic loss damages is of fundamental importance to ensuring that the tort system provides adequate compensation to women for reproductive and sexual harm, and to the elderly and lower paid or impoverished members of society. Madam President, I think it is clear cut. I could go on. There is no question in my mind what the intent here is. Again, the manufacturers bill is not for consumers. We have to have Senators on the floor saying, ``Oh, I am worried about the consumers.'' The manufacturers bill, again, limits their liability and limits their cost so they can make more money and safety can decline in the United States. What do we do when we provide for that several proof in noneconomic loss and the degree thereof? I read again from Professor Finley: Joint liability does not mean that part of the injury was caused by the independent actions of one defendant, while another part of the indivisible injury was caused by another defendant's actions. In many product cases, the injuries are an indivisible whole, and cannot meaningfully be parceled out in this way. For example, when a defective IUD causes an infection that renders a woman permanently infertile, one cannot meaningfully ascertain that the manufacturer's failure to test the tail string caused half the infertility, while the failure of the manufacturer of the copper or string filament to test its effects when introduced into the uterus caused the other half of the infection. Now, here is an initiative to simplify the uniformity for less bureaucracy, causing what? If they want to know why there are so many lawyers, I can say now, having tried cases, that is going to put another 2 days of trial on my case, and we will spend more time and there will be more dispute and there will be more bureaucracy and there will be more cost. That is all in the name of, really, punishing the poor, the minority, the women in our society, particularly family members. I think it ought to be rejected out of hand. They do not reject it. They adopt it with the word ``fair'' for economic loss. It is not 1 percent in economic loss who has only 1 percent contributing, we will say, to the wrongful act or injury and the other 99 percent having gone bankrupt, and I only had 1 percent contribution to the particular verdict and finding of that jury. Yes, if it is only 1 percent for economic, then let the 1 percent pay the 100 percent. Let the 1 percent pay the 100 percent. They adopt that with the word ``fair.'' They think that is fair, joint and several, for that. That is fair. When it comes to the injuries for the women in our society, the aged in our society, the minorities in our society, the nonbreadwinners in our society, if they cannot prove economic loss, then what do they do? They list it out. They want to make absolutely sure in that particular amendment--if I could find my copy of that Abraham amendment, they talk and they decide exactly what they do not want to pay for. They find, yes, joint and several for everything else, but the term ``noneconomic damages'' means ``subjective, nonmonetary loss resulting from harm, including pain, including suffering, including inconvenience, including mental suffering, emotional distress, loss to society and companionship, loss of consortium, injury to reputation, and humiliation.'' Throw all of that out under this amendment. Forget it. We will not be able to prove the several. And we have to start proving that while, at the same time, there has been proof by the greater weight of the preponderance of evidence that there has been wrongdoing and that there has been injury and the burden now is the injured party is to be injured further with the Abraham amendment. They are really putting the burden on here, and they come in the same breath and say, ``We are interested in the injured parties--namely, consumers.'' Now, if anybody believes that, well, I see we are getting around the time when we can vote and others want to speak, but I hope that Members will study this amendment very, very carefully and understand that it is not the California rule, like something is wonderful. I run in the other direction when I hear about the California rule. If a person wants some liberal things happening and everything else of that kind, go to the State of California. I have many, many friends out there and they have a big time, but to bring this into rule of the United States of America and to reverse the majority State laws in our Nation and not to reverse it on joint and several for economic loss, which they term ``fair'' and sound but only for noneconomic loss, these particular people in our society, particularly families and those who produce and build the families and say that they are for families, they are caught off base on this. I hope they vote against their own amendment. Amendment No. 681 to Amendment No. 596 (Purpose: To make improvements concerning alternative dispute resolution)

Mr. HOLLINGS. Madam President, I wanted to send an amendment to desk to get in line here. I ask unanimous consent to temporarily lay aside the pending amendment.

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

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

Mr. HOLLINGS. Mr. President, I am afraid the distinguished Senator and myself are probably running them off the floor. Mr. President, I have submitted an amendment which is presently at the desk. I understand from the managers of the bill that the intent now is to hear about these amendments this evening, and then in the morning, and it is up to the majority and minority leaders. As they have told me about it thus far, perhaps around 12:15, we would start voting on three amendments: The amendment of the distinguished Senator from Michigan, Senator Abraham; I think it is a second-degree amendment by the distinguished Senator from Arizona, Senator Kyl; and my amendment. With respect to my amendment, entitled Product Liability Insurance Reporting, it struck me at the time of the hearing, the official on behalf of the Government appeared, said that the National Governors' Association policies makes three major points about product liability. The first urges Congress to adopt a uniform product liability code; second, the Congress to assess and if necessary enhancing Federal consumer protection and product safety standards; third, calls for more effective oversight of the insurance industry. There is absolutely none. In fact, the attempts over the years to try to determine anything at all about casualty carriers, their costs, their rates, their losses, the availability of insurance and otherwise, has been a tremendous problem at the Federal level because we have left it generally to the States. Back 9 years ago in the hearings we were having at that time--because we only had cursory hearings on the bill this time--when we were having hearings in depth, it was a matter of unanimity out of our committee when Senators from Kentucky and West Virginia got together reaching a significant agreement. Rockefeller, the primary cosponsor with Senator Gorton of Washington of this particular bill that we now have before the Senate: The Senator from Kentucky and I have reached a significant agreement which I think achieves a significant goal in an eminently sensible manner. The amendment is before you and ensures for the first time that the Secretary of Commerce will collect--not ``may collect'' but ``will collect''-- comprehensive product liability insurance data which will be useful to us as policy makers at the Federal and State levels. The amendment in effect makes it possible that should this issue be revisited, Congress will in fact have the facts before us. Okay. So what is in the amendment? The amendment would require the Secretary of Commerce to report comprehensive information annually to the Congress on the effect of this product liability tort reform bill, should it pass, on those insurers, noninsurers, reinsurers, self- insurers, risk retention folks, who issue product liability insurance. Now the Secretary of Commerce will collect data from these folks, and he can collect data from existing insurance statistical agencies. In other words, the bureaucracy factor is minimized, Mr. Chairman, because he can collect it from those who already produce it. However, a key component of my agreement with the distinguished Senator from Kentucky provides that the committee report--and we crafted our language carefully here--will spell out for the Secretary what information is needed for comprehensive understanding of the issue. For example, insurers premiums and investment income, outlays, overhead, legal expenses, reserves, as well as claims paid as a result of settlement as opposed to claims paid as a result of adjudication. Included in the report language will be a provision that the National Association of Insurance Commissioners has a set amount of time to work out an agreement with the Secretary of Commerce to require that insurers report data on claims paid out as a result of economic, noneconomic, and punitive damages. That has been an elusive factor, and that information in fact is not now available or at least it is not broken out. As a result of this amendment, it will be, and will be available to us. I believe, Mr. Chairman, it is a good amendment. I believe it is a fair amendment. It is not the amendment which I had originally suggested, but I believe that it is a reasonable compromise that gets us the same information and in a reasonable manner. Now, that was presented in the bill and accepted. Thereafter, year before last, when we had on the last occasion before the Senate product liability, that amendment, word for word, was presented and accepted. Presented by this Senator at that particular time as the chairman of the Commerce Committee and accepted by none other than the two distinguished leaders that we have, the cosponsors and managers of the bill, the distinguished Senator from West Virginia and the distinguished Senator from Washington. My hope, of course, that the amendment was accepted, it would be accepted again. Perhaps we will have to vote on it. However, it would nonplus this particular Senator that here we have what the managers themselves have not only promulgated but what they have accepted heretofore as a reasonable, proper, and necessary add on to the consideration of product liability and now rejected at this particular time. With that in mind, I yield the floor. Amendment No. 599, as modified, to Amendment No. 596

Mr. HOLLINGS

Mr. HOLLINGS. I defer to the Senator from Tennessee. He is the author. If the Chair recognizes me, I can proceed----

Mr. HOLLINGS. Ten minutes.