Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 46, S. 523.

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

Mr. KYL. Mr. President, I ask unanimous consent that the amendment be agreed to, that the committee substitute be agreed to, as amended, that the bill be deemed read a third time, and passed, and that 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. KYL

Mr. KYL. Mr. President, pending one other matter of business, I am going to ask for some unanimous-consent agreements that have been cleared with the minority and represent the minority's position as well as the majority leader's position.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL

Mr. KYL. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. KYL

Mr. KYL. I now ask for its second reading, and the minority leader objects.

Mr. KYL. Mr. President, I understand that Senate bill, S. 735, introduced earlier today by Senators Dole and Hatch is at the desk.

Mr. KYL. I ask for its first reading.

Mr. KYL

Mr. KYL. Mr. President, for the information of all of our colleagues, the leader has asked me to announce that the Senate will return to session on Monday. However, there will be no rollcall votes during Monday's session. Under the order, any Member who wishes to offer a medical malpractice amendment must offer and debate that amendment on Monday. Any votes ordered on any of those amendments will be stacked to occur at 11 a.m. on Tuesday.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 42, H.R. 517.

Mr. KYL. Mr. President, I ask unanimous consent that the bill be deemed read a third time, passed, and 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. KYL. Mr. President, I suggest the absence of a quorum.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the amendment of the Senator from Maine, No. 608, be set aside so that I may offer an amendment which is at the desk.

Mr. KYL

Mr. KYL. Mr. President, I thank my colleague from Pennsylvania, and would also just say in response to the remarks of our colleague from Maine that she has been a long-time advocate beginning with her service in the House of Representatives for sensible fiscal policy, and in particular support for the balanced budget amendment. I just again express my appreciation to her for all of the hard work that she did there and for what she has since carried forward to this body in attempting to get us to support the balanced budget amendment this year. We failed by one vote. But I think, as has been noted, we are going to get it passed sooner or later. One of the things my constituents told me during the last 2 weeks when I was out in Arizona was that we need to balance the Federal budget. In fact, if there was any one theme that came across during the visits that I had with people all over the State in my tour of the State, it was that the Senate needed to keep up the good work that the House began, and that includes passing the balanced budget amendment. When I asked them what they thought about the first 100 days and the House Contract With America, they were overwhelmingly in support of it. We traveled during the first week. We got in my old Suburban and traveled to Miami and Globe and Thatcher, and Pima. These are names that are not known to very many of you, but they are little towns in Arizona. We had a town hall meeting in Safford with 130 people one night. They were all just as interested and engaged as you would hope that our American citizens would be on these issues that we have been working on here. Their primary message was we are appreciative of what the House did. Now you in the Senate need to do the same thing. They were pleasantly surprised when I noted we had already passed three of the contract items here in the Senate. That message had not really gotten out too much. They were also somewhat skeptical that the Senate would do as well as the House, and We went on to the small towns of Willcox, and Benson. These are ranching communities primarily, and regulatory reform is very high on their agenda. They deal with the Federal Government every day because many of them ranch on Federal lands and in other respects have dealings with the Federal Government, which are not always the most pleasant. So their view was that regulatory reforms, the kind of things that the Senate will be marking up in the Judiciary Committee tomorrow, the Dole regulatory reform bill, are the kind of reforms that they want us to carry forward. Of course, that was done in the House of Representatives as part of its Contract With America. Then over to Yuma, AZ, up to Flagstaff, AZ, the Grand Canyon, where there is obviously a need to support our National Park System to begin to make it a better experience for the now millions of people who visit the Grand Canyon every year and also to balance very carefully the environmental concerns with the other economic needs of our citizens. All of these subjects were discussed during these 2 weeks as I went around the State, but there is a sense of optimism that we have actually changed things. There is a desire that we keep going. I think there is still a residuum of skepticism that the Congress really will follow through with these promises, but people are very pleasantly surprised that so far it seems to be happening. Then finally, Mr. President, when the very tragic events of just a week ago began unfolding in Oklahoma City, it began to remind people all over this country of how unified we are as a people in condemning that kind of violence, in feeling the most heartfelt sympathy for the victims of the tragedy, and for sharing a commitment to bring to justice the people who are responsible. I spent a good deal of my time, since I serve on both the Intelligence Committee and the Judiciary Committee, talking to people about the threats that are out there and for the need to support the agencies that we count on to prevent these threats or to bring to justice the people responsible when they occur. Our agencies, such as the Central Intelligence Agency and the Federal Bureau of Investigation, we are extremely pleased with the way this investigation has gone so far, but we know that there is much work to be done. It is important for us to recognize that this does not just happen automatically. It happens because hundreds of dedicated Americans are working very long hours under difficult circumstances to find out what these kinds of groups are up to, to try to prevent them from acting and, when they do, to bring them to justice. We cannot reflect on it just when there is a tragic event such as this. We have to support these agencies throughout the year and year in and year out. I am very disturbed by the calls that I have heard in the beginning part of this year from those who would dismantle the Central Intelligence Agency, for example, because the cold war is over, not appreciating the fact that there are hundreds of organizations around the world, some State sponsored, others not, but all of which have in mind conducting the kind of terrorist activities that occurred in Oklahoma City. It can happen from without our borders as well as within, and it is critical that we remember that and support these organizations when the appropriations issues come before us very soon. It is the only way we will be able to bring to justice the people responsible for this kind of heinous activity. So, Mr. President, it was an Easter recess that was edifying for all of us and at the end something that because of the tragedy I think unified us all in expressing support for the people in Oklahoma City. I thank the Chair.

Mr. KYL

Mr. KYL. Mr. President, I have several announcements and requests for unanimous consent. I would note all of these have been cleared with the minority and therefore I wish to make them at this time. First, Mr. President, I ask unanimous consent that there now be a period for the transaction of routine morning business with Senators permitted to speak for up to 10 minutes each.

Mr. KYL

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

Mr. KYL. Mr. President, I, too, wish to address Senate bill 565, the Gorton-Rockefeller Product Liability Fairness Act of 1995. As the Senator from Pennsylvania has just mentioned, today marks the beginning of a historic debate in the Senate on the need for civil justice reform, because more than ever in recent years there appears to be an opportunity for us to make some real changes in law. For the first time in more than two decades, the House of Representatives has debated and passed comprehensive legal reform legislation, including product liability reform, as part of its Contract With America. According to a Luntz Research Co. survey, ``83 percent of Americans continue to believe that our liability lawsuit system has major problems and needs serious improvements.'' Now the Senate, I suggest, must do its part to make meaningful legal reform a reality to respond to this concern on the part of the American people. I want to begin by commending my colleagues from Washington and West Virginia for their 15-year effort to bring needed reform to the Nation's product liability laws. I also agreed with the comments of the Senator from Pennsylvania who noted that it is important for us to be careful in the process of changing this law, because our States have different versions of product liability laws and because the law has built up expectations over the years. I also note, however, that the roughly 2,000-year development of this law, as the Senator from Pennsylvania mentioned, has changed rather dramatically just in the time since I attended law school, and that was not that long ago, Mr. President. In fact, the law was quite stable until about that time. So I think that because of the changes in the law and the dramatic impact that those changes have had on our economy and on our society, it is time to reexamine what might be done and that it is important for the Congress to enact reasonable reforms to protect our Nation's manufacturing base from unreasonable litigation. Historically, of course, America's strength has been in manufacturing, where much of the wealth of our Nation has been created. Although product liability law is but a small area of tort law generally, it is also a critical area in which America is losing its competitive edge. I noted, Mr. President, that this law has changed dramatically since I was in law school. The year was 1964 when I began law school. Some important decisions came down, starting with decisions from the State of California, which created a new concept called ``liability without fault.'' It is a concept that some Americans might have difficulty in understanding. I myself still have difficulty understanding why someone who is not at fault can be held liable for literally millions of dollars in damages. That is what the doctrine is called, liability without fault. Why is the doctrine called liability without fault? Because a plaintiff who is injured has the right now to bring an action against a manufacturer for a defective product, even though it is impossible to prove that there was any negligence in the creation of that defect. In other words, Mr. President, a manufacturer cannot have exerted every bit of care possible, has been as careful as one could be in developing the plans and hiring the people to produce the product, and they could have been as careful as possible; yet, notwithstanding all of the care exercised in the creation of the product, as happens, we all know it is part of life, a mistake is made, a defect is created and someone is injured as a result. Because of that injury, and only because there was an injury, in this one limited area of our law the manufacturer can be held liable for an unlimited amount of dollar damage because of the defect, even though there was no negligence. Mr. President, I said Americans might find this difficult to understand because of the historic notion in our tort law that you can recover against someone who is negligent, who was not careful, as a result of which you were injured and sustained damage. That has been the law for 2,000 years, until 20 years ago, or 25 years ago, when the notion began to be accepted that the status of the victim was the most important thing and that it did not really matter what the consequences were to the manufacture of a product or to our society as a result of holding manufacturers of products to this standard of liability without fault. In other words, it did not matter with respect to the financial status of a business; it did not matter whether or not it puts the United States at a great competitive disadvantage; it does not matter that all due care was exercised. The only thing that mattered was that someone who was hurt had to be able to recover against someone. It is so bad, Mr. President, that persons do not even have to recover just against the manufacturer of the product. It is enough to find someone in the case persons can sue and recover from. So we identify the manufacturer of the product, we identify the wholesaler case, although there are more complex cases. And we then find that the manufacturer has gone out of business or does not have enough insurance to cover the loss. The wholesaler, too, has gone out of business or does not have adequate insurance. So despite the fact that the seller had nothing to do with this except that he unwrapped the box, put it on the shelf, and sold it to the consumer, who was then injured because of the defect, despite that fact, the seller can also be held responsible. In a case where we get a judgment against all three--the manufacturer, the wholesaler, and the retailer--there is what is called joint and several liability. They are each liable for all of the dollar damage, irrespective of the relative degree of their involvement. None of them, remember, were negligent, but one of them produced a product which turned out to have a defect in it that caused the damage. All of them can be held liable. The notion has been accepted that all of them can be liable for the entire amount, so that the retailer in this case, if that is the one that has the deepest pockets, as they say, the one that can afford to pay, ends up paying the bill. A lot of folks think that is wrong. I agree. That is why we have joint and several liability reform. But it does not go nearly far enough in this bill, as I will get to in a moment. The point of this little discourse in law is simply to note the fact that some things have happened to our law over the years that have, in my view, not been based on common sense, not been based upon sound principles of law, but rather have been based upon the overriding notion that no matter what, someone who is hurt must recover. Even if he cannot find anybody that did anything wrong, and even if the party you recover against did not do anything wrong, if persons can find somebody that has deep enough pockets and they have something to do with the incident, then nail them. That has resulted in a lot of people in our country deciding not to get into certain forms of business. Last year, fortunately, the Congress amended the law very slightly with respect to the manufacturer of airplanes because nobody was building airplanes in this country anymore. I am talking not about the big commercial jets, but the planes that a person would fly on the weekend, for example, or a small plane for business purposes. Companies have stopped making things and people have stopped selling things because of this potential liability. That is why it is important to reform the law of product liability and why this legislation is so important. I suggest, Mr. President, that we must ultimately go beyond product liability to comprehensively reform the entire civil justice system, and that this bill will be one of the ways in which we can do that. In effect, we must repeal the regressive tort tax, as someone called it, that depletes our economy, raises prices, destroys jobs, stifles innovation, and reduces exports, making America less competitive in the world. This tort tax creates a capricious legal lottery that stimulates the filing of lawsuits. One result, a very important result, is that it causes doctors to add billions to our national medical care costs each year because they must practice defensive medicine. They must order unnecessary tests or perform unnecessary procedures simply to cover the possibility that someone could claim that that last procedure or test was necessary to prevent some kind of harm to a patient; in other words, to do defensive medicine rather than the medicine that makes the most sense. In Arizona, my own State, Mr. President, medical malpractice premiums have increased by nearly 200 percent just in the last 14 years. That is obviously reflective of the cost of the medical care which we provide. It is one of the areas that requires specific attention as we reform health care in this country today. Attorney's fees and transaction costs are increasingly a large part of litigation expenses; in fact, approaching 50 percent. I think people would be interested to note, those who argue that we would be denying victims the right to recover, that, in fact, half of the money collected or nearly half of it goes to the lawyers--not to the victims. The U.S. Department of Commerce has estimated that only 40 cents of each dollar expended in product liability suits ultimately reaches the victims. A Rand Corp. study showed that 50 cents of each liability dollar does not go to victims but to attorney's fees and other transaction costs. Toward the goal of national legal reform, S. 565 represents a small but critical first step. This bill and the House bill, H.R. 956, contain many similar provisions. They are, very quickly, a product seller provision that extends coverage of the bill to rented and leased products as well; a drug and alcohol defense provision does not go far enough; a provision creating incentive for biomaterial suppliers to make available raw material for use in medical implant devices sponsored by my colleague from Arizona, John McCain, and a very important provision; and finally, a provision reducing judgment amounts where a product has been misused or altered. Beyond the provisions, the House bill is significantly broader in scope, and I support most of its additional provisions. It is my understanding this body will consider more comprehensive legal reform legislation later this year: Senator Hatch's Civil Justice Reform Act of 1995, and Senator McConnell's Lawsuit Reform Act of 1995, and I will support those efforts. I will plan to offer and support amendments to S. 565 that would broaden the legislative scope of this bill, more consistent with the House product. For example, I support expanding the scope of Senate bill 565, punitive damage reform provisions of three times a claimant's economic loss or $250,000, whichever is greater, now applicable only to product liability actions, to all civil actions. It is important in the medical malpractice arena, in particular, where we very seldom have a product that has created a problem, to limit the liability of the physician or hospital or other health care provider in order to contain the cost of health care. Second, I would support expanding the scope of S. 565, joint and several liability reform with respect to noneconomic damages for product liability actions to all civil actions, which I spoke to a moment ago. I will be offering an amendment to that effect. Third, expanding Senate bill 565's $250,000 limitation on noneconomic damages in product liability actions to medical malpractice actions, as well. I will also support the amendment of my colleague from Michigan regarding attorney disclosure requirements which would require that attorneys appearing in Federal court fully disclose at the time of retention all of the clients options, including a clear statement of the terms of compensation, and to provide an itemized accounting at the termination of representation. I will be introducing an amendment that would preclude punitive damages from being awarded if the health care producer of a medical device or drug successfully completes the FDA approval process, unless there is a situation of fraud involved. I also believe that there may be three other amendments necessary to this bill in order to preclude it from, I would say, Mr. President, having fatal flaws. There is one provision which relates to alternative dispute resolution where the parties seek to resolve their dispute outside of the tort lawsuit, and try to shorten the time and reduce the expenses. There is a penalty involved for the defendant in one of those situations. I believe that those provisions should be fair, equal to both the plaintiffs and the defendant, and that if there is any penalty attached for not agreeing to participate in an alternative dispute resolution mechanism, that that penalty should be provided both equally to the plaintiffs and the defendant, rather than only being a penalty for defendants. Second, there is a good provision that says, where a plaintiff has been impaired by drug or alcohol use and is therefore more than 50 percent culpable or responsible--in some States it is called contributory negligence, where plaintiff himself or herself is at least half responsible for the injuries--there could not be recovery. It seems to me that the principle is sound but the limitation is too restrictive. Whether it is because of drug or alcohol use or because of lack of care or responsible then either there should be comparative negligence or contributory negligence should preclude a recovery. It should not just be limited in that one situation. In fact, I can think of far more egregious actions on the part of the plaintiff than simply being drunk or under the influence of alcohol. Third, there is a provision that I spoke to earlier that says that, in a product liability case, the seller should not have to pay for the manufacturer's liability. It seems to me that should apply in any kind of situation. In no case should the seller be required to pay for the manufacturer's liability simply because you cannot find the manufacturer or the manufacturer does not have insurance to pay. If the seller was not responsible in any way, then the seller should not have to pay the damages. As I said, notwithstanding these areas in which I believe S. 565 could be broadened, I think it is important we not allow the perfect to be the enemy of the good, and therefore we should support whatever reforms we can accomplish. In the last 5 years cloture motions have effectively barred votes on the merits of bills similar to this that were supported by a majority of the Senate. We should not allow this to happen again. So I would like to close by addressing one of the most frequently cited and most unpersuasive arguments employed by the opponents of the national legal reform, only one, but I think it is important to establish this right up front because it has the superficial sense of States rights about it and suggests that those of us who support this legislation do not trust the States. As someone who is a very strong States' rights supporter, who is very interested in allowing local decisionmaking, I want to make very clear our basis for supporting this legislation. This legislation would not prohibit a State from enacting more restrictive provisions so we are not saying the Federal Government should take over this area of law to the exclusion of the States at all. We are simply establishing a standard. If the States wish to be more restrictive they are entitled to do so. It is not appropriate to argue it would be an unconstitutional preemption of State authority if we were to act in this fashion. The commerce clause clearly grants the United States the authority to act. No individual State can solve the problems created by abusive litigation of the kind we have been discussing here and that is particularly true with product liability where a product may be manufactured in one State, sold in another State, and cause injury in a third State. In fact, Government figures establish that on average over 70 percent of the goods manufactured in one State are shipped out of State for sale and use. So it is clear that a national solution is required and justified by the fundamental interstate character of produce commerce. The threat of disproportionate unpredictable punitive damages awards exerts an impact far beyond the borders of individual States, and this threat influences investment strategies, it dampens job creation and prevents new products from reaching the marketplace. In an increasingly integrated national and international economy, the confusing inconsistent patchwork of State liability awards has created a major obstacle to America's economic strength. And I think this is precisely the kind of problem the Framers gave Congress the power to address through the commerce clause of the U.S. Constitution. The Framers clearly realized the National Government needed the power to prevent the chaos that would result if every State could regulate interstate commerce. That is one of the reasons, as a matter of fact, that the Articles of Confederation were required to be amended. Opponents of legal reform profess concern about the preemption of State law and interference with States rights, but I note that many of these same interests are enthusiastic supporters of intrusive Federal regulations imposed on the States by OSHA, by the FDA, by the EPA, and other Federal regulators. In truth, States rights is not what is being defended here but rather the status quo or else. Why is the multimillion-dollar litigation industry the only segment of the economy that opponents of legal reform believe is beyond the reach of Federal law? Legal reform will not cause the creation of a single new Federal program or the expenditure of a single new appropriation. Legal reform will not impose new taxes or new regulations on our citizens. Legal reform will simply create clear, consistent legal standards covering civil actions brought in State and Federal court. It will enhance the essential principle of due process and, as the U.S. Supreme Court has said, due process, criminal and civil, is fundamental to our concept of ordered liberty. So, Mr. President, I hope we keep these thoughts in mind as we debate this important, and as I said at the beginning, historic legislation, and that in the end we will have found the wisdom and courage to make these reforms so we can pass them on to the President for his signature and begin the process of restoring more sensibility, more common sense, more fairness into the U.S. tort system. I yield the floor, Mr. President. Mr. President, I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Finally, 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., on Tuesday, April 25, 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, there then be a period for the transaction of routine morning business not to extend beyond the hour of 12 noon with Senators permitted to speak for up to 5 minutes each with the exception of the following: Senator Domenici, 60 minutes; Senator Thomas, 30 minutes; Senator Baucus, 15 minutes. I further ask that at 12 noon, Tuesday, the Senate proceed to a vote on the adoption of Senate Resolution 110, regarding the bombing in Oklahoma City; further that the Senate recess between the hours of 12:30 and 2:15 tomorrow for the weekly policy luncheons to meet.

Mr. KYL

Mr. KYL. I object to further proceedings on the bill at this time, Mr. President.

Mr. KYL. Mr. President, I understand that there is a bill at the desk that is due its second reading.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 1380, that the bill be deemed read a second and third time, passed, and 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. KYL

Mr. KYL. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in recess under the previous order.

Mr. KYL

Mr. KYL. Mr. President, as in executive session, I ask unanimous consent that the injunction of secrecy be removed from the following two treaties transmitted to the Senate on April 24, 1995, by the President of the United States: Extradition Treaty with Jordan (Treaty Document No. 104-3); and Protocol Amending the 1980 Tax Convention with Canada (Treaty Document No. 104-4). I further ask that the treaties be considered as having been read the first time; that they be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's messages be printed in the Record.