Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I thank the presiding officer for his patience.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. I move to table the pending amendment and ask for the yeas and nays.

Mr. ROCKEFELLER. Mr. President, I move to table the Thomas amendment and I ask for the yeas and nays.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, what is interesting about all of this is that the business at hand is something called the Product Liability Fairness Act. I want to be very frank about my disposition towards the amendment which is at this moment before us. This is not a unique situation in the Senate. Senators have the right to come forward and offer amendments to legislation that are outside the scope of the legislation before the Senate. We have seen that done ever since I came to the Senate, from both sides of the aisle. And sure enough, Senators from Kentucky and Connecticut and Wyoming are using their rights to ask the Senate to decide whether to attach a series of provisions dealing with malpractice to a bill dealing solely and only with product liability. An entire day disappears. Whether there is passage or not, it will not be a part of the final version of this legislation. It will get vetoed, it will get taken out one way or other. It is an exercise of folly, which is sad. And I will express my views. I am deeply committed, as committed as anybody in this body, to health care reform. And I see malpractice reform as an integral part of the solution to the crisis that faces the self-esteem and the condition of our physicians, our hospitals, and the American people, and I think of those in my own State of West Virginia in particular. Mr. President, I have watched the Senate come very close to the point where we might enact a product liability bill during the past 6 years. We actually got 60 votes several years ago; 60 was written down on the table here in front of us. The majority leader at that time, under the rules, stopped the vote and we spent the next 45 minutes while he found two Senators who had voted yes to change their votes to no. So we lost. Now that we have 20-minute votes, that is much harder to do. I am very happy for that. But we have come very close. And I take product liability reform extremely seriously. I think it is something that needs to happen both for consumers and for businesses in this country. I think it is important for America. I think it is important for the American people. I take product liability seriously and anything which comes in the way of product liability, have--to assemble a coalition that is willing to go for this. Now we have other amendments. You have to understand, as I am sure the President does, that people better start making a decision around here. Do you want to have the fun of making wonderful speeches and putting on what I think is very good legislation, amendments in terms of malpractice reform? Or do you want to have product liability? You are probably not going to have both. Today has been interesting. I did not schedule a lot because I thought we were going to be dealing with product liability, and all of a sudden we are dealing with something called malpractice reform that has to do with health care. Now the Senator from Massachusetts is talking about a whole series of amendments, so I assume this will go on for a long time. There are some people in this body who have not yet quite decided whether this bill, called product liability reform, is in fact good public policy. That may be more on this Senator's side than the side of the Presiding Officer. But there are some people who have not quite decided whether this bill should be used to enact good public policy on product liability. Or are we just making points about other things that we are interested in? Which I might be interested in. But at some point people have to make a choice. Are we going to do product liability or are we going to do a whole series of things which then end up negating the chance to get product liability? I have been working on product liability for 9 years; some have for 13. I made a variety of tabling motions yesterday to express very clearly my view about that. In fact, there was one that was a Heflin- Rockefeller amendment, which does not comport with the natural tendencies that surround product liability. I am trying to make the point that I want this to be a pure product liability bill. The Senator from the State of Washington, Senator Gorton-- extraordinarily skillful, extraordinarily insightful, extraordinarily disciplined--believes, as I do, that if we are going to get 60 votes to stop the filibuster that will surely be there and will come at some point, it is going to be very close. And he agrees that we should focus, as I agree we should focus, on product liability. It is a very complicated subject. It is a very complicated subject to explain, particularly when explained by a nonlawyer such as myself, much less a skilled lawyer such as my colleague from the State of Washington. The majority leader can schedule a separate time, its own special time to take up malpractice reform such as the malpractice reform legislation that, in this case, was adopted just on Tuesday by the Senate Labor Committee. But in good conscience I, as manager on the Democratic side of the aisle, cannot take the risk when the chances are good of enacting product liability reform, making reforms to a broken, dysfunctional product liability system --that these will all be torn asunder, weakened, scattered about by a series of other amendments, in this case dealing with a very, very important subject called malpractice reform. I do not have any choice but as to my conclusion, and at the appropriate time I will move to table this amendment and the underlying amendment, and other amendments associated with it. I have no choice. With cosponsors from both sides of the aisle, with a long history of strong support in this body, Senator Gorton and I have been on this floor all week talking about our rather grave concern about the problems in the current patchwork of unpredictable, unfair matters associated with product liability. This Senate has before it a very carefully constructed bill to improve the system to make it less costly, to make it more predictable, to make it more fair for everyone. And enacting product liability reform is what I believe the goal should be for the Senate at this moment, as of all of this day, as of all of the moments that remain. Yesterday, as I indicated, we moved to table a number of amendments which were related to a legal system and lawyers, but were beyond the scope of product liability legislation. So I moved to table them. The malpractice reform amendments offered today are analogous to previous broadening amendments which were offered and then tabled. I hope that we can reach an agreement on a course of action that provides for a meaningful debate on the pros and cons of malpractice reform, and in the near future. As I have indicated, I think if we could do this before July 4, it would be very, very good. That might be an option which would address any concern that there will not be another timely opportunity to deal with malpractice reform. The medical community in my State wants malpractice reform more than anything else that exists. They want it desperately. I also do. Given another moment on another day, a bill in the range of what has been presented this day would have my vote; that is, the kind of amendment on malpractice which has been presented by Senator McConnell would have my vote. I would argue for it vociferously. I might disagree with some of the points that have been made about it, but not the majority of its provisions. I hear from doctors all the time, I hear from hospitals all the time about the importance of malpractice reform to them as essential health care professionals in my State. We have had ongoing dialog on this issue, and I know I can say that I understand what they want. I understand the problems of health care. I have done a lot of work on health care over the last 8 years or so. I very much want to be able to improve the climate for practicing medicine in West Virginia for all providers. I want to do all I can to make sure that we have an adequate supply of all needed health care professionals in my State, particularly OB-GYN's and health care providers which are in short supply in almost every county--in some counties in the State of the Presiding Officer; in most counties in my State. I also believe good malpractice reform will help improve the quality of health care services in my State, malpractice reform can be in the best interests of patients and their health care professionals alike. What is interesting is that malpractice is also a state of mind preventing a lot of people from going into medicine. There are a lot of doctors now who have told me they do not want their sons or daughters to go into medicine. It is not worth it, they say. Every patient they face is a potential litigant. We are a litigious society, sadly and shockingly so. Yesterday, I had a long visit with Dr. Jim Todd, executive director of the American Medical Association; Dick Davidson, of the American Hospital Association; and Tom Skully, of the Federation of American Health Systems, another group representing a large number of hospitals in this country. They said nationwide the doctors and hospitals whom they represent, and that is a very large collective membership, want strong malpractice reform enacted as soon as possible. I shared with them my strong desire to help toward passage of that end. But let me say that we cannot do both things at the same time. If we pass medical malpractice and it is incorporated into the product liability bill, some votes from this side will fall off and the entire tree will collapse. You put too many decorations on a Christmas tree, and at some point the bow simply falls and everything drops off. I do not think it is very complicated. I think this really is a test of who wants product liability reform and who does not. I can understand the opponents of product liability reform adding on all kinds of amendments. I can understand that to deter, to generally scatter attention, and to dilute. But I cannot understand those who favor product liability doing that. This is not just a question of the House agenda, the Contract With America. There is a lot of concern on my side, Mr. President, about this bill--it is very real on my side--that it is going to be loaded up with what came over from the House. I think one of the things that the other side is learning now is that, if they were to put forward a series of amendments, they will not get as many votes as they thought they would, and the votes really will not be there to do the job. It will not be there on our side, almost side. So here we are. I may not agree with every provision of malpractice reform advanced by some. But I want to see it done. I want that clear. This is, in a sense, my issue as much as any issue in this body. I have physicians, hospitals, and others--and patients in West Virginia--who need to have this happen. I just want to be certain that no one misunderstands my position. Despite the concern that other Members have expressed about attaching malpractice reform onto product liability, I have no intention of ducking the issue of the need to deal with malpractice reform. I understand what is going on. I am interested in why the Senator from Kentucky chose to offer his original malpractice bill as an amendment as opposed to what was marked up in the Labor Committee. The majority of the provisions of Senator McConnell's bills are ones which most of us supported in the past on one piece of legislation or another. I am also interested in hearing the rationale for Senator Thomas' second-degree amendment regarding rural care. But, in the end, I just return to Senator McConnell's underlying malpractice reform amendment and I say, do we not have to choose? I feel we do. We cannot have it both ways. I fear that, if this amendment, as much as I might be interested in it, were to prevail, it would peel off votes from my side of the aisle, and product liability would lose. I do not want that to happen. The Senator from Washington does not want that to happen. It has been our pledge from the beginning that we are going to try to keep this bill as clean as possible; clean--only product liability. Anything outside, we work against. So I hope my views on this are understood. I repeat that at the appropriate time, I will move to table the various amendments that deal with this subject. I thank the Presiding Officer and I yield the floor. Mr. JEFFORDS addressed the Chair.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. But not by the one by which the law was formerly interpreted.

Mr. ROCKEFELLER. I noticed that the Senator mentioned one AIDS interested group. That compels me to say something which, again, I think is so important, that one of the reasons that the list is so long is people on a subject like this, and when you have a very intense group fighting so hard--the Senator mentioned lawyers in general--but there is a particular group of lawyers that is fighting this thing very, very hard, a tremendous amount of sensationalism. I have a letter which is being passed around West Virginia written by one of these particular kinds of lawyers basically saying that if you have been exposed to asbestos, Rockefeller is trying to cut off your chance for recourse, which is an absolute falsehood because this bill is entirely prospective and asbestos does not enter into it at all. What I am suggesting is that many, in fact, amazingly, many of these consumer groups are so completely wedded to the status quo that they do not want to see any change. I can remember--every year I do this. I ask the president of the American Trial Lawyers Association to come into my office, which they always do with one of their particular lobbyists. And I say, ``Is there anything I can do to work with you on this problem because I want to solve it in a way which is fair to both business and consumers.'' I come from a State where consumers far outnumber businesses, and I want to make sure it is a fair bill. Every year the answer is, ``No, the bill is fine exactly the way it is. There is no need for any kind of change whatsoever. Which is a remarkable attitude when you consider, for example, what Abbott Laboratories said. Abbott Laboratories has made the decision to drop plans for human trials of the drug to prevent HIV-infected mothers from transmitting the AIDS virus to their unborn children. Abbott Laboratories is not a small operation. They are not doing that anymore. Dr. Fauci, who is Director of AIDS research at the National Institutes of Health called these liability concerns ``very real,'' and ``something we have to address.'' This is the area of AIDS. A pharmaceutical company and a major Government research organization agree on the need to make some reforms in our product liability system. All the junior Senator from West Virginia is trying to suggest to my friend from California is that somehow--here is another, Dr. Elizabeth Connell, Chair of FDA's obstetrics and gynecology devices panel, said that the United States is losing its leadership role in the area of contraceptive technology ``with potentially disastrous consequences for women and men in this country and elsewhere.'' All I am trying to say to my good friend from California is that I think one of the real problems on this piece of legislation, frankly, is that people really have not looked at the bill; that there is this atrocious mindset on the part of those who oppose it--I hope not on the part of those who propose it--that it is atrocious to bring it up. Often, in my State's legislature, somebody would bring up the beginning of an idea, an amoeba, and the lobbyist would crush it immediately before it had a chance to grow in any direction, so that it might in fact become something. All I am saying is that opposing any change, praising the status quo, when such things as testing for AIDS passed from a mother to a child could no longer be carried out is beyond my understanding.

Mr. ROCKEFELLER. When you go on to the R's, that would be an appropriate time to yield to me.

Mr. ROCKEFELLER. Will the Senator yield?

Mr. ROCKEFELLER. This Senator thinks that the bill before us offers a number of areas which would make it substantially a more protected situation, a more have-your-chance-at-the-courthouse situation, have access to alternative dispute resolutions on a voluntary basis where the claimant never has to pay anything but the defendant does. I think there are a number of areas where this bill does, in fact, open up new opportunities for protection and due process to women. This will be my fourth attempt to close, and I am picking on myself, not the distinguished Senator from California. There is one more thing that I notice here. Again, the New England Journal of Medicine, 1993, concluded that the manufacturers' liability concerns are contributing to the exclusion of women, which I indicated earlier, from clinical studies. Now, that is a terribly serious statement. That is the same thing as I ran into in the Persian Gulf war syndrome with the use of the drug pyridostigmine, which when used in connection with other chemicals may be a contributing factor to the tens of thousands of men and women in this country who have a so-called mystery illness, which is no mystery to me but which evidently seems to be to our scientists. And women in the test that the Department of the Defense conducted to test this pill were entirely excluded. Not one single woman, even though the bodyweight of women obviously is not as great as that of the average man and, therefore, the effect of the pill, which was made on men and women, would be much worse on women. So the importance of having women in clinical studies in this research is very, very important. Having said that, for my part I want to thank my friend from California, and apologize to my friend from Wisconsin and yield the floor.

Mr. ROCKEFELLER. The status quo on product liability is absolutely fine and there does not need to be any changes made. I mean, most trial lawyers will not say that. So what I was going to ask my friend from California, if there was a bill that was able to balance the requirements of getting more opportunities for research and discoveries, more opportunities for new drugs, and balance the needs of business in that respect and also the question of how business is treated so business, even though there were only 11 punitive damage cases in one particular year, that, in fact, the chilling effect of those 11 cases hangs over hundreds of thousands of businesses and, therefore, affects, in effect, hundreds of thousands of businesses and, on the other hand, was able to protect consumers and open up new avenues of protection for consumers, if it were possible to develop such a bill, would the Senator be interested?

Mr. ROCKEFELLER. Sure. The Senator appeared to be saying that she is, Mr. President, entirely satisfied with our present system. I believe she did say that.

Mr. ROCKEFELLER. Final question, with apologies to both the Senator from California and the Senator from Wisconsin.

Mr. ROCKEFELLER. Are you satisfied with the system the way it is?

Mr. ROCKEFELLER. And the lesson should also be that we open up the floodgates of the courthouse door to people who might be afflicted by anything that might happen in the future.

Mr. ROCKEFELLER. They certainly will.

Mr. ROCKEFELLER. Mr. President, this is a letter from Patty DeDominic, who is the president of the National Association of Women Business Owners, and others, in which they write: ``On behalf of the Nation's more than 21 million small and growing businesses,'' we ask you to support this bill. This is just not the idea, therefore, that this is all big business. I mean that really is not the case. Second, and finally, and with great respect to my friend from California, who cares passionately that people be protected, as do I. I think the Senator knows my heart as well as the Senator's, not as well as the Senator knows her own heart, but she knows what I stand for and who I am. But I think the statement is fine, which is one company which is doing research on contraceptives, or if you put that over into other areas such as Alzheimer's. I had dinner last night with a person who has Parkinson's. He was describing to me a little bit of what that was like. That happened to be a man and not a woman. But I really never, ever want, as in the Soviet Union, where there is one company which is doing research on Alzheimer's and Parkinson's and some of these enormous diseases that affect men and women. I mean, the whole point is competition in the marketplace. And even worse is the fact that companies are withdrawing the amount of money that they spend on research in general.

Mr. ROCKEFELLER. Let me say to my friend from California, if she has time to engage in this, let me just go on further on this business of women and the effect on them. Phyllis Greenberger is the executive director of the Society for Advancement of Women's Health Research, and she has said this year, ``The current liability climate is preventing women from receiving the full benefits that science and medicine provide. There is evidence,'' she says, ``that maintaining the current liability system harms the advancement of women's health research.'' I would point out to my good friend from California, with whom I agree on 95 percent of matters, 98 percent perhaps, under the current product liability system there is only one major research. So whether it is Benedictine for morning sickness or it is contraceptives or whatever, it is not the fact that there have only been x number of punitive damages awarded. It is the fact that punitive damages are always out there and that they have the effect of deterring people. In fact, we have come to the point where I think 47 percent of business--no. I forget the exact number. It was a big percentage of businesses have indicated that when they want to improve a product that they already have, they often reject the chance to improve the product for fear that it will indicate their previous product was somehow deficient, which is just not the way things work in America. So it is not the number just of punitive damage awards. It is the chilling effect of the possibility of what could happen. It is, in fact, cutting off enormous amounts of research which affect women's health, all of which is basically what I am trying to say to my good friend.

Mr. ROCKEFELLER. I was not----

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I wanted to note that I previously indicated that I wanted to have a tabling motion to establish the fact that I want this bill to be kept a product liability bill alone and not to have outside material added to it. But the prevailing sentiment of the chairman clearly is for an up-or-down vote, and I have yielded to that.

Mr. ROCKEFELLER. I am thoroughly grateful to the Senator from Colorado. Mr. GRASSLEY addressed the Chair.

Mr. ROCKEFELLER. Of course.

Mr. ROCKEFELLER. Mr. President, I say to the Senator from Iowa, I am going to be literally 2 minutes. I just want to explain the position of the manager of the bill on this, and for the benefit of my colleagues who are listening to this debate and their staff who are listening. We are now considering an amendment of the Senator from Colorado, Senator Brown, that tries to repeal part of the Federal Rules of Civil Procedure dealing with rule 11 and the way it serves to inhibit so- called frivolous pleading. This rule was modified as a result of action taken in 1993 following the work of the Federal Judicial Conference. I have listened to the concerns expressed by the Senator from Alabama and the Senator from Illinois, and others, pointing out this amendment is outside the scope of the bill before us, which is the product liability bill. From my previous tabling motions and votes, I think my colleagues know that I am dead serious about trying to keep this bill limited to the bill, unloaded, unadorned with amendments that are not directly related to it. I think that every Senator would agree that frivolous lawsuits should be curbed, but I just want to say that at the proper time, I will move to table the amendment. It was received very recently and one would hope there could be full hearings on the amendment. I wanted people to understand what my plan was.

Mr. ROCKEFELLER. Mr. President, I move to table the amendment and ask for the yeas and nays.

Mr. ROCKEFELLER. Again, I want to let my colleagues know of the situation and what Senator Gorton and I will do at 6 o'clock. We are here to consider repairing something called the product liability bill. We are not here to determine the hourly rates of lawyers. We are not here to do a variety of other things. Therefore, the Senator from Washington will move to table the amendment of the Senator from South Carolina, and I will move to table the amendment of the Senator from Michigan. should be publicized. That is my reason. I understand the interest that both Senators have in raising these questions. But I want the Senate to consider a bill that has been the subject of hearings, close scrutiny, and careful work, and that is called the product liability bill. I do not think this bill is the bill to use as a vehicle for regulating the fees of lawyers, telling them how to publicize their fees or intervening into the lawyer/client relationship. In moving to table these amendments, the managers and authors of this bill want to make a point, however. We are discouraging, actively discouraging amendments outside the scope of the product liability bill itself. We welcome constructive revisions to this bill within the context of the bill, but we do not welcome the phenomenon of loading up on this bill for the purpose of making points, some of which might be valid, but we just do not want to do that. And we do not want to have amendments scoring points against lawyers. So we are here to do the serious work of the product liability bill, and I want my colleagues to be informed as to how the managers will proceed. I thank the Senator from Michigan and I thank the Presiding Officer.