Bobby Scott

Mr. SCOTT

Mr. SCOTT. Mr. Speaker, I think first we want to put what we are doing in perspective. Every year over 2,300 murders occur in my congressional district. We are having cutbacks in health care, we are reducing funding for homelessness, we are reducing funding for veterans' health care, veterans' pensions, we are cutting back on our future by cutting back in education, and here we are, discussing the flag. Whatever we do with this amendment, Mr. Speaker, there will be no more respect for the flag. Not one of those million people will respect the flag any more or less, depending on what we do. What we will have if we pass this amendment is a legal quagmire about what is a flag and what is desecration. The flag is burned more today in American Legion halls and Boy Scout troops than anywhere else, because that is the ceremony you use for disposing of the flag. Mr. Speaker, the flag and the principles for which it stand do not need protection from the occasional imbecile who protests without realizing that he is destroying the very symbol of his right to protest, and somebody that cannot figure out that his method of protesting cannot possibly benefit his cause. Finally, Mr. Speaker, if we do not pass this amendment, we will be sending a message to the American people that we are saying that Americans do not need the criminal code to enforce their patriotism. Mr. Speaker, I would hope that we would defeat this amendment.

Mr. SCOTT

Mr. SCOTT. Mr. Speaker, on behalf of the B'nai B'rith Foundation of the United States, I am pleased to announce that Dr. L.D. Britt is a 1995 recipient of the Great American Traditions Award. Dr. Britt, a renown surgeon and educator, serves as Professor, Chairman of General Surgery, and Chief of Trauma and Critical Care at Eastern Virginia Medical School. He is also Medical Director for the Shock Trauma Center at Sentara Norfolk General Hospital, is a general surgeon in the Norfolk and Suffolk Virginia area and serves on the boards of Norfolk State University and the University of Virginia. He received a B.A. from the University of Virginia, a M.P.H. from the Harvard School of Public Health and a M.D. from the Harvard Medical School. But as great as they are, Dr. Britt's professional accomplishments are not the reason he was chosen for this award. What distinguishes Dr. Britt from other accomplished men and women is his tireless service to the Tidewater Virginia community. He has given freely of his time, talents, and resources to others. From church, to Boy Scouts, to cultural institutions, Dr. Britt has worked to bring all elements of the Tidewater community together regardless of race, ethnicity, or religion. It is in that tradition that the proceeds from his award dinner will go to the Dr. L.D. Britt Young Leaders Scholarship Fund. Dr. Britt finds the time to give so freely of himself to others because he believes that we should reach out to those around us. It is for this spirit of giving to others that Dr. L.D. Britt is presented with the Great American Traditions Award.

Mr. SCOTT

Mr. SCOTT. Mr. Chairman, is the gentleman from Pennsylvania going to waive again?

Mr. SCOTT. Mr. Chairman, I yield myself 3 minutes. Mr. Chairman, there were no hearings on this amendment. it has been slapped together, we tried to fix it on the floor, and we apologize for the confusion on this side where we were disruptive. We were trying to figure out what the last-minute change in the amendment was. That is what happens when we do not have hearings and do not go through a deliberative process. But in this case, Mr. Chairman, I think there was an intent not to have a hearing because on this same issue, we did have a hearing last year. Let me quote from that hearing last year when we were doing health reform on malpractice reform. The witness who spoke in favor of tort reform, who supported limitations on attorney's fees, restrictions on joint and several liability, reductions in statute of limitations, modifications in punitive damages, when this issue came up, he was asked of the three people of interest in this case, you have got the plaintiff, you have got the defendant, and you have got the health insurance company. Which one ought to receive the benefit of the payment? As the chairman of the committee has suggested, the tort- feasor really ought to be the last person to benefit from the insurance premiums. I asked the witness, ``Why should the tort-feasor, the wrongdoer, receive the benefit of the insurance?'' The witness said: ``Our position is that there should not be a double recovery.'' Then I asked: ``Well, who ought to receive the recovery? Why shouldn't Blue Cross-Blue Shield get the money back?'' And the witness, a physician, said: ``I think they should. In other words, insurance company ought to be paid.'' Then I said: ``Well, then if the plaintiff doesn't get the money, why shouldn't Blue Cross-Blue Shield be reimbursed?'' He said: ``They should.'' ``They should?'' ``Yes.'' Then, just to make sure: ``Don't you agree that the tort-feasor, which in this case could be medical malpractice, in another case it could be a drunk driver, ought that be the last person to receive the benefit?'' Answer: ``Yes.'' ``So if we deny the plaintiff the basis of recovery for the insurance, then we ought to have subrogation so Blue Cross-Blue Shield can get this money back?'' And the witness said, ``I would agree with that.'' That is the kind of answer we would have gotten if we would have had a hearing. This is a good soundbite amendment but it only rewards the wrongdoer. A hearing would have proved that as it did last year. If there is not going to be any double recovery and you are going to say no to the policyholder who paid his premium, if you are going to deny him the extra benefit of this foresight in paying the premium, then you ought to have subrogation so the health insurance company can get its money back. If it is going to get its money back, at least the premium payer can get some benefit, because presumably the premium payment would be lower if they had subrogation. This is an attack on consumers again, and I would hope that this amendment would be rejected. We had a hearing last year. The idea was rejected. I would hope that this would be rejected again. Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr. Berman].

Mr. SCOTT. In that case, Mr. Chairman, I would certainly defer.

Mr. SCOTT. Mr. Chairman, we had reserved the right to object to the unanimous-consent request. Is that still pending?

Mr. SCOTT. Mr. Chairman, I yield 2 minutes to the gentlewoman from Colorado [Mrs. Schroeder].

Mr. SCOTT. I have several other speakers.

Mr. SCOTT

Mr. SCOTT. Mr. Chairman, will the gentleman yield?

Mr. SCOTT. Mr. Chairman, in these cases, all the victim knows is that he was injured. If you have a doctor who is clearly negligent, the doctor can escape some liability by saying it was 5 percent the nurse's fault, 10 percent the anesthesiologist's, 10 percent the hospital, 10 percent the product, and now where are we in the lawsuit? The plaintiff has to have five different defendants, five different sets of lawyers, five different judgments, five different collections, some insolvent. This consumer just has to, I guess, get over it. They are not going to be able to become whole. Mr. Chairman, we have always had loser pays. Even if they win, they might be having to pay opposing counsel. We have limited damages. We have come up with new defenses. Mr. Chairman, this reduces the accountability of wrongdoers. It allows wrongdoers to escape responsibility for their actions, at the expense of the innocent victims. Consumer protection is taking another giant step backward. I would hope that we would defeat this amendment.

Mr. SCOTT. Mr. Chairman, we keep hearing these generalities about excessive awards, but we do not hear specific cases that outraged juries so much that they actually awarded punitive damages. We have to put this amendment in the context of the other amendments that we have already had and recognize punitive damages are designed to be high enough to protect society from a corporate calculation that it is easier to pay the damages for somebody injured, maimed or killed, than it is to correct the situation. Earlier today we talked about the situation with flammable pajamas where the court found that the corporation knew that the pajamas--that newsprint burned only slightly faster than the pajamas. Because of the punitive damages, children can now go to bed safely knowing they are not wearing these things. In the context of loser pays and a separate trial for punitive damages, this amendment would essentially remove any incentive that a plaintiff would have to go after punitive damages, thereby removing the safety valve that others will enjoy by virtue of the fact that corporations are afraid of these punitive damages. The loser pays, you can win the case, on the compensation, you could even win punitive damages. But if you come in under the offer, you end up paying your attorneys' fees, the other peoples' attorneys' fees, and you are therefore discouraged from bringing these cases. This amendment is another discouragement in protecting society from corporate wrongdoing and ought to be defeated.

Mr. SCOTT. Mr. Chairman, I just wanted to cite a case of corporate wrongdoing that would benefit by the passage of this amendment as an example of why it should not pass. This is the O'Gilvie versus International Playtex case from Kansas, 1985, where Playtex voluntarily removed from the market tampons linked to toxic shock syndrome after a Federal court jury awarded compensatory and punitive damages. A Kansas woman died from toxic shock syndrome using the company's super- absorbent tampons. Playtex had complied with FDA regulations. It had gotten that approval fair and square. However, the jury found that the FDA requirements only set minimum standards and mere compliance with those standards had been inadequate under the circumstances. Mr. Chairman, the 10th circuit, in reviewing the case on appeal, found that there is an abundance of evidence that Playtex deliberately disregarded studies and medical evidence linking high-absorbency tampon fibers with increased risk of toxic shock at a time when other manufacturers were responding to this information by modifying or withdrawing their product. Moreover, there is evidence that Playtex deliberately sought to profit from this situation by advertising the effectiveness of its high-absorbency tampons when it knew that other manfacturers were reducing the absorbencies of their products due to the evidence of casual connection between high absorbency and toxic shock. Mr. Chairman, consumers are now protected from this product. With the back on consumer protection. Unfortunately, it is consistent with the loser pays and limits on awards and other discouragements from people bringing these meritorious suits to protect the consumer from these products. I hope we will defeat the amendment.

Mr. SCOTT. Mr. Chairman, if they complied and provided all of the information and FDA approved it anyway, when there were studies that the FDA just approved it, when the jury found that only minimum standards were set----

Mr. SCOTT

Mr. SCOTT. I want to thank the gentleman from California. This is an excellent presentation. We have choices to make and we have to look at our priorities and the quality of life and what we are doing here as legislators. And I thank you for giving us the opportunity to bring these facts forward.

Mr. SCOTT. And more costs and some children will not be able to get fed as a direct result of that budget. Mr. Speaker, I would like to again thank the gentleman from California for having this special order. The 1995 rescissions touch many programs, but frankly the ones I want to talk about just very briefly are the targeted prevention-oriented programs. I am particularly concerned about the mean-spirited cuts in the Safe and Drug Free Schools and Communities Program and the Summer Jobs Program. These programs will not just suffer a reduction in funds, but are at risk of being completely eliminated. The Drug Free Schools Program and the Summer Jobs Program are not frivolous programs, they are designed with specific intentions. Drug Free Schools was authorized as a means to repeal the onslaught of drugs and violence in the schools. The most significant changes in 1994 included an emphasis on violence prevention. In the city of Richmond in my State of Virginia, we have a program called Richmond Youth Against Violence. Recognizing the overlap and risk factors for violence and substance abuse, the school system decided to focus on violence prevention as an effective means to reduce or eliminate drugs used by our young people. Richmond Youth Against Violence is operating in all eight middle schools. It teaches mediation, how to avoid violence and the circumstances of violence and provides counseling for students suspended for violence. Funds from the Drug Free Schools and Communities Act provided the startup money for Richmond Youth Against Violence, and it works. Through various evaluations, research on this program has shown that boys in the program do not display an increase in violence, violent behavior and they are less likely to initiate substance abuse activities. Mr. Speaker, the Summer Youth Program is another successful program. The GOP, however, has decided the program that gives over 1.2 million low-income youth their first opportunity at work and their first step toward learning work ethics has no place in the Republican Contract With America. Summer youth jobs has a long history. It started in 1964 and has been enjoyed by youth in inner cities and rural areas. Kids 14 to 21 are eligible for the program and they flock to it. Last year there were two applicants for every job in the summer program. For those who say that the program is ineffective, I say look at the research. The Department of Labor's inspector general says that the program is run very tightly and is well administered, and unlike the stereotypical welfare programs, the summer youth jobs program involves real jobs. It is not uncommon to see youth performing clerical work for city offices, supervising and tutoring children in day-care centers, serving as a nurse's assistant in a hospital. Work and study done by Westat, Incorporated on the 1993 summer job program gave high marks for the program. The supervisors who were surveyed reported that there are no serious problems related to kid's behavior, attendance or turnover, and, Mr. Speaker, we know the importance about feeling good about your job and feeling that what you are doing is worthwhile. The young people in the summer youth jobs program feel the same way, they work hard and feel good about their summer jobs. These two programs, like many others, like the education for homeless children and youth, the training for careers and early childhood development and training for careers, and counseling young children affected by violence, the literacy programs for prisoners, all have merit and need to be continued. Some may oppose the short-term costs, but I remind them of the long- term risks. We cannot continue to undermine the programs which have been proven to deter violence and crime. We must also provide an environment for young people to gain the experience necessary for them to function as adults. Drug-free schools and communities program and the summer youth and jobs program accomplish these goals. In conclusion, Mr. Speaker, the prevention programs work. We can pay for them now or we can pay a lot more for prisons later. We need to defeat these mean-spirited, short-sighted rescissions.

Mr. SCOTT. This is exactly right.

Mr. SCOTT. Well, no, it is not more than current law; it is less than current law. If we continue going as we had planned, to cover the school children that need to be covered, more would be covered. They are going to cover less school children, and some eligible today will not be eligible with inflation; costs go up, more children show up in school, and if we continue at the rate they want to go, some children that are eligible today just simply will not be eligible if this budget is adopted, period.

Mr. SCOTT. I thank the gentleman. It is a pleasure to join him and the gentleman from Vermont and the gentleman from New Jersey to discuss these rescissions. As the gentleman has indicated, the rescissions are going to pay mostly tax cuts. Comment was made earlier about school children and lunches and whether we are spending more money or less money. You can call it whatever you want, but if we adopt the Republican budget many school children who are eligible for school lunches today will not be eligible if that budget is adopted.

Mr. SCOTT

Mr. SCOTT. Mr. Chairman, I think we need to put this amendment and others into context, because this is not the only bill that we have passed regarding this subject. We have the loser pays bill that is designed to get rid of frivolous lawsuits, but it also has an impact on lawsuits like this. If you had a case, for example, that you could win under the present law and this change comes about, you had a case that was previously a winner, now is a loser on the punitive damages. And if you failed to settle the case for what was offered and because of this higher standard, you come in a little bit under what was offered, you now have a frivolous lawsuit, in which case you have to pay both sides attorney's fees. Mr. Chairman, there is a case in 1984 where a plaintiff presented evidence in a case involving bandages that had been contaminated and they had bought the bandages, the warehouse, they had already been notified about the contamination. The quality control advisor had told them that the bandages were contaminated. And they were used, sold anyway, and a person was injured. Damages totaled, medical damages of only $4,200. But if that case had not been settled, and they received punitive damages under the present law, if this amendment is not adopted and they lost the case because of the higher standard, that would now be a frivolous case and they could be in a situation where they are paying not only their attorney's fees but the other attorney's fees. Mr. Chairman, I would hope that we would leave it up to the States, not change the standard and not turn the clock back on consumer protection, because the fact that these cases can be brought means that other consumers can have bandages that are not contaminated, because the companies have not had to pay the punitive damages. Mr. Chairman, this is a very valuable amendment. I hope we leave it up to the States to decide what the standard ought to be.

Mr. SCOTT. So asbestos cases are not changed as a result either of the amendment or the passage of the bill?

Mr. SCOTT. Mr. Chairman, will the chairman of the committee respond to a question? Mr. Chairman, I would ask, the language in the bill is changed in one of the sections. I ask a question during the hearings as to whether or not asbestos cases would be exempted from this bill. In committee I was told that asbestos cases would not be affected by the passage of this bill. With the change and with this amendment, is that still the case?

Mr. SCOTT

Mr. SCOTT. I thank the gentlewoman for yielding. Mr. Chairman, we have already heard the outrage that this bill has, by discriminating against children, retirees and homemakers who may lose limbs, suffer blindness or others, without the economic loss. And they do not receive the same kind of treatment under this bill as someone with a big fat paycheck. I want to talk a minute about joint and several liability. Mr. Chairman, we have heard the scare tactics of 1 percent fault having to pay the full damage. Well, Mr. Chairman, the majority saw an amendment proposed that would have said that only those with a substantial amount of participation, 20 percent, would be forced to pay the full freight, not those with 1 percent. That amendment was ruled out of order. Mr. Chairman, if we have a situation where there is a problem with the design and the manufacture and the possible misrepresentation at sale, why should the victim have to sort all this out, getting three separate verdicts and having to chase down three separate defendants? The fact is that in the business community you can insure for that loss and apportion it before it happens, and you ought not have to have that done by the defendant. Mr. Chairman, there is a case, Gray versus Dayton Hudson Corp., where the manufacturers of children's pajamas had a product that the court found the manufacturer was uniquely aware that the product was flammable. The court noted that the pajamas in question burned almost as quickly as newsprint. Mr. Chairman, this company could have, economically, feasibly treated the pajamas so they would not burn. This company would benefit if this amendment were not passed. Children sleep safely tonight, Mr. Chairman, because punitive damages removed these from the market. Let us not turn the clock on consumer protection.

Mr. SCOTT

Mr. SCOTT. Mr. Chairman, I first want to point out that we obviously do not have enough time to debate the issue. As we have seen, Members do not even have time to yield to each other as is customarily. Second, I wanted to point out since the Girl Scouts have come up, the information I have is that the conference data base uncovered that only one punitive damage award was ever awarded against Little League, Boy Scouts of America, or Girl Scouts of America. This punitive damage award stemming from a sexual molestation claim was subsequently vacated by an appellate court. Mr. Chairman, the lawsuits we are talking about are designed to empower consumers who are ripped off, maimed or injured, but with the right to go to court every consumer is somebody. And if a corporation thinks about ripping somebody off or recklessly exposing them to serious injuries, because they want to make a little bit more profit, that corporation has to remember that every consumer has the right to be treated fairly. And they cannot calculate whether or not they can make a little bit more money by exposing someone to serious injuries or danger. With the changes made earlier this week, Mr. Chairman, we make it harder for individuals to bring suit. Even if they bring a suit and win, if they come in under the amount offered in settlement, a corporation is rewarded by that legislation, but the plaintiff, having had the nerve to challenge a corporate behavior, may end up losing their homes. Mr. Chairman, there are only a few punitive damage cases in American history. Let me just cite a few which are typical of the kind of cases we are talking about. We are talking about a 43-year-old teacher who was injured after having being treated with surgical bandages when the company knew that the bandages were contaminated. They had been notified on numerous occasions that the bandages in the warehouse were contaminated. The quality control director had placed a hold on the bandages, and they had nevertheless decided to sell the bandages and dispute the findings of the FDA and others that there was a contamination. The plaintiff suffered extensive scarring, loss of motion in his back and emotional distress. His medical bills are only $4,200 and that is the kind of behavior that would be protected if we pass this bill. That is Darby versus Western Medical Enterprises, a 1984 California case. And I want to cite that case so we do not get into these wild examples that you can never track down. Mr. Chairman, in Oglevie versus International Playtex, a significant punitive damage award, they had complied, technically complied with the Food and Drug Administration regulations, but the court found that there was an abundance of evidence that Playtex had deliberately disregarded studies and medical reports linking high-absorbency tampon fibers with increased risk of toxic shock syndrome when other manufacturers were responding to this information by modifying or withdrawing their products. Moreover, there is evidence that Playtex deliberately sought to profit from the situation by advertising their high-absorbency tampons when they knew that other manufacturers were recalling their products. Mr. Chairman, there are also cases of cotton flannel pajamas that the court found were just about as flammable as newsprint. They were hit with a punitive damage case. That is the kind of behavior we are trying to prevent.

Mr. SCOTT

Mr. SCOTT. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I want to add just one other point to this very briefly and that is that you could go through all of that what the gentleman from North Carolina said, and in fact you could have a winning lawsuit and still be forced to pay opposing attornerys' fees if you come in under an offer made sometime during the middle of trial. Mr. Chairman, the reason that we have attorneys' fees provided in these kinds of cases is that the damage, the financial damage is ususally so small that you have an empty promise in discrimination laws if this amendment is not passed. The empty promise without attorneys' fees is you go to court and you will pay more than you could possibly get. I would hope that this amendment would pass, would keep the law as it is, and that people who are discriminated against be vindicated and have those rights vindicated in court.

Mr. SCOTT

Mr. SCOTT. Madam Speaker, the strength of our national defense has always depended not only on the size of our armory, but in the people who serve. Stock piles of bullets, bombs, and ships are of no use without the brave men and women who are willing to put aside personal hopes and dreams for a time to serve the common good. We owe a tremendous debt of gratitude to these Americans; and one of the ways we have done this is to provide health care services to our veterans. Unfortunately, these services are now the subject of proposed budget cuts. The rescissions that target Veterans' hospitals, and more specifically remove funding for ambulatory care facilities at Veterans' hospitals, will reduce access to general health care for our veterans, and will make it more difficult to deliver important preventive health care services at these facilities. The construction of the ambulatory facility at the VA hospital in Hampton, VA is also considered a top priority by the 177,000 patients that currently receives its services. As the fourth oldest hospital in the system, the VA Medical Center in Hampton provides outpatient and inpatient care to veterans who have defended our country in its time of need. This veterans' facility and the others across the country are able to return the favor by meeting health care needs of these dedicated veterans. The six projects under attack in the GOP rescissions, are not new projects. Several have been under consideration for congressional funding since 1989. The funding has been approved in the past. It is only now, as the new majority looks for ways to finance tax cuts, that the ambulatory care facilities are at risk. Mr. Speaker, the veterans who use these facilities are not wealthy, or they receive at the VA hospital constitute their sole access to health care. As we move from inpatient care to primary care in the general delivery of health care, it is important that we continue to offer similar services to our veterans. These preventive services reduce the need for costly inpatient services. In the long run, this will go further toward saving taxpayer dollars than the assorted tax cuts being proposed by the majority. I call upon my colleagues to vote to restore the funding to the VA ambulatory care projects when the rescission package is brought to the floor next week. These projects make sense, and send a clear message that we are committed to our veterans and to their well-being. It is the least we can do to thank them for their service.