Henry Waxman

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, I rise in support of the Mink amendment.

Mr. WAXMAN. Mr. Chairman, I thank the gentlewoman for yielding time. I cannot think of anything more corrupt than to take from the poor to give tax breaks for the rich, and I cannot think of anything more immoral than to punish people who are poor just because they are poor. Reject the bill before us and support the Mink amendment.

Mr. WAXMAN

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

Mr. WAXMAN. I yield to the gentleman from California.

Mr. WAXMAN. Mr. Chairman, I am astounded at the comments of my colleague from California, new chairman of the Subcommittee on Health of the Committee on Ways and Means. Our State of California has these limits that this proposal would impose upon the whole country. Is that health care reform? The State of California has 3 million people who are uninsured. It has not solved our problems. Has it led to any less defensive medicine? There is no evidence of that whatsoever. Has it reduced the premiums the doctors pay? Perhaps, somewhat, it is stabilized. It may have had that value. But this is not health reform. If you are being told we have to keep somebody who is injured and maybe even butchered in surgery from recovering to make them whole so that we have health reform, this is not what health reform is all about.

Mr. WAXMAN. If the gentleman will permit, medical malpractice and defensive medicine is a real problem. We need to address it. We need to look at a lot of different alternatives, alternative dispute mechanisms, some ways to compensate people who can never find an attorney to allow them to get some access to some reward for the pains that they have suffered. But this does not address these issues. The committees have never held hearings on it. This is an amendment dropped on us this morning in this latest form and I am sure that as they read through how poorly drafted it is, with the unintended, I assume unintended consequences, that it is an embarrassment to those who are supporting it.

Mr. WAXMAN. Mr. Chairman, I would say to the gentleman, I am an attorney. What is that supposed to mean?

Mr. WAXMAN. Mr. Chairman, let us understand that this legislation before us today sets a very high threshold before punitive damages can be awarded. I think what this amendment is doing is using the FDA as a cover for manufacturers whose products have caused real harm to consumers. Even in cases where the manufacturers' behavior has been egregious, malicious, or knowingly negligent, there is a high standard for collection of awards. Title II of the bill states that in order to collect punitive damages, a claimant must be able to show by clear and convincing evidence that a manufacturer specifically intended to cause harm or engage in conduct that illustrated a conscious, flagrant indifference to the safety of others. If a plaintiff who is injured can maintain that threshold and show that a company acted with flagrant disregard for the safety of others, why should a drug company be protected because of the FDA approval? The FDA approval does not mean that the FDA is there as a watchdog, to be sure that the company, after it has that approval, is doing everything it properly should. The FDA may never know about the complaints that the company has had that the product that they manufacture is now causing a lot of harm to people, yet they continue to sell it. Should an injured consumer be punished if a company continues to sell a product which it knows or suspects is not performing properly, when the company was in possession of numerous consumer complaints or other ``required to submit'' to the FDA? Mr. Chairman, the FDA has very limited independent legal authority to demand documentation from manufacturers, nor does the agency have the resources to police these manufacturing facilities. The agency relies on the manufacturers to be honest and to follow the rules. The majority of them, no doubt, do that. However, what about those cases where they do not, but they still technically meet the test of this amendment; that is, they submitted what was required to FDA, they have not bribed an official, they have not lied to the FDA during the product review in order to receive an approval? What about those cases where there is harm and that harm is a result of the company's misconduct, or of the company's taking chances on safety, of a company's operating just on the razor's edge of legality? For those cases, this bill establishes, elsewhere, a high standard under which consumers would seek punitive damages. That standard is sufficient to protect ethical, honest, careful companies. Such companies do not need to hide behind the shield of this FDA defense that this amendment would provide. Mr. Chairman, I would like to point out that we do not have a crisis of high punitive damages being awarded in these cases. The reports about this kind of national crisis traceable to outlandish and numerous awards of punitive damages are not supportable by actual data. Contrary to what the supporters of this amendment would like us to believe, punitive damages are not common in product liability lawsuits. In the cases where such damages are awarded, they are not excessively high. A number of scholarly legal studies published between 1987 and 1991 concluded that punitive damages in a variety of State jurisdictions was awarded in no more than 8 percent of the cases. In those cases, awards were on the average comparable in size to amounts awarded for compensatory damages.

Mr. WAXMAN. Mr. Chairman, is the gentleman a doctor?

Mr. WAXMAN. I want to make the point that this amendment which was just thrown together on the floor last night, revised again today, never had a day of hearings, it does not apply just to mistakes. It applies to intentional conduct. A doctor who comes in, a surgeon who comes in drunk and butchers somebody would be protected under this amendment to no more than $250,000 in damages. It has no relationship to the kind of conduct that might have been involved, like a psychiatrist raping an individual patient and harming that person for life. That is a psychological damage. If you say they are $250,000 in total noneconomic damages, there may be no economic damages for that kind of case. But to say that somebody should get $10,000 a year, when their lives are destroyed, for 25 years, that is good enough? I find that tremendously offensive. If you cannot create a leg to put on somebody whose leg was amputated improperly, then the pain and suffering and the humiliation means nothing more than some limited damage. I just want to point that out to the gentleman.

Mr. WAXMAN

Mr. WAXMAN. Mr. Speaker, I ask my colleagues to join me in saluting Mr. Togo Tanaka on the occasion of his receipt of the Spirit of Wellness Community Award from the Wellness Community in Santa Monica, CA. As an active member of the Wellness Community Board of Directors, Mr. Tanaka has made a tremendous contribution to realizing the goal of the Wellness Community. Togo Tanaka is one of the most prominent members of the large Los Angeles Japanese-American community. A political scientist by training, Mr. Tanaka has also served as a newspaper editor, publisher, and leading figure in the field of real estate. In addition, he served 10 years as a director of the Federal Reserve Bank of San Francisco and on the advisory council of the California World Trade Commission. During World War II, like virtually every other individual of Japanese ancestry, Mr. Tanaka was interned at a remote rural relocation center. Tanaka, who is a native-born American citizen, has never been bitter about the great injustice he and others of Japanese ancestry suffered from the unconstitutional and unconscionable forced relocation program. Despite Mr. Tanaka's busy professional life and strong commitment to his family, he has found the time and energy to become deeply involved in numerous philanthropies. Among those to which he is most dedicated are the Wellness Community, the Crippled Children's Society, the American Red Cross, and the Japanese Cultural and Community Center. I ask you, Mr. Speaker, and all of our colleagues to congratulate Togo Tanaka and to wish him continued happiness, good health, and success in all future endeavors.

Mr. WAXMAN

Mr. WAXMAN. I yield to the gentleman from Illinois.

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in favor of the amendment. This supermandate in this legislation is about the most far-reaching proposal, has sweeping impact on existing environmental laws. Now those laws are up occasionally for renewal, and, when we revisit those laws, we ought to deal with problems in those laws, but under this legislation they are going to supersede all those laws as if they did not exist. The gentleman from Louisiana [Mr. Hayes] said that all the precedents, all the court decisions interpreting the statutes involved, would be thrown out. They would have to look at it in the light of this one bill. This is what they call one-size-fits-all. Forget whether the Clean Air Act operates in a health based standard, or the Toxic Substances Act is a risk assessment bill, or some other legislation were designed to have a technology standard. Whatever those laws might have said on those points, we are going to ignore, and we are going to let this bill supersede those laws. Mr. Chairman, what is really at stake is a rollback of protections for people. The reason those laws were designed the way they were is based on the historical experiences. For example, in the Clean Air Act we had a law saying that, if there are toxic air pollutants, they ought to do a risk analysis before they set a standard, and so, when we had toxic pollutants that cause cancer, or birth defects, or neurological problems, in 1970 to 1990 the law was to do a risk based standard, and EPA could not figure out how to do that. So, after 20 years only seven standards were set for pollutants. Finally in 1990 we said in the Clean Air Act, ``This doesn't make any sense. Let's require the use of the technologies that will reduce these pollutants that cause such enormous harm,'' and that made a lot of sense, and, after the law was adopted in 1990, we have seen an enormous amount of progress in protecting people from tons and tons of these toxic air pollutants. In the urban areas of our cities we have a health based standard, and we say, ``Let's achieve the health based standard set of strategies to do it,'' and we have a law that has been working, it has been successful, but with the supermandate under this legislation we would not have a health based standard anymore. It would have to go to a cost-benefit analysis. The point that I want to make is really what is at stake are all these existing laws. If someone does not like the Clean Air Act, or the Toxic Substances Act, or the Endangered Species Act, when those bills come up for renewal let us fight the fight out. Let us debate those issues, not adopt something that has such sweeping consequences. Now we have to ask why are we facing something with such sweeping consequences. It is one of two, and maybe a combination of the two, motives. One is to, I think, not having thought through what the implications are going to be, or the second is, if they thought through very carefully what the implications will be, and those that have thought it through would like to weaken all of those environmental laws. I think this legislation before us is seriously flawed in that it goes back to existing laws, weakens them. I say to my colleagues, ``If you want to say for the future we ought to do cost-benefit analysis, risk assessment, as a tool, that's fine, but not to take that analysis and tie up things for years.'' In the toxic substances law, not under the clean air law, but the toxic substances law, they spent a decade trying to set one standard, and they finally set one standard, and it was challenged in court and then thrown out because not the standard was flawed, because they challenged the analysis. Economists can come up with different points of view when they look at an analysis. Everyone knows economists disagree with each other. But we are going to allow courts and judicial review to throw out laws and regulations to enforce those laws based on whether the analysis met some court's viewpoint.

Mr. WAXMAN. But I do not think that is the bottom line because I do not think the major polluters ought to get out from under by shifting the burden on individual citizens, since ordinary people that are going to have to pay the cost out of their pockets, many of whom would not be able to repair their cars sufficiently to achieve the standard, and that is why I object to this amendment.

Mr. WAXMAN. My point is that, using the criteria the gentleman set out in his amendment, they are going to establish that case that they do not have to have the burden placed on them as a major polluter because they can achieve the same result by requiring individual consumers who own vehicles, through an inspection and maintenance program, to achieve those same reductions, but at a cheaper rate. Therefore, as I read the gentleman's amendment, they would be mandated to grant that petition.

Mr. WAXMAN. Reclaiming my time, the gentleman is wrong on that point, because the Clean Air Act says you achieve the reduction and achieve it any way that the State thinks is appropriate. They develop an implementation plan. They can develop a mix of strategies; they do not have to go after stationary sources for a certain amount or vehicles for a certain amount. They factor in all the sources of pollution. The point I am making is they may well have decided to tell a factory to spend a couple of thousand dollars per ton in order to achieve the reductions from a major source. But that major source can now come in and say, ``Wait a second, you can get the same result from an individual car owner at a less expensive rate, and we demand that you do that.'' As I read that the gentleman's amendment, the EPA would have to go along with that petition.

Mr. WAXMAN. I yield to the gentleman from Texas.

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words, and I rise in opposition to the amendment. [[Page H2350]] I want to point out that a good part of the debate, at least yesterday, was on the point this bill was going to be prospective. We are not going to open up all the laws on the books now to protect the public health and environment. This particular amendment specifically goes backward and says we are going to look at and review Federal programs designed to protect human health, safety or the environment, to revise rules and program elements, where possible, to achieve certain results. Now I want to give a real-life example of what is likely to happen under the circumstances under this proposal so that we can understand that this is a likely result that I think the proponents of this amendment would not want to see happen. Under the Clean Air Act, in order to achieve the pollution reductions of VOC's, which cause ozone, there is a requirement that there be a strategy to reduce pollution on those that cause the pollution. The pollution caused by big polluters, like automobiles or smokestacks or factories, the reduction is anywhere from $2,000 to $10,000 per ton, according the testimony from the head of the Environmental Protection Agency. But if you ask that the reductions not be from the major polluters but from individuals by requiring them to spend money to be sure that their older vehicles achieve the reduction requirements or achieve what their cars are supposed to achieve by way of emission reductions, the Environmental Protection Agency has told us that would be nearly $500 a ton. Now, that could mean that the auto industry, or a factory or a big polluter can come into EPA and complain about the regulations that have been imposed on them by their own States and say that, ``We don't think it is reasonable because you can achieve an equivalent reduction but going after individual drivers and owners of vehicles.'' And they will be right because it is more cost effective to achieve the same pollution reduction. But what we have to ask ourselves is, is that the result we would want to see? If individuals are going to have to bear the costs to repair their cars, the older the car the more polluting it will be and therefore the more it may cost to repair it. That means, often, low- income people will have to spend that money. But it is a more cost- effective way to achieve the result. I would like to ask the gentleman from Texas [Mr. Barton], who is the proponent of this amendment, would he want to see a regulation that imposes controls on a major polluter be relieved of that responsibility by having the burden placed on individuals to bear the costs because it would be a less costly may to achieve the same results?

Mr. WAXMAN. The gentleman indicated they would have to come up with the same result in some other way. How is that spelled out in the gentleman's amendment?

Mr. WAXMAN. Under the Administrative Procedures Act.

Mr. WAXMAN. Is that challengeable in court?

Mr. WAXMAN. And if the agency still disagrees, what happens then?

Mr. WAXMAN. The agency must review at that point?

Mr. WAXMAN. Mr. Chairman, I want to see how this works. An aggrieved party petitions for a rule to be reopened; then who makes the decision in that first instance?

Mr. WAXMAN. Mr. Chairman, will the gentleman yield for a question?