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Memos
�",
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF SCIENCE AND TECHNOLOGY POLICY
WASHINGTON, D.C. 20502
April 26, 1996
MEMORANDUM FOR MARILYN YAGER
ELENA KAGAN
THROUGH: ERNEST J. MONIZ
1:.
FROM:
RACHEL LEVINSON
SUBJECT:
"/!£t--
BIOMATERIALS
As we discussed earlier, I would like to provide some background information for your
consideration in developing the Administration position regarding product liability reform.
According to experts in the fields of tissue engineering and medical devices, availability of
the biomaterials that form the basis for existing products and research into future innovations
is rapidly becoming a serious problem. One example is DuPont phasing out the use of
Teflon® for all implantable devices. As you know, Teflon® is in widespread use for vascular
assist devices; grafts, valves, etc... There are many exciting new avenues of investigation
that have great potential. For instance, a California company is preparing a request for FDA
pre-market approval of "tissue engineered skin," a material that could be used in the
treatment of severe burns and diabetic foot ulcers. Research also is being conducted on other
biomaterials that form the scaffolding for artificial organs, bones and cartilage. In October,
1995, the National Institutes of Health convened a major workshop to discuss the latest
research advances and future prospects in biomaterials and medical implant science. A copy
of the executive summary is attached.
There are three factors that contribute to the environment of uncertainty surrounding the
medical device industry: product liability, regulation and third-party reimbursement. Of
these, product liability has been accorded the greatest weight among the investment
community. Both product liability and regulatory concerns contribute to a small, but
noteworthy shift toward offshore research, development and production. OSTP's principal
interests are ensuring that research into the development of important healthcare products go
forward without unnecessary barriers, and that new products are adequately tested to insure
safety, efficacy and quality, prior to broad application in the general population.
Based on information about the utility of biomaterials, it appears that the concept of
providing responsible manufacturers with some form of protection from product liability
would be a wise investment in public health. Please let me know if there is any further
information I may provide.
Attachment
cc:
Jack Gibbons
Tim Newell
�,-
Biomaterials and Medical Implant Science:
Present and Future Perspectives
A National Institutes of Health Workshop
October 16-17, 1995
Summary Report
�EXECUTIVE SUMMARY
A new vision has emerged in the field of medical implants, that of being able to design
whole organs based on a comprehensive scientific understanding of materials and their
interactions with the body. Progress in advanced materials characterization and rational
synthesis, together with molecular advances in understanding biological responses, has set the
stage for an ultrastructural basis for biomaterials and implant design.
An estimated 11 million people in the United States have medical implants,· attesting to the
importance and value that implants have in both saving and improving the quality of lives.
In the great majority of cases, implants have been successful in achieving the performance
for which they were designed.
Despite this success, the Nation is on the brink of losing its position of leadership in the
biomaterials field and in the associated $40-50 billion per year medical device industry.
Progress toward reaching our vision is threatened by the current fragmented approach to
funding research in this area, and the resulting absence of integration of efforts among the
biological, health, and material sciences.· The whole enterprise must be put on a fmner
scientific and technical basis to counteract liability issues. This can be accomplished by
providing the needed realistic determination of risk-benefit assessments of individual implants
as well as realistic expectations for the performance and safety of medical devices.
In response to the scientific opportunities and public concerns in this area, the National
Institutes of Health (NIH) convened a 2-day workshop October 16-17, 1995, bringing
together more than 100 university, industry, and government experts in biomaterials, medical
implants, and the clinical sciences. These experts were charged with recommending
directions that would advance the science in this important field.
A number of workshop presenters provided exciting examples of recent scientific progress
and described their visions for the future. In addition, six working groups convened to
discuss topics relevant to improving the quality of medical implants. The fmdings of these
working groups, upon which unanimous and integrated recommendations are based, are
summarized in the attached report. The integrated recommendations are provided below and
can be divided into two categories: (1) scientific priorities leading to full understanding and
creation of successful implants and (2) an implementation strategy to help realize .the futur;e
potential of the research advances in the field of biomaterials and medical implants.
Scientific Priorities
1.
Biologically Based MaJerials Design. Materials and devices endowed with
biological structures and functions must be designed and developed. This will
involve multidisciplinary approaches to synthesizing new, perhaps "smart" or
self-monitoring materials designed for cell-based, drug-based, and gene-based
therapies.
11
�,~
2.
Scientific Basis for Detennining Perfonnance and Quality of Implants. More
efficient methods to assess human acceptance of biomaterials must be
developed, as must more predictive, less costly in vivo and in vitro models.
This will require a focus on reliability, accelerated testing, failure analysis,
imaging, models, clinical trials, outcomes analysis, and improved
understanding of the biology-biomaterial (host-implant) interface.
3.
Advanced Processing and Manufacturing. Attention must focus on the
processing and manufacture of well-characterized materials, including biostable
materials as well as bioresorbable and scaffold materials.
Implementation Strategies
The primary recommendation is the promotion of mechanisms to facilitate multidisciplinary
research and design through mission-directed and hypothesis-driven programs. In light of
this primary recommendation, workshop participants recommended the following three
specific actions:
1.
Programmatic Changes. Programs of excellence (both local and distributed)
are needed to provide an adequate range of crossdisciplinary core
infrastructures in research, design, and education.
2.
Central Resources. A central resource of databases relating to materials and
devices as well as reference materials for research and education should be
created.
3.
Integration of Approach. An integrated programmatic approach and review of
biomaterials activity is needed, including coordinated, cooperative funding
among Nlli components as well as other agencies, such as the National
Science Foundation and the National Institute of Standards and Technology .
. All workshop participants shared enthusiasm for the challenges and opportunities that
motivated the Nlli to cunvene this review. They believe that if the workshop
recommendations are implemented, the vision of being able to design whole organs based on
a .comprehensive scientific understanding of materials and their interactions with the body ...
will become a reality. Both the patient population and the medical device industry in the
United States will benefit greatly from achieving this vision.
iii
�THE: WHITE: HOUSE:
WASHINGTON
April 25, 1996
MEMORANDUM TO DON BAER .
FROM:
SUBJECT:
(2
BRUCE LINDSEY
"- -
PRODUCT LIABILITY VETO CEREMONY
If and when Congress sends us the Product Liability Conference Report, we
should consider a veto "event" involving real people.
Attached is a memo outlining possible cases. One of the more compelling cases is
the young man who lost both arms in a hay baler accident. The jury award came on the
\
same day the Senate passed the conference report. As the memo indicates, because of
the 15 year statute of repose in the conference report, this young man would not have
been able to bring the case if the bill had been law.
CC:
Jack Quinn
Doug Sosnik
John Hilley
Alexis Herman
George Stephanopoulos
�Proposed Cases for Use in a Product Liability Veto Media Event
The following are proposed cases and individuals/organizations that could be
used in a Product Liability bill veto media event, and for later media availability. These
cases represent compelling victims of defective products who can show how this bill
would have changed the outcome of their cases, their lives and the lives of all of us.
A media event is necessary to give this fight the proper focus: it is not about lawvers:
it is about consumers who are hurt -- and even killed -- by reckless companies.
A media event with the President surrounded by victims, police officers, fire fighters,
attorneys general, state legislators and consumer group leaders, would show the
public that by vetoing this bill the President is:
•
Standing up for the thousands of average Americans who are injured by
defective products each year.
•
Strongly pro-consumer, fighting to protect public health and safety.
•
Tough against corporate crime and indifference, which results in the
manufacture of defective products.
•
Expecting corporate America to be good citizens and to be held
accountable for their actions.
SPECIFIC CASES THAT WOULD HAVE BEEN AFFECTED BY THE BILL
NOTE: This is a preliminary list of the cases that could be used to highlight
various harmful effects of the bill. More will be forthcoming.
1)
Wisconsin/Oregon Worker Injury Case: The same day the Senate passed the
Product Liability bill a jury in Racine, WI, ordered a company to pay $8.5 million
(reduced to $6.3 million) in damages to a young man who lost both arms in a
tractor hay baler. He would not have been able to bring the case if the bill had
been law -- even to recover health costs and lost wages -- because the hay
baler was 20 years old.
The young man and his parents are available to speak with the news media.
2)
Texas Gas Explosion Case: This past February a Houston jury assessed a $72
million punitive damages judgment against a gas firm after an explosion killed
three people and injured 21 others. One month later, a provision was secretly
inserted into the Product Liability Conference Report that would make such
cases subject to the punitive damages cap. Therefore, if this bill had been law
the maximum punitive damages award that could have been assessed is $10.9
million. 85 percent less than what the jury awarded.
Members of two families are available to speak with the news media.
3)
Ford Bronco Case: In 1995, an Indiana jury awarded two women $58 million
in punitive damages against Ford for faulty design of the Bronco II vehicle, and
another $4.4 million in compensatory damages for permanent injuries and
medical care. The vehicle's design was unusually prone to rollovers -- more
than 260 people have been killed this way, several times more than for any
comparable vehicle. If H.R. 956 had been law the punitives cap would have
�allowed for an award of only $8.8 million. 85 percent less. Original design
changes proposed by Ford engineers would have cost only $83 per vehicle.
The victims mother is available to speak with the news media.
4)
GM Forced to Change Dangerous Pickup Truck: In 1993, a Georgia jury
assessed a $101 million punitive damage award against GM for a defective
fuel-tank design. Compensatory damages were only $4.2 million; a doubling
of that amount would hardly have garnered the attention of the public and the
National Highway Transportation Safety Administration, which asked GM to
recall the vehicles two months after the jury award.
The parents of one dead victim are available to speak with the news media.
5)
Tobacco Companies Potentially Escape Liability: The cap on punitive damages
could affect tobacco litigation, particularly against those firms that lied to
consumers about cigarette dangers, manipulated nicotine content and targetted
children.
Mississippi Attorney General Mike Moore might participate in an event.
Representatives of the American Heart Association, American Lung Association
and the American Cancer Society might also be available.
ADDITIONAL CASE EXAMPLES THAT ILLUSTRATE THE BILL'S HARMFUL EFFECTS
1)
Minnesota Garage Door Death: Many automatic garage door openers are older
than 15 years, the bill's statute of repose. A Minnesota child was among at
least 45 children who have died from defective openers, which used to lack
adequate safeguards allowing the closing door to reverse direction. As a result
of a defective product case brought on behalf of the Minnesota child, the state
and then Congress passed legislation requiring automatic back-up devices on
garage door openers.
The child's mother is available to speak with the news media.
2)
Maryland Man Killed While Testing Defective Equipment: In 1989 a Maryland
man was killed while inspecting a defective machine that had earlier injured a
fellow worker. His death was recorded on videotape while testing the machine
for the product manufacturer. His family was awarded $2.8 million in
compensatory damages. If the machine had been more" than 15 years old the
family could not have even brought the lawsuit.
The wife of the product tester is available to the news media.
3)
Protection for Gun Sellers: The seller liability provision in the bill would let gun
dealers who knowingly sell firearms to convicted felons, minors, and high-risk
individuals who then use the weapons to injure or kill to receive the bill's
protections. Most gun dealers would have their liability capped at $250,000
because they are a small business. A Florida gun dealer sold a gun to an
intoxicated man, who required assistance in filling outthe paperwork. The man
shot his estranged girlfriend and rendered her a quadriplegic. A jury ordered the
reckless dealer to pay $11.5 million in compensatory damages. Note: There
was no punitives award, so this case would not have been affected by the bill.
Gun control groups and police officials could speak to the news media.
II
�Recent Wisconsin\Oregon Case lliustrates Draconian Effect
of Product Liability Bill
Oregon Man Who Had Both Arms Cut Off Would Have Been Barred From Coun
On March 21, the Senate passed the final conference report on the product liability bill,
which would greatly limit citizens' rights and access to the courts. That same day, a jury in Racine,
Wisconsin, ordered manufacturing giant J.I. Case Corporation of Racine to pay $6.5 million in
compensatory and $2 million punitive damages to a young man who had both arms cut off in an
Oregon farm accident involving a defectively designed tractor hay baler. This case could not have
been tried under the proposed product /iabiliO' bill because it bars lawsuits where a product is more
(han 15 vears old. regardless of whether the product was built to last 15. 20 or even 50 vears. 1.1.
Case could not have been sued to compensate the victim for medical costs or lost wages due to the .
accident.
. In the Racine case, the defective 970 Case tractor hay baler was 20 years old at the time of
the accident. During the trial, it was learned that 1.1. Case could have made the tractor hay baler
safe if a 70-cent part had been included in the original manufacture of each machine. Even though
the manufacturer inspected the tractor involved in the accident, and found that the systems in
question functioned in the same way as when the tractor left the factory 20 years ago, the arbitrarY
age limit established under this bill would have prevented this young man from even getting in the
courthouse door.
The victim in the J.I. Case farm accident, Steven Sharp, was 17 years old in 1992 when the
diesel tractor's baler from which he was clearing hay self-started without warning, pulling him into
the baler and cutting off both of his arms. The jury, which heard the case in a courtroom five
blocks from the J.I. Case corporate headquarters, took its responsibilities in this case with utmost
seriousness and determined that the young man was partly to blame for his injuries. Accordingly,
the compensatory award was reduced to $4.3 million.
Two previous tragedies were a direct result of this same design defect. In 1985, Mickey
Iones of Minnesota had his right arm mangled and in 1990 Raymond Tautges of Tennessee was
decapitated. There are reportedly as many as 40,000 Case tractors like the ones that caused these
tragedies in use by farmer~ nationwide.
William H. Manning, Sharp's attorney with the fIrm of Robins, Kaplan, Miller & Ciresi, is
available to discuss this case. His direct number is (612) 349-8461. Steven Sharp, Mickey Jones
and Michael Tautges, the son of Raymond Tautges, also are available to present the perspective of
. injured consumers and families.
�FEDERAL PRODUCT LIABILITY BILL
WOULD JOLT TEXANS AGAIN
Natural Gas Companies Responsible For Disaster
Would Have Gotten a Slap on the Wrist
The companies responsible for a deadly natural-gas blast in April 1992 near Brenham, Texas,
would have made out like bandits had the product liability bill recently passed by Congress been the
law in that state at the time: the punitive damages judgment against them would have been reduced
85 percent. from $72 million to $10.9 million. The explosion killed three people and injured 21
others, and caused more than $9 million in property and livestock damage in two counties. The
blast was recorded on seismic monitors in Austin, about 70 miles from the site, and rattled windows
more than 90 miles away.
A Houston jury decided this case in February 1996. One month later a provision was
secretly inserted into the Conference Report that expanded the scope of the bill to include energyrelated disasters -- a special interest benefit that would protect wrongdoers such as the gas
companies responsible for the Brenham blast.
The jury found that MAPCO and subsidiaries Seminole and Mid-America Pipeline, all of
Tulsa, Oklahoma, placed profit over the safety of their workers and community by recklessly
overfilling a storage cavern with highly volatile natural gas to twice its operating permit capacity.
The jury learned that regulatory agencies uncovered numerous flaws in operating and safety
procedures at the time of the explosion and that the companies were aware that the site was
understaffed and lacked adequate safety equipment.
This "flagrant disregard" for others earned these companies a $138 million punitive damage
verdict, subsequently reduced to $72 million by the trial judge. A juror said afterward that this
unanimous decision "should make a real statement for safety concerning something as dangerous as
this gas." The companies redesigned and upgraded safety systems at the site following this tragedy.
Regina and W.W. O'Donnell's lives and land were hit hard. All they wanted was fair
compensation for their losses, but the companies' indifference to their plight left them no choice but
to seek redress through the justice system. Gayle and Bill Tonn's lives also were forever changed
by the explosion, which destroyed their home and killed several cattle. Gayle summed up the
feelings of all those affected by the blast when she stated that a "big, giant corporation like that
should have had more regard for the people around [it]."
This legislation would arbitrarily limit punitive damages in cases involving natural gas, no
matter the underlying facts of the specific case, to $250,000 or two times "compensatory" damages,
whichever is greater. Because compensatory damages in this case totalled $5.4 million, the most the
jury could have awarded in punitive damages had this cap been in place is $10.9 million -- a drastic
cut from what the jury deemed sufficient to punish these reckless companies, which have a
combined net worth of about $1 billion.
Attorneys George Chandler, Jeff Paradowski and Joseph Garnett are available to discuss
this case and provide insight into the effects of the product liability legislation. Mr. Chandler and
Mr. Paradowski can be reached at (409) 632-7778; Mr. Garnett at (713) 951-1016. The O'Donnell
and Tonn families may be available to give a consumer perspective on this issue and may be reached
through Mr. Garnett.
�I;
DEFECTIVE FORD BRONCO IT
DEVASTATES~~AFANULY
260 People Killed in Vehicle Rollovers
In August 1991, Lana Ammerman Caskaden, 15, and Pamela Ammerman, 19, were
severely injured when they were ejected from the Ford Bronco II in which they were passengers.
The Bronco II rolled over four times after the driver swerved to avoid an accident. Caskaden
suffered disfiguring facial cuts and partially disabling neurological damage, while Ammerman
was severely brain damaged and is now in the care of a legal guardian.
Testimony at trial revealed that the Bronco II's high, short and narrow design made it
unusually prone to rolling over during normal use and that more than 260 people have died in
Bronco II rollovers, several times more than in any comparable vehicle. It also was learned that
Ford engineers knew of the Bronco II's propensity to roll over in early production tests, but
opted for cheap fixes and adjustments instead of taking the time and making the proper
investment to adequately stabilize the vehicle. Most telling, Ford's in-house lawyers had created
an unprecedented set of internal procedures to brace for anticipated lawsuits.
As a result of this testimony, in 1995 an Indiana jUly awarded $58 million in punitive
damages against Ford. and $4.4 million to compensate the two women for their permanent
injuries and medical care. The jury reached its punitive damage figure by multiplying the
number of Bronco II vehicles produced by $83 -- the amount Ford should have invested in each
vehicle to lower and widen the design as suggested by its own engineers.
Under the Product Liability Conference Report (HR 956), punitive damages would be
limited, no matter the underlying facts of the specific case, to $250,000 or two times
"compensatory" damages, whichever is greater. Because compensatory damages in this case
totalled $4.4 million, the most the jury could have awarded in punitive damages had this cap
been in place is $8.8 million -- about 85 percent less than the amount the jury deemed sufficient
to punish this corporate giant.
Punitive damages, which are rare, serve a vital societal purpose by punishing
manufacturers when their conduct threatens the safety of the community. Capping these awards
would allow wrongdoers such as Ford to calculate their potential liability and would give the
worst actors greater incentive to weigh their liability against the cost of changing the harmful
conduct. The limits on damages advocated in the legislation would weaken the deterrent power
of these awards and allow reckless manufacturers to escape fuIl responsibility and conceal their
products' dangers from the public.
Vickie Ammerman (mother) can be reached through attorney Scott Montross at (317)
264-4444.
�TOBACCO COMPANIES WOULD REAP GREAT BENEFITS
UNDER PRODUCT LIABILITY BILL
In late March, Congress passed a product liability bill that would make it much more
difficult for Americans injured by defective products to seek fair compensation and hold wrongdoers
accountable. There has been little, if any, attention on how this legislation would insulate tobacco
companies from punishment for allegedly lying to customers about the danger of cigarettes,
manipulating nicotine content to hook smokers and targeting the most susceptible citizens: children.
This legislation would cap punitive damage awards at $250,000 or two times compensatory
damages, whichever is greater, thereby severely limiting a major potential deterrent to tobacco
industry wrongdoing. While extremely rare, punitive damages are assessed to punish flagrant or
intentional wrongful conduct and to serve as a disincentive to future misbehavior.
The $45 billion tobacco industry would benefit tremendously from this legislation, despite its
alleged fraud and deception regarding the health risks and addictive qualities of its product:
•
In March, three former managers and scientists from Philip Morris revealed that
tobacco companies knew that nicotine was addictive and that they controlled the
manufacturing process to enhance nicotine levels. These assertions contradict
statements made under oath by Philip Morris president William Campbell and other
top industry executives when they testified before a House subcommittee in 1994.
•
In November 1995, a former research chief of Brown & Williamson stated in a
. deposition how the company and senior executives perjured themselves in front of
Congress, destroyed incriminating evidence, quashed research into safer cigarettes and
recklessly used possibly harmful additives.
•
A Philip Morris memo written sometime between 1992 and 1995 compares nicotine
with cocaine and morphine and accepts without question that the main reason people
smoke is to get nicotine into their bodies.
•
A memo from the 1970s details how tobacco companies strategically targeted children
as potential consumers and considered ways in which to capture the "youth market. "
The memo reveals that hooking this age group was essential in order for the
companies to prosper.
Right now in New Orleans, Dianne Castano, whose cigarette-smoking husband Peter died at
age 47 of lung cancer, is heading a class-action lawsuit against big tobacco that accuses the industry
of defrauding the public by hiding its knowledge that nicotine is highly addictive. Dianne is
convinced her husband could not quit a habit he started when he was 16 because of the manipulated
fevels of nicotine in this product. Even if a jury found that a smoker such as Castano bore some
responsibility for his habit, this does not diminish the fact that tobacco manufacturers ensnared their
customers by deliberately lying about the dangers of their product. In a case like this, punitive
damages clearly would be warranted if these allegations prove true. By arbitrarily capping punitive
damages, this bill would severely limit a major deterrent to tobacco industry wrongdoing.
Russ Herman, an attorney in the Castano case, is available to discuss the tobacco issue and
can provide direct insight into the effects and impliCations of the product liability legislation on these
lawsuits. His direct number is (504) 581-4892.
�I~
GEORGIA FAMILY'S TRAGEDY EXPOSES DANGER·
OF PRODUCT LIABILITY BILL
Had the product liability bill recently passed by Congress been the law in 1989, the Moseleys
might never have been able to bring General Motor's wrongdoing to light and to fully punish the
reckless manufacturer for the misconduct that resulted in their son's death.
The Moseley family was devastated in 1989 when Shannon Moseley's GM Sierra pickup was
hit on the side by a drunk driver who ran a red light. Though Shannon survived the impact, the
collision ruptured the truck's fuel tank, causing the vehicle to be engulfed in flames. Shannon died
in the fIre. He was 17.
GM was eager to settle this case. A secret settlement would ensure that this defect remained
safely hidden from the public. But the Moseleys were determined to hold GM fully accountable in
order to expose the company's indifference to public safety.
In February 1993, a Fulton County jury ordered General Motors to pay $101 million in
punitive damages to Tom and Elaine Moseley, Shannon's parents. The jury found that GM knew its
trucks had a defective fuel-tank design but had failed to correct it. GM had placed the fuel tank
outside the frame of the pickup, which safety advocates said made it vulnerable to puncturing during
a crash. Trucks manufactured between 1973 and 1987 had this tank design. Beginning in 1988,
GM moved the tanks inside the truck frame, but denied it did so for safety reasons.
A former GM safety engineer revealed during the Moseley trial that GM had intentionally
. hidden its knowledge of this dangerous safety defect for fear of alerting the public. In addition,
videotapes of GM's own crash tests between 1981 and 1983 showed that when the pickup was struck
on the side by another vehicle its fuel tank broke open.
Though the award was reversed on appeal, as many punitive awards are, it sent a powerful
message. Just two months after the verdict, the National Highway Transportation Safety
Administration called for GM to voluntarily recall its defective trucks. This led to an agreement
between GM and the government in 1994 requiring the manufacturer to initiate safety and research
programs to better its vehicles.
If GM had its way, it would have continued covering up the deadly defect in its vehicles by
entering into confidential settlements with injured consumers and their families. The Moseley case,
which settled on the eve of retrial, and the jury's punitive damage award exposed the corporation's
reckless behavior.
Under the product liability bill, punitive damages would be arbitrarily limited to $250,000 or
two times "compensatory" damages, whichever is greater. Because compensatory damages in this
case totalled $4.2 million, the most the jury could have awarded in punitive damages had this cap
been in place is $8.4 million -- a drastic cut from what it deemed after hearing all the facts to be
necessary to suffIciently punish a corporate giant such as GM. The public might never have been
alerted to this safety hazard.
James E. Butler, the Moseley's attorney, is available to discuss this issue and can provide
direct insight into the effects and implications of the product liability legislation. His direct number
is (404) 321-1700. Tom and Elaine Moseley are also available to present a consumer perspective
on this issue.
�MINNESOTA WOMAN TOUCHED BY TRAGEDY
OPPOSES DANGEROUS PRODUCT LIABILITY BILL
In late March, both Houses of Congress passed the final conference report on the product
liability bill, which would severely limit citizens' rights and access to courts. This bill would
completely bar lawsuits where a product is more than 15 years old, regardless of whether the
product was built to last 15, 20 or even 50 years.
Patti Fritz's story puts a face on the tragedy that killed her little girl, Katie, and killed and
injured many other innocent children. Katie was 6 years old when she was crushed to death in June
1989. She was getting her bike from the garage to ride to a neighborhood birthday party when an
automatic garage door failed to reverse after closing on her. It was discovered that the automatic
garage door opener lacked adequate safeguards to prevent such a catastrophe from occurring. In
fact, the U.S. Consumer Product Safety Commission found that at least 45 children died nationwide
between 1982 and 1990 by failed automatic garage door openers.
Devastated by the tragedy inflicted by this household death trap, Patti made sure that her
little girl would not be forgotten. Using our justice system, she held those responsible for Katie's
death accountable. Encouraged, she kept up the fight for positive change, testifying before
legislators and urging the adoption of better safeguards and warning labels. In April 1990,
Minnesota became the first state to mandate safe automatic garage door openers. Later that year,
this law became a model for the nation when Congress required manufacturers to include automatic
back-up devices on garage door openers. In America today, you can no longer buy a garage door
opener like the one that killed Katie Fritz.
Patti now feels compelled to speak out again after learning of the product liability bill and its
absolute bar on claims by persons injured by defective products more than 15 years old. Many
unsafe automatic garage door openers well past this age limit are still in use by unsuspecting
citizens. A family whose child is now injured by one of these openers would not be able to hold the
careless manufacturer accountable.
Shawn Baruh, Patti Fritz's attorney, is available to discuss this issue and can provide direct
insight into the effects and implications of the product liability legislation. Her number is (612)
699-0601. Patti Fritz is also available to present a consumer perspective on this issue.
�MARYLAND WOMAN'S TRAGEDY IDGHLIGHTS DANGER
OF PRODUCT LIABILITY BILL
In late March, both Houses of Congress passed the final conference report on the product
liability bill, which would greatly limit citizens' legal rights and access to the courts. Most notably,
this bill would absolutely bar lawsuits where a product is more than 15 years old, regardless of
whether the product was built to last 15, 20 or even 50 years.
Penny Tognocchi's husband, Ronald, was killed in June 1989 by a machine he was testing in
order to protect other workers from harm. A week earlier, a man at the plant was injured when this
motorized man lift -- a hydraulic work platform -- buckled under him. Ronald, a safety engineer at
the company, had the machine's manufacturer inspect it, but the representative the manufacturer sent
found nothing wrong with the man lift. Not satisfied with this scrutiny, Ronald decided to inspect it
himself. While conducting this test, the man lift went out of control and threw Ronald into the air;
he crashed down into a steel bar, which punctured his heart. He died seconds later. On October
18, 1991, a Maryland jury that heard all the facts awarded the Tognocchi family $1.3 million for
economic loss and $1.5 million for loss of husband and father.
Though the machine that killed Ronald was not yet 15 years old at the time of this tragedy,
most industrial equipment is designed to last -- and is indeed used - for decades. Had this man lift
been one day over 15 years, Penny would have been absolutely stripped of her basic right to hold
the manufacturer accountable for producing such a dangerous product. Even if the manufacturer
came and inspected the machine involved in the accident and found that it functioned in the same
way as when it left the factory, the arbitrary age limit established under this bill would prevent those
injured and the families of those killed from even getting in the courthouse door. The company
even could not have been sued to compensate the victim for medical costs or lost wages due to the
accident.
Daniel M. Clements, Penny's attorney, is available to discuss this issue and can provide
direct insight into the effects and implications of the product liability legislation. His direct number
is (410) 539-6633. Penny Tognocchi is also available to present an articulate consumer perspective
on this issue.
�PRODUCT LIABILITY BILL WOULD GIVE SPECIAL PROTECTION
TO UNSCRUPULOUS GUN DEALERS
Legislation Also Would Grant Immunity to Defective Firearm Manufacturers
The final conference report on the product liability bill, recently passed by the Senate and
House of Representatives, is a vote against gun control and the victims of death and injury by
firearms. This legislation contains provisions that primarily would benefit unscrupulous gun dealers
and manufacturers of defective firearms and make it very difficult for many victims of gun violence
and defective weapons to recover fair compensation.
Consider these cases:
•
In December 1987, a gun store in Tampa sold a rifle to Thomas Knapp, who was so
intoxicated at the time that the sales clerk had to help him fill out the paperwork.
Knapp then hunted down Deborah Kitchen, his estranged girlfriend, and shot her in
the neck, rendering her a quadriplegic. A Florida jury ordered the reckless gun seller
to pay $11.5 million in damages. The case is currently on appeal to the state
Supreme Court.
•
In December 1988, Nicholas Elliot, barely 16, walked into his school in Virginia
Beach and shot and killed one teacher and wounded another with a rifle he purchased
from Guns Unlimited, a local dealer. The boy, though with an older cousin in the
store, told the sales clerk which gun he wanted and carried the firearm from the store.
The bill's seller liability provision would let gun dealers who knowingly sell firearms to
convicted felons, minors and high-risk individuals who then use the weapon to inflict death or injury
to get away with their misconduct. Such "negligent entrustment" cases now fall under the.
protections of the bill, meaning that these dealers can benefit from the punitive damage cap of
$250,000 or two times "compensatory" damages, whichever is greater. They would enjoy the
elimination of joint liability for "non-economic" losses such as permanent loss of health and
disfigurement. Although rarely used, joint liability guards injured citizens from having to absorb
costs just because some guilty parties have gone out of business or are beyond the reach of the law.
Now this legal protection is gone. Gun dealers would also benefit from the bill's "small business"
cap, limiting punitive damages to a maximum of $250,000 for businesses with fewer than 25
employees.
Arbitrary damage caps eliminate a major deterrent
clearly warrant meaningful punitive damages.
to
gun seller misconduct. These cases
The conference report also would arbitrarily cut off the right of citizens to hold gun
manufacturers accountable when they are injured by a defective weapon that is more than 15 years
old, regardless of the fact that these products are made to last much longer. Consider how the bill
would have affected this case:
•
In January 1996, Richard Jaramillo of Santa Fe was killed when a Sturm, Ruger &
Co. "Old Model" gun fell from his hands, hit the ground and discharged into his
abdomen. These guns, manufactured between 1953 and 1972, have been responsible
for more than 600 accidental discharge deaths and injuries. Despite Ruger's
knowledge of the Old Model's design defect (it modified the design in 1972 to
eliminate this hazard), it refuses to issue a recall of the gun.
-- continued --
�The Jaramillo family would be absolutely ba"ed from holding the manufacturer liable for
Richard's death under the bill's 15-year limit, even though this gun was built to last for decades.
The family would not be able to even recover compensation for the victim's medical costs or lost
wages, which could be a considerable amount given the young age at which he was killed.
Kristen Rand, director of federal policy at the national non-profit Violence Policy Center, is
available to discuss this issue and can provide direct insight into the ramifications of the product
liability legislation as well as cases that would be affected. Her number is (202) 822-8202. Robert
Garvey, Kitchen's attorney, is available to discuss this case. His direct number is (810) 779-7810.
Deborah Kitchen also is available to present the perspective of injured consumers and families.
�EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF SCIENCE AND TECHNOLOGY POLICY
WASHINGTON, D.C. 20502
April 17, 1996
,
NOTE TO MARILYN YAGER
FROM:
RACHEL LEVINSON
SUBJECT:
f!,£l.-
BI9MATERIALS
Back~ound:
The Office of Science and Technology Policy (OSTP) is pleased to clarify misinformation
regarding its interest in bio1ll!re.rials. Congress has established the Critical Technologies
Institute (CTI) to serve as a research resource to OSTP. The contract to operate CTI was
awarded to the Rand Corporation. Part of CTI funding is a core grant which allows the
Director to start projects. Out of these, OSTP may choose to support further activities in
specific areas of interest. In October 1995, CTI approached OSTP with a proposal for a
workshop on biomaterials and product liability. The proposal stemmed from a research
paper that was writteo by a temporary employee of CTI, without OSTP knowledge or
approval, using core grant funds. The research paper had been reviewed by a number of
people, including government scientists, academicians and industry, thus allowing it to
circulate in the pubic domain. OSTP reviewed the workshop proposal and expressed interest
only in the scientific and technological aspects; i.e., assessing the current state-of-the-art of
biomaterials research, how it is being used in developing novel medical products, the status
of availability of biomaterials and what research advances, if any, are being constrained
through lack of availability of source materials.
CTI came back with a revised proposal for a workshop that retained a central focus 00
product liability issues. The proposal would have required programs funds approved by
OSTP. OSTP rejected the workshop proposal. OSTP is still interested in learning about
biomaterials in a research and development context .. Rand, through its Institute on Civil
Justice, may choose to pursue the product liability issue, without any support or connection
with OSTP.
A letter confirming this information is expected shortly from Bruce Don, CTI Director. I
will forward a copy of this to you as soon as it arrives.
Talkjn~
Pojnts:
OSTP was approached with a proposal for funding a workshop on biomaterials and product
liability. The proposal was denied.
cc:
Jack Gibbons
Ernie Moniz
�1
AP~<;!_17-S6
11,56
10,
FROM,
Critical technologies Institute
April i 7, 1990
Dr. Ernest Moniz
Associate Dirc~tor
Science Division
Office of Science and Technology
Policy
Old Execurivc Ofticc Building
Washington. DC
Dear Ernie:
As wc=chscusscd yesterday, it ~ems appropriate for me to clarify sOIm: mailers about thl.:
project that CTIIRAND is conducting to assess the potential for a strategic shortage in
key biOlnuterial!l and the technical issues that underpin Ihis situation.
It appears that a "for-comment"' draft of this research that we havc shared with colleagucs
outside RAND has come to the attention of others who have un interest in this issu~. 1
should reiterdle that we welcome specific comments from all who hnvc u perspective on
this issue and its technical considerations. I invite them to contact me directly at CTI to
discuss their COncerns and perspective.
It may he helpful to others to explain that as part of our COre research program en hosts
scvcl1Il Fellows each lC8I with unique credentials from the privute sei:hlt" S Science and
Technology commumty. These Fellows are invited to conduct rC!;Cardl during Iheir
tenure ut RAND to investigate issues they believe to be of national importance. Under
these auspiceI'. and at my discretion as the Director of CTI, we arc exploring the
possibility and nn~ure of a potential strategic shortage of biomuterials. This research hus
yet tl) undergo our peer review process. If it passcs that review and produces what we
believe to be important results we would plan to put the findings in the public d9main. liS
we do with all our research, by publishing a RAND report.
In further support of the RAND/Cfl mission to help improve: puhlic p~)licy through
unhiased. independent analysiS Cfl had proposed to OSTP thatth\~ pl~cr 1·l.:vi~wed
findings of this analysis be used to infonn a roundtable [0 discuss lhe wide mllgc of
perspecti ve.~ on this issue. As you and I have discussed, OSTP ff!cls thUI a roundtable is
not needed and we recognize that our question of OSTP intere~t ill u roundtable is II
closed matter.
..-
lOpe thi.. elps clarify matters relating co this research and would Iikl! til rdtcrutc Lhat
RAND
eicnmes the views of others with a perspective (In this IlwUer.
~~.~
~:I.::
Ral·hel Levinson
Ram Bhat
RAND
;' t 110 M ~'IIt·t·:. N \\0'
\\'a,ltilll:!11l1 III
'flft
j"t'l ,.'U:'l ::'U. :.[1(11)
Ll\'!.'U:I·j ,:',/1 t,:
I,
1:',11
PAGE
2
�THE WHITE HOUSE
WASHINGTON
April 9, 1996
MEMORANDUM FOR JACK QUINN
FROM:
ELENA KAGAN~
SUBJECT:
CONVERSATION WITH JOHN SCHMIDT
In a conversation yesterday, John Schmidt expressed real
displeasure about where the Administration is on products
liability reform.
He believes we should try to get a bill this
year.
He believes the President wants a bill this year.
He
believes we have led our friends in the Senate to think that we
want a bill this year. He doesn't understand why we are making
public statements -- including the proposed veto statement -that will prevent us from getting a bill this year.
As this suggests, his complaints about the veto statement
are mostly big-picture complaints: he thinks the statement is
inconsistent with the goal of getting a new and improved bill
this year.
I agreed with him that this is the wrong veto
statement if we want another bill. I told him I would raise his
big-picture concerns with you. But I also told him that at least
for now, the thinking around here is that (1) we do not wish to
invite another bill and (2) we therefore want a strong veto
statement.
I invited him to propose changes to the veto statement short
of making it an invitation to pass a new bill.
I told him we
might be able to tone down some language, moderate some
arguments, and so forth.
I said I would be especially anxious to
hear whether anything in the statement was legally wrong. He
said he would go over the statement with all this in mind and get
back to me with any suggested changes.
�APR-02 96 09:45
FROM:COUNSEL OFFICE
202-456-2632
TO: 61647
PAGE: 02
THE WHITE HOUSE
WA~HINGTON
March
MEMORANDUM FOR BRUCE LINDSEY
FROM:
ELENA KAGAN tf,
cc:
JACK QUINN, KATHY WALLMAN
SUBJECT:
PRODUCT LIABILITY VETO STATEMENT
Attached is a new draft of the product liability veto
statement.
I have given this to OMS for clearance, but you still
have time to make changes.
There are significant changes only in the second paragraph
and the second-to-last paragraph;
In the second paragraph, I added language making clear that
we could sign some kind of products liability bill (just not thi
one). At the meeting Harold and I attended on Friday, business
representatives practically begged us to include in Our veto
statement some opening for further negotiations. Harold thought
that we should do so. Hence this paragraph. Let me know if you
object.
In the next-to-last paragraph, I added material suggesting
that the hypothetical case we described isn't such a hypothetical
after all.
I think this is a good addition.
I decided not to
use Janice Ferriell's name (or her precise story) because
Ferri~ll is in a complicated situation that may yet end happily:
a court may find that the successor company must make good On
liability attributable to the original manufacturer. Again, let
me know if you disagree.
�E X E CUT I V E
OFF ICE
o
F
THE
PRE SID E
29-Mar-1996 09:14am
TO:
TO:
Elena Kagan
Ellen S. Seidman
FROM:
Jeffrey A. Weinberg
Office of Mgmt and Budget, LRD
SUBJECT:
Here's the draft enrolled bill memo on HR 956
DRAFT - For Executive Office of the President Use Only
MEMORANDUM FOR THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 956 - Common Sense Product
Liability Legal Reform Act of 1996
Sponsors - Reps. Hyde (R) IL and Hoke (R) OH
Last Day for Action
Purpose
Establishes Federal standards governing product liabi
lawsuits and preempts certain State laws governing such
lawsuits.
Agency Recommendations
Office of Management and Budget
Department of Commerce
Department of Health and
Human Services
Department of the Treasury
Small Business Administration
Department of Labor
Disapproval (Ve
message attac
No comment (Inf
�Department of Justice
No response
�Discussion
Your March 16th letter to the congressional leadershi
stated that you would veto H.R. 956.
The provisions of
H.R. 956 to which your letter objected are described below
other provisions are described in the Attachment.
The conference report on H.R. 956 was agreed to in th
Senate by a vote of 59-40 and in the House by _________
Joint-and-Several Liability. H.R. 956 would abolish
?joint-and-several? liability for non-economic damages (e.
pain
�and suffering) in product liability cases. Each defendant
would only be liable for its percentage of liability as
determined at trial.
In cases where a defendant goes out
business or is unable to pay its part of a judgment, the 0
defendants would not be responsible.
Your letter stated that this provision means that ?an
innocent victim would suffer when one wrongdoer goes bankr
and cannot pay his portion of the judgment.? .
Cap on Punitive Damages.
Punitive damages would gene
be limited to the greater of:
(1) $250,000; or (2) two ti
the award for compensatory damages (economic loss and noneconomic loss). However, in an action against an individu
whose net worth does not exceed $500,000 or a business wit
fewer than 25 full time employees, punitive damages would
limited to the lesser of these two amounts. A court could
award additional punitive damages if it determines that th
award is insufficient to ?punish .
egregious conduct?
?deter such conduct in the future?
Your letter stated that the cap on punitive damages w
increase an irresponsible company?s incentive to knowingly
manufacture and sell defective products.
Preemption of State Law. H.R. 956 preempts State law
that are inconsistent with the bill?s standards for produc
liability lawsuits. Your letter characterized the manner
which H.R. 956 preempts State law as a ?one-way street of
federalism, in which Congress defers to state law when doi
helps manufacturers and sellers, but not when doing so aid
consumers.? H.R. 956 would allow a State to have:
?
A shorter -- but not a longer -- time limit for f
product liability actions than the bill?s limit 0
years after delivery of the product.
?
Lower -- but not higher -- ceilings for punitive
damages than those established by the bill (descr
in the Attachment) .
Proponents? Arguments in Favor of H.R. 956
Proponents of H.R. 956 argue that the enrolled bill w
improve the competitiveness of American businesses by:
?
Preventing firms with a small share of responsibi
for a claim from having to pay a large share of t
damages.
�?
Precluding excessive awards of damages.
Removing burdens associated with the need to comp
with 50 different State laws governing product
liability.
Conclusion and Recommendations
?
We join __________________ in recommending that you veto
H.R. 956.
Attached for your consideration is a veto message tha
prepared by the Office of the White House Counsel.
It has
reviewed and approved by
Alice M. Rivlin
Director
Enclosures
�Attachment
Other Provisions of H.R. 956
----
'UMl
\ \A.
w\\ l ~ ~~tMlftL
~ \IX.~ l/Wltt~.
Statute of Repose. A product liability action involv
durable good could not be filed more than 15 years after t
delivery of the product to the first purchaser or lessee.
However, State law could shorten the period. The Senate-p
version of H.R. 956 provided a 20-year period.
Statute of Limitations. A product liability action c
not be filed more than 2 years after the claimant discover
should have discovered:
(1) the harm that is the subject
the action; and (2) the cause of the harm.
A provision in the Senate-passed version that stopped
statute of limitations from running in the event of a stay
injunction against an action was dropped.
(Such a provisi
protects claimants when a potential defendant files for
liquidation or reorganization, because the bankruptcy cour
Hill usually issuet ?""~tay pending completion of its
proceedings. )
~ ~ tIM. ~\..i0
Legal Standard for Punitive Damages. A higher legal
standard for punitive damages in product liability cases t
the current ?preponderance of the evidence? standard [used
[some] [many] [most] States] would be established. A plai
would have to establish by ?clear and convincing? evidence
the defendant?s conduct demonstrated a ?conscious flagrant
indifference to the rights and safety? of those who might
harmed.
Liability of Retailers. Retailers, including those w
rent or lease products, generally would be liable only for
damages caused by their own actions -- not for selling or
renting a defective product.
Misuse of Alteration of the Product. Damages would h
to be reducea-by the percentage of responsibility of the
claimant?s harm attributable to misuse or alteration of th
product.
Use of Product When Intoxicated. H.R. 956 would reli
defendant from liability if:
(1) the claimant was intoxic
or under the influence of alcohol or a drug that was not
prescribed for the claimant or was not being used as presc
when the accident or other event occurred; and (2) the
claimant, as a result, was was more than 50 percent
�4"
•
••
I'"
responsible.
Alternative Dispute Resolution Procedures. A claiman
a defendant in a product liability action could, within a
specified time limit, offer to proceed under certain volun
nonbinding alternative dispute resolution procedures.
Workers? Compensation Subrogation. An insurer would
given the right to recover from a manufacturer or product
seller the workers? compensation benefits paid to a claima
that are subject to a product liability action.
Biomaterials Suppliers. Suppliers of component parts
raw materials for use in the manufacture of a medical devi
that is implanted in the body would generally be excluded
liability for harm to a claimant caused by an implant. Th
Administration supported these provisions of H.R. 956.
UA.W't
CfM(fU Cct~
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�"
MEMORANDUM FOR LEON PANETTA
JOHN HILLEY
FROM:
BRUCE R. LINDSEY
RE:
PRODUCTS LIABILITY
DATE:
MARCH 20, 1996
Senators Rockefeller and Gorton are prepared to send the
Products Liability Conference Report back to the Conference
Committee and make all of the changes we have proposed except the
elimination of proportionate liability for non-economic damages.
I asked whether there was any wiggle room on this issue (e.g. two
times proportionate liability or exempt the 30 states that have
passed some form of reform in this area) and was told that the
House of Representatives will accept no change in this provision.
~ indicated it would be difficult for us to back completely
off our position, but that I would check with the "powers that
be."
Time is of the essence since the cloture vote is scheduled
for this afternoon.
�NECESSARY FIXES ON PRODUCTS LIABILITY BILL
1. Elimination of provision that liability for noneconomic
damages shall be several only.
2. Elimination of all legislative history suggesting that judges
should exceed punitive damages caps only in rare circumstances.
Slight modification of statutory language to make clear that
judges have flexibility in this area.
3. Exemption of negligent entrustment cases (against, for
example, gun dealers or bar owners) from the entire bill (as in
the Senate version) rather than from Section 103 only. This
change ~ill make clear that any limitations on punitive or
noneconomic damages in the bill will not apply in such actions.
4. Relengthen statute of repose on durable goods (20 years in
Senate version, 15 in Conference Report); return to definition of
"durable goods" in the Senate version to make clear that the
phrase applies only to workplace goods.
5. Reinsertion of provision in the Senate version tolling the
statute of limitations while a stay or injunction on the
commencement of civil actions (issued, for example, by a
bankruptcy court) is in effect.
�·,
January 4 , 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
RE:
Bruce R.Lindsey
Products Liability Reform
As you may know, products liability reform legislation is
currently in conference. As with securities litigation reform,
you are again caught between a good friend and supporter in
senator Rockefeller, who is the main sponsor of the legislation,
and a number of Democratic constituencies -- labor, consumer
groups, trial lawyers -- who are strongly opposed. Unlike
securities litigation reform, most Democrats in Congress oppose
the legislation. In the House, a broader tort reform bill passed
265 to 161; and in the Senate, the Rockefeller/Gorton bill passed
61 to 37.
Substantively, we have a greater philosophical disagreement
with products liability reform -- federalism; but fewer specific
disagreements. The Senate bill would:
Limit punitive damages in products liability cases to
two times compensatory damages, or $250,000, whichever is
greater, but allow judges to increase the award in certain
egregious cases. In the case of small businesses with fewer than
25 employees and individual defendants with a net worth of less
than $500,000, punitive damages would be limited to the lesser of
twice compensatory damages or $250,000 •.
-- Eliminate joint and several liability for noneconomic
damages, Le., pain and suffering.
-- Make retailers and wholesalers liable only if they were
themselves negligent.
-- Require that compensatory damages be reduced by the
amount a defendant receives from collateral sources, such as
insurance or workers' compensation.
-- Establish a statute of repose that would prohibit suits
involving products that were 20 years old.
-- Establish a statute of limitations that would require
plaintiffs to file suits within two years after discovering they
were harmed.
OMB's April 25, 1995 Statement of Administration Policy
indicated that we opposed an arbitrary ceiling on the amount of
punitive damages that may be awarded in a products liability
lawsuit and the abolishment of joint-and-several liability for
(h~
~
-
�noneconomic damages. Senators Rockefeller and Gorton, working
with John Schmidt and Frank Hunger, attempted to address the
"cap,,'issue by allowing the judge to increase a punitive damage
award in some cases. The bill that passed the Senate, however,
would allow a defendant who is unhappy with the judge's additur
to obtain a new trial on the punitive damages issue. Senator
Rockefeller has promised to "correct" this .in conference. No
Senator offered an amendment to change the joint and several
provision and Senator Rockefeller has not indicated a willingness
to delete the limitation on joint and several liability in
conference.
In their discussions with Senators Rockefeller and Gorton,
John and Frank have made it clear that they are not speaking for
the Administration. Nevertheless, Senator Rockefeller believes
-- based in part on a conversation with you -- that if his bill
emerges from conference, you will sign it. He has also stated
publicly that he would expect you to veto any bill that went
beyond his. As with securities litigation reform, if the Senate
bill is substantially adopted by the conference, the House, as
the price for going along, will probably be allowed to write the
Statement of Managers, thereby putting a troublesome "spin" on
ambiguous provisions, such as the judicial additur provision.
After passage of the Senate bill, the White House issued the
following statement:
The Senate-passed product liability bill is a clear
improvement on the extreme legal reform measures passed by
the House. Unfortunately, the legislation in its present
form does not go far enough toward balancing the interests
of consumers with those of manufacturers and sellers.
The Senate approach on punitive damages is an improvement on
an absolute cap, but it still has flaws. Moreover, the
Administration has consistently made clear its opposition to
the provision that would make it harder for injured
consumers to recover their full damages incases involving
more than one culpable defendant.
President Clinton supports balanced legal reform and will
work with a House-Senate conference to address these and
other c o n c e r n s . ·
~
Our "official" statements to date have not emphasized the \. \1,-0
issue of federalism, although you have exp.ressed this concern in ~ \f'~~
the past. For example, you told the ABA in 1992: "As a general
~ \0
matter, I believe that legal reform shOUld be enacted in the
laboratories of the states, rather than at the federal level."
~~
You expressed similar thoughts to the newspaper editors in Dallas
.~~~
in April, 1995. Pam Leopakis, the President of ATLA, reports
~, ~
that during a conversation with her and Senator Kennedy at a
\~
Kennedy fundraiser in April, 1995, you ridiculed House
~~
Republicans on the federalism issue, saying "I get it, We should lr\~
l
d
�'.t
devolve everything to the states, no unfunded mandates, block
grant everything, etc., but we should take over the civil justice
systems of the states. 1I When Senator Kennedy called tort reform
lIoutrageous,1I you supposedly said III'm with you. II Our statements
have said that the Administration would support lithe enactment of
limited, but meaningful, product liability reform at the Federal
level,1I as long as it IIfairly balance[s] the interests of
consumers with those of manufacturers and sellers ll and
IIrespect[s] the important role of the states in our federal
system. lI ·
The basic argument in favor of federal products liability
legislation is that it will promote uniformity, and thus
predictability. John Schmidt has been quoted in the Wall street
Journal as saying that product liability "is the one area where
there is a real case for federal action,1I and in the New York
Times as saying "We need some [federal] standards in this field.
After all, these products are sold in a national market. 1I While
it is true that certain provisions of the bills -- the statutes
of limitations and repose, exclusion of joint and several
liability for non-economic damages, the cap on punitive damages - will provide some degree of uniformity in products liability
cases, most lawsuits will remain in state courts, with state
court procedural and evidentiary rules and state court judges
interpreting the statute. Thus, in a broader sense, the
legislation will not achieve its stated goal of uniformity, while
nevertheless sacrificing state preeminence in this area of the
common law. Opponents of the legislation also point out that the
uniformity is lIone-way uniformity.1I Thus, (1) the legislation
IIcaps" punitive damages, but does not make punitive damages
available in states that do not have them nor does it preempt
states that provide for lower caps; (2) the bill's statute of
repose preempts only those states that do not have a statute of
repose or that provide for longer periods; and (3) the bill
mandates to the states federal IIcomparative negligence"whereby
awards are reduced by a percentage equal to the plaintiff's own
fault; unless a state has a IIcontributory negligence" standard
whereby all damages are barred by any plain'j:iff fault.
I'j: is unclear how long the conference will take or whether
the differences in the Senate. and House approaches can be
resolved. In order to'avoid a repeat of the criticism for last
minute decision-making we received after you vetoed the
securities· litigation reform bill, we should decide sooner rather
than later what. our position is. If possible, we should make our
objections broad-based, rather than overly technical, and we
should make certain that our position is well understooq by our
friends, including Senator Rockefeller.
�January 4 , 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
RE:
Bruce R. Lindsey
Products Liability Reform
As you may know, products liability reform legislation is
currently in conference. As with securities litigation reform,
you are again caught between a good friend and supporter in
Senator Rockefeller, who is the main sponsor of the legislation,
and a number of Democratic constituencies --. labor, consumer
groups, trial lawyers -- who are strongly opposed. Unlike
securities litigation reform, most Democrats in Congress oppose
the legislation. In the House, a broader tort reform bill passed
265 to 161; and in the Senate, the Rockefeller/Gorton bill passed
61 to 37.
Substantively, we have a greater philosophical disagreement
with products liability reform -- federalism; but fewer specific
disagreements. The Senate bill would:
Limit punitive damages in products liability cases to
two times compensatory damages, or $250,000, whichever is
greater, but allow judges to increase the award in certain
egregious cases. In the case of small businesses with fewer than
25 employees and individual defendants with a net worth of less
than $500,000, punitive damages would be limited to the lesser of
twice compensatory damages or $250,000.
-- Eliminate joint and several liability for noneconomic
damages, i.e., pain and suffering.
-- Make retailers and wholesalers liable only if they were
themselves negligent.
-- Require that compensatory damages be reduced by the
amount a defendant receives from collateral sources, such as
insurance or workers' compensation.
-- Establish a statute of repose that would prohibit suits
involving products that were 20 years old.
-- Establish a statute of limitations that would require
plaintiffs to file suits within two years after discovering they
were harmed.
OMB's April 25, 1995 Statement of Administration Policy
indicated that we opposed an arbitrary ceiling on the amount of
punitive damages that may be awarded in a products liability
lawsuit and the abolishment of joint-and-several liability for
�noneconomic damages. Senators Rockefeller and Gorton, working
with John Schmidt and Frank Hunger, attempted to address the
"cap" issue by allowing the judge to increase a punitive damage
award in some cases. The bill that passed the Senate, however,
would allow a defendant who is unhappy with the judge's additur
to obtain a new trial on the punitive damages issue. senator
Rockefeller has promised to "correct" this in conference. No
Senator offered an amendment to change the joint and several
provision and Senator Rockefeller has not indicated a willingness
to delete the limitation on joint and several liability in
conference.
In their discussions with Senators Rockefeller and Gorton,
John and Frank have made it clear that they are not speaking for
the Administration. Nevertheless, Senator Rockefeller believes
-- based in part on a conversation with you -- that if his bill
emerges from conference, you will sign it. He has also stated
publicly that he would expect you to veto any bill that went
beyond his. As with securities litigation reform, if the Senate
bill is substantially adopted by the conference, the House, as
the price for going along, will probably be allowed to write the
Statement of Managers, thereby putting a troublesome "spin" on
ambiguous provisions, such as the jUdicial additur provision.
After passage of the Senate bill, the White House issued the
following statement:
The Senate-passed product liability bill is a clear
improvement on the extreme legal reform measures passed by
the House. Unfortunately, the legislation in its present
form does not go far enough toward balancing the interests
of consumers with those of manufacturers and sellers.
The Senate approach on punitive damages is an improvement on
an absolute cap, but it still has flaws.
Moreover, the
Administration has consistently made clear its opposition to
the provision that would make it harder for injured
consumers to recover their full damages in cases involving
more than one culpable defendant.
President Clinton supports balanced legal reform and will
work with a House-Senate conference to address these and
other concerns.
Our "official" statements to date have not emphasized the
issue of federalism, although you have expressed this concern in
the past. For example, you told the ABA in 1992: "As a general
matter, I believe that legal reform should be enacted in the
laboratories of the states, rather than at the federal level."
You expressed similar thoughts to the newspaper editors in Dallas
in April, 1995. Pam Leopakis, the President of ATLA, reports
that during a conversation with her and Senator Kennedy at a,
Kennedy fundraiser in April, 1995, you ridiculed House
Republicans on the federalism issue, saying "I get it, we should
�devolve everything to the states, no unfunded mandates, block
grant everything, etc., but we should take over the civil justice
systems of the states." When Senator Kennedy called tort reform
"outrageous," you supposedly said "I'm with you'." Our statements
have said that the Administration would support "the enactment of
limited, but meaningful, product liability reform at the Federal
level," as long as it "fairly balance[s] the interests of
consumers with those of manufacturers and sellers" and
"respect[s] the important role of the States in our federal
system."
The basic argument in favor of federal products liability
legislation is that it will promote uniformity, and thus
predictability. John Schmidt has been quoted in the Wall Street
Journal as saying that product liability "is the one area where
there is a real case for federal action," and in the New York
Times as saying "We need some [federal] standards in this field.
After all, these products are sold in a national market." While
it is true that certain provisions of the bills -- the statutes
of limitations and repose, exclusion of joint and several
liability for non-economic damages, the cap on punitive damages - will provide some degree of uniformity in products liability
cases, most lawsuits will remain in state courts, with state
court procedural and evidentiary rules and state cpurt judges
interpreting the statute. Thus, in a broader sense, the
legislation will not achieve its stated goal of uniformity, while
nevertheless sacrificing state preeminence in this area of the
common law. Opponents of the legislation also point out that the
uniformity is "one-way uniformity." Thus, (1) the legislation
"caps" punitive damages, but does not make punitive damages
available in states that do not have them nor does it preempt
states that provide for lower caps; (2) the bill's statute of
repose preempts only those states that do not have a statute of
repose or that provide for longer periods; and (3) the bill
mandates to the states federal "comparative negligence" whereby
awards are reduced by a percentage equal to the plaintiff's own
fault, unless a state has a "contributory negligence" standard
whereby all damages are barred by any plaintiff fault.
It is unclear how long the conference will take or whether
the differences in the Senate and House approaches can be
resolved. In order to avoid a repeat of the criticism for last
minute decision-making we received after you vetoed the
securities litigation reform bill, we should decide sooner rather
than later what our position is. If possible, we should make our
objections broad-based, rather than overly technical, and we
should make certain that our position is well understood by our
friends, including Senator Rockefeller.
�/
',<
January 4, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
96 JAN 4
p
2 : 32
Bruce R. Lindsey
RE:Products Liability Reform
As you may know, products liability reform legislation is
currently in conference. As with securities litigation reform,
you are again caught between a good friend and supporter in
Senator Rockefeller, who is the main sponsor of the legislation,
and a number of Democratic constituencies -- labor, consumer
groups, trial lawyers -- who are strongly opposed. Unlike
securities litigation reform, most Democrats in Congress oppose
the legislation. In the House, a broader tort reform bill passed
265 to 161; and in the Senate, the Rockefeller/Gorton bill passed
61 to 37.
Substantively, we have a greater philosophical disagreement
with products liability reform -- federalism; but fewer specific
disagreements. The Senate bill would:
Limit punitive damages in products liabiiity ~ases to
two times compensatory damages, or $250,000, whichever is
greater, but allow judges to increase the award in certain
egregious cases. In the case of small businesses with fewer than
25 employees and individual defendants with a net worth of less
than $500,000, punitive damages would be limited to the lesser of
twice compensatory damages or $250,000.
-- Eliminate joint and several liability for noneconomic
damages, i.e., pain and suffering.
-- Make retailers and wholesalers liable only if they were
themselves negligent.
-- Require that compensatory damages be reduced by the
amount a defendant receives from collateral sources, such as
insurance or workers' compensation.
-- Establish a statute of repose that would prohibit suits
involving products that were 20 years old.
Establish a statute of limitations that would require
plaintiffs to file suits within two years after discovering they
were harmed.
OMB's April 25, 1995 Statement of Administration Policy
indicated that we opposed an arbitrary ceiling on the ~mount of
punitive damages that may be awarded in a products liability
lawsuit and the abolishment of joint-and-several liability for
�noneconomic damages. Senators Rockefeller and Gorton, working
with John Schmidt and Frank Hunger, attempted to address the
"cap" issue by allowing the judge to increase a punitive damage
award in some cases. The bill that passed the Senate, however,
would allow a defendant who is unhappy with the judge's additur
to obtain a new trial on the punitive damages issue. Senator
Rockefeller has promised to "correct" this in conference.
In
addition, Senator Rockefeller has indicated a willingness to
reduce the statute of repose from 20 to 17 years and to extend
the limitation on punitive damages to certain charitable
organization. No Senator offered an amendment to change the
joint and several provision and Senator Rockefeller has not
indicated a willingness to delete the limitation on joint and
several liability in conference.
In their discussions with Senators Rockefeller and Gorton,
John and Frank have made it clear that they are not speaking for
the Administration. Nevertheless, Senator Rockefeller believes
-- based in part on a conversation with you -- that if his bill
emerges from conference, you will sign it. He has also stated
publicly that he would expect you to veto any bill that went
beyond his. As with securities litigation reform, if the Senate
bill is substantially adopted by the conference, the House, as
the price for going along, will probably be allowed to write t )
Statement of Managers, thereby putting a troublesome "spin" on
ambiguous provisions, such as the judicial additur provision.
~L
~
After passage of the Senate bill, the White House issued the
following statement:
The senate-passed product liability bill is a clear
improvement on the extreme legal reform measures passed b~
the House. Unfortunately, the legislation in its present
form does not go far enough toward balancing the interests
of consumers with those of manufacturers and sellers.
The Senate approach on punitive damages is an improvement on
an absolute cap, but it still has flaws. Moreover, the
Administration has consistently made clear its opposition to
the provision that would make it harder for injured
consumers to recover their full damages in cases involving
more than one culpable defendant.
President Clinton supports balanced legal reform and will
work with a House-Senate conference to address these and
other concerns.
Our "official" statements to date have not emphasized the
issue of federalism, although you have expressed this concern in
the past. For example, you told the ABA in 1992: "As a general
matter, I believe that legal reform should be enacted in the
laboratories of the states, rather than at the federal level."
You expressed similar thoughts to the newspaper editors in Dallas
in April, 1995. Pam Leopakis, the President of ATLA, reports
�•
,..,
,.
f.
that during a conversation with her and Senator Kennedy at a
Kennedy fundraiser in April, 1995, you ridiculed House
Republicans on the federalism issue, saying "I get it, we should
devolve everything to the states, no unfunded mandates, block
grant everything, etc., but we should take over the civil justice
systems of the states." When Senator Kennedy called tort reform
"outrageous," you supposedly said "I'm with you." Our statements
have said that the Administration would support "the enactment of
limited, but meaningful, product liability reform at the Federal
level," as long as it "fairly balance[s] the interests of
consumers with those of manufacturers and sellers" and
"respect[s] the important role of the States in our federal
system.-"
The basic argument in favor of federal products liability
legislation is that it will promote uniformity, and thus
predictability. John Schmidt has been quoted in the Wall Street
Journal as saying that product liability "is the one area where
there is a real case for federal action," and in the New York
Times as saying "We need some [federal] standards in this field.
After all, these products are sold in a national market." While
it is true that certain provisions of the bills -- the statutes
of limitations and repose, exclusion of joint and several
liability for non-economic damages, the cap on punitive damages - will provide some degree of uniformity in products liability
cases, most lawsuits will remain in state courts, with state
court procedural and evidentiary rules and state court judges
interpreting the statute. Thus, in a broader sense, the
legislation will not achieve its stated goal of uniformity, while
nevertheles~acrificing state preeminence in this area of the
common .law. IOpponen~s of the legislation also point out that the
uniformity is "one-way uniformity." Thus, (1) the legislation
"caps" punitive damages, but does not make punitive damages
available in states that do not have them nor does it preempt
states that provide for lower caps; (2) the bill's statute of
repose preempts only those states that do not have a statute of
repose or that provide for longer periods; and (3) the bill
mandates to the states federal "comparative negligence" whereby
awards are reduced by a percentage equal to the plaintiff's own
fault, unless a state has a "contributory negligence" standard
whereby all damages are barred by any plaintiff fault.
It is unclear how long the conference will take or whether
the differences in the senate and House approaches can be
resolved. In order to avoid a repeat of the criticism for last
minute decision-making we received after you vetoed the
securities litigation reform bill, we should decide sooner rather
than later what our position is.
If possible, we should make our
objections broad-based, rather than overly technical, and we
should make certain that our position is well understood by our
friends, including Senator Rockefeller.
At your convenience, we should probably meet to discuss.
/
�r
!
!
THE WHITE HOUSE
WASHINGTON
April 22, 1996
MEMORANDUM FOR JACK QUINN
BRUCE LINDSEY
KATHY WALLMAN·
FROM:
ELENA KAGAN tIC-
SUBJECT:
PRODUCTS LIABILITY VETO STATEMENT
I am attaching a memorandum written by a member of John
Schmidt's staff that Schmidt sent on to me. The memo criticizes,
in the harshest terms, our draft veto message for the products
bill.
(I am also attaching that message.) Below, I summarize
each criticism and give my thoughts on whether we should respond
by amending the veto message.
1. Federalism. The memo criticizes the emphasis that the veto
statement places on federalism, arguing that "State legislatures
are inherently limited in their ability to address problems that
are extraterritorial." In particular, the memo attacks our
"one-way preemption" argument, noting that certain provisions of
the bill -- such as the statute of limitations -- would displace
all state law (whether more or less consumer-friendly) and then
asserting that the provisions displacing only consumer-friendly
state law are consistent with "the purpose of the bill [which] is
to establish limits on state product liability actions, in order
to enable productive economic activity to go forward."
I believe we should continue to stress issues of federalism,
including one-way preemption. These arguments, more than any
other, signal our disinclination to reach a quick compromise.
That is why Schmidt so dislikes the arguments, but also why
(given our overall strategy) we should retain them. In addition,
we used these arguments only recently, on our March 16 SAP.
(Attorney General Reno and Judge Mikva similarly stressed the
issue of federalism last year. Finally, there is nothing
inaccurate in what we say; for example, we never claim that all
the bill's provisions preempt in only one direction.
--I think there is nothing wrong, however, with noting the
concern, expressed above, that States cannot solve this entire
problem by themselves. That concern may provide the appropriate
basis for our approval of limited product liability (just not
this product liability reform) at the federal level. I can
easily put in a sentence -- indeed, I recommend doing so -giving credence to this argument.
Recommendation:
2.
Add language re basis for some federal action
Negligent Entrustment Actions.
The memo makes a credible
�"
argument -- the strongest I've seen to date -- that the bill's
provisions on joint liability and punitive damages do not extend
to negligent entrustment actions. According to this argument,
the explicit exemption of such actions from just one section of
the bill -- that governing liability of sellers, renters, and
lessors -- rather than from the entire bill (as in the Senate
version) follows from the fact that only the seller/renter
liability section encompasses such actions in the first place.
This single section, or so the argument runs, applies to actions
"for harm caused by a product or product use;" the rest of the
bill applies to actions "for harm caused by a product." Because
negligent entrustment actions are for harm caused by "product
use" rather than by a "product," they fall under just one section
of the bill and need an exemption from only that section.
The opposing argument might go as follows. The bill as a
whole applies to actions for "harm caused by a product." That
definition, viewed alone, might well cover negligent entrustment
actions; the question here, to borrow the slogan of the NRA, is
whether guns kill people (if so, negligent entrustment actions
fall within the definition) or whether people kill people (if so,
such actions fall outside the definition). The Senate version,
recognizing the possibility of the former interpretation, made a
point of exempting negligent entrustment actions from the bill;
the Conference Report, by shifting that exemption to the section
governing seller/renter liability, indicated that while state law
governed initial liability in these cases, federal law governed
as to matters such as punitive damages. The use of the phrase
"product use" in the seller/renter section does not provide an
alternative explanation for this shift, both because the Senate
version also included that phrase and because the bill uses that
phrase only with respect to the subsection governing renter and
lessor liability and the exemption of negligent entrustment
actions applies to the section as a whole.
All in all, it is simply not clear whether the punitive
damages and joint liability sections of the bill currently apply
to negligent entrustment actions. This lack of clarity will
leave us somewhat vulnerable to those who say that we have made
up this issue. And because we have made no prior statements on
this issue, we could drop it without looking inconsistent. On
the other hand, the argument appears to have real political
resonance. John Hilley said a number of people on the Hill
(~, Sen. Feinstein) lapped it up, and the President also loved
it. Unlike many of our objections to this bill, it is easy to
explain to the public.
Currently, we make a lot out of the claim that the joint
liability and punitive damages extend to negligent entrustment
actions: in addition to asserting this claim, we base our first
hypothetical on it. In the end, I recommend retaining all of
this material pretty much as is. But I am not averse, should any
of you wish it, to adding language indicating that the extension
of the bill to negligent entrustment actions is something of an
�i
I!
open question, rather than the simple fact of the matter.
Recommendation:
ambiguity.
Do nothing or soften language by recognizing
3.
Punitive Damages. The memo criticizes our assertion that the
"clear intent of Congress, as expressed in the Statement of
Managers, [was] that judges should use this authority only in the
rarest circumstances." The actual language in the Statement of
Managers is that "occasions for additional awards will be very
limited indeed." The memo argues that this language does not
justify use of the phrase "only in the rarest circumstances."
I'm not sure I see the problem here, but if it makes John
Schmidt happy to use "only in rare circumstances" or "only in
very rare cases" or "only in very unusual cases" or something of
the sort, I am perfectly happy to do so.
Recommendation:
Soften language
4.
Statute of Limitations. The memo criticizes our argument
regarding the deletion in Conference of a provision that would
have tolled the statute of limitations when a bankruptcy court
issues a stay. The memo claims that this provision was
unnecessary because bankruptcy law already tolls the limitations
period in such circumstances.
In fact, the deleted provision would have done more than
bankruptcy law does.
Suppose Mr. Smith has two years to file a
claim. Two months into the limitations period, a bankruptcy
court issues a stay, which remains in effect for the next two
years.
Under the bankruptcy code, when the stay is lifted, Mr.
Smith has 30 days to bring suit.
(Bankruptcy law essentially
allows the clock to expire, but then gives any person screwed in
this way a 30-day grace period.)
Under the deleted provision,
Mr. Smith would have 22 months (the limitations period minus what
had elapsed when the stay went into effect).
Granted, this is not an enormous deal, but ~e don't really
treat it as an enormous deal: we say that "some" persons will
lose a "meaningful" opportunity to bring claims, which seems to
me true, and that the change "may" have "dramatic consequences,"
which may be a reach. We could (1) make this a bit softer by
fiddling with the language -- for example, by deleting the phrase
"dramatic consequences;" (2) provide more detail (as above) on
how the deleted provision differs from current law (though I
suspect this is not worth the space); or (3) delete the argument
entirely (though we used it in our recent SAP).
I vote for (1).
Recommendation:
Soften language
5. Statute of Repose. The memo argues that the Conference
Report did not apply the statute of repose to non-workplace
goods, which is a claim that we make and then use in a
�II
hypothetical. The memo notes that the only difference between
the Senate version and the final version is in the placement of
commas.
Call me over-technical, but I think the placement of commas
makes all the difference in the world here: the Senate definition
of durable goods (with the commas in one place) applies only to
workplace goods; the final version (with the commas in another
place) applies to some nonworkplace goods as well.
I suppose we
could take all this out on the ground that it doesn't matter
much.
But I am convinced that we are right on the merits.
Recommendation:
Do nothing
6.
Joint Liability. The memo urges that we craft the veto
statement carefully to leave open the possibility of a compromise
on joint liability.
In one sense, we have done this by say~ng
the President opposes "wholly eliminating" joint liability for
noneconomic damages. But in another, more real sense, we have
not, because the arguments we give for the President's opposition
would apply, at least in part, to a compromise provision.
In the end, I do not recommend any changes in this part of the
veto message. The objection to the joint liability provision is
the strongest basis for our veto.
It is an objection we have
made, in one form or another, many times in the past.
Softening
the objection would be the surest way to invite a new bill and
thus to defeat our overall strategy.
Recommendation:
Do nothing
�,,'
TO I
Elena Kaqan
BRONs
John Schmidt
Fran Alleqra on my staff qav6 me the a~~achgd memo
which I tn~nk ~8 helpfu1 in identifying problems
with the draf~ ve~o statement.
c:oo~
.------- _._._---_. -_._----YVd 9S:S1 NOH
96/S1/tO
�April 15. 1996
DRAFT MEMORANDUM
TO:
lohn R. Schmidt
Associate Attorney General
FROM:
Francis M. Allegra
Deputy Associate Atto~ General '
SUBJECT:
Comments on Draft Veto Messaeei for H.R. 956
I
As requested, the following are my comments on the draft veto message for H.R. 956.
The draft veto message contains a number of inaccuracies and Is written in a style that
seems more suitable for a press release than a careful statement of Administration policy. The
document erects a number of strawmen using strained COWitll1ctions of the bill -- in several
instances these constructions are directly controverted by the bill's legislative history. As
currently written, this document may well leave the public with the impression that the Administration could not veto this legislation on its actual terms and had to manufacrure concerns. In
taking this kind of approach to criticizing the bill, fue draft leaves the false impression that there
is no difference between the President's position~ and those that oppose any form of Federal
product liability legislation.
'
The following are the major problems:
Federalism. The second paragraph Of tl'ie draft reiterates the President's rupport for
limited. but meaningful product liability reform at the Federal level. The very next paragraph,
however, seems to negate this statement, strongly implying there is no need for Federal reform
because the States have bandIed product liability law "well" and have made "needed reforms."
As the President recognized when he was th~ Governor of Arkansas, and as you have
emphasized in your own statements on the subj~. Federal product liability reform is warranted
not because the States have performed poorly in dealing with the subject, but because State
legislaturc:s are i~ntly limited in their ability to address probJems that are ex.traterritorial and
arise in interstate commerce. Any fair dJscussion of Federalism in this context must recogniu
' -- as the National Governor's Association has recognized since 1986 - iliat no one State has the
ability to alleviate the problems faced by small and large busmes5Cs with regard to the myriad
state product liability laws. The pending bill ~us invokes the Federal government's unique
ability to affect interstate commerce (see Sen. Rep. No. 104-69 (hereinafter "Senate Report"),
l04th Cong., 1st Sess. 13-14 (1995», as does the Vresident in his support of meaningful Federal
product liability reforms.
'
coo f2J
-'--_._-
YVd 9S:S1 NOH
1
96/S1/tO
�II
-2Paragraph tbreeof the draft also incorrectly states that "[a]5 a rute, this bill displaces
state law only wilen lhat law is more favorable to CObS1UI1e1'S.· In fact, the bill contains several
important pro-consumer provisions. For example, section 106 of the bill permits a plaintiff to
me a complaint within 2 years after be or she discovers or, in the exercise of reasonable care,
should have discovered the harm and its cause. This provision would preempt laws in States
(such as California) that have shorter statutes of limitations and would liberalize in favor of
consumers rules in states (such as Virginia) whose statutes discriminate against latent injuries.
See Senate Report at 41; 142 Congo Rec. S2553 (March 21, 1996) (statement of Sen. GortOJl).
In addition, section 108 of the bill ameliorates features in SOUle state punitive damage laws. As
described by Senator Rockefeller during the final floor debate, this provision would: (i) lessen
the evidentiary standard for allowing punitive damages in states (such as Colorado and
Maryland), from prOOf "beyond II reasonable doubt" or "actual malice" to "clear and convincing
evidence;" and (U) allow judges to award damages in excess of state punitive damage caps in
every state in which such dollar liIJ'litations exist, regardless whether such limitations are lower
or higher than the limit in the bill. See 142 Congo Rec. S2561, S2S62 (March 21. 1996)
(statements of Sen. Rockefeller). Accordingly, it is inappropriate to state that the preemption
proVisions in the bill strike only in the favor of product developers.
In general, moreover, the purpose of the bill is to elitJlblish limits on state product
liability actions, in order to enable produCtive economic activity to go forward. It does not
matter for this purpose if some staleS want to furtru;r limit such action. To characterize this as
"one way preemption" is a red berring that simply misses the basic thrust of the bill.
Scope of the bill. A major theme in the draft message is that the bill would apply to
negligent entrustment actions in which individuals, for example, sell guns to felons or alcohol
to drunkards and those purchaserS then cause harm to third parties. This is simply untrue. The
bill applies to product liability actions, which are defmed as civil actions brought for "harm
caused by a product;" the definition does not refer to actions for "harm caused by the use of a
product." As discussed below, the latter omission was purposeful. Iwy notion that actions
involving the use of a product are subsumed intO the statute's general defmition of product
liability actions is countered by the fact that in another provision of the bill the ~use" of products
is explicitly covered. Section 103(c)(2) of the bill provjdes that, for the purpose of that section's
product seller protections, a "product liability action" is defined as "a civil action brought on
any theory for harm caused by a product OJ' product use. H (emphasis added). However, in
section 103 (d) , this provision also explicitly excepts negligent entrustment actions. The lone
reference to "product use" in this special deftnition makes it clear that Congress did not lmend
me general definition of "product liability action" to encompass actions deriving frow c.hc use
of products. Had Congress intended injuries from the use of products to be included in the
general coverage of the bill, it would not have needed a special defmition in section 103.
This propoSition is confirmed by the legislative; hi$>ry of the bill, which is replete with
statements that the bill does not apply to negligcnt entrustment ca~s. For example, during the
fm.al floor debate, Senator Rockefellercmphasized this point, stating:
too 121
YVd 9S:S1 NOH
96/S1/tO
�-3Drunk drivers, gun users, e(c. will NOT be protected from liability in any way.
Opponents are intentionally u-ying to confuse harm caused by a product, which
IS covered In the bill, and harm caused by the products' use by another, which
Is NOT covered in the bill and remains totally subject to existing state Jaw.
See 142 Congo Rec. S2562 (March 21, 1996) (emphasis in original). See also ta. at 52559
(statement of Senator Rockefeller); id. at S2567-68 (statement of Sen. Gorton) ("This is a
product liability bill. It is not a negligent entrustJnent bill. It has nothing to do with someone
who deliberately sells a gun to someone to kill a third person, or deliberately allow someone to
become drunk and is sued under dram stop statutes at all"); Statement of Managers at 7 ("State
law, for example, will continue to apply to lawsuits predicated on the alleged negligence
involved in giving a loaded gun to a young child (It" allowing an unlicensed and unqualified
minor below driving age to operate an automobile. Similarly, the potentialliabiIity of a service
station that sells gasoline to an obviously drunk driver will be determined under State law. ").
QJ
cr
In light of this legislative history, the assertions in the fIrst full paragraph on page 3 of
the draft, as well as in the first example given at the bottom of that page, that the bill applies
to negligent entrustment cases are untenable.
PunitWe damages. Regarding the punitive damage provision in section 108 of the bill,
the draft message states: "[t]he provision of I:be bill allowing judges to exceed the cap if certain
factors are present helps to mitigate, but dOes not cure (the problems associated wilh capping
punitive damages], giVen the clear intent of Congress, as expressed in the Statement of
Managers, that judges should use this authority only in the rarest circumstances" (emphasis
added). The bighlighted statement overstates the comment made in the Statement of Managers,
whicb actually provides that "[a)ltbough the conferees establish a mechanism for awarding
additional punitive damages in limited circumstances ('egregious conduct' on the pan of the
defendant and a punitive damages jury verdict insufficient to punish such e~egious conduct, or
to deter ~ defendant), it is anticipated that occasions for additional awards~ill be very limited
indeed.")There is nothing in this language to suggest lbat judges should (or will) ignore the
factors listed in the starute bearing on lhe need for additional punitive damages (e.g., the
profitability of the nrisconduct, the duration of the conduct, the f'mancial condition of the
defendant) and nor award additional punitive damages that they might otherwise deem appropriate. As to the number of cases where this is likely to happen. moreover, it is worth noting
(as plaintiff's lawyers frequently point out) that the number of cases where large punitive
damages are awarded is currently very smaIl -- and the extra judicial authority would be needed
only to go beyond twice the total compensatory damages (economic and noneconomic), which
is typically a very large figure. Thus, under current law, it is almost cenainly the case that the
number of cases where juries award punitive damages in excess of !hat amount is "very limited. "
The legislative history of the bill repeatedly makes clear that Congress did not intent to
establish a cap on punitive daIIlages. Foc example. regarding thls point, Senator Rockefeller
stated on the floor:
SOO®
-- ._.- -_._--------XVd LS:ST NOJll 96/ST/tO
�Opponents of the biJl say we cap punitive damages. Untrue. Untrue. I will not
vote for legislation which caps punitive damages. as I would not vote for
legiSlation that ClipS what lawyers can make... So there are no caps on punitive
dalnagcs, and I will aaaert that there could not be because I was pan of this bill.
I was not going to go along with a bill that would allow sucb a tbing.
142 Congo Rec. S2560 (March 21, 1996). See also ia. at S2,61. The coauthor of the bill,
Senator Gorton, also stated on the floor that "we have a form of control which is not a cap. •
142 Congo Rec. S2567 (March 2J, 1996). See also 141 Congo Rec. S6248 (May 8, 1995) (state·
ment of Sen. Gorton) (" [tlms removes the cap entirely, but only where a judge determines that
tbe limitation would be unreasonable and f'mds the actiOD of the defendant suffIciently egregious
to warrant it"). Statements of other Senators are to similar effect. See 142 Congo Rec. 2578
(March 21, 1996) (statement of Sen. Snowe) (accepting the inclusion of judicial discretion "as
a means of providing the opportunity for additional punishment in cases where a judge - staying
within the parameters set by the jury _. deeJl\S it necessary"); id. at S2580 (statement of Sen.
Mosley·Braun) ("the bill does not put a bard cap on punitive damages"); ia. at S2582 (statement
of Sen. Glenn) ("r believe that the judge additur provision included In the bill will allow for
appropriate punitive damages in egregious cases·).
Statutes of limitations and repose. Likewise crronl;()Us are various assertions in the draft
message regarding the bill's starutes of limitation and repose:
Q
Statute of limitations. The second full paragTaph on page 3 incorrectly suggests that
the statute of limitations in the bill would not be tolled by the filing of a bankruptcy
actioD. To the contrary, 11 U.S.C. 108(c), a provision in the Bankruptcy COde, would
auto1l'lB.tically toll the unifonn statute of limitations in the bill to allow for the
adjudication of product liability claims during or following lbe completion of bankruptcy
proceedings. See aL'io 142 Congo Rec. S2562 (March 21, 1996) (statement of Sen.
Rockefeller) (referring to section l08(c». The Confe~nce Committee eliminated a
provision in the bill that would have explicitly tolled the statute of Ihnitations in cases
of bankruptcy .- an action that was apparently predicated on the preexistence of a similar
provision in the Bankruptcy Code, which made the bill provision nnneceS8llIY.
Moreover. even outside bankruptcy, it is reasonable to assume that the concept of judicial
tolling -- under which most state statutes are tolled -- would equally apply to the statute
of limitations in the hill.
.
900 III
statute of repose. The third full paragraph on page 3, as well as the flI5t example that
follows involving a "driveby" shooting, suggest that, as compared to the Senate Bill, lhe
stature of repose in the Conference bill would apply "to a much wider range of goods,
including handguns." In both bills, the statute of repose applies to "durable goods." But
for an extraneous comma, that term is defmed exactly the same in the Conference bill
as in the Senate bill and, in both instances, encompasses only property used in a trade
or business, held for the production of income, or sold or donated for certain training
purposes (see Section 101(7». As noted by Senator Rockefeller in the legislative history
-'-"--
-------------YVd LS:ST NOW
96/Sl/tO
�· .,.
-~ of the bill, tbe starute of repose thus Applies to "goods in the workplace." 142 Congo
Rec. S2562 (March 21, 1996) (statement of Sen_ Rockefeller). See also 142 Congo Rec.
S~80 (March 21, 1996) (statement of Sen. Mosley-Braun) ("the IS-year statute of
repose applies to worlcplllCe goods only"); compare S. Rep. at 18 ("a statute of repOse
... is established for durable goods used in c:he workplace") with Statement Of MauagC[li
18 ("Section 106(b) adopts Senate language ntaking the time bar applicable only to
durable goods"). Given this evidence, the statements in paragraph 3 of the third page,
as well as the last sentence in the first example, are simply jnaccurate.
Clarifications. Finally, the segment of the draft dealing with the joint and several
provision in the bilJ (section 110) needs to be carefully crafted to avoid suggesting that the
Administration opposes any form of joint liability reform. if there is any desire to preserve the
possibility Of future negotiations designed to produce a bill the President would sign. The SAP
on the Senate Bill alWAYS indicated OPPOSition to the complete elintination of joint and several
liability for noneconomic damages, but did not express opposition to more limited foJIDS of
reform in this area. If any compromise is going to be possible, we need to be more careful in
how we oppose the bill's current provision on joint and several liability.
1.00~
- - - -------------------YVd 9S:S1 NOH
96/S1/tO
�DRAFT
To the House of Representatives:
I am returning without my approval H.R. 956, the so-called
Common Sense Product Liability Legal Reform Act of 1996.
I support real common sense product liability reform at the
Federal level. To deserve this label, however, legislation must
adequately protect the interests of consumers harmed by defective
products, in addition to the interests of manufacturers and
sellers. Further, legislation must respect the important role of
th~ States in our Federal system.
Congress could have passed
legislation, appropriately limited in scope and balanced in
application, meeting these tests. Had Congress done so, I would
have signed the bill gladly; were Congress to do so now, I would
be delighted. But Congress instead chose to pass legislation
unfairly weighted against consumers and unduly infringing on the
States, thus dis serving the goal of real common sense reform.
H.R. 956 represents an unwarranted intrusion on state
authority, in the interest of shielding manufacturers and sellers
of harmful products. Tort law traditionally has been a matter
for the States, rather than for Congress. The States have
handled this responsibility well, serving as laboratories for new
ideas and making needed reforms. This bill unduly interferes
with that process -- and does so in a way that peculiarly
disadvantages consumers. As a rule, this bill displaces state
law only when that law is more favorable to consumers; it allows
state law to remain in effect when that law is more helpful to
manufacturers and sellers. I cannot accept a law that rejects
state authority in the tort field so as to tilt the legal playing
field against consumers and in favor of manufacturers and
sellers.
Apart
provisions
provisions
recovering
from the general structure of the bill, specific
of H.R. 956 unfairly disadvantage consumers. These
could prevent even horribly injured persons from
the full measure of their damages. And these
prov~s~ons would encourage the worst kind of conduct on the part
of manufacturers and sellers, such as knowingly introducing
injurious products into the stream of commerce.
In particular, I object to the following provisions of the
bill, which subject consumers to too great a risk of harm from
defective products:
First, as I previously have stated, I oppose wholly
eliminating joint liability for noneconomic damages (most
notably, pain and suffering), because such a change would prevent
many persons from receiving full compensation for injury. When
one wrongdoer goes bankrupt -- as companies that sell or
manufacture harmful products often do -- the other wrongdoers,
and not the innocent victim, should have to shoulder its part of
the judgment. Traditional law accomplishes just this result. In
contrast, this bill. would relieve other wrongdoers of their
�·
.
"
obligation to pay the bankrupt company's part of the noneconomic
loss, thus leaving the victim to bear these damages on her own.
So, for example, the victim of asbestos, a breast implant, or an
intra-uterine device would have gone partly uncompensated under
this bill, because in cases involving these products one
wrongdoer was bankrupt and others would have had no obligation to
pick up the bankrupt company's portion of the victim's
noneconomic harm.
What makes this provision all the more troubling is that it
severely and unfairly discriminates against the most vulnerable
members of our society. Because it applies to noneconomic, but
not to economic damages, it most deeply cuts into the damage
awards of people without large amounts of lost income. Thus,
this provision disproportionately affects the elderly, the poor,
and nonworking women. There is no reason for this kind of
discrimination. Noneconomic damages are as real and as important
to victims as economic damages. We should not create a tort
system in which people with the greatest need of compensation
stand the least chance of receiving it.
Second, as I also have stated, I oppose arbitrary ceilings
on the amount of punitive damages that may be awarded in a
product liability suit, because they endanger the safety of the
consuming public. The purpose of punitive damages is to punish
and deter egregious conduct, such as the deliberate manufacture
and sale of defective products. Capping punitive damages
increases the incentive to engage in such misconduct; it invites
those companies willing to put economic gain above all else
simply to weigh the costs of wrongdoing against potential
profits. The provision of the bill allowing judges to exceed the
cap if certain factors are present helps to mitigate, but does
not cure this problem, given the clear intent of Congress, as .
expressed in the Statement of Managers, that judges should use
this authority only in the rarest of circumstances.
In addition, I am concerned that the Conference Report fails
to fix an oversight in Title II of the bill, which limits actions
against suppliers of materials used in devices implanted in the
body. In general, Title II is a laudable attempt to ensure the
continued supply of materials needed to manufacture life-saving
medical devices, such as artificial heart valves. But as I
believe even many supporters of the bill agree, a supplier of
materials who knew or should have known that the materials, as
implanted, would cause injury should not receive any protection
from suit. Title II's protections must be clearly limited, as I
hope and believe was Congress's intent, to non-negligent
suppliers.
These defects alone would justify a veto, as I have stated
before. But Congress, not content with a bad bill, enacted yet a
worse bill, by taking several steps back from the version passed
in the Senate and toward the one approved by the House.
�I
,
First, the Conference Report expands the scope of the bill,
inappropriately applying the limits on punitive and noneconomic
damages to negligent entrustment actions -- lawsuits, for
example, against a gun dealer who knowingly sells a gun to a
convicted felon, who then uses it to shoot someone, or against a
bar owner who knowingly serves a drink to an obviously inebriated
customer, who then drives drunk and causes death or injury.
I
believe that lawsuits such as these should go forward unhindered.
So too do such groups as Mothers Against Drunk Driving and the
Coalition to Stop Gun Violence, a coalition of 44 organizations
dedicated to the reduction of gun violence. Congress should not
have made this last-minute change in the scope of the bill.
In addition, the Conference Report makes certain changes
that though sounding technical, may completely cut off a victim's
ability to sue a guilty manufacturer.
The Report deletes a
provision that would have stopped the statute of limitations from
running when a bankruptcy court issues the "automatic stay" that
prevents lawsuits from being filed during bankruptcy proceedings.
The effect of this change will be that some persons injured by
companies that have entered bankruptcy proceedings will lose any
meaningful opportunity to bring valid claims. Given the
frequency with which companies sued for manufacturing defective
products go into bankruptcy -- think again of manufacturers of
breast implants or asbestos or intra-uterine devices -- this
seemingly legalistic change may have dramatic consequences.
Similarly, the Conference Report reduces the statute of
repose from twenty years to a maximum of fifteen years (and less
if states so provide), and applies the statute to a much wider
range of goods, including handguns. This change, which prevents
a person from bringing suit against a manufacturer of an older
product even if the product has just recently caused injury, also
will preclude many meritorious lawsuits.
Consider two hypothetical cases, as a demonstration of how
these provisions operate in combination to prevent injured people
from receiving the compensation to which they are entitled.
In the first, the mother of a boy killed in a driveby
shooting sues the gun dealer who knowingly sold a handgun to a
person formerly convicted of a crime of violence.
Under current
law in most states, the dealer (assuming, as is commonly true,
that the shooter himself has no money) would pay damages equal to
all the mother's economic and noneconomic damages, regardless of
how these damages were allocated as between the dealer's and the
shooter's misconduct; perhaps the dealer also would pay punitive
damages for the egregious nature of his act. Under this bill, by
contrast, the mother would have less chance of receiving an award
of,punitive damages sufficient to deter future misconduct.
Still
worse, she would receive no damages for any of her noneconomic
loss, including pain and suffering, that the jury attributed to
the shooter.
Because the majority of her damages would arise
from pain and suffering (not economic injury) and because the
�<
03/013/96
17: 36
'5'202 456 6231
ovp DOMESTIC POL
3/13/96
CONFERENCE BILL
•
It's my 'understanding that the ,conference version is quite close to the
Senate bill, with relatively mino±changes in the statute of repose,and the
judge's ability to override the ca ,on punitive damages' ("additur").
Details, of these issues are discussed below.
,
~lt
\
'The conference version does
adaress the Issues raised by the
Administration in its 4/95 SAP oh the Senate bill -- caps on punitive
, damages, and limitations on jo.i t and several liability for noneconomic
damages.
W
ADMINISTRATION STATEMENTS
•
.The most relevant, pUblic state ent by the Administration is its 4/95 SAP
on the Senate bill in which we bpposed that bill for the reasons stated
above, did not maKe a veto thr~at, and stated tha~ we would support,
limited, but meaningful, produc~ IlIablllty reform at the Federal level so
long as it fairly balanced the interest of consumers with those, of
, ~usiness and respected .the rOl10f the states in the federal system.
,
The opposition to the elirm~'nation of joint and several is based on
the concern that it would 1,Jndul burd~n those innocent victims who
suffer mostly noneconomic dam ges -- e.o.. the elderly and women who
lose their reproductive ability. ~e theory of jOint and several liability .is
that if anyone has to bear the burden of a bankrupt defendant it should
be other defendants who have some liability, and not the innocent victim.
o~
The opposition to caps
pUnitives is that it eliminates the··
.
'.
effectiveness of punitives as a deterrent', and allows irresponSible . .
defendants to do a cost .benefit bnalysis of whether they shOUld expose
consum rs to risk. All states h~ve the ability to allow judicial reduction of
punitiVl ,; on a case by case ba~is, but there should riot be a formulaiC
limit.
\
.
, .
•
The President did send a' veto t~reat to the Senate on an amendment
that Would have capped punitive damages in all civil actions. not just
product Ii ab,ility , and that amendm~1 ent was not adopted. .
.,
•
Judge MIKva and General Reno also sent a letter to the House during its
deliberation raising general obje Ions to the federalization of prOduct
liabiHty law absent some strong F.vidence that the problems exIsted that
the st~tes could .n?t s?lve. :~islletter also objected to 5peci~ic provisions
regarding fee shifting In all CIVil <i:aS9S;. new procedural rUles In all state
,
,
�.'
03/13/96
17:37
'5'202 456 6231
OVP DOMESTIC POL
and federal civil cases; and limitations on joint and several and punitive
damages in product liability cases.
MAJOR SUBSTANTIVE ISSUES
•
Applicability to all cMI cases or just prodUct liability cases
-~
House bill -- applies to all civil cases in several areas !11C1Uding fee
shifting (applies the English "loser. pays" rule); limits on punitive.'
damages; and Glill)ination of joint and several liability for noneconomic
damages. This is an enormously broad range of matters, including
medical malpractice, .employment discrimination, and Civil rights cases,
and was a major source of criticism of the House bill. Because of the
sweep of this bill, the President called it the "drunk driver protection act/'
Senate bilt-- is limited to product liability cases in all major areas.
Conference-- addresses only product liability cases.
•
Punitive Damagos/Additur/Remittitur -House Bill -- Caps punitives in.any civil action in state or federal courts
at 3 times economic loss or $250,000, whichever is greater, to the extent
that state law allows award of punitives. Noneconomic loss may not be
counted in the calculation of the cap, One way preemption in the sense
that it does not restorepunitives in those states that have elimInated or
further limited them. No "additur" provi~ion,
senate Bill -~ Caps: The Senate bill caps punitive damages for product
liability cases at the greater of: 2 times economic and non ecOnomic
damages;' or $250;000' (the lesser of those ~o amounts for small
business). The cap is to be applied by the Court, and the jury is not to
be made aware of its existence, so the jury could render a verdict with
higher punitive damages that would have; no effe.ct.
Additur: The Senate bill allows the judge to increase the amount ..
of punitives above the cap if he or She finds that the amount available
under the cap i.s insufficient to punish egregious conduct by the
de\"..mdant. These additional damages ( known as additur) could be
awarded only after an aadltiOnal court proceeding considering a statutory
list of factors. If an additur 15 awarded, tM defendant has the option of
. rejecting the award and obtaining a new trial on the Issue of punitive
damages. During the time of the new trial the. original judgment of
liability and non-punitive damages will be stayed, oreating' a significant
'.. deterrent to the plaintiff's seeking additur.
.
.'
.
�03/13/96
17:37
'5'202 456 6231
OVP DOMESTIC POL
~004/005
Constitutional questions have been raised about the additur
provision as written based on the right to jury trial. Case law has held·
that, given the quasi-criminal nature of punitive damages, increases in
awards must be left to a jury and 'not the judge.
Conference Version -- In order to ad~i"ess the constitutional issue, there·
apparently is a change to the additur provision so that a judge could
increase damages, but only within the range of damages prevIouSly
awarded by the jury (remember the jury doesn't know there's a· cap, and
could have awarded higher damages in its original verdict) In addition,
the conference has removed the provision allowing the defendant to
obtain a new trial when a judgE! applies an additur to the cap.
•
Statute of Repose -HOUse bill -- exempted all goods over 15 years old from liability.
·Senate bill -- exempted durable goods over 20 years Old from liability.
, . I
Confarence -- sxemptsdurable goods over 15 years· old from liability.
•
Joint and Several UabiJity
House bill -- Eliminates joint' and several liability for noneconomic
damages in all civil cases. Several liability is applied as in the Senate
bill. This is. one way preemption, and explicitly preserves state law in
states which have further .limited joint and ,several liability. '
.
"
In addition, House bill caps noneconomIc damages in medical
malpractice cases at $250,000. Again, this is one way preemption and
. explicitly preserves any state law that has further limited noneconomic
damages.
Senate
bill -. Eliminates joint and several liability for noneconomic
damages (such as pain and suffering) in product liability ·cases.. For
noneconomic damages each defendant shall ·only be responsible for the
percentage of damages that is in direct proportion to his percentage of
responsibility for the harm to the plaintiff. The trier of fact is to determine
each parties' percentage of responsibility, and to include all parties'
involved whether or.' not they are partle~ to the action.
Conference -- Adopts Senate version ..
General Issues of Balance, Federalism and Uniformity -- All Administration
statements on these bills have emphasized that any bill the President s·igns
must balance the interests of consumers with those of business and respeCt,the
�03/13/96
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U'202 456 6231
OVP DOMESTIC POL
rights of the states in the federal system. There isa strong argument that
neither the House. Senate nor Conference versions meets this standard.
.
.
.'
~- Product liability law is c~rre~tIY state law. and thev.anous
state~ dealing with perceived problems in the system in a variety of
ways -- the veritable laboratories for new ideas. The Reno/Mikva letter pointed'
out that federalizing these laws should not be done unless· a strong burden of
proof has been met that statel~w Is failing, a I:lurden which has not been met.
.In this climate of states' rights in particular,there Is a strong measure of .
hypocrisy.in b 'ness' desire to federalize selected portions of state tQrt law.
Balance - All three bills are written to address business defendants'
co er ,
consumers. They all engage in one way preemption -- th~t i!:i.
they preempt state law in the areas addressed only to the extent that the state
has a law less favorable to business. If the current state law goes further in the'
direction of business than this federal bill. the ,state law is retained (see, e.g.,
'
discussion of jOint and several and caps on damages abOv~).
U'niformity -. A major argument made for the need to federalize this area
of the law is the need for a uniform set of rules for products that move In
, interstate commerce. This bill clearly does not achieve that. It preempts only
certain aspects of. state law, and then only if the state law currently is
unfavorable to business. so that the courts and juries will have to apply a~
amalgam of federal and state law in the sa~e case. ' In addition. it will create a
strange new system ·of case law in which both state and federal courts will have
to interpret the new federal law through parallel systems ·of appellate courts.
The state courts are not bOl,lnd by any decision of the federal courts except for .
me Supreme Court. so passage of this bill will result in years of inconsistent
interpretations even within the same state.
.
,
!
•
New Issues •• There had b'een pngoing efforts to' add exemptions from liability
for charitable organizations and changes in workers' compensation, Depending
on how these were drafted, they could have baen quite oontroversial. . The
latest information indicates that Sen. Rockefeller has been successful in getting
Republican support without adding these provisions, so they appear to have
gone away for now.
.
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Elena Kagan
Description
An account of the resource
<div>
<p>Elena Kagan worked as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999.</p>
<p>During her work at the White House Justice Kagan worked on many topics including, but not limited to: AIDS, budget appropriations, campaign finance reform, education, health, labor, race, tobacco, Native Americans, and welfare.</p>
<p>In 1999 President Clinton nominated Kagan to the U.S. District Court of Appeals, no hearing was ever scheduled and she was thereby never confirmed.</p>
<p>Note: These records were made available in response to a <a href="http://clinton.presidentiallibraries.us/freedom-of-information-act-requests">Freedom of Information Act (FOIA)</a> request, FOIA 2009-1006-F. This collection contains both records created by Elena Kagan and records concerning Elena Kagan. </p>
<p><strong>Descriptions of the Sub Collections:</strong></p>
<ul><li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+White+House+Counsel+Files&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Counsel Files</a></strong><br /> These records consist of files created and received by Elena Kagan when she served as Associate Counsel to President Clinton from 1995 to 1996. The files include but are not limited to records concerning Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, and welfare. The records include memoranda, notes, correspondence, articles, reports, executive orders, bills, and directives.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+Domestic+Policy+Council+Files&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Domestic Policy Council Files</a></strong><br />These records contain files created and received by Elena Kagan when she served as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. The files include records concerning domestic policy topics such as AIDS, budget appropriations, campaign finance reform, education, health, labor, race, tobacco, and welfare. The records include memoranda, correspondence, articles, and reports.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=White+House+Staff+%26+Office+Files+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Staff Files re Elena Kagan</a></strong><br />These records are compiled from a variety of staff office files including the Chief of Staff, Personnel, Office of First Lady, Counsel, and DPC and include correspondence, memorandum, forms, and reports all concerning or having to do with Elena Kagan.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=White+House+Office+of+Records+Management+Files+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Office of Records Management Files (WHORM)</a></strong><br />These records are from the White House Office of Records Management (WHORM) subject file series. The Clinton Presidential Library inherited a document-level index maintained by WHORM during the Clinton Administration which tracked some incoming correspondence and other documents as they were circulated throughout the White House and filed by WHORM. The records contain files created and received by Elena Kagan that were tracked by the WHORM Subject File index. The files include records related to a variety of topics such as memoranda, correspondence, and Domestic Policy Council weekly reports. The records are tracked by an alpha/numeric code, and are listed as such.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+1999+Nomination+to+U.S.+Court+of+Appeals&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Elena Kagan's 1999 Nomination to U.S. Court of Appeals</a></strong><br />After serving as the Deputy Director of the Domestic Policy Council, Elena Kagan was nominated to serve on the U.S. Appeals Court for the District of Columbia (D.C. Circuit) in1999. Her nomination expired in 2000 without Senate action. The files in this opening contain records from the White House Staff and Office Files, Counsel’s Office and Presidential Personnel, concerning her nomination. The records consist of Senate Judiciary Committee questionnaires, correspondence, law review files, news articles, briefs, and press briefings.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Email+Received+by+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Email Received by Elena Kagan</a></strong><br />These records consist of email received by Elena Kagan during her time as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. In addition to the email proper, these messages include forwards, reply chains, and attachments. The attached documents include notes, memorandum, articles, reports, executive orders, bills, and directives. These email concern a myriad of topics including but not limited to Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, welfare and domestic policy topics such as AIDS, budget appropriations, education, health, labor, race, and tobacco.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Email+Sent+by+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Email Sent by Elena Kagan</a></strong><br />These records consist of email sent by Elena Kagan during her time as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. In addition to the email proper, these messages include forwards, reply chains, and attachments. The attached documents include notes, memorandum, articles, reports, executive orders, bills, and directives. These email concern a myriad of topics including but not limited to Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, welfare and domestic policy topics such as AIDS, budget appropriations, education, health, labor, race, and tobacco.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+Records+re+Native+Americans&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Elena Kagan's Records re Native Americans</a></strong><br />These records were created or received by Elena Kagan during her service as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). These ten folders were previously opened as part of a Freedom of Information Act request related to Native Americans (FOIA case <a href="http://www.clintonlibrary.gov/Documents/Finding-Aids/2006/2006-0197-F%28seg%203%29.pdf" target="_blank">2006-0197-F</a>).These records consist of memoranda, emails, reports, notes, and clippings.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Additional+Materials+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Additional Materials re Elena Kagan</a></strong><br />These records were taken from the files of Elena Kagan. They include memos to, from, and relating to Elena Kagan’s work on Domestic Policy issues. The records include some memos from Elena Kagan to President Clinton.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Federal+Email+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Federal Email re Elena Kagan</a></strong><br />The federal email re: Elena Kagan consists of 114 email messages that were part of the Federal side of the Clinton White House. The email generally consists of summaries of meetings or telephone conversations in which Elena Kagan was a participant.</li>
</ul></div>
Identifier
An unambiguous reference to the resource within a given context
2009-1006-F
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Clinton Presidential Records: Automated Records Management System
Clinton Presidential Records: White House Staff and Office Files
Publisher
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Clinton Presidential Library & Museum
Format
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Adobe Acrobat Document
Creator
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Office of the Counsel to the President
Domestic Policy Council
First Lady's Office
White House Office of Records Management
Chief of Staff
White House Office for Women's Initiative and Outreach
Automated Records Management System
Tape Restoration Project
Security Office
Presidential Personnel
Date
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1995-1999
Extent
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2945 folders
Text
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Original Format
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Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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Memos
Creator
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Domestic Policy Council
Elena Kagan
Identifier
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2009-1006-F
Is Part Of
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Elena Kagan's Domestic Policy Council Files
<a href="http://catalog.archives.gov/id/612954" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
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Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
Date of creation of the resource.
6/4/2010
Source
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DPC - Box 070 - Folder 004
612954