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WASHINGTON -- A modest product liability reform bill that enjoys President Clinton's backing has been put on indefinite hold because of disagreements among senators over unrelated issues.
While proponents of S. 2236, the Product Liability Reform Act of 1998, still hope that the measure can be revived, passage of the bill this year is a long shot at best. A spokesman for Senate Majority Leader Trent Lott, R-Miss., said "probably it will return next year."
A motion to invoke cloture -- a parliamentary end to debate -- on the measure last Thursday fell nine votes short of the 60 votes necessary to halt debate and bring the bill to a vote. In fact, the bill's chief Democratic sponsor -- Sen. John D. Rockefeller IV, D-W.Va. -- declined to vote for cloture because he sought more time to consider additional amendments that could be agreed upon by the bill's supporters and the White House.
"Even Democrats who strongly support product liability reform refused to go along with this process until there could be more amendments allowed than would have been allowed under cloture." said a spokesman for Sen. Rockefeller.
Moments before the cloture vote, Sen. Rockefeller expressed his regret that "the argument of politics" had entered the debate and said he was "not going to put product liability to death."
"I hope my colleagues will vote no on the pending cloture motion so we might have a chance to continue this discussion and hopefully work out something on this modest but helpful bill," he said.
Ironically, only two days earlier, Sen. Rockefeller had said "on this one, I think there is very little room for movement" in terms of amending the bill.
Senate Democrats had made no secret of their desire to add health care-related amendments to the product liability bill and other pieces of legislation the chamber would take up this summer. Some Democrats also wanted to change the bill to remove any doubt that gun manufacturers, regardless of their size, would not enjoy caps on punitive damages if juries found them liable for injuries.
"Product liability, like other legislation this year, got in front of a political freight train that had nothing to do with the merits of the bill," said Victor E. Schwartz, longtime product liability reform advocate and counsel to the Arlington, Va.-based Product Liability Coordinating Committee.
Senate minority leader Thomas Daschle, D-S.D., "had made it a party-line vote with regard to trying to let the Kennedy health care bill (a patients' rights bill) out of prison, and until that bill comes out of prison, product liability itself cannot move forward,' according to Mr. Schwartz. "It is possible product liability could be resurrected if health care reform proceeds, but it could become a tar baby for other initiatives such as minimum wage or tobacco, and if that is so, it is dead for the year," he said.
"This vote had nothing to do with the product liability bill's merits. It had to do with control of the Senate floor and nothing else," said James A. Anderson, vp-government relations for the National Assn. of Wholesaler-Distributors in Washington.
Mr. Anderson said "it is very clear" that Senate Democrats want "an unlimited opportunity" to amend and debate "ad nauseum" any legislation that comes to the floor. He noted, however, that Sen. Lott won't allow that to happen.
Yet in another ironic twist to the product liability debate, Sen. Lott himself inserted an amendment into the bill. The Lott amendment, which would have broadened the bill's proposal to grant immunity to manufacturers of some raw materials used in medical devices, drew fire from Democrats.
Sen. Daschle said that amendment would undo the compromise worked out between the White House and Sens. Rockefeller and Slade Gorton, R-Wash., the chief GOP sponsor of the bill.
President Clinton vetoed a more comprehensive bill two years ago but held out the possibility that he would not oppose a more limited bill (BI, May 6, 1996). As a result, the bill considered last week by the Senate stops far short of the reforms contained in earlier product liability reform proposals.
Under the proposal, a cap of $250,000 on punitive damages would be extended only to individuals with a net worth of less than $500,000 or businesses with with annual revenues of $5 million or less and fewer than 26 employees (BI, June 15). The bill also would retain the imposition of joint liability in product liability cases.
But the measure also calls for the creation of a uniform standard of proof to determine product liability, would set an 18-year statute of repose for durable workplace goods when the plaintiff has received or is eligible to receive workers compensation, and would create a defense for manufacturers if they could prove the plaintiff was under the influence of alcohol or drugs when an accident occurred and that the plaintiff's inebriated state was the principal cause of the accident.
In addition, the bill would provide some legal protection for product sellers and provide some relief from product liability for manufacturers of raw materials used in medical devices.
"The bill, of course, is not as broad as the one that was then vetoed or the bill that was passed out of the Commerce Committee. Nonetheless, it does bring a significant degree of rationality and predictability to product liability litigation. It removes a number of severe inhibitions that stand in the way of research and development for new and improved products in the commerce of the United States," Sen. Gorton said as discussion of the bill began last week.
"This bill is a modest attempt to improve the compensation system for defective products in the United States, and it modestly improves it," he said later.
"I will be more direct and say that it is a much more limited bill. The logic for that is very simple. If it was other than its current form, we might be able to pass it, but it would not be signed," said Sen. Rockefeller.
With the failure to invoke cloture, the continuing Senate deadlock over health care reform and a rapidly shrinking legislative calendar, odds of the bill being signed this year are considerably less than favorable.
Consumer advocate Ralph Nader, who has consistently opposed any federal product liability legislation, issued a statement after the vote that read in part: "The corporate-backed drive to federalize and weaken the products liability law of the 50 states has been defeated once again. With waves of campaign cash swirling around this bill and a cowardly White House that signed off on it over a month ago, Democratic leader Tom Daschle held firm. This is a victory against the wrongdoers' lobby and for a safer society under state laws that hold manufacturers accountable for harm done."
But Mr. Schwartz refused to pronounce the measure dead.
"This bill has had more lives than the proverbial cat, and I am not counting it out this year. But it has hit issues over which we have no control," he said.
"One benefit, slim as it is, is that the bill did not come up during the annual meeting of the Assn. of Trial Lawyers of America," said Mr. Schwartz.
ATLA, the major national society of plaintiffs' attorneys, has consistently opposed federal product liability reform. ATLA just happened to convene its annual meeting in Washington only a day after the cloture vote failed.