Products liability bill killed in Senate.

On July 9, the Senate handed the proponents of tort "reform" a crushing defeat when 47 senators refused to cut off debate on this year's products liability bill. Sen. Slade Gorton (R-Wash.), a key sponsor of this legislation, said in announcing the bill's obituary for this Congress, "There is no next step."

The bill would have capped punitive damage awards against small businesses, imposed a statute of repose for workplace products, and overturned state law regarding the liability of sellers and lessors, among other things. ATLA Public Affairs, with the direction of the association's leadership, orchestrated the defeat of this bill, which had been considered unstoppable just two weeks before its consideration on the Senate floor. Gun control advocates, consumer organizations, and state legislators also worked tirelessly for the bill's defeat.

Although President Clinton had vetoed products liability legislation in the last Congress, the administration endorsed this version with Sen. Jay Rockefeller (D-W.Va.) and Gorton, even though the bill did not fully respond to the objections raised in the veto statement. While this bill was slightly more modest than the bill the president vetoed, it still contained many of the same provisions designed to thwart victims from recovering adequately when dangerously defective products shatter their lives or their families.

The bill was considered shortly after the failure of the tobacco control bill, which had given ATLA and other tobacco company foes the opportunity to teach an object lesson about dangerous products and irresponsible manufacturers. The Senate spent weeks debating the merits of a broad tobacco control measure, which in its original form would have immunized big tobacco companies from liability.

But Republican and Democratic senators worked together and voted in favor of an amendment to strip all legal immunity from the tobacco bill. The lengthy debate on the dangers of tobacco and the culpability of tobacco manufacturers helped senators realize that there are dangerous products on the market and manufacturers with no conscience--and that tort liability is essential to hold them accountable.

The products bill on the Senate floor had been negotiated without the input of the vast majority of the Senate. Many senators had strong views about the provisions in the bill and sought to offer amendments that addressed their concerns.

Sens. Robert Torricelli (D-N.J.) and Dianne Feinstein (D-Cal.) were concerned about firearms. Both have been major supporters of federal gun control legislation, including a ban on assault weapons, and they offered an amendment to strip liability limits in the bill from firearm manufacturers. Gun control advocates argued that firearms-unlike other consumer products--are not regulated for safety and that the tort system is the best check on gun hazards.

Many other amendments were offered, covering most aspects of the bill. In all, 43 amendments were offered by 20 different senators, both supporters and opponents of federal products liability legislation.

But Majority Leader Trent Lott (R-Miss.) did not want to allow senators to engage in thoughtful debate about this issue and initiated a process that would have eliminated the potential for amendment or adequate discussion. This muscular process enraged Senate Democrats, elements of the business community that sought more extreme tort "reform," and all other opponents of the bill.

While Lott was attempting to prevent any amendment process, he penciled in his own amendment providing specific immunity for a hometown company. This move further inflamed the bill's opponents and transformed the debate about the legal process to one about the Senate process.

Lott's move prompted a longtime supporter of federal products liability legislation, Sen. Chris Dodd (D-Conn.), to proclaim on the Senate floor, "I will fight with every power in me as a member of this body to see to it that any member has a right to raise amendments about this bill."

All Democrats, including Rockefeller, voted to continue debating and amending this bill. Two steadfast Republican opponents of federal products legislation--Sens. Richard Shelby (R-Ala.) and William Roth (R-Del.)--voted against cutting off debate. The final tally on the vote was 51 for and 47 against cloture.

Victory for civil justice system

The defeat of this legislation, when few would have predicted it was possible only a few weeks before, is a tremendous victory for the civil justice system and for consumers. However, there are many other tort "reform" bills, on issues from no-fault auto insurance to year 2000 liability, that may yet be considered in this Congress. And we face the likely return in the next Congress of the products liability bill.

But these tort wars over products liability raise a perplexing dilemma for the business community for the next Congress. Do "reform" proponents ask lawmakers to pass a more extreme bill and face a likely presidential veto, or do they again seek a more modest package with lukewarm support from major business elements?

Whatever their strategy, the association will be ready to fight to defend consumer rights.

Philip Buchan is an associate director of ATLA Public Affairs.