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SEN. KASTEN's PRODUCT LIABILITY BILL WILL BE FOCUS OF SENATE COMMERCE SUBCOMMITTEE HEARING SET FOR SEPTEMBER 11; COMPETITIVENESS COUNCIL WORKING ON PROPOSAL

Executive Summary

The Senate Commerce/Consumer Subcommittee chaired by Sen. Bryan (D-Nev.) has scheduled for Sept. 11 a hearing on product liability legislation, S 640, introduced by Sen. Kasten (R-Wis.) last March. The Senate bill has nearly three dozen cosponsors, including Sens. Rockefeller (D-W.Va.) and Kassebaum (R-Kan.) on the Commerce Committee and other senators with widely disparate ideologies such as Sens. Dodd (D-Conn.) and Helms (R-N.C.). Bryan and full committee Chairman Hollings (D-S.C.) oppose the bill, but Hollings reportedly made a commitment to Rockefeller to schedule hearings on the bill in the committee. A growing revival of interest in product liability reform measures includes two bills in the House. Rep. Rowland (D-Ga.) introduced the Fairness in Product Liability Act (HR 3030) on July 25, and on July 29 Rep. McEwen (R-Ohio) introduced the Uniform Product Liability Act (HR 3068). All three bills include provisions sought by the pharmaceutical industry to exempt from punitive damages defendants that make or sell drugs approved by FDA or considered by the agency to be generally recognized as safe and effective. At a breakfast meeting of the Association of Biotechnology Companies Aug. 2, Rowland's Legislative Assistant Karen Morgan said her boss' measure has "over 100 cosponsors, and we continue to collect those cosponsors." Two include Judiciary Committee members, Reps. Fish (R-N.Y.) and Glickman (D-Kan.), "who will obviously be helpful with [committee Chairman] Brooks" (D-Texas), she said. Product liability legislation in the past has had to pass through the Commerce Committees and the Judiciary Committees in both chambers. Both the House and Senate Judiciary Committees for the last decade have acted as roadblocks to enactment of product liability reform measures due to their sensitivity to the position of trial lawyers who have opposed any changes to the law. This year, however, the product liability bills were drafted as "consumer protection" measures and will need to go only through the Energy & Commerce Committee in the House and the Commerce Committee in the Senate. Mogan said that Rowland's bill still "has to go through Judiciary. We made no attempt to draft it so that it avoids that committee." She noted that on the House side, Energy & Commerce Committee Chairman Dingell (D-Mich.) is a cosponsor of the bill. Rowland and Dingell met with Brooks "prior to introduction to see what could be arranged," Mogan reported. She said "there was no commitment" by Brooks, but that "in conversation" he agreed to hold hearings some time after September. As in the last Congress, Dingell will not schedule Energy & Commerce Committee hearings "until Mr. Brooks has given more indication" of Judiciary Committee plans, she said. Another related bill being contemplated in the Senate is medical liability legislation. Sen. McCain (R-Ariz.) told the PMA annual meeting in April that he was planning to introduce legislation that would encompass both medical providers and products under its umbrella. McCain has not yet introduced his bill. He said he is working on the concept with Sens. Danforth (R- Mo.), Durenberger (R-Minn.) and Hatch (R-Utah). Vice President Quayle and the Council on Competitiveness reportedly has plans to propose a package of legislative provisions that, among other things, would limit punitive damages that can be awarded at a trial to an amount equal to compensatory damages. Called the "Civil Justice Reform" plan, the Competitiveness Council's recommendations also would raise the burdens of proof required to award punitive damages, would require losing plaintiffs to pay the legal fees of successful defendants (a provision intended to limit frivolous litigation), and would establish incentives to settle out of court through alternative dispute resolution mechanisms.

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