The Senate Commerce Committee voted 10 to 7 yesterday to approve a sweeping product-liability bill that Chairman John C. Danforth (R-Mo.) hailed as "advancing the cause," even though he conceded that it has a "dim" chance of enactment in the remaining weeks of the 99th Congress.
The committee acted after approving an amendment to compel the insurance industry to supply the secretary of Commerce with all of the data he needs to assess each year the legislation's impact on insurers.
Danforth told reporters the bill faces severe opposition and a possible filibuster on the Senate floor in the 40 or so legislative days remaining in the session, mainly because of a $250,000 cap on awards for "pain and suffering" that would take effect once a defendant proposes to settle a lawsuit.
But Sen. Robert W. Kasten Jr. (R-Wis.) said the bill still can pass the Senate and the House -- which has taken no action on such legislation -- and be signed by President Reagan this year.
Danforth told reporters the cap is "very controversial," but said he was "very reluctant" to drop it in the absence of an alternative incentive for speeding the settlement of product-liability lawsuits to put money in the hands of victims and unclog court dockets.
He confirmed that the cap cost him the votes of Donald W. Riegle Jr. (D-Mich.), Ted Stevens (R-Alaska) and Daniel K. Inouye (D-Hawaii).
Riegle predicted "a war on this issue" and said the cap ensured avoidable resistance to the bill, which he otherwise favors, later in the legislative process. Stevens, apparently unsure of how to vote until the last minute, finally said: "I don't have a good feeling voting for this bill. As a matter of fact, I will vote against it."
Danforth said that Inouye, in opposing the cap Wednesday, made a statement "as persuasive as anything I've heard since I've been in the Congress." Several committee members also told the hearing they had been profoundly moved by Inouye, who lost his right arm while serving in the Army in World War II.
"It's easy for those who have not been the victims to be setting caps," Inouye said. He cited the Dalkon Shield, the intrauterine contraceptive device blamed for pelvic infections that tens of thousands of women have said impaired or destroyed their child-bearing ability.
"It is difficult to put yourself in the position of the woman who used the Dalkon Shield," Inouye said. "She may not get married because of that disability. I do not know how much that is worth . . . . What do you do? What price tag do you put on that? This much I know: the cap level is not enough."
Inoyue said the sum of the government's $1,200 monthly payments for the loss of his arm exceeds the cap. "If a man has lost the use of all four limbs, I just cannot in good conscience, knowing the pain and suffering that he will experience for the rest of his life, say this is worth only $250,000."
Victor E. Schwartz, counsel for the Product Liability Alliance, a coalition of manufacturers, insurance carriers, trade associations and wholesalers, said it favors the bill. Alexander Trowbridge, president of the National Association of Manufacturers, termed the bill "a first step toward solving one of the nation's most pressing problems for industry."
"Full resistance" to the bill was pledged by Joan Claybrook, president of Public Citizen Inc., which was founded by Ralph Nader. She called it "a special relief act for makers and sellers of dangerous products" and a reflection of "astronomical" corporate spending.
Disputing Danforth, she said the bill contains "disincentives" to lawsuit settlements, including the cap, restrictions on the availability of punitive damages, and limits on the doctrine of "joint and several liability," which allows lawsuits against virtually anyone who had a role in the manufacture and availability of a defective product. "What causes a manufacturer to settle is the fear of a large award," she told reporters.
Other provisions of the bill would require parties who refuse reasonable settlement offers to pay court costs and attorneys' fees; set up a five-year statute of limitations, and bar filing of product-liability suits for injury that occurs 10 years after a consumer item first went on sale.
The insurance amendent, sponsored by John D. Rockefeller IV (D-W. Va.) and Wendell H. Ford (D-Ky.), was adopted without objection.