When the National Association of Manufacturers held its monthly briefing breakfast last week, there were 200 corporate executives instead of the usual 100 dishing up eggs, bacon and fruit at the buffet. What one observer called a pep rally atmosphere spread through the meeting room at the Capital Hilton as Rep. John D. Dingell (D-Mich.) told participants that House bill 1115 appeared to have a chance to become law.
It would be a long, hard fight, Dingell told the crowd. It isn't the perfect bill, he said. But then, he added, if you wait for the perfect bill you'll never get one. Coming from Dingell, the powerful chairman of the House Energy and Commerce Committee, that was significant news.
H.R. 1115 is the Uniform Product Safety Act of 1987 -- a bill that business interests have been fighting for in one form or another in Congress since 1981. If enacted, H.R. 1115 would be the first federal legislation on product standards -- an area of law that traditionally has been left to the states.
The fact that there is a product liability bill that proponents believe has any chance at all produced a tremendous reaction the day of the NAM breakfast.
"We got a lot of calls from corporations saying they'd heard from their Washington office that Dingell said it was on the move," said Sharon Spigelmyer, a lobbyist for NAM. "People from all over the country are ecstatic, thrilled."
There is perhaps no other issue more emotional for both business and consumers than the debate over the right of consumers to recover damages from a manufacturer when injured by a defective product. And the blue-suited brigades of business lobbyists and their consumer counterparts have stood in long lines in recent weeks to get into a House Energy and Commerce subcommittee room for the markup of the bill, which may be reported out as early as Tuesday.
"It remains one of the top five issues with our members," said Spigelmyer, who added that while NAM members would have liked a tougher bill, "We think it's worth fighting for and fighting for vigorously."
Advocates of the bill say a federal standard for product liability is needed so that manufacturers will be able to produce products with the same standards in all 50 states.
But consumer groups and trial lawyers counter that the bill is not about uniformity, but about giving manufacturers more defenses for defective products. "This is an industry bill; there's virtually nothing in here for consumers," said Joan Claybrook, head of Public Citizen, a consumer group. Ralph Nader, who believes consumer issues should be regulated at the state level, says H.R. 1115 is one of the worst bills he's ever seen.
And even more moderate consumer groups, while saying that there are things in the bill they could support -- such as mediation that would speed consumers' recovery of damages -- call the bill in its present form unacceptable. They say that under some interpretations of the proposed law, consumers could not collect damages for such consumer catastrophes as the drug DES, the Ford Pinto and the Dalkon Shield.
The Association of Trial Lawyers of America has called the present bill "unfair, unworkable and unnecessary."
Among the things H.R. 1115 would do would be to determine four types of product liability; establish a state-of-the-art defense under which a manufacturer would not be held liable if it "did not know or could not know" a product was dangerous; set standards for punitive damages; give certain exemptions to manufacturers of drugs or medical devices approved by the Food and Drug Administration; and establish a mediation panel, rather than the courts, as the forum for all claims.
The bill has bipartisan support on the full Energy and Commerce Committee, including Dingell, whose district teems with auto, chemical and other manufacturers that long have sought a product liability bill to limit their exposure to damages. Dingell has said he hopes to get the bill through his committee before Congress adjourns for the holidays.
But opponents say the bill could have a tough road in the full House and an even tougher one in the Senate, where Sen. Ernest F. Hollings (D-S.C.), chairman of the Senate Commerce Committee, has traditionally been against any such bill, citing concerns about state's rights.
While opponents call the bill a last-gasp effort by business interests desperate to pass a product safety bill during the Reagan administration, proponents said the legislation has been given a better-than-ever chance of passage because the business community finally has coordinated its efforts and adopted a more realistic attitude about what is possible in the Democrat-controlled Congress.
"The business community has developed a realism about product liability," said Victor Schwartz, a lobbyist for business on the issue. "It's a four-ton truck. You can't put 10 tons on it," said Schwartz, an expert on the law of torts who acts as counsel to the Product Liability Alliance -- a group of about 320 companies and business trade associations.
Perhaps one of the most controversial aspects of the543320428of "strict liability" on the manufacturer. In the body of law covering injury, "strict liability" focuses on the product and whether it is dangerous or defective beyond what is reasonable, rather than on negligence, which addresses the conduct of the manufacturer. Forty-seven states now have strict liability standards.
While supporters of the bill contend that it is a "strict liability" bill, opponents argue that the bill leaves out some things that would provide such protection. For one thing, they say, it makes it tougher for consumers to win product-liability cases if they have to prove that the manufacturer was negligent. They are particularly opposed to provisions such as one that says there is no liability if there was not a "practical and technically feasible alternative design."
As an example of such a case, consumer advocates point to items such as Bic lighters, involved in lawsuits in recent years because they allegedly have blown up occasionally under normal use. Though the lighters could be made safer with a small plastic casing covering the ignition device, according to Gene Kimmelman of Consumer Federation of America, the company doesn't use the safety cap because it would increase the cost of the lighter. Under this bill, Kimmelman said, the manufacturer could say the modification is impractical, and thus insulate itself from liability.
Consumer activists also rail against the provision of the bill under which manufacturers would not be liable if a drug were unavoidably unsafe. They cite the drug diethylstilbesterol -- commonly known as DES -- which was used to prevent miscarriage in the 1950s but was found to cause cancer in the offspring of women who used it. Under existing "strict liability" laws, the courts weighed whether the benefits of the drug outweighed its risks. However, under the new bill, they said, manufacturers could simply prove that the drug is unavoidably unsafe.
Schwartz, who calls the legislation a "modest" proposal, said that during the hammering out of a compromise bill, "the hammers were on our heads, not on consumers." He cites provisions business wanted that were taken out of the bill, including joint and several liability, which allows a plaintiff to recover 100 percent of damages from a defendant who may be only partially responsible for the injury. Asbestos and tobacco, as well as environmental issues, also are not in the bill.
But representatives of consumer groups said the present bill -- a compromise offering of Rep. Bill Richardson (D-N.M), the sponsor of the original legislation, and Rep. James J. Florio (D-N.J.) -- was hammered out with business input but no consumer representation.
Among the strange bedfellows that politics makes are Florio, chairman of the commerce, consumer protection and competitiveness subcommittee and author of the federal Superfund bill, who has a consistently high rating with consumer groups, and the business groups that worked on the compromise bill. Florio said he saw the compromise bill as the only way to improve the original Richardson bill, which he said was much worse for consumers.
Once the compromise bill was agreed to, Florio and Richardson went to Dingell and Rep. Norman F. Lent (R-N.Y.), the Energy and Commerce Committee's ranking minority member, to forge an agreement to vote as a bloc -- known in committee as the "gang of four" -- against any amendment to the bill unless all agreed to vote for the amendment.
Florio said the tactic was needed to keep probusiness interests from reinstating some of the original bill's toughest provisions. However, consumer groups say it also served to eliminate virtually all proconsumer amendments that were proposed, many of them by Rep. Henry Waxman (D-Calif.).
Dingell, who has said he intends to do what he can to move the bill through his committee, demurs when asked about his influence in pushing the bill forward.
"I happen to be the chairman," he said last week. "You will observe that Mr. Richardson is the sponsor. ... I am willing to try to work out amendments in a certain fashion. I am willing to negotiate matters of concern to my colleagues."
Business lobbyists say they've already given in on many items and will probably give in on more to avoid a repeat of previous defeats of product-liability legislation.
"The compromise bill shows that no one can control this process," Schwartz said. "It's going to reflect both business and consumer sides. ... When business thought it could control it, it failed and failed badly. It shows the way you can actually get laws made."