Late in the afternoon one day this week, after all the routine hearings were over and the public gallery had nearly emptied, the members of the House Economic Matters Committee here gingerly took up their most complicated and potentially most significant legislation of the year. And slowly, a sense of dread seemed to creep into their quiet committee room.
Before them was the draft of a bill that would formally establish for the first time a chapter of Maryland law governing court actions on product safety, ranging from the claims of consumers who had been injured by tools or appliances to compensation for workplace accidents to actions such as the recent suit against the Ford Motor Co. and its allegedly defective Pintos.
It was the kind of legislation that, as one committee member put it, is "the meat and potatoes of a state legislature," a codification of vague and incomplete case law that could save both business and consumers millions of dollars simply by being enacted.
But by the time their brief discussion was over, a majority of the committee's members had indicated that they had no desire to work for the product liability bill, even though some of them had not bothered to read the 11-page draft.
"We're just going to bury that one," one delegate said. And in fact, it now seems likely that the committee will continue the General Assembly's generation-old history of backing away from this difficult consumer issue, abandoning the work of a task force that studied the subject for six months at the committee's request and demonstrating how powerful and competing special interests can collectively tie the hands of the legislature.
"I think the committee is afraid of the issue," said Del. Casper Taylor (D-Cumberland), the panel's vice chairman, who served on the task force but conceded that the bill was not likely to leave the committee this year. "They're not sure what's in the bill, but when people say 'product liability,' they know there are all these competing interests involved -- the manufactureres, the insurance companies, the trial lawyers, the consumer interests. And a lot of members of the committee hesitate to get involved in that battle."
In this case, the draft bill proposed by the committee's task force has been disowned by several legislators and likely will be opposed by the influential trial lawyers lobby because it is perceived to be weighted heavily in the interests of product manufacturers and their insurance companies.
At the same time, sections of the bill offensive to the insurance associations have been quietly removed by legislative members of the task force to avoid efforts by that lobby to kill the bill. And committee members say that any efforts they make to amend their work may only draw further opposition from the insurance industry, lawyers, consumer advocates, or the state's large manufacturers.
"The problem is that this tends to be a business-versus-consumer type of issue," committee chairman Fred Rummage (D-Prince George's) said this week. "You either have the manufacturers saying you're driving them out of business or you bring the bill out and get denounced for being anticonsumer." Of the bill, he said, "I'm not pushing it."
Rummage is not the first legislative committee chairman to ordr a detailed study of product liability and then have second thoughts. Veteran Sen. Margaret C. Schweinhaut (D-Montgomery) said that 10 years ago she served on a special committee that worked unsuccessfully on the issue, and she added that product liability laws have been before the legislature since the mid-1950s.
Two years ago, the Senate Judicial Proceedings Committee spent a summer and the following General Assembly session grappling with product safety, and then just gave up. "The question was really dealing with definitions that were so difficult," said Sen. J. Joseph Curran Jr. (D-Baltimore), the panel's chairman. "We just couldn't guarantee anyone that the legislation would really do what they wanted it to . . . so our committee concluded the relief ought to come from the federal government."
And yet, representatives of nearly all of the competing interests in the product safety field seem to agree that the legislature should take action in at least several areas of the law.
For example, the state lawyers association, the insurance companies, the manufacturers and the consumer division of the state attorney general's office all argue that a law should be passed protecting small middlemen from lawsuits if their only involvement with an allegedly unsafe product is to move it from one dealer to another without taking it out of its packaging. Such businessmen frequently are named in damage suits over unsafe products, and are forced to spend thousands of dollars in legal fees and insurance premiums to defend themselves in lawsuits over products they never saw.
And though representatives of the insurance industry dispute it, federal studies have found that insurance companies nationwide have been subject to "panic pricing" in the area of product liability, jacking up their prices by nearly 100 percent in a few short years, in part because of the uncertainty of the law in states like Maryland.
"If the existing case law on product liability were codified, the insurance commissioner would in theory have reason to lower a company's rates because of the added uncertainty in the law," said Jay Lenrow, an assistant attorney general in the consumer division who sat on the recent task force.
The 17-member task force was appointed by Rummage after last year's legislative session and met more than a dozen times in the next seven months to draw up its draft bill. The panel drafted a so-called "sealed container" provision designed to protect middlemen handling goods, which seems to satisfy most of the competing interests.
But, perhaps because it contained seven representatives of business and insurance interests -- compared to one consumer representative and six legislators -- the task force's legislation also places new limits on the ability of a citizen to collect damages for unsafe products, which several of the legislative members believe go too far.
The most controversial provision of the new bill is a "statute of repose" that would greatly curtail damage suits for products more than 10 years old. Currently, a consumer may collect damages from the manufacturer of an unsafe product no matter how old the item is, as long as the product is proved to have been unsafe by the standards of the time when it was made.
Finally, the bill includes provisions that protect manufacturers from damage claims if their products are made unsafe by modifications performed after the item leaves the factory. Some product liability experts argued that the task force should instead include a "comparative negligence" procedure that would relatively assess the fault of all parties in such injury cases -- which frequently involve workplace injuries -- and adjust any damage awards accordingly.
The bill completed by the task force included such a provision, much against the will of the insurance companies, but the six legislators on the panel later met and deleted it. "There was a political decision made," Taylor said. "We felt that the more controversy we included in the bill, the less our chances were of moving it."
Now, even without comparative negligence, Taylor and the bill's present chief sponsor, task force chairman Del. Elizabeth Smith (R-Anne Arundel), say they will be satisfied if they can simply "educate" their committee about the need for a product safety law this year.
"I'll be very curious to see our whole committee's action when the bill is put in front of them," Taylor said. We've got a long way to go to get the committee in an educated position where it can face the issue."