WASHINGTON / CATHERINE COLLINS : Like Dracula in Sunlight, Liability Bill Not Given Much Chance
This legislation has a lot in common with Dracula. It just won’t die.
A troika of big business interests has persuaded a Senate committee to pass legislation called the product liability reform act. But what this “reform” would do is make it more difficult for consumers to win large damage awards for injuries from defective products.
Among the provisions consumer groups are most concerned about is the elimination of so-called joint and several liability for pain and suffering. Currently, all defendants can be held equally liable even if they contributed unequally to an injury. Under the Senate bill, a defendant would be assessed damages in proportion to his fault.
For example, in the case of an airplane crash in which the pilot and the airline are found equally liable, but the pilot dies, victims would be able to recover only half of the potential award.
The Senate Commerce, Science and Technology Committee approved the controversial legislation (S. 1400), by a 13-to-7 margin, at the urging of the manufacturing industry, product distributors and insurance companies.
The leading opposition came from mahogany row: the powerful trial lawyers lobby. Consumers Union, the AFL/CIO, the American Assn. of Retired Persons, Ralph Nader’s Public Interest Research Group and various women’s groups also joined the fray in opposition.
“The only people who gain from our product liability system are the lawyers who end up taking 67 cents or more of every dollar spent during a liability suit,” said Sen. Bob Kasten (R-Wis.), who has fought for reform for nine years.
“Injured parties are forced to wait too long for money they deserve. The manufacturers and sellers of products spend untold thousands of dollars to prove they should never have gone to court in the first place,” Kasten said. “And through all of this, the lawyers’ meters are running.”
Coming to the defense of trial lawyers, Linda Lipsen, legislative counsel for Consumers Union, said: “A third of recovery may sound like a lot, but these cases involve tremendous risk for lawyers. Contingency fees help to even out the system, so that even the plaintiff who cannot afford a lawyer can be represented.”
Although Kasten predicts that there will be action on the bill on the Senate floor by August, others are doubtful. Product liability legislation has appeared in various incarnations in the Senate and the House for 10 years. Three times it has emerged from the Senate Commerce Committee to languish in the Judiciary Committee. Three years ago it made it to the Senate floor, where it was stopped by the Senate’s version of a wooden stake to the heart--a filibuster.
In addition, there has been no action this year on the House bill and none is likely, an official of the House Energy and Commerce Committee said.
“But it’s progress,” said Michael Roush, chief Senate lobbyist for the National Federation of Independent Business, who has high hopes for the legislation next year.
“I don’t give it much of a chance,” Lipsen said. “But that is not to say we aren’t watching it with great trepidation. As far as consumers go, it is an absolutely crucial piece of legislation.”
Transferring Federal Scientists’ Software
You might as well gift-wrap it and tie it up with a red-white-and-blue ribbon.
As the law stands, computer software developed by federal scientists in federal labs cannot be protected by copyright. Instead, the software is tossed into the federal grab bag of public domain. Each government agency--from the Department of Energy to the Commerce Department--has its own repository.
Often such “intellectual property” lies fallow in the public domain because the private sector is understandably reluctant to invest the time and money into refining the technology for commercial use, writing manuals, marketing and servicing the product when their investment cannot be protected by the usual copyright.
And sometimes it is foreign interests that make the best use of the billions of dollars spent by the federal government for research and development.
Lee W. Mercer, deputy undersecretary for technology at the Department of Commerce tells this story: Scientists at the Lawrence Livermore National Laboratory developed a special design program, DYNA 3D. An alert Japanese firm snagged the software from the public domain, repackaged it and sold it to a major U.S. automobile manufacturer. Price estimates range from $50,000 to $500,000, but the red-faced American industrialists aren’t saying anything. The story came to light when a problem developed with the software and the Japanese company referred its client back to the government scientists for help.
DYNA 3D is considered an important design tool in a cross section of industry, Mercer said, and is used by more than 300 companies, including General Motors, Mercedes-Benz, Porsche and Suzuki.
Four years ago, the Federal Technology Transfer Act (FTTA) made it possible for federal scientists to obtain patents for inventions. The law requires that federal scientists receive at least 15% of the royalties for these patents. This has facilitated the transfer of technology from federal agencies to private industry.
Legislation to do the same for copyrights and computer software is being considered also. The Subcommittee on Science, Research and Technology, which is part of the House Committee on Science, Space and Technology, is holding ongoing hearings about the impact of such a change and about whether amending the FTTA or copyright law would the best solution.
“In today’s world, the quality of software to which one has access is rapidly becoming a key determinant of a company’s competitiveness,” Mercer said.
“For example, quality software is the key to making better products and to making them more efficiently. It holds the key to better design, to defect-free manufacturing, to manufacturing flexibility. In addition, quality software is the key to using, organizing and evaluating research data, without which advances in the laboratory might never be translated to new products or processes that can be sold in the marketplace.”
John M. Ols, director of Resources, Community and Economic Development at the General Accounting Office, estimated for the House subcommittee that at least 10% of all software developed at federal agencies could have commercial application.
