Dealing another blow to the House Republican legislative agenda, a bipartisan group of senators Wednesday declared that some of the central elements of the legal reform legislation passed by the House are effectively dead on arrival in the upper chamber.
"The House bill is not particularly good," said Sen. John D. (Jay) Rockefeller IV (D-W.Va.), co-author of a far more modest tort reform bill in the Senate. "It will not pass. And if it did, it would not be signed."
That unpromising forecast for the House bill, passed last week by a 265-161 vote, comes at a time when several other key elements of the GOP agenda either have been killed or face, at best, an uncertain fate in the Senate.
The product liability-tort reform bill unveiled by Rockefeller and his co-author, Sen. Slade Gorton (R-Wash.), provides for voluntary, non-binding alternative dispute resolution procedures. In addition, the bill would limit a defendant's liability if the product user misuses or alters the product in an unforeseeable manner. And a defendant in a product liability case would be granted an absolute defense if the plaintiff were under the influence of drugs and his condition was more than 50% responsible for his injuries.
The Senate bill excludes many key House provisions, such as a "loser pays" system requiring plaintiffs to pay defendants' legal expenses in some cases, and a $250,000 cap on compensatory payments to medical malpractice victims for pain and suffering.
The Senate bill also does not contain the so-called "FDA defense," which would exempt from punitive damages makers of medical devices and drugs that have been approved by the Food and Drug Administration.
Such provisions, Rockefeller said, are "entirely unjustifiable, and I wouldn't vote for that."
The exclusions of the key House provisions all but guarantee an unlikely coalition of opponents to the Senate bill--with, for instance, doctors, drug-makers, trial lawyers and consumer groups working as allies against businesses large and small.
But that alignment is no stranger than the array of senators pushing the Rockefeller-Gorton bill, which has as its co-sponsors Democrats Joseph I. Lieberman and Christopher J. Dodd, both of Connecticut, and Republicans Orrin G. Hatch of Utah, Larry Pressler of South Dakota, Mitch McConnell of Kentucky, Kay Bailey Hutchison of Texas and James M. Inhofe of Oklahoma.
Hearings on the Senate bill are expected in about a month by Gorton's Commerce subcommittee on consumer affairs.