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Snatching Defeat From The Jaws Of Victory

Legal Affairs


When auto-parts distributor Dale R. Larson boarded a plane in Fargo, N.D., bound for Washington on June 27, he was looking forward to a victory celebration. The Senate had scheduled a critical vote on product-liability reform for the next day, and Larson, who had spent more than a decade crusading for the bill, believed Congress would finally put an end to outrageous jury awards and skyrocketing legal costs.

Larson's optimism was understandable. Unlike past years, when conservative Republicans dominated the drive for reform, this year's battle was headed by West Virginia's Senator John D. Rockefeller IV, a respected moderate Democrat who could transform the often acrimonious fight into a cool bipartisan negotiation. Rockefeller was confident he had more than enough support to quash a filibuster in votes set for Tuesday night and Wednesday morning. With that victory in sight, final passage of the measure would be closer than ever.

But it was not to be. A barrage of clever last-ditch assaults orchestrated by consumer activists and trial lawyers proved too much for Rockefeller and his allies. Opponents of the bill convinced lawmakers through emotional appeals from victims, gender politics, and provisions involving tobacco and guns, turning loose some of the most powerful lobbying groups in Washington. "They threw everything at us, and they won," sighs pro-business lobbyist Victor E. Schwartz.

"SIDESHOW." This is the story of how a bill that had gained so much momentum was abruptly derailed. On the morning of June 28, advocates for both sides were nervously milling about the gilded anteroom outside the Senate chamber. Two dozen business lobbyists sporting "Product Liability Reform Now" buttons were on one side of the room, collaring as many lawmakers as they could. On the other side were about the same number of opponents, including 24-year-old Marlo M. Mahne, a disfigured Ford Mustang crash victim who says she paid her own way from Gainesville, Fla., to fight the bill.

Mahne, who consumer advocates say personifies the need to make companies liable for their misdeeds, became a lightning rod of sorts during the debates. At one point, while Mahne stood in the anteroom with Pamela Gilbert, director of Ralph Nader's Congress Watch, General Motors Corp. lobbyist Alfred W. Cortese Jr. came by and tossed Gilbert a coin. "Here's a quarter for your sideshow," he said, referring to Mahne's presence. When asked about it, Cortese explains: "I wanted to register my distaste for those tactics. They're exploiting the victims." Nader, who quickly spread word of the incident to Senate aides, insists that Cortese's comment was "worth votes for us."

Such last-minute antics were only a portion of the opponents' strategy. Additional votes came from female Democratic senators because of one element in the bill that would have barred punitive damage awards for injuries caused by products approved by the Food & Drug Administration or the Federal Aviation Administration. The activists said that if the measure were in place years ago, women injured by silicone breast implants, the anti-miscarriage drug DES, and other allegedly defective medical devices and drugs would not have been able to get adequate compensation.

That argument angered Rockefeller and business lobbyists because DES and implants never were approved by the FDA. "Nader and all the consumer groups were lying," Rockefeller fumes. Gilbert contends that relying on FDA approval to shield manufacturers from liability is dangerous. "The FDA isn't perfect," she says.

The activists' argument yielded little at first. "We hit a brick wall," admits Karen C. Renick, a victims' advocate from DES Action USA. But then they found a potent ally--House member Patsy T. Mink (D-Hawaii), herself a DES victim. Mink had successfully sued the University of Chicago 15 years ago over a 1951 experiment at the school's hospital, which administered DES to Mink and other pregnant women without telling them. Mink, whose daughter has a precancerous condition, found out years later about the experiment after receiving a letter from a researcher. "I blew my top," she says.

Mink's credibility had a powerful influence on some senators. And on June 14, at a news conference sponsored by Public Citizen and victims' groups, Mink and Senators Carol Moseley-Braun (D-Ill.) and Barbara Boxer (D-Calif.) blasted the product-liability bill. Braun, for one, had previously indicated she would vote with Rockefeller, Senate aides say.

TWIN TORPEDOES. Another bombshell dropped on reformists five days before the big vote, when Senator Frank R. Lautenberg (D-N.J.) announced amendments that brought two heavyweight lobbies into the debate for the first time. With the help of Consumers Union lobbyist M. Kristen Rand, Lautenberg drafted an amendment that would hold gun dealers liable for selling to minors and mentally impaired persons who then hurt others. Lautenberg also backed a change that would require the tobacco industry to pay for federal health expenses stemming from tobacco use.

Predictably enough, the National Rifle Assn. and the tobacco lobby quickly swung into action. "My phone went into phone melt from calls from the NRA," says one business lobbyist. The tobacco industry's opposition produced strange political bedfellows. Outside the Senate chamber the night of the vote, tobacco lobbyist William H. Hecht sat next to superlobbyist Thomas H. Boggs Jr., whose clients include the trial lawyers who sue tobacco companies. "My tendency is to be with the business community," says Hecht. In the end, Lautenberg's amendments never were offered, but they turned at least one senator at a moment when every vote counted. Aides to pro-tobacco Senator Wendell H. Ford (D-Ky.) say their boss would have voted to end the filibuster had it not been for Lautenberg's proposals.

Shortly before the June 28 vote, Rockefeller knew he would lose if he didn't withdraw the FDA provision. So he decided to support an amendment to drop it. But the next day, Senators Ernest F. Hollings (D-S.C.) and Howell Heflin (D-Ala.), perennial friends of the trial lawyers, refused to allow any changes to the bill. Lobbyists speculate that Boggs, a hunting buddy of Hollings and longtime ally of Heflin, had a hand in their objections. It would have been vintage Boggs, who is known to target key lawmakers such as committee heads and senior legislators during critical debates--a strategy that contrasts with other lobbyists who generally appeal to rank-and-file members to peel off votes one at a time. Boggs declines to comment about his role in the product-liability fight.

Despite the setback, Rockefeller was just three votes shy of the 60 he needed to end the debate. But then, the bottom fell out. Senator Donald W. Riegle Jr. (D-Mich.), who had voted to end the filibuster the night before, switched his vote on Wednesday morning with little explanation. Lawmakers willing to cast the 60th vote only if necessary--but who were unwilling to cast the 59th--soon joined Riegle. Even Larry Pressler (R-S.D.), a co-sponsor of the bill, turned against it to protest the FAA's reluctance to release documents on a 1993 plane crash that killed South Dakota Governor George S. Mickelson. "I decided in great frustration" to vote against the bill, said Pressler. In the end, it never got more than 57 votes.

In the Senate anteroom after the Wednesday vote, Rockefeller made it clear that the forces who defeated him won't be able to rest on their laurels for long. As he departed, Rockefeller told Boggs: "I'll be giving you more business next session." Boggs just smiled.


GENDER POLITICS A provision consumer groups argued would limit damages in cases brought by women injured by medical devices turned female and other lawmakers against the bill.

GUNS AND TOBACCO Powerful lobbies for gun and cigarette manufacturers joined the fight against reform for the first time when amendments were introduced making it easier for consumers to sue the companies. The amendments cost the support of lawmakers from tobacco states, such as Senator Wendell Ford of Kentucky.

EMOTIONAL APPEAL As part of a campaign organized by victims' groups, a disfigured Florida auto-accident victim, along with other victims of various product malfunctions, spoke with lawmakers outside the Senate chamber on the days of crucial votes. The victims argued that they could not receive proper compensation under the proposed measure.

CONNECTIONS Top trial-lawyer lobbyist Tommy Boggs's longtime relationships with key senators, including Majority Leader George Mitchell, helped sway pivotal votes.Catherine Yang in Washington

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