Product Liability Vote

The date was June 29, 1994. The scene was the large Senate anteroom where the lobbyists mill around, meeting with themselves and cloistering with Senators who come from the Senate floor during the debate on a pending bill.

The struggle was over S.687, the Jay Rockefeller-sponsored bill to restrict the rights of people, wrongfully injured by defectively manufactured consumer products, from using existing state law in state courts. The strategy was to federalize and reduce existing rights by injured people and further shield these companies from being held responsible for their harms and damage.

About two dozen lobbyists and corporate lawyers huddled in the corner of anteroom, advising their friends such as Senator Joseph Lieberman (D-CT). On the previous day, there was a vote on Senator Herb Kohl’s (D-WI) amendment to end the secrecy over product defects that courts give to corporate defendants when they are in litigation with their victims. The companies barely won -­51 to 49.

Then Senator Fritz Hollings (D-SC) secured acceptance of an amendment to require insurance companies to disclose claims and other data to the federal government. The surprised lobbyists started using their cellular phones to insurance land on that one.

The big vote on cloture (closing down debate) came at 10 a.m. on June 29th. The expensively dressed lobbyists were confident, looking forward to a campaign-finance-greased victory followed by a sumptuous celebration at an expensive Washington restaurant.

Suddenly, smug countenances turned into concerned visages and then their jaws fell open in disbelief. They lost. The people won! For some of these lobbyists, disbelief turned into rage. Well paid as they are, well-supported by hundreds of corporations from the drug, aircraft, auto, chemical, tire, machine tool and many other industries, well-greased by millions in campaign contributions. . . and they still had lost!

No one raged more than one Alfred W. Cortese, a partner in the large law firm of Kirkland Ellis. The day before he fumed as he watched Mario Mahne, age 24, horribly burned as a passenger in a 40 mph Mustang collision 9 year earlier, speaking with Senators about S.687 in the same anteroom.

You see, to millionaire moguls and people like Mr. Cortese, Marlo Mahne is not supposed to be involved in this struggle off the Senate floor. She should be at home nursing her wounds and contemplating her 103rd plastic surgery for her face, arms and rest of her body. This legislation to restrict victims’ day in court should not be at this real life level, according to this mind set. How could Senator Bill Cohen (R-ME), after hearing her story firsthand, be near tears as he walked and talked with her to the elevators on his way back to the office. That’s just not fair.

Marlo Mahne is her own person, confident, knowledgeable and seeking justice for the maimed, mutilated and burned in future years who would be obstructed, should this bill become law. She has already settled with her defendants and she knew that if S.687 was law before her fiery crash, she would not have obtained much of the compensatory justice she secured for her life of agony and pain.

Alfred Cortese was not moved. Instead he became angrier by the minute. In a most deplorable act, he walked over to Marlo Mahne’s escort, Congress Watch Director, Pamela Gilbert, and pressed a quarter into her hand, remarking: “Here is a quarter, Pam, for your sideshow.”

Fortunately, Ms. Mahne did not hear his remark. Ms. Gilbert was stunned, as was Public Citizen’s president, Joan Claybrook.

Corporate lobbyists like Alfred Cortese stretch the envelope in many ways, what with their power and money and driven temperament. They do lose perspective, badly at times. In over thirty five years of observing their behavior and misbehavior, I have seen some pretty smutty outbursts. But never can I recollect a more publicly callous, mean and brutish gesture than that by Cortese.

Other lobbyists who worked this pro-corporate wrongdoer’s legislation are embarrassed by his recurrent intemperance, his self-defeating aggressiveness and his coarse zealotry on behalf of his major client — you might have guessed it — General Motors. Some believe his behavior cost them votes in the Senate.

I suppose consumer advocates should welcome such lobbying louts on the other side, because they help alienate their own supporters in Congress. One Senatorial aide won’t even return Cortese’s calls, even though that Senator is often known as a corporatist.

Two suggestions might help Mr. Cortese. One is to apologize to both Ms. Mahne and Ms. Gilbert in writing. The other is to spend some time visiting victims in hospitals and rehabilitation wards to cure his empirical deprivation. Such experiences may even tap his very, very latent conscience.