Senator MCCONNELL. You handled that very skillfully, Congress man. Mr. BOUCHER. Thank you. [Laughter.] Senator MCCONNELL. All right. I see that my colleague, the distinguished senior Senator from New Mexico has arrived and, Senator Domenici, we will be glad to hear from you at this point. STATEMENT OF HON. PETE DOMENICI, A U.S. SENATOR FROM THE STATE OF NEW MEXICO Senator DOMENICI. Thank you very much, Mr. Chairman. Mr. Chairman, let me first say that I am not an expert on the Federal Tort Claims Act or the Feres doctrine that has been alluded to by the Representative that deals with claims that military personnel may have for injuries sustained while they were in the military, but obviously both of these are of tremendous import to this issue. Right at the offset, I only urge that whatever is done here, that the Federal Tort Claims Act and the Feres doctrine be looked at from the standpoint of history and what they have and have not done. Mr. Chairman, I did not know you were going to be presiding, but I'm glad you are. Having discussed with you only recently the current trend in the United States to litigate everything, I am aware of the bills that you have introduced with reference to trying to put some kind of sanity in our legal system. As you have indicated in many statements on the floor on bills that you have introduced, the serious question of whether the current tort system as it is being used in the courts of America is for the benefit of the plaintiff or for the benefit of the lawyers needs to be addressed. We must compare the benefit to society from all of this litigation with the enormous negatives that are occurring, such as the lack of the availability of liability insurance, even for some entity as innocent as a small school board. I am delighted that you are chairing this morning because I do believe this committee has a very serious responsibility here. I hope when the committee solves this problem that it does not solve it in the name of the lawyers of America. Don't let all of these claimants, be they military or otherwise, think they are going to come out ahead after that bill they have been promoting goes off to the President to be signed. Don't let them be misled into walking down the street thinking they are going to get something, because these bills won't necessarily lead to that result. So I do urge that this is a very, very serious matter and I do not think we ought to deceive anyone. I do not think we ought to create some new cause of action here and say to a group of deserving Americans that we have taken care of them because one of them might succeed in 16 years, after they have gone through three different courts and perhaps two rehearings before trial courts, and obtain a judgment. I think we ought to decide if we really want to help them because of these kinds of injuries. If they do not now have a remedy, we ought to decide what the remedy ought to be and we ought to give them a remedy that has a chance of them getting compensated, rather than the kind of solution con tained in these two bills, which I believe would cause nothing but havoc. Having said that, let me make it clear that if we want to compensate the atomic veterans, let us decide that we are going to help them and let us quit fooling ourselves. The Federal Government owes them money, not Sandia Laboratories in Albuquerque, NM, or Lawrence Livermore Lab. Let us just face up to it and set up some system that is adequate to give them compensation. Let's look at the veterans laws. If they are not adequate for this kind of an injury, let's change them. Now, let me just speak to the labs. I have a detailed statement analyzing this and I would like it made part of the record. Senator MCCONNELL. It will be made part of the record. Senator DOMENICI. Now let me talk about the national labs. First, I am going to tell this committee-and I do not mean this to you, Mr. Chairman, but to the extent that I am here, neither of these two bills are going to pass the Senate this year, so you all can work as much as you want on them but until we solve a couple of these problems and understand the issue, we are not going to pass them. This is not a big wheel talking. That is just a fact. There are only 30 or 40 legislative days left and that is sort of a prerogative Senators, have. I have never used it in 14 years but I choose to tell you about it today because I am prepared to use it in this case. Let me tell you: Here you have got a laboratory-I will just pick one Sandia Laboratories-literally, absolutely nonprofit. Bell Laboratories told the Federal Government, we will run this lab for you. We will not make one penny of profit, but we will make it run like Bell Labs so you will have the premier engineering institution for nuclear weapons safety in all the world. There is a little dotted line up to Ma Bell which says we will furnish you the management expertise, that is all, nothing else. But corporatewise they sit out here as a subsidiary. Now, do you think they are going to want to run Sandia Laboratories if we say let us get rid of the Warner amendment and let us let them all sue Sandia Laboratories, but do not worry, Sandia, if anything happens, oh, Uncle Sam sits around here ready to indemnify you. Now, you may have 200 lawsuits costing $30 million a year, but do not worry about it. We may in your annual budgets, if you do not get cut too much up here, we may get you that $30 million as you proceed through each year defending them, but you just bail us out for a while because we do not really want to face up to this, we want to let them sue you, but we are telling you ultimately you do not have to pay. Well, what kind of monkey business is that? I mean if the Federal Government is liable, then let us let the Federal Government get sued and let us answer all the problems associated with that, but let us answer them. I can tell you that our national laboratories do not deserve another burden like this. I have another lab in my State and they are under enormous criticism because they had to spend some money to defend civil rights suits and it is headlines all over the State that they used DOE money to litigate civil rights suits and settle them. Well, what are they supposed to do? Maybe they did not handle them right, but we said to them hire lawyers and pay them and the Federal Government is going to indemnify you. Do you know who operates that lab? Is it a very, very profitable organization? No, it's the University of California. I think they still qualify as a nonprofit entity. They literally write the paychecks at that lab. If you work there, you get a check from the University of California. So it seems to me we ought to solve the problem of what we want to do, what form of compensation we want to create. If we truly want to give a remedy then let us give it and let us define it and let us not kid ourselves or kid the veterans. If we were to give the veterans this kind of cause of action, Mr. Chairman, do you know how tough it would be to prove in the courts of this land under existing tort law? It is almost impossible, yet somebody is saying give the atomic veterans this right and you will have given them some kind of justice. I say we ought to give them some compensation if that is what they are interested in, but let's define it in a way that is reasonable and do not shift the responsibility around in order to find some way for them to leave the halls of Congress thinking they really got something. What do you think they will have when we are finished with this? From my standpoint, it just does not appear that either of these bills will solve the problem. I close by saying let us try to find the solution. Let us find one that will work and not one that makes it appear that we are giving the atomic veterans a remedy, only to force them to wait around 8 or 10 years and see if there are any successful claimants and in the meantime the Federal Government will be paying lawyer fees to the labs and the other contractors for defending the suits. That is what these bills will surely do. I am a lawyer and I have nothing against lawyers. When I was practicing, a good plaintiff's case was heaven, you know, but I did not get too many of them. In fact, I think Senator MCCONNELL. You got out too soon. Senator DOMENICI. That is right. [Laughter.] Senator MCCONNELL. They are doing much better these days since you and I went into politics. Senator DOMENICI. I would say, Mr. Chairman, that I probably came to the Senate because I won a plaintiff's case. It was a very handsome recovery. I had an awful lot of bills because I had been a mayor of a city and did not get a salary and I already had six children. I was not going to have enough money to run, but I convinced a jury to give somebody some money and I paid my bills and got talked into running for this job. And here I am. I thank you very much. [The prepared statement of Senator Domenici follows:] STATEMENT OF SENATOR PETE V. DOMENICI BEFORE THE COMMITTEE ON THE JUDICIARY REGARDING H.R. 1338 AND S. 2454 JUNE 27, 1986 MR. CHAIRMAN, | APPRECIATE BEING ABLE TO ADDRESS THE COMMITTEE ON H.R. 1338 AND S. 2454. THESE MEASURES WOULD PERMIT INDIVIDUALS WHO WERE EXPOSED TO RADIATION AS A RESULT OF GOVERNMENT NUCLEAR WEAPONS TESTING, AND WHO HAVE SUBSEQUENTLY BECOME AFFLICTED WITH ILLNESSES THAT CAN BE TRACED TO THAT EXPOSURE, TO MAINTAIN LAWSUITS AGAINST THE FEDERAL GOVERNMENT OR GOVERNMENT CONTRACTORS FOR THESE INJURIES. I COME HERE TO REGISTER MY STRONG OPPOSITION TO THESE MEASURES. BEFORE EXPLAINING THE BASIS OF MY OPPOSITION, LET ME STATE THAT I AM CONVINCED THAT THE FEDERAL GOVERNMENT HAS AN OBLIGATION TO COMPENSATE INDIVIDUALS WHO SUFFERED INJURIES AS A RESULT OF THEIR PARTICIPATION IN THE NUCLEAR TESTING PROGRAM. I AM SURE THAT EVERY MEMBER OF THIS COMMITTEE AGREES WITH ME ON THAT POINT. THEREFORE, ALTHOUGH THIS HAS BEEN REFERRED TO AS A HEARING TO EXAMINE GOVERNMENT LIABILITY FOR THE ATOMIC WEAPONS TESTING PROGRAM, WHAT WE ARE REALLY TALKING ABOUT HERE IS WHAT IS THE BEST WAY TO COMPENSATE INDIVIDUALS FOR RADIATION EXPOSURE. BETWEEN 1945 AND 1963, THE UNITED STATES GOVERNMENT CONDUCTED APPROXIMATELY 235 ATMOSPHERIC TESTS OF NUCLEAR WEAPONS. AN ESTIMATED 220,000 MILITARY PERSONNEL AND 150.000 CIVILIANS TOOK PART IN THIS TESTING AND MAY HAVE BEEN EXPOSED TO LOW-LEVEL IONIZING RADIATION. THE PARTICIPANTS IN THESE TESTS HAVE COMPLAINED OF A VARIETY OF ILLNESSES, INCLUDING CANCER AND BIRTH DEFECTS IN THEIR CHILDREN, WHICH THEY ATTRIBUTE TO RADIATION EXPOSURE. AS A RESULT, A MULTITUDE OF LAWSUITS WERE FILED AGAINST THE GOVERNMENT CONTRACTORS WHO ASSISTED THE FEDERAL GOVERNMENT IN CARRYING OUT ITS NUCLEAR WEAPONS TESTING PROGRAM. THE COMMITTEE MUST DECIDE WHETHER IT IS FAIRER TO THESE INDIVIDUALS TO ALLOW THEM TO SUE THE FEDERAL GOVERNMENT AND THE GOVERNMENT CONTRACTORS WHO PARTICIPATED IN THE NUCLEAR WEAPONS TESTING PROGRAM IN THE HOPE, HOWEVER REMOTE, COSTLY, AND THE WARNER AMENDMENT H.R. 1338 AND S. 2454 SEEK TO ALLOW INDIVIDUALS SUBJECTED TO RADIATION FROM THE NUCLEAR TESTING PROGRAM TO SUE TO RECOVER DAMAGES FOR INJURIES INCURRED AS A RESULT OF THOSE TESTS. THE EFFECT OF THESE BILLS IS TO OVERCOME THE OBSTACLES TO SUCH LAWSUITS WHICH RESULTS FROM THE "WARNER AMENDMENT," WHICH WAS ENACTED AS SECTION 1631 OF THE "OMNIBUS DEFENSE AUTHORIZATION ACT OF 1985" (P.L. 98-525) AND HAS BEEN CODIFIED AT 42 U.S.C. SEC. 2212 (SUPP. || 1986). THE WARNER AMENDMENT SUBSTITUTES THE UNITED STATES AS THE PROPER DEFENDANT IN THE PLACE OF GOVERNMENT CONTRACTORS IN LAWSUITS FOR INJURIES ALLEGEDLY CAUSED BY THE UNITED STATES' NUCLEAR TESTING PROGRAM. IT ALSO ESTABLISHES THE "FEDERAL TORT CLAIMS ACT," 28 U.S.C. SECS. 2671-2680 (1982), AS THE EXCLUSIVE REMEDY FOR SUCH CLAIMS. IT STATES THAT THE EMPLOYEES OF THE GOVERNMENT CONTRACTORS ARE CONSIDERED EMPLOYEES OF THE FEDERAL GOVERNMENT FOR THE PURPOSES OF SUCH LAWSUITS. ALSO SUBJECTS SUCH ACTIONS TO THE DEFENSES WHICH ARE TRADITIONALLY AVAILABLE TO THE UNITED STATES. IT THE ADOPTION OF THE WARNER AMENDMENT WAS NOT A DEPARTURE FROM PAST POLICY. RATHER, THE WARNER AMENDMENT SIMPLY CODIFIED THE RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE NATIONAL LABORATORIES. SINCE THE ADVENT OF THE NUCLEAR WEAPONS TESTING PROGRAM, ALL PARTIES HAVE UNDERSTOOD THAT THE NATIONAL LABORATORIES WERE ACTING ON BEHALF OF AND IN THE PLACE OF THE FEDERAL GOVERNMENT IN THE CONDUCT OF THE NUCLEAR WEAPONS TESTING PROGRAM AND THAT THE RESPONSIBILITY FOR THE PROGRAM RESTED SOLELY WITH THE FEDERAL GOVERNMENT. IN RESPONSE TO A NUMBER OF LAWSUITS WHICH CHALLENGED THAT UNDERSTANDING, CONGRESS CODIFIED THE RELATIONSHIP IN THE WARNER AMENDMENT. |