MANHATTAN INSTITUTE'S PETER HUBER HELPED DRAFT MCCONNELL/ABRAHAM
TORT LEGISLATION

     Peter Huber, the Manhattan Institute senior fellow who has
led the corporatist attack on the tort system, helped draft
legislation currently pending in the U.S. Senate.
     Huber is author of many articles and books on "junk
science," including Galileo's Revenge: Junk Science in the
Courtroom (Basic Books, 1991) and Phantom Risk: Scientific
Inference and the Law (MIT Press, 1993).
     The legislation, sponsored by Senators Spencer Abraham (R-
Michigan) and Mitch McConnell
(R-Kentucky) imposes a loser pays English rule, significantly
weakens joint and several liability, limits punitive damages to
three times compensatory damages or $250,000, whichever is
greater, and requires disqualification of any expert witness
whose compensation is linked to the outcome of the case.
     Last week, Abraham was the keynote speaker at a Manhattan
Institute conference titled Junk Science & The Courts.
      "I'd like to spend more time with Peter Huber, whose
language adorns the McConnell-Abraham tort reform proposal for
getting junk science out of the courtroom, and whose Galileo's
Revenge did so much to bring the lunacy of `courtroom science' to
the attention of the public and the legal and business
community," Abraham said.
     In prepared remarks, Abraham writes that "Senator McConnell
and I (with Mr. Huber's help) have put forward our own reform
plan, including a provision that would further curb the use of
junk science."
     "It would do this by reviving the old common law requirement
that a scientific opinion or its underpinnings be generally
accepted in the relevant field in order to be admissible,"
according to Abraham's prepared remarks.
     Abraham's spokesman, Joseph McMonigle, said that while Huber
"did not write the legislation," he "probably gave us input on
how he thought it should read."
     "We considered his opinion and influence and expertise on
the subject to be great and we included his suggestions,"
McMonigle said.
     Huber did not return calls seeking comment.
     The New York Times and other major news organizations have
recently exposed corporate and think tank representatives writing
whole bills and amendments, with no public review and often
without hearings, to serve their clients' narrow interests.
     Examples exposed recently include:
     * A committee of lobbyists rewrite the Clean Water Act to
satisfy industry groups like the Chemical Manufacturers
Association.
     * Lobbyists, working from a Capitol office, plot strategy
and draft bills on regulatory reform and risk assessment.
     * A lobbyist for the Wholesale Distributors develops the
strategy on the product liability bill from an office provided by
Republicans.
     Congressman George Miller (D-California) last month
introduced an amendment to the House rules to require full
disclosure of the role of all non-public employees in the
drafting of legislation, amendments, reports and other products
of the legislative process.
     Pamela Gilbert, legislative counsel for the Coalition for
Accountability and Justice, said the practice of lobbyists
writing legislation "is happening more often now than ever
before" because of staff cutbacks in Congress.  
     Congressional committees "have to be farming it out," she
said.
     "It would be difficult to stop the practice," Gilbert said.
"There is a fine line between giving input and writing. But there
should be full disclosure of who is drafting the bills."
     Huber has been active in publicly defending makers of
hazardous products against lawsuits.
     At the Manhattan Institute conference last week, Huber
participated in a panel discussion titled "Junk Science and the
Courtroom," along with Richard Hazleton, chairman and chief
executive officer of Dow Corning Corporation, the breast implant
maker.
     Dow Chemical, which owns 50% of Dow Corning, is one of many
corporate funders of the Manhattan Institute.
     Dow Corning recently filed Chapter 11 bankruptcy to shield
itself from potential liabilities from personal injury lawsuits
related to its breast implant products.
     Hazleton said that the problem with the civil justice system
today is what he called "Litigation Incorporated."
     "What I mean by that is that litigation, as it is practiced
today, has evolved from being a process to provide justice in
accordance with professional principles, to a business predicated
on economic incentives," he said.
     Hazleton said that 20 studies performed by renowned medical
institutions show no higher incidence of auto-immune illness
among women with implants versus those without implants.
     Thousands of women who are suing Dow Corning alleging injury
from the implants claim that Dow Corning told them and their
doctors that the company had tested the implants for long-term
safety, when in fact it hadn't.
     Hazleton said that the real victim of the tort system is not
Dow Corning. "Dow Corning will survive this issues, survive this
controversy and continue to provide thousands of innovative
products to our customers," he said. "The real victims are women
with breast implants and the American economy."
     "It is my firm belief that the hundreds of thousands of
healthy women with implants have been unnecessarily frightened by
this controversy," Hazleton said. "And a billion dollars that
could be directed to research women's health issues will enrich
the plaintiff's bar."
     Maggie Gallagher, in an New York Times op-ed published the
same day as Hazleton speech before the Manhattan Institute (June
12), made a similar point.
     "Driving a company into bankruptcy, endangering hundreds of
jobs and scaring breast cancer survivors out of reconstructive
implant surgery because of an out-of-control tort system is not
my idea of helping women," Gallagher wrote.
     The New York Times did not identify Gallagher, but she too
is connected to the Dow-financed Manhattan Institute, as a writer
and former employee.

Russell Mokhiber
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