2022 Posts: #9: Testifying Before the Senate Commerce Committee

Shortly after the Wisconsin Supreme Court decision in 1999, it became clear to National legal audiences that we had survived an attempt by Case Corp. on behalf of Corporate Manufacturing America to have our case shut down due to an Oregon statute of repose. In Oregon where Steven’s accident occurred we had no opportunity to bring a case as the tractor was 22 yrs. old at the time of the accident. Any injury on a product older than 12 years old could not result in a case even being filed or asserted in Oregon due to Oregon’s statute of repose law.

A statute of repose (hereinafter SR) is different from a statute of limitations (hereinafter SL). A SL is how long one can bring a lawsuit from the date of incident or possibly from the date of discovery of an injury. A SR has solely to do with the age of the product which is alleged to have caused an injury. Case Corp. attempted to borrow the SR from Oregon and apply it in Wisc. The Wisc. Supreme Court said no – predominantly because we had proven Case had a “post-sale” duty to warn; thereby making the age of the product irrelevant. The post-sale duty continued due to knowledge Case had after the date of manufacture of the on-going defect that was causing injury to others and eventually to Steven Sharp.

The Senate at the time was big on attempting to enact tort-reform. A national tort reform bill imposing a 12-year SR nationally was gaining traction in the Senate. I received a call from the American Trial Lawyers Association (ATLA). They wanted Steven and me to come and testify at the invitation of Senator Hollings a Democrat from South Carolina. I responded the date was not convenient for me. I was promptly told that this was the US Senate and I should make the date convenient. Message received.

So Steven Sharp, his Mom-Betty and me headed to DC. We were met by an ATLA representative at the airport. We were taken to a modest DC hotel and vague instructions for the next day of testimony were given to us over a late-night dinner. Steven and I had worked together extensively at trial preparing him to testify (A Measure of Endurance, The Unlikely Triumph of Steven Sharp by William Mishler), so we did just a short preparation session for the next day and went to bed.

We were picked up and driven through the DC streets in a big SUV to the Capital. I had been to DC many times so I could point out some of the sites. Steve and Betty were all eyes out the window and asking excellent questions about what we saw. It was joyful. A severely injured young man and his Mom from a small town in Eastern Oregon where barter was a given in the community life, now absorbing our exceedingly large government. At the Capital we were escorted down long halls, through security and into a very large ornate Senate hearing room.

We sat at a long table. We were joined at the table by 5 CEO’s. All testified first. They were there to support the passage of the 12 year National SR. Listening to them was painful. They were passionately articulating that if the bill did not pass manufacturing America was going to collapse under the crushing weight of frivolous product liability lawsuits. They were mostly male. They wore heavily starched shirts with cuff-links and 3,000 dollar suits.

The Commerce Committee was made up of 20 powerful senior Senators. That Day Senator John McCain was chairing the Committee. Senator Ernest Hollings sat right next to Sen. McCain due to his seniority. Each CEO spoke for 5 minutes. It then came to Steven and me. I spoke for 4 minutes and Steve for 1. I introduced Steve similar to the introduction found in Post 8.

I then responded to what the CEO’s said with about 2 minutes of my remaining time. I pointed out that 80 to 90% of Corporations in America were not in compliance with the law in America. If they complied with the law their lawsuits would diminish dramatically and eventually go away entirely. I indicated I had done this in collaboration with a few different Corporations and gave details of how we did it without naming names. I respectfully indicated that I knew of what I spoke — and that this could and should be done. Corporations needed to stop complaining and stop trying to have an uneven playing field — get in compliance with the law and stop injuring people.

During the CEO’s talks and a bit during mine, staff of the Senators could be seen and heard milling about behind them giving and whispering messages. However, when it came time for Steven to speak, you could hear a pin drop.

Steven – as usual – was stunning! He used plain English. One hook was visible and the other arm, fully amputated above the elbow, was of no use for dexterity and was not visible.

He said, “Senators, I got hurt real bad. I had to cut off both my arms. They were stuck in hot moving rollers in a hay baler behind my tractor that self-started when I was removing some hay in front of the hot rollers. It took me about an hour. A half hour on each arm to free myself from the hot burning rollers. I had to put my stumps on the hot rollers to stop the bleeding. Then I tried to climb back up in the cab to shut off the baler but when I put my arms up to pull myself up I fell down on my backside. It was the first time I realized I had no arms. I got back up in the cab using my stumps and the baler lever was in the off position. So I turned the tractor off and walked about a half mile up to the house and someone gave me a glass of water and called the ambulance. They came and wanted to leave immediately after treating me, but I would not leave unless they went and got my arms and put them with me. Cutting off your own arms to try to live is a terrible experience. I will not describe it in any more detail here. I described it in detail to the jury in response to Bill’s questions. All I wanted was my day in court. I needed a voice. I could not speak in Court for myself with all the complication involved. All I could do was tell my story.

Please Senators — please — never let anyone take away a day in Court for anyone like me.”

After a respectful pause Sen. John McCain was first to respond. Each Senator would get 5 minutes to talk or ask questions. Lights were in front of each Senator for all to see. One green, one yellow and one red. Yellow came on at 4 minutes and red meant it was time to stop. Sen. McCain again thanked us all for appearing and testifying. He was a true gentleman. I held him in high esteem and admired his biography. He spent 7 years in a North Vietnamese prison. He refused to leave when he was free to go as he would not leave until all his fellow prisoners were freed with him. His first words were a question.

“Mr. Manning you said 90% of Corporations in America are not in compliance with the law – that is hard to believe can you please explain your statement?” Eagerly I said, “Sure Senator,” and launched into a speech I had given to numerous Manufacturing Associations and corporations all over the Country. The speech usually lasted anywhere from 45 minutes to an hour. In the speech I could explain everything in detail and give examples with a mock cross-exam of a Chief Design Engineer not in compliance with the law and a direct exam of a Chief Design Engineer in compliance with the law. I then gave a mock closing argument on the not in compliance side and one on the in-compliance side. I then asked those in attendance where do you fall — in compliance or not in compliance? I never asked for a show of hands. The point had been made. Most readily agreed they fell on the non-compliance side.

Very simply – in the law of products liability is a Design Hierarchy. If it is possible a reasonably foreseeable misuse — not just a use — should be:

  • Designed out;
  • If it cannot be designed out, then clear instructions should be given on how to avoid the misuse;
  • If it cannot be designed out it should also be warned about.

Many corporations have experienced 3 or more accidents on a product. If they are outlandish misuses, they are not reasonable so then no need to march through the design hierarchy. But if that is the conclusion it should be documented. If it is a “reasonably foreseeable” use or misuse then a corporation must go through the design hierarchy. Very few companies actually have their most talented engineers attempt to design out a foreseeable use or misuse. Even fewer keep any disciplined record of meetings attempting to do so. If it cannot be designed out, document it and move on to instruct and warn. But so few actually attempt to really design out misuses after the product is on the market. They have a duty to do so. In 3 minutes, I explained that to John McCain and the Commerce Committee with quite a lot of passion. I feel strongly about it as I have seen many people injured and I have seen many companies act properly and prevent many injuries. After I spoke for 3 minutes of John McCain’s green light time, he very appropriately interrupted me. He of course wanted the last word. He was the Chair. But he asked a genuine question and he listened to a genuine answer. One of many reasons for my deep respect for him.

But as he interrupted me, Sen. Fritz Hollings the Democrat from South Carolina who had invited me and Steven to talk, who was sitting next to Sen. McCain leaned over and touched John on the shoulder and said so all could clearly hear in a heavy, appealing, Southern accented drawl: “John I am so sorry you interrupted him. I sure was enjoyin what he had to say.” The entire chamber burst into laughter. John and Fritz were friends.

A few more short questions came from Senators. Most engaged in speeches. But the sense in the room after Steven’s testimony and Sen. Hollings comment was that the Statute of Repose was going to die in Committee. And it did.

Hence, the annual Steven J. Sharp award was created that you read about in Post 8.

A brief historical comment:

Sen. Hollings had a long distinguished political career in South Carolina (Click here to read up on his career on Wikipedia). At one time a Federal Courthouse was named in his honor. To his great credit as his career ended, he asked that the Courthouse be renamed in honor of an extremely important Federal Judge named Judge Waring. Judge Waring was enormously important to the Civil Rights movement. He made decisions that were so unpopular that he eventually needed to leave Charleston, S.C. He moved with his wife to NYC and was very good friends with Thurgood Marshall and many other Black leaders of the Civil Rights movement. A book titled: Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring written by Judge Gergel describes a heart-wrenching case handled by Judge Waring that led to his firm intention to make a difference for racial equality. Judge Gergel in this book also writes a history of the Civil Rights movement with fascinating inside stories.