225

Mr . LEVINSON . At best .

Mr . STATLER . I would reserve that the record stay open on that . That is not my own recollection . Mr . CRAIG . Certainly .

Mr . STATLER . And I would point out that there are very many wins on the part of the Commission that you don ' t hear about . Much of it is decided in terms of motions , and discovery and pre liminary proceedings . They don ' t reach the circuit courts . It is those more notorious cases that you do hear about , and I think we have won more than our fair share of those cases .

Mr . CRAIG . The thing that I am concerned about here , obviously there is within the law an allowance for your ability to sue , and it should be . I am not criticizing that at all . But I , with Mr . Statler , am very concerned about money . And if you go out and spend $ 2 million and lose a court case , as you have , and if your record is 50 percent , I , as a person responsible for oversight into your activities , have got to be a little bit concerned about the proper allocation of resources .

Mr . LEVINSON . Mr . Craig , I would add that at this point we have urged the Commission not to go to court - -

Mr . CRAIG . Why ?

Mr . LEVINSON ( continuing ) . With respect to the record that we have so far assembled on the ATV issue . We don ' t believe that we have a sufficient record to be able to prove the hazard , and that is an important concept . Under either section 12 or 15 of our main statute , we would need to prove a defect or an unreasonable risk ; those are terms of art . And mere numbers cannot substitute for the important balancing of burdens and benefits that we have to do in assembling the administrative record .

Mr . CRAIG . But we already have a court test in which an injured person won . An attorney for that person was before us this morn ing by the name of Mr . Scanlon . And based on that information , is there a basis from which to go after the industry and sue ?

Mr . LEVINSON . We do not act , the Commission would not act or withhold action based on won - loss records in tort suits in private actions .

Mr . CRAIG . But it would react based on court record and court finding , would it not , as a - not only a precedent , but also the accu mulation of information that would build your informational base on which to respond ?

Mr . LEVINSON . Certainly the records that are established in pri vate actions would be very useful , very helpful to the Commission .

Mr . CRAIG . And I assume , or I hope you are collecting those at this time . Mr . LEVINSON . Yes , we are .

Mr . CRAIG . Mr . Statler , you have said that , by your testimony and other statements that have appeared in the press , that the ATV ' s are inherently dangerous and inherently unstable . Is that correct ?

Mr . STATLER . Yes , sir , but let me explain that statement . The real issue before the Commission , the issue that we have to decide is whether - not whether they are inherently dangerous , but whether they are unreasonably dangerous . That is the test under our law .