H.R. 3030 — Fairness in Product Liability Act of 1991

 
HR 3030 IH
102d CONGRESS
1st Session
 H. R. 3030
To establish uniform product liability standards.
IN THE HOUSE OF REPRESENTATIVES
July 25, 1991
Mr. ROWLAND (for himself, Mr. LENT, Mr. GLICKMAN, Mr. FISH, Mr. HASTERT,
Mr. ALLARD, Mr. ARMEY, Mr. BALLENGER, Mr. BARNARD, Mr. BARTON of Texas,
Mr. BLILEY, Mr. BOEHLERT, Mr. BOEHNER, Mr. BROOMFIELD, Mr. BURTON of Indiana,
Mr. CAMP, Mr. CARR, Mr. CHANDLER, Mr. CLINGER, Mr. COOPER, Mr. CRANE,
Mr. DANNEMEYER, Mr. DE LUGO, Mr. DINGELL, Mr. ECKART, Mr. EDWARDS of
Oklahoma, Mr. EMERSON, Mr. FRANKS of Connecticut, Mr. GALLEGLY, Mr. GALLO,
Mr. GEKAS, Mr. GILLMOR, Mr. GINGRICH, Mr. GOODLING, Mr. GRANDY, Mr. GUNDERSON,
Mr. HANCOCK, Mr. HEFLEY, Mr. HEFNER, Mr. HENRY, Mr. HERGER, Mr. HOLLOWAY,
Mr. HOUGHTON, Mr. HUNTER, Mr. HUTTO, Mr. HYDE, Mr. INHOFE, Mr. IRELAND,
Mrs. JOHNSON of Connecticut, Mr. JONES of North Carolina, Ms. KAPTUR, Mr. KLUG,
Mr. KOLBE, Mr. KYL, Mr. LAGOMARSINO, Mr. LEWIS of Florida, Mr. MAVROULES,
Mr. MCEWEN, Mr. MCMILLAN of North Carolina, Mrs. MEYERS of Kansas, Mr. MILLER
of Ohio, Mr. MILLER of Washington, Mr. MOORHEAD, Mr. MYERS of Indiana,
Mr. OXLEY, Mr. PACKARD, Mr. PAXON, Mr. PAYNE of Virginia, Mr. PEASE, Mr. PENNY,
Mr. PETRI, Mr. PORTER, Mr. PURSELL, Mr. QUILLEN, Mr. RAVENEL, Mr. RAY,
Mr. RITTER, Mr. ROBERTS, Mr. ROTH, Mrs. ROUKEMA, Mr. SAXTON, Mr. SCHAEFER,
Mr. SHAW, Mr. SHAYS, Mr. SMITH of Texas, Mr. SOLOMON, Mr. STUMP, Mr. SUNDQUIST,
Mr. THOMAS of Georgia, Mr. UPTON, Mr. VANDER JAGT, Mr. WALKER, Mr. WALSH,
Mr. WEBER, Mr. WILSON, Mr. ZELIFF, Mr. ZIMMER, Mr. BEREUTER, Mr. TRAXLER,
and Mr. COX of California) introduced the following bill; which was referred
jointly to the Committees on the Judiciary and Energy and Commerce
A BILL
To establish uniform product liability standards.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Fairness in Product Liability Act of 1991'.
SEC. 2. PREEMPTION.
  (a) GENERAL RULE- This Act governs any product liability action brought
  in any State or Federal court against a manufacturer or product seller, or
  any theory, for harm caused by a product. A civil action brought against a
  manufacturer or product seller for commercial loss shall be governed only
  by applicable commercial or contract law.
  (b) STATE LAW- This Act supersedes State law only to the extent that this
  Act establishes a rule of law applicable to any civil action. Any issue
  that is not governed by any rule of law in this Act shall be governed by
  otherwise applicable State or Federal law.
  (c) CONSTRUCTION- Nothing in this Act shall be construed to--
  (1) waive or affect any defense of sovereign immunity asserted by any
  State under any law,
  (2) supersede or affect any Federal law, except the Federal Employees
  Compensation Act and the Longshoremen's and Harborworker's Compensation Act,
  (3) waive or affect any defense of sovereign immunity asserted by the
  United States,
  (4) preempt State choice-of-law rules with respect to claims brought by
  a foreign nation or a citizen of a foreign nation,
  (5) affect the right of any court to transfer venue or to apply the law of
  a foreign nation or to dismiss a claim of a foreign nation or of a citizen
  of a foreign nation on the ground of inconvenient forum, or
  (6) supersede any statute or common law which creates a cause of
  action for civil damages or civil penalties, cleanup costs, injunctions,
  restitution, cost recovery, punitive damages, or any other form of relief
  for contamination or pullution of the environment of the threat of such
  contamination or pollution.
For purposes of paragraph (7), the term `environment' has the meaning given
to such term in section 101(8) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601(8)).
  (d) VACCINE INJURY-
  (1) To the extent that title XXI of the Public Health Service Act
  establishes a Federal rule of law applicable to a civil action brought
  for a vaccine-related injury or death--
  (A) this Act does not affect the application of the rule of law to such
  an action, and
  (B) any rule of law prescribed by this Act in conflict with a rule of law
  of such title XXI shall not apply to such an action.
  (2) If there is an aspect of a civil action brought for a vaccine-related
  injury or death to which a Federal rule of law under title XXI of the Public
  Health Service Act does not apply, then this Act or otherwise applicable law
  (as determined under this section) will apply to such aspect of such action.
SEC. 3. STANDARD OF PRODUCT SELLER LIABILITY.
  (a) GENERAL RULE- Except as provided in subsection (b), in a product
  liability action, a product seller shall be liable to a claimant for harm
  only if the claimant establishes that--
  (1)(A) the product which allegedly caused the harm complained of was sold
  by the product seller, (B) the product seller failed to exercise reasonable
  care with respect to the product, and (C) such failure to exercise reasonable
  care was a proximate causes of the claimant's harm,
  (2)(A) the product seller made an express warranty applicable to the
  product which allegedly caused the harm complained of, independent of
  any express warranty made by the manufacturer as to the same product,
  (B) the product failed to conform to the warranty, (C) the failure of the
  product to conformn to the warranty caused the claimants harm, or
  (3) the product seller engaged in international wrongdoing as determined
  under applicable State law and such intentional wrongdoing was a proximate
  cause of the harm complained of by the claimant.
For purposes of paragraph (1)(B), a product seller shall not be considered
to have failed to exercise reasonable care with respect to a product based
upon an alleged failure to inspect a product where there was no reasonable
opportunity to inspect the product in a manner which would, in the exercise
of reasonable care, have revealed the aspect of the product which allegedly
caused the claimant's harm.
  (b) SPECIAL RULE- In a product liability action, a product seller shall be
  liable for harm to the claimant caused by such product as if the product
  seller were the manufacturer of such product if--
  (1) the manufacturer is not subject to service of process under the laws
  of the State in which the claimant brings the action, or
  (2) the court determines that the claimant would be unable to enforce a
  judgment against the manufacturer.
SEC. 4. ALCOHOL AND DRUG DEFENSE.
  (a) GENERAL RULE- In any product liability action, it shall be a complete
  defense to such action that--
  (1) the claimant was intoxicated or was under the influence of intoxicating
  alcohol or any drug, and
  (2) the claimant as a result of such intoxication or the influence of
  the alcohol or drug was more than 50 percent responsible for causing the
  accident or event which resulted in such claimant's harm.
  (b) CONSTRUCTION- For purposes of subsection (a)--
  (1) the determination of whether a person was intoxicated or was under
  the influence of intoxicating alcohol or any drug shall be made pursuant
  to applicable State law, and
  (2) the term `drug' means any controlled substance as defined in the
  Controlled Substances Act (21 U.S.C. 802(6)) that has been taken by the
  claimant other than in accordance with the terms of a lawfully issued
  prescription.
SEC. 5. MISUSE OR ALTERATION.
  (a) GENERAL RULE- Except as provided in subsection (c), in a product
  liability action, the damages for which a manufacturer or product seller
  is otherwise liable under State law shall be reduced by the percentage of
  responsibility for the claimant's harm attributable to misuse or alteration
  of a product by any person if the manufacturer or product seller established
  by a preponderance of the evidence that such percentage of the claimant's
  harm was proximately caused by--
  (1) a use or alteration of a product in violation of, or contrary to,
  the manufacturer's or product seller's express warnings or instructions
  if the warnings or instructions are adequate as determined pursuant to
  applicable State law, or
  (2) a use or alteration of a product involving a risk of harm which was
  known or should have been known by the ordinary person who uses or consumes
  the product with the knowledge common to the class of persons who used or
  would be reasonably anticipated to use the product.
  (b) STATE LAW- Notwithstanding section 2(b) of this Act, subsection (a)
  supersedes State law concerning misuse of alteration of a product only to
  the extent that State law is inconsistent.
  (c) WORKPLACE INJURY- Notwithstanding subsection (a), the damage for which
  a manufacturer or product seller is otherwise liable under State law shall
  not be reduced by the percentage of responsibility for the claimant's harm
  attributable to misuse or alteration of the product by the claimant's
  employer or coemployees who immune for suit by the claimant pursuant to
  the State law applicable to workplace injuries.
SEC. 6. PUNITIVE DAMAGES.
  (a) General Rule-
  (1) STANDARD FOR AWARD OF DAMAGES- Except as provided in paragraph (2),
  punitive damages may, to the extent permitted by applicable State law,
  be awarded against a manufacturer or product seller in a product liability
  action if the claimant establishes by clear and convincing evidence that
  the harm suffered was the result of conduct manifesting a manufacturer's
  or product seller's conscious, flagrant indifference to the safety of
  those persons who might be harmed by a product.
  (2) REASONABLE CARE- A failure to exercise reasonable care in selecting among
  alternative product designs, formulations, instructions, or warnings shall
  not, by itself, constitute conduct that may give rise to punitive damages.
  (b) SEPARATE PROCEEDING- At the request of the manufacturer or product
  seller, the trier of fact shall consider in a separate proceeding (1)
  whether punitive damages are to be awarded and the amount of such award, or
  (2) the amount of punitive damages following a determination of liability for
  such damages. If a separate proceeding is requested, evidence relevant only
  to the claim of punitive damages, as determined by applicable State law,
  shall be inadmissible in any proceeding to determine whether compensatory
  damages are to be awarded.
  (c) CONSIDERATION- In determining the amount of punitive damages, the
  trier of fact shall consider all relevant evidence, including--
  (1) the severity of the harm caused by the conduct of the manufacturer or
  product seller,
  (2) the duration of the conduct or any concealment of it by the manufacturer
  or product seller,
  (3) the profitability of the conduct to the manufacturer or product seller,
  (4) the number of products sold by the manufacturer or product seller of
  the kind causing the harm complained of by the claimant,
  (5) awards of punitive or exemplary damages to persons similarly situated
  to the claimant,
  (6) prospective awards of compensatory damages to persons similarly situated
  to the claimant,
  (7) any criminal penalties imposed on the manufacturer or product seller
  as a result of the conduct complained of by the claimant,
  (8) the amount of any civil and administrative fines and penalties assessed
  against the defendant as a result of the conduct complained of by the
  claimant, and
  (9) whether the foregoing considerations have been presented in any prior
  proceeding involving that manufacturer or product seller.
  (d) DRUGS AND DEVICES-
  (1)(A) Punitive damages shall not be awarded against a manufacturer or
  product seller of a drug (as defined in section 201(g)(1) of the Federal
  Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)) or medical device (as
  defined under section 201(h) of the Federal Food, Drug, and Cosmetic Act
  (21 U.S.C. (h)) which caused the claimant's harm where--
  (i) such drug or device was subject to premarket approval by the Food
  and Drug Administration with respect to the safety of the formulation or
  performance of the aspect of such drug or device which caused the claimant's
  harm or the adequacy of the packaging or labeling of such drug or device,
  and such drug was approved by the Food and Drug Administration; or
  (ii) the drug is generally recognized as safe and effective pursuant to
  conditions established by the Food and Drug Administration and applicable
  regulations, including packaging and labeling regulations.
  (B) Subparagraphs (A) shall not apply in any case in which the defendant--
  (i) intentionally and wrongfully withheld from or misrepresented to the
  Food and Drug Administration information concerning such drug or device
  required to be submitted under the Federal Food, Drug, and Cosmetic Act
  (21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act
  (42 U.S.C. 262) that is material and relevant to the harm suffered by the
  claimant, or
  (ii) made an illegal payment to an official or employee of the Food and Drug
  Administration for the purpose of securing approval of such drug or device.
  (2) PACKAGING- In a product liability action for harm which is alleged
  to relate to the adequacy of the packaging (or labeling relating to such
  packaging) of a drug which is required to have tamper-resistant packaging
  under regulations of the Secretary of Health and Human Services (including
  labeling regulations related to such packaging), the manufacturer of the
  drug shall not be held liable for punitive damages unless the drug is
  found by the court by clear and convincing evidence to be substantially
  out of compliance with such regulations.
SEC. 7. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.
  (a) GENERAL RULE- If a manufacturer or product seller is found liable
  in a product liability action, the liability of each defendant in the
  lawsuit shall be several only and shall not be joint for the noneconomic
  damages. Each defendant shall be liable only for the amount of noneconomic
  damages allocated to such defendant in direct proportion to such defendant's
  percentage of responsibility as determined under subsection (b) of this
  section. A separate judgment shall be rendered against such defendant for
  that amount.
  (b) TRIER OF FACT- For purposes of this section, the trier of fact shall
  determine the proportion of responsibility of each party for the claimant's
  harm.
  (c) NONECONOMIC DAMAGES- As used in this section, the term `noneconomic
  damages' means subjective, nonmonetary losses including pain, suffering,
  inconvenience, mental suffering, emotional distress, loss of society and
  companionship, loss of consortium, injury to reputation and humiliation,
  but does not include objectively verifiable monetary losses including
  medical expenses, loss of earnings, burial costs, loss of use of property,
  costs of repair or replacement, costs of obtaining substitute domestic
  services, rehabilitation and training expenses, loss of employment, or
  loss of business or employment opportunities.
SEC. 8. TIME LIMITATIONS ON LIABILITY.
  (a) STATUTE OF LIMITATIONS- A product liability action shall be brought
  within 2 years after the time the individual who would be the claimant in
  such action discovered, or in the exercise of reasonable diligence should
  have discovered, the harm and its cause, except that any such action of
  a person under legal disability may be filed within 2 years after the
  disability ceases. If the commencement of such an action is stayed or
  enjoined, the running of the statute of limitations under this section
  shall be suspended for the period of the stay or injunction.
  (b) STATUTE OF REPOSE FOR CAPITAL GOODS- A product liability action for
  harm caused by a product which is a capital good shall be barred unless the
  complaint is served and filed within 25 years of the date of delivery of the
  product to its first purchaser or lessee who was not engaged in the business
  of selling or leasing the product or of using the product as a component
  in the manufacture of another product. This subsection shall apply only if--
  (1) the court determines that the claimant has received or would be eligible
  to receive compensation under any State or Federal worker's compensation
  law for harm caused by the product, and
  (2) the harm caused by the product did not include chronic illness.
SEC. 9. WORKERS' COMPENSATION OFFSET.
  (a) GENERAL RULE- In any product liability action in which damages are
  sought for harm for which the person injured is or would have been entitled
  to receive compensation under any State or Federal workers' compensation
  law, any damages awarded shall be reduced by the amount paid as workers'
  compensation benefits for such harm and the present value of all workers'
  compensation benefits to which the claimant is or would have been entitled
  for such harm. A finding with respect to the expected eligibility for or
  the amount of workers' compensation benefits in a product liability action
  shall have no binding effect on and shall not be used as evidence in any
  other proceeding.
  (b) NOTICE- A claimant in a product liability action who is or would have
  been entitled to receive compensation under any State or Federal workers'
  compensation law must provide written notice of the filing of the product
  liability action to the employer within 30 days of such filing. In the event
  the employer has ceased to exist, the claimant must provide such notice to
  the workers' compensation insurer, if any. The written notice shall include
  information regarding the date and court in which the product liability
  action was filed, the names and addresses of all plaintiffs and defendants
  appearing on the complaint, the court docket number if available, and a
  copy of the complaint which was filed in the product liability action. A
  copy of such written notice shall be filed with the court and served
  upon all parties to the action. A claimant's failure to comply with the
  requirements of this subsection shall suspend the deadlines for filing
  responsive pleadings and commencing discovery in the product liability
  action, until the claimant complies with the requirements of this subsection.
  (c) STAY OF PROCEEDINGS- In any product liability action in which damages
  are sought for harm for which the person injured is entitled to receive
  compensation under any State or Federal workers' compensation law, the action
  shall, on application of the claimant made at claimant's sole discretion,
  be stayed until such time as the full amount payable as workers' compensation
  benefits has been finally determined under such workers' compensation law.
  (d) Subrogation, Contribution, Indemnity, Lien-
  (1) GENERAL RULE- Except as provided in paragraph (2) of this subsection,
  unless the manufacturer or product seller has expressly agreed to indemnify
  or hold an employer harmless for harm to an employee caused by a product,
  neither the employer nor the workers' compensation insurer of the employer
  shall have a right of subrogation, contribution, or implied indemnity
  against the manufacturer or product seller or a lien against the claimant's
  recovery from the manufacturer or product seller if the harm is one for
  which a product liability action may be brought pursuant to this Act.
  (2) Exceptions-
  (A) Paragraph (1) of this subsection shall not apply if the employer or the
  workers' compensation insurer of the employer establishes that the claimant's
  harm was not in any way caused by the fault of the employer or coemployees.
  (B) If the claimant's harm occurred as a result of exposure to workplace
  conditions with multiple employers and the State where workers' compensation
  is payable does not allocate payment of benefits among all responsible
  employers, paragraph (1) shall not apply if the employer or the workers'
  compensation insurer of the employer establishes that the claimant's harm was
  not in any way caused by the fault of any of such employers or coemployees.
  (C) In order to establish the exceptions in subparagraph (A) or (B) of
  this subsection, an employer or the workers' compensation insurer of the
  employer may intervene in a product liability action at any time after the
  filing of a complaint. In the event that the product liability action is
  resolved before obtaining a verdict by the trier of fact, any resolution
  of the action by settlement or other means shall afford the employer or
  the workers' compensation insurer of the employer an opportunity pursuant
  to applicable State or Federal law to participate and to assert a right
  of subrogation, contribution, or implied indemnity if the claimant's harm
  was not in any way caused by the fault of the employer or coemployees.
  (e) Tort Actions Against Employers-
  (1) GENERAL RULE- Except as provided in subsection (f), in any product
  liability action in which damages are sought for harm for which the person
  injured is or would have been entitled to receive compensation under any
  State or Federal workers' compensation law, no manufacturer or product
  seller of the product which caused the harm may maintain any action for
  implied indemnity or contribution against the employer, any coemployee,
  or the representative of the person who was injured.
  (2) EFFECT ON ACTIONS- Nothing in this Act shall be construed to affect any
  provision of a State or Federal workers' compensation law which prohibits a
  person who is or would have been entitled to receive compensation under any
  such law, or any other person whose claim is or would have been derivative
  from such a claim, from recovering for harm caused by a product in any
  action other than a workers' compensation claim against a present or former
  employer or workers' compensation insurer of the employer, any coemployee,
  or the representative of the person who was injured. Any action other than
  a claim under such a State or Federal workers' compensation law shall be
  prohibited, except that nothing in this Act shall be construed to affect
  any State or Federal workers' compensation law which permits recovery
  based on a claim of an intentional tort by the employer or coemployee,
  where the claimant's harm was caused by such an intentional tort.
  (f) NONAPPLICATION OF SUBSECTION (e)- Subsection (e) shall not apply
  and applicable State law shall control if the employer or the workers'
  compensation insurer of the employer, in a product liability action, asserts
  or attempts to assert, pursuant to subsection (d), a right of subrogation,
  contribution, or implied indemnity against the manufacturer or product
  seller or a lien against the claimant's recovery from the manufacturer or
  product seller.
SEC. 10. FEDERAL CAUSE OF ACTION PRECLUDED.
  The district courts of the United States shall not have jurisdiction under
  section 1331 or 1337 of title 28, United States Code, over any civil action
  arising under this Act.
SEC. 11. DEFINITIONS.
  As used in this Act--
  (1) the term `capital good'--
  (A) means any product, or any component of such product, which is of a
  character subject to allowance for depreciation under the Internal Revenue
  Code of 1986 and is--
  (i) used in a trade or business,
  (ii) held for the production of income, or
  (iii) sold, leased, or donated to a governmental or private entity for
  the production of goods for training, for demonstration, or other similar
  purposes, and
  (B) does not mean a motor vehicle, vessel, aircraft, or railroad car used
  primarily to transport passengers for hire,
  (2) the term `claimant' means any person who brings a product liability
  action and any person on whose behalf such an action is brought, including
  such person's decedent if such an action is brought through or on behalf
  of an estate or such person's legal representative if it is brought through
  or on behalf of a minor or incompetent,
  (3) with respect to a civil action brought against a manufacturer or product
  seller of a product the term `commercial loss' means loss, including damage
  to the product itself, which is not harm described in clause (i) or (ii)
  or paragraph (4)(A) and is of a kind for which there is a remedy under
  applicable contract or commercial law,
  (4) the term `harm'--
  (A) means--
  (i) personal physical illness, injury, or death of the claimant,
  (ii) mental anguish or emotional harm of the claimant caused by or causing
  the claimant personal physical illness or injury, or
  (iii) physical damage to property other than the product itself,
caused by a product, and
  (B) does not include commercial loss,
  (5) with respect to a product, the term `manufacturer' means--
  (A) any person who is engaged in a business to produce, create, make,
  or construct the product and who designs or formulates the product or has
  engaged another person to design or formulate the product,
  (B) a product seller of the product who, before placing the product in
  the stream of commerce--
  (i) designs or formulates or has engaged another person to design or
  formulate an aspect of the product after the product was initially made
  by another, and
  (ii) produces, creates, makes, or constructs such aspect of the product, or
  (C) any product seller not described in subparagraph (B) which holds itself
  out as a manufacturer to the user of the product,
  (6) the term `product'--
  (A) means any object, substance, mixture, or raw material in a gaseous,
  liquid, or solid state--
  (i) which is capable of delivery itself, in a mixed or combined state,
  or as a component part or ingredient,
  (ii) which is produced for introduction into trade or commerce,
  (iii) which has intrinsic economic value, and
  (iv) which is intended for sale or lease to persons for commercial or
  personal use, and
  (B) does not include--
  (i) human tissue, human organs, human blood, amd human blood products, or
  (ii) electricity, water delivered by a utility, natural gas, or steam,
  (7) the term `product lability action' means a civil action brought against a
  manufacturer or product seller, on any theory, for harm caused by a product,
  (8) with respect to a product, the term `product seller'--
  (A) means a person--
  (i) who sells, distributes, leases, prepares, blends, packages, or labels
  a product or is otherwise involved in placing a product in the stream of
  commerce, or
  (ii) who installs, repairs, or maintains the harm-causing aspect of a
  product, and
  (B) does not include--
  (i) a manufacturer as defined in paragraph (5) of this section,
  (ii) a seller or lessor of real property,
  (iii) a provider of professional services in any case in which the sale
  or use of a product is incidental to the transaction and the essence of
  the transaction is the furnishing of judgment, skill, or services,
  (iv) any person who acts only in a financial capacity with respect to the
  sale of a product, or
  (v) any person who leases a product under a lease arrangement in which
  the selection, possession, maintenance, and operation of the product are
  controlled by a person other than the lessor, and
  (9) the term `State' means any State of the United States, the District
  of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
  American Samoa, the Northern Mariana Islands, the Trust Territory of the
  Pacific Islands, and any other territory or possession of the United States,
  or any political subdivision thereof.
SEC. 12. EFFECTIVE DATE.
  This Act shall apply with respect to product liability actions which are
  commenced after the date of the enactment of this Act.
Fairness in Product Liability Act of 1991

Sponsors

Subjects

Summary

Full Text

Legislative Actions

Ask about this bill
