I 

111TH CONGRESS 

2D SESSION H. R. 6239 

To provide targeted liability protections for claims based on damages resulting 

from, or aggravated by, the inclusion of ethanol in certain fuel, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 29, 2010 

Mr. SMITH of Texas introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To provide targeted liability protections for claims based 

on damages resulting from, or aggravated by, the inclusion of ethanol in certain fuel, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Prevention of Frivo5 lous Ethanol Lawsuits Act of 2010’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds as follows: 

8 (1) Ethanol is currently widely distributed in 

9 commerce for general use in all conventional gasoVerDate Mar 15 2010 21:57 Oct 07, 2010 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6239.IH H6239

srobinson on DSKHWCL6B1PROD with BILLS
2 

•HR 6239 IH

1 line-powered onroad and nonroad vehicles and 

2 nonroad engines in widespread use. 

3 (2) A decision to increase the current blending 

4 limit of ethanol into gasoline for motor vehicle and 

5 equipment engines requires an agency finding that 

6 the increased emission products will not cause or 

7 contribute to a failure of any emission control device 

8 or system (over the useful life of the motor vehicle, 

9 motor vehicle engine, nonroad engine or nonroad ve10 hicle in which such device or system is used). 

11 (3) Significant questions and concerns exist as 

12 to the effects of increasing the current blending limit 

13 of ethanol into gasoline for motor vehicle and equip14 ment engines on the performance of such engines. 

15 (4) Effects such as increased engine failures, 

16 decreased engine performance, increased consumer 

17 complaints, increased litigation, or other unforeseen 

18 effects could have a significant impact on interstate 

19 commerce. 

20 (5) The Federal Trade Commission has pro21 posed labeling requirements for all fuels distributed 

22 in commerce that exceed the current blending limit 

23 of ethanol into gasoline to disclose to consumers that 

24 using such fuels may harm some conventional vehi25 cles. 


srobinson on DSKHWCL6B1PROD with BILLS
3 

•HR 6239 IH

1 (6) A multifaceted Federal testing regimen is 

2 currently underway on newer motor vehicles to de3 termine the effects on motor vehicle engines of in4 creasing the current blending limit of ethanol into 

5 gasoline. 

6 (7) There is insufficient data on the effects of 

7 increasing the current blending limit of ethanol into 

8 gasoline on older vehicles and nonroad engines. 

9 (8) Nonetheless, the executive branch has— 

10 (A) statutory authority to increase the cur11 rent blending limit of ethanol into gasoline; and 

12 (B) is currently undertaking a process to 

13 reach a decision on this issue. 

14 (9) It is appropriate for Congress to mitigate 

15 undue effects on parties engaged in interstate com16 merce resulting from a Federal decision to allow an 

17 increase of the current blending limit of ethanol into 

18 gasoline. 

19 SEC. 3. TARGETED LIABILITY PROTECTIONS FOR CLAIMS 

20 BASED ON DAMAGES RESULTING FROM, OR 

21 AGGRAVATED BY, THE INCLUSION OF ETH22 ANOL IN CERTAIN FUEL. 

23 (a) LIABILITY PROTECTIONS.— 

24 (1) IN GENERAL.—Subject to the other provi25 sions of this section, a covered entity shall be imVerDate Mar 15 2010 02:20 Oct 08, 2010 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6239.IH H6239

srobinson on DSKHWCL6B1PROD with BILLS
4 

•HR 6239 IH

1 mune from suit and liability under Federal and 

2 State law with respect to all claims for loss resulting 

3 from, or being aggravated by, the use of any renew4 able fuel, as defined by section 211(o)(1) of the 

5 Clean Air Act, and containing ethanol in concentra6 tions of greater than 10 percent, pursuant to a waiv7 er under section 211(f)(4) of the Clean Air Act, to 

8 operate an internal combustion engine. 

9 (2) SCOPE OF CLAIMS FOR LOSS.—For pur10 poses of this section, the term ‘‘loss’’ means any 

11 type of loss, including— 

12 (A) death; 

13 (B) physical, mental, or emotional injury, 

14 illness, disability, or condition; 

15 (C) fear of physical, mental, or emotional 

16 injury, illness, disability, or condition, including 

17 any need for medical monitoring; and 

18 (D) loss of or damage to property, includ19 ing business interruption loss. 

20 Each of subparagraphs (A) through (D) applies 

21 without regard to the date of the occurrence, presen22 tation, or discovery of the loss described in the sub23 paragraph. 

24 (3) SCOPE.—The immunity under paragraph 

25 (1) applies to any claim for loss that has a causal 


srobinson on DSKHWCL6B1PROD with BILLS
5 

•HR 6239 IH

1 relationship with the use of any renewable fuel, as 

2 defined by section 211(o)(1) of the Clean Air Act, 

3 and containing ethanol in concentrations of greater 

4 than 10 percent, pursuant to a waiver under section 

5 211(f)(4) of the Clean Air Act, to operate an inter6 nal combustion engine including a causal relation7 ship with the design, development, testing or inves8 tigation, manufacture, labeling, distribution, formu9 lation, packaging, marketing, promotion, sale, pur10 chase, dispensing, administration, licensing, or use 

11 of such renewable fuel. 

12 (b) EXCEPTION TO IMMUNITY OF COVERED PER13 SONS.— 

14 (1) IN GENERAL.—Subject to subsection (i), the 

15 sole exception to the immunity from suit and liabil16 ity of covered persons set forth in subsection (a) 

17 shall be for an exclusive Federal cause of action 

18 against a covered person for death or serious phys19 ical injury proximately caused by willful misconduct, 

20 as defined pursuant to subsection (c), by such cov21 ered person. For purposes of section 2679(b)(2)(B) 

22 of title 28, United States Code, such a cause of ac23 tion is not an action brought for violation of a stat24 ute of the United States under which an action 

25 against an individual is otherwise authorized. 


srobinson on DSKHWCL6B1PROD with BILLS
6 

•HR 6239 IH

1 (2) PERSONS WHO CAN SUE.—An action under 

2 this subsection may be brought for wrongful death 

3 or serious physical injury by any person who suffers 

4 such injury or by any representative of such a per5 son. 

6 (c) PROCEDURES FOR SUIT.— 

7 (1) EXCLUSIVE FEDERAL JURISDICTION.—Any 

8 action under subsection (b) shall be filed and main9 tained only in the United States District Court for 

10 the District of Columbia. 

11 (2) GOVERNING LAW.—The substantive law for 

12 decision in an action under subsection (b) shall be 

13 derived from the law, including choice of law prin14 ciples, of the State in which the alleged willful mis15 conduct occurred, unless such law is inconsistent 

16 with or preempted by Federal law, including provi17 sions of this section. 

18 (3) PLEADING WITH PARTICULARITY.—In an 

19 action under subsection (b), the complaint shall 

20 plead with particularity each element of the plain21 tiff’s claim, including— 

22 (A) each act or omission, by each covered 

23 person sued, that is alleged to constitute willful 

24 misconduct; 


srobinson on DSKHWCL6B1PROD with BILLS
7 

•HR 6239 IH

1 (B) facts supporting the allegation that 

2 such alleged willful misconduct proximately 

3 caused the injury claimed; and 

4 (C) facts supporting the allegation that the 

5 person on whose behalf the complaint was filed 

6 suffered death or serious physical injury. 

7 (4) VERIFICATION REQUIREMENT.— 

8 (A) IN GENERAL.—The complaint shall in9 clude a verification, made by affidavit of the 

10 plaintiff under oath, stating that the pleading is 

11 true to the knowledge of the deponent, except 

12 as to matters specifically identified as being al13 leged on information and belief, and that as to 

14 those matters the plaintiff believes it to be true. 

15 (B) IDENTIFICATION OF MATTERS AL16 LEGED UPON INFORMATION AND BELIEF.—Any 

17 matter that is not specifically identified as 

18 being alleged upon the information and belief of 

19 the plaintiff, shall be regarded for all purposes, 

20 including a criminal prosecution, as having been 

21 made upon the knowledge of the plaintiff. 

22 (5) PROOF OF WILLFUL MISCONDUCT.—In an 

23 action under subsection (b), the plaintiff shall have 

24 the burden of proving by clear and convincing eviVerDate Mar 15 2010 21:57 Oct 07, 2010 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6239.IH H6239

srobinson on DSKHWCL6B1PROD with BILLS
8 

•HR 6239 IH

1 dence willful misconduct by each covered person 

2 sued. 

3 (6) THREE-JUDGE COURT.—Any action under 

4 subsection (b) shall be assigned initially to a panel 

5 of three judges. Such panel shall have jurisdiction 

6 over such action for purposes of considering motions 

7 to dismiss, motions for summary judgment, and 

8 matters related thereto. If such panel has denied 

9 such motions, or if the time for filing such motions 

10 has expired, such panel shall refer the action to the 

11 chief judge for assignment for further proceedings, 

12 including any trial. Section 1253 of title 28, United 

13 States Code, and paragraph (3) of subsection (b) of 

14 section 2284 of title 28, United States Code, shall 

15 not apply to actions under subsection (b). 

16 (7) CIVIL DISCOVERY.—In an action under sub17 section (b), no discovery shall be allowed— 

18 (A) before each covered person sued has 

19 had a reasonable opportunity to file a motion to 

20 dismiss; 

21 (B) in the event such a motion is filed, be22 fore the court has ruled on such motion; and 

23 (C) in the event a covered person files an 

24 interlocutory appeal from the denial of such a 


srobinson on DSKHWCL6B1PROD with BILLS
9 

•HR 6239 IH

1 motion, before the Court of Appeals has ruled 

2 on such appeal. 

3 (d) STANDARD.—Notwithstanding any other provi4 sion of law, the court in an action under subsection (b) 

5 shall permit discovery only with respect to matters directly 

6 related to material issues contested in such action, and 

7 the court shall compel a response to a discovery request 

8 (including a request for admission, an interrogatory, a re9 quest for production of documents, or any other form of 

10 discovery request) under rule 37, Federal Rules of Civil 

11 Procedure, only if the court finds that the requesting party 

12 needs the information sought to prove or defend as to a 

13 material issue contested in such action and that the likely 

14 benefits of a response to such request equal or exceed the 

15 burden or cost for the responding party of providing such 

16 response. 

17 (e) REDUCTION IN AWARD OF DAMAGES FOR COL18 LATERAL SOURCE BENEFITS.— 

19 (1) IN GENERAL.—In an action under sub20 section (b), the amount of an award of damages that 

21 would otherwise be made to a plaintiff shall be re22 duced by the amount of collateral source benefits to 

23 such plaintiff. 

24 (2) NONECONOMIC DAMAGES.—In an action 

25 under subsection (b), any noneconomic damages may 


srobinson on DSKHWCL6B1PROD with BILLS
10 

•HR 6239 IH

1 be awarded only in an amount directly proportional 

2 to the percentage of responsibility of a defendant for 

3 the harm to the plaintiff. For purposes of this para4 graph, the term ‘‘noneconomic damages’’ means 

5 damages for losses for physical and emotional pain, 

6 suffering, inconvenience, physical impairment, men7 tal anguish, disfigurement, loss of enjoyment of life, 

8 loss of society and companionship, loss of consor9 tium, hedonic damages, injury to reputation, and 

10 any other nonpecuniary losses. 

11 (f) RULE 11 SANCTIONS.—Whenever a district court 

12 of the United States determines that there has been a vio13 lation of rule 11 of the Federal Rules of Civil Procedure 

14 in an action under subsection (b), the court shall impose 

15 upon the attorney, law firm, or parties that have violated 

16 rule 11 or are responsible for the violation, an appropriate 

17 sanction, which may include an order to pay the other 

18 party or parties for the reasonable expenses incurred as 

19 a direct result of the filing of the pleading, motion, or 

20 other paper that is the subject of the violation, including 

21 a reasonable attorney’s fee. Such sanction shall be suffi22 cient to deter repetition of such conduct or comparable 

23 conduct by others similarly situated, and to compensate 

24 the party or parties injured by such conduct. 


srobinson on DSKHWCL6B1PROD with BILLS
11 

•HR 6239 IH

1 (g) INTERLOCUTORY APPEAL.—The United States 

2 Court of Appeals for the District of Columbia Circuit shall 

3 have jurisdiction of an interlocutory appeal by a covered 

4 person taken within 30 days of an order denying a motion 

5 to dismiss or a motion for summary judgment based on 

6 an assertion of the immunity from suit conferred by sub7 section (a) or based on an assertion of the exclusion under 

8 subsection (h)(1). 

9 (h) EXCLUSION FOR REGULATED ACTIVITY OF MAN10 UFACTURER OR DISTRIBUTOR.— 

11 (1) IN GENERAL.—If an act or omission by a 

12 manufacturer or distributor with respect to a cov13 ered countermeasure, which act or omission is al14 leged under subsection (b)(1) to constitute willful 

15 misconduct, is subject to regulation by the Clean Air 

16 Act, such act or omission shall not constitute ‘‘will17 ful misconduct’’ for purposes of subsection (b) if— 

18 (A) neither the Administrator of the Envi19 ronmental Protection Agency nor the Attorney 

20 General has initiated an enforcement action 

21 with respect to such act or omission; or 

22 (B) such an enforcement action has been 

23 initiated and the action has been terminated or 

24 finally resolved without a covered remedy. 


srobinson on DSKHWCL6B1PROD with BILLS
12 

•HR 6239 IH

1 Any action or proceeding under subsection (b) shall 

2 be stayed during the pendency of such an enforce3 ment action. 

4 (i) ACTIONS BY AND AGAINST THE UNITED

5 STATES.—Nothing in this section shall be construed to ab6 rogate or limit any right, remedy, or authority that the 

7 United States or any agency thereof may possess under 

8 any other provision of law or to waive sovereign immunity 

9 or to abrogate or limit any defense or protection available 

10 to the United States or its agencies, instrumentalities, of11 ficers, or employees under any other law, including any 

12 provision of chapter 171 of title 28, United States Code 

13 (relating to tort claims procedure). 

14 (j) DEFINITIONS.—In this section, the following defi15 nitions apply: 

16 (1) COVERED ENTITY.—The term ‘‘covered en17 tity’’ means an entity engaged in the manufacture, 

18 sale or distribution of fuel or products which use re19 newable fuel, as defined by section 211(o)(1) of the 

20 Clean Air Act. 

21 (2) ENFORCEMENT ACTION.—The term ‘‘en22 forcement action’’ means a criminal prosecution, an 

23 action seeking an injunction, a seizure action, a civil 

24 monetary proceeding based on willful misconduct, a 

25 mandatory recall of a product because voluntary reVerDate Mar 15 2010 21:57 Oct 07, 2010 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H6239.IH H6239

srobinson on DSKHWCL6B1PROD with BILLS
13 

•HR 6239 IH

1 call was refused, a proceeding to compel repair or 

2 replacement of a product, a debarment proceeding, 

3 an investigator disqualification proceeding where an 

4 investigator is an employee or agent of the manufac5 turer. 

6 (3) COVERED REMEDY.—The term ‘‘covered 

7 remedy’’ means an outcome— 

8 (A) that is a criminal conviction, an in9 junction, or a condemnation, a civil monetary 

10 payment, a debarment; and 

11 (B) that results from a final determination 

12 by a court or from a final agency action. 

13 (4) FINAL.—The terms ‘‘final’’ and ‘‘finally’’— 

14 (A) with respect to a court determination, 

15 or to a final resolution of an enforcement action 

16 that is a court determination, mean a judgment 

17 from which an appeal of right cannot be taken 

18 or a voluntary or stipulated dismissal; and 

19 (B) with respect to an agency action, or to 

20 a final resolution of an enforcement action that 

21 is an agency action, mean an order that is not 

22 subject to further review within the agency and 

23 that has not been reversed, vacated, enjoined, 

24 or otherwise nullified by a final court deter25 mination or a voluntary or stipulated dismissal. 


srobinson on DSKHWCL6B1PROD with BILLS
14 

•HR 6239 IH

1 (5) WILLFUL MISCONDUCT.—The term ‘‘willful 

2 misconduct’’— 

3 (A) shall not, for purposes of subsection 

4 (b), denote an act or omission that is taken 

5 pursuant to regulations or guidance promul6 gated in response to a full or partial waiver of 

7 the requirements of the Clean Air Act with re8 spect to ethanol-gasoline blends of more than 

9 10 percent by volume ethanol; but 

10 (B) shall, for purposes of subsection (b), 

11 denote an act or omission that is taken— 

12 (i) intentionally to achieve a wrongful 

13 purpose; 

14 (ii) knowingly without legal or factual 

15 justification; and 

16 (iii) in disregard of a known or obvi17 ous risk that is so great as to make it 

18 highly probable that the harm will out19 weigh the benefit. 

Æ 


srobinson on DSKHWCL6B1PROD with BILLS