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[Congressional Record Volume 141, Number 68 (Wednesday, April 26, 1995)]
[Senate]
[Pages S5730-S5732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                          AMENDMENTS SUBMITTED

                                 ______

           THE COMMONSENSE LEGAL STANDARDS REFORM ACT OF 1995

                                 ______

              ABRAHAM (AND OTHERS) AMENDMENTS NOS. 600-601

  (Ordered to lie on the table.)
  Mr. ABRAHAM (for himself, Mr. McConnell, and Mr. Kyl) submitted two 
amendments intended to be proposed by them to amendment No. 596 
proposed by Mr. Gorton to the bill (H.R. 956) to establish legal 
standards and procedures for product liability litigation, and for 
other purposes; as follows:

                           Amendment No. 600

       Strike out section 109 and insert in lieu thereof the 
     following new section:

     SEC. 109. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES

       (A) Findings.--The Congress finds that--
       (1) because of the joint and several liability doctrine, 
     municipalities, volunteer groups, nonprofit entities, 
     property owners, and large and small businesses are often 
     brought into litigation despite the fact that their conduct 
     often had little or nothing to do with the harm suffered by 
     the claimant;
       (2) the imposition of joint and several liability for 
     noneconomic damages frequently results in the assessment of 
     unfair and disproportionate damages against defendants that 
     bear no relationship to their fault or responsibility;
       (3) producers of products and services who are only 
     marginally responsible for an injury risk bearing the entire 
     cost of a judgment for noneconomic damages even if the 
     products or services originate in States that have replaced 
     joint liability for noneconomic damages with proportionate 
     liability, because claimants have an incentive to bring suit 
     in States that have retained joint liability; and
       (4) the unfair allocation of noneconomic damages under the 
     joint and several liability doctrine disrupts, impairs and 
     burdens commerce, imposing unreasonable and unjustified costs 
     on consumers, taxpayers, governmental entities, large and 
     small businesses, volunteer organizations, and nonprofit 
     entities.
       (b) General Rule.--Notwithstanding any other section of 
     this Act, in any civil action whose subject matter affects 
     commerce brought in Federal or State court on any theory, the 
     liability of each defendant for noneconomic damages shall be 
     several only and shall not be great.
       (c) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic damages allocated to their 
     defendant in direct proportion to the percentage of 
     responsibility of the defendant (determined in accordance 
     with paragraph (2)) for the harm to the claimant with respect 
     to which the defendant is liable. The court shall render a 
     separate judgment against each defendant in an amount 
     determined pursuant to the preceding sentence.
       (2) Perentage of responsibility.--For purposes of 
     determining the amount of noneconomic damages allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person, 
     including the claimant, responsible for the claimant's harm, 
     whether or not such person is a part to the action.
       (d) Applicability.--Nothing in this section shall be 
     construed to--
       (1) waive or affect any defense or sovereign immunity 
     asserted by the United States, or by any State, under any 
     law;
       (2) give rise to any claim for joint liability;
       (3) supersede or alter any Federal law;
       (4) preempt, supersede, or alter any State law to the 
     extent that such law would further limit the applicability of 
     joint liability to any kind of damages;
       (5) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (6) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation or a citizen of a foreign 
     nation; or
       (7) 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.
       (e) Federal Court Jurisdiction Not Established.--Nothing in 
     this section shall be construed to establish any jurisdiction 
     in the district courts of the United States on the basis of 
     section 1331 or 1337 of title 28, United States Code.
       (f) Definitions.--For purposes of this section:
       (1) The term ``claimant'' means any person who brings a 
     civil action and any person on whose behalf such an action is 
     brought. If such action is brought through or on behalf of an 
     estate, the term includes the decedent. If such action is 
     brought through or on behalf of a minor or incompetent, the 
     term includes the legal guardian of the minor or incompetent.
       (2) The term ``commerce'' means commerce between or among 
     the several States, or with foreign nations.
       (3)(A) The term ``economic damages'' means any objectively 
     verifiable monetary losses resulting from the harm suffered, 
     including past and future medical expenses, loss of past and 
     future earnings, burial costs, costs of repair or 
     replacement, costs of obtaining replacement services in the 
     home (including, without limitation, child care, 
     transportation, food preparation, and household care), costs 
     of making reasonable accommodations to a personal residence, 
     loss of employment, and loss of business or employment 
     opportunities, to the extent recovery for such losses is 
     allowed under applicable State law.
       (B) The term ``economic damages'' shall not include 
     noneconomic damages.
       (4) The term ``harm'' means any legally cognizable wrong or 
     injury for which damages may be imposed.
       [[Page S5731]] (5)(A) The term ``noneconomic damages'' 
     means subjective, nonmonetary loss resulting from harm, 
     including pain, suffering, inconvenience, mental suffering, 
     emotional distress, loss of society and companionship, loss 
     of consortium, injury to reputation, and humiliation.
       (B) The term ``noneconomic damages'' shall not include 
     economic damages or punitive damages.
       (6) The term ``punitive damages'' means damages awarded 
     against any person or entity to punish such persons or entity 
     or to deter such person or entity, or others, from engaging 
     in similar behavior in the future.
       (7) The term ``State'' means any State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Northern Mariana Islands, the Virgin Islands, Guam, 
     American Samoa, and any other territory or possession of the 
     United States, or any political subdivision of any of the 
     foregoing.
                                                                    ____

                           Amendment No. 601

       Strike out section 109 and insert in lieu thereof the 
     following new section:

     SEC. 109. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.

       (a) Findings.--The Congress finds that--
       (1) because of the joint and several liability doctrine, 
     municipalities, volunteer groups, nonprofit entities, 
     property owners, and large and small businesses are often 
     brought into litigation despite the fact that their conduct 
     often had little or nothing to do with the harm suffered by 
     the claimant;
       (2) the imposition of joint and several liability for 
     noneconomic damages frequently results in the assessment of 
     unfair and disproportionate damages against defendants that 
     bear no relationship to their fault or responsibility;
       (3) producers of products and services who are only 
     marginally responsible for an injury risk bearing the entire 
     cost of a judgment for noneconomic damages even if the 
     products or services originate in States that have replaced 
     joint liability for noneconomic damages with proportionate 
     liability, because claimants have an incentive to bring suit 
     in States that have retained joint liability; and
       (4) the unfair allocation of noneconomic damages under the 
     joint and several liability doctrine disrupts, impairs and 
     burdens commerce, imposing unreasonable and unjustified costs 
     on consumers, taxpayers, governmental entities, large and 
     small businesses, volunteer organizations, and non-profit 
     entities.
       (b) General Rule.--Notwithstanding any other section of 
     this Act, in any product liability or libel action whose 
     subject matter affects commerce brought in Federal or State 
     court on any theory, the liability of each defendant for 
     noneconomic damages shall be several only and shall not be 
     joint.
       (c) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic damages allocated to the defendant 
     in direct proportion to the percentage of responsibility of 
     the defendant (determined in accordance with paragraph (2)) 
     for the harm to the claimant with respect to which the 
     defendant is liable. The court shall render a separate 
     judgment against each defendant in an amount determined 
     pursuant to the preceding sentence.
       (2) Percentage of responsibility.--for purposes of 
     determining the amount of noneconomic damages allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person, 
     including the claimant, responsible for the claimant's harm, 
     whether or not such person is a party to the action.
       (d) Applicability.--Nothing in this section shall be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by the United States, or by any State, under any 
     law;
       (2) give rise to any claim for joint liability;
       (3) supersede or alter any Federal law;
       (4) preempt, supersede, or alter any State law to the 
     extent that such law would further limit the applicability of 
     joint liability to any kind of damages;
       (5) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (6) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation or a citizen of a foreign 
     nation; or
       (7) 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.
       (e) Federal Court Jurisdiction Not Established.--Nothing in 
     this section shall be construed to establish any jurisdiction 
     in the district courts of the United States on the basis of 
     section 1331 or 1337 of title 28, United States Code.
       (f) Definitions.--For purposes of this section:
       (1) The term ``claimant'' means any person who brings a 
     civil action and any person on whose behalf such an action is 
     brought. If such action is brought through or on behalf of an 
     estate, the term includes the decedent. If such action is 
     brought through or on behalf of a minor or incompetent, the 
     term includes the legal guardian of the minor or incompetent.
       (2) The term ``commerce'' means commerce between or among 
     the several States, or with foreign nations.
       (3)(A) The term ``economic damages'' means any objectively 
     verifiable monetary losses resulting from the harm suffered, 
     including past and future medical expenses, loss of past and 
     future earnings, burial costs, costs of repair or 
     replacement, costs of obtaining replacement services in the 
     home (including, without limitation, child care, 
     transportation, food preparation, and household care), costs 
     of making reasonable accommodations to a personal residence, 
     loss of employment, and loss of business or employment 
     opportunities, to the extent recovery for such losses is 
     allowed under applicable State law.
       (B) The term ``economic damages'' shall not include 
     noneconomic damages.
       (4) The term ``harm'' means any legally cognizable wrong or 
     injury for which damages may be imposed.
       (5)(A) The term ``noneconomic damages'' means subjective, 
     nonmonetary loss resulting from harm, including pain, 
     suffering, inconvenience, mental suffering, emotional 
     distress, loss of society and companionship, loss of 
     consortium, injury to reputation, and humiliation.
       (B) The term ``noneconomic damages'' shall not include 
     economic damages or punitive damages.
       (6) The term ``punitive damages'' means damages awarded 
     against any person or entity to punish such persons or entity 
     or to deter such person or entity, or others, from engaging 
     in similar behavior in the future.
       (7) The term ``State'' means any State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Northern Mariana Islands, the Virgin Islands, Guam, 
     American Samoa, and any other territory or possession of the 
     United States, or any political subdivision of any of the 
     foregoing.
                                 ______

                 ABRAHAM (AND OTHERS) AMENDMENT NO. 602

  (Ordered to lie on the table.)
  Mr. ABRAHAM (for himself, Mr. McConnell, and Mr. Kyl) submitted an 
amendment intended to be proposed by them to an amendment to the bill 
H.R. 956, supra; as follows:

       In lieu of the language proposed to be inserted, insert the 
     following:

     SEC. 109. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.

       (a) Findings.--The Congress finds that--
       (1) because of the joint and several liability doctrine, 
     municipalities, volunteer groups, nonprofit entities, 
     property owners, and large and small businesses are often 
     brought into litigation despite the fact that their conduct 
     often had little or nothing to do with the harm suffered by 
     the claimant;
       (2) the imposition of joint and several liability for 
     noneconomic damages frequently results in the assessment of 
     unfair and disproportionate damages against defendants that 
     bear no relationship to their fault or responsibility;
       (3) producers of products and services who are only 
     marginally responsible for an injury risk bearing the entire 
     cost of a judgment for noneconomic damages even if the 
     products or services originate in States that have replaced 
     joint liability for noneconomic damages with proportionate 
     liability, because claimants have an incentive to bring suit 
     in States that have retained joint liability; and
       (4) the unfair allocation of noneconomic damages under the 
     joint and several liability doctrine disrupts, impairs and 
     burdens commerce, imposing unreasonable and unjustified costs 
     on consumers, taxpayers, governmental entities, large and 
     small businesses, volunteer organizations, and non-profit 
     entities.
       (b) General Rule.--Notwithstanding any other section of 
     this Act, in any civil action whose subject matter affects 
     commerce brought in Federal or State court on any theory, the 
     liability of each defendant for noneconomic damages shall be 
     several only and shall not be joint.
       (c) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic damages allocated to the defendant 
     in direct proportion to the percentage of responsibility of 
     the defendant (determined in accordance with paragraph (2)) 
     for the harm to the claimant with respect to which the 
     defendant is liable. The court shall render a separate 
     judgment against each defendant in an amount determined 
     pursuant to the preceding sentence.
       (2) Percentage of responsibility.--For purposes of 
     determining the amount of noneconomic damages allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person, 
     including the claimant, responsible for the claimant's harm, 
     whether or not such person is a party to the action.
       (d) Applicability.--Nothing in this section shall be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by the United States, or by any State, under any 
     law;
       (2) give rise to any claim for joint liability;
       (3) supersede or alter any Federal law;
       (4) preempt, supersede, or alter any State law to the 
     extent that such law would further limit the applicability of 
     joint liability to any kind of damages;
       (5) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (6) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation; or
       [[Page S5732]] (7) 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.
       (e) Federal Court Jurisdiction Not Established.--Nothing in 
     this section shall be construed to establish any jurisdiction 
     in the district courts of the United States on the basis of 
     section 1331 or 1337 of title 28, United States Code.
       (f) Definitions.--For purposes of this section:
       (1) The term ``claimant'' means any person who brings a 
     civil action and any person on whose behalf such an action is 
     brought. If such action is brought through or on behalf of an 
     estate, the term includes the decedent. If such action is 
     brought through or on behalf of a minor or incompetent, the 
     term includes the legal guardian of the minor or incompetent.
       (2) The term ``commerce'' means commerce between or among 
     the several States, or with foreign nations.
       (3)(A) The term ``economic damages'' means any objectively 
     verifiable monetary losses resulting from the harm suffered, 
     including past and future medical expenses, loss of past and 
     future earnings, burial costs, costs of repair or 
     replacement, costs of obtaining replacement services in the 
     home (including, without limitation, child care, 
     transportation, food preparation, and household care), costs 
     of making reasonable accommodations to a personal residence, 
     loss of employment, and loss of business or employment 
     opportunities, to the extent recovery for such losses is 
     allowed under applicable State law.
       (B) The term ``economic damages'' shall not include 
     noneconomic damages.
       (4) The term ``harm'' means any legally cognizable wrong or 
     injury for which damages may be imposed.
       (5)(A) The term ``noneconomic damages'' means subjective, 
     nonmonetary loss resulting from harm, including pain, 
     suffering, inconvenience, mental suffering, emotional 
     distress, loss of society and companionship, loss of 
     consortium, injury to reputation, and humiliation.
       (B) The term ``noneconomic damages'' shall not include 
     economic damages or punitive damages.
       (6) The term ``punitive damages'' means damages awarded 
     against any person or entity to punish such persons or entity 
     or to deter such person or entity, or others, from engaging 
     in similar behavior in the future.
       (7) The term ``State'' means any State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Northern Mariana Islands, the Virgin Islands, Guam, 
     American Samoa, and any other territory or possession of the 
     United States, or any political subdivision of any of the 
     foregoing.
     

                          ____________________
```