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[Congressional Record Volume 141, Number 76 (Tuesday, May 9, 1995)]
[Senate]
[Pages S6358-S6365]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                          AMENDMENTS SUBMITTED

                                 ______

                COMMONSENSE PRODUCT LIABILITY REFORM ACT

                                 ______

                  BYRD (AND OTHERS) AMENDMENT NO. 730

  (Ordered to lie on the table.)
  Mr. BYRD (for himself, Mr. Dole, Mr. Baucus, Mr. Reid, Mr. Levin, and 
Mr. Ashcroft) submitted an amendment intended to be proposed by them to 
amendment No. 690, proposed by Mr. Coverdell 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:

       At the appropriate place, insert
       Inasmuch as, the United States and Japan have a long and 
     important relationship which serves as an anchor of peace and 
     stability in the Pacific region;
       Inasmuch as, tension exists in an otherwise normal and 
     friendly relationship between the United States and Japan 
     because of persistent and large trade deficits which are the 
     result of practices and regulations which have substantially 
     blocked legitimate access of American products to the 
     Japanese market;
       Inasmuch as, the current account trade deficit with Japan 
     in 1994 reached an historic high level of $66 billion, of 
     which $37 billion, or 56 percent, is attributed to imbalances 
     in automotive sector, and of which $12.8 billion is 
     attributable to auto parts flows;
        [[Page S6359]] Inasmuch as, in July 1993, the 
     Administration reached a broad accord with the Government of 
     Japan, which established automotive trade regulations as one 
     of 5 priority areas of negotiations, to seek market-opening 
     arrangements based on objective criteria and which would 
     result in objective progress;
       Inasmuch as, a healthy American automobile industry is of 
     central importance to the American economy, and to the 
     capability of the United States to fulfill is commitments to 
     remain as an engaged, deployed, Pacific power;
       Inasmuch as, after 18 months of negotiations with the 
     Japanese, beginning in September, 1993, the U.S. Trade 
     Representatives concluded that no progress has been achieved, 
     leaving the auto parts market in Japan ``virtually closed;''
       Inasmuch as, in October, 1994, the United States initiated 
     an investigation under Section 301 of the Trade Act of 1974 
     into the Japanese auto parts market, which could result in 
     the imposition of trade sanctions on a variety of Japanese 
     imports into the United States unless measurable progress is 
     made in penetrating the Japanese auto parts market;
       Inasmuch as, the latest round of U.S.-Japan negotiations on 
     automotive trade, in Whistler, Canada, collapsed in failure 
     on May 5, 1995, and the U.S. Trade Representative, Ambassador 
     Kantor stated the ``government of Japan has refused to 
     address our most fundamental concerns in all areas'' of 
     automotive trade, and that ``discrimination against foreign 
     manufacturers of autos and auto parts continues;''
       Inasmuch as, President Clinton stated, on May 5, 1995, that 
     the U.S. is ``committed to taking strong action'' regarding 
     Japanese imports into the U.S. if no agreement is reached: 
     Now, therefore, be it
       Declared, That it is the Sense of the Senate that--
       (1) The Senate regrets that negotiations between the United 
     States and Japan for sharp reductions in the trade imbalances 
     in automotive sales and parts, through elimination of 
     restrictive Japanese market-closing practices and 
     regulations, have collapsed;
       (2) The Senate therefore strongly supports the decision by 
     the President to impose trade sanctions on Japanese products 
     in accordance with Section 301 of the Trade Act of 1974 
     unless an acceptable accord with Japan is reached in the 
     interim that renders such action unnecessary.
                                 ______

                    HOLLINGS AMENDMENTS NOS. 731-745

  (Ordered to lie on the table.)
  Mr. HOLLINGS submitted 15 amendments intended to be proposed by him 
to amendment No. 690, proposed by Mr. Coverdell to amendment No. 596, 
proposed by Mr. Gorton, to the bill, H.R. 956, supra; as follows:

                           Amendment No. 731

       At the appropriate place, insert the following:
     SEC.  . TRULY UNIFORM STANDARDS FOR ALL STATES.

       (a) Punitive Damages.--Notwithstanding any other provision 
     of this Act or any limitation under State law, punitive 
     damages may be awarded to a claimant in a product liability 
     action subject to this title. The amount of punitive damages 
     that may be awarded may not exceed 2 times the sum of--
       (1) the amount awarded to the claimant for the economic 
     loss on which the claim is based; and
       (2) the amount awarded to the claimant for noneconomic 
     loss.
       (b) Statute of Repose.--Notwithstanding any other provision 
     of this Act, no product liability action subject to this 
     title concerning a product that is a durable good alleged to 
     have caused harm (other than toxic harm) may be filed more 
     than 20 years after the time of delivery of the product. This 
     subsection supersedes any State law that requires a product 
     liability action to be filed during a period of time shorter 
     than 20 years after the time of delivery.
                                                                    ____

                           Amendment No. 732

       At the appropriate place, insert the following:

     SEC.  . NO PREEMPTION OF RECENT TORT REFORM LAWS.

       Notwithstanding any other provision of this Act to the 
     contrary, nothing in this Act preempts any provision of State 
     law--
       (1) if the legislature of that State considered a 
     legislative proposal dealing with that provision in 
     connection with reforming the tort laws of that State during 
     the period beginning on January 1, 1980, and ending on the 
     date of enactment of this Act, without regard to whether such 
     proposal was adopted, modified and adopted, or rejected; or
       (2) adopted after the date of enactment of this Act.
                                                                    ____

                           Amendment No. 733
       At the appropriate place, insert the following:

     SEC.  . TRULY UNIFORM STANDARDS FOR ALL STATES.

       (a) Punitive Damages.--Notwithstanding any other provision 
     of this Act or any limitation under State law, punitive 
     damages may be awarded to a claimant in a product liability 
     action subject to this title. The amount of punitive damages 
     that may be awarded may not exceed the greater of--
       (1) an amount equal to 3 times the amount awarded to the 
     claimant for the economic loss on which the claim is based, 
     or
       (2) $250,000.
       (b) Statute of Repose.--Notwithstanding any other provision 
     of this Act, no product liability action subject to this 
     title concerning a product that is a durable good alleged to 
     have caused harm (other than toxic harm) may be filed more 
     than 20 years after the time of delivery of the product. This 
     subsection supersedes any State law that requires a product 
     liability action to be filed during a period of time shorter 
     than 20 years after the time of delivery.
                                                                    ____

                           Amendment No. 734

       At the appropriate place, insert the following:

     SEC.  . APPLICATION OF ACT LIMITED TO DOMESTIC PRODUCTS.

       Notwithstanding any other provision of this Act, this Act 
     shall not apply to any product, component part, implant, or 
     medical device that is not manufactured in the United States 
     within the meaning of the Buy American Act (41 U.S.C. 10a) 
     and the regulations issued thereunder, or to any raw material 
     derived from sources outside the United States.
                                                                    ____

                           Amendment No. 735

       At the appropriate place, insert the following:

     SEC.  . STATE IMPLEMENTATION REQUIRED.

       Notwithstanding any provision of this Act to the contrary, 
     nothing in this Act shall supersede any provision of State 
     law or rule of civil procedure unless that State has enacted 
     a law providing for the application of this Act in that 
     State.
                                                                    ____

                           Amendment No. 736

       At the appropriate place, insert the following:

     SEC.  . NO PREEMPTION OF RECENT TORT REFORM LAWS.

       Notwithstanding any other provision of this Act to the 
     contrary, nothing in this Act preempts any provision of State 
     law adopted after the date of enactment of this Act.
                                                                    ____

                           Amendment No. 737

       At the appropriate place, insert the following:

     SEC.  . NO PREEMPTION OF RECENT TORT REFORM LAWS.

       Notwithstanding any other provision of this Act to the 
     contrary, nothing in this Act preempts any provision of State 
     law inconsistent with this Act if the legislature of that 
     State considered a legislative proposal dealing with that 
     provision in connection with reforming the tort laws of that 
     State during the period beginning on January 1, 1980, and 
     ending on the date of enactment of this Act, without regard 
     to whether such proposal was adopted, modified and adopted, 
     or rejected.
                                                                    ____

                           Amendment No. 738

       At the appropriate place, insert the following:
       Sec.  . Notwithstanding section 101(7) of this Act, the 
     term ``harm'' includes commercial loss or loss of damage to a 
     product itself; and notwithstanding section 102(a) of this 
     Act, the provisions of title I apply to any product liability 
     action brought for loss or damage to a product itself or for 
     commercial loss.
                                                                    ____

                           Amendment No. 739
       At the appropriate place, insert the following:
       Sec.   . Notwithstanding section 102(e) of this Act, 
     nothing in this Act shall require that any decision of a 
     circuit court of appeals interpreting a provision of this Act 
     be considered a controlling precedent with respect to any 
     subsequent decision made concerning the interpretation of 
     such provision by any Federal or State court.
                                                                    ____

                           Amendment No. 740

       At the appropriate place, insert the following:
       Sec.   . Notwithstanding any other provision of this Act, 
     nothing in this Act shall preclude the district courts of the 
     United States from having jurisdiction under section 1331 or 
     1337 of title 28, United States Code, over any product 
     liability action covered by this Act.
                                                                    ____

                           Amendment No. 741

       At the appropriate place, insert the following:
       Sec.   . Notwithstanding any other provision of this Act, 
     nothing in this Act requires the trier of fact in a product 
     liability action, at the request of any party, to consider in 
     a separate proceeding whether punitive damages are to be 
     awarded for the harm that is the subject of the action and 
     the amount of the award.
                                                                    ____

                           Amendment No. 742

       At the appropriate place, insert the following:
       Sec.   . Notwithstanding any other provision of this Act, 
     nothing in this Act limits the amount of punitive damages 
     that may be awarded in a product liability action or any 
     other civil action.
                                                                    ____

                           Amendment No. 743

       At the appropriate place, insert the following:
        [[Page S6360]] Sec.   . Notwithstanding any other 
     provision of this Act, this Act shall not apply to the award 
     of punitive damages in any product liability action or any 
     other civil action.
                                                                    ____

                           Amendment No. 744

       At the appropriate place, insert the following:
       Sec.   . Notwithstanding any other provision of this Act, 
     the term ``product liability action'' means a civil action 
     brought on any theory for harm caused by a product, against a 
     manufacturer, seller, or any other person responsible for the 
     distribution of the product in the stream of commerce, that 
     involves a defect or design of the product.
                                                                    ____

                           Amendment No. 745

       At the appropriate place, insert the following:
       Sec.   . Notwithstanding any other provision of this Act, 
     nothing in this Act requires that, in a product liability 
     action, the liability of each defendant for noneconomic loss 
     shall be several only and shall not be joint.
                                 ______

                     BREAUX AMENDMENTS NOS. 746-747

  (Ordered to lie on the table.)
  Mr. BREAUX submitted two amendments intended to be proposed by him to 
amendment No. 690, proposed by Mr. Coverdell to amendment No. 596, 
proposed by Mr. Gorton, to the bill, H.R. 956, supra; as follows:

                           Amendment No. 746

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Product Liability Fairness 
     Act''.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:
                           TABLE OF CONTENTS

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
Sec. 4. Applicability; preemption.
Sec. 5. Jurisdiction of Federal courts.
Sec. 6. Effective date.

    TITLE I--EXPEDITED JUDGMENTS AND ALTERNATIVE DISPUTE RESOLUTION 
                               PROCEDURES

Sec. 102. Alternative dispute resolution procedures.

                 TITLE II--STANDARDS FOR CIVIL ACTIONS

Sec. 201. Civil actions.
Sec. 202. Uniform standards of product seller liability.
Sec. 203. Uniform standards for award of punitive damages.
Sec. 204. Uniform time limitations on liability.
Sec. 205. Workers' compensation subrogation standards.
Sec. 207. Defenses involving intoxicating alcohol or drugs.
     SEC. 3. DEFINITIONS.

       As used in this Act, the term--
       (1) ``claimant'' means any person who brings a civil action 
     pursuant to this Act, and any person on whose behalf such an 
     action is brought; if such an action is brought through or on 
     behalf of an estate, the term includes the claimant's 
     decedent, or if it is brought through or on behalf of a minor 
     or incompetent, the term includes the claimant's parent or 
     guardian;
       (2) ``clear and convincing evidence'' is that measure or 
     degree of proof that will produce in the mind of the trier of 
     fact a firm belief or conviction as to the truth of the 
     allegations sought to be established; the level of proof 
     required to satisfy such standard is more than that required 
     under preponderance of the evidence, but less than that 
     required for proof beyond a reasonable doubt;
       (4) ``commerce'' means trade, traffic, commerce, or 
     transportation--
       (A) between a place in a State and any place outside of 
     that State; or
       (B) which affects trade, traffic, commerce, or 
     transportation described in subparagraph (A);
       (5) ``commercial loss'' means any loss incurred in the 
     course of an ongoing business enterprise consisting of 
     providing goods or services for compensation;
       (6) ``economic loss'' means any pecuniary loss resulting 
     from harm (including but not limited to medical expense loss, 
     work loss, replacement services loss, loss due to death, 
     burial costs, loss of business or employment opportunities 
     and the fair market value of any property loss or property 
     damage), to the extent recovery for such loss is allowed 
     under applicable State law;
       (7) ``exercise of reasonable care'' means conduct of a 
     person of ordinary prudence and intelligence using the 
     attention, precaution, and judgment that society expects of 
     its members for the protection of their own interests and the 
     interests of others;
       (8) ``harm'' means any bodily injury to an individual 
     sustained in an accident and any illness, disease, or death 
     of that individual resulting from that injury; the term does 
     not include commercial loss or loss or damage to a product 
     itself;
       (9) ``manufacturer'' means--
       (A) any person who is engaged in a business to produce, 
     create, make, or construct any product (or component part of 
     a product) and who designs, formulates or constructs the 
     product (or component part of the product) or has engaged 
     another person to design, formulate or construct the product 
     (or component part of the product);
       (B) a product seller, but only with respect to those 
     aspects of a product (or component part of a product) which 
     are created or affected when the product seller produces, 
     creates, makes, or constructs and designs or formulates, or 
     has engaged another person to design, formulate or construct, 
     an aspect of a product (or component part of a product) made 
     by another; or
       (C) any product seller not described in subparagraph (B) 
     which holds itself out as a manufacturer to the user of a 
     product;
       (10) ``noneconomic loss'' means subjective, nonmonetary 
     loss resulting from harm, including but not limited to pain, 
     suffering, inconvenience, mental suffering, emotional 
     distress, loss of society and companionship, loss of 
     consortium, injury to reputation, and humiliation; the term 
     does not include economic loss;
       (11) ``person'' means any individual, corporation, company, 
     association, firm, partnership, society, joint stock company, 
     or any other entity (including any governmental entity);
       (12) ``preponderance of the evidence'' is that measure or 
     degree of proof which, by the weight, credit, and value of 
     the aggregate evidence on either side, establishes that it is 
     more probable than not that a fact occurred or did not occur;
       (13) ``product'' means any object, substance, mixture, or 
     raw material in a gaseous, liquid, or solid state--
       (A) which is capable of delivery itself or as an assembled 
     whole, in a mixed or combined state, or as a component part 
     or ingredient;
       (B) which is produced for introduction into trade or 
     commerce;
       (C) which has intrinsic economic value; and
       (D) which is intended for sale or lease to persons for 
     commercial or personal use;

     the term does not include human tissue, blood and blood 
     products, or organs unless specifically recognized as a 
     product pursuant to State law;
       (14) ``product seller'' means a person who, in the course 
     of a business conducted for that purpose, sells, distributes, 
     leases, or otherwise is involved in placing a product in the 
     stream of commerce; the term does not include--
       (A) a seller or lessor of real property;
       (B) 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; or
       (C) any person who--
       (i) acts in only a financial capacity with respect to the 
     sale of a product; and
       (ii) 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
       (15) ``State'' means any State of the United States, the 
     District of Columbia, 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 thereof.
     SEC. 4. APPLICABILITY; PREEMPTION.

       (a) Applicability to Product Liability Actions.--This Act 
     applies to any civil action brought against a manufacturer or 
     product seller, on any theory, for harm caused by a product. 
     A civil action brought against a manufacturer or product 
     seller for loss or damage to a product itself or for 
     commercial loss is not subject to this Act and shall be 
     governed by applicable commercial or contract law. A civil 
     action for negligent entrustment is similarly not subject to 
     this Act and shall be subject to applicable State law.
       (b) Scope of Preemption.--(1) Except as provided in 
     paragraph (2), this Act supersedes any State law regarding 
     recovery for harm caused by a product only to the extent that 
     this Act establishes a rule of law applicable to any such 
     recovery. Any issue arising under this Act that is not 
     governed by any such rule of law shall be governed by 
     applicable State or Federal law.
       (2) The provisions of title I shall not supersede or 
     otherwise preempt any provision of applicable State or 
     Federal law.
       (c) Effect on Other Law.--Nothing in this Act shall be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by any State under any provision of law;
       (2) supersede any Federal law;
       (3) waive or affect any defense of sovereign immunity 
     asserted by the United States;
       (4) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (5) preempt State choice-of-law rules including those with 
     respect to claims brought by a foreign nation or a citizen of 
     a foreign nation;
       (6) 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 forum non conveniens; or
       (7) supersede any statutory or common law, including an 
     action to abate a nuisance, that authorizes a State or person 
     to institute an action for civil damages or civil penalties, 
     cleanup costs, injunctions, restitution, cost recovery, 
     punitive damages, or any other form of relief resulting from 
     contamination or pollution of the environment (as defined 
      [[Page S6361]]  in section 101(8) of the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980; 42 U.S.C. 9601(8)), or the threat of such contamination 
     or pollution.
       (d) Construction.--This Act shall be construed and applied 
     after consideration of its legislative history to promote 
     uniformity of law in the various jurisdictions.
       (e) Effect of Court of Appeals Decisions.--Any decision of 
     a United States court of appeals interpreting the provisions 
     of this Act shall be considered a controlling precedent and 
     followed by each Federal and State court within the 
     geographical boundaries of the circuit in which such court of 
     appeals sits, except to the extent that the decision is 
     overruled or otherwise modified by the United States Supreme 
     Court.

     SEC. 6. EFFECTIVE DATE.

       This Act shall take effect on the date of its enactment and 
     shall apply to all civil actions pursuant to this Act 
     commenced on or after such date, including any action in 
     which the harm or the conduct which caused the harm occurred 
     before the effective date of this Act, but shall not apply to 
     claims existing prior to the effective date of this Act.

           TITLE I--ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

     SEC. 102. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.

       (a) In General.--A claimant or defendant in a civil action 
     subject to this Act may, within the time permitted for making 
     an offer of judgment under section 101, serve upon an adverse 
     party an offer to proceed pursuant to any voluntary, 
     nonbinding alternative dispute resolution procedure 
     established or recognized under the law of the State in which 
     the civil action is brought or under the rules of the court 
     in which such action is maintained. An offeree shall, within 
     ten days of such service, file a written notice of acceptance 
     or rejection of the offer; except that the court may, upon 
     motion by the offeree make prior to the expiration of such 
     ten-day period, extend the period for response for up to 
     sixty days, during which discovery may be permitted.
       (b) Defendant's Penalty for Unreasonable Refusal.--The 
     court shall assess reasonable attorney's fees (calculated in 
     the manner described in section 101(f)) and costs against the 
     offeree, if--
       (1) a defendant as offeree refuses to proceed pursuant to 
     such alternative dispute resolution procedure;
       (2) final judgment is entered against the defendant for 
     harm caused by a product; and
       (3) the defendant's refusal to proceed pursuant to such 
     alternative dispute resolution procedure was unreasonable or 
     not in good faith.
       (c) Good Faith Refusal.--In determining whether an 
     offeree's refusal to proceed pursuant to such alternative 
     dispute resolution procedure was unreasonable or not in good 
     faith, the court shall consider such factors as the court 
     deems appropriate.

                 TITLE II--STANDARDS FOR CIVIL ACTIONS

     SEC. 202. UNIFORM STANDARDS OF PRODUCT SELLER LIABILITY.

       (a) Standards of Liability.--In any civil action for harm 
     caused by a product, a product seller other than a 
     manufacturer is liable to a claimant, only if the claimant 
     establishes by a preponderance of the evidence that--
       (1)(A) the individual product unit which allegedly caused 
     the harm complained of was sold by the defendant; (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 cause of the claimant's harm; 
     or
       (2)(A) the product seller made an express warranty, 
     independent of any express warranty made by a manufacturer as 
     to the same product; (B) the product failed to conform to the 
     product seller's warranty; and (C) the failure of the product 
     to conform to the product seller's warranty caused the 
     claimant's harm; or
       (3)(i) the product seller engaged in conduct representing a 
     conscious or flagrant indifference to safety or in conduct 
     representing intentional wrongdoing; and
       (ii) such conduct was approximate cause of the harm that is 
     the subject of the complaint.
       (b) Conduct of Product Seller.--(1) In determining whether 
     a product seller is subject to liability under subsection 
     (a)(1), the trier of fact may consider the effect of the 
     conduct of the product seller with respect to the 
     construction, inspection, or condition of the product, and 
     any failure of the product seller to pass on adequate 
     warnings or instructions from the product's manufacturer 
     about the dangers and proper use of the product.
       (2) A product seller shall not be liable in a civil action 
     subject to this Act based upon an alleged failure to provide 
     warnings or instructions unless the claimant establishes 
     that, when the product left the possession and control of the 
     product seller, the product seller failed--
       (A) to provide to the person to whom the product seller 
     relinquished possession and control of the product any 
     pamphlets, booklets, labels, inserts, or other written 
     warnings or instructions received while the product was in 
     the product seller's possession and control; or
       (B) to make reasonable efforts to provide users with the 
     warnings and instructions with it received after the product 
     left its possession and control.
       (3) A product seller shall not be liable in a civil action 
     subject to this Act except for breach of express warranty 
     where there was no reasonable opportunity to inspect the 
     product in a manner which would or should, in the exercise of 
     reasonable care, have revealed the aspect of the product 
     which allegedly caused the claimant's harm.
       (c) Treatment as Manufacturer.--A product seller shall be 
     deemed to be the manufacturer of a product and shall be 
     liable for harm to the claimant caused by a product as if it 
     were the manufacturer of the product if--
       (1) the manufacturer is not subject to service of process 
     under the laws of any State in which the action might have 
     been brought; or
       (2) the court determines that the claimant would be unable 
     to enforce a judgment against the manufacturer.
       (d) Rented or Leased Products.--
       (1) Notwithstanding any other provision of law, any person 
     engaged in the business of renting or leasing a product 
     (other than a person excluded from the definition of product 
     seller under section 314(a)(b)(c) shall be subject to 
     liability in a product liability action under subsection (a), 
     but shall not be liable to a claimant for the tortious act of 
     another solely by reason of ownership of such product.
       (2) For purposes of paragraph (1), and for determining the 
     applicability of this title to any person subject to 
     paragraph (1), the term ``product liability action'' means a 
     civil action brought on any theory for harm caused by a 
     product or product use.

     SEC. 203. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       (a) In General.--Punitive damages may be awarded in any 
     civil action subject to this Act to any claimant who 
     establishes by clear and convincing evidence that the harm 
     suffered by the claimant was the result of conduct 
     manifesting a manufacturer's or product seller's conscious or 
     flagrant indifference to the safety of those persons who 
     might be harmed by the product. A failure to exercise 
     reasonable care in choosing among alternative product 
     designs, formulations, instructions, or warnings is not of 
     itself such conduct. Punitive damages may not be awarded in 
     the absence of an award of compensatory damages.
       (b) Judicial Determination.

     SEC. 204. UNIFORM TIME LIMITATIONS ON LIABILITY.

       (a) Statute of Limitations.--Any civil action subject to 
     this Act shall be barred unless the complaint is filed within 
     two years of the time the claimant discovered or, in the 
     exercise of reasonable care, should have discovered the harm 
     and its cause, except that any such action of a person under 
     legal disability may be filed within two 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.--(1) Any civil 
     action subject to this Act shall be barred if a product which 
     is a capital good is alleged to have caused harm which is not 
     a toxic harm unless the complaint is served and filed within 
     twenty-five years after the time of delivery of the product. 
     This subsection shall apply only if the court determines that 
     the claimant has received or would be eligible to receive 
     compensation under any State or Federal workers' compensation 
     law for harm caused by the product.
       (2) A motor vehicle, vessel, aircraft, or train, used 
     primarily to transport passengers for hire, shall not be 
     subject to this subsection.
       (3) As used in this subsection, the term--
       (A) ``capital good'' means any product, or any component of 
     any such product, which is of a character subject to 
     allowance for depreciation under the Internal Revenue Code of 
     1986, and which was--
       (i) used in a trade or business;
       (ii) held for the production of income; or
       (iii) sold or donated to a governmental or private entity 
     for the production of goods, for training, for demonstration, 
     or for other similar purposes; and
       (B) ``time of delivery'' means the time when a product is 
     delivered to its first purchaser or lessee who was not 
     involved in the business of manufacturing or selling such 
     product or using it as a component part of another product to 
     be sold.
       (c) Extension of Period for Bringing Certain Actions.--If 
     any provision of this section would shorten the period during 
     which a civil action could be brought under otherwise 
     applicable law, the claimant may, notwithstanding such 
     provision of this section, bring the civil action pursuant to 
     this Act within one year after the effective date of this 
     Act.
       (d) Effect on Right to Contribution or Indemnity.--Nothing 
     in this section shall affect the right of any person who is 
     subject to liability for harm under this Act to seek and 
     obtain contribution or indemnity from any other person who is 
     responsible for such harm.
       (e) Paragraph (b)(1) does not bar a product liability 
     action against a defendant who made a warranty in writing as 
     to the safety of the specific product involved which was 
     longer than 25 years, but it will apply at the expiration of 
     that warranty.

     SEC. 205. WORKERS' COMPENSATION SUBROGATION STANDARDS.
       (a) In General.--(1) An employer or workers' compensation 
     insurer of an employer 
      [[Page S6362]]  shall have a right of subrogation against a 
     manufacturer or product seller to recover the sum of the 
     amount paid as workers' compensation benefits for harm caused 
     to an employee by a product if the harm is one for which a 
     civil action has been brought pursuant to this Act. To assert 
     a right of subrogation an employer or workers' compensation 
     insurer of an employer shall provide written notice that it 
     is asserting a right of subrogation to the court in which the 
     claimant has filed a complaint. The employer or workers' 
     compensation insurer of the employer shall not be required to 
     be a necessary and proper party to the proceeding instituted 
     by the employee.
       (2) In any proceeding against or settlement with the 
     manufacturer or product seller, the employer or the workers' 
     compensation insurer of the employer shall have an 
     opportunity to assert a right of subrogation upon any payment 
     and to assert a right of subrogation upon any payment made by 
     the manufacturer or product seller by reason of such harm, 
     whether paid in settlement, in satisfaction of judgment, as 
     consideration for covenant not to sue, or otherwise. The 
     employee shall not make any settlement with or accept any 
     payment from the manufacturer or product seller without 
     notifying the employer in writing prior to settlement. 
     However, the preceding sentence shall not apply if the 
     employer or workers' compensation insurer of the employer is 
     made whole for all benefits paid in workers' compensation 
     benefits or has not asserted a right of subrogation pursuant 
     to this section.
       (3) If the manufacturer or product seller attempts to 
     persuade the trier of fact that the claimant's harm was 
     caused by the fault of the claimant's employer or 
     coemployees, then the issue whether the claimant's harm was 
     caused by the claimant's employer or coemployees shall be 
     submitted to the trier of fact. If the manufacturer or 
     product seller so attempts to persuade the trier of fact, it 
     shall provide written notice to the employer. The employer 
     shall have the right to appear, to be represented, to 
     introduce evidence, to cross-examine adverse witnesses, and 
     to argue to the trier of fact as to this issue as fully as 
     though the employer were a party although not named or joined 
     as a party to the proceeding. Such issue shall be the last 
     issue submitted to the trier of fact. If the trier of fact 
     finds by clear and convincing evidence that the claimant's 
     harm was caused by the fault of the claimant's employer or 
     coemployees, then the court shall proportionally reduce the 
     damages awarded by the trier of fact against the manufacturer 
     or product seller (and correspondingly the subrogation lien 
     of the employer) by deducting from such damages a sum equal 
     to the percentage at fault found attributable to the employer 
     or coemployee multiplied by the sum of the amount paid as 
     workers' compensation benefits. The manufacturer or product 
     seller shall have no further right by way of contribution or 
     otherwise against the employer for such sums. However, the 
     employer shall not lose its right of subrogation because of 
     an intentional tort committee against the claimant by the 
     claimant's coemployees or for acts committed by coemployees 
     outside the scope of normal work practices.
       (4) If the verdict shall be that the claimant's harm was 
     not caused by the fault of the claimant's employer or 
     coemployees, then the manufacturer or product seller shall 
     reimburse the employer or workers' compensation insurer of 
     the employer for reasonable attorney's fees and court costs 
     incurred in the resolution of the subrogation claim, as 
     determined by the court.
       (b) Effect on Certain Civil Actions.--(1) In any civil 
     action subject to this Act 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 third party tortfeasor may 
     maintain any action for implied indemnity or contribution 
     against the employer, any coemployee, or the exclusive 
     representative of the person who was injured.
       (2) 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 exclusive 
     representative of the person who was injured.
       (3) 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.

     SEC. 206. SEVERAL LIABILITY FOR NONECONOMIC LOSS.

       (a) In General.--Except as provided in subsection (b), in 
     any civil action subject to this Act, the liability of each 
     defendant for noneconomic loss shall be joint and several.
       (b) De Minimis Exception.--Notwithstanding subsection (a), 
     in any civil action subject to this Act, the liability for 
     noneconomic loss of each defendant found to be less than 15% 
     at fault shall be several only and shall not be joint. Each 
     such defendant shall be liable only for the amount of 
     noneconomic loss allocated to such defendant in direct 
     proportion to such defendant's percentage of responsibility 
     as determined under subsection (c). A separate judgment shall 
     be rendered against such defendant for that amount.
       (c) Proportion of Responsibility.--For purposes of this 
     section, the trier of fact shall determine the proportion of 
     responsibility of each party for the claimant's harm.
       (b) Other Civil Actions.--In any civil action subject to 
     this Act in which not all defendants are manufacturers or 
     product sellers and the trier of fact determines that no 
     liability exists against those defendants who are not 
     manufacturers or product sellers, the court shall enter a 
     judgment notwithstanding the verdict in favor of any 
     defendant which is a manufacturer or product seller if it is 
     proved that the claimant was intoxicated or was under the 
     influence of intoxicating alcohol or any drug and that as a 
     proximate cause of such intoxication or the influence of the 
     alcohol or drug the claimant was more than 50 percent 
     responsible for the accident or event which resulted in such 
     claimant's harm.
       (c) Intoxication Determination to be Made Under State 
     Law.--For purposes of this section, 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.
       (d) Definition.--As used in this section, the term ``drug'' 
     means any non-over-the-counter drug which has not been 
     prescribed by a physician for use by the claimant.
                                                                    ____

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

                           amendment No. 747

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Product Liability Fairness 
     Act''.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:
                           TABLE OF CONTENTS

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
Sec. 4. Applicability; preemption.
Sec. 5. Jurisdiction of Federal courts.
Sec. 6. Effective date.

    TITLE I--EXPEDITED JUDGMENTS AND ALTERNATIVE DISPUTE RESOLUTION 
                               PROCEDURES

Sec. 102. Alternative dispute resolution procedures.

                 TITLE II--STANDARDS FOR CIVIL ACTIONS

Sec. 201. Civil actions.
Sec. 202. Uniform standards of product seller liability.
Sec. 203. Uniform standards for award of punitive damages.
Sec. 204. Uniform time limitations on liability.
Sec. 205. Workers' compensation subrogation standards.
Sec. 207. Defenses involving intoxicating alcohol or drugs.
     SEC. 3. DEFINITIONS.

       As used in this Act, the term--
       (1) ``claimant'' means any person who brings a civil action 
     pursuant to this Act, and any person on whose behalf such an 
     action is brought; if such an action is brought through or on 
     behalf of an estate, the term includes the claimant's 
     decedent, or if it is brought through or on behalf of a minor 
     or incompetent, the term includes the claimant's parent or 
     guardian;
       (2) ``clear and convincing evidence'' is that measure or 
     degree of proof that will produce in the mind of the trier of 
     fact a firm belief or conviction as to the truth of the 
     allegations sought to be established; the level of proof 
     required to satisfy such standard is more than that required 
     under preponderance of the evidence, but less than that 
     required for proof beyond a reasonable doubt;
       (4) ``commerce'' means trade, traffic, commerce, or 
     transportation--
       (A) between a place in a State and any place outside of 
     that State; or
       (B) which affects trade, traffic, commerce, or 
     transportation described in subparagraph (A);
       (5) ``commercial loss'' means any loss incurred in the 
     course of an ongoing business enterprise consisting of 
     providing goods or services for compensation;
       (6) ``economic loss'' means any pecuniary loss resulting 
     from harm (including but not limited to medical expense loss, 
     work loss, replacement services loss, loss due to death, 
     burial costs, loss of business or employment opportunities 
     and the fair market value of any property loss or property 
     damage), to the extent recovery for such loss is allowed 
     under applicable State law;
       (7) ``exercise of reasonable care'' means conduct of a 
     person of ordinary prudence and intelligence using the 
     attention, precaution, and judgment that society expects of 
     its members for the protection of their own interests and the 
     interests of others;
       (8) ``harm'' means any bodily injury to an individual 
     sustained in an accident and any illness, disease, or death 
     of that individual resulting from that injury; the term does 
     not include commercial loss or loss or damage to a product 
     itself;
       (9) ``manufacturer'' means--
      [[Page S6363]]   (A) any person who is engaged in a business 
     to produce, create, make, or construct any product (or 
     component part of a product) and who designs, formulates or 
     constructs the product (or component part of the product) or 
     has engaged another person to design, formulate or construct 
     the product (or component part of the product);
       (B) a product seller, but only with respect to those 
     aspects of a product (or component part of a product) which 
     are created or affected when the product seller produces, 
     creates, makes, or constructs and designs or formulates, or 
     has engaged another person to design, formulate or construct 
     an aspect of a product (or component part of a product) made 
     by another; or
       (C) any product seller not described in subparagraph (B) 
     which holds itself out as a manufacturer to the user of a 
     product;
       (10) ``noneconomic loss'' means subjective, nonmonetary 
     loss resulting from harm, including but not limited to pain, 
     suffering, inconvenience, mental suffering, emotional 
     distress, loss of society and companionship, loss of 
     consortium, injury to reputation, and humiliation; the term 
     does not include economic loss;
       (11) ``person'' means any individual, corporation, company, 
     association, firm, partnership, society, joint stock company, 
     or any other entity (including any governmental entity);
       (12) ``preponderance of the evidence'' is that measure or 
     degree of proof which, by the weight, credit, and value of 
     the aggregate evidence on either side, establishes that it is 
     more probable than not that a fact occurred or did not occur;
       (13) ``product'' means any object, substance, mixture, or 
     raw material in a gaseous, liquid, or solid state--
       (A) which is capable of delivery itself or as an assembled 
     whole, in a mixed or combined state, or as a component part 
     or ingredient;
       (B) which is produced for introduction into trade or 
     commerce;
       (C) which has intrinsic economic value; and
       (D) which is intended for sale or lease to persons for 
     commercial or personal use;

     the term does not include human tissue, blood and blood 
     products, or organs unless specifically recognized as a 
     product pursuant to State law;
       (14) ``product seller'' means a person who, in the course 
     of a business conducted for that purpose, sells, distributes, 
     leases, or otherwise is involved in placing a product in the 
     stream of commerce;

     the term does not include--
       (A) a seller or lessor of real property;
       (B) 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; or
       (C) any person who--
       (i) acts in only a financial capacity with respect to the 
     sale of a product; and
       (ii) 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
       (15) ``State'' means any State of the United States, the 
     District of Columbia, 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 thereof.
     SEC. 4. APPLICABILITY; PREEMPTION.

       (a) Applicability to Product Liability Actions.--This Act 
     applies to any civil action brought against a manufacturer or 
     product seller, on any theory, for harm caused by a product. 
     A civil action brought against a manufacturer or product 
     seller for loss or damage to a product itself or for 
     commercial loss is not subject to this Act and shall be 
     governed by applicable commercial or contract law. A civil 
     action for negligent entrustment is similarly not subject to 
     this Act and shall be subject to applicable State law.
       (b) Scope of Preemption.--(1) Except as provided in 
     paragraph (2), this Act supersedes any State law regarding 
     recovery for harm caused by a product only to the extent that 
     this Act establishes a rule of law applicable to any such 
     recovery. Any issue arising under this Act that is not 
     governed by any such rule of law shall be governed by 
     applicable State or Federal law.
       (2) The provisions of title I shall not supersede or 
     otherwise preempt any provision of applicable State or 
     Federal law.
       (c) Effect on Other Law.--Nothing in this Act shall be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by any State under any provision of law;
       (2) supersede any Federal law;
       (3) waive or affect any defense of sovereign immunity 
     asserted by the United States;
       (4) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (5) preempt State choice-of-law rules including those with 
     respect to claims brought by a foreign nation or a citizen of 
     a foreign nation;
       (6) 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 forum non conveniens; or
       (7) supersede any statutory or common law, including an 
     action to abate a nuisance, that authorizes a State or person 
     to institute an action for civil damages or civil penalties, 
     cleanup costs, injunctions, restitution, cost recovery, 
     punitive damages, or any other form of relief resulting from 
     contamination or pollution of the environment (as defined in 
     section 101(8) of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980; 42 U.S.C. 9601(8)), 
     or the threat of such contamination or pollution.
       (d) Construction.--This Act shall be construed and applied 
     after consideration of its legislative history to promote 
     uniformity of law in the various jurisdictions.
       (e) Effect of Court of Appeals Decisions.--Any decision of 
     a United States court of appeals interpreting the provisions 
     of this Act shall be considered a controlling precedent and 
     followed by each Federal and State court within the 
     geographical boundaries of the circuit in which such court of 
     appeals sits, except to the extent that the decision is 
     overruled or otherwise modified by the United States Supreme 
     Court.

     SEC. 5. JURISDICTION OF FEDERAL COURTS.

       The district courts of the United States shall not have 
     jurisdiction over any civil action pursuant to this Act, 
     based on section 1331 or 1337 of title 28, United States 
     Code.

     SEC. 6. EFFECTIVE DATE.

       This Act shall take effect on the date of its enactment and 
     shall apply to all civil actions pursuant to this Act 
     commenced on or after such date, including any action in 
     which the harm or the conduct which caused the harm occurred 
     before the effective date of this Act, but shall not apply to 
     claims existing prior to the effective date of this Act.

           TITLE I--ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

     SEC. 102. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.

       (a) In General.--A claimant or defendant in a civil action 
     subject to this Act may, within the time permitted for making 
     an offer of judgment under section 101, serve upon an adverse 
     party an offer to proceed pursuant to any voluntary, 
     nonbinding alternative dispute resolution procedure 
     established or recognized under the law of the State in which 
     the civil action is brought or under the rules of the court 
     in which such action is maintained. An offeree shall, within 
     ten days of such service, file a written notice of acceptance 
     or rejection of the offer; except that the court may, upon 
     motion by the offeree make prior to the expiration of such 
     ten-day period, extend the period for response for up to 
     sixty days, during which discovery may be permitted.
       (b) Defendant's Penalty for Unreasonable Refusal.--The 
     court shall assess reasonable attorney's fees (calculated in 
     the manner described in section 101(f)) and costs against the 
     offeree, if--
       (1) a defendant as offeree refuses to proceed pursuant to 
     such alternative dispute resolution procedure;
       (2) final judgment is entered against the defendant for 
     harm caused by a product; and
       (3) the defendant's refusal to proceed pursuant to such 
     alternative dispute resolution procedure was unreasonable or 
     not in good faith.
       (c) Good Faith Refusal.--In determining whether an 
     offeree's refusal to proceed pursuant to such alternative 
     dispute resolution procedure was unreasonable or not in good 
     faith, the court shall consider such factors as the court 
     deems appropriate.

                 TITLE II--STANDARDS FOR CIVIL ACTIONS

     SEC. 201. CIVIL ACTIONS.

       A person seeking to recover for harm caused by a product 
     may bring a civil action against the product's manufacturer 
     or product seller pursuant to applicable State or Federal 
     law, except to the extent such law is inconsistent with any 
     provision of this Act.

     SEC. 202. UNIFORM STANDARDS OF PRODUCT SELLER LIABILITY.

       (a) Standards of Liability.--In any civil action for harm 
     caused by a product, a product seller other than a 
     manufacturer is liable to a claimant, only if the claimant 
     establishes by a preponderance of the evidence that--
       (1)(A) the individual product unit which allegedly caused 
     the harm complained of was sold by the defendant; (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 cause of the claimant's harm; 
     or
       (2)(A) the product seller made an express warranty, 
     independent of any express warranty made by a manufacturer as 
     to the same product; (B) the product failed to conform to the 
     product seller's warranty; and (C) the failure of the product 
     to conform to the product seller's warranty caused the 
     claimant's harm; or
       (3)(i) the product seller engaged in conduct representing a 
     conscious or flagrant indifference to safety or in conduct 
     representing intentional wrongdoing; and
       (ii) such conduct was approximate cause of the harm that is 
     the subject of the complaint.
       (b) Conduct of Product Seller.--(1) In determining whether 
     a product seller is subject to liability under subsection 
     (a)(1), the trier of fact may consider the effect of the 
     conduct of the product seller with respect to the 
     construction, inspection, or condition of the product, and 
     any failure of the product seller to pass on adequate 
     warnings or instructions from the product's manufacturer 
     about the dangers and proper use of the product.
       (2) A product seller shall not be liable in a civil action 
     subject to this Act based upon an 
      [[Page S6364]]  alleged failure to provide warnings or 
     instructions unless the claimant establishes that, when the 
     product left the possession and control of the product 
     seller, the product seller failed--
       (A) to provide to the person to whom the product seller 
     relinquished possession and control of the product any 
     pamphlets, booklets, labels, inserts, or other written 
     warnings or instructions received while the product was in 
     the product seller's possession and control; or
       (B) to make reasonable efforts to provide users with the 
     warnings and instructions with it received after the product 
     left its possession and control.
       (3) A product seller shall not be liable in a civil action 
     subject to this Act except for breach of express warranty 
     where there was no reasonable opportunity to inspect the 
     product in a manner which would or should, in the exercise of 
     reasonable care, have revealed the aspect of the product 
     which allegedly caused the claimant's harm.
       (c) Treatment as Manufacturer.--A product seller shall be 
     deemed to be the manufacturer of a product and shall be 
     liable for harm to the claimant caused by a product as if it 
     were the manufacturer of the product if--
       (1) the manufacturer is not subject to service of process 
     under the laws of any State in which the action might have 
     been brought; or
       (2) the court determines that the claimant would be unable 
     to enforce a judgment against the manufacturer.
       (d) Rented or Leased Products.--
       (1) Notwithstanding any other provision of law, any person 
     engaged in the business of renting or leasing a product 
     (other than a person excluded from the definition of product 
     seller under section 314(a)(b)(c) shall be subject to 
     liability in a product liability action under subsection (a), 
     but shall not be liable to a claimant for the tortious act of 
     another solely by reason of ownership of such product.
       (2) For purposes of paragraph (1), and for determining the 
     applicability of this title to any person subject to 
     paragraph (1), the term ``product liability action'' means a 
     civil action brought on any theory for harm caused by a 
     product or product use.

     SEC. 203. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       (a) In General.--Punitive damages may be awarded in any 
     civil action subject to this Act to any claimant who 
     establishes by clear and convincing evidence that the harm 
     suffered by the claimant was the result of conduct 
     manifesting a manufacturer's or product seller's conscious or 
     flagrant indifference to the safety of those persons who 
     might be harmed by the product. A failure to exercise 
     reasonable care in choosing among alternative product 
     designs, formulations, instructions, or warnings is not of 
     itself such conduct. Punitive damages may not be awarded in 
     the absence of an award of compensatory damages.
       (b) Judicial Determination--
       (1) In general.--Notwithstanding any other provision of 
     this Act, in an action that is subject to this Act in which 
     punitive damages are sought, the trier of fact shall 
     determine, concurrent with all other issues presented, 
     whether such damages shall be allowed. If such damages are 
     allowed, a separate proceeding shall be conducted by the 
     court to determine the amount of such damages to be awarded.
       (2) Factors.--Notwithstanding any other provision of this 
     Act, in determining the amount of punitive damages awarded in 
     action that is subject to this Act, the court shall consider 
     the following factors:
       (A) The likelihood that serious harm would arise from the 
     misconduct of the defendant in question.
       (B) The degree of the awareness of the defendant in 
     question of that likelihood.
       (C) The profitability of the misconduct to the defendant in 
     question.
       (D) The duration of the misconduct and any concealment of 
     the conduct by the defendant in question.
       (E) The attitude and conduct of the defendant in question 
     upon the discovery of the misconduct and whether the 
     misconduct has terminated.
       (F) The financial condition of the defendant in question.
       (G) The total effect of other punishment imposed or likely 
     to be imposed upon the defendant in question as a result of 
     the misconduct including any awards of punitive or exemplary 
     damages to persons similarly situated to the claimant and the 
     severity of criminal penalties to which the defendant in 
     question has been or is likely to be subjected.
       (H) Any other factor that the court determines to be 
     appropriate.

     SEC. 204. UNIFORM TIME LIMITATIONS ON LIABILITY.

       (a) Statute of Limitations.--Any civil action subject to 
     this Act shall be barred unless the complaint is filed within 
     two years of the time the claimant discovered or, in the 
     exercise of reasonable care, should have discovered the harm 
     and its cause, except that any such action of a person under 
     legal disability may be filed within two 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.--(1) Any civil 
     action subject to this Act shall be barred if a product which 
     is a capital good is alleged to have caused harm which is not 
     a toxic harm unless the complaint is served and filed within 
     twenty-five years after the time of delivery of the product. 
     This subsection shall apply only if the court determines that 
     the claimant has received or would be eligible to receive 
     compensation under any State or Federal workers' compensation 
     law for harm caused by the product.
       (2) A motor vehicle, vessel, aircraft, or train, used 
     primarily to transport passengers for hire, shall not be 
     subject to this subsection.
       (3) As used in this subsection, the term--
       (A) ``capital good'' means any product, or any component of 
     any such product, which is of a character subject to 
     allowance for depreciation under the Internal Revenue Code of 
     1986, and which was--
       (i) used in a trade or business;
       (ii) held for the production of income; or
       (iii) sold or donated to a governmental or private entity 
     for the production of goods, for training, for demonstration, 
     or for other similar purposes; and
       (B) ``time of delivery'' means the time when a product is 
     delivered to its first purchaser or lessee who was not 
     involved in the business of manufacturing or selling such 
     product or using it as a component part of another product to 
     be sold.
       (c) Extension of Period for Bringing Certain Actions.--If 
     any provision of this section would shorten the period during 
     which a civil action could be brought under otherwise 
     applicable law, the claimant may, notwithstanding such 
     provision of this section, bring the civil action pursuant to 
     this Act within one year after the effective date of this 
     Act.
       (d) Effect on Right to Contribution or Indemnity.--Nothing 
     in this section shall affect the right of any person who is 
     subject to liability for harm under this Act to seek and 
     obtain contribution or indemnity from any other person who is 
     responsible for such harm.
       (e) Paragraph (b)(1) does not bar a product liability 
     action against a defendant who made a warranty in writing as 
     to the safety of the specific product involved which was 
     longer than 25 years, but it will apply at the expiration of 
     that warranty.

     SEC. 205. WORKERS' COMPENSATION SUBROGATION STANDARDS.
       (a) In General.--(1) An employer or workers' compensation 
     insurer of an employer shall have a right of subrogation 
     against a manufacturer or product seller to recover the sum 
     of the amount paid as workers' compensation benefits for harm 
     caused to an employee by a product if the harm is one for 
     which a civil action has been brought pursuant to this Act. 
     To assert a right of subrogation an employer or workers' 
     compensation insurer of an employer shall provide written 
     notice that it is asserting a right of subrogation to the 
     court in which the claimant has filed a complaint. The 
     employer or workers' compensation insurer of the employer 
     shall not be required to be a necessary and proper party to 
     the proceeding instituted by the employee.
       (2) In any proceeding against or settlement with the 
     manufacturer or product seller, the employer or the workers' 
     compensation insurer of the employer shall have an 
     opportunity to assert a right of subrogation upon any payment 
     and to assert a right of subrogation upon any payment made by 
     the manufacturer or product seller by reason of such harm, 
     whether paid in settlement, in satisfaction of judgment, as 
     consideration for covenant not to sue, or otherwise. The 
     employee shall not make any settlement with or accept any 
     payment from the manufacturer or product seller without 
     notifying the employer in writing prior to settlement. 
     However, the preceding sentence shall not apply if the 
     employer or workers' compensation insurer of the employer is 
     made whole for all benefits paid in workers' compensation 
     benefits or has not asserted a right of subrogation pursuant 
     to this section.
       (3) If the manufacturer or product seller attempts to 
     persuade the trier of fact that the claimant's harm was 
     caused by the fault of the claimant's employer or 
     coemployees, then the issue whether the claimant's harm was 
     caused by the claimant's employer or coemployees shall be 
     submitted to the trier of fact. If the manufacturer or 
     product seller so attempts to persuade the trier of fact, it 
     shall provide written notice to the employer. The employer 
     shall have the right to appear, to be represented, to 
     introduce evidence, to cross-examine adverse witnesses, and 
     to argue to the trier of fact as to this issue as fully as 
     though the employer were a party although not named or joined 
     as a party to the proceeding. Such issue shall be the last 
     issue submitted to the trier of fact. If the trier of fact 
     finds by clear and convincing evidence that the claimant's 
     harm was caused by the fault of the claimant's employer or 
     coemployees, then the court shall proportionally reduce the 
     damages awarded by the trier of fact against the manufacturer 
     or product seller (and correspondingly the subrogation lien 
     of the employer) by deducting from such damages a sum equal 
     to the percentage at fault found attributable to the employer 
     or coemployee multiplied by the sum of the amount paid as 
     workers' compensation benefits. The manufacturer or product 
     seller shall have no further right by way of contribution or 
     otherwise against the employer for such sums. However, the 
     employer shall not lose its right of subrogation because of 
     an intentional tort committee 
      [[Page S6365]]  against the claimant by the claimant's 
     coemployees or for acts committed by coemployees outside the 
     scope of normal work practices.
       (4) If the verdict shall be that the claimant's harm was 
     not caused by the fault of the claimant's employer or 
     coemployees, then the manufacturer or product seller shall 
     reimburse the employer or workers' compensation insurer of 
     the employer for reasonable attorney's fees and court costs 
     incurred in the resolution of the subrogation claim, as 
     determined by the court.
       (b) Effect on Certain Civil Actions.--(1) In any civil 
     action subject to this Act 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 third party tortfeasor may 
     maintain any action for implied indemnity or contribution 
     against the employer, any coemployee, or the exclusive 
     representative of the person who was injured.
       (2) 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 exclusive 
     representative of the person who was injured.
       (3) 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.

     SEC. 206. SEVERAL LIABILITY FOR NONECONOMIC LOSS.

       (a) In General.--Except as provided in subsection (b), in 
     any civil action subject to this Act, the liability of each 
     defendant for noneconomic loss shall be joint and several.
       (b) De Minimis Exception.--Notwithstanding subsection (a), 
     in any civil action subject to this Act, the liability for 
     noneconomic loss of each defendant found to be less than 15% 
     at fault shall be several only and shall not be joint. Each 
     defendant shall be liable only for the amount of noneconomic 
     loss allocated to such defendant in direct proportion to such 
     defendant's percentage of responsibility as determined under 
     subsection (c). A separate judgment shall be rendered against 
     such defendant for that amount.
       (c) Proportion of Responsibility.--For purposes of this 
     section, the trier of fact shall determine the proportion of 
     responsibility of each party for the claimant's harm.
       (b) Other Civil Actions.--In any civil action subject to 
     this Act in which not all defendants are manufacturers or 
     product sellers and the trier of fact determines that no 
     liability exists against those defendants who are not 
     manufacturers or product sellers, the court shall enter a 
     judgment notwithstanding the verdict in favor of any 
     defendant which is a manufacturer or product seller if it is 
     proved that the claimant was intoxicated or was under the 
     influence of intoxicating alcohol or any drug and that as a 
     proximate cause of such intoxication or the influence of the 
     alcohol or drug the claimant was more than 50 percent 
     responsible for the accident or event which resulted in such 
     claimant's harm.
       (c) Intoxication Determination to be Made Under State 
     Law.--For purposes of this section, 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.
       (d) Definition.--As used in this section, the term ``drug'' 
     means any non-over-the-counter drug which has not been 
     prescribed by a physician for use by the claimant.
                                 ______

                      McCONNELL AMENDMENT NO. 748

  (Ordered to lie on the table.)
  Mr. BREAUX submitted an amendment intended to be proposed by him to 
amendment No. 690, proposed by Mr. Coverdell to amendment No. 596, 
proposed by Mr. Gorton, to the bill, H.R. 956, supra; as follows:

       In amendment No. 655, add the following new subsection (c):
       (c) This Section shall not apply to foreign manufacturers 
     located in a country:
       (i) with which the United States has an Agreement of 
     Friendship, Commerce and Navigation, or the equivalent, which 
     provides for nationals of that country to receive national 
     treatment with respect to access to the courts of justice 
     within the territory of the United States;
       (ii) with that is a signatory to the Hague Convention on 
     the Service Abroad of Judicial and Extrajudicial Documents in 
     Civil or Commercial Matters;
       (iii) with that is a signatory to the Hague Convention on 
     the Taking of Evidence Abroad in Civil or Commercial Matters; 
     or
       (iv) with which the United States has a Consular Agreement, 
     or the equivalent, permitting consular service of process 
     within that country;

     at the time a relevant product liability action is initiated.
                                                                    ____

                        HARKIN AMENDMENT NO. 749

  Mr. HARKIN proposed an amendment to amendment No. 690 proposed by Mr. 
Coverdell to amendment No. 596 proposed by Mr. Gorton to the bill H.R. 
956, supra; as follows:

       In section 107(b) of the amendment as amended by amendment 
     No. 709, insert the following:
       (6)(i) Notwithstanding paragraph (1), the amount of 
     punitive damages that may be awarded in any product liability 
     action that is subject to this title against an owner of an 
     unincorporated business, or any partnership, corporation, 
     unit of local government, or organization that has 25 or more 
     full-time employees shall be the greater of--
       (I) an amount determined under paragraph (1); or
       (II) 2 times the average value of the annual compensation 
     of the chief executive officer (or the equivalent employee) 
     of such entity during the 3 full fiscal years of the entity 
     immediately preceding the date on which the award of punitive 
     damages is made.
       (ii) For the purposes of this subparagraph, the term 
     `compensation' includes the value of any salary, benefit, 
     bonus, grant, stock option, insurance policy, club 
     membership, or any other matter having pecuniary value.''.
     

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