I

103D CONGRESS

1ST SESSION H. R. 1910

To establish uniform product liability standards.

IN THE HOUSE OF REPRESENTATIVES

APRIL 28, 1993

Mr. ROWLAND (for himself, Mr. HASTERT, Mr. DINGELL, Mr. FISH, Mr.

CARR, Mr. MOORHEAD, Mr. MURTHA, Mr. MICHEL, Mr. SHARP, Mr.

GINGRICH, Mr. ROGERS, Mr. SWIFT, Mr. MCMILLAN, Mr. SLATTERY,

Mr. STEARNS, Mr. MAZZOLI, Mr. HYDE, Mr. MOLLOHAN, Mr. PAXON,

Mr. GLICKMAN, Mr. FRANK of Massachusetts, Mr. BLILEY, Mr. DURBIN,

Mr. STENHOLM, Mr. UPTON, Mr. HEFNER, Mr. SISISKY, Mr. HUNTER,

Mr. LEHMAN, Mr. GALLO, Mr. JACOBS, Mr. SUNDQUIST, Mr. MCKEON,

Mr. PORTER, Mr. SOLOMON, and Mrs. MEYERS of Kansas) introduced

the following bill; which was referred jointly to the Committees on the

Judiciary and Energy and Commerce

SEPTEMBER 7, 1993

Additional sponsors: Mr. MONTGOMERY, Mr. KOLBE, Mr. GREENWOOD, Ms.

KAPTUR, Mr. MCCURDY, Mr. LINDER, Mr. MCNULTY, Mr. MACHTLEY,

Mr. HOLDEN, Mr. BURTON of Indiana, Mrs. JOHNSON of Connecticut,

Mr. BOEHLERT, Mr. HUTTO, Mr. GALLEGLY, Mr. MCHUGH, Mr. KLUG,

Mr. EVERETT, Mr. WALSH, Mr. SHAYS, Mr. BEREUTER, Mr. SAXTON,

Mr. HEFLEY, Mr. PENNY, Mr. HALL of Ohio, Mr. FRANKS of Connecticut, Mr. CRANE, Mr. FAWELL, Mr. ARCHER, Mr. HOEKSTRA, Mr. NEAL

of Massachusetts, Mr. BARTON of Texas, Mr. OXLEY, Mr. EWING, Mr.

BALLENGER, Mr. MCCRERY, Mr. STUMP, Mr. PETRI, Mr. KYL, Mr.

GILLMOR, Mr. DOOLEY, Mr. BARLOW, Mr. BARCIA of Michigan, Mrs.

ROUKEMA, Mr. PETERSON of Florida, Mr. GOODLING, Mr. PETERSON of

Minnesota, Mr. GUNDERSON, Mr. DOOLITTLE, Mr. CAMP, Mr. BOEHNER,

Mr. MILLER of Florida, Mr. TRAFICANT, Mr. HOUGHTON, Mr. HOKE,

Mr. MCCOLLUM, Mr. INHOFE, Mr. ROHRABACHER, Mr. SPENCE, Mrs.

VUCANOVICH, Mr. COLLINS of Georgia, Mr. LEWIS of Florida, Mr.

MEEHAN, Mr. PORTMAN, Mr. EMERSON, Mrs. FOWLER, Mr. PARKER,

Mr. ZIMMER, and Mr. BISHOP
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A BILL

To establish uniform product liability standards.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Fairness in Product

5 Liability Act of 1993’’.

6 SEC. 2. PREEMPTION.

7 (a) GENERAL RULE.—This Act governs any product

8 liability action brought in any State or Federal court

9 against a manufacturer or product seller, on any theory,

10 for harm caused by a product. A civil action brought

11 against a manufacturer or product seller for commercial

12 loss shall be governed only by applicable commercial or

13 contract law.

14 (b) STATE LAW.—This Act supersedes State law only

15 to the extent that State law applies to an issue covered

16 by this Act. Any issue that is not covered by this Act shall

17 be governed by otherwise applicable State or Federal law.

18 (c) CONSTRUCTION.—Nothing in this Act shall be

19 construed to—

20 (1) waive or affect any defense of sovereign im21 munity asserted by any State under any law,

22 (2) supersede or affect any Federal law, except

23 the Federal Employees Compensation Act and the
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1 Longshoremen’s and Harborworker’s Compensation

2 Act,

3 (3) waive or affect any defense of sovereign im4 munity asserted by the United States,

5 (4) preempt State choice-of-law rules with re6 spect to claims brought by a foreign nation or a citi7 zen of a foreign nation,

8 (5) affect the right of any court to transfer

9 venue or to apply the law of a foreign nation or to

10 dismiss a claim of a foreign nation or of a citizen

11 of a foreign nation on the ground of inconvenient

12 forum, or

13 (6) supersede any statute or common law which

14 creates a cause of action for civil damages or civil

15 penalties, cleanup costs, injunctions, restitution, cost

16 recovery, punitive damages, or any other form of re17 lief for contamination or pollution of the environ18 ment or the threat of such contamination or pollu19 tion.

20 For purposes of paragraph (6), the term ‘‘environment’’

21 has the meaning given to such term in section 101(8) of

22 the Comprehensive Environmental Response, Compensa23 tion, and Liability Act of 1980 (42 U.S.C. 9601(8)).

24 (d) VACCINE INJURY.—
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1 (1) To the extent that title XXI of the Public

2 Health Service Act establishes a Federal rule of law

3 applicable to a civil action brought for a vaccine-re4 lated injury or death—

5 (A) this Act does not affect the application

6 of the rule of law to such an action, and

7 (B) any rule of law prescribed by this Act

8 in conflict with a rule of law of such title XXI

9 shall not apply to such an action.

10 (2) If there is an aspect of a civil action

11 brought for a vaccine-related injury or death to

12 which a Federal rule of law under title XXI of the

13 Public Health Service Act does not apply, then this

14 Act or otherwise applicable law (as determined

15 under this section) will apply to such aspect of such

16 action.

17 SEC. 3. STANDARD OF PRODUCT SELLER LIABILITY.

18 (a) GENERAL RULE.—Except as provided in sub19 section (b), in a product liability action, a product seller

20 shall be liable to a claimant for harm only if the claimant

21 establishes that—

22 (1)(A) the product which allegedly caused the

23 harm complained of was sold by the product seller,

24 (B) the product seller failed to exercise reasonable

25 care with respect to the product, and (C) such fail-
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1 ure to exercise reasonable care was a proximate

2 cause of the claimant’s harm,

3 (2)(A) the product seller made an express war4 ranty applicable to the product which allegedly

5 caused the harm complained of, independent of any

6 express warranty made by the manufacturer as to

7 the same product, (B) the product failed to conform

8 to the warranty, (C) the failure of the product to

9 conform to the warranty caused the claimants harm,

10 or

11 (3) the product seller engaged in international

12 wrongdoing as determined under applicable State

13 law and such intentional wrongdoing was a proxi14 mate cause of the harm complained of by the claim15 ant.

16 For purposes of paragraph (1)(B), a product seller shall

17 not be considered to have failed to exercise reasonable care

18 with respect to a product based upon an alleged failure

19 to inspect a product where there was no reasonable oppor20 tunity to inspect the product in a manner which would,

21 in the exercise of reasonable care, have revealed the aspect

22 of the product which allegedly caused the claimant’s harm.

23 (b) SPECIAL RULE.—In a product liability action, a

24 product seller shall be liable for harm to the claimant
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1 caused by such product as if the product seller were the

2 manufacturer of such product if—

3 (1) the manufacturer is not subject to service of

4 process under the laws of the State in which the

5 claimant brings the action, or

6 (2) the court determines that the claimant

7 would be unable to enforce a judgment against the

8 manufacturer.

9 SEC. 4. ALCOHOL AND DRUG DEFENSE.

10 (a) GENERAL RULE.—In any product liability action,

11 it shall be a complete defense to such action that—

12 (1) the claimant was intoxicated or was under

13 the influence of intoxicating alcohol or any drug, and

14 (2) the claimant as a result of such intoxication

15 or the influence of the alcohol or drug was more

16 than 50 percent responsible for causing the accident

17 or event which resulted in such claimant’s harm.

18 (b) CONSTRUCTION.—For purposes of subsection

19 (a)—

20 (1) the determination of whether a person was

21 intoxicated or was under the influence of intoxicat22 ing alcohol or any drug shall be made pursuant to

23 applicable State law, and

24 (2) the term ‘‘drug’’ means any controlled sub25 stance as defined in the Controlled Substances Act
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1 (21 U.S.C. 802(6)) that has been taken by the

2 claimant other than in accordance with the terms of

3 a lawfully issued prescription.

4 SEC. 5. MISUSE OR ALTERATION.

5 (a) GENERAL RULE.—Except as provided in sub6 section (c), in a product liability action, the damages for

7 which a manufacturer or product seller is otherwise liable

8 under State law shall be reduced by the percentage of re9 sponsibility for the claimant’s harm attributable to misuse

10 or alteration of a product by any person if the manufac11 turer or product seller established by a preponderance of

12 the evidence that such percentage of the claimant’s harm

13 was proximately caused by—

14 (1) a use or alteration of a product in violation

15 of, or contrary to, the manufacturer’s or product

16 seller’s express warnings or instructions if the

17 warnings or instructions are adequate as determined

18 pursuant to applicable State law, or

19 (2) a use or alteration of a product involving a

20 risk of harm which was known or should have been

21 known by the ordinary person who uses or consumes

22 the product with the knowledge common to the class

23 of persons who used or would be reasonably antici24 pated to use the product.
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1 (b) STATE LAW.—Notwithstanding section 2(b) of

2 this Act, subsection (a) supersedes State law concerning

3 misuse of alteration of a product only to the extent that

4 State law is inconsistent.

5 (c) WORKPLACE INJURY.—Notwithstanding sub6 section (a), the damage for which a manufacturer or prod7 uct seller is otherwise liable under State law shall not be

8 reduced by the percentage of responsibility for the claim9 ant’s harm attributable to misuse or alteration of the

10 product by the claimant’s employer or coemployees who

11 is immune from suit by the claimant pursuant to the State

12 law applicable to workplace injuries.

13 SEC. 6. PUNITIVE DAMAGES.

14 (a) GENERAL RULE.—

15 (1) STANDARD FOR AWARD OF DAMAGES.—Ex16 cept as provided in paragraph (2) or subsection (d),

17 punitive damages may, to the extent permitted by

18 applicable State law, be awarded against a manufac19 turer or product seller in a product liability action

20 if the claimant establishes by clear and convincing

21 evidence that the harm suffered was the result of

22 conduct manifesting a manufacturer’s or product

23 seller’s conscious, flagrant indifference to the safety

24 of those persons who might be harmed by a product.

25 (2) EXCEPTION.—
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1 (A) REASONABLE CARE.—A failure to ex2 ercise reasonable care in selecting among alter3 native product designs, formulations, instruc4 tions, or warnings shall not, by itself, constitute

5 conduct that may give rise to punitive damages.

6 (B) AWARD OF OTHER DAMAGES.—Puni7 tive damages may not be awarded in a product

8 liability action unless compensatory damages

9 have been awarded in such action. For purposes

10 of this subparagraph, nominal damages do not

11 constitute compensatory damages.

12 (b) SEPARATE PROCEEDING.—At the request of the

13 manufacturer or product seller, the trier of fact shall con14 sider in a separate proceeding (1) whether punitive dam15 ages are to be awarded and the amount of such award,

16 or (2) the amount of punitive damages following a deter17 mination of liability for such damages. If a separate pro18 ceeding is requested, evidence relevant only to the claim

19 of punitive damages, as determined by applicable State

20 law, shall be inadmissible in any proceeding to determine

21 whether compensatory damages are to be awarded.

22 (c) CONSIDERATION.—In determining the amount of

23 punitive damages, the trier of fact shall consider all rel24 evant evidence, including—
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1 (1) the severity of the harm caused by the con2 duct of the manufacturer or product seller,

3 (2) the duration of the conduct or any conceal4 ment of it by the manufacturer or product seller,

5 (3) the profitability of the conduct to the manu6 facturer or product seller,

7 (4) the number of products sold by the manu8 facturer or product seller of the kind causing the

9 harm complained of by the claimant,

10 (5) awards of punitive or exemplary damages to

11 persons similarly situated to the claimant,

12 (6) prospective awards of compensatory dam13 ages to persons similarly situated to the claimant,

14 (7) any criminal penalties imposed on the man15 ufacturer or product seller as a result of the conduct

16 complained of by the claimant,

17 (8) the amount of any civil and administrative

18 fines and penalties assessed against the defendant as

19 a result of the conduct complained of by the claim20 ant, and

21 (9) whether the foregoing considerations have

22 been presented in any prior proceeding involving

23 that manufacturer or product seller.

24 (d) DRUGS AND DEVICES.—
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1 (1)(A) Punitive damages shall not be awarded

2 against a manufacturer or product seller of a drug

3 (as defined in section 201(g)(1) of the Federal

4 Food, Drug, and Cosmetic Act (21 U.S.C.

5 321(g)(1)) or medical device (as defined in section

6 201(h) of the Federal Food, Drug, and Cosmetic

7 Act (21 U.S.C. (h)) which caused the claimant’s

8 harm where—

9 (i) such drug or device was subject to pre10 market approval by the Food and Drug Admin11 istration with respect to the safety of the for12 mulation or performance of the aspect of such

13 drug or device which caused the claimant’s

14 harm or the adequacy of the packaging or label15 ing of such drug or device, and such drug was

16 approved by the Food and Drug Administra17 tion; or

18 (ii) the drug is generally recognized as safe

19 and effective pursuant to conditions established

20 by the Food and Drug Administration and ap21 plicable regulations, including packaging and la22 beling regulations.

23 (B) Subparagraphs (A) shall not apply in any

24 case in which the defendant, before or after pre25 market approval of a drug or device—
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1 (i) intentionally and wrongfully withheld

2 from or misrepresented to the Food and Drug

3 Administration information concerning such

4 drug or device required to be submitted under

5 the Federal Food, Drug, and Cosmetic Act (21

6 U.S.C. 301 et seq.) or section 351 of the Public

7 Health Service Act (42 U.S.C. 262) that is ma8 terial and relevant to the harm suffered by the

9 claimant, or

10 (ii) made an illegal payment to an official

11 or employee of the Food and Drug Administra12 tion for the purpose of securing or maintaining

13 approval of such drug or device.

14 (2) PACKAGING.—In a product liability action

15 for harm which is alleged to relate to the adequacy

16 of the packaging (or labeling relating to such pack17 aging) of a drug which is required to have tamper18 resistant packaging under regulations of the Sec19 retary of Health and Human Services (including la20 beling regulations related to such packaging), the

21 manufacturer of the drug shall not be held liable for

22 punitive damages unless the drug is found by the

23 court by clear and convincing evidence to be sub24 stantially out of compliance with such regulations.
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1 SEC. 7. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.

2 (a) GENERAL RULE.—If a manufacturer or product

3 seller is found liable in a product liability action, the liabil4 ity of each defendant in the lawsuit shall be several only

5 and shall not be joint for noneconomic damages. Each de6 fendant shall be liable only for the amount of noneconomic

7 damages allocated to such defendant in direct proportion

8 to such defendant’s percentage of responsibility as deter9 mined under subsection (b) of this section. A separate

10 judgment shall be rendered against such defendant for

11 that amount.

12 (b) TRIER OF FACT.—For purposes of this section,

13 the trier of fact shall determine the proportion of respon14 sibility of each party for the claimant’s harm.

15 (c) NONECONOMIC DAMAGES.—As used in this sec16 tion, the term ‘‘noneconomic damages’’ means subjective,

17 nonmonetary losses including pain, suffering, inconven18 ience, mental suffering, emotional distress, loss of society

19 and companionship, loss of consortium, injury to reputa20 tion and humiliation, but does not include objectively veri21 fiable monetary losses including medical expenses, loss of

22 earnings, burial costs, loss of use of property, costs of re23 pair or replacement, costs of obtaining substitute domestic

24 services, rehabilitation and training expenses, loss of em25 ployment, or loss of business or employment opportunities.
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1 SEC. 8. TIME LIMITATIONS ON LIABILITY.

2 (a) STATUTE OF LIMITATIONS.—A product liability

3 action shall be brought within 2 years after the time the

4 individual who would be the claimant in such action dis5 covered, or in the exercise of reasonable diligence should

6 have discovered, the harm and its cause, except that any

7 such action of a person under legal disability may be filed

8 within 2 years after the disability ceases. If the commence9 ment of such an action is stayed or enjoined, the running

10 of the statute of limitations under this section shall be

11 suspended for the period of the stay or injunction.

12 (b) STATUTE OF REPOSE FOR CAPITAL GOODS.—A

13 product liability action for harm caused by a product

14 which is a capital good shall be barred unless the com15 plaint is served and filed within 25 years of the date of

16 delivery of the product to its first purchaser or lessee who

17 was not engaged in the business of selling or leasing the

18 product or of using the product as a component in the

19 manufacture of another product. This subsection shall

20 apply only if—

21 (1) the court determines that the claimant has

22 received or would be eligible to receive compensation

23 under any State or Federal worker’s compensation

24 law for harm caused by the product, and

25 (2) the harm caused by the product did not in26 clude chronic illness.
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1 SEC. 9. WORKERS’ COMPENSATION OFFSET.

2 (a) GENERAL RULE.—

3 (1) SUBROGATION.—If a product liability action

4 has been brought pursuant to this Act for harm

5 caused to an employee by a product, the employer of

6 such employee or the workers’ compensation insurer

7 of such employer shall have a right of subrogation

8 against the manufacturer of such product or the

9 product seller to recover the sum of the amount of

10 workers’ compensation benefits to which such em11 ployee is or would be entitled as determined by the

12 appropriate workers’ compensation authority. To as13 sert such a right of subrogation, an employer or

14 workers’ compensation insurer of an employer shall

15 provide written notice that it is asserting a right of

16 subrogation to the court in which such product li17 ability action has been brought. The employer or

18 workers’ compensation insurer of such employer

19 shall not be required to be a necessary and proper

20 party to such product liability action.

21 (2) RIGHT OF SUBROGATION AGAINST A PAY22 MENT.—In any product liability action brought by

23 an employee against a manufacturer of a product or

24 a product seller or in any settlement of such an ac25 tion, the employer of such employee or the workers’

26 compensation insurer of such employer shall have an
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1 opportunity to participate in such action and to as2 sert a right of subrogation upon any payment made

3 by such manufacturer or product seller in satisfac4 tion of a judgment in such action, in connection with

5 a settlement of such action, as consideration for a

6 covenant not to sue, or otherwise. Such employee

7 shall not make any settlement of such an action

8 with, or accept any payment from, such manufac9 turer or product seller without the written consent

10 of such employee’s employer. No release to or agree11 ment with such manufacturer or product seller made

12 by such employee shall be valid or enforceable for

13 any purpose without such consent unless such em14 ployer or workers’ compensation insurer of such em15 ployer is made whole for all workers’ compensation

16 benefits paid to such employee.

17 (3) CLAIMANT’S HARM.—In a product liability

18 action brought for harm from a product by an em19 ployee, the manufacturer of such product or a prod20 uct seller may allege to the trier of fact that the

21 claimant’s harm was caused by the fault of the

22 claimant’s employer or a coemployee of the claimant.

23 If the manufacturer of a product or a product seller

24 makes such an allegation, the manufacturer or prod25 uct seller shall provide written notice to the em-
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1 ployer involved in such allegation. Such employer

2 shall have the right to appear in such product liabil3 ity action, to be represented, to introduce evidence,

4 to cross-examine adverse witnesses, and to argue to

5 the trier of fact on such allegation as though such

6 employer were a party to such product liability ac7 tion. The issue of the cause of the claimant’s harm

8 shall be the last issue submitted to the trier of fact

9 in such product liability action. If the trier of fact

10 finds by clear and convincing evidence that the

11 claimant’s harm was caused by the fault of the

12 claimant’s employer or a coemployee of such claim13 ant, the court shall reduce the damages awarded

14 against such manufacturer or product seller and, ex15 cept as provided in the last sentence, correspond16 ingly the subrogation lien of such employer by the

17 sum of the amount paid as workers’ compensation

18 benefits to such employee and the present value of

19 all workers’ compensation benefits to which such em20 ployee is or would be entitled for such harm as de21 termined by the appropriate workers’ compensation

22 authority. Such manufacturer or product seller shall

23 have no further right, by way of contribution or oth24 erwise, against such employer with respect to such

25 harm. Such employer shall not lose its right of sub-
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1 rogation if the employee’s harm was the result of an

2 intentional tort committed against the claimant by a

3 coemployee of the claimant or for acts committed by

4 such coemployee outside the scope of normal work

5 practices.

6 (4) REIMBURSEMENT.—If in a product liability

7 action brought by an employee for harm from a

8 product the judgment is that the claimant’s harm

9 was not caused by the fault of the claimant’s em10 ployer or a coemployee of the claimant, the manufac11 turer of such product or product seller shall reim12 burse such employer or workers’ compensation in13 surer of such employer for reasonable attorney’s fees

14 and court costs, as determined by the court, in15 curred in the resolution of the subrogation claim.

16 (b) THIRD PARTY TORTFEASOR.—In any product li17 ability action brought by an employee in which damages

18 are sought for harm for which the person injured is or

19 would have been entitled to receive compensation under

20 any State or Federal workers’ compensation law, no third

21 party tortfeasor may maintain any action for implied in22 demnity or contribution against such employee’s employer,

23 any coemployee of such employee, or the exclusive rep24 resentative of such employee.
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1 (c) CONSTRUCTION.—Nothing in this Act shall be

2 construed to affect any provision of a State or Federal

3 workers’ compensation law—

4 (1) which prohibits—

5 (A) a person who is or would have been en6 titled to receive compensation under such law,

7 or

8 (B) any other person whose claim for bene9 fits under such law would have been derivative

10 from the claim of the person described in sub11 paragraph (A),

12 from recovering for harm caused by a product in any

13 product liability action other than a workers’ com14 pensation claim against a present or former em15 ployer or workers’ compensation insurer of such an

16 employer, any coemployee, or the exclusive rep17 resentative of the person who is injured, or

18 (2) which permits recovery based on a claim of

19 an intentional tort by an employer or any

20 coemployee if the claimant’s harm was caused by

21 such a tort.

22 (d) STAY PENDING COMPENSATION DETERMINA23 TION.—In any product liability action brought by an em24 ployee in which damages are sought for harm for which

25 the person injured is or would have been entitled to receive
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1 compensation under any State or Federal workers’ com2 pensation law, such action shall, on application of the

3 claimant made at the claimant’s sole election, be stayed

4 until such time as the full amount payable as workers’

5 compensation benefits has been finally determined under

6 such workers’ compensation law. If the claimant elects to

7 bring a product liability action and not stay the claimant’s

8 action until the full amount of such benefits has been fi9 nally determined by the appropriate workers’ compensa10 tion authority, the court shall determine the amount of

11 workers’ compensation benefits that has been or would be

12 payable if the amount had been determined by such an

13 authority.

14 (e) EFFECT OF VERDICT.—The verdict of any court

15 in a product liability action shall not be used as evidence

16 in any proceeding relating to workers’ compensation.

17 (f) WRITTEN NOTICE.—A claimant in a product li18 ability action who is or may be eligible to receive com19 pensation under any State or Federal workers’ compensa20 tion law shall provide written notice of the filing of the

21 product liability action to the claimant’s employer within

22 30 days of such filing. The written notice shall include

23 information regarding the date and court in which the

24 product liability action was filed, the names and addresses

25 of all plaintiffs and defendants appearing on the com-
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1 plaint, the court docket number if available, and a copy

2 of the complaint which was filed in the product liability

3 action.

4 SEC. 10. FEDERAL CAUSE OF ACTION PRECLUDED.

5 The district courts of the United States shall not

6 have jurisdiction under section 1331 or 1337 of title 28,

7 United States Code, over any civil action arising under

8 this Act.

9 SEC. 11. DEFINITIONS.

10 As used in this Act—

11 (1) the term ‘‘capital good’’—

12 (A) means any product, or any component

13 of such product, which is of a character subject

14 to allowance for depreciation under the Internal

15 Revenue Code of 1986 and is—

16 (i) used in a trade or business,

17 (ii) held for the production of income,

18 or

19 (iii) sold, leased, or donated to a gov20 ernmental or private entity for the produc21 tion of goods for training, for demonstra22 tion, or other similar purposes, and

23 (B) does not mean a motor vehicle, vessel,

24 aircraft, or railroad car used primarily to trans25 port passengers for hire,
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1 (2) the term ‘‘claimant’’ means any person who

2 brings a product liability action and any person on

3 whose behalf such an action is brought, including

4 such person’s decedent if such an action is brought

5 through or on behalf of an estate or such person’s

6 legal representative if it is brought through or on be7 half of a minor or incompetent,

8 (3) with respect to a civil action brought

9 against a manufacturer or product seller of a prod10 uct the term ‘‘commercial loss’’ means loss, includ11 ing damage to the product itself, which is not harm

12 described in clause (i) or (ii) or paragraph (4)(A)

13 and is of a kind for which there is a remedy under

14 applicable contract or commercial law,

15 (4) the term ‘‘harm’’—

16 (A) means—

17 (i) personal physical illness, injury, or

18 death of the claimant,

19 (ii) mental anguish or emotional harm

20 of the claimant caused by or causing the

21 claimant personal physical illness or injury,

22 or

23 (iii) physical damage to property other

24 than the product itself,

25 caused by a product, and
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1 (B) does not include commercial loss,

2 (5) with respect to a product, the term ‘‘manu3 facturer’’ means—

4 (A) any person who is engaged in a busi5 ness to produce, create, make, or construct the

6 product and who designs or formulates the

7 product or has engaged another person to de8 sign or formulate the product,

9 (B) a product seller of the product who,

10 before placing the product in the stream of

11 commerce—

12 (i) designs or formulates or has en13 gaged another person to design or formu14 late an aspect of the product after the

15 product was initially made by another, and

16 (ii) produces, creates, makes, or con17 structs such aspect of the product, or

18 (C) any product seller not described in

19 subparagraph (B) which holds itself out as a

20 manufacturer to the user of the product,

21 (6) the term ‘‘product’’—

22 (A) means any object, substance, mixture,

23 or raw material in a gaseous, liquid, or solid

24 state—
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1 (i) which is capable of delivery itself,

2 in a mixed or combined state, or as a com3 ponent part or ingredient,

4 (ii) which is produced for introduction

5 into trade or commerce,

6 (iii) which has intrinsic economic

7 value, and

8 (iv) which is intended for sale or lease

9 to persons for commercial or personal use,

10 and

11 (B) does not include—

12 (i) human tissue, human organs,

13 human blood, and human blood products,

14 or

15 (ii) electricity, water delivered by a

16 utility, natural gas, or steam,

17 (7) the term ‘‘product liability action’’ means a

18 civil action brought against a manufacturer or prod19 uct seller, on any theory, for harm caused by a prod20 uct,

21 (8) with respect to a product, the term ‘‘prod22 uct seller’’—

23 (A) means a person—

24 (i) who sells, distributes, leases, pre25 pares, blends, packages, or labels a product
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1 or is otherwise involved in placing a prod2 uct in the stream of commerce, or

3 (ii) who installs, repairs, or maintains

4 the harm-causing aspect of a product, and

5 (B) does not include—

6 (i) a manufacturer as defined in para7 graph (5) of this section,

8 (ii) a seller or lessor of real property,

9 (iii) a provider of professional services

10 in any case in which the sale or use of a

11 product is incidental to the transaction and

12 the essence of the transaction is the fur13 nishing of judgment, skill, or services,

14 (iv) any person who acts only in a fi15 nancial capacity with respect to the sale of

16 a product, or

17 (v) any person who leases a product

18 under a lease arrangement in which the se19 lection, possession, maintenance, and oper20 ation of the product are controlled by a

21 person other than the lessor, and

22 (9) the term ‘‘State’’ means any State of the

23 United States, the District of Columbia, the Com24 monwealth of Puerto Rico, the Virgin Islands,

25 Guam, American Samoa, the Northern Mariana Is-
26

•HR 1910 SC

1 lands, the Trust Territory of the Pacific Islands, and

2 any other territory or possession of the United

3 States, or any political subdivision thereof.

4 SEC. 12. EFFECTIVE DATE.

5 This Act shall apply with respect to product liability

6 actions which are commenced after the date of the enact7 ment of this Act.

Æ

HR 1910 SC——2