I

103D CONGRESS

1ST SESSION H. R. 1954

To regulate interstate commerce by providing for a uniform product liability

law, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 3, 1993

Mr. ROTH introduced the following bill; which was referred jointly to the

Committees on the Judiciary and Energy and Commerce

A BILL

To regulate interstate commerce by providing for a uniform

product liability law, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Product Liability Fair5 ness Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents of this Act is as follows:

TABLE OF CONTENTS

TITLE—I Page

Sec. 101. Definitions ................................................................................ 2

Sec. 102. Preemption ............................................................................... 7

Sec. 103. Jurisdiction of Federal courts .................................................. 9

Sec. 104. Effective date ........................................................................... 9
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TITLE—II

Sec. 201. Expedited product liability settlements .................................... 10

Sec. 202. Alternative dispute resolution procedures ................................ 13

TITLE—III

Sec. 301. Civil actions .............................................................................. 14

Sec. 302. Uniform standards of product seller liability ........................... 14

Sec. 303. Uniform standards for award of punitive damages ................. 17

Sec. 304. Uniform time limitations on liability ....................................... 22

Sec. 305. Uniform standards for offset of workers’ compensation benefits .......................................................................................................... 24

Sec. 306. Several liability for noneconomic damages ............................... 29

Sec. 307. Defenses involving intoxicating alcohol or drugs ..................... 30

1 TITLE I

2 SEC. 101. DEFINITIONS.

3 As used in this Act—

4 (1) the term ‘‘claimant’’ means any person who

5 brings a civil action pursuant to this Act, and any

6 person on whose behalf such an action is brought;

7 if such an action is brought through or on behalf of

8 an estate, the term includes the claimant’s decedent,

9 or if it is brought through or on behalf of a minor

10 or incompetent, the term includes the claimant’s

11 parent or guardian;

12 (2) the term ‘‘clear and convincing evidence’’ is

13 that measure or degree of proof that will produce in

14 the mind of the trier of fact a firm belief or convic15 tion as to the truth of the allegations sought to be

16 established; the level of proof required to satisfy

17 such standard is more than that required under pre18 ponderance of the evidence, but less than that re19 quired for proof beyond a reasonable doubt;
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1 (3) the term ‘‘collateral benefits’’ means all

2 benefits and advantages received or entitled to be re3 ceived (regardless of any right any other person has

4 or is entitled to assert for recoupment through sub5 rogation, trust agreement, lien, or otherwise) by any

6 claimant harmed by a product or by any other per7 son as reimbursement of loss because of harm to

8 person or property payable or required to be paid to

9 the claimant, under—

10 (A) any Federal law or the laws of any

11 State (other than through a claim for breach of

12 an obligation or duty); or

13 (B) any life, health, or accident insurance

14 or plan, wage or salary continuation plan, or

15 disability income or replacement service insur16 ance, or any benefit received or to be received

17 as a result of participation in any pre-paid med18 ical plan or health maintenance organization;

19 (4) the term ‘‘commerce’’ means trade, traffic,

20 commerce, or transportation (A) between a place in

21 a State and any place outside of that State; or (B)

22 which affects trade, traffic, commerce, or transpor23 tation described in clause (A);

24 (5) the term ‘‘commercial loss’’ means economic

25 injury, whether direct, incidental, or consequential,
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1 including property damage and damage to the prod2 uct itself;

3 (6) the term ‘‘economic loss’’ means any pecu4 niary loss resulting from harm which is allowed

5 under State law;

6 (7) the term ‘‘exercise of reasonable care’’

7 means conduct of a person of ordinary prudence and

8 intelligence using the attention, precaution, and

9 judgment that society expects of its members for the

10 protection of their own interests and the interests of

11 others;

12 (8) the term ‘‘harm’’ means any harm recog13 nized under the law of the State in which the civil

14 action is maintained, other than loss or damage

15 caused to a product itself, or commercial loss;

16 (9) the term ‘‘manufacturer’’ means (A) any

17 person who is engaged in a business to produce, cre18 ate, make, or construct any product (or component

19 part of a product) and who designs or formulates

20 the product (or component part of the product) or

21 has engaged another person to design or formulate

22 the product (or component part of the product); (B)

23 a product seller with respect to all aspects of a prod24 uct (or component part of a product) which are cre25 ated or affected when, before placing the product in
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1 the stream of commerce, the product seller produces,

2 creates, makes, or constructs and designs or formu3 lates, or has engaged another person to design or

4 formulate, an aspect of a product (or component

5 part of a product) made by another; or (C) any

6 product seller not described in clause (B) which

7 holds itself out as a manufacturer to the user of a

8 product;

9 (10) the term ‘‘noneconomic loss’’ means loss

10 caused by a product other than economic loss or

11 commercial loss;

12 (11) the term ‘‘person’’ includes any govern13 mental entity;

14 (12) the term ‘‘preponderance of the evidence’’

15 is that measure or degree of proof which, by the

16 weight, credit, and value of the aggregate evidence

17 on either side, establishes that it is more probable

18 than not that a fact occurred or did not occur;

19 (13) the term ‘‘product’’ means any object, sub20 stance, mixture, or raw material in a gaseous, liquid,

21 or solid state (A) which is capable of delivery itself

22 or as an assembled whole, in a mixed or combined

23 state, or as a component part or ingredient; (B)

24 which is produced for introduction into trade or

25 commerce; (C) which has intrinsic economic value;
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1 and (D) which is intended for sale or lease to per2 sons for commercial or personal use; the term does

3 not include human tissue, blood and blood products,

4 or organs unless specifically recognized as a product

5 pursuant to State law;

6 (14) the term ‘‘product seller’’ means a person

7 who, in the course of a business conducted for that

8 purpose, sells, distributes, leases, prepares, blends,

9 packages, labels, or otherwise is involved in placing

10 a product in the stream of commerce, or who in11 stalls, repairs, or maintains the harm-causing aspect

12 of a product; the term does not include—

13 (A) a seller or lessor of real property;

14 (B) a provider of professional services in

15 any case in which the sale or use of a product

16 is incidental to the transaction and the essence

17 of the transaction is the furnishing of judg18 ment, skill, or services; or

19 (C) any person who—

20 (i) acts in only a financial capacity

21 with respect to the sale of a product; and

22 (ii) leases a product under a lease ar23 rangement in which the selection, posses24 sion, maintenance, and operation of the
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1 product are controlled by a person other

2 than the lessor; and

3 (15) the term ‘‘State’’ means any State of the

4 United States, the District of Columbia, the Com5 monwealth of Puerto Rico, the Commonwealth of the

6 Northern Mariana Islands, the Virgin Islands,

7 Guam, American Samoa, and any other territory or

8 possession of the United States, or any political sub9 division thereof.

10 SEC. 102. PREEMPTION.

11 (a) IN GENERAL.—This Act governs any civil action

12 brought against a manufacturer or product seller, on any

13 theory, for harm caused by a product. A civil action

14 brought against a manufacturer or product seller for loss

15 or damage to a product itself or for commercial loss is

16 not subject to this Act and shall be governed by applicable

17 commercial or contract law.

18 (b) STATE LAW.—This Act supersedes any State law

19 regarding recovery for harm caused by a product only to

20 the extent that this Act establishes a rule of law applicable

21 to any such recovery. Any issue arising under this Act that

22 is not governed by any such rule of law shall be governed

23 by applicable State or Federal law.

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

25 construed to—
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1 (1) waive or affect any defense of sovereign im2 munity asserted by any State under any provision of

3 law;

4 (2) supersede any Federal law, except the Fed5 eral Employees Compensation Act and the Long6 shoremen’s and Harbor Workers’ Compensation Act;

7 (3) waive or affect any defense of sovereign im8 munity asserted by the United States;

9 (4) affect the applicability of any provision of

10 chapter 97 of title 28, United States Code;

11 (5) preempt State choice-of-law rules with re12 spect to claims brought by a foreign nation or a citi13 zen of a foreign nation;

14 (6) affect the right of any court to transfer

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

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

17 of a foreign nation on the ground of inconvenient

18 forum; or

19 (7) supersede any statutory or common law, in20 cluding an action to abate a nuisance, that author21 izes a State or person to institute an action for civil

22 damages or civil penalties, cleanup costs, injunc23 tions, restitution, cost recovery, punitive damages, or

24 any other form of relief resulting from contamina-
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1 tion or pollution of the environment, or the threat of

2 such contamination or pollution.

3 (d) DEFINITION.—As used in paragraph (7), the

4 term ‘‘environment’’ has the meaning given to such term

5 in section 101(8) of the Comprehensive Environmental

6 Response, Compensation, and Liability Act of 1980 (42

7 U.S.C. 9601(8)).

8 (e) LEGISLATIVE HISTORY.—This Act shall be con9 strued and applied after consideration of its legislative his10 tory to promote uniformity of law in the various jurisdic11 tions.

12 SEC. 103. JURISDICTION OF FEDERAL COURTS.

13 The district courts of the United States shall not

14 have jurisdiction over any civil action pursuant to this Act,

15 based on section 1331 or 1337 of title 28, United States

16 Code.

17 SEC. 104. EFFECTIVE DATE.

18 (a) IN GENERAL.—This Act shall take effect on the

19 date of its enactment and shall apply to all civil actions

20 pursuant to this Act commenced on or after such date,

21 including any action in which the harm or the conduct

22 which caused the harm occurred before the effective date

23 of this Act.

24 (b) SHORTER PERIOD.—If any provision of this Act

25 would shorten the period during which a manufacturer or
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1 product seller would otherwise be exposed to liability, the

2 claimant may, notwithstanding the otherwise applicable

3 time period, bring any civil action pursuant to this Act

4 within one year after the effective date of this Act.

5 TITLE II

6 SEC. 201. EXPEDITED PRODUCT LIABILITY SETTLEMENTS.

7 (a) IN GENERAL.—Any claimant may bring a civil

8 action for damages against a person for harm caused by

9 a product pursuant to applicable State law, except to the

10 extent such law is superseded by this title.

11 (b) SETTLEMENT.—

12 (1) CLAIMANT.—Any claimant may, in addition

13 to any claim for relief made in accordance with

14 State law, include in such claimant’s complaint an

15 offer of settlement for a specific dollar amount.

16 (2) DEFENDANT.—The defendant may make an

17 offer of settlement for a specific dollar amount with18 in sixty days after service of the claimant’s com19 plaint or within the time permitted pursuant to

20 State law for a responsive pleading, whichever is

21 longer, except that if such pleading includes a mo22 tion to dismiss in accordance with applicable law,

23 the defendant may tender such relief to the claimant

24 within ten days after the court’s determination re25 garding such motion.
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1 (3) COURT ACTION.—

2 (A) EXTENSION ORDER.—In any case in

3 which an offer of settlement is made pursuant

4 to paragraph (1) or (2), the court may, upon

5 motion made prior to the expiration of the ap6 plicable period for response, enter an order ex7 tending such period. Any such order shall con8 tain a schedule for discovery of evidence mate9 rial to the issue of the appropriate amount of

10 relief, and shall not extend such period for more

11 than sixty days. Any such motion shall be ac12 companied by a supporting affidavit of the mov13 ing party setting forth the reasons why such ex14 tension is necessary to promote the interests of

15 justice and stating that the information likely

16 to be discovered is material, and is not, after

17 reasonable inquiry, otherwise available to the

18 moving party.

19 (B) DEFENDANT NOT ACCEPTING.—If the

20 defendant, as offeree, does not accept the offer

21 of settlement made by a claimant within the

22 time permitted pursuant to State law for a re23 sponsive pleading or, if such pleading includes

24 a motion to dismiss in accordance with applica25 ble law, within thirty days after the court’s de-
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1 termination regarding such motion, and a ver2 dict is entered in such action equal to or great3 er than the specific dollar amount of such offer

4 of settlement, the court shall enter judgment

5 against the defendant and shall include in such

6 judgment an amount for the claimant’s reason7 able attorney’s fees and costs. Such fees shall

8 be offset against any fees owed by the claimant

9 to the claimant’s attorney by reason of the

10 verdict.

11 (C) CLAIMANT NOT ACCEPTING.—If the

12 claimant, as offeree, does not accept the offer

13 of settlement made by a defendant in accord14 ance with subsection (c) of this section within

15 thirty days after the date on which such offer

16 is made and a verdict is entered in such action

17 equal to or less than the specific dollar amount

18 of such offer of settlement, the court shall re19 duce the amount of the verdict in such action

20 by an amount equal to the reasonable attorney’s

21 fees and costs owed by the defendant to the de22 fendant’s attorney by reason of the verdict, ex23 cept that the amount of such reduction shall

24 not exceed that portion of the verdict which is

25 allocable to noneconomic loss and economic loss
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1 for which the claimant has received or will re2 ceive collateral benefits.

3 (D) ATTORNEY’S FEES.—For purposes of

4 this paragraph, attorney’s fees shall be cal5 culated on the basis of an hourly rate which

6 should not exceed that which is considered ac7 ceptable in the community in which the attor8 ney practices, considering the attorney’s quali9 fications and experience and the complexity of

10 the case.

11 SEC. 202. ALTERNATIVE DISPUTE RESOLUTION PROCE12 DURES.

13 (a) IN GENERAL.—In lieu of or in addition to making

14 an offer of settlement under section 201(b), a claimant

15 or defendant may, within the time permitted for the mak16 ing of such an offer under such section, offer to proceed

17 pursuant to any voluntary alternative dispute resolution

18 procedure established or recognized under the law of the

19 State in which the civil action for damages for harm

20 caused by a product is brought or under the rules of the

21 court in which such action is maintained.

22 (b) OFFEREE REFUSAL.—If the offeree refuses to

23 proceed pursuant to such alternative dispute resolution

24 procedure and the court determines that such refusal was
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1 unreasonable or not in good faith, the court shall assess

2 reasonable attorney’s fees and costs against the offeree.

3 (c) REBUTTABLE PRESUMPTION.—For the purposes

4 of this section, there shall be created a rebuttable pre5 sumption that a refusal by an offeree to proceed pursuant

6 to such alternative dispute resolution procedure was un7 reasonable or not in good faith, if a verdict is rendered

8 in favor of the offeror.

9 TITLE III

10 SEC. 301. CIVIL ACTIONS.

11 A person seeking to recover for harm caused by a

12 product may bring a civil action against the product’s

13 manufacturer or product seller pursuant to applicable

14 State or Federal law, except to the extent such law is su15 perseded by this Act.

16 SEC. 302. UNIFORM STANDARDS OF PRODUCT SELLER LI17 ABILITY.

18 (a) GENERAL RULE.—Notwithstanding section 301,

19 in any civil action for harm caused by a product, a product

20 seller other than a manufacturer is liable to a claimant,

21 only if the claimant establishes by a preponderance of the

22 evidence that—

23 (1)(A) the individual product unit which alleg24 edly caused the harm complained of was sold by the

25 defendant;
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1 (B) the product seller failed to exercise reason2 able care with respect to the product; and

3 (C) such failure to exercise reasonable care was

4 a proximate cause of the claimant’s harm; or

5 (2)(A) the product seller made an express war6 ranty, independent of any express warranty made by

7 a manufacturer as to the same product;

8 (B) the product failed to conform to the war9 ranty; and

10 (C) the failure of the product to conform to the

11 warranty caused the claimant’s harm.

12 (b) DETERMINING PRODUCT SELLER’S LIABILITY.—

13 (1) TRIER OF FACT.—In determining whether a

14 product seller is subject to liability under subsection

15 (a)(1), the trier of fact may consider the effect of

16 the conduct of the product seller with respect to the

17 construction, inspection, or condition of the product,

18 and any failure of the product seller to pass on ade19 quate warnings or instructions from the product’s

20 manufacturer about the dangers and proper use of

21 the product.

22 (2) WARNING OR INSTRUCTIONS.—A product

23 seller shall not be liable in a civil action subject to

24 this title based upon an alleged failure to provide

25 warnings or instructions unless the claimant estab-
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1 lishes that, when the product left the possession and

2 control of the product seller, the product seller

3 failed—

4 (A) to provide to the person to whom the

5 product seller relinquished possession and con6 trol of the product any pamphlets, booklets, la7 bels, inserts, or other written warnings or in8 structions received while the product was in the

9 product seller’s possession and control; or

10 (B) to make reasonable efforts to provide

11 users with those warnings and instructions

12 which it received after the product left its pos13 session and control.

14 (3) BREACH OF EXPRESS WARRANTY.—A prod15 uct seller shall not be liable in a civil action subject

16 to this title except for breach of express warranty

17 where there was no reasonable opportunity to in18 spect the product in a manner which would or

19 should, in the exercise of reasonable care, have re20 vealed the aspect of the product which allegedly

21 caused the claimant’s harm.

22 (c) TREATED AS A MANUFACTURER.—A product sell23 er shall be treated as the manufacturer of a product and

24 shall be liable for harm to the claimant caused by a prod25 uct as if it were the manufacturer of the product if—
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1 (1) the manufacturer is not subject to service of

2 process under the laws of any State in which the ac3 tion might have been brought; or

4 (2) the court determines that the claimant

5 would be unable to enforce a judgment against the

6 manufacturer.

7 SEC. 303. UNIFORM STANDARDS FOR AWARD OF PUNITIVE

8 DAMAGES.

9 (a) GENERAL RULE.—Punitive damages may, if oth10 erwise permitted by applicable law, be awarded in any

11 product liability action to any claimant who establishes by

12 clear and convincing evidence that the harm suffered was

13 the result of conduct manifesting a manufacturer’s or

14 product seller’s conscious, flagrant indifference to the

15 safety of those persons who might be harmed by a product.

16 A failure to exercise reasonable care in choosing among

17 alternative product designs, formulations, instructions, or

18 warnings is not of itself such conduct. Except as provided

19 in subsection (b), punitive damages may not be awarded

20 in the absence of a compensatory award.

21 (b) DEATH.—In any civil action in which the alleged

22 harm to the claimant is death and the applicable State

23 law provides, or has been construed to provide, for dam24 ages only punitive in nature, a defendant may be liable

25 for any such damages regardless of whether a claim is as-
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1 serted under this section. The recovery of any such dam2 ages shall not bar a claim under this section.

3 (c) PUNITIVE DAMAGES NOT TO BE AWARDED.—

4 (1) DRUGS AND DEVICES.—

5 (A) GENERAL RULE.—Punitive damages

6 shall not be awarded pursuant to this section

7 against a manufacturer or product seller of a

8 drug (as defined in section 201(g)(1) of the

9 Federal Food, Drug, and Cosmetic Act (21

10 U.S.C. 321(g)(1)) or device (as defined under

11 section 201(h) of the Federal Food, Drug, and

12 Cosmetic Act (21 U.S.C. 321(h)) which caused

13 the claimant’s harm where—

14 (i) such drug or device was subject to

15 pre-market approval by the Food and

16 Drug Administration with respect to the

17 safety of the formulation or performance of

18 the aspect of such drug or device which

19 caused the claimant’s harm or the ade20 quacy of the packaging or labeling of such

21 drug or device, and such drug was ap22 proved by the Food and Drug Administra23 tion; or

24 (ii) the drug is generally recognized as

25 safe and effective pursuant to conditions
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1 established by the Food and Drug Admin2 istration and applicable regulations, includ3 ing packaging and labeling regulations.

4 (B) EXCEPTION.—The subparagraph (A)

5 shall not apply in any case in which the defend6 ant withheld from or misrepresented to the

7 Food and Drug Administration or any other

8 agency or official of the Federal Government in9 formation that is material and relevant to the

10 performance of such drug or device, or in any

11 case in which the defendant made an illegal

12 payment to an official of the Food and Drug

13 Administration for the purpose of securing ap14 proval of such drug or device.

15 (2) AIRCRAFT.—Punitive damages shall not be

16 awarded pursuant to this section against a manufac17 turer of an aircraft which caused the claimant’s

18 harm where—

19 (A) such aircraft was subject to pare-mar20 ket certification by the Federal Aviation Admin21 istration with respect to the safety of the design

22 or performance of the aspect of such aircraft

23 which caused the claimant’s harm or the ade24 quacy of the warnings regarding the operation

25 or maintenance of such aircraft;
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1 (B) the aircraft was certified by the Fed2 eral Aviation Administration under the Federal

3 Aviation Act of 1958 (49 App. U.S.C. 1301 et

4 seq.); and

5 (C) the manufacturer of the aircraft com6 plied, after delivery of the aircraft to a user,

7 with Federal Aviation Administration require8 ments and obligations with respect to continu9 ing airworthiness, including the requirement to

10 provide maintenance and service information re11 lated to airworthiness whether or not such in12 formation is used by the Federal Aviation Ad13 ministration in the preparation of mandatory

14 maintenance, inspection, or repair directives.

15 This paragraph shall not apply in any case in which

16 the defendant withheld from or misrepresented to

17 the Federal Aviation Administration information

18 that is material and relevant to the performance or

19 the maintenance or operation of such aircraft.

20 (d) SEPARATE PROCEEDING.—At the request of the

21 manufacturer or product seller, the trier of fact shall con22 sider in a separate proceeding (1) whether punitive dam23 ages are to be awarded and the amount of such award,

24 or (2) the amount of punitive damages following a deter25 mination of punitive liability. If a separate proceeding is
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1 requested, evidence relevant only to the claim of punitive

2 damages, as determined by applicable State law, shall be

3 inadmissible in any proceeding to determine whether com4 pensatory damages are to be awarded.

5 (e) AMOUNT.—In determining the amount of punitive

6 damages, the trier of fact shall consider all relevant evi7 dence, including—

8 (1) the financial condition of the manufacturer

9 or product seller;

10 (2) the severity of the harm caused by the con11 duct of the manufacturer or product seller;

12 (3) the duration of the conduct or any conceal13 ment of it by manufacturer or product seller;

14 (4) the profitability of the conduct to the manu15 facturer or product seller;

16 (5) the number of products sold by the manu17 facturer or product seller of the kind causing the

18 harm complained of by the claimant;

19 (6) awards of punitive or exemplary damages to

20 persons similarly situated to the claimant;

21 (7) prospective awards of compensatory dam22 ages to persons similarly situated to the claimant;

23 (8) any criminal penalties imposed on the man24 ufacturer or product seller as a result of the conduct

25 complained of by the claimant; and
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1 (9) the amount of any civil fines assessed

2 against the defendant as a result of the conduct

3 complained of by the claimant.

4 SEC. 304. UNIFORM TIME LIMITATIONS ON LIABILITY.

5 (a) GENERAL RULE.—Any civil action subject to this

6 title shall be barred unless the complaint is filed within

7 two years of the time the claimant discovered or, in the

8 exercise of reasonable care, should have discovered the

9 harm and its cause, except that any such action of a per10 son under legal disability may be filed within two years

11 after the disability ceases. If the commencement of such

12 an action is stayed or enjoined, the running of the statute

13 of limitations under this section shall be suspended for the

14 period of the stay or injunction.

15 (b) SPECIFIC LIMITATIONS.—

16 (1) 25 YEARS.—Any civil action subject to this

17 title shall be barred if a product which is a capital

18 good is alleged to have caused harm which is not a

19 toxic harm unless the complaint is served and filed

20 within twenty-five years after the time of delivery of

21 the product. This subsection shall apply only if the

22 court determines that the claimant has received or

23 would be eligible to receive compensation under any

24 State or Federal workers’ compensation law for

25 harm caused by the product.
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1 (2) TRANSPORTATION.—A motor vehicle, vessel,

2 aircraft, or railroad used primarily to transport pas3 sengers for hire shall not be subject to this sub4 section.

5 (3) DEFINITIONS.—As used in this section—

6 (A) the term ‘‘time of delivery’’ means the

7 time when a product is delivered to its first

8 purchaser or lessee who was not involved in the

9 business of manufacturing or selling such prod10 uct or using it as a component part of another

11 product to be sold;

12 (B) the term ‘‘capital good’’ means any

13 product, or any component of any such product,

14 which is of a character subject to allowance for

15 depreciation under the Internal Revenue Code

16 of 1986, and which was—

17 (i) used in a trade or business;

18 (ii) held for the production of income;

19 or

20 (iii) sold or donated to a governmental

21 or private entity for the production of

22 goods, for training, for demonstration, or

23 for other similar purposes; and

24 (C) the term ‘‘toxic harm’’ means harm

25 which is functional impairment, illness, or death
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1 of a human being resulting from exposure to an

2 object, substance, mixture, raw material, or

3 physical agent of particular chemical composi4 tion.

5 (c) CONTRIBUTION AND INDEMNITY.—Nothing in

6 this section shall affect the right of any person who is sub7 ject to liability for harm under this Act to seek and obtain

8 contribution or indemnity from any other person who is

9 responsible for such harm.

10 SEC. 305. UNIFORM STANDARDS FOR OFFSET OF WORKERS’

11 COMPENSATION BENEFITS.

12 (a) GENERAL RULE.—In any civil action subject to

13 this title in which damages are sought for harm for which

14 the person injured is or would have been entitled to receive

15 compensation under any State or Federal workers’ com16 pensation law, any damages awarded shall be reduced by

17 the sum of the amount paid as workers’ compensation ben18 efits for such harm and the present value of all workers’

19 compensation benefits to which the employee is or would

20 be entitled for such harm. The determination of workers’

21 compensation benefits by the trier of fact in a civil action

22 subject to this title shall have no binding effect on and

23 shall not be used as evidence in any other proceeding.

24 (b) NOTICE.—A claimant in a civil action subject to

25 this title who is or may be eligible to receive compensation
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1 under any State or Federal workers’ compensation law

2 must provide written notice of the filing of the civil action

3 to the claimant’s employer within 30 days of the filing.

4 The written notice shall include information regarding the

5 date and court in which the civil action was filed, the

6 names and addresses of all plaintiffs and defendants ap7 pearing on the complaint, the court docket number if

8 available, and a copy of the complaint which was filed in

9 the civil action. A copy of such written notice shall be filed

10 with the court and served upon all parties to the action.

11 A claimant’s failure to comply with the requirements of

12 this subsection shall suspend the deadlines for filing re13 sponsive pleadings and commencing discovery in the civil

14 action, until the claimant complies with the requirements

15 of this subsection.

16 (c) STAY OF ACTION.—In any civil action subject to

17 this title in which damages are sought for harm for which

18 the person injured is entitled to receive compensation

19 under any State or Federal workers’ compensation law,

20 the action shall, on application of the claimant made at

21 claimant’s sole discretion, be stayed until such time as the

22 full amount payable as workers’ compensation benefits has

23 been finally determined under such workers’ compensation

24 law.
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1 (d) EMPLOYER AND WORKERS’ COMPENSATION CAR2 RIER.—

3 (1) SUBROGATION, CONTRIBUTION, OR IMPLIED

4 INDEMNITY.—Except as provided in paragraph (2),

5 unless the manufacturer or product seller has ex6 pressly agreed to indemnify or hold an employer

7 harmless for harm to an employee caused by a prod8 uct, neither the employer nor the workers’ com9 pensation insurance carrier of the employer shall

10 have a right of subrogation, contribution or implied

11 indemnity against the manufacturer or product sell12 er or a lien against the claimant’s recovery from the

13 manufacturer or product seller if the harm is one for

14 which a civil action for harm caused by a product

15 may be brought pursuant to this Act.

16 (2) FAULT NOT THE CAUSE OF EMPLOYER OR

17 CO-EMPLOYEES.—Paragraph (1) shall not apply if

18 the employer or the workers’ compensation insurer

19 of the employer establishes, and the trier of fact de20 termines, that the claimant’s harm was not in any

21 way caused by the fault of the claimant’s employer

22 or coemployees. In order to establish this fact an

23 employer or the workers’ compensation insurer of

24 the employer may intervene in a civil action filed by

25 an employee at any time after the filing of a com-
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1 plaint. In the event that the civil action is resolved

2 prior to obtaining a verdict by the trier of fact, any

3 resolution of the action by settlement or other means

4 shall afford the employer or the workers’ compensa5 tion insurer of the employer an opportunity to par6 ticipate and to assert a right of subrogation, con7 tribution, or implied indemnity if the claimant’s

8 harm was not in any way caused by the fault of the

9 claimant’s employer or coemployees.

10 (e) MISCELLANEOUS RULES.—

11 (1) THIRD-PARTY TORTFEASOR.—Except as

12 provided in paragraph (3), in any civil action subject

13 to this title in which damages are sought for harm

14 for which the person injured is or would have been

15 entitled to receive compensation under any State or

16 Federal workers’ compensation law, no third-party

17 tortfeasor may maintain any action for implied in18 demnity or contribution against the employer, any

19 coemployee, or the exclusive representative of the

20 person who was injured.

21 (2) CERTAIN ACTIONS.—Nothing in this Act

22 shall be construed to affect any provision of a State

23 or Federal workers’ compensation law which pro24 hibits a person who is or would have been entitled

25 to receive compensation under any such law, or any
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•HR 1954 IH

1 other person whose claim is or would have been de2 rivative from such a claim, from recovering for harm

3 caused by a product in any action other than a

4 workers’ compensation claim against a present or

5 former employer or workers’ compensation insurer of

6 the employer, any coemployee, or the exclusive rep7 resentative of the person who was injured. Any ac8 tion other than such a workers’ compensation claim

9 shall be prohibited, except that nothing in this Act

10 shall be construed to affect any State or Federal

11 workers’ compensation law which permits recovery

12 based on a claim of an intentional tort by the em13 ployer or coemployee, where the claimant’s harm was

14 caused by such an intentional tort.

15 (3) EXCEPTION.—Paragraph (1) shall not

16 apply and applicable State law shall control if the

17 employer or the workers’ compensation insurer of

18 the employer, in a civil action subject to this title,

19 asserts or attempts to assert, because of subsection

20 (d), a right of subrogation, contribution, or implied

21 indemnity against the manufacturer or product sell22 er or a lien against the claimant’s recovery from the

23 manufacturer or product seller.
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•HR 1954 IH

1 SEC. 306. SEVERAL LIABILITY FOR NONECONOMIC DAM2 AGES.

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

4 the liability of each defendant for noneconomic damages

5 shall be several only and shall not be joint. Each defendant

6 shall be liable only for the amount of noneconomic dam7 ages allocated to such defendant in direct proportion to

8 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) ROLE OF TRIER OF FACT.—For purposes of this

13 section, the trier of fact shall determine the proportion of

14 responsibility of each party for the claimant’s harm.

15 (c) DEFINITIONS.—As used in this section—

16 (1) the term ‘‘noneconomic damages’’ means

17 subjective, nonmonetary losses including, but not

18 limited to, pain, suffering, inconvenience, mental

19 suffering, emotional distress, loss of society and

20 companionship, loss of consortium, injury to reputa21 tion and humiliation; the term does not include ob22 jectively verifiable monetary losses including, but not

23 limited, medical expenses, loss of earnings, burial

24 costs, loss of use of property, costs of repair or re25 placement, costs of obtaining substitute domestic

26 services, rehabilitation and training expenses, loss of
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•HR 1954 IH

1 employment, or loss of business or employment op2 portunities; and

3 (2) the term ‘‘product liability action’’ includes

4 any action involving a claim, third-party claim,

5 cross-claim, counterclaim, or contribution claim in a

6 civil action in which a manufacturer or product sell7 er is found liable for harm caused by a product.

8 SEC. 307. DEFENSES INVOLVING INTOXICATING ALCOHOL

9 OR DRUGS.

10 (a) GENERAL RULE.—In any civil action subject to

11 this Act in which all defendants are manufacturers or

12 product sellers, it shall be a complete defense to such ac13 tion that the claimant was intoxicated or was under the

14 influence of intoxicating alcohol or any drug and that as

15 a result of such intoxication or the influence of the alcohol

16 or drug the claimant was more than 50 percent respon17 sible for the accident or event which resulted in such

18 claimant’s harm.

19 (b) UNDER THE INFLUENCE.—In any civil action

20 subject to this Act in which not all defendants are manu21 facturers or product sellers and the trier of fact deter22 mines that no liability exists against those defendants who

23 are not manufacturers or product sellers, the court shall

24 enter a judgment notwithstanding the verdict in favor of

25 any defendant which is a manufacturer or product seller
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•HR 1954 IH

1 if it is proved that the claimant was intoxicated or was

2 under the influence of intoxicating alcohol or any drug and

3 that as a result of such intoxication or the influence of

4 the alcohol or drug the claimant was more than 50 percent

5 responsible for the accident or event which resulted in

6 such claimant’s harm.

7 (c) DETERMINATION.—

8 (1) STATE LAW.—For purposes of this section,

9 the determination of whether a person was intoxi10 cated or was under the influence of intoxicating alco11 hol or any drug shall be made pursuant to applicable

12 State law.

13 (2) DEFINITION.—As used in this section, the

14 term ‘‘drug’’ means any non-over-the-counter drug

15 which has not been prescribed by a physician for use

16 by the claimant.

Æ

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