I
104TH CONGRESS
1ST SESSION
H. R. 917
To establish procedures for product liability actions.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 13, 1995
Mr. OXLEY introduced the following bill; which was referred to the Committee
on the Judiciary and, in addition, to the Committee on Commerce, for
a period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the com-
mittee concerned
A BILL
To establish procedures for product liability actions.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Common Sense Prod-
uct Liability Reform Act’’.
SEC. 2. PREEMPTION.
(a) GENERAL RULE.—This Act governs any product
liability action brought in any State or Federal court
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 commercial
loss shall be governed only by applicable commercial or
contract law.
(b) STATE LAW.—This Act supersedes State law only
to the extent that State law applies to an issue covered
by this Act. Any issue that is not covered by this Act shall
be governed by otherwise applicable State or Federal law.
(c) CONSTRUCTION.—Nothing in this Act shall be
construed to—
(1) waive or affect any defense of sovereign im-
munity asserted by any State under any law,
(2) supersede or affect any Federal law, except
the Federal Employees Compensation Act and the
Longshoremen’s and Harborworker’s Compensation
Act,
(3) waive or affect any defense of sovereign im-
munity asserted by the United States,
(4) preempt State choice-of-law rules with re-
spect to claims brought by a foreign nation or a citi-
zen of a foreign nation,
(5) affect the right of any court to transfer
venue or to apply the law of a foreign nation or to
dismiss a claim of a foreign nation or of a citizen
of a foreign nation on the ground of inconvenient
forum, or
(6) supersede any statute or common law which
creates a cause of action for civil damages or civil
penalties, cleanup costs, injunctions, restitution, cost
recovery, punitive damages, or any other form of re-
lief for contamination or pollution of the environ-
ment or the threat of such contamination or pollu-
tion.
For purposes of paragraph (6), the term ‘‘environment’’
has the meaning given to such term in section 101(8) of
the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (42 U.S.C. 9601(8)).
(d) VACCINE INJURY.—
(1) GENERAL RULE.—To the extent that title
XXI of the Public Health Service Act establishes a
Federal rule of law applicable to a civil action
brought for a vaccine-related injury or death—
(A) this Act does not affect the application
of the rule of law to such an action, and
(B) any rule of law prescribed by this Act
in conflict with a rule of law of such title XXI
shall not apply to such an action.
(2) APPLICABILITY.—If there is an aspect of a
civil action brought for a vaccine-related injury or
death to which a Federal rule of law under title XXI
of the Public Health Service Act does not apply,
then this Act or otherwise applicable law (as deter-
mined under this section) will apply to such aspect
of such action.
(e) DRUGS AND DEVICES.—
(1) GENERAL RULE.—A product liability action
may not be brought against a manufacturer or prod-
uct seller of a drug (as defined in section 201(g)(1)
of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 321(g)(1)) or medical device (as defined in
section 201(h) of the Federal Food, Drug, and Cos-
metic Act (21 U.S.C. (h)) which caused the claim-
ant’s harm where—
(A) such drug or device was subject to pre-
market approval by the Food and Drug Admin-
istration with respect to the safety of the for-
mulation or performance of the aspect of such
drug or device which caused the claimant’s
harm or the adequacy of the packaging or label-
ing of such drug or device, and such drug was
approved by the Food and Drug Administra-
tion; or
(B) the drug is generally recognized as
safe and effective pursuant to conditions estab-
lished by the Food and Drug Administration
and applicable regulations, including packaging
and labeling regulations.
(2) EXCEPTION.—Paragraph (1) shall not
apply in any case in which the defendant, before or
after premarket approval of a drug or device—
(A) intentionally and wrongfully withheld
from or misrepresented to the Food and Drug
Administration information concerning such
drug or device required to be submitted under
the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.) or section 351 of the Public
Health Service Act (42 U.S.C. 262) that is ma-
terial and relevant to the harm suffered by the
claimant, or
(B) made an illegal payment to an official
or employee of the Food and Drug Administra-
tion for the purpose of securing or maintaining
approval of such drug or device.
SEC. 3. PRODUCT SELLER LIABILITY.
(a) GENERAL RULE.—Except as provided in sub-
section (b), in a product liability action, a product seller
shall be liable to a claimant for harm only if the claimant
establishes that—
(1)(A) the product which allegedly caused the
harm complained of was sold by the product seller,
(B) the product seller failed to exercise reason-
able care with respect to the product, and
(C) such failure to exercise reasonable care was
a proximate cause of the claimant’s harm,
(2)(A) the product seller made an express war-
ranty applicable to the product which allegedly
caused the harm complained of, independent of any
express warranty made by the manufacturer as to
the same product,
(B) the product failed to conform to the war-
ranty, and
(C) the failure of the product to conform to the
warranty caused the claimant’s harm, or
(3) the product seller engaged in intentional
wrongdoing as determined under applicable State
law and such intentional wrongdoing was a proxi-
mate cause of the harm complained of by the
claimant.
For purposes of paragraph (1)(B), a product seller shall
not be considered to have failed to exercise reasonable care
with respect to a product based upon an alleged failure
to inspect a product where there was no reasonable oppor-
tunity to inspect the product in a manner which would,
in the exercise of reasonable care, have revealed the aspect
of the product which allegedly caused the claimant’s harm.
(b) SPECIAL RULE.—In a product liability action, a
product seller shall be liable for harm to the claimant
caused by such product as if the product seller were the
manufacturer of such product if—
(1) the manufacturer is not subject to service of
process under the laws of the State in which the
claimant brings the action, or
(2) the court determines that the claimant
would be unable to enforce a judgment against the
manufacturer.
SEC. 4. COMPLIANCE WITH FEDERAL AGENCY STANDARD.
(a) IN GENERAL.—If a product liability action is
brought against a manufacturer for harm caused by a
product of the manufacturer, the manufacturer shall have
a complete defense to such action if the manufacturer can
show that as produced by the manufacturer the product
complied with a product standard established by a Federal
agency or that the label on such product complied with
a labeling requirement of a Federal agency, except that
if the plaintiff in such action can show that the manufac-
turer withheld information which directly relates to the
harm caused by the product, compliance with such label
requirement shall not be a defense for the manufacturer.
(b) VOLUNTARY STANDARDS.—If a product liability
action is brought against a manufacturer for harm caused
by a product of the manufacturer, the manufacturer shall
have a complete defense to such action if the manufacturer
can show that as produced by the manufacturer the prod-
uct complied with a voluntary product standard estab-
lished by a Federal agency unless the plaintiff in the ac-
tion can show that the harm was caused by the gross neg-
ligence or maliciousness of the manufacturer.
SEC. 5. STANDARDS OF LIABILITY.
(a) STRICT LIABILITY.—A manufacturer or product
seller may be held liable in a product liability action for
harm caused by a product only if the manufacturer or
product seller was at fault in connection with such harm.
(b) LIABILITY DEFENSES.—In a product liability ac-
tion the defenses of contributory negligence, comparative
negligence, assumption of risk, and product alteration or
misuse shall be available to the defendant to the action.
(c) SEVERAL LIABILITY FOR NONECONOMIC DAM-
AGES.—In any product liability action, the liability of each
manufacturer or seller of the product involved in such ac-
tion shall be several only and shall not be joint for non-
economic damages. Such manufacturer or seller shall be
liable only for the amount of noneconomic damages allo-
cated to such manufacturer or seller in direct proportion
to such manufacturer’s or such seller’s percentage of re-
sponsibility as determined by the trier of fact.
SEC. 6. DAMAGES.
(a) NON-ECONOMIC DAMAGES.—In a product liabil-
ity action the award of non-economic damages may not
exceed the greater of $250,000 or an amount equal to
twice the actual economic harm caused.
(b) INSTALLMENT PAYMENT.—Damages awarded in
a product liability action may be paid, at the request of
the defendant and with the consent of the court, in install-
ments not greater than 1 year apart. Such installment
payments would cease if the plaintiff in the action dies
leaving no dependents.
(c) PUNITIVE DAMAGES.—
(1) GENERAL LIMITATION.—Punitive damages
may, to the extent permitted by applicable State law,
be awarded against a manufacturer or product seller
in a product liability action if the claimant estab-
lishes by clear and convincing evidence that the
harm suffered was the result of conduct manifesting
actual malice.
(2) LIMITATION ON AMOUNT.—The amount of
punitive damages that may be awarded for a claim
in any civil action subject to this section shall not
exceed 3 times the amount awarded to the claimant
for the economic injury on which such claim is
based, or $250,000, whichever is greater.
(3) FUND.—If punitive damages are awarded in
a product liability action, 85 percent of such dam-
ages shall be deposited—
(A) if the action was brought in a Federal
court, in a fund in the United States Treasury
available for product liability actions brought in
Federal courts, or
(B) if the action was brought in a State
court, in the treasury of the State in which the
product harm involved in such action occurred.
SEC. 7. ALCOHOL AND DRUG DEFENSE.
(a) GENERAL RULE.—In any product liability action,
it shall be a complete defense to such action that—
(1) the claimant was intoxicated or was under
the influence of intoxicating alcohol or any drug, and
(2) the claimant as a result of such intoxication
or the influence of the alcohol or drug was more
than 50 percent responsible for causing the accident
or event which resulted in such claimant’s harm.
(b) CONSTRUCTION.—For purposes of subsection
(a)—
(1) the determination of whether a person was
intoxicated or was under the influence of intoxicat-
ing alcohol or any drug shall be made pursuant to
applicable State law, and