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the claimant if the jury found the evidence to
be credible.
(2) DISCOVERY MADE PRIOR TO A RULING ON
A MOTION FOR SUMMARY JUDGMENT.—If, under ap-
plicable rules, the court permits discovery prior to a
ruling on a motion for summary judgment governed
by section 5(d), such discovery shall be limited solely
to establishing whether a genuine issue of material
fact exists as to the applicable elements set forth in
paragraphs (1) and (2) of section 5(d).
(3) DISCOVERY WITH RESPECT TO A BIOMATE-
RIALS SUPPLIER.—A biomaterials supplier shall be
subject to discovery in connection with a motion
seeking dismissal or summary judgment on the basis
of the inapplicability of section 5(d) or the failure to
establish the applicable elements of section 5(d) sole-
ly to the extent permitted by the applicable Federal
or State rules for discovery against nonparties.
(e) DISMISSAL WITH PREJUDICE.—An order grant-
ing a motion to dismiss or for summary judgment pursu-
ant to this section shall be entered with prejudice, except
insofar as the moving defendant may be rejoined to the
action as provided in section 7.
(f) MANUFACTURER CONDUCT OF LITIGATION.—The
manufacturer of an implant that is the subject of an ac-
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tion covered under this Act shall be permitted to conduct
litigation on any motion for summary judgment or dismis-
sal filed by a biomaterials supplier who is a defendant
under this section on behalf of such supplier if the manu-
facturer and any other defendant in such action enter into
a valid and applicable contractual agreement under which
the manufacturer agrees to bear the cost of such litigation
or to conduct such litigation.
SEC. 7. SUBSEQUENT IMPLEADER OF DISMISSED BIOMATE-
RIALS SUPPLIER.
(a) IMPLEADING
OF DISMISSED DEFENDANT.—A
court, upon motion by a manufacturer or a claimant with-
in 90 days after entry of a final judgment in an action
by the claimant against a manufacturer, and notwith-
standing any otherwise applicable statute of limitations,
may implead a biomaterials supplier who has been dis-
missed from the action pursuant to this Act if—
(1) the manufacturer has made an assertion, ei-
ther in a motion or other pleading filed with the
court or in an opening or closing statement at trial,
or as part of a claim for contribution or indemnifica-
tion, and the court finds based on the court’s inde-
pendent review of the evidence contained in the
record of the action, that under applicable law—
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(A) the negligence or intentionally tortious
conduct of the dismissed supplier was an actual
and proximate cause of the harm to the claim-
ant; and
(B) the manufacturer’s liability for dam-
ages should be reduced in whole or in part be-
cause of such negligence or intentionally
tortious conduct; or
(2) the claimant has moved to implead the sup-
plier and the court finds, based on the court’s inde-
pendent review of the evidence contained in the
record of the action, that under applicable law—
(A) the negligence or intentionally tortious
conduct of the dismissed supplier was an actual
and proximate cause of the harm to the claim-
ant; and
(B) the claimant is unlikely to be able to
recover the full amount of its damages from the
remaining defendants.
(b) STANDARD OF LIABILITY.—Notwithstanding any
preliminary finding under subsection (a), a biomaterials
supplier who has been impleaded into an action covered
by this Act, as provided for in this section—
(1) may, prior to entry of judgment on the
claim against it, supplement the record of the pro-
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ceeding that was developed prior to the grant of the
motion for impleader under subsection (a); and
(2) may be found liable to a manufacturer or
a claimant only to the extent required and permitted
by any applicable State or Federal law other than
this Act.
(c) DISCOVERY.—Nothing in this section shall give
a claimant or any other party the right to obtain discovery
from a biomaterials supplier at any time prior to grant
of a motion for impleader beyond that allowed under sec-
tion 6.
SEC. 8. EFFECTIVE DATE.
This Act shall apply to all civil actions covered under
this Act that are commenced on or after the date of enact-
ment of this Act, including any such action with respect
to which the harm asserted in the action or the conduct
that caused the harm occurred before the date of enact-
ment of this Act.
Passed the House of Representatives July 30 (legis-
lative day, July 29), 1998.
Attest:
ROBIN H. CARLE,
Clerk.