In the Senate of the United States,
May 10 (legislative day, May 1), 1995.
Resolved, That the bill from the House of Representa-
tives (H.R. 956) entitled ‘‘An Act to establish legal standards
and procedures for product liability litigation, and for other
purposes’’, do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Product Liability Fair-
ness Act of 1995’’.
TITLE I—PRODUCT LIABILITY
SEC. 101. DEFINITIONS.
For purposes of this Act, the following definitions shall
apply:
(1) ACTUAL MALICE.—The term ‘‘actual malice’’
means specific intent to cause serious physical injury,
illness, disease, or damage to property, or death.
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(2) CLAIMANT.—The term ‘‘claimant’’ means
any person who brings a product liability action and
any person on whose behalf such an action is brought.
If an action is brought through or on behalf of—
(A) an estate, the term includes the dece-
dent; or
(B) a minor or incompetent, the term in-
cludes the legal guardian of the minor or incom-
petent.
(3) CLAIMANT’S BENEFITS.—The term ‘‘claim-
ant’s benefits’’ means the amount paid to an em-
ployee as workers’ compensation benefits.
(4) CLEAR AND CONVINCING EVIDENCE.—
(A) IN GENERAL.—Subject to subparagraph
(A), the term ‘‘clear and convincing evidence’’ is
that measure of 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.
(B) DEGREE
OF
PROOF.—The degree of
proof required to satisfy the standard of clear
and convincing evidence shall be—
(i) greater than the degree of proof re-
quired to meet the standard of preponder-
ance of the evidence; and
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(ii) less than the degree of proof re-
quired to meet the standard of proof beyond
a reasonable doubt.
(5) COMMERCIAL LOSS.—The term ‘‘commercial
loss’’ means any loss or damage to a product itself,
loss relating to a dispute over its value, or consequen-
tial economic loss the recovery of which is governed by
the Uniform Commercial Code or analogous State
commercial law, not including harm.
(6) DURABLE GOOD.—The term ‘‘durable good’’
means any product, or any component of any such
product, which has a normal life expectancy of 3 or
more years or is of a character subject to allowance
for depreciation under the Internal Revenue Code of
1986, and which is—
(A) used in a trade or business;
(B) held for the production of income; or
(C) sold or donated to a governmental or
private entity for the production of goods, train-
ing, demonstration, or any other similar pur-
pose.
(7) ECONOMIC LOSS.—The term ‘‘economic loss’’
means any pecuniary loss resulting from harm (in-
cluding any medical expense loss, work loss, replace-
ment services loss, loss due to death, burial costs, and
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loss of business or employment opportunities), to the
extent that recovery for the loss is permitted under
applicable State law.
(8) HARM.—The term ‘‘harm’’ means any phys-
ical injury, illness, disease, or death, or damage to
property, caused by a product. The term does not in-
clude commercial loss or loss or damage to a product
itself.
(9) INSURER.—The term ‘‘insurer’’ means the
employer of a claimant, if the employer is self-in-
sured, or the workers’ compensation insurer of an em-
ployer.
(10) MANUFACTURER.—The term ‘‘manufac-
turer’’ means—
(A) any person who is engaged in a busi-
ness to produce, create, make, or construct any
product (or component part of a product), and
who designs or formulates the product (or compo-
nent part of the product), or has engaged another
person to design or formulate 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,
before placing the product in the stream of com-
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merce, the product seller produces, creates,
makes, constructs, designs, or formulates, or has
engaged another person to design or formulate,
an aspect of a product (or component part of a
product) made by another person; or
(C) any product seller that is not described
in subparagraph (B) that holds itself out as a
manufacturer to the user of the product.
(11) NONECONOMIC
LOSS.—The term ‘‘non-
economic loss’’—
(A) means subjective, nonmonetary loss re-
sulting from harm, including pain, suffering, in-
convenience, mental suffering, emotional distress,
loss of society and companionship, loss of consor-
tium, injury to reputation, and humiliation;
and
(B) does not include economic loss.
(12) PERSON.—The term ‘‘person’’ means any
individual, corporation, company, association, firm,
partnership, society, joint stock company, or any
other entity (including any governmental entity).
(13) PRODUCT.—
(A) IN
GENERAL.—The term ‘‘product’’
means any object, substance, mixture, or raw
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material in a gaseous, liquid, or solid state
that—
(i) is capable of delivery itself or as an
assembled whole, in a mixed or combined
state, or as a component part or ingredient;
(ii) is produced for introduction into
trade or commerce;
(iii) has intrinsic economic value; and
(iv) is intended for sale or lease to per-
sons for commercial or personal use.
(B) EXCLUSION.—The term ‘‘product’’ does
not include—
(i) tissue, organs, blood, and blood
products used for therapeutic or medical
purposes, except to the extent that such tis-
sue, organs, blood, and blood products (or
the provision thereof) are subject, under ap-
plicable State law, to a standard of liability
other than negligence; and
(ii) electricity, water delivered by a
utility, natural gas, or steam.
(14) PRODUCT
LIABILITY
ACTION.—The term
‘‘product liability action’’ means a civil action
brought on any theory for harm caused by a product.
(15) PRODUCT SELLER.—
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and does not during the lease term or-
dinarily control the daily operations
and maintenance of the product.
(16) STATE.—The term ‘‘State’’ means each of
the several States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Vir-
gin Islands, Guam, American Samoa, and the Com-
monwealth of the Northern Mariana Islands, and any
other territory or possession of the United States, or
any political subdivision thereof.
(17) TIME OF DELIVERY.—The term ‘‘time of de-
livery’’ means the time when a product is delivered
to the first purchaser or lessee of the product that was
not involved in manufacturing or selling the product,
or using the product as a component part of another
product to be sold.
SEC. 102. APPLICABILITY; PREEMPTION.
(a) APPLICABILITY.—
(1) ACTIONS
COVERED.—Subject to paragraph
(2), this title applies to any product liability action
commenced on or after the date of enactment of this
Act, without regard to whether the harm that is the
subject of the action or the conduct that caused the
harm occurred before such date of enactment.
(2) ACTIONS EXCLUDED.—