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.
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 ‘‘Product Liability Fair-
ness Act’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents of this Act is as follows:
TABLE OF CONTENTS
TITLE—I
Page
Sec. 101. Definitions ................................................................................
Sec. 102. Preemption ...............................................................................
Sec. 103. Jurisdiction of Federal courts ..................................................
Sec. 104. Effective date ...........................................................................
TITLE—II
Sec. 201. Expedited product liability settlements ....................................
Sec. 202. Alternative dispute resolution procedures ................................
TITLE—III
Sec. 301. Civil actions ..............................................................................
Sec. 302. Uniform standards of product seller liability ...........................
Sec. 303. Uniform standards for award of punitive damages .................
Sec. 304. Uniform time limitations on liability .......................................
Sec. 305. Uniform standards for offset of workers’ compensation bene-
fits ..........................................................................................................
Sec. 306. Several liability for noneconomic damages ...............................
Sec. 307. Defenses involving intoxicating alcohol or drugs .....................
TITLE I
SEC. 101. DEFINITIONS.
As used in this Act—
(1) the term ‘‘claimant’’ means any person who
brings a civil action pursuant to this Act, and any
person on whose behalf such an action is brought;
if such an action is brought through or on behalf of
an estate, the term includes the claimant’s decedent,
or if it is brought through or on behalf of a minor
or incompetent, the term includes the claimant’s
parent or guardian;
(2) the term ‘‘clear and convincing evidence’’ is
that measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or convic-
tion as to the truth of the allegations sought to be
established; the level of proof required to satisfy
such standard is more than that required under pre-
ponderance of the evidence, but less than that re-
quired for proof beyond a reasonable doubt;
(3) the term ‘‘collateral benefits’’ means all
benefits and advantages received or entitled to be re-
ceived (regardless of any right any other person has
or is entitled to assert for recoupment through sub-
rogation, trust agreement, lien, or otherwise) by any
claimant harmed by a product or by any other per-
son as reimbursement of loss because of harm to
person or property payable or required to be paid to
the claimant, under—
(A) any Federal law or the laws of any
State (other than through a claim for breach of
an obligation or duty); or
(B) any life, health, or accident insurance
or plan, wage or salary continuation plan, or
disability income or replacement service insur-
ance, or any benefit received or to be received
as a result of participation in any pre-paid med-
ical plan or health maintenance organization;
(4) the term ‘‘commerce’’ means trade, traffic,
commerce, or transportation (A) between a place in
a State and any place outside of that State; or (B)
which affects trade, traffic, commerce, or transpor-
tation described in clause (A);
(5) the term ‘‘commercial loss’’ means economic
injury, whether direct, incidental, or consequential,
including property damage and damage to the prod-
uct itself;
(6) the term ‘‘economic loss’’ means any pecu-
niary loss resulting from harm which is allowed
under State law;
(7) the term ‘‘exercise of reasonable care’’
means conduct of a person of ordinary prudence and
intelligence using the attention, precaution, and
judgment that society expects of its members for the
protection of their own interests and the interests of
others;
(8) the term ‘‘harm’’ means any harm recog-
nized under the law of the State in which the civil
action is maintained, other than loss or damage
caused to a product itself, or commercial loss;
(9) the term ‘‘manufacturer’’ means (A) any
person who is engaged in a business to produce, cre-
ate, make, or construct any product (or component
part of a product) and who designs or formulates
the product (or component 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 with respect to all aspects of a prod-
uct (or component part of a product) which are cre-
ated or affected when, before placing the product in
the stream of commerce, the product seller produces,
creates, makes, or constructs and designs or formu-
lates, or has engaged another person to design or
formulate, an aspect of a product (or component
part of a product) made by another; or (C) any
product seller not described in clause (B) which
holds itself out as a manufacturer to the user of a
product;
(10) the term ‘‘noneconomic loss’’ means loss
caused by a product other than economic loss or
commercial loss;
(11) the term ‘‘person’’ includes any govern-
mental entity;
(12) the term ‘‘preponderance of the evidence’’
is that measure or degree of proof which, by the
weight, credit, and value of the aggregate evidence
on either side, establishes that it is more probable
than not that a fact occurred or did not occur;
(13) the term ‘‘product’’ means any object, sub-
stance, mixture, or raw material in a gaseous, liquid,
or solid state (A) which is capable of delivery itself
or as an assembled whole, in a mixed or combined
state, or as a component part or ingredient; (B)
which is produced for introduction into trade or
commerce; (C) which has intrinsic economic value;
and (D) which is intended for sale or lease to per-
sons for commercial or personal use; the term does
not include human tissue, blood and blood products,
or organs unless specifically recognized as a product
pursuant to State law;
(14) the term ‘‘product seller’’ means a person
who, in the course of a business conducted for that
purpose, sells, distributes, leases, prepares, blends,
packages, labels, or otherwise is involved in placing
a product in the stream of commerce, or who in-
stalls, repairs, or maintains the harm-causing aspect
of a product; the term does not include—
(A) a seller or lessor of real property;
(B) a provider of professional services in
any case in which the sale or use of a product
is incidental to the transaction and the essence
of the transaction is the furnishing of judg-
ment, skill, or services; or
(C) any person who—
(i) acts in only a financial capacity
with respect to the sale of a product; and
(ii) leases a product under a lease ar-
rangement in which the selection, posses-
sion, maintenance, and operation of the
product are controlled by a person other
than the lessor; and
(15) the term ‘‘State’’ means any State of the
United States, the District of Columbia, the Com-
monwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, the Virgin Islands,
Guam, American Samoa, and any other territory or
possession of the United States, or any political sub-
division thereof.
SEC. 102. PREEMPTION.
(a) IN GENERAL.—This Act governs any civil action
brought 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 loss
or damage to a product itself or for commercial loss is
not subject to this Act and shall be governed by applicable
commercial or contract law.
(b) STATE LAW.—This Act supersedes any State law
regarding recovery for harm caused by a product only to
the extent that this Act establishes a rule of law applicable
to any such recovery. Any issue arising under this Act that
is not governed by any such rule of law shall be governed
by applicable State or Federal law.
(c) CONSTRUCTION.—Nothing in this Act shall be
construed to—
tion or pollution of the environment, or the threat of
such contamination or pollution.
(d) DEFINITION.—As used in paragraph (7), the
term ‘‘environment’’ has the meaning given to such term
in section 101(8) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601(8)).
(e) LEGISLATIVE HISTORY.—This Act shall be con-
strued and applied after consideration of its legislative his-
tory to promote uniformity of law in the various jurisdic-
tions.
SEC. 103. JURISDICTION OF FEDERAL COURTS.
The district courts of the United States shall not
have jurisdiction over any civil action pursuant to this Act,
based on section 1331 or 1337 of title 28, United States
Code.
SEC. 104. EFFECTIVE DATE.
(a) IN GENERAL.—This Act shall take effect on the
date of its enactment and shall apply to all civil actions
pursuant to this Act commenced on or after such date,
including any action in which the harm or the conduct
which caused the harm occurred before the effective date
of this Act.
(b) SHORTER PERIOD.—If any provision of this Act
would shorten the period during which a manufacturer or
product seller would otherwise be exposed to liability, the
claimant may, notwithstanding the otherwise applicable
time period, bring any civil action pursuant to this Act
within one year after the effective date of this Act.
TITLE II
SEC. 201. EXPEDITED PRODUCT LIABILITY SETTLEMENTS.
(a) IN GENERAL.—Any claimant may bring a civil
action for damages against a person for harm caused by
a product pursuant to applicable State law, except to the
extent such law is superseded by this title.
(b) SETTLEMENT.—
(1) CLAIMANT.—Any claimant may, in addition
to any claim for relief made in accordance with
State law, include in such claimant’s complaint an
offer of settlement for a specific dollar amount.
(2) DEFENDANT.—The defendant may make an
offer of settlement for a specific dollar amount with-
in sixty days after service of the claimant’s com-
plaint or within the time permitted pursuant to
State law for a responsive pleading, whichever is
longer, except that if such pleading includes a mo-
tion to dismiss in accordance with applicable law,
the defendant may tender such relief to the claimant
within ten days after the court’s determination re-
garding such motion.
(3) COURT ACTION.—
(A) EXTENSION ORDER.—In any case in
which an offer of settlement is made pursuant
to paragraph (1) or (2), the court may, upon
motion made prior to the expiration of the ap-
plicable period for response, enter an order ex-
tending such period. Any such order shall con-
tain a schedule for discovery of evidence mate-
rial to the issue of the appropriate amount of
relief, and shall not extend such period for more
than sixty days. Any such motion shall be ac-
companied by a supporting affidavit of the mov-
ing party setting forth the reasons why such ex-
tension is necessary to promote the interests of
justice and stating that the information likely
to be discovered is material, and is not, after
reasonable inquiry, otherwise available to the
moving party.
(B) DEFENDANT NOT ACCEPTING.—If the
defendant, as offeree, does not accept the offer
of settlement made by a claimant within the
time permitted pursuant to State law for a re-
sponsive pleading or, if such pleading includes
a motion to dismiss in accordance with applica-
ble law, within thirty days after the court’s de-
termination regarding such motion, and a ver-
dict is entered in such action equal to or great-
er than the specific dollar amount of such offer
of settlement, the court shall enter judgment
against the defendant and shall include in such
judgment an amount for the claimant’s reason-
able attorney’s fees and costs. Such fees shall
be offset against any fees owed by the claimant
to the claimant’s attorney by reason of the
verdict.
(C) CLAIMANT
NOT
ACCEPTING.—If the
claimant, as offeree, does not accept the offer
of settlement made by a defendant in accord-
ance with subsection (c) of this section within
thirty days after the date on which such offer
is made and a verdict is entered in such action
equal to or less than the specific dollar amount
of such offer of settlement, the court shall re-
duce the amount of the verdict in such action
by an amount equal to the reasonable attorney’s
fees and costs owed by the defendant to the de-
fendant’s attorney by reason of the verdict, ex-
cept that the amount of such reduction shall
not exceed that portion of the verdict which is
allocable to noneconomic loss and economic loss
for which the claimant has received or will re-
ceive collateral benefits.
(D) ATTORNEY’S FEES.—For purposes of
this paragraph, attorney’s fees shall be cal-
culated on the basis of an hourly rate which
should not exceed that which is considered ac-
ceptable in the community in which the attor-
ney practices, considering the attorney’s quali-
fications and experience and the complexity of
the case.
SEC. 202. ALTERNATIVE DISPUTE RESOLUTION PROCE-
DURES.
(a) IN GENERAL.—In lieu of or in addition to making
an offer of settlement under section 201(b), a claimant
or defendant may, within the time permitted for the mak-
ing of such an offer under such section, offer to proceed
pursuant to any voluntary alternative dispute resolution
procedure established or recognized under the law of the
State in which the civil action for damages for harm
caused by a product is brought or under the rules of the
court in which such action is maintained.
(b) OFFEREE REFUSAL.—If the offeree refuses to
proceed pursuant to such alternative dispute resolution
procedure and the court determines that such refusal was
unreasonable or not in good faith, the court shall assess
reasonable attorney’s fees and costs against the offeree.
(c) REBUTTABLE PRESUMPTION.—For the purposes
of this section, there shall be created a rebuttable pre-
sumption that a refusal by an offeree to proceed pursuant
to such alternative dispute resolution procedure was un-
reasonable or not in good faith, if a verdict is rendered
in favor of the offeror.
TITLE III
SEC. 301. CIVIL ACTIONS.
A person seeking to recover for harm caused by a
product may bring a civil action against the product’s
manufacturer or product seller pursuant to applicable
State or Federal law, except to the extent such law is su-
perseded by this Act.
SEC. 302. UNIFORM STANDARDS OF PRODUCT SELLER LI-
ABILITY.
(a) GENERAL RULE.—Notwithstanding section 301,
in any civil action for harm caused by a product, a product
seller other than a manufacturer is liable to a claimant,
only if the claimant establishes by a preponderance of the
evidence that—
(1)(A) the individual product unit which alleg-
edly caused the harm complained of was sold by the
defendant;
(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; or
(2)(A) the product seller made an express war-
ranty, independent of any express warranty made by
a 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.
(b) DETERMINING PRODUCT SELLER’S LIABILITY.—
(1) TRIER OF FACT.—In determining whether a
product seller is subject to liability under subsection
(a)(1), the trier of fact may consider the effect of
the conduct of the product seller with respect to the
construction, inspection, or condition of the product,
and any failure of the product seller to pass on ade-
quate warnings or instructions from the product’s
manufacturer about the dangers and proper use of
the product.
(2) WARNING
OR
INSTRUCTIONS.—A product
seller shall not be liable in a civil action subject to
this title based upon an alleged failure to provide
warnings or instructions unless the claimant estab-
lishes that, when the product left the possession and
control of the product seller, the product seller
failed—
(A) to provide to the person to whom the
product seller relinquished possession and con-
trol of the product any pamphlets, booklets, la-
bels, inserts, or other written warnings or in-
structions received while the product was in the
product seller’s possession and control; or
(B) to make reasonable efforts to provide
users with those warnings and instructions
which it received after the product left its pos-
session and control.
(3) BREACH OF EXPRESS WARRANTY.—A prod-
uct seller shall not be liable in a civil action subject
to this title except for breach of express warranty
where there was no reasonable opportunity to in-
spect the product in a manner which would or
should, in the exercise of reasonable care, have re-
vealed the aspect of the product which allegedly
caused the claimant’s harm.
(c) TREATED AS A MANUFACTURER.—A product sell-
er shall be treated as the manufacturer of a product and
shall be liable for harm to the claimant caused by a prod-
uct as if it were the manufacturer of the product if—
(1) the manufacturer is not subject to service of
process under the laws of any State in which the ac-
tion might have been brought; or
(2) the court determines that the claimant
would be unable to enforce a judgment against the
manufacturer.
SEC. 303. UNIFORM STANDARDS FOR AWARD OF PUNITIVE
DAMAGES.
(a) GENERAL RULE.—Punitive damages may, if oth-
erwise permitted by applicable law, be awarded in any
product liability action to any claimant who establishes by
clear and convincing evidence that the harm suffered was
the result of conduct manifesting a manufacturer’s or
product seller’s conscious, flagrant indifference to the
safety of those persons who might be harmed by a product.
A failure to exercise reasonable care in choosing among
alternative product designs, formulations, instructions, or
warnings is not of itself such conduct. Except as provided
in subsection (b), punitive damages may not be awarded
in the absence of a compensatory award.
(b) DEATH.—In any civil action in which the alleged
harm to the claimant is death and the applicable State
law provides, or has been construed to provide, for dam-
ages only punitive in nature, a defendant may be liable
for any such damages regardless of whether a claim is as-
serted under this section. The recovery of any such dam-
ages shall not bar a claim under this section.
(c) PUNITIVE DAMAGES NOT TO BE AWARDED.—
(1) DRUGS AND DEVICES.—
(A) GENERAL
RULE.—Punitive damages
shall not be awarded pursuant to this section
against a manufacturer or product 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 device (as defined under
section 201(h) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(h)) which caused
the claimant’s harm where—
(i) such drug or device was subject to
pre-market approval by the Food and
Drug Administration with respect to the
safety of the formulation or performance of
the aspect of such drug or device which
caused the claimant’s harm or the ade-
quacy of the packaging or labeling of such
drug or device, and such drug was ap-
proved by the Food and Drug Administra-
tion; or
(ii) the drug is generally recognized as
safe and effective pursuant to conditions
established by the Food and Drug Admin-
istration and applicable regulations, includ-
ing packaging and labeling regulations.
(B) EXCEPTION.—The subparagraph (A)
shall not apply in any case in which the defend-
ant withheld from or misrepresented to the
Food and Drug Administration or any other
agency or official of the Federal Government in-
formation that is material and relevant to the
performance of such drug or device, or in any
case in which the defendant made an illegal
payment to an official of the Food and Drug
Administration for the purpose of securing ap-
proval of such drug or device.
(2) AIRCRAFT.—Punitive damages shall not be
awarded pursuant to this section against a manufac-
turer of an aircraft which caused the claimant’s
harm where—
(A) such aircraft was subject to pare-mar-
ket certification by the Federal Aviation Admin-
istration with respect to the safety of the design
or performance of the aspect of such aircraft
which caused the claimant’s harm or the ade-
quacy of the warnings regarding the operation
or maintenance of such aircraft;
(B) the aircraft was certified by the Fed-
eral Aviation Administration under the Federal
Aviation Act of 1958 (49 App. U.S.C. 1301 et
seq.); and
(C) the manufacturer of the aircraft com-
plied, after delivery of the aircraft to a user,
with Federal Aviation Administration require-
ments and obligations with respect to continu-
ing airworthiness, including the requirement to
provide maintenance and service information re-
lated to airworthiness whether or not such in-
formation is used by the Federal Aviation Ad-
ministration in the preparation of mandatory
maintenance, inspection, or repair directives.
This paragraph shall not apply in any case in which
the defendant withheld from or misrepresented to
the Federal Aviation Administration information
that is material and relevant to the performance or
the maintenance or operation of such aircraft.
(d) SEPARATE PROCEEDING.—At the request of the
manufacturer or product seller, the trier of fact shall con-
sider in a separate proceeding (1) whether punitive dam-
ages are to be awarded and the amount of such award,
or (2) the amount of punitive damages following a deter-
mination of punitive liability. If a separate proceeding is
requested, evidence relevant only to the claim of punitive
damages, as determined by applicable State law, shall be
inadmissible in any proceeding to determine whether com-
pensatory damages are to be awarded.
(e) AMOUNT.—In determining the amount of punitive
damages, the trier of fact shall consider all relevant evi-
dence, including—
(1) the financial condition of the manufacturer
or product seller;
(2) the severity of the harm caused by the con-
duct of the manufacturer or product seller;
(3) the duration of the conduct or any conceal-
ment of it by manufacturer or product seller;
(4) the profitability of the conduct to the manu-
facturer or product seller;
(5) the number of products sold by the manu-
facturer or product seller of the kind causing the
harm complained of by the claimant;
(6) awards of punitive or exemplary damages to
persons similarly situated to the claimant;
(7) prospective awards of compensatory dam-
ages to persons similarly situated to the claimant;
(8) any criminal penalties imposed on the man-
ufacturer or product seller as a result of the conduct
complained of by the claimant; and
(9) the amount of any civil fines assessed
against the defendant as a result of the conduct
complained of by the claimant.
SEC. 304. UNIFORM TIME LIMITATIONS ON LIABILITY.
(a) GENERAL RULE.—Any civil action subject to this
title shall be barred unless the complaint is filed within
two years of the time the claimant discovered or, in the
exercise of reasonable care, should have discovered the
harm and its cause, except that any such action of a per-
son under legal disability may be filed within two years
after the disability ceases. If the commencement of such
an action is stayed or enjoined, the running of the statute
of limitations under this section shall be suspended for the
period of the stay or injunction.
(b) SPECIFIC LIMITATIONS.—
(1) 25 YEARS.—Any civil action subject to this
title shall be barred if a product which is a capital
good is alleged to have caused harm which is not a
toxic harm unless the complaint is served and filed
within twenty-five years after the time of delivery of
the product. This subsection shall apply only if the
court determines that the claimant has received or
would be eligible to receive compensation under any
State or Federal workers’ compensation law for
harm caused by the product.
(2) TRANSPORTATION.—A motor vehicle, vessel,
aircraft, or railroad used primarily to transport pas-
sengers for hire shall not be subject to this sub-
section.
(3) DEFINITIONS.—As used in this section—
(A) the term ‘‘time of delivery’’ means the
time when a product is delivered to its first
purchaser or lessee who was not involved in the
business of manufacturing or selling such prod-
uct or using it as a component part of another
product to be sold;
(B) the term ‘‘capital good’’ means any
product, or any component of any such product,
which is of a character subject to allowance for
depreciation under the Internal Revenue Code
of 1986, and which was—
(i) used in a trade or business;
(ii) held for the production of income;
or
(iii) sold or donated to a governmental
or private entity for the production of
goods, for training, for demonstration, or
for other similar purposes; and
(C) the term ‘‘toxic harm’’ means harm
which is functional impairment, illness, or death
of a human being resulting from exposure to an
object, substance, mixture, raw material, or
physical agent of particular chemical composi-
tion.
(c) CONTRIBUTION
AND INDEMNITY.—Nothing in
this section shall affect the right of any person who is sub-
ject to liability for harm under this Act to seek and obtain
contribution or indemnity from any other person who is
responsible for such harm.
SEC. 305. UNIFORM STANDARDS FOR OFFSET OF WORKERS’
COMPENSATION BENEFITS.
(a) GENERAL RULE.—In any civil action subject to
this title in which damages are sought for harm for which
the person injured is or would have been entitled to receive
compensation under any State or Federal workers’ com-
pensation law, any damages awarded shall be reduced by
the sum of the amount paid as workers’ compensation ben-
efits for such harm and the present value of all workers’
compensation benefits to which the employee is or would
be entitled for such harm. The determination of workers’
compensation benefits by the trier of fact in a civil action
subject to this title shall have no binding effect on and
shall not be used as evidence in any other proceeding.
(b) NOTICE.—A claimant in a civil action subject to
this title who is or may be eligible to receive compensation
under any State or Federal workers’ compensation law
must provide written notice of the filing of the civil action
to the claimant’s employer within 30 days of the filing.
The written notice shall include information regarding the
date and court in which the civil action was filed, the
names and addresses of all plaintiffs and defendants ap-
pearing on the complaint, the court docket number if
available, and a copy of the complaint which was filed in
the civil action. A copy of such written notice shall be filed
with the court and served upon all parties to the action.
A claimant’s failure to comply with the requirements of
this subsection shall suspend the deadlines for filing re-
sponsive pleadings and commencing discovery in the civil
action, until the claimant complies with the requirements
of this subsection.
(c) STAY OF ACTION.—In any civil action subject to
this title in which damages are sought for harm for which
the person injured is entitled to receive compensation
under any State or Federal workers’ compensation law,
the action shall, on application of the claimant made at
claimant’s sole discretion, be stayed until such time as the
full amount payable as workers’ compensation benefits has
been finally determined under such workers’ compensation
law.
(d) EMPLOYER AND WORKERS’ COMPENSATION CAR-
RIER.—
(1) SUBROGATION, CONTRIBUTION, OR IMPLIED
INDEMNITY.—Except as provided in paragraph (2),
unless the manufacturer or product seller has ex-
pressly agreed to indemnify or hold an employer
harmless for harm to an employee caused by a prod-
uct, neither the employer nor the workers’ com-
pensation insurance carrier of the employer shall
have a right of subrogation, contribution or implied
indemnity against the manufacturer or product sell-
er or a lien against the claimant’s recovery from the
manufacturer or product seller if the harm is one for
which a civil action for harm caused by a product
may be brought pursuant to this Act.
(2) FAULT NOT THE CAUSE OF EMPLOYER OR
CO-EMPLOYEES.—Paragraph (1) shall not apply if
the employer or the workers’ compensation insurer
of the employer establishes, and the trier of fact de-
termines, that the claimant’s harm was not in any
way caused by the fault of the claimant’s employer
or coemployees. In order to establish this fact an
employer or the workers’ compensation insurer of
the employer may intervene in a civil action filed by
an employee at any time after the filing of a com-
plaint. In the event that the civil action is resolved
prior to obtaining a verdict by the trier of fact, any
resolution of the action by settlement or other means
shall afford the employer or the workers’ compensa-
tion insurer of the employer an opportunity to par-
ticipate and to assert a right of subrogation, con-
tribution, or implied indemnity if the claimant’s
harm was not in any way caused by the fault of the
claimant’s employer or coemployees.
(e) MISCELLANEOUS RULES.—
(1) THIRD-PARTY
TORTFEASOR.—Except as
provided in paragraph (3), in any civil action subject
to this title in which damages are sought for harm
for which the person injured is or would have been
entitled to receive compensation under any State or
Federal workers’ compensation law, no third-party
tortfeasor may maintain any action for implied in-
demnity or contribution against the employer, any
coemployee, or the exclusive representative of the
person who was injured.
(2) CERTAIN
ACTIONS.—Nothing in this Act
shall be construed to affect any provision of a State
or Federal workers’ compensation law which pro-
hibits a person who is or would have been entitled
to receive compensation under any such law, or any
other person whose claim is or would have been de-
rivative from such a claim, from recovering for harm
caused by a product in any action other than a
workers’ compensation claim against a present or
former employer or workers’ compensation insurer of
the employer, any coemployee, or the exclusive rep-
resentative of the person who was injured. Any ac-
tion other than such a workers’ compensation claim
shall be prohibited, except that nothing in this Act
shall be construed to affect any State or Federal
workers’ compensation law which permits recovery
based on a claim of an intentional tort by the em-
ployer or coemployee, where the claimant’s harm was
caused by such an intentional tort.
(3) EXCEPTION.—Paragraph (1) shall not
apply and applicable State law shall control if the
employer or the workers’ compensation insurer of
the employer, in a civil action subject to this title,
asserts or attempts to assert, because of subsection
(d), a right of subrogation, contribution, or implied
indemnity against the manufacturer or product sell-
er or a lien against the claimant’s recovery from the
manufacturer or product seller.
SEC. 306. SEVERAL LIABILITY FOR NONECONOMIC DAM-
AGES.
(a) GENERAL RULE.—In any product liability action,
the liability of each defendant for noneconomic damages
shall be several only and shall not be joint. Each defendant
shall be liable only for the amount of noneconomic dam-
ages allocated to such defendant in direct proportion to
such defendant’s percentage of responsibility as deter-
mined under subsection (b) of this section. A separate
judgment shall be rendered against such defendant for
that amount.
(b) ROLE OF TRIER OF FACT.—For purposes of this
section, the trier of fact shall determine the proportion of
responsibility of each party for the claimant’s harm.
(c) DEFINITIONS.—As used in this section—
(1) the term ‘‘noneconomic damages’’ means
subjective, nonmonetary losses including, but not
limited to, pain, suffering, inconvenience, mental
suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputa-
tion and humiliation; the term does not include ob-
jectively verifiable monetary losses including, but not
limited, medical expenses, loss of earnings, burial
costs, loss of use of property, costs of repair or re-
placement, costs of obtaining substitute domestic
services, rehabilitation and training expenses, loss of
employment, or loss of business or employment op-
portunities; and
(2) the term ‘‘product liability action’’ includes
any action involving a claim, third-party claim,
cross-claim, counterclaim, or contribution claim in a
civil action in which a manufacturer or product sell-
er is found liable for harm caused by a product.
SEC. 307. DEFENSES INVOLVING INTOXICATING ALCOHOL
OR DRUGS.
(a) GENERAL RULE.—In any civil action subject to
this Act in which all defendants are manufacturers or
product sellers, it shall be a complete defense to such ac-
tion that the claimant was intoxicated or was under the
influence of intoxicating alcohol or any drug and that as
a result of such intoxication or the influence of the alcohol
or drug the claimant was more than 50 percent respon-
sible for the accident or event which resulted in such
claimant’s harm.
(b) UNDER THE INFLUENCE.—In any civil action
subject to this Act in which not all defendants are manu-
facturers or product sellers and the trier of fact deter-
mines that no liability exists against those defendants who
are not manufacturers or product sellers, the court shall
enter a judgment notwithstanding the verdict in favor of
any defendant which is a manufacturer or product seller
if it is proved that the claimant was intoxicated or was
under the influence of intoxicating alcohol or any drug and
that as a result of such intoxication or the influence of
the alcohol or drug the claimant was more than 50 percent
responsible for the accident or event which resulted in
such claimant’s harm.
(c) DETERMINATION.—
(1) STATE LAW.—For purposes of this section,
the determination of whether a person was intoxi-
cated or was under the influence of intoxicating alco-
hol or any drug shall be made pursuant to applicable
State law.
(2) DEFINITION.—As used in this section, the
term ‘‘drug’’ means any non-over-the-counter drug
which has not been prescribed by a physician for use
by the claimant.
Æ
HR 1954——2
HR 1954——3