(2) the term ‘‘drug’’ means any controlled sub-
stance as defined in the Controlled Substances Act
(21 U.S.C. 802(6)) that has been taken by the
claimant other than in accordance with the terms of
a lawfully issued prescription.
SEC. 8. TIME LIMITATIONS ON LIABILITY.
(a) STATUTE OF LIMITATIONS.—A product liability
action shall be brought within 2 years after the time the
individual who would be the claimant in such action dis-
covered, or in the exercise of reasonable diligence attained
the age of 18 and should have discovered, the harm and
its cause, except that any such action of a person under
legal disability may be filed within 2 years after the dis-
ability ceases. If the commencement of such an action is
stayed or enjoined, the running of the statute of limita-
tions under this section shall be suspended for the period
of the stay or injunction.
(b) STATUTE OF REPOSE FOR CAPITAL GOODS.—A
product liability action for harm caused by a product
which is a capital good shall be barred unless the com-
plaint is served and filed within 15 years of the date of
delivery of the product to its first purchaser or lessee who
was not engaged in the business of selling or leasing the
product or of using the product as a component in the
manufacture of another product. This subsection shall
apply only if—
(1) the court determines that the claimant has
received or would be eligible to receive compensation
under any State or Federal worker’s compensation
law for harm caused by the product, and
(2) the harm caused by the product did not in-
clude chronic illness.
SEC. 9. WORKERS’ COMPENSATION OFFSET.
(a) GENERAL RULE.—
(1) SUBROGATION.—If a product liability action
has been brought pursuant to this Act for harm
caused to an employee by a product, the employer of
such employee or the workers’ compensation insurer
of such employer shall have a right of subrogation
against the manufacturer of such product or the
product seller to recover the sum of the amount of
workers’ compensation benefits to which such em-
ployee is or would be entitled as determined by the
appropriate workers’ compensation authority. To as-
sert such a right of subrogation, an employer or
workers’ compensation insurer of an employer shall
provide written notice that it is asserting a right of
subrogation to the court in which such product li-
ability action has been brought. The employer or
workers’ compensation insurer of such employer
shall not be required to be a necessary and proper
party to such product liability action.
(2) RIGHT OF SUBROGATION AGAINST A PAY-
MENT.—In any product liability action brought by
an employee against a manufacturer of a product or
a product seller or in any settlement of such an ac-
tion, the employer of such employee or the workers’
compensation insurer of such employer shall have an
opportunity to participate in such action and to as-
sert a right of subrogation upon any payment made
by such manufacturer or product seller in satisfac-
tion of a judgment in such action, in connection with
a settlement of such action, as consideration for a
covenant not to sue, or otherwise. Such employee
shall not make any settlement of such an action
with, or accept any payment from, such manufac-
turer or product seller without the written consent
of such employee’s employer. No release to or agree-
ment with such manufacturer or product seller made
by such employee shall be valid or enforceable for
any purpose without such consent unless such em-
ployer or workers’ compensation insurer of such em-
ployer is made whole for all workers’ compensation
benefits paid to such employee.
(3) CLAIMANT’S HARM.—In a product liability
action brought for harm from a product by an em-
ployee, the manufacturer of such product or a prod-
uct seller may allege to the trier of fact that the
claimant’s harm was caused by the fault of the
claimant’s employer or a coemployee of the claimant.
If the manufacturer of a product or a product seller
makes such an allegation, the manufacturer or prod-
uct seller shall provide written notice to the em-
ployer involved in such allegation. Such employer
shall have the right to appear in such product liabil-
ity action, to be represented, to introduce evidence,
to cross-examine adverse witnesses, and to argue to
the trier of fact on such allegation as though such
employer were a party to such product liability ac-
tion. The issue of the cause of the claimant’s harm
shall be the last issue submitted to the trier of fact
in such product liability action. If the trier of fact
finds by clear and convincing evidence that the
claimant’s harm was caused by the fault of the
claimant’s employer or a coemployee of such claim-
ant, the court shall reduce the damages awarded
against such manufacturer or product seller and, ex-
cept as provided in the last sentence, correspond-
ingly the subrogation lien of such employer by the
sum of the amount paid as workers’ compensation
benefits to such employee and the present value of
all workers’ compensation benefits to which such em-
ployee is or would be entitled for such harm as de-
termined by the appropriate workers’ compensation
authority. Such manufacturer or product seller shall
have no further right, by way of contribution or oth-
erwise, against such employer with respect to such
harm. Such employer shall not lose its right of sub-
rogation if the employee’s harm was the result of an
intentional tort committed against the claimant by a
coemployee of the claimant or for acts committed by
such coemployee outside the scope of normal work
practices.
(4) REIMBURSEMENT.—If in a product liability
action brought by an employee for harm from a
product the judgment is that the claimant’s harm
was not caused by the fault of the claimant’s em-
ployer or a coemployee of the claimant, the manufac-
turer of such product or product seller shall reim-
burse such employer or workers’ compensation in-
surer of such employer for reasonable attorney’s fees
and court costs, as determined by the court, in-
curred in the resolution of the subrogation claim.
(b) THIRD PARTY TORTFEASOR.—In any product li-
ability action brought by an employee 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 such employee’s employer,
any coemployee of such employee, or the exclusive rep-
resentative of such employee.
(c) CONSTRUCTION.—Nothing in this Act shall be
construed to affect any provision of a State or Federal
workers’ compensation law—
(1) which prohibits—
(A) a person who is or would have been en-
titled to receive compensation under such law,
or
(B) any other person whose claim for bene-
fits under such law would have been derivative
from the claim of the person described in sub-
paragraph (A),
from recovering for harm caused by a product in any
product liability action other than a workers’ com-
pensation claim against a present or former em-
ployer or workers’ compensation insurer of such an
employer, any coemployee, or the exclusive rep-
resentative of the person who is injured, or
(2) which permits recovery based on a claim of
an intentional tort by an employer or any
coemployee if the claimant’s harm was caused by
such a tort.
(d) STAY PENDING COMPENSATION DETERMINA-
TION.—In any product liability action brought by an em-
ployee 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, such action shall, on application of the
claimant made at the claimant’s sole election, be stayed
until such time as the full amount payable as workers’
compensation benefits has been finally determined under
such workers’ compensation law. If the claimant elects to
bring a product liability action and not stay the claimant’s
action until the full amount of such benefits has been fi-
nally determined by the appropriate workers’ compensa-
tion authority, the court shall determine the amount of
workers’ compensation benefits that has been or would be
payable if the amount had been determined by such an
authority.
(e) EFFECT OF VERDICT.—The verdict of any court
in a product liability action shall not be used as evidence
in any proceeding relating to workers’ compensation.
(f) WRITTEN NOTICE.—A claimant in a product li-
ability action who is or may be eligible to receive com-
pensation under any State or Federal workers’ compensa-
tion law shall provide written notice of the filing of the
product liability action to the claimant’s employer within
30 days of such filing. The written notice shall include
information regarding the date and court in which the
product liability action was filed, the names and addresses
of all plaintiffs and defendants appearing on the com-
plaint, the court docket number if available, and a copy
of the complaint which was filed in the product liability
action.
SEC. 10. DEFINITIONS.
For purposes of this Act—
(1) the term ‘‘claimant’’ means any person who
brings a product liability action and any person on
whose behalf such an action is brought, including
such person’s decedent if such an action is brought
through or on behalf of an estate or such person’s
legal representative if it is brought through or on be-
half of a minor or incompetent,
(2) the term ‘‘malice’’ means conduct that is ei-
ther—
(A) specifically intended to cause serious
personal injury, or
(B) carried out with both a flagrant indif-
ference to the rights of the claimant and an
awareness that such conduct is likely to result
in serious personal injury,
(3) with respect to a product, the term ‘‘manu-
facturer’’ means—
(A) any person who is engaged in a busi-
ness to produce, create, make, or construct the
product and who designs or formulates the
product or has engaged another person to de-
sign or formulate the product,
(B) a product seller of the product who,
before placing the product in the stream of
commerce—
(i) designs or formulates or has en-
gaged another person to design or formu-
late an aspect of the product after the
product was initially made by another, and
(ii) produces, creates, makes, or con-
structs such aspect of the product, or
(C) any product seller not described in
subparagraph (B) which holds itself out as a
manufacturer to the user of the product,
(4) the term ‘‘product’’—
(A) means any object, substance, mixture,
or raw material in a gaseous, liquid, or solid
state—
(i) which is capable of delivery itself,
in a mixed or combined state, or as a com-
ponent part or ingredient,
(ii) which is produced for introduction
into trade or commerce,
(iii) which has intrinsic economic
value, and
(iv) which is intended for sale or lease
to persons for commercial or personal use,
and
(B) does not include—
(i) human tissue, human organs,
human blood, and human blood products,
or
(ii) electricity, water delivered by a
utility, natural gas, or steam,
(5) the term ‘‘product seller’’—
(A) means a person—
(i) who sells, distributes, leases, pre-
pares, blends, packages, or labels a product
or is otherwise involved in placing a prod-
uct in the stream of commerce, or
(ii) who installs, repairs, or maintains
the harm-causing aspect of a product, and
(B) does not include—
(i) a manufacturer,
(ii) a seller or lessor of real property,
(iii) 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 fur-
nishing of judgment, skill, or services,
(iv) any person who acts only in a fi-
nancial capacity with respect to the sale of
a product, or
(v) any person who leases a product
under a lease arrangement in which the se-
lection, possession, maintenance, and oper-
ation of the product are controlled by a
person other than the lessor,
(6) the term ‘punitive damages’ means damages
in addition to compensation for actual injury suf-
fered, for purposes of imposing punishment for con-
duct engaged in with malice and to deter similar fu-
ture conduct, but such term does not include com-
pensation for actual injury, and
(7) the term ‘‘State’’ means any State of the
United States, the District of Columbia, the Com-
monwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Northern Mariana Is-
lands, the Trust Territory of the Pacific Islands, and
any other territory or possession of the United
States, or any political subdivision thereof.
SEC. 11. EFFECTIVE DATE.
This Act shall apply with respect to product liability
actions which are brought after the date of the enactment
of this Act.
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