[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1954 Introduced in House (IH)]

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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Product Liability Fairness 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..........................................       2
Sec. 102. Preemption...........................................       7
Sec. 103. Jurisdiction of Federal courts.......................       9
Sec. 104. Effective date.......................................       9
                               TITLE--II

Sec. 201. Expedited product liability settlements..............      10
Sec. 202. Alternative dispute resolution procedures............      13
                               TITLE--III

Sec. 301. Civil actions........................................      14
Sec. 302. Uniform standards of product seller liability........      14
Sec. 303. Uniform standards for award of punitive damages......      17
Sec. 304. Uniform time limitations on liability................      22
Sec. 305. Uniform standards for offset of workers' compensation      24
    benefits.
Sec. 306. Several liability for noneconomic damages............      29
Sec. 307. Defenses involving intoxicating alcohol or drugs.....      30

                                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 conviction 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 preponderance of the evidence, but less than that 
        required for proof beyond a reasonable doubt;
            (3) the term ``collateral benefits'' means all benefits and 
        advantages received or entitled to be received (regardless of 
        any right any other person has or is entitled to assert for 
        recoupment through subrogation, trust agreement, lien, or 
        otherwise) by any claimant harmed by a product or by any other 
        person 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 insurance, or any benefit 
                received or to be received as a result of participation 
                in any pre-paid medical 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 transportation described in clause (A);
            (5) the term ``commercial loss'' means economic injury, 
        whether direct, incidental, or consequential, including 
        property damage and damage to the product itself;
            (6) the term ``economic loss'' means any pecuniary 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 recognized 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, create, 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 product (or component part of a 
        product) which are created or affected when, before placing the 
        product in the stream of commerce, the product seller produces, 
        creates, makes, or constructs and 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; 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 governmental 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, substance, 
        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 persons 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 installs, 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 judgment, 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 
                        arrangement in which the selection, possession, 
                        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 Commonwealth 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 
        subdivision 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--
            (1) waive or affect any defense of sovereign immunity 
        asserted by any State under any provision of law;
            (2) supersede any Federal law, except the Federal Employees 
        Compensation Act and the Longshoremen's and Harbor Workers' 
        Compensation Act;
            (3) waive or affect any defense of sovereign immunity 
        asserted by the United States;
            (4) affect the applicability of any provision of chapter 97 
        of title 28, United States Code;
            (5) preempt State choice-of-law rules with respect to 
        claims brought by a foreign nation or a citizen of a foreign 
        nation;
            (6) 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
            (7) supersede any statutory or common law, including an 
        action to abate a nuisance, that authorizes a State or person 
        to institute an action for civil damages or civil penalties, 
        cleanup costs, injunctions, restitution, cost recovery, 
        punitive damages, or any other form of relief resulting from 
        contamination 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 construed and applied 
after consideration of its legislative history to promote uniformity of 
law in the various jurisdictions.

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 within sixty days after 
        service of the claimant's complaint or within the time 
        permitted pursuant to State law for a responsive pleading, 
        whichever is longer, except that if such pleading includes a 
        motion to dismiss in accordance with applicable law, the 
        defendant may tender such relief to the claimant within ten 
        days after the court's determination regarding 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 applicable period for response, enter an order 
                extending such period. Any such order shall contain a 
                schedule for discovery of evidence material 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 accompanied by a supporting 
                affidavit of the moving party setting forth the reasons 
                why such extension 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 responsive pleading or, if such 
                pleading includes a motion to dismiss in accordance 
                with applicable law, within thirty days after the 
                court's determination regarding such motion, and a 
                verdict is entered in such action equal to or greater 
                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 reasonable 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 accordance 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 reduce 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 defendant's attorney by reason of the 
                verdict, except 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 receive 
                collateral benefits.
                    (D) Attorney's fees.--For purposes of this 
                paragraph, attorney's fees shall be calculated on the 
                basis of an hourly rate which should not exceed that 
                which is considered acceptable in the community in 
                which the attorney practices, considering the 
                attorney's qualifications and experience and the 
                complexity of the case.

SEC. 202. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.

    (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 making 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 presumption that a refusal by an 
offeree to proceed pursuant to such alternative dispute resolution 
procedure was unreasonable 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 superseded by this Act.

SEC. 302. UNIFORM STANDARDS OF PRODUCT SELLER LIABILITY.

    (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 allegedly caused 
        the harm complained of was sold by the defendant;
            (B) the product seller failed to exercise reasonable 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 warranty, 
        independent of any express warranty made by a manufacturer as 
        to the same product;
            (B) the product failed to conform to the warranty; 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 adequate 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 establishes 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 control of the 
                product any pamphlets, booklets, labels, inserts, or 
                other written warnings or instructions 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 possession and control.
            (3) Breach of express warranty.--A product 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 inspect the product in a manner which would or 
        should, in the exercise of reasonable care, have revealed the 
        aspect of the product which allegedly caused the claimant's 
        harm.
    (c) Treated as a Manufacturer.--A product seller shall be treated 
as the manufacturer of a product and shall be liable for harm to the 
claimant caused by a product 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 action 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 otherwise 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 damages only punitive in nature, a defendant 
may be liable for any such damages regardless of whether a claim is 
asserted under this section. The recovery of any such damages 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 adequacy of the packaging or 
                        labeling of such drug or device, and such drug 
                        was approved by the Food and Drug 
                        Administration; or
                            (ii) the drug is generally recognized as 
                        safe and effective pursuant to conditions 
                        established by the Food and Drug Administration 
                        and applicable regulations, including packaging 
                        and labeling regulations.
                    (B) Exception.--The subparagraph (A) shall not 
                apply in any case in which the defendant withheld from 
                or misrepresented to the Food and Drug Administration 
                or any other agency or official of the Federal 
                Government information 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 approval of such drug or device.
            (2) Aircraft.--Punitive damages shall not be awarded 
        pursuant to this section against a manufacturer of an aircraft 
        which caused the claimant's harm where--
                    (A) such aircraft was subject to pare-market 
                certification by the Federal Aviation Administration 
                with respect to the safety of the design or performance 
                of the aspect of such aircraft which caused the 
                claimant's harm or the adequacy of the warnings 
                regarding the operation or maintenance of such 
                aircraft;
                    (B) the aircraft was certified by the Federal 
                Aviation Administration under the Federal Aviation Act 
                of 1958 (49 App. U.S.C. 1301 et seq.); and
                    (C) the manufacturer of the aircraft complied, 
                after delivery of the aircraft to a user, with Federal 
                Aviation Administration requirements and obligations 
                with respect to continuing airworthiness, including the 
                requirement to provide maintenance and service 
                information related to airworthiness whether or not 
                such information is used by the Federal Aviation 
                Administration 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 consider in a separate 
proceeding (1) whether punitive damages are to be awarded and the 
amount of such award, or (2) the amount of punitive damages following a 
determination 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 compensatory damages are to be awarded.
    (e) Amount.--In determining the amount of punitive damages, the 
trier of fact shall consider all relevant evidence, including--
            (1) the financial condition of the manufacturer or product 
        seller;
            (2) the severity of the harm caused by the conduct of the 
        manufacturer or product seller;
            (3) the duration of the conduct or any concealment of it by 
        manufacturer or product seller;
            (4) the profitability of the conduct to the manufacturer or 
        product seller;
            (5) the number of products sold by the manufacturer 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 damages to persons 
        similarly situated to the claimant;
            (8) any criminal penalties imposed on the manufacturer 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 
person 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 passengers for hire shall 
        not be subject to this subsection.
            (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 product 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 composition.
    (c) Contribution and Indemnity.--Nothing in this section shall 
affect the right of any person who is subject 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' compensation law, any damages awarded shall be reduced 
by the sum of the amount paid as workers' compensation benefits 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 appearing 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 responsive 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 Carrier.--
            (1) Subrogation, contribution, or implied indemnity.--
        Except as provided in paragraph (2), unless the manufacturer or 
        product seller has expressly agreed to indemnify or hold an 
        employer harmless for harm to an employee caused by a product, 
        neither the employer nor the workers' compensation insurance 
        carrier of the employer shall have a right of subrogation, 
        contribution or implied indemnity against the manufacturer or 
        product seller 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 determines, 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 
        complaint. 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' compensation insurer of the employer 
        an opportunity to participate and to assert a right of 
        subrogation, contribution, 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 indemnity 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 prohibits 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 
        derivative 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 representative of the person who was injured. Any 
        action 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 
        employer 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 seller or a lien against the claimant's recovery from 
        the manufacturer or product seller.

SEC. 306. SEVERAL LIABILITY FOR NONECONOMIC DAMAGES.

    (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 damages allocated to such defendant in direct proportion 
to such defendant's percentage of responsibility as determined 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 reputation and humiliation; the term does not include 
        objectively verifiable monetary losses including, but not 
        limited, medical expenses, loss of earnings, burial costs, loss 
        of use of property, costs of repair or replacement, costs of 
        obtaining substitute domestic services, rehabilitation and 
        training expenses, loss of employment, or loss of business or 
        employment opportunities; 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 seller 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 action 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.
    (b) Under the Influence.--In any civil action subject to this Act 
in which not all defendants are manufacturers or product sellers and 
the trier of fact determines 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 intoxicated or was under 
        the influence of intoxicating alcohol 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.

                                 <all>

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