[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6239 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 6239

 To provide targeted liability protections for claims based on damages 
 resulting from, or aggravated by, the inclusion of ethanol in certain 
                     fuel, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 29, 2010

Mr. Smith of Texas introduced the following bill; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To provide targeted liability protections for claims based on damages 
 resulting from, or aggravated by, the inclusion of ethanol in certain 
                     fuel, 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 ``Prevention of Frivolous Ethanol 
Lawsuits Act of 2010''.

SEC. 2. FINDINGS.

    The Congress finds as follows:
            (1) Ethanol is currently widely distributed in commerce for 
        general use in all conventional gasoline-powered onroad and 
        nonroad vehicles and nonroad engines in widespread use.
            (2) A decision to increase the current blending limit of 
        ethanol into gasoline for motor vehicle and equipment engines 
        requires an agency finding that the increased emission products 
        will not cause or contribute to a failure of any emission 
        control device or system (over the useful life of the motor 
        vehicle, motor vehicle engine, nonroad engine or nonroad 
        vehicle in which such device or system is used).
            (3) Significant questions and concerns exist as to the 
        effects of increasing the current blending limit of ethanol 
        into gasoline for motor vehicle and equipment engines on the 
        performance of such engines.
            (4) Effects such as increased engine failures, decreased 
        engine performance, increased consumer complaints, increased 
        litigation, or other unforeseen effects could have a 
        significant impact on interstate commerce.
            (5) The Federal Trade Commission has proposed labeling 
        requirements for all fuels distributed in commerce that exceed 
        the current blending limit of ethanol into gasoline to disclose 
        to consumers that using such fuels may harm some conventional 
        vehicles.
            (6) A multifaceted Federal testing regimen is currently 
        underway on newer motor vehicles to determine the effects on 
        motor vehicle engines of increasing the current blending limit 
        of ethanol into gasoline.
            (7) There is insufficient data on the effects of increasing 
        the current blending limit of ethanol into gasoline on older 
        vehicles and nonroad engines.
            (8) Nonetheless, the executive branch has--
                    (A) statutory authority to increase the current 
                blending limit of ethanol into gasoline; and
                    (B) is currently undertaking a process to reach a 
                decision on this issue.
            (9) It is appropriate for Congress to mitigate undue 
        effects on parties engaged in interstate commerce resulting 
        from a Federal decision to allow an increase of the current 
        blending limit of ethanol into gasoline.

SEC. 3. TARGETED LIABILITY PROTECTIONS FOR CLAIMS BASED ON DAMAGES 
              RESULTING FROM, OR AGGRAVATED BY, THE INCLUSION OF 
              ETHANOL IN CERTAIN FUEL.

    (a) Liability Protections.--
            (1) In general.--Subject to the other provisions of this 
        section, a covered entity shall be immune from suit and 
        liability under Federal and State law with respect to all 
        claims for loss resulting from, or being aggravated by, the use 
        of any renewable fuel, as defined by section 211(o)(1) of the 
        Clean Air Act, and containing ethanol in concentrations of 
        greater than 10 percent, pursuant to a waiver under section 
        211(f)(4) of the Clean Air Act, to operate an internal 
        combustion engine.
            (2) Scope of claims for loss.--For purposes of this 
        section, the term ``loss'' means any type of loss, including--
                    (A) death;
                    (B) physical, mental, or emotional injury, illness, 
                disability, or condition;
                    (C) fear of physical, mental, or emotional injury, 
                illness, disability, or condition, including any need 
                for medical monitoring; and
                    (D) loss of or damage to property, including 
                business interruption loss.
        Each of subparagraphs (A) through (D) applies without regard to 
        the date of the occurrence, presentation, or discovery of the 
        loss described in the subparagraph.
            (3) Scope.--The immunity under paragraph (1) applies to any 
        claim for loss that has a causal relationship with the use of 
        any renewable fuel, as defined by section 211(o)(1) of the 
        Clean Air Act, and containing ethanol in concentrations of 
        greater than 10 percent, pursuant to a waiver under section 
        211(f)(4) of the Clean Air Act, to operate an internal 
        combustion engine including a causal relationship with the 
        design, development, testing or investigation, manufacture, 
        labeling, distribution, formulation, packaging, marketing, 
        promotion, sale, purchase, dispensing, administration, 
        licensing, or use of such renewable fuel.
    (b) Exception to Immunity of Covered Persons.--
            (1) In general.--Subject to subsection (i), the sole 
        exception to the immunity from suit and liability of covered 
        persons set forth in subsection (a) shall be for an exclusive 
        Federal cause of action against a covered person for death or 
        serious physical injury proximately caused by willful 
        misconduct, as defined pursuant to subsection (c), by such 
        covered person. For purposes of section 2679(b)(2)(B) of title 
        28, United States Code, such a cause of action is not an action 
        brought for violation of a statute of the United States under 
        which an action against an individual is otherwise authorized.
            (2) Persons who can sue.--An action under this subsection 
        may be brought for wrongful death or serious physical injury by 
        any person who suffers such injury or by any representative of 
        such a person.
    (c) Procedures for Suit.--
            (1) Exclusive federal jurisdiction.--Any action under 
        subsection (b) shall be filed and maintained only in the United 
        States District Court for the District of Columbia.
            (2) Governing law.--The substantive law for decision in an 
        action under subsection (b) shall be derived from the law, 
        including choice of law principles, of the State in which the 
        alleged willful misconduct occurred, unless such law is 
        inconsistent with or preempted by Federal law, including 
        provisions of this section.
            (3) Pleading with particularity.--In an action under 
        subsection (b), the complaint shall plead with particularity 
        each element of the plaintiff's claim, including--
                    (A) each act or omission, by each covered person 
                sued, that is alleged to constitute willful misconduct;
                    (B) facts supporting the allegation that such 
                alleged willful misconduct proximately caused the 
                injury claimed; and
                    (C) facts supporting the allegation that the person 
                on whose behalf the complaint was filed suffered death 
                or serious physical injury.
            (4) Verification requirement.--
                    (A) In general.--The complaint shall include a 
                verification, made by affidavit of the plaintiff under 
                oath, stating that the pleading is true to the 
                knowledge of the deponent, except as to matters 
                specifically identified as being alleged on information 
                and belief, and that as to those matters the plaintiff 
                believes it to be true.
                    (B) Identification of matters alleged upon 
                information and belief.--Any matter that is not 
                specifically identified as being alleged upon the 
                information and belief of the plaintiff, shall be 
                regarded for all purposes, including a criminal 
                prosecution, as having been made upon the knowledge of 
                the plaintiff.
            (5) Proof of willful misconduct.--In an action under 
        subsection (b), the plaintiff shall have the burden of proving 
        by clear and convincing evidence willful misconduct by each 
        covered person sued.
            (6) Three-judge court.--Any action under subsection (b) 
        shall be assigned initially to a panel of three judges. Such 
        panel shall have jurisdiction over such action for purposes of 
        considering motions to dismiss, motions for summary judgment, 
        and matters related thereto. If such panel has denied such 
        motions, or if the time for filing such motions has expired, 
        such panel shall refer the action to the chief judge for 
        assignment for further proceedings, including any trial. 
        Section 1253 of title 28, United States Code, and paragraph (3) 
        of subsection (b) of section 2284 of title 28, United States 
        Code, shall not apply to actions under subsection (b).
            (7) Civil discovery.--In an action under subsection (b), no 
        discovery shall be allowed--
                    (A) before each covered person sued has had a 
                reasonable opportunity to file a motion to dismiss;
                    (B) in the event such a motion is filed, before the 
                court has ruled on such motion; and
                    (C) in the event a covered person files an 
                interlocutory appeal from the denial of such a motion, 
                before the Court of Appeals has ruled on such appeal.
    (d) Standard.--Notwithstanding any other provision of law, the 
court in an action under subsection (b) shall permit discovery only 
with respect to matters directly related to material issues contested 
in such action, and the court shall compel a response to a discovery 
request (including a request for admission, an interrogatory, a request 
for production of documents, or any other form of discovery request) 
under rule 37, Federal Rules of Civil Procedure, only if the court 
finds that the requesting party needs the information sought to prove 
or defend as to a material issue contested in such action and that the 
likely benefits of a response to such request equal or exceed the 
burden or cost for the responding party of providing such response.
    (e) Reduction in Award of Damages for Collateral Source Benefits.--
            (1) In general.--In an action under subsection (b), the 
        amount of an award of damages that would otherwise be made to a 
        plaintiff shall be reduced by the amount of collateral source 
        benefits to such plaintiff.
            (2) Noneconomic damages.--In an action under subsection 
        (b), any noneconomic damages may be awarded only in an amount 
        directly proportional to the percentage of responsibility of a 
        defendant for the harm to the plaintiff. For purposes of this 
        paragraph, the term ``noneconomic damages'' means damages for 
        losses for physical and emotional pain, suffering, 
        inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium, hedonic damages, injury to 
        reputation, and any other nonpecuniary losses.
    (f) Rule 11 Sanctions.--Whenever a district court of the United 
States determines that there has been a violation of rule 11 of the 
Federal Rules of Civil Procedure in an action under subsection (b), the 
court shall impose upon the attorney, law firm, or parties that have 
violated rule 11 or are responsible for the violation, an appropriate 
sanction, which may include an order to pay the other party or parties 
for the reasonable expenses incurred as a direct result of the filing 
of the pleading, motion, or other paper that is the subject of the 
violation, including a reasonable attorney's fee. Such sanction shall 
be sufficient to deter repetition of such conduct or comparable conduct 
by others similarly situated, and to compensate the party or parties 
injured by such conduct.
    (g) Interlocutory Appeal.--The United States Court of Appeals for 
the District of Columbia Circuit shall have jurisdiction of an 
interlocutory appeal by a covered person taken within 30 days of an 
order denying a motion to dismiss or a motion for summary judgment 
based on an assertion of the immunity from suit conferred by subsection 
(a) or based on an assertion of the exclusion under subsection (h)(1).
    (h) Exclusion for Regulated Activity of Manufacturer or 
Distributor.--
            (1) In general.--If an act or omission by a manufacturer or 
        distributor with respect to a covered countermeasure, which act 
        or omission is alleged under subsection (b)(1) to constitute 
        willful misconduct, is subject to regulation by the Clean Air 
        Act, such act or omission shall not constitute ``willful 
        misconduct'' for purposes of subsection (b) if--
                    (A) neither the Administrator of the Environmental 
                Protection Agency nor the Attorney General has 
                initiated an enforcement action with respect to such 
                act or omission; or
                    (B) such an enforcement action has been initiated 
                and the action has been terminated or finally resolved 
                without a covered remedy.
        Any action or proceeding under subsection (b) shall be stayed 
        during the pendency of such an enforcement action.
    (i) Actions by and Against the United States.--Nothing in this 
section shall be construed to abrogate or limit any right, remedy, or 
authority that the United States or any agency thereof may possess 
under any other provision of law or to waive sovereign immunity or to 
abrogate or limit any defense or protection available to the United 
States or its agencies, instrumentalities, officers, or employees under 
any other law, including any provision of chapter 171 of title 28, 
United States Code (relating to tort claims procedure).
    (j) Definitions.--In this section, the following definitions apply:
            (1) Covered entity.--The term ``covered entity'' means an 
        entity engaged in the manufacture, sale or distribution of fuel 
        or products which use renewable fuel, as defined by section 
        211(o)(1) of the Clean Air Act.
            (2) Enforcement action.--The term ``enforcement action'' 
        means a criminal prosecution, an action seeking an injunction, 
        a seizure action, a civil monetary proceeding based on willful 
        misconduct, a mandatory recall of a product because voluntary 
        recall was refused, a proceeding to compel repair or 
        replacement of a product, a debarment proceeding, an 
        investigator disqualification proceeding where an investigator 
        is an employee or agent of the manufacturer.
            (3) Covered remedy.--The term ``covered remedy'' means an 
        outcome--
                    (A) that is a criminal conviction, an injunction, 
                or a condemnation, a civil monetary payment, a 
                debarment; and
                    (B) that results from a final determination by a 
                court or from a final agency action.
            (4) Final.--The terms ``final'' and ``finally''--
                    (A) with respect to a court determination, or to a 
                final resolution of an enforcement action that is a 
                court determination, mean a judgment from which an 
                appeal of right cannot be taken or a voluntary or 
                stipulated dismissal; and
                    (B) with respect to an agency action, or to a final 
                resolution of an enforcement action that is an agency 
                action, mean an order that is not subject to further 
                review within the agency and that has not been 
                reversed, vacated, enjoined, or otherwise nullified by 
                a final court determination or a voluntary or 
                stipulated dismissal.
            (5) Willful misconduct.--The term ``willful misconduct''--
                    (A) shall not, for purposes of subsection (b), 
                denote an act or omission that is taken pursuant to 
                regulations or guidance promulgated in response to a 
                full or partial waiver of the requirements of the Clean 
                Air Act with respect to ethanol-gasoline blends of more 
                than 10 percent by volume ethanol; but
                    (B) shall, for purposes of subsection (b), denote 
                an act or omission that is taken--
                            (i) intentionally to achieve a wrongful 
                        purpose;
                            (ii) knowingly without legal or factual 
                        justification; and
                            (iii) in disregard of a known or obvious 
                        risk that is so great as to make it highly 
                        probable that the harm will outweigh the 
                        benefit.
                                 <all>