[Congressional Record Volume 141, Number 70 (Monday, May 1, 1995)]
[Senate]
[Page S5914]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          AMENDMENTS SUBMITTED

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                COMMONSENSE PRODUCT LIABILITY REFORM ACT

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                         KYL AMENDMENT NO. 611

  Mr. KYL proposed an amendment to amendment No. 603, proposed by Mr. 
McConnell, to amendment No. 596, proposed by Mr. Gorton to the bill 
(H.R. 956) to establish legal standards and procedures for product 
liability litigation, and for other purposes; as follows:

       At the appropriate place, insert the following new section:
     SEC.  . LIMITATION ON NONECONOMIC DAMAGES.

       (a) In General.--With respect to any health care liability 
     action, in addition to any award of economic or punitive 
     damages, a claimant may be awarded noneconomic damages, 
     including damages awarded to compensate the claimant for 
     injured feelings such as pain and suffering, emotional 
     distress, and loss of consortium.
       (b) Limitation.--The amount of noneconomic damages that may 
     be awarded to a claimant under subsection (a) may not exceed 
     $500,000. Such limitation shall apply regardless of the 
     number of defendants in the action and the number of claim or 
     actions brought with respect to the injury involved.
       (c) No Disclosure to Trier of Fact.--The trier of fact in 
     an action described in subsection (a) may not be informed of 
     the limitation contained in this section.
       (d) Awards in Excess of Limitation.--An award for 
     noneconomic damages in an action described in subsection (a), 
     in excess of the limitation contained in subsection (b) 
     shall--
       (1) be reduced to $500,000 either prior to entry of 
     judgment or by amendment of the judgment after entry;
       (2) be reduced to $500,000 prior to accounting for any 
     other reduction in damages required under applicable law; and
       (3) in the case of separate awards of damages for past and 
     future noneconomic damages, be reduced to $500,000 with the 
     initial reductions being made in the award of damages for 
     future noneconomic losses.
       (e) Present Value.--An award for future noneconomic damages 
     shall not be discounted to present value.
                                 ______


                        DeWINE AMENDMENT NO. 612

  Mr. DeWine proposed an amendment to amendment No. 603, proposed by 
Mr. McConnell to amendment No. 596, proposed by Mr. Gorton to the bill, 
H.R. 956, supra; as follows:

       In section  12(5) of the amendment, add at the end thereof 
     the following new sentence: ``Such term does not include an 
     action where the alleged injury on which the action is based 
     resulted from an act of sexual abuse (as defined under 
     applicable State law) committed by a provider, professional, 
     plan or other defendant.''.
                                 ______


                        HATCH AMENDMENT NO. 613

  Mr. HATCH proposed an amendment to amendment No. 603, proposed by Mr. 
McConnell to amendment No. 596, proposed by Mr. Gorton to the bill, 
H.R. 956, supra; as follows:

       In section   20(d)(1), strike ``with technical assistance'' 
     and insert ``with grants or other technical assistance''.
                                 ______


                SIMON (AND WELLSTONE) AMENDMENT NO. 614

  Mr. SIMON (for himself and Mr. Wellstone) proposed an amendment to 
amendment No. 603, proposed by Mr. McConnell to amendment No. 596, 
proposed by Mr. Gorton to the bill, H.R. 956, supra; as follows:

       At the appropriate place insert the following:

     SECTION   . STATE OPTION.

       (a) A provision of this subtitle shall not apply to 
     disputes between citizens of the same State if such State 
     enacts a statute--
       (1) citing the authority of this section; and
       (2) declaring the election of such State that such 
     provision shall not apply to such disputes.
       (b) If a dispute arises between citizens of two States that 
     have elected not to apply a particular provision, ordinary 
     choice of law principles shall apply.
       (c) For purposes of this section, a corporation shall be 
     deemed a citizen of its State of incorporation and of its 
     principal place of business.
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                       KENNEDY AMENDMENT NO. 615

  Mr. KENNEDY proposed an amendment to amendment No. 603, proposed by 
Mr. McConnell to amendment No. 596, proposed by Mr. Gorton to the bill, 
H.R. 956, supra; as follows:

       On page 8, line 20, insert after ``subsection'' the 
     following: ``(b) and''.
       Strike the material from page 9, line 4 through page 10, 
     line 17, and insert in lieu thereof the following ``The 
     provisions of this subtitle shall not be construed to preempt 
     any state statute but shall govern any question with respect 
     to which there is no state statute''.
                                 ______


                         DODD AMENDMENT NO. 616

  Mr. DeWINE (for Mr. Dodd) proposed an amendment to amendment no. 603, 
proposed by Mr. McConnell to amendment no. 596, proposed by Mr. Gorton 
to the bill, H.R. 956, supra; as follows:

       Strike section    15 of the amendment and insert the 
     following new section:

     SEC.    15. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       (a) General Rule.--Notwithstanding any other provision of 
     law, punitive damages may, to the extent permitted by 
     applicable State law, be awarded against a defendant in an 
     action that is subject to this Act if the claimant 
     establishes by clear and convincing evidence that the harm 
     that is the subject of the action was the result of conduct 
     that was carried out by the defendant with a conscious, 
     flagrant indifference to the safety of others.
       (b) Bifurcation and Judicial Determination.--
       (1) In general.--Notwithstanding any other provision of 
     law, in an action that is subject to this Act in which 
     punitive damages are sought, the trier of fact shall 
     determine, concurrent with all other issues presented, 
     whether such damages shall be allowed. If such damages are 
     allowed, a separate proceeding shall be conducted by the 
     court to determine the amount of such damages to be awarded.
       (2) Admissible evidence.--
       (A) Inadmissibility of evidence relative only to a claim of 
     punitive damages in a bifurcated proceeding.--Notwithstanding 
     any other provision of law, in any proceeding to determine 
     whether the claimant in an action that is subject to this Act 
     may be awarded compensatory damages and punitive damages, 
     evidence of the defendant's financial condition and other 
     evidence bearing on the amount of punitive damages shall not 
     be admissible unless the evidence is admissible for a purpose 
     other than for determining the amount of punitive damages.
       (B) Proceeding with respect to punitive damages.--Evidence 
     that is admissible in a separate proceeding conducted under 
     paragraph (1) shall include evidence that bears on the 
     factors listed in paragraph (3).
       (3) Factors.--Notwithstanding any other provision of law, 
     in determining the amount of punitive damages awarded in an 
     action that is subject to this Act, the court shall consider 
     the following factors:
       (A) The likelihood that serious harm would arise from the 
     misconduct of the defendant in question.
       (B) The degree of the awareness of the defendant in 
     question of that likelihood.
       (C) The profitability of the misconduct to the defendant in 
     question.
       (D) The duration of the misconduct and any concealment of 
     the conduct by the defendant in question.
       (E) The attitude and conduct of the defendant in question 
     upon the discovery of the misconduct and whether the 
     misconduct has terminated.
       (F) The financial condition of the defendant in question.
       (G) The total effect of other punishment imposed or likely 
     to be imposed upon the defendant in question as a result of 
     the misconduct, including any awards of punitive or exemplary 
     damages to persons similarly situated to the claimant and the 
     severity of criminal penalties to which the defendant in 
     question has been or is likely to be subjected.
       (H) Any other factor that the court determines to be 
     appropriate.
       (4) Reasons for setting award amount.--
       (A) In general.--Notwithstanding any other provision of 
     law, with respect to an award of punitive damages in an 
     action that is subject to this Act, in findings of fact and 
     conclusions of law issued by the court, the court shall 
     clearly state the reasons of the court for setting the amount 
     of the award. The statements referred to in the preceding 
     sentence shall demonstrate the consideration of the factors 
     listed in subparagraphs (A) through (G) of paragraph (3). If 
     the court considers a factor under subparagraph (H) of 
     paragraph (3), the court shall state the effect of the 
     consideration of the factor on setting the amount of the 
     award.
       (B) Review of determination of award amount.--The 
     determination of the amount of the award shall only be 
     reviewed by a court as a factual finding and shall not be set 
     aside by a court unless the court determines that the amount 
     of the award is clearly erroneous.
     

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