[Congressional Record Volume 141, Number 75 (Monday, May 8, 1995)]
[Senate]
[Pages S6256-S6263]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT
The Senate continued with the consideration of the bill.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Amendment No. 709, as modified
Mr. GORTON. Mr. President, I send a modification of my earlier
amendment to the desk on behalf of myself, Senator Rockefeller, and
Senator Dole.
The PRESIDING OFFICER. The Senator has a right to modify the
amendment, and the amendment is so modified.
The amendment, as modified, is as follows:
Strike out all after the first word and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Product Liability Fairness
Act of 1995''.
TITLE I--PRODUCT LIABILITY
SEC. 101. DEFINITIONS.
For purposes of this Act, the following definitions shall
apply:
(1) Actual malice.--The term ``actual malice'' means
specific intent to cause serious physical injury, illness,
disease, or damage to property, or death.
(2) Claimant.--The term ``claimant'' means any person who
brings a product liability action and any person on whose
behalf such an action is brought. If an action is brought
through or on behalf of--
(A) an estate, the term includes the decedent; or
(B) a minor or incompetent, the term includes the legal
guardian of the minor or incompetent.
(3) Claimant's benefits.--The term ``claimant's benefits''
means the amount paid to an employee as workers' compensation
benefits.
(4) Clear and convincing evidence.--
(A) In general.--Subject to subparagraph (A), the term
``clear and convincing evidence'' is that measure of 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.
(B) Degree of proof.--The degree of proof required to
satisfy the standard of clear and convincing evidence shall
be--
(i) greater than the degree of proof required to meet the
standard of preponderance of the evidence; and
(ii) less than the degree of proof required to meet the
standard of proof beyond a reasonable doubt. [[Page S6257]]
(5) Commercial loss.--The term ``commercial loss'' means
any loss or damage to a product itself, loss relating to a
dispute over its value, or consequential economic loss the
recovery of which is governed by the Uniform Commercial Code
or analogous State commercial law, not including harm.
(6) Durable good.--The term ``durable good'' means any
product, or any component of any such product, which has a
normal life expectancy of 3 or more years or is of a
character subject to allowance for depreciation under the
Internal Revenue Code of 1986, and which is--
(A) used in a trade or business;
(B) held for the production of income; or
(C) sold or donated to a governmental or private entity for
the production of goods, training, demonstration, or any
other similar purpose.
(7) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including any medical
expense loss, work loss, replacement services loss, loss due
to death, burial costs, and loss of business or employment
opportunities), to the extent that recovery for the loss is
permitted under applicable State law.
(8) Harm.--The term ``harm'' means any physical injury,
illness, disease, or death, or damage to property, caused by
a product. The term does not include commercial loss or loss
or damage to a product itself.
(9) Insurer.--The term ``insurer'' means the employer of a
claimant, if the employer is self-insured, or the workers'
compensation insurer of an employer.
(10) Manufacturer.--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, but only with respect to those
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, constructs, 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 person; or
(C) any product seller that is not described in
subparagraph (B) that holds itself out as a manufacturer to
the user of the product.
(11) Noneconomic loss.--The term ``noneconomic loss''--
(A) means subjective, nonmonetary loss resulting from harm,
including pain, suffering, inconvenience, mental suffering,
emotional distress, loss of society and companionship, loss
of consortium, injury to reputation, and humiliation; and
(B) does not include economic loss.
(12) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity (including
any governmental entity).
(13) Product.--
(A) In general.--The term ``product'' means any object,
substance, mixture, or raw material in a gaseous, liquid, or
solid state that--
(i) is capable of delivery itself or as an assembled whole,
in a mixed or combined state, or as a component part or
ingredient;
(ii) is produced for introduction into trade or commerce;
(iii) has intrinsic economic value; and
(iv) is intended for sale or lease to persons for
commercial or personal use.
(B) Exclusion.--The term ``product'' does not include--
(i) tissue, organs, blood, and blood products used for
therapeutic or medical purposes, except to the extent that
such tissue, organs, blood, and blood products (or the
provision thereof) are subject, under applicable State law,
to a standard of liability other than negligence; and
(ii) electricity, water delivered by a utility, natural
gas, or steam.
(14) Product liability action.--The term ``product
liability action'' means a civil action brought on any theory
for harm caused by a product.
(15) Product seller.--
(A) In general.--The term ``product seller'' means a person
who--
(i) in the course of a business conducted for that purpose,
sells, distributes, rents, leases, prepares, blends,
packages, labels, or otherwise is involved in placing a
product in the stream of commerce; or
(ii) installs, repairs, refurbishes, reconditions, or
maintains the harm-causing aspect of the product.
(B) Exclusion.--The term ``product seller'' does not
include--
(i) a seller or lessor of real property;
(ii) 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
(iii) any person who--
(I) acts in only a financial capacity with respect to the
sale of a product; or
(II) leases a product under a lease arrangement in which
the lessor does not initially select the leased product and
does not during the lease term ordinarily control the daily
operations and maintenance of the product.
(16) State.--The term ``State'' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana
Islands, and any other territory or possession of the United
States, or any political subdivision thereof.
(17) Time of delivery.--The term ``time of delivery'' means
the time when a product is delivered to the first purchaser
or lessee of the product that was not involved in
manufacturing or selling the product, or using the product as
a component part of another product to be sold.
SEC. 102. APPLICABILITY; PREEMPTION.
(a) Applicability.--
(1) Actions covered.--Subject to paragraph (2), this title
applies to any product liability action commenced on or after
the date of enactment of this Act, without regard to whether
the harm that is the subject of the action or the conduct
that caused the harm occurred before such date of enactment.
(2) Actions excluded.--
(A) Actions for damage to product or commercial loss.--A
civil action brought for loss or damage to a product itself
or for commercial loss, shall not be subject to the
provisions of this title governing product liability actions,
but shall be subject to any applicable commercial or contract
law.
(B) Actions for negligent entrustment.--A civil action for
negligent entrustment shall not be subject to the provisions
of this title governing product liability actions, but shall
be subject to any applicable State law.
(b) Scope of Preemption.--
(1) In general.--This Act supersedes a State law only to
the extent that State law applies to an issue covered under
this title.
(2) Issues not covered under this act.--Any issue that is
not covered under this title, including any standard of
liability applicable to a manufacturer, shall not be subject
to this title, but shall be subject to applicable Federal or
State law.
(c) Statutory Construction.--Nothing in this title may be
construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any law;
(2) supersede or alter any Federal law;
(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 or modify any statutory or common law,
including any law providing for an action to abate a
nuisance, that authorizes a 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 for remediation of the environment (as defined
in section 101(8) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C.
9601(8)) or the threat of such remediation.
(d) Construction.--To promote uniformity of law in the
various jurisdictions, this title shall be construed and
applied after consideration of its legislative history.
(e) Effect of Court of Appeals Decisions.--Notwithstanding
any other provision of law, any decision of a circuit court
of appeals interpreting a provision of this title (except to
the extent that the decision is overruled or otherwise
modified by the Supreme Court) shall be considered a
controlling precedent with respect to any subsequent decision
made concerning the interpretation of such provision by any
Federal or State court within the geographical boundaries of
the area under the jurisdiction of the circuit court of
appeals.
SEC. 103. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) Service of Offer.--A claimant or a defendant in a
product liability action that is subject to this title may,
not later than 60 days after the service of the initial
complaint of the claimant or the applicable deadline for a
responsive pleading (whichever is later), serve upon an
adverse party an offer to proceed pursuant to any voluntary,
nonbinding alternative dispute resolution procedure
established or recognized under the law of the State in which
the product liability action is brought or under the rules of
the court in which such action is maintained.
(b) Written Notice of Acceptance or Rejection.--Except as
provided in subsection (c), not later than 10 days after the
service of an offer to proceed under subsection (a), an
offeree shall file a written notice of acceptance or
rejection of the offer.
(c) Extension.--The court may, upon motion by an offeree
made prior to the expiration of the 10-day period specified
in subsection (b), extend the period for filing a written
notice under such subsection for a period of not more than 60
days after the date of expiration of the period specified in
subsection (b). Discovery may be permitted during such
period.
SEC. 104. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS.
(a) General Rule.--
(1) In general.--In any product liability action that is
subject to this title filed by a [[Page S6258]] claimant for
harm caused by a product, a product seller other than a
manufacturer shall be liable to a claimant, only if the
claimant establishes--
(A) that--
(i) the product that allegedly caused the harm that is the
subject of the complaint was sold, rented, or leased by the
product seller;
(ii) the product seller failed to exercise reasonable care
with respect to the product; and
(iii) the failure to exercise reasonable care was a
proximate cause of harm to the claimant; or
(B) that--
(i) the product seller made an express warranty applicable
to the product that allegedly caused the harm that is the
subject of the complaint, independent of any express warranty
made by a manufacturer as to the same product;
(ii) the product failed to conform to the warranty; and
(iii) the failure of the product to conform to the warranty
caused harm to the claimant; or
(C) that--
(i) the product seller engaged in intentional wrongdoing,
as determined under applicable State law; and
(ii) such intentional wrongdoing was a
proximate cause of the harm that is the subject of the
complaint.
(2) Reasonable opportunity for inspection.--For purposes of
paragraph (1)(A)(ii), a product seller shall not be
considered to have failed to exercise reasonable care with
respect to a product based upon an alleged failure to inspect
a product if the product seller had no reasonable opportunity
to inspect the product that allegedly caused harm to the
claimant.
(b) Special Rule.--
(1) In general.--A product seller shall be deemed to be
liable as a manufacturer of a product for harm caused by the
product if--
(A) the manufacturer is not subject to service of process
under the laws of any State in which the action may be
brought; or
(B) the court determines that the claimant would be unable
to enforce a judgment against the manufacturer.
(2) Statute of limitations.--For purposes of this
subsection only, the statute of limitations applicable to
claims asserting liability of a product seller as a
manufacturer shall be tolled from the date of the filing of a
complaint against the manufacturer to the date that judgment
is entered against the manufacturer.
(c) Rented or Leased Products.--
(1) Notwithstanding any other provision of law, any person
engaged in the business of renting or leasing a product
(other than a person excluded from the definition of product
seller under section 101 (14)(B)) shall be subject to
liability in a product liability action under subsection (a),
but any person engaged in the business of renting or leasing
a product shall not be liable to a claimant for the tortious
act of another solely by reason of ownership of such product.
(2) For purposes of paragraph (1), and for determining the
applicability of this title to any person subject to
paragraph (1), the term ``product liability action'' means a
civil action brought on any theory for harm caused by a
product or product use.
SEC. 105. DEFENSES INVOLVING INTOXICATING ALCOHOL OR DRUGS.
(a) General Rule.--Notwithstanding any other provision of
law, a defendant in a product liability action that is
subject to this title shall have a complete defense in the
action if the defendant proves that--
(1) the claimant was under the influence of intoxicating
alcohol or any drug that may not lawfully be sold over-the-
counter without a prescription, and was not prescribed by a
physician for use by the claimant; and
(2) the claimant, as a result of the influence of the
alcohol or drug, was more than 50 percent responsible for the
accident or event which resulted in the harm to the claimant.
(b) Construction.--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.
SEC. 106. REDUCTION FOR MISUSE OR ALTERATION OF PRODUCT.
(a) General Rule.--
(1) In general.--Except as provided in subsection (c), in a
product liability action that is subject to this title, the
damages for which a defendant is otherwise liable under
applicable State law shall be reduced by the percentage of
responsibility for the harm to the claimant attributable to
misuse or alteration of a product by any person if the
defendant establishes that such percentage of the harm was
proximately caused by a use or alteration of a product--
(A) in violation of, or contrary to, the express warnings
or instructions of the defendant if the warnings or
instructions are determined to be adequate pursuant to
applicable State law; or
(B) involving a risk of harm which was known or should have
been known by the ordinary person who uses or consumes the
product with the knowledge common to the class of persons who
used or would be reasonably anticipated to use the product.
(2) Use intended by a manufacturer is not misuse or
alteration.--For the purposes of this title, a use of a
product that is intended by the manufacturer of the product
does not constitute a misuse or alteration of the product.
(b) State Law.--Notwithstanding section 3(b), subsection
(a) of this section shall supersede State law concerning
misuse or alteration of a product only to the extent that
State law is inconsistent with such subsection.
(c) Workplace Injury.--Notwithstanding subsection (a), the
amount of damages for which a defendant is otherwise liable
under State law shall not be reduced by the application of
this section with respect to the conduct of any employer or
coemployee of the plaintiff who is, under applicable State
law concerning workplace injuries, immune from being subject
to an action by the claimant.
SEC. 107. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.
(a) General Rule.--Punitive damages may, to the extent
permitted by applicable State law, be awarded against a
defendant in a product liability action that is subject to
this title 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) Limitation on Amount.--
(1) In general.--Except as provided in paragraphs (2) and
(3), the amount of punitive damages that may be awarded to a
claimant in a product liability action that is subject to
this title shall not exceed the greater of--
(A) 2 times the sum of--
(i) the amount awarded to the claimant for economic loss;
and
(ii) the amount awarded to the claimant for noneconomic
loss; or
(B) $250,000.
(2) Special rule.--The amount of punitive damages that may
be awarded in a product liability action that is subject to
this title against an individual whose net worth does not
exceed $500,000 or against an owner of an unincorporated
business, or any partnership, corporation, association, unit
of local government, or organization which has fewer than 25
full-time employees, shall not exceed the lesser of--
(A) 2 times the sum of--
(i) the amount awarded to the claimant for economic loss;
and
(ii) the amount awarded to the claimant for noneconomic
loss; or
(B) $250,000.
(3) Exception.--
(A) Determination by court.--Notwithstanding subsection
(C), in a product liability action that is subject to this
title, if the court makes a determination, after considering
each of the factors in subparagraph (B), that the application
of paragraph (1) would result in an award of punitive damages
that is insufficient to punish the egregious conduct of the
defendant against whom the punitive damages are to be awarded
or to deter such conduct in the future, the court shall
determine the additional amount of punitive damages in excess
of the amount determined in accordance with paragraph (1) to
be awarded to the claimant (referred to in this paragraph as
the ``additur'') in a separate proceeding in accordance with
this paragraph.
(B) Factors for consideration.--In any proceeding under
subparagraph (A), the court shall consider--
(i) the extent to which the defendant acted with actual
malice;
(ii) the likelihood that serious harm would arise from the
misconduct of the defendant;
(iii) the degree of the awareness of the defendant of that
likelihood;
(iv) the profitability of the misconduct to the defendant;
(v) the duration of the misconduct and any concurrent or
subsequent concealment of the conduct by the defendant;
(vi) the attitude and conduct of the defendant upon the
discovery of the misconduct and whether the misconduct has
terminated;
(vii) the financial condition of the defendant; and
(viii) the cumulative deterrent effect of other losses,
damages, and punishment suffered by the defendant as a result
of the misconduct, reducing the amount of punitive damages on
the basis of the economic impact and severity of all measures
to which the defendant has been or may be subjected,
including--
(I) compensatory and punitive damage awards to similarly
situated claimants;
(II) the adverse economic effect of stigma or loss of
reputation;
(III) civil fines and criminal and administrative
penalties; and
(IV) stop sale, cease and desist, and other remedial or
enforcement orders.
(C) Requirements for awarding additurs.--If the court
awards an additur under this paragraph, the court shall state
its reasons for setting the amount of the additur in findings
of fact and conclusions of law. If the additur is--
(i) accepted by the defendant, it shall be entered by the
court as a final judgment;
(ii) accepted by the defendant under protest, the order may
be reviewed on appeal; or
(iii) not accepted by the defense, the court shall set
aside the punitive damages award and order a new trial on the
issue of punitive damages only, and judgment shall enter upon
the verdict of liability and damages after the issue of
punitive damages is decided. [[Page S6259]]
(4) Application by court.--This subsection shall be applied
by the court and the application of this subsection shall not
be disclosed to the jury.
(5) Nothing in this subsection shall modify or reduce the
ability of courts to order remittiturs.
(c) Bifurcation at Request of Any Party.--
(1) In general.--At the request of any party, the trier of
fact in a product liability action that is subject to this
title shall consider in a separate proceeding whether
punitive damages are to be awarded for the harm that is the
subject of the action and the amount of the award.
(2) Inadmissibility of evidence relative only to a claim of
punitive damages in a proceeding concerning compensatory
damages.--If any party requests a separate proceeding under
paragraph (1), in any proceeding to determine whether the
claimant may be awarded compensatory damages, any evidence
that is relevant only to the claim of punitive damages, as
determined by applicable State law, shall be inadmissible.
SEC. 108. UNIFORM TIME LIMITATIONS ON LIABILITY.
(a) Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2) and
subsection (b), a product liability action that is subject to
this title may be filed not later than 2 years after the date
on which the claimant discovered or, in the exercise of
reasonable care, should have discovered, the harm that is the
subject of the action and the cause of the harm.
(2) Exceptions.--
(A) Person with a legal disability.--A person with a legal
disability (as determined under applicable law) may file a
product liability action that is subject to this title not
later than 2 years after the date on which the person ceases
to have the legal disability.
(B) Effect of stay or injunction.--If the commencement of a
civil action that is subject to this title is stayed or
enjoined, the running of the statute of limitations under
this section shall be suspended until the end of the period
that the stay or injunction is in effect.
(b) Statute of Repose.--
(1) In general.--Subject to paragraphs (2) and (3), no
product liability action that is subject to this title
concerning a product that is a durable good alleged to have
caused harm (other than toxic harm) may be filed after the
20-year period beginning at the time of delivery of the
product.
(2) State law.--Notwithstanding paragraph (1), if pursuant
to an applicable State law, an action described in such
paragraph is required to be filed during a period that is
shorter than the 20-year period specified in such paragraph,
the State law shall apply with respect to such period.
(3) Exceptions.--
(A) A motor vehicle, vessel, aircraft, or train that is
used primarily to transport passengers for hire shall not be
subject to this subsection.
(B) Paragraph (1) does not bar a product liability action
against a defendant who made an express warranty in writing
as to the safety of the specific product involved which was
longer than 20 years, but it will apply at the expiration of
that warranty.
(C) Paragraph (1) does not affect the limitations period
established by the General Aviation Revitalization Act of
1994 (49 U.S.C. 40101 note).
(c) Transitional Provision Relating to Extension of Period
for Bringing Certain Actions.--If any provision of subsection
(a) or (b) shortens the period during which a product
liability action that could be otherwise brought pursuant to
another provision of law, the claimant may, notwithstanding
subsections (a) and (b), bring the product liability action
pursuant to this title not later than 1 year after the date
of enactment of this Act.
SEC. 109. SEVERAL LIABILITY FOR NONECONOMIC LOSS.
(a) General Rule.--In a product liability action that is
subject to this title, the liability of each defendant for
noneconomic loss shall be several only and shall not be
joint.
(b) Amount of Liability.--
(1) In general.--Each defendant shall be liable only for
the amount of noneconomic loss allocated to the defendant in
direct proportion to the percentage of responsibility of the
defendant (determined in accordance with paragraph (2)) for
the harm to the claimant with respect to which the defendant
is liable. The court shall render a separate judgment against
each defendant in an amount determined pursuant to the
preceding sentence.
(2) Percentage of responsibility.--For purposes of
determining the amount of noneconomic loss allocated to a
defendant under this section, the trier of fact shall
determine the percentage of responsibility of each person
responsible for the claimant's harm, whether or not such
person is a party to the action.
SEC. 110. WORKERS' COMPENSATION SUBROGATION STANDARDS.
(a) General Rule.--
(1) Right of subrogation.--
(A) In general.--An insurer shall have a right of
subrogation against a manufacturer or product seller to
recover any claimant's benefits relating to harm that is the
subject of a product liability action that is subject to this
title.
(B) Written notification.--To assert a right of subrogation
under subparagraph (A), the insurer shall provide written
notice to the court in which the product liability action is
brought.
(C) Insurer not required to be a party.--An insurer shall
not be required to be a necessary and proper party in a
product liability action covered under subparagraph (A).
(2) Settlements and other legal proceedings.--
(A) In general.--In any proceeding relating to harm or
settlement with the manufacturer or product seller by a
claimant who files a product liability action that is subject
to this title, an insurer may participate to assert a right
of subrogation for claimant's benefits with respect to any
payment made by the manufacturer or product seller by reason
of such harm, without regard to whether the payment is made--
(i) as part of a settlement;
(ii) in satisfaction of judgment;
(iii) as consideration for a covenant not to sue; or
(iv) in another manner.
(B) Written notification.--Except as provided in
subparagraph (C), an employee shall not make any settlement
with or accept any payment from the manufacturer or product
seller without written notification to the employer.
(C) Exemption.--Subparagraph (B) shall not apply in any
case in which the insurer has been compensated for the full
amount of the claimant's benefits.
(3) Harm resulting from action of employer or coemployee.--
(A) In general.--If, with respect to a product liability
action that is subject to this title, the manufacturer or
product seller attempts to persuade the trier of fact that
the harm to the claimant was caused by the fault of the
employer of the claimant or any coemployee of the claimant,
the issue of that fault shall be submitted to the trier of
fact, but only after the manufacturer or product seller has
provided timely written notice to the employer.
(B) Rights of employer.--
(i) In general.--Notwithstanding any other provision of
law, with respect to an issue of fault submitted to a trier
of fact pursuant to subparagraph (A), an employer shall, in
the same manner as any party in the action (even if the
employer is not a named party in the action), have the right
to--
(I) appear;
(II) be represented;
(III) introduce evidence;
(IV) cross-examine adverse witnesses; and
(V) present arguments to the trier of fact.
(ii) Last issue.--The issue of harm resulting from an
action of an employer or coemployee shall be the last issue
that is presented to the trier of fact.
(C) Reduction of damages.--If the trier of fact finds by
clear and convincing evidence that the harm to the claimant
that is the subject of the product liability action was
caused by the fault of the employer or a coemployee of the
claimant--
(i) the court shall reduce by the amount of the claimant's
benefits--
(I) the damages awarded against the manufacturer or product
seller; and
(II) any corresponding insurer's subrogation lien; and
(ii) the manufacturer or product seller shall have no
further right by way of contribution or otherwise against the
employer.
(D) Certain rights of subrogation not affected.--
Notwithstanding a finding by the trier of fact described in
subparagraph (C), the insurer shall not lose any right of
subrogation related to any--
(i) intentional tort committed against the claimant by a
coemployee; or
(ii) act committed by a coemployee outside the scope of
normal work practices.
(b) Attorney's Fees.--If, in a product liability action
that is subject to this section, the court finds that harm to
a claimant was not caused by the fault of the employer or a
coemployee of the claimant, the manufacturer or product
seller shall reimburse the insurer for reasonable attorney's
fees and court costs incurred by the insurer in the action,
as determined by the court.
SEC. 111. FEDERAL CAUSE OF ACTION PRECLUDED.
The district courts of the United States shall not have
jurisdiction under section 1331 or 1337 of title 28, United
States Code, over any product liability action covered under
this title.
TITLE II--BIOMATERIALS ACCESS ASSURANCE
SEC. 201. SHORT TITLE.
This title may be cited as the ``Biomaterials Access
Assurance Act of 1995''.
SEC. 202. FINDINGS.
Congress finds that--
(1) each year millions of citizens of the United States
depend on the availability of lifesaving or life-enhancing
medical devices, many of which are permanently implantable
within the human body;
(2) a continued supply of raw materials and component parts
is necessary for the invention, development, improvement, and
maintenance of the supply of the devices;
(3) most of the medical devices are made with raw materials
and component parts that--
(A) are not designed or manufactured specifically for use
in medical devices; and
(B) come in contact with internal human
tissue; [[Page S6260]]
(4) the raw materials and component parts also are used in
a variety of nonmedical products;
(5) because small quantities of the raw materials and
component parts are used for medical devices, sales of raw
materials and component parts for medical devices constitute
an extremely small portion of the overall market for the raw
materials and medical devices;
(6) under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.), manufacturers of medical devices are
required to demonstrate that the medical devices are safe and
effective, including demonstrating that the products are
properly designed and have adequate warnings or instructions;
(7) notwithstanding the fact that raw materials and
component parts suppliers do not design, produce, or test a
final medical device, the suppliers have been the subject of
actions alleging inadequate--
(A) design and testing of medical devices manufactured with
materials or parts supplied by the suppliers; or
(B) warnings related to the use of such medical devices;
(8) even though suppliers of raw materials and component
parts have very rarely been held liable in such actions, such
suppliers have ceased supplying certain raw materials and
component parts for use in medical devices because the costs
associated with litigation in order to ensure a favorable
judgment for the suppliers far exceeds the total potential
sales revenues from sales by such suppliers to the medical
device industry;
(9) unless alternate sources of supply can be found, the
unavailability of raw materials and component parts for
medical devices will lead to unavailability of lifesaving and
life-enhancing medical devices;
(10) because other suppliers of the raw materials and
component parts in foreign nations are refusing to sell raw
materials or component parts for use in manufacturing certain
medical devices in the United States, the prospects for
development of new sources of supply for the full range of
threatened raw materials and component parts for medical
devices are remote;
(11) it is unlikely that the small market for such raw
materials and component parts in the United States could
support the large investment needed to develop new suppliers
of such raw materials and component parts;
(12) attempts to develop such new suppliers would raise the
cost of medical devices;
(13) courts that have considered the duties of the
suppliers of the raw materials and component parts have
generally found that the suppliers do not have a duty--
(A) to evaluate the safety and efficacy of the use of a raw
material or component part in a medical device; and
(B) to warn consumers concerning the safety and
effectiveness of a medical device;
(14) attempts to impose the duties referred to in
subparagraphs (A) and (B) of paragraph (13) on suppliers of
the raw materials and component parts would cause more harm
than good by driving the suppliers to cease supplying
manufacturers of medical devices; and
(15) in order to safeguard the availability of a wide
variety of lifesaving and life-enhancing medical devices,
immediate action is needed--
(A) to clarify the permissible bases of liability for
suppliers of raw materials and component parts for medical
devices; and
(B) to provide expeditious procedures to dispose of
unwarranted suits against the suppliers in such manner as to
minimize litigation costs.
SEC. 203. DEFINITIONS.
As used in this title:
(1) Biomaterials supplier.--
(A) In general.--The term ``biomaterials supplier'' means
an entity that directly or indirectly supplies a component
part or raw material for use in the manufacture of an
implant.
(B) Persons included.--Such term includes any person who--
(i) has submitted master files to the Secretary for
purposes of premarket approval of a medical device; or
(ii) licenses a biomaterials supplier to produce component
parts or raw materials.
(2) Claimant.--
(A) In general.--The term ``claimant'' means any person who
brings a civil action, or on whose behalf a civil action is
brought, arising from harm allegedly caused directly or
indirectly by an implant, including a person other than the
individual into whose body, or in contact with whose blood or
tissue, the implant is placed, who claims to have suffered
harm as a result of the implant.
(B) Action brought on behalf of an estate.--With respect to
an action brought on behalf or through the estate of an
individual into whose body, or in contact with whose blood or
tissue the implant is placed, such term includes the decedent
that is the subject of the action.
(C) Action brought on behalf of a minor.--With respect to
an action brought on behalf or through a minor, such term
includes the parent or guardian of the minor.
(D) Exclusions.--Such term does not include--
(i) a provider of professional services, in any case in
which--
(I) the sale or use of an implant is incidental to the
transaction; and
(II) the essence of the transaction is the furnishing of
judgment, skill, or services; or
(ii) a manufacturer, seller, or biomaterials supplier.
(3) Component part.--
(A) In general.--The term ``component part'' means a
manufactured piece of an implant.
(B) Certain components.--Such term includes a manufactured
piece of an implant that--
(i) has significant nonimplant applications; and
(ii) alone, has no implant value or purpose, but when
combined with other component parts and materials,
constitutes an implant.
(4) Harm.--
(A) In general.--The term ``harm'' means--
(i) any injury to or damage suffered by an individual;
(ii) any illness, disease, or death of that individual
resulting from that injury or damage; and
(iii) any loss to that individual or any other individual
resulting from that injury or damage.
(B) Exclusion.--The term does not include any commercial
loss or loss of or damage to an implant.
(5) Implant.--The term ``implant'' means--
(A) a medical device that is intended by the manufacturer
of the device--
(i) to be placed into a surgically or naturally formed or
existing cavity of the body for a period of at least 30 days;
or
(ii) to remain in contact with bodily fluids or internal
human tissue through a surgically produced opening for a
period of less than 30 days; and
(B) suture materials used in implant procedures.
(6) Manufacturer.--The term ``manufacturer'' means any
person who, with respect to an implant--
(A) is engaged in the manufacture, preparation,
propagation, compounding, or processing (as defined in
section 510(a)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(a)(1)) of the implant; and
(B) is required--
(i) to register with the Secretary pursuant to section 510
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360)
and the regulations issued under such section; and
(ii) to include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section.
(7) Medical device.--The term ``medical device'' means a
device, as defined in section 201(h) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(h)).
(8) Raw material.--The term ``raw material'' means a
substance or product that--
(A) has a generic use; and
(B) may be used in an application other than an implant.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(10) Seller.--
(A) In general.--The term ``seller'' means a person who, in
the course of a business conducted for that purpose, sells,
distributes, leases, packages, labels, or otherwise places an
implant in the stream of commerce.
(B) Exclusions.--The term does not include--
(i) a seller or lessor of real property;
(ii) a provider of professional services, in any case in
which the sale or use of an implant is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who acts in only a financial capacity with
respect to the sale of an implant.
SEC. 204. GENERAL REQUIREMENTS; APPLICABILITY; PREEMPTION.
(a) General Requirements.--
(1) In general.--In any civil action covered by this title,
a biomaterials supplier may raise any defense set forth in
section 205.
(2) Procedures.--Notwithstanding any other provision of
law, the Federal or State court in which a civil action
covered by this title is pending shall, in connection with a
motion for dismissal or judgment based on a defense described
in paragraph (1), use the procedures set forth in section
206.
(b) Applicability.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding any other provision of law, this title
applies to any civil action brought by a claimant, whether in
a Federal or State court, against a manufacturer, seller, or
biomaterials supplier, on the basis of any legal theory, for
harm allegedly caused by an implant.
(2) Exclusion.--A civil action brought by a purchaser of a
medical device for use in providing professional services
against a manufacturer, seller, or biomaterials supplier for
loss or damage to an implant or for commercial loss to the
purchaser--
(A) shall not be considered an action that is subject to
this title; and
(B) shall be governed by applicable commercial or contract
law.
(c) Scope of Preemption.--
(1) In general.--This title supersedes any State law
regarding recovery for harm caused by an implant and any rule
of procedure applicable to a civil action to recover damages
for such harm only to the extent that this title establishes
a rule of law applicable to the recovery of such damages.
(2) Applicability of other laws.--Any issue that arises
under this title and that is not governed by a rule of law
applicable to [[Page S6261]] the recovery of damages
described in paragraph (1) shall be governed by applicable
Federal or State law.
(d) Statutory Construction.--Nothing in this title may be
construed--
(1) to affect any defense available to a defendant under
any other provisions of Federal or State law in an action
alleging harm caused by an implant; or
(2) to create a cause of action or Federal court
jurisdiction pursuant to section 1331 or 1337 of title 28,
United States Code, that otherwise would not exist under
applicable Federal or State law.
SEC. 205. LIABILITY OF BIOMATERIALS SUPPLIERS.
(a) In General.--
(1) Exclusion from liability.--Except as provided in
paragraph (2), a biomaterials supplier shall not be liable
for harm to a claimant caused by an implant.
(2) Liability.--A biomaterials supplier that--
(A) is a manufacturer may be liable for harm to a claimant
described in subsection (b);
(B) is a seller may be liable for harm to a claimant
described in subsection (c); and
(C) furnishes raw materials or component parts that fail to
meet applicable contractual requirements or specifications
may be liable for a harm to a claimant described in
subsection (d).
(b) Liability as Manufacturer.--
(1) In general.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant if the
biomaterials supplier is the manufacturer of the implant.
(2) Grounds for liability.--The bio- materials supplier may
be considered the manufacturer of the implant that allegedly
caused harm to a claimant only if the biomaterials supplier--
(A)(i) has registered with the Secretary pursuant to
section 510 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360) and the regulations issued under such section;
and
(ii) included the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section;
(B) is the subject of a declaration issued by the Secretary
pursuant to paragraph (3) that states that the supplier, with
respect to the implant that allegedly caused harm to the
claimant, was required to--
(i) register with the Secretary under section 510 of such
Act (21 U.S.C. 360), and the regulations issued under such
section, but failed to do so; or
(ii) include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section,
but failed to do so; or
(C) is related by common ownership or control to a person
meeting all the requirements described in subparagraph (A) or
(B), if the court deciding a motion to dismiss in accordance
with section 206(c)(3)(B)(i) finds, on the basis of
affidavits submitted in accordance with section 206, that it
is necessary to impose liability on the biomaterials supplier
as a manufacturer because the related manufacturer meeting
the requirements of subparagraph (A) or (B) lacks sufficient
financial resources to satisfy any judgment that the court
feels it is likely to enter should the claimant prevail.
(3) Administrative procedures.--
(A) In general.--The Secretary may issue a declaration
described in paragraph (2)(B) on the motion of the Secretary
or on petition by any person, after providing--
(i) notice to the affected persons; and
(ii) an opportunity for an informal hearing.
(B) Docketing and final decision.--Immediately upon receipt
of a petition filed pursuant to this paragraph, the Secretary
shall docket the petition. Not later than 180 days after the
petition is filed, the Secretary shall issue a final decision
on the petition.
(C) Applicability of statute of limitations.--Any
applicable statute of limitations shall toll during the
period during which a claimant has filed a petition with the
Secretary under this paragraph.
(c) Liability as Seller.--A biomaterials supplier may, to
the extent required and permitted by any other applicable
law, be liable as a seller for harm to a claimant caused by
an implant if--
(1) the biomaterials supplier--
(A) held title to the implant that allegedly caused harm to
the claimant as a result of purchasing the implant after--
(i) the manufacture of the implant; and
(ii) the entrance of the implant in the stream of commerce;
and
(B) subsequently resold the implant; or
(2) the biomaterials supplier is related by common
ownership or control to a person meeting all the requirements
described in paragraph (1), if a court deciding a motion to
dismiss in accordance with section 206(c)(3)(B)(i) finds, on
the basis of affidavits submitted in accordance with section
206, that it is necessary to impose liability on the
biomaterials supplier as a seller because the related
manufacturer meeting the requirements of paragraph (1) lacks
sufficient financial resources to satisfy any judgment that
the court feels it is likely to enter should the claimant
prevail.
(d) Liability for Violating Contractual Requirements or
Specifications.--A bio- materials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant, if the claimant
in an action shows, by a preponderance of the evidence,
that--
(1) the raw materials or component parts delivered by the
biomaterials supplier either--
(A) did not constitute the product described in the
contract between the bio- materials supplier and the person
who contracted for delivery of the product; or
(B) failed to meet any specifications that were--
(i) provided to the biomaterials supplier and not expressly
repudiated by the bio- materials supplier prior to acceptance
of delivery of the raw materials or component parts;
(ii)(I) published by the biomaterials supplier;
(II) provided to the manufacturer by the biomaterials
supplier; or
(III) contained in a master file that was submitted by the
biomaterials supplier to the Secretary and that is currently
maintained by the biomaterials supplier for purposes of
premarket approval of medical devices; or
(iii)(I) included in the submissions for purposes of
premarket approval or review by the Secretary under section
510, 513, 515, or 520 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360, 360c, 360e, or 360j); and
(II) have received clearance from the Secretary,
if such specifications were provided by the manufacturer to
the biomaterials supplier and were not expressly repudiated
by the biomaterials supplier prior to the acceptance by the
manufacturer of delivery of the raw materials or component
parts; and
(2) such conduct was an actual and proximate cause of the
harm to the claimant.
SEC. 206. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST
BIOMATERIALS SUPPLIERS.
(a) Motion To Dismiss.--In any action that is subject to
this title, a biomaterials supplier who is a defendant in
such action may, at any time during which a motion to dismiss
may be filed under an applicable law, move to dismiss the
action on the grounds that--
(1) the defendant is a biomaterials supplier; and
(2)(A) the defendant should not, for the purposes of--
(i) section 205(b), be considered to be a manufacturer of
the implant that is subject to such section; or
(ii) section 205(c), be considered to be a seller of the
implant that allegedly caused harm to the claimant; or
(B)(i) the claimant has failed to establish, pursuant to
section 205(d), that the supplier furnished raw materials or
component parts in violation of contractual requirements or
specifications; or
(ii) the claimant has failed to comply with the procedural
requirements of subsection (b).
(b) Manufacturer of Implant Shall Be Named a Party.--The
claimant shall be required to name the manufacturer of the
implant as a party to the action, unless--
(1) the manufacturer is subject to service of process
solely in a jurisdiction in which the biomaterials supplier
is not domiciled or subject to a service of process; or
(2) an action against the manufacturer is barred by
applicable law.
(c) Proceeding on Motion To Dismiss.--The following rules
shall apply to any proceeding on a motion to dismiss filed
under this section:
(1) Affidavits relating to listing and declarations.--
(A) In general.--The defendant in the action may submit an
affidavit demonstrating that defendant has not included the
implant on a list, if any, filed with the Secretary pursuant
to section 510(j) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(j)).
(B) Response to motion to dismiss.--In response to the
motion to dismiss, the claimant may submit an affidavit
demonstrating that--
(i) the Secretary has, with respect to the defendant and
the implant that allegedly caused harm to the claimant,
issued a declaration pursuant to section 205(b)(2)(B); or
(ii) the defendant who filed the motion to dismiss is a
seller of the implant who is liable under section 205(c).
(2) Effect of motion to dismiss on discovery.--
(A) In general.--If a defendant files a motion to dismiss
under paragraph (1) or (2) of subsection (a), no discovery
shall be permitted in connection to the action that is the
subject of the motion, other than discovery necessary to
determine a motion to dismiss for lack of jurisdiction, until
such time as the court rules on the motion to dismiss in
accordance with the affidavits submitted by the parties in
accordance with this section.
(B) Discovery.--If a defendant files a motion to dismiss
under subsection (a)(2) on the grounds that the biomaterials
supplier did not furnish raw materials or component parts in
violation of contractual requirements or specifications, the
court may permit discovery, as ordered by the court. The
discovery conducted pursuant to this subparagraph shall be
limited to issues that are directly relevant to--
(i) the pending motion to dismiss; or
(ii) the jurisdiction of the court.
(3) Affidavits relating status of defendant.--
[[Page S6262]]
(A) In general.--Except as provided in clauses (i) and (ii)
of subparagraph (B), the court shall consider a defendant to
be a biomaterials supplier who is not subject to an action
for harm to a claimant caused by an implant, other than an
action relating to liability for a violation of contractual
requirements or specifications described in subsection (d).
(B) Responses to motion to dismiss.--The court shall grant
a motion to dismiss any action that asserts liability of the
defendant under subsection (b) or (c) of section 205 on the
grounds that the defendant is not a manufacturer subject to
such section 205(b) or seller subject to section 205(c),
unless the claimant submits a valid affidavit that
demonstrates that--
(i) with respect to a motion to dismiss contending the
defendant is not a manufacturer, the defendant meets the
applicable requirements for liability as a manufacturer under
section 205(b); or
(ii) with respect to a motion to dismiss contending that
the defendant is not a seller, the defendant meets the
applicable requirements for liability as a seller under
section 205(c).
(4) Basis of ruling on motion to dismiss.--
(A) In general.--The court shall rule on a motion to
dismiss filed under subsection (a) solely on the basis of the
pleadings of the parties made pursuant to this section and
any affidavits submitted by the parties pursuant to this
section.
(B) Motion for summary judgment.--Notwithstanding any other
provision of law, if the court determines that the pleadings
and affidavits made by parties pursuant to this section raise
genuine issues as concerning material facts with respect to a
motion concerning contractual requirements and
specifications, the court may deem the motion to dismiss to
be a motion for summary judgment made pursuant to subsection
(d).
(d) Summary Judgment.--
(1) In general.--
(A) Basis for entry of judgment.--A biomaterials supplier
shall be entitled to entry of judgment without trial if the
court finds there is no genuine issue as concerning any
material fact for each applicable element set forth in
paragraphs (1) and (2) of section 205(d).
(B) Issues of material fact.--With respect to a finding
made under subparagraph (A), the court shall consider a
genuine issue of material fact to exist only if the evidence
submitted by claimant would be sufficient to allow a
reasonable jury to reach a verdict for the claimant if the
jury found the evidence to be credible.
(2) Discovery made prior to a ruling on a motion for
summary judgment.--If, under applicable rules, the court
permits discovery prior to a ruling on a motion for summary
judgment made pursuant to this subsection, such discovery
shall be limited solely to establishing whether a genuine
issue of material fact exists.
(3) Discovery with respect to a bio- materials supplier.--A
biomaterials supplier shall be subject to discovery in
connection with a motion seeking dismissal or summary
judgment on the basis of the inapplicability of section
205(d) or the failure to establish the applicable elements of
section 205(d) solely to the extent permitted by the
applicable Federal or State rules for discovery against
nonparties.
(e) Stay Pending Petition for Declaration.--If a claimant
has filed a petition for a declaration pursuant to section
205(b) with respect to a defendant, and the Secretary has not
issued a final decision on the petition, the court shall stay
all proceedings with respect to that defendant until such
time as the Secretary has issued a final decision on the
petition.
(f) Manufacturer Conduct of Proceeding.--The manufacturer
of an implant that is the subject of an action covered under
this title shall be permitted to file and conduct a
proceeding on any motion for summary judgment or dismissal
filed by a biomaterials supplier who is a defendant under
this section if the manufacturer and any other defendant in
such action enter into a valid and applicable contractual
agreement under which the manufacturer agrees to bear the
cost of such proceeding or to conduct such proceeding.
(g) Attorney Fees.--The court shall require the claimant to
compensate the biomaterials supplier (or a manufacturer
appearing in lieu of a supplier pursuant to subsection (f))
for attorney fees and costs, if--
(1) the claimant named or joined the biomaterials supplier;
and
(2) the court found the claim against the biomaterials
supplier to be without merit and frivolous.
SEC. 207. APPLICABILITY.
This title shall apply to all civil actions covered under
this title that are commenced on or after the date of
enactment of this Act, including any such action with respect
to which the harm asserted in the action or the conduct that
caused the harm occurred before the date of enactment of this
Act.
Mr. GORTON. I yield the floor.
Mr. ROCKEFELLER addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. I ask unanimous consent to speak on the amendment.
The PRESIDING OFFICER (Mr. Abraham). Without objection, it is so
ordered.
Mr. ROCKEFELLER. I thank the Chair.
Mr. President, there was, to put it mildly, a certain amount of
confusion as to what just happened in the last hour or so. I found
myself on the telephone advising distinguished Senators with years of
experience to vote for what we just voted on and then 5 minutes later
to vote against it.
That is not my normal custom in trying to be wise on these matters.
But the fact is that, as the Senator from Washington indicated, there
were procedural and technical writing problems, and the technical
writing problems in the bill in fact were not addressed properly and
were not done properly, and they have to be done properly. But make no
mistake about it; the news of the day is not that we just had a vote on
which some people thought they were going to vote no and they turned
out voting yes or vice versa. The news of the day is that the Senator
from Washington and the Senator from West Virginia have reached a very
good agreement on a final version of the product liability reform that
we think reflects the will and the objectives of Senators on both sides
of the aisle.
That is where the activity and the time today has, in fact, been
spent. It was not spent on, unfortunately, wrapping up the last-moment
details. The 4:20 cloture vote really caught me by surprise. But the
time today has been spent between the Senator from Washington and the
Senator from West Virginia, the Senator from West Virginia consulting
with many Senators on my side of the aisle, and the staff of the
Senator from Washington and the staff of the Senator from West Virginia
working together.
We have reached agreement. That is the news. We have a product
liability reform bill which we are now convinced will pass. After 13
years of attempting to do this on the part of some, only 9 years on my
part, this is remarkable, remarkable news. I believe that we are in a
position now to win product liability reform.
Again, I want to apologize to my colleagues on both sides of the
aisle that it has taken us so long to get here, and then, when we got
here, at the very last moment, we had this technical writing problem
which we, in fact, had to get right and we had not gotten it right,
because things were rushed. We are now in the process of doing that. It
is very easy. It will be done before the end of the day and we will
have the cloture motion tomorrow, which is already ordered, and on we
go.
Then, presumably, those who oppose the bill will try to amend it. But
the Senator from Washington and the majority leader, Senator Dole, and
I are convinced that we can put aside those amendments, spend the 20
hours or whatever it is that we have remaining in debate, and then go
ahead and pass the bill.
This is the story of the legislative process. It is not always
beautiful and today was an example of it.
We have on the other hand, I have to say, listened and debated and
analyzed and argued every aspect of product liability and the best ways
to do reform. It is very controversial. It is something that people
have strong feelings on and it is hard to come to an agreement on,
which makes even more formidable, it seems to me, the agreement which
has been reached that affects the majority leader, the Senator from the
State of Washington, the junior Senator from West Virginia, and
Senators that the junior Senator from West Virginia has been working
with on our side who favor product liability reform.
I think the bill that has been put together, which is now agreed on,
deserves support, and I think it will get support. I think, in fact, it
will win rather broad support.
So I want the Presiding Officer to be of good cheer and look forward
to tomorrow and maybe a day or two after that.
We have made real changes to the section that deals with punitive
damages in a way which I think will ease concerns, particularly on my
side of the aisle. We have made changes that directly address the
concerns of a number of Senators.
I know that this substitute remains balanced, represents real reform,
and will solve some problems that have [[Page S6263]] been crying out
for solution for all of these years. I hope the process will untangle
itself. I am now confident it will--there was a moment there when we
were not sure, but I think it will and I think it has--and we will then
be able to give Senators on both sides a chance to vote for good
product liability reform.
This is not a product of the Contract With America. It is not a
product of the Democratic Party. It is a product of people who want
reform on both sides of the aisle, working within the Senate, within
our ways, within our beliefs to achieve compromise. That is the way the
Senate works.
After all, the President of the United States will have to sign the
bill and put it into law. This is what has always struck me when people
say that the conference process will ruin everything. I have never felt
that. I know the Senator from Washington agrees with me on that, and I
suspect the majority leader does. I know I do. Because the President,
if he does not want to sign the bill, if it does not meet his criteria,
which he has laid out to us, will simply veto it and that will be that.
So there is a discipline that works there in conference process, which
is good.
I remind my colleagues and the leadership in the other body of what I
have just said. We have tended to push aside expansionism here and
focus on product liability reform. We do that in the agreement between
the Senator from Washington and the Senator from West Virginia. So, let
the leadership on the other side understand that we are firm in our
resolution, and that the President is, too. He will not sign anything
other than what stands within his parameters of acceptability.
So I conclude simply by saying that the sidebar of the day was that
there was a certain amount of confusion during the process at the end.
But the story is that the two sides have reached agreement--Democrats
who favor reform and Republicans who favor reform. I have been through
this reform with most of my colleagues on my side and have met with a
very good reaction, and I assume the same is true on the Republican
side.
So, Mr. President, I simply wanted to say that, because there was a
certain amount of confusion, but that pales in comparison to the good
news of the agreement.
I thank the Chair and yield the floor.
____________________