[Congressional Record Volume 144, Number 89 (Wednesday, July 8, 1998)]
[Senate]
[Pages S7683-S7692]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PRODUCT LIABILITY REFORM ACT OF 1998

                                 ______
                                 

               TORRICELLI (AND OTHERS) AMENDMENT NO. 3069

  (Ordered to lie on the table)
  Mr. TORRICELLI (for himself, Mr. Feinstein, Mrs. Boxer, and Mr. 
Lautenberg) submitted an amendment intended to be proposed by them to 
the bill, S. 648, supra; as follows:

       In section 101, after paragraph (9), insert the following:
       (9A) Firearm.--The term ``firearm''--
       (A) has the meaning given that term in section 921(3) of 
     title 18, United States Code; and
       (B) includes any firearm included under the definition of 
     that term under section 5845 of the Internal Revenue Code of 
     1986.
       In the heading of section 102(a)(2)(B), strike ``negligence 
     per se concerning firearms and ammunition''.
       In section 102(a)(2)(B), strike clause (ii) and redesignate 
     clause (iii) as clause (ii).

[[Page S7684]]

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving harm caused by a firearm or 
     ammunition.--A civil action brought for harm caused by a 
     firearm or ammunition shall not be subject to the provisions 
     of this title governing product liability actions, but shall 
     be subject to any applicable Federal or State law.
                                 ______
                                 

                    BOXER AMENDMENTS. NOS. 3070-3078

  (Ordered to lie on the table)
  Mrs. BOXER submitted nine amendments intended to be proposed by her 
to the bill, S. 2168, supra;

                           Amendment No. 3070

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving harm that results in a disability 
     that renders an injured party incapable of continuing to work 
     in the occupation of the party.--A civil action brought for 
     harm caused by a product that results in a disability that 
     renders an injured party incapable of continuing to work in 
     the occupation that that party was engaged in at the time of 
     the injury shall not be subject to the provisions of this 
     title governing product liability actions, but shall be 
     subject to any applicable Federal or State law.
                                  ____


                           Amendment No. 3071

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving a loss of fertility.--A civil action 
     brought for harm caused by a product that includes a loss of 
     fertility caused by that product shall not be subject to the 
     provisions of this title governing product liability actions, 
     but shall be subject to any applicable Federal or State law.
                                  ____


                           Amendment No. 3072

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving severe disfigurement.--A civil action 
     brought for harm caused by a product that includes severe 
     disfigurement caused by that product shall not be subject to 
     the provisions of this title governing product liability 
     actions, but shall be subject to any applicable Federal or 
     State law.
                                  ____


                           Amendment No. 3073

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving blindness.--A civil action brought 
     for harm caused by a product that includes blindness caused 
     by that product shall not be subject to the provisions of 
     this title governing product liability actions, but shall be 
     subject to any applicable Federal or State law.
                                  ____


                           Amendment No. 3074

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving permanent paralysis.--A civil action 
     brought for harm caused by a product that includes permanent 
     paralysis caused by that product shall not be subject to the 
     provisions of this title governing product liability actions, 
     but shall be subject to any applicable Federal or State law.
                                  ____


                           Amendment No. 3075

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving multiple limb loss.--A civil action 
     brought for harm caused by a product that includes multiple 
     limb loss caused by that product shall not be subject to the 
     provisions of this title governing product liability actions, 
     but shall be subject to any applicable Federal or State law.
                                  ____


                           Amendment No. 3076

       On page 14, between lines 19 and 20, insert the following:
       (E) Actions involving harm caused by a handgun.--
       (i) In general.--A civil action against a transferor of a 
     handgun (as defined in section 921(a) of title 18, United 
     States Code) for harm caused by the handgun shall not be 
     subject to the provisions of this title governing product 
     liability actions, but shall be subject to any applicable 
     Federal or State law, unless the transferee was provided with 
     a locking device for that handgun at the time of transfer.
       (ii) Definition of locking device.--In this subparagraph, 
     the term ``locking device'' means a device or locking 
     mechanism--

       (I) that--

       (aa) if installed on a firearm and secured by means of a 
     key or a mechanically, electronically, or electromechanically 
     operated combination lock, is designed to prevent the firearm 
     from being discharged without first deactivating or removing 
     the device by means of a key or mechanically, electronically, 
     or electromechanically operated combination lock;
       (bb) if incorporated into the design of a firearm, is 
     designed to prevent discharge of the firearm by any person 
     who does not have access to the key or other device designed 
     to unlock the mechanism and thereby allow discharge of the 
     firearm; or
       (cc) is a safe, gun safe, gun case, lock box, or other 
     device that is designed to store a firearm, and that is 
     designed to be unlocked only by means of a key, a 
     combination, or other similar means; and

       (II) that is approved by a licensed firearms manufacturer 
     (as defined in section 921(a) of title 18, United States 
     Code) for use on the handgun with which the device or locking 
     mechanism is sold, delivered, or transferred.
                                  ____


                           Amendment No. 3077

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving severe brain damage that renders an 
     injured party incapable of unassisted living.--A civil action 
     brought for harm caused by a product that includes severe 
     brain damage caused by that product that renders an injured 
     party incapable of unassisted living shall not be subject to 
     the provisions of this title governing product liability 
     actions, but shall be subject to any applicable Federal or 
     State law.
                                  ____


                           Amendment No. 3078

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving internal organ damage that results in 
     a need for an organ transplant.--A civil action brought for 
     harm caused by a product that includes internal organ damage 
     caused by that product that results in a need for an organ 
     transplant shall not be subject to the provisions of this 
     title governing product liability actions, but shall be 
     subject to any applicable Federal or State law.
                                 ______
                                 

                       CONRAD AMENDMENT NO. 3079

  (Ordered to lie on the table)
  Mr. CONRAD submitted an amendment intended to be proposed by him to 
the bill, S. 648, supra; as follows:

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions relating to harm caused by violent, 
     pornographic, obscene, or indecent materials.--
       (i) In general.--A civil action brought for harm caused by 
     any violent, pornographic, obscene, or indecent material 
     shall not be subject to the provisions of this title 
     governing product liability actions, but shall be subject to 
     any applicable Federal or State law.
       (ii) Materials included.--The materials referred to in 
     clause (i) include any movie, television show, videotape, 
     record, audio tape recording, CD-ROM, or other visual, audio, 
     or electronic media that is violent, pornographic, obscene, 
     or indecent.
                                 ______
                                 

                    LEAHY AMENDMENTS NOS. 3080-3081

  (Ordered to lie on the table)
  Mr. LEAHY sumbitted two amendments intended to be proposed by him to 
the bill, S. 648, supra; as follows:

                           Amendment No. 3080

       In section 102(a)(2), strike subparagraph (A) and insert 
     the following:
       (A) Actions for commercial loss, economic loss, and 
     noneconomic loss.--
       (i) Commercial loss.--A civil action brought for commercial 
     loss shall be governed only by applicable commercial law, 
     including applicable State law based on the Uniform 
     Commercial Code.
       (ii) Economic loss and noneconomic loss.--A civil action 
     brought for economic loss or noneconomic loss shall be 
     governed only by applicable State law.
                                  ____


                           Amendment No. 3081

       In section 102(a)(2)--
       (1) strike subparagraph (A); and
       (2) redesignate subparagraphs (B) through (D) as 
     subparagraphs (A) through (C), respectively.
                                 ______
                                 

                        LEVIN AMENDMENT NO. 3082

  (Ordered to lie on the table)
  Mr. LEVIN submitted an amendment intended to be proposed by him to 
the bill, S. 648, supra; as follows:

       In section 110(a)(1), in the first sentence, strike ``To 
     the extent punitive damages are permitted by applicable State 
     law, punitive damages'' and insert ``Punitive damages''.
                                 ______
                                 

                KERRY (AND HOLLINGS) AMENDMENT NO. 3083

  (Ordered to lie on the table.)
  Mr. KERRY (for himself and Mr. Hollings) submitted an amendment 
intended to be proposed by him to the bill, S. 648, supra; as follows:

       To the pending substitute amendment, on page 22, line 23, 
     after the period, add the following: ``As used in this 
     section, the term `toxic harm' shall mean any harm caused by 
     acute or repeated exposure to asbestos or any radioactive 
     compounds or any other chemical or hazardous substance listed 
     by the Centers for Disease Control Agency or the Toxic 
     Substances and Disease Registry.''
                                 ______
                                 

                  WELLSTONE AMENDMENTS. NOS. 3084-3085

  (Ordered to lie on the table.)
  Mr. WELLSTONE submitted two amendments intended to be proposed by him 
to the bill, S. 648, supra; as follows:

[[Page S7685]]

                           Amendment No. 3084

       At the end of the substitute add the following:

   TITLE IV--PROTECTIVE ORDERS AND SEALING OF CASES AND SETTLEMENTS 
     RELATING TO PUBLIC HEALTH OR SAFETY IN PRODUCT LIABILITY CASES

     SEC. 401. PROTECTIVE ORDERS AND SEALING OF CASES AND 
                   SETTLEMENTS RELATING TO PUBLIC HEALTH OR SAFETY 
                   PRODUCT LIABILITY CASES.

       (a) Short Title.--This section may be cited as the 
     ``Sunshine in Litigation Act of 1998''.
       (b) Protective Orders and Sealing of Cases and Settlements 
     Relating to Public Health or Safety.--Chapter 111 of title 
     28, United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 1660. Protective orders and sealing of cases and 
       settlements relating to public health or safety in product 
       liability cases

       ``(a)(1) In any civil action brought in any Federal or 
     State court on any theory for harm caused by a product, a 
     court shall enter an order restricting the disclosure of 
     information obtained through discovery or an order 
     restricting access to court records in a civil case only 
     after making particularized findings of fact that--
       ``(A) such order would not restrict the disclosure of 
     information which is relevant to the protection of public 
     health or safety; or
       ``(B)(i) the public interest in disclosure of potential 
     health or safety hazards is clearly outweighed by a specific 
     and substantial interest in maintaining the confidentiality 
     of the information or records in question; and
       ``(ii) the requested protective order is no broader than 
     necessary to protect the privacy interest asserted.
       ``(2) No order entered in accordance with paragraph (1) 
     shall continue in effect after the entry of final judgment, 
     unless at or after such entry the court makes a separate 
     particularized finding of fact that the requirements of 
     paragraph (1) (A) or (B) have been met.
       ``(b) The party who is the proponent for the entry of an 
     order, as provided under this section, shall have the burden 
     of proof in obtaining such an order.
       ``(c)(1) No agreement between or among parties in a civil 
     action brought on any theory for harm caused by a product may 
     contain a provision that prohibits or otherwise restricts a 
     party from disclosing any information relevant to such civil 
     action to any Federal or State agency with authority to 
     enforce laws regulating an activity relating to such 
     information.
       ``(2) Any disclosure of information to a Federal or State 
     agency as described under paragraph (1) shall be confidential 
     to the extent provided by law.''.
       (c) Technical and Conforming Amendment.--The table of 
     sections for chapter 111 of title 28, United States Code, is 
     amended by adding after the item relating to section 1659 the 
     following:

``1660. Protective orders and sealing of cases and settlements relating 
              to public health or safety in product liability cases.''.

       (d) Effective Date.--The amendments made by this section 
     shall take effect 30 days after the date of enactment of this 
     Act and shall apply only to orders entered in civil actions 
     or agreements entered into on or after such date.
                                  ____


                           Amendment No. 3085

       At the end of the substitute add the following:

   TITLE IV--PROTECTIVE ORDERS AND SEALING OF CASES AND SETTLEMENTS 
     RELATING TO PUBLIC HEALTH OR SAFETY IN PRODUCT LIABILITY CASES

     SEC. 401. PROTECTIVE ORDERS AND SEALING OF CASES AND 
                   SETTLEMENTS RELATING TO PUBLIC HEALTH OR SAFETY 
                   PRODUCT LIABILITY CASES.

       (a) Short Title.--This section may be cited as the 
     ``Sunshine in Litigation Act of 1998''.
       (b) Protective Orders and Sealing of Cases and Settlements 
     Relating to Public Health or Safety.--Chapter 111 of title 
     28, United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 1660. Protective orders and sealing of cases and 
       settlements relating to public health or safety in product 
       liability cases

       ``(a)(1) In any civil action brought in any Federal or 
     State court on any theory for harm caused by a product, a 
     court shall enter an order restricting the disclosure of 
     information obtained through discovery or an order 
     restricting access to court records in a civil case only 
     after making particularized findings of fact that--
       ``(A) such order would not restrict the disclosure of 
     information which is relevant to the protection of public 
     health or safety; or
       ``(B)(i) the public interest in disclosure of potential 
     health or safety hazards is clearly outweighed by a specific 
     and substantial interest in maintaining the confidentiality 
     of the information or records in question; and
       ``(ii) the requested protective order is no broader than 
     necessary to protect the privacy interest asserted.
       ``(2) No order entered in accordance with paragraph (1) 
     shall continue in effect after the entry of final judgment, 
     unless at or after such entry the court makes a separate 
     particularized finding of fact that the requirements of 
     paragraph (1) (A) or (B) have been met.
       ``(b) The party who is the proponent for the entry of an 
     order, as provided under this section, shall have the burden 
     of proof in obtaining such an order.
       ``(c)(1) No agreement between or among parties in a civil 
     action brought on any theory for harm caused by a product may 
     contain a provision that prohibits or otherwise restricts a 
     party from disclosing any information relevant to such civil 
     action to any Federal or State agency with authority to 
     enforce laws regulating an activity relating to such 
     information.
       ``(2) Any disclosure of information to a Federal or State 
     agency as described under paragraph (1) shall be confidential 
     to the extent provided by law.''.
       (c) Technical and Conforming Amendment.--The table of 
     sections for chapter 111 of title 28, United States Code, is 
     amended by adding after the item relating to section 1659 the 
     following:

``1660. Protective orders and sealing of cases and settlements relating 
              to public health or safety in product liability cases.''.

       (d) Effective Date.--The amendments made by this section 
     shall take effect 30 days after the date of enactment of this 
     Act and shall apply only to orders entered in civil actions 
     or agreements entered into on or after such date.
                                 ______
                                 

                       STEVENS AMENDMENT NO. 3086

  (Ordered to lie on the table.)
  Mr. STEVENS submitted an amendment intended to be proposed by him to 
the bill, S. 648, supra; as follows:

       On page 11, at the end of line 16 insert the following new 
     sentence: ``The term shall not be construed to mean attorney 
     fees awarded pursuant to state law authorizing attorney fee 
     awards to the prevailing party in a civil action.''
                                 ______
                                 

                      FAIRCLOTH AMENDMENT NO. 3087

  (Ordered to lie on the table.)
  Mr. FAIRCLOTH submitted an amendment intended to be proposed by him 
to the bill, S. 648, supra; as follows:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Legal Reform Commission Act 
     of 1998''.

     SEC. 2. ESTABLISHMENT OF COMMISSION.

       (a) Establishment.--There is established a commission to be 
     known as the Legal Reform Commission (hereafter in this Act 
     referred to as the ``Commission'').
       (b) Membership.--
       (1) Composition.--The Commission shall be composed of 11 
     members of whom--
       (A) one shall be appointed by the President;
       (B) one shall be appointed by the President pro tempore of 
     the Senate;
       (C) one shall be appointed by the Speaker of the House of 
     Representatives;
       (D) two shall be appointed by the Majority Leader of the 
     Senate;
       (E) two shall be appointed by the Minority Leader of the 
     Senate;
       (F) two shall be appointed by the Majority Leader of the 
     House of Representatives; and
       (G) two shall be appointed by the Minority Leader of the 
     House of Representatives.
       (2) Chairman and vice chairman.--The members of the 
     Commission shall select a Chairman and a Vice Chairman from 
     the members.
       (3) Prohibition.--
       (A) Chairman.--The Chairman of the Commission may not be an 
     employee or former employee of the Federal Government.
       (B) Members.--No member of the Commission may be a member 
     or former member of the Bar of any State.
       (4) Date.--The appointments of the members of the 
     Commission shall be made no later than June 1, 1998.
       (c) Period of Appointment; Vacancies.--Members shall be 
     appointed for the life of the Commission. Any vacancy in the 
     Commission shall not affect its powers, but shall be filled 
     in the same manner as the original appointment.
       (d) Initial Meeting.--No later than 30 days after the date 
     on which all members of the Commission have been appointed, 
     the Commission shall hold its first meeting.
       (e) Meetings.--The Commission shall meet at the call of the 
     Chairman.
       (f) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number of members may 
     hold hearings.

     SEC. 3. DUTIES OF THE COMMISSION.

       (a) Study.--
       (1) In general.--The Commission shall conduct a thorough 
     study of all matters relating to the reform and 
     simplification of the United States legal system.
       (2) Matters studied.--The matters studied by the Commission 
     shall include reform of--
       (A) Federal law;
       (B) State law;
       (C) criminal law;
       (D) civil law;
       (E) judicial, trial, and appellate processes;
       (F) the Federal Rules of Evidence;
       (G) the Federal Rules of Civil Procedure; and
       (H) the Federal Rules of Criminal Procedure.

[[Page S7686]]

       (b) Recommendations.--The Commission shall develop 
     recommendations on all matters studied under subsection (a) 
     relating to reform of the United States legal system.
       (c) Report.--No later than 2 years after the date of 
     enactment of this Act, the Commission shall submit a report 
     to the President and Congress which shall contain a detailed 
     statement of the findings and conclusions of the Commission, 
     together with its recommendations for such legislation and 
     administrative actions as it considers appropriate.

     SEC. 4. POWERS OF THE COMMISSION.

       (a) Hearings.--The Commission may hold such hearings, sit 
     and act at such times and places, take such testimony, and 
     receive such evidence as the Commission considers advisable 
     to carry out the purposes of this Act.
       (b) Information From Federal Agencies.--The Commission may 
     secure directly from any Federal department or agency such 
     information as the Commission considers necessary to carry 
     out the provisions of this Act. Upon request of the Chairman 
     of the Commission, the head of such department or agency 
     shall furnish such information to the Commission.
       (c) Postal Services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (d) Gifts.--The Commission may accept, use, and dispose of 
     gifts or donations of services or property.

     SEC. 5. COMMISSION PERSONNEL MATTERS.

       (a) Compensation of Members.--Each member of the Commission 
     who is not an officer or employee of the Federal Government 
     shall be compensated at a rate equal to the daily equivalent 
     of the annual rate of basic pay prescribed for level IV of 
     the Executive Schedule under section 5315 of title 5, United 
     States Code, for each day (including travel time) during 
     which such member is engaged in the performance of the duties 
     of the Commission. All members of the Commission who are 
     officers or employees of the United States shall serve 
     without compensation in addition to that received for their 
     services as officers or employees of the United States.
       (b) Travel Expenses.--The members of the Commission shall 
     be allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (c) Staff.--
       (1) In general.--The Chairman of the Commission may, 
     without regard to the civil service laws and regulations, 
     appoint and terminate an executive director and such other 
     additional personnel as may be necessary to enable the 
     Commission to perform its duties. The employment of an 
     executive director shall be subject to confirmation by the 
     Commission.
       (2) Compensation.--The Chairman of the Commission may fix 
     the compensation of the executive director and other 
     personnel without regard to the provisions of chapter 51 and 
     subchapter III of chapter 53 of title 5, United States Code, 
     relating to classification of positions and General Schedule 
     pay rates, except that the rate of pay for the executive 
     director and other personnel may not exceed the rate payable 
     for level V of the Executive Schedule under section 5316 of 
     such title.
       (d) Detail of Government Employees.--Any Federal Government 
     employee may be detailed to the Commission without 
     reimbursement, and such detail shall be without interruption 
     or loss of civil service status or privilege.
       (e) Procurement of Temporary and Intermittent Services.--
     The Chairman of the Commission may procure temporary and 
     intermittent services under section 3109(b) of title 5, 
     United States Code, at rates for individuals which do not 
     exceed the daily equivalent of the annual rate of basic pay 
     prescribed for level V of the Executive Schedule under 
     section 5316 of such title.

     SEC. 6. TERMINATION OF THE COMMISSION.

       The Commission shall terminate 90 days after the date on 
     which the Commission submits its report under section 3.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as are necessary to the Commission to carry out the 
     purposes of this Act.
       (b) Availability.--Any sums appropriated under the 
     authorization contained in this section shall remain 
     available, without fiscal year limitation, until expended.
                                 ______
                                 

                HOLLINGS (AND CONRAD) AMENDMENT NO. 3088

  (Ordered to lie on the table.)
  Mr. HOLLINGS (for himself and Mr. Conrad) submitted an amendment 
intended to be proposed by them to the bill, S. 648, supra; as follows:

       On page 14, between lines 19 and 20, insert the following:
       (E) Pornographic materials,--A civil action brought for 
     harm caused by violent or pornographic, obscene, or indecent 
     materials, including movies, television shows, videotapes, 
     records, audio tape recordings, CD-ROMs, and other visual, 
     audio, or electronic media or products, shall not be subject 
     to the provisions of this title governing product liability 
     actions, but shall be subject to any other applicable Federal 
     or State law.
                                 ______
                                 

                  HOLLINGS AMENDMENTS. NOS. 3089-3093

  (Ordered to lie on the table.)
  Mr. HOLLINGS submitted five amendments intended to be proposed by him 
to the bill, S. 648, supra; as follows:

                           Amendment No. 3089

       On page 14, strike lines 6 through 11.
                                  ____


                           Amendment No. 3090

       On page 10, strike line 2 and insert the following:
       utility, natural gas, or steam; or
       (iii) toys or other articles intended for use by children.
                                  ____


                           Amendment No. 3091

       On page 12, between lines 17 and 18, insert the following:
       (21) Toxic harm.--The term ``toxic harm'' means harm caused 
     by acute or repeated exposure to naturally-occurring or 
     synthesized minerals or mineral products, organic compounds, 
     microorganisms, biological products, radioactive compounds, 
     or any chemical or hazardous substance listed by the Centers 
     for Disease Control Agency for Toxic Substances and Disease 
     Registry.
                                  ____


                           Amendment No. 3092

       On page 9, between lines 14 and 15, insert the following:
       (iv) meets the Federal Trade Commission's definition of 
     ``Made in the United States''; and
                                  ____


                           Amendment No. 3093

       On page 25. beginning with line 20, strike through line 24 
     on page 28.
                                 ______
                                 

                      FEINGOLD AMENDMENT NO. 3094

  (Ordered to lie on the table.)
  Mr. FEINGOLD submitted an amendment intended to be proposed by him to 
the bill, S. 648, supra; as follows:

       In section 102(b), strike ``that the State law applies to a 
     matter covered by this title'' and insert ``an issue is 
     covered under this Act''.
       In section 110(a)(1), in the first sentence, strike ``To 
     the extent punitive damages are permitted by applicable State 
     law, punitive damages'' and insert ``Punitive damages''.
       At the end of section 107, add the following:
       (b) Preemption of State Law.--To the extent that a State 
     has established a term-of-years limitation on the filing of 
     actions of the type set forth in this section, that 
     limitation is preempted without regard to whether the period 
     is less than or greater than 18 years.
                                 ______
                                 

                       BREAUX AMENDMENT NO. 3095

  (Ordered to lie on the table.)
  Mr. BREAUX submitted an amendment intended to be proposed by him to 
the bill, S. 648, supra; as follows:

       In lieu of the language proposed to be inserted, insert the 
     following:

     SEC. 1. SHORT TITLE AND FINDINGS.

       (a) Short Title.--This Act may be cited as the ``Product 
     Safety and Liability Fairness Act of 1997''.
       (b) Findings.--The Congress finds the following:
       (1) For too long, the Congress has engaged in a contentious 
     debate over federal product liability legislation without 
     making significant progress in addressing the legitimate 
     concerns of all sides to the debate;
       (2) As the Congress has always been presented with only the 
     two extreme positions of the proponents and opponents of 
     federal product liability legislation, it is time for a true 
     common sense middle ground;
       (3) While the opponents of federal product liability 
     legislation contend that there is no need for any reform at 
     all, there is real concern among businesses and others about 
     the effect of the product liability system that Congress 
     should examine;
       (4) While the proponents of federal product liability 
     legislation speak forcefully about the problem of frivolous 
     lawsuits and slow and costly litigation, the bills supported 
     by the proponents often fail to address these issues while 
     instead placing restrictions and limitations on legitimate 
     claims;
       (5) While no persons with legitimate claims should be 
     denied redress and their constitutional rights to a trial by 
     jury, and while the product liability system does and must 
     continue to provide valuable deterrence to the manufacture 
     and sale of dangerous or defective products, there is no role 
     in our legal system for frivolous product liability lawsuits;
       (6) The several states and their courts can and must 
     continue to be the primary architects and regulators of the 
     tort system, with only infrequent and limited intervention by 
     the federal government;
       (7) If the Congress is to intervene in this traditional 
     province of the states, it should do so only to address real 
     issues while balancing the interest of all sides to the 
     debate;
       (8) Federal legislation that seeks to limit frivolous 
     product liability lawsuits and which encourages alternative 
     and less costly forms of dispute resolution fits this narrow 
     role for the federal government to take in the area of 
     product liability law.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:

[[Page S7687]]

                           TABLE OF CONTENTS

Sec. 1. Short title and findings.
Sec. 2. Table of contents.
Sec. 3. Definitions.
Sec. 4. Applicability; preemption.
Sec. 5. Jurisdiction of Federal courts.
Sec. 6. Effective date.

       TITLE I--DETERRENCE OF FRIVOLOUS PRODUCT LIABILITY ACTIONS

Sec. 101. Requirement of an affidavit in product liability actions.
Sec. 102. Sanctions for frivolous product liability suits.
Sec. 103. Amendments to Federal Rules of Civil Procedures and Evidence 
              for product liability cases.
Sec. 104. Special rules of procedure applicable in courts of the states 
              in product liability cases.

    TITLE II--OFFERS OF JUDGMENT AND ALTERNATIVE DISPUTE RESOLUTION 
                 PROCEDURES FOR PRODUCT LIABILITY CASES

Sec. 201. Offers of judgment.
Sec. 202. Alternative dispute resolution procedures.

  TITLE III--UNIFORM PROCEDURES AND STANDARDS FOR PUNITIVE DAMAGES IN 
                        PRODUCT LIABILITY CASES

Sec. 301. Uniform standards for punitive damages.
Sec. 302. Determining amount of punitive damages.

      TITLE IV--STATUTE OF LIMITATIONS IN PRODUCT LIABILITY CASES

Sec. 401. Uniform statute of limitations.

                       TITLE V--USEFUL SAFE LIFE

Sec. 501 Statute of repose beyond useful safe life in product liability 
              cases.

               TITLE VI--PRODUCT LIABILITY CLASS ACTIONS

Sec. 601. Notification requirement of class action certification or 
              settlement.

              TITLE VII--STUDY OF PRODUCT LIABILITY SYSTEM

Sec. 701. Study of Product Liability System.

     SEC. 3. DEFINITIONS.

       As used in this Act, the term--
       (1) ``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--
       (A) used in a trade or a business;
       (B) held for the production of income; or,
       (C) sold or donated to a governmental or private entity for 
     the production of goods, for training, for demonstration, or 
     for other similar purposes.
       (2) ``claimant'' means any person who brings a civil action 
     subject 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;
       (3) ``defendant'' means a person against whom a claimant 
     brings a civil action subject to this Act;
       (4) ``economic loss'' means any pecuniary loss resulting 
     from harm (including but not limited to medical expense loss, 
     work loss, replacement services loss, loss due to death, 
     burial costs, and loss of business or employment 
     opportunities), to the extent recovery for such loss is 
     allowed under applicable State law;
       (5) ``harm'' means any injury to a person, including 
     illness, disease, or death resulting from that injury, and 
     including injury consisting of economic or pecuniary loss;
       (6) ``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, 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
       (V) any product seller not described in subparagraph (B) 
     which holds itself out as a manufacturer to the user of a 
     product;
       (7) ``noneconomic loss'' means subjective, nonmonetary loss 
     resulting from harm, 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 economic loss;
       (8) ``person'' means any individual, corporation, company, 
     association, firm, partnership, society, joint stock company, 
     or any other entity (including any governmental entity);
       (9) ``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 interstate 
     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 specially 
     recognized as a product pursuant to State law;
       (10) ``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.
       (11) ``State'' means any State of the United States, the 
     District of Columbia, Puerto Rico, the Northern Mariana 
     Islands, the Virgin Islands, Guam, American Samoa, and any 
     other territory or possession of the United States, or any 
     political sub-division thereof.
       (12) ``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.
       (13) ``useful safe life'' means the period beginning at the 
     time of delivery of the product and extending for the time 
     during which the product would normally be likely to perform 
     in a safe manner.''

     SEC. 4. APPLICABILITY; PREEMPTION.

       (A) Applicability to Product Liability Actions.--This Act 
     applies to any civil action brought against a manufacturer or 
     product seller for harm caused by a product.
       (b) Scope of Preemption.--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 and that is inconsistent with State law. 
     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) Effect on Other Law.--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) waive or affect any defense of sovereign immunity 
     asserted by the United States;
       (3) affect any provision of chapter 97 of title 28, United 
     States Code;
       (4) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation or a citizen of a foreign 
     nation;
       (5) 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
       (6) 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 (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 contamination or pollution.
       (7) affect any provision of chapter 2 of title 45, United 
     States Code;

     SEC. 5. JURISDICTION OF FEDERAL COURTS.

       This Act shall not establish jurisdiction in the district 
     courts of the United States pursuant to section 1331 or 1337 
     of title 28, United States Code.

     SEC. 6. EFFECTIVE DATE.

       This Act shall take effect on the date of its enactment and 
     shall apply to civil actions commenced on or after such date, 
     including any action in which the harm or the conduct which 
     caused the harm occurred before the effect date of this Act.

       TITLE I--DETERRENCE OF FRIVOLOUS PRODUCT LIABILITY ACTIONS

     SEC. 101. REQUIREMENT OF AN AFFIDAVIT IN PRODUCT LIABILITY 
                   ACTIONS.

       (a) Submission of an Affidavit With Complaint.--In any 
     civil action subject to this Act, the claimant's shall be 
     accompanied by an affidavit signed by the attorney of record 
     for the claimant, or if unrepresented, by the claimant.
       (b) Contents of the Affidavit.--The affidavit shall:
       (1) certify that the affiant conducted a reasonable inquiry 
     into the circumstances averred in the claim for relief as 
     they pertain to each defendant, and
       (2) attest that the affiant has a sound reason to believe 
     that the circumstances as averred in the claim for relief are 
     confirmed by the inquiry referred to in (1) and are in all 
     respects supportable by facts which the affiant reasonably 
     believes to be true and provable at trial.

     SEC. 102. SANCTIONS FOR FRIVOLOUS PRODUCT LIABILITY SUITS.

       If a claimant submits in bad faith, or fails to submit, an 
     affidavit pursuant to section

[[Page S7688]]

     101 of this title, the court, upon motion made within the 
     time for responsive pleadings, shall impose upon the claimant 
     an appropriate sanction which may include an order to pay to 
     the other party or parties the amount of reasonable expenses, 
     including reasonable attorney's fees, incurred up to the time 
     of the disposition of the motion.

     SEC. 103. AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE AND 
                   EVIDENCE IN PRODUCT LIABILITY CASES.

       (a) Mandatory Sanctions Under FRCP 11.--Rule 11 of the 
     Federal Rules of Civil Procedure (28 U.S.C. App.) is amended 
     by adding at the end of subsection (c)--
       ``If in an action subject to [this bill] alleging harm 
     caused by a product, the court finds a violation of 
     subsection (b), sanctions shall be mandatory.''
       (b) Pleadings With Particularity Under FRCP 9.--Rule 9 of 
     the Federal Rule of Civil Procedure (28 U.S.C. App.) is 
     amended by adding--
       (i) Punitive Damages. The basis for claims of punitive 
     damages in any complaint alleging harm caused by a product 
     [as defined at ________] shall be stated with particularity 
     and shall include such supporting particulars as are within 
     the pleader's knowledge.
       (c) Evidence of Intoxication or Impairment of Drugs.--Rule 
     403 of the Federal Rules of Evidence (28 U.S.C.   ) is 
     amended by designating the existing paragraph ``(a)'' and 
     adding--
       ``(b) Evidence that a claimant was under the influence of 
     drugs or alcohol at the time of the injury shall be presumed 
     admissible in all actions subject to [this bill].''

     SEC. 104. SPECIAL RULES OF PROCEDURE APPLICABLE IN THE COURTS 
                   OF THE STATES IN PRODUCT LIABILITY CASES.

       For all actions subject to this Act brought in courts other 
     than the courts of the United States, the following rules 
     shall apply:
       (a) Mandatory Sanctions.--If a court, upon motion or its 
     own accord, finds that a party to an action subject to this 
     Act has put forth a pleading, motion, petition or claim that 
     was--
       (1) made for any improper purpose, such as to harass or to 
     cause unnecessary delay or needless increase in costs;
       (2) not warranted by existing law or by a nonfrivolous 
     argument for the extension, modification, or reversal of 
     existing law or the establishment of new law; or
       (3) lacking evidentiary support and unlikely to have 
     evidentiary support after reasonable opportunity for further 
     investigation or discovery,

     the court shall impose sanctions sufficient to deter 
     repetition of such conduct or comparable conduct by others 
     similarly situated.
       (b) Pleading Claims for Punitive Damages With 
     Particularity.--The basis for claims of punitive damages in 
     any complaint in an action subject to this Act shall be 
     stated with particularity and shall include such supporting 
     particulars as are within the pleader's knowledge.
       (c) Evidence of Intoxication or Impairment of Drugs.--
     Evidence that a claimant was under the influence of drugs or 
     alcohol at the time of the injury shall be presumed 
     admissible in all actions subject to this Act.

    TITLE II--OFFERS OF JUDGMENT AND ALTERNATIVE DISPUTE RESOLUTION 
                 PROCEDURES FOR PRODUCT LIABILITY CASES

     SEC. 201. OFFERS OF JUDGMENT.

       (a) Claimant's Offer of Judgment.--Any claimant may, at any 
     time after the filing of a complaint subject to this Act, 
     serve an offer of judgment to be entered against a defendant 
     for a specific dollar amount as complete satisfaction of the 
     claim.
       (b) Defendant's Offer.--A defendant may serve an offer to 
     allow judgment to be entered against that defendant for a 
     specific dollar amount as complete satisfaction of the claim.
       (c) Extension of Response Period.--In any case in which an 
     offer of judgment is served pursuant to subsection (a) or 
     (b), the court may, upon motion by the offeree 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.
       (d) Defendant's Penalty for Rejection of Offer.--If a 
     defendant, as offeree, does not serve on a claimant a written 
     notification of acceptance of an offer of judgment served by 
     a claimant in accordance with subsection (a) 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 
     denial of such motion, and a final judgment, including all 
     compensatory, punitive, exemplary or other damages, is 
     entered in such action in an amount greater than the specific 
     dollar amount of such offer of judgment, the court shall 
     modify the judgment against that defendant by including in 
     the judgment an additional amount not to exceed the lesser of 
     $50,000 or the difference between the offer and the judgment.
       (e) Claimant's Penalty for Rejection of Offer.--If the 
     claimant, as offeree, does not serve on the defendant a 
     written notice of acceptance of an offer of judgment served 
     by a defendant in accordance with subsection (b) within 
     thirty days after such service and a final judgment is 
     entered in such an amount less than the specific dollar 
     amount of such offer of judgment, the court shall reduce the 
     amount of the final judgment in such action by the amount of 
     any punitive damages awarded. If the claimant is not the 
     prevailing party in such action, the claimant's refusal to 
     accept an offer of judgment shall not result in the payment 
     of any penalty under this subsection.
       (f) Evidence of Offer.--An offer not accepted shall be 
     deemed withdrawn and evidence thereof is not admissible 
     except in a proceeding to determine attorney's fees and 
     costs.

     SEC. 102. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES IN 
                   PRODUCT LIABILITY CASES.

       (a) In General.--A claimant or defendant in a civil action 
     subject to this Act may, within the time permitted for making 
     an offer of judgment under section 201, 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 civil action is brought or under the 
     rules of the court in which such action is maintained. An 
     offeree shall, within ten days of such service, file a 
     written notice of acceptance or rejection of the offer; 
     except that the court may, upon motion by the offeree make 
     prior to the expiration of such ten-day period, extend the 
     period for response for up to sixty days, during which 
     discovery may be permitted.
       (b) Defendant's Penalty for Unreasonable Refusal.--The 
     court shall assess reasonable attorney's fees and costs 
     against the offeree, if--
       (1) a defendant as offeree refuses to proceed pursuant to 
     such alternative dispute resolution procedure;
       (2) final judgment is entered against the defendant for 
     harm caused by a product; and
       (3) the defendant's refusal to proceed pursuant to such 
     alternative dispute resolution procedure was unreasonable or 
     not in good faith.
       (c) Good Faith Refusal.--In determining whether an 
     offeree's refusal to proceed pursuant to such alternative 
     dispute resolution procedure was unreasonable or not in good 
     faith, the court shall consider such factors as the court 
     deems appropriate.

  TITLE III--UNIFORM PROCEDURES AND STANDARDS FOR PUNITIVE DAMAGES IN 
                        PRODUCT LIABILITY CASES

     SEC. 301. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       Punitive damages may be awarded in any civil action subject 
     to this Act to any claimant who establishes by clear and 
     convincing evidence that the harm suffered by the claimant 
     was the result of conduct manifesting a manufacturer's or 
     product seller's reckless, egregious, willful or wanton 
     misconduct, or conscious, flagrant indifference to the safety 
     of those persons who might be harmed by the product. A 
     failure to exercise reasonable care in choosing among 
     alternative product designs, formulations, instructions, or 
     warnings is not of itself such conduct.

     SEC. 302. DETERMINING AMOUNT OF PUNITIVE DAMAGES

       In determining the amount of punitive damages, the trier of 
     fact shall, unless deemed significantly prejudicial by the 
     court, consider all of the following facts--
       (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 
     the 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.

      TITLE IV--STATUTE OF LIMITATIONS IN PRODUCT LIABILITY CASES

     SEC. 401. UNIFORM STATUTE OF LIMITATIONS.

       (a) In General.--Except as provided in paragraph (b), a 
     product liability action 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--
       (1) the harm that is the subject of the action; and
       (2) the cause of the harm.
       (b) Exception.--A person with a legal disability (as 
     determined under applicable law) may file a product liability 
     action not later than 2 years after the date on which the 
     person ceases to have a legal disability.

[[Page S7689]]

                 TITLE V--USEFUL SAFE LIFE OF PRODUCTS

     SEC. 501. STATUTE OF REPOSE BEYOND USEFUL SAFE LIFE IN 
                   PRODUCT LIABILITY CASES.

       (a) In General.--Except as provided in Subsection (a)(2), 
     in any civil action subject to this Act against a product 
     manufacturer or seller for harm caused by a product that is a 
     capital good, such defendant shall not be liable for damages 
     if the defendant proves by a preponderance of the evidence 
     that the harm was caused by use of the product after its 
     useful safe life.
       (1) In determining the useful safe life of the product, the 
     trier of fact shall consider, among other things, the 
     following:
       (A) the number of years the product has been in use and the 
     frequency of product use;
       (B) the average age of similar or like products still in 
     similar uses;
       (C) the normal practices of the product user, similar 
     product users, and the product manufacturer or seller with 
     respect to the circumstances, frequency, and purposes of the 
     use of the product;
       (D) any representations, instructions, or warnings made by 
     the product manufacturer or seller concerning the proper use 
     of the product or the expected useful safe life of the 
     product; and
       (E) any modification or alteration of the product by a user 
     or third party.
       (2) A product manufacturer or seller may be liable for 
     damages caused by a product used beyond its useful safe life 
     if:
       (A) the product manufacturer or seller expressly or implied 
     warranted that the product may be utilized safely for a 
     longer period; or
       (B) the product manufacturer or seller intentionally 
     misrepresented facts about the product, or fraudulently 
     concealed information about the product, and such conduct was 
     a substantial cause of the claimant's damages.
       (b) Presumption Regarding Useful Safe Life.--If the harm 
     was caused more than twenty (20) years after the time of 
     delivery, a presumption arises that the harm was caused by 
     use of the product after its useful safe life. This 
     presumption may be rebutted by a preponderance of evidence.

               TITLE VI--PRODUCT LIABILITY CLASS ACTIONS

     SEC. 601 NOTIFICATION REQUIREMENT OF CLASS ACTION 
                   CERTIFICATION OR SETTLEMENT.

       (a) In General.--Part V of title 28, United States Code, is 
     amended by inserting after chapter 113 the following new 
     chapter:

              CHAPTER 114--PRODUCT LIABILITY CLASS ACTIONS

Sec. 1711. Notification of class action certifications and settlements.

     ______ 1711. NOTIFICATION OF CLASS ACTION CERTIFICATIONS AND 
                   SETTLEMENTS.

       (a) For purposes of this section, the term--
       (1) ``class'' means a group of similarly situated 
     individuals, defined by a class certification order, that 
     comprise a party in a class action lawsuit;
       (2) ``class action'' means a lawsuit file pursuant to rule 
     23 of the Federal Rules of Civil Procedure or similar State 
     rules of procedure authorizing a lawsuit to be brought by 1 
     or more representative individuals on behalf of a class;
       (3) ``class certification order'' means an order issued by 
     a court approving the treatment of a lawsuit as a class 
     action;
       (4) ``class member'' means a person that falls within the 
     definition of the class;
       (5) ``class counsel'' means the attorneys representing the 
     class in a class action;
       (6) ``electronic legal databases'' means computer services 
     available to subscribers containing text of judicial opinions 
     and other legal materials, such as LEXIS OR WESTLAW;
       (7) ``official court reporter'' means a publicly available 
     compilation of published judicial opinions;
       (8) ``plaintiff class action'' means a class action in 
     which the plaintiff is a class; and
       (9) ``proposed settlement'' means a settlement agreement 
     between the parties in a class action that is subject to 
     court approval before it becomes binding on the parties.
       (b) This section shall not apply except to product 
     liability cases subject to [this bill]. This section shall 
     apply to--
       (1) all product liability plaintiff class actions filed in 
     Federal court; and
       (2) all product liability plaintiff class actions filed in 
     State court in which--
       (A) any class member resides outside the State in which the 
     action is filed; and
       (B) the transaction or occurrence that gave rise to the 
     lawsuit occurred in more than one State.
       (c) No later than 10 days after a proposed settlement in a 
     class action is filed in court, and at least 14 days prior to 
     a court order approving such settlement, class counsel shall 
     serve the State attorney general of each State in which a 
     class member resides and the Department of Justice as if they 
     were parties in the class action with--
       (1) a copy of the complaint and any materials filed with 
     the compliant and any amended complaints;
       (2) notice of any future scheduled judicial hearing in the 
     class action;
       (3) any proposed or final notification to class members 
     of--
       (A) their rights to request exclusion from the class 
     action; and
       (B) a proposed settlement of a class action;
       (4) any proposed or final class action settlement;
       (5) any settlement or other agreement contemporaneously 
     made between class counsel and counsel for the defendants;
       (6) any final judgment or notice of dismissal;
       (7)(A) if feasible the names of class members who reside in 
     each State attorney general's respective State and their 
     estimated proportionate claim to the entire settlement; or
       (B) if not feasible, a reasonable estimate of the number of 
     class members residing in each attorney general's State and 
     their estimated proportionate claim to the entire settlement; 
     and
       (8) any written judicial opinion relating to the materials 
     described under paragraphs (3) through (6).
       (d) A hearing to consider final approval of a proposed 
     settlement may not be held earlier than 120 days after the 
     date on which the State attorneys general and the Department 
     of Justice are served notice under subsection (c).
       (e) Any court with jurisdiction over a plaintiff class 
     action shall require that--
       (1) any written notice provided to the class through the 
     mail or publication in printed media contain a short summary 
     written in plain, easily understood language, describing--
       (A) the subject matter of the class action;
       (B) the legal consequences of joining the class action;
       (C) if the notice is informing class members of a proposed 
     settlement agreement--
       (i) the benefits that will accrue to the class due to the 
     settlement;
       (ii) the rights that class members will lose or waive 
     through the settlement;
       (iii) obligations that will be imposed on the defendants by 
     the settlement;
       (iv) a good faith estimate of the dollar amount of any 
     attorney's fee if possible; and
       (v) an explanation of how any attorney's fee will be 
     calculated and funded; and
       (D) any other material matter; and
       (2) any notice provided through television or radio to 
     inform the class of its rights to be excluded from a class 
     action or a proposed settlement shall, in plain, easily 
     understood language--
       (A) describe the individuals that may potentially become 
     class members in the class action; and
       (B) explain that the failure of individuals falling within 
     the definition of the class to exercise their right to be 
     excluded from a class action will result in the individual's 
     inclusion in the class action.
       (f) Compliance with this section shall not immunize any 
     party from any legal action under Federal or State law, 
     including actions for malpractice or fraud.
       (g)(1) A class member may refuse to comply with and may 
     choose not to be bound by a settlement agreement or consent 
     decree in a class action lawsuit if the class member resides 
     in a State where the State attorney general has not been 
     provided notice and materials under subsection (c). The 
     rights created by this subsection shall apply only to class 
     members or any person acting on their behalf, and shall not 
     be construed to limit any other rights affecting a class 
     member's participation in the settlement.
       (2) Nothing in this chapter shall be construed to impose 
     any obligations, duties, or responsibilities upon State 
     attorneys general or the attorney general of the United 
     States.
       (b) Technical and Conforming Amendment.--The Table of 
     chapters of part V of title 28, United States Code, is 
     amended by inserting after the item relating to chapter 113 
     the following:

``114. Class Actions........................................1711.''....

              TITLE VII--STUDY OF PRODUCT LIABILITY SYSTEM

     SEC. 701. STUDY OF THE PRODUCT LIABILITY SYSTEM.

       (a) Study by the Secretary of Commerce.--The Secretary of 
     Commerce, in conjunction with the Attorney General of the 
     United States, shall, in consultation with the courts of the 
     several states and the attorneys general of the states, 
     complete a study of the product liability system in the state 
     and federal courts. Such study shall focus on--
       (1) The relative caseload in the courts of product 
     liability claims;
       (2) The size and frequency of awards of punitive damages in 
     products liability cases and the need for further reform in 
     that area;
       (3) Whether damage awards differ according to location of 
     litigation and the impact of any such finding on the filing 
     and resolution of product liability claims;
       (4) Whether damage awards in product liability cases for 
     economic and non-economic losses differ according to the sex, 
     race or ethnicity of the claimant;
       (5) The cost and availability of liability insurance and 
     the impact of the product liability system on that cost and 
     availability.
       (6) The effects of this Act on the resolution of product 
     liability claims.
       (b) Report to Congress.--The Secretary of Commerce shall 
     report to Congress on the findings of this study within 24 
     months of the date of enactment.
                                 ______
                                 

                   SESSIONS AMENDMENTS NOS. 3096-3097

  (Ordered to lie on the table)
  Mr. SESSIONS submitted two amendments intended to be proposed by him 
to the bill, S. 648, supra; as follows:

[[Page S7690]]

                           Amendment No. 3096

       On page 2, beginning with line 1, strike through line 19 on 
     page 34 and insert in lieu thereof the following:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Product 
     Liability Reform Act of 1998''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

                   TITLE I--PRODUCT LIABILITY REFORM

Sec. 101. Definitions.
Sec. 102. Applicability; preemption.
Sec. 103. Liability rules applicable to product sellers, renters, and 
              lessors.
Sec. 107. Statute of repose for durable goods used in a trade or 
              business.
Sec. 109. Alternative dispute resolution procedures.
Sec. 110. Punitive damages reforms.

                TITLE II--BIOMATERIALS ACCESS ASSURANCE

Sec. 201. Short title.
Sec. 202. Findings.
Sec. 203. Definitions.
Sec. 204. General requirements; applicability; preemption.
Sec. 205. Liability of biomaterials suppliers.
Sec. 206. Procedures for dismissal of civil actions against 
              biomaterials suppliers.
Sec. 207. Subsequent impleader of dismissed defendant.

                   TITLE I--PRODUCT LIABILITY REFORM

     SEC. 101. DEFINITIONS.

       In this title:
       (1) Alcoholic product.--The term ``alcoholic product'' 
     includes any product that contains not less than \1/2\ of 1 
     percent of alcohol by volume and is intended for human 
     consumption.
       (2) Claimant.--The term ``claimant'' means any person who 
     brings an action covered by this title 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. If such an action is brought through 
     or on behalf of a minor or incompetent, the term includes the 
     claimant's legal guardian.
       (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.--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 that 
     standard is more than that required under a preponderance of 
     the evidence, but less than that required for proof beyond a 
     reasonable doubt.
       (5) Commercial loss.--The term ``commercial loss'' means--
       (A) any loss or damage solely to a product itself;
       (B) loss relating to a dispute over the value of a product; 
     or
       (C) consequential economic loss.
       (6) Compensatory damages.--The term ``compensatory 
     damages'' means damages awarded for economic and noneconomic 
     loss.
       (7) Dram-shop.--The term ``dram-shop'' means a drinking 
     establishment where alcoholic products are sold to be 
     consumed on the premises.
       (8) Durable good.--The term ``durable good'' means any 
     product, or any component of any such product, which--
       (A)(i) has a normal life expectancy of 3 or more years; or
       (ii) is of a character subject to allowance for 
     depreciation under the Internal Revenue Code of 1986; and
       (B) is--
       (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, training, demonstration, or any 
     other similar purpose.
       (9) Economic loss.--The term ``economic loss'' means any 
     pecuniary loss resulting from harm (including the loss of 
     earnings or other benefits related to employment, medical 
     expense loss, replacement services loss, loss due to death, 
     burial costs, and loss of business or employment 
     opportunities) to the extent recovery for that loss is 
     allowed under applicable State law.
       (10) Harm.--The term ``harm''--
       (A) means any physical injury, illness, disease, or death, 
     or damage to property caused by a product; and
       (B) does not include commercial loss.
       (11) Insurer.--The term ``insurer'' means the employer of a 
     claimant if the employer is self-insured or if the employer 
     is not self-insured, the workers' compensation insurer of the 
     employer.
       (12) 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--
       (i) designs or formulates the product (or component part of 
     the product); or
       (ii) 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--
       (i) produces, creates, makes, constructs and designs, or 
     formulates an aspect of the product (or component part of the 
     product) made by another person; or
       (ii) has engaged another person to design or formulate an 
     aspect of the product (or component part of the product) made 
     by another person; or
       (C) any product seller not described in subparagraph (B) 
     which holds itself out as a manufacturer to the user of the 
     product.
       (13) Noneconomic loss.--The term ``noneconomic loss'' 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.
       (14) Person.--The term ``person'' means any individual, 
     corporation, company, association, firm, partnership, 
     society, joint stock company, or any other entity (including 
     any governmental entity).
       (15) 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; or
       (ii) electricity, water delivered by a utility, natural 
     gas, or steam.
       (16) Product liability action.--The term ``product 
     liability action'' means a civil action brought on any theory 
     for harm caused by a product.
       (17) Product seller.--
       (A) In general.--The term ``product seller'' means a person 
     who in the course of a business conducted for that purpose--
       (i) 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.

       (18) Punitive damages.--The term ``punitive damages'' means 
     damages awarded against any person or entity to punish or 
     deter that person or entity, or others, from engaging in 
     similar behavior in the future.
       (19) State.--The term ``State'' means any State of the 
     United States, the District of Columbia, the Commonwealth of 
     Puerto Rico, the Northern Mariana Islands, the Virgin 
     Islands, Guam, American Samoa, and any other territory or 
     possession of the United States or any political subdivision 
     of any of the foregoing.
       (20) Tobacco product.--The term ``tobacco product'' means--
       (A) a cigarette, as defined in section 3 of the Federal 
     Cigarette Labeling and Advertising Act (15 U.S.C. 1332);
       (B) a little cigar, as defined in section 3 of the Federal 
     Cigarette Labeling and Advertising Act (15 U.S.C. 1332);
       (C) a cigar, as defined in section 5702(a) of the Internal 
     Revenue Code of 1986;
       (D) pipe tobacco;
       (E) loose rolling tobacco and papers used to contain that 
     tobacco;
       (F) a product referred to as smokeless tobacco, as defined 
     in section 9 of the Comprehensive Smokeless Tobacco Health 
     Education Act of 1986 (15 U.S.C. 4408); and
       (G) any other form of tobacco intended for human 
     consumption.

     SEC. 102. APPLICABILITY; PREEMPTION.

       (a) Preemption.--
       (1) In general.--Except as provided in paragraph (2) and 
     title II, this title governs any product liability action 
     brought in any Federal or State court on any theory for harm 
     caused by a product.
       (2) Actions excluded.--
       (A) Actions for commercial loss.--A civil action brought 
     for commercial loss shall be governed only by applicable 
     commercial law, including applicable State law based on the 
     Uniform Commercial Code.
       (B) Actions for negligent entrustment; negligence per se 
     concerning firearms and ammunition; dram-shop.--
       (i) 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

[[Page S7691]]

     subject to any applicable Federal or State law.
       (ii) Negligence per se concerning firearms and 
     ammunition.--A civil action brought under a theory of 
     negligence per se concerning the use of a firearm or 
     ammunition shall not be subject to the provisions of this 
     title governing product liability actions, but shall be 
     subject to any applicable Federal or State law.
       (iii) Dram-shop.--A civil action brought under a theory of 
     dram-shop or third-party liability arising out of the sale or 
     providing of an alcoholic product to an intoxicated person or 
     minor shall not be subject to the provisions of this title, 
     but shall be subject to any applicable Federal or State law.
       (C) Actions involving harm caused by a tobacco product.--A 
     civil action brought for harm caused by a tobacco product 
     shall not be subject to the provisions of this title 
     governing product liability actions, but shall be subject to 
     any applicable Federal or State law.
       (D) Actions involving harm caused by a breast implant.--A 
     civil action brought for harm caused by either the silicone 
     gel or the silicone envelope utilized in a breast implant 
     containing silicone gel shall not be subject to the 
     provisions of this title governing product liability actions, 
     but shall be subject to any applicable Federal or State law.
       (b) Relationship to State Law.--Nothing in this Act shall 
     be construed to pre-empt or supercede any Federal or State 
     law to the extent that such law would further limit the award 
     of punitive damages in civil actions. Any matter that is not 
     specifically covered by this title shall be governed by any 
     applicable Federal or State law.
       (c) Effect on Other Law.--Nothing in this title shall 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)).

     SEC. 103. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS, 
                   RENTERS, AND LESSORS.

       (a) General Rule.--
       (1) In general.--In any product liability action that is 
     subject to this title, a product seller other than a 
     manufacturer shall be liable to a claimant only if the 
     claimant establishes that--
       (A)(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 the harm to the claimant;
       (B)(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 the harm to the claimant; or
       (C)(i) the product seller engaged in intentional 
     wrongdoing, as determined under applicable State law; and
       (ii) the intentional wrongdoing caused 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 
     the product, if--
       (A) the failure occurred because there was no reasonable 
     opportunity to inspect the product; or
       (B) the inspection, in the exercise of reasonable care, 
     would not have revealed the aspect of the product that 
     allegedly caused the claimant's harm.
       (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 is or 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) Definition.--For purposes of paragraph (2), and for 
     determining the applicability of this title to any person 
     subject to that paragraph, the term ``product liability 
     action'' means a civil action brought on any theory for harm 
     caused by a product or product use.
       (2) Liability.--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(17)(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 that product.

     SEC. 107. STATUTE OF REPOSE FOR DURABLE GOODS USED IN A TRADE 
                   OR BUSINESS.

       (a) In General.--Except as provided in subsections (b) and 
     (c), no product liability action that is subject to this 
     title concerning a durable good alleged to have caused harm 
     (other than toxic harm) for which the claimant has received 
     or is eligible to receive workers' compensation may be filed 
     after the 18-year period beginning at the time of delivery of 
     the durable good to its first purchaser or lessee.
       (b) Extension of Statute of Repose.--Notwithstanding any 
     other provision of this section and except as provided in 
     section 106(b), a product liability action may be commenced 
     within 2 years after the date of discovery or date on which 
     discovery should have occurred, if the harm, and the cause of 
     the harm, leading to a product liability action described in 
     subsection (a) are discovered or, in the exercise of 
     reasonable care, should have been discovered, before the 
     expiration of the 18-year period under this section.
       (c) Exceptions.--
       (1) In general.--A motor vehicle, vessel, aircraft, or 
     train, that is used primarily to transport passengers for 
     hire, shall not be subject to this section.
       (2) Certain express warranties.--Subsection (a) does not 
     bar a product liability action against a defendant who made 
     an express warranty in writing as to the safety or life 
     expectancy of the specific product involved which was longer 
     than 18 years, except that such subsection shall apply at the 
     expiration of that warranty.
       (3) Aviation limitations period.--Subsection (a) does not 
     affect the limitations period established by the General 
     Aviation Revitalization Act of 1994 (49 U.S.C. 40101 note).

     SEC. 109. 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 
     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 that action is 
     maintained, not later than 60 days after the later of--
       (1) service of the initial complaint; or
       (2) the expiration of the applicable period for a 
     responsive pleading.
       (b) Written Notice of Acceptance or Rejection.--
       (1) In general.--Except as provided in subsection (c), not 
     later than 20 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.
       (2) Effect of notice.--The filing of a written notice under 
     paragraph (1) shall not constitute a waiver of any objection 
     or defense in the action, including any objection on the 
     grounds of jurisdiction.
       (c) Extension.--
       (1) In general.--The court may, upon motion by an offeree 
     made before the expiration of the 20-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).
       (2) Permitted discovery.--Discovery may be permitted during 
     the period described in paragraph (1).

     SEC. 110. PUNITIVE DAMAGES REFORMS.

       (a) General Rule.--
       (1) Uniform standard for award of punitive damages.--To the 
     extent punitive damages are permitted by applicable State 
     law, punitive damages may be awarded against a defendant in 
     any 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 carried out by the defendant with a 
     conscious, flagrant indifference to the rights or safety of 
     others.
       (2) Bifurcation at request of any party.--
       (A) In general.--At the request of any party, the trier of 
     fact in any action that is subject to this section shall 
     consider in a separate proceeding, held subsequent to the 
     determination of the amount of compensatory damages, whether 
     punitive damages are to be awarded for the harm that is the 
     subject of the action and the amount of the award.
       (B) Inadmissibility of evidence relative only to a claim of 
     punitive damages in a

[[Page S7692]]

     proceeding concerning compensatory damages.--If any party 
     requests a separate proceeding under paragraph (1), in a 
     proceeding to determine whether the claimant may be awarded 
     compensatory damages, any evidence, argument, or contention 
     that is relevant only to the claim of punitive damages, as 
     determined by applicable State law, shall be inadmissible.
       (b) Special Rule for Certain Persons and Entities.--
       (1) In general.--In any action described in subsection (a) 
     against a person or entity described in paragraph (2), an 
     award of punitive damages shall not exceed the lesser of--
       (A) 2 times the amount of compensatory damages awarded; or
       (B) $250,000.
       (2) Persons and entities described.--
       (A) In general.--A person or entity described in this 
     paragraph is--
       (i) an individual whose net worth does not exceed $500,000; 
     or
       (ii) an owner of an unincorporated business, or any 
     partnership, corporation, association, unit of local 
     government, or organization that has--

       (I) annual revenues of less than or equal to $5,000,000; 
     and
       (II) fewer than 25 full-time employees.

                TITLE II--BIOMATERIALS ACCESS ASSURANCE

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Biomaterials Access 
     Assurance Act of 1998''.
                                  ____


                           Amendment No. 3097

       On page 14, beginning with line 20, strike through line 25, 
     and insert the following:
       (b) Relationship to State Law--Nothing in this Act shall be 
     construed to pre-empt or supercede any Federal or State law 
     to the extent that such law would further limit the award of 
     punitive damages in civil actions. Any matter that is not 
     specifically covered by this title shall be governed by any 
     applicable Federal State law.
                                 ______
                                 

                    GRAMM AMENDMENTS NOS. 3098-3101

  (Ordered to lie on the table.)
  Mr. GRAMM submitted four amendments intended to be proposed by him to 
the bill, S. 648, supra; as follows:

                           Amendment No. 3098

       In section 105(b), strike ``and except as otherwise 
     provided in section 112''.
                                  ____


                           Amendment No. 3099

       In section 105(b) add at the end: ``Nothing in this Section 
     shall preclude consideration of misuse or alteration of the 
     product by the claimant's employer or any co-employee who is 
     immune from suit pursuant to state law applicable to 
     workplace injuries for purposes of determining liability.''
                                  ____


                           Amendment No. 3100

       Section 105(b) is amended to read as follows:
       (b) Workplace Injury.--Notwithstanding subsection (a) the 
     damages for which a defendant is otherwise liable under State 
     law shall not be reduced by the percentage of responsibility 
     for the claimant's harm attributable to misuse or alteration 
     of the product by the claimant's employer who is immune from 
     suit by the claimant pursuant to the State law applicable to 
     workplace injuries. Nothing in this section shall preclude 
     consideration of sophisticated user or bulk seller issues 
     relating to employer responsibility for purposes of 
     determining liability.
                                  ____


                           Amendment No. 3101

       Section 105(b) is amended to read as follows:
       (b) Workplace Injury.--Notwithstanding subsection (a) the 
     damages for which a defendant is otherwise liable under State 
     law shall not be reduced by the percentage of responsibility 
     for the claimant's harm attributable to misuse or alteration 
     of the product by the claimant's employer who is immune from 
     suit by the claimant pursuant to the State law applicable to 
     workplace injuries. Nothing in this section shall preclude 
     consideration of misuse or alteration of the product by the 
     claimant's employer or any co-employee who is immune from 
     suit pursuant to state law applicable to workplace injuries 
     for purposes of determining liability.
                                 ______
                                 

                    HARKIN AMENDMENTS NOS. 3102-3103

  (Ordered to lie on the table.)
  Mr. HARKIN submitted amendments intended to be proposed by him to the 
bill, S. 648, supra; as follows:

                           Amendment No. 3102

       Amend section 102(a)(2) by adding at the end the following:
       (E) Actions involving minors.--A civil action brought for 
     harm caused by a product that includes harm involving 
     permanent disability, disfigurement, or death, caused by that 
     product to an individual under the age of 18 shall not be 
     subject to the provisions of this title governing product 
     liability actions, but shall be subject to any applicable 
     Federal or State law.
                                  ____


                           Amendment No. 3103

       Strike subsections (a) and (b) of section 107 and insert 
     the following:
       (a) Useful Safe Life Defined.--
       (1) In general.--For purposes of this subsection, the term 
     ``useful safe life'' means, with respect to a product, the 
     period beginning at the time of delivery of the product and 
     ending on the date on which the product would not likely 
     perform in a safe manner.
       (2) Factors for consideration.--In making a determination 
     of what constitutes the useful safe life of a product, the 
     court may consider evidence that is probative in determining 
     whether the useful safe life of the product had expired, 
     including--
       (A) the amount of wear and tear on the product;
       (B) the effect of deterioration from natural causes, 
     climate, and other conditions under which the product was 
     used or stored;
       (C) the normal practices of the user, similar users, and 
     the defendant with respect to--
       (i) the circumstances and frequency of the use of the 
     product;
       (ii) the purposes of the use of the product; and
       (iii) any repair, renewal, or replacement made with respect 
     to the product;
       (D) any representation, instruction, or warning made by the 
     defendant concerning--
       (i) the proper maintenance, storage, or use of the product; 
     or
       (ii) the expected useful safe life of the product; and
       (E) any modification or alteration to the product made by a 
     user or a third party.
       (b) Exemption; Presumption.--
       (1) Exemption from liability.--Except as provided in 
     subsection (c), and subject to paragraph (2), in any product 
     liability action concerning a product that is a durable good 
     alleged to have caused harm (other than toxic harm), the 
     defendant shall not be subject to liability to a claimant for 
     damages resulting from harm caused by the durable good if the 
     defendant proves by a preponderance of the evidence that the 
     harm was caused after the expiration of the useful safe life 
     of the product.
       (2) Liability of defendant.--A defendant may be subject to 
     liability for damages resulting from harm caused by a durable 
     good after the expiration of the useful safe life of the 
     product if--
       (A) the defendant expressly warranted that the product 
     could be utilized safely for a period longer than the useful 
     safe life of the product; or
       (B) the defendant intentionally misrepresented facts 
     concerning the product, or fraudulently concealed information 
     concerning the product, and that conduct was a substantial 
     cause of the damages.
       (3) Presumption regarding useful safe life.--If harm 
     resulting in damages was caused by a durable good after the 
     18-year period beginning on the date of delivery of the 
     product to the initial purchaser or lessee, there shall be a 
     rebuttable presumption that the harm occurred after the 
     expiration of the useful safe life of the product. The 
     presumption may be rebutted by a preponderance of the 
     evidence.
                                 ______
                                 

                   SESSIONS AMENDMENTS NOS. 3104-3105

  (Ordered to lie on the table.)
  Mr. SESSIONS submitted two amendments intended to be proposed by him 
to the bill, S. 648, supra; as follows:

                           Amendment No. 3104

       Strike section 2.
       Strike section 102(b) and insert the following:
       (b) Relationship to State Law.--Nothing in this Act shall 
     be construed to preempt or supersede any Federal or State law 
     to the extent that such law would further limit the award of 
     punitive damages. Any matter that is not specifically covered 
     by this title shall be governed by applicable Federal or 
     State law.
       Strike sections 104 through 106.
       Redesignate section 107 as section 104.
       Strike section 108.
       Redesignate sections 109 through 112 as sections 105 
     through 108, respectively.
                                  ____


                           Amendment No. 3105

       Strike section 102(b) and insert the following:
       (b) Relationship to State Law.--Nothing in this Act shall 
     be construed to preempt or supersede any Federal or State law 
     to the extent that such law would further limit the award of 
     punitive damages in civil actions. Any matter that is not 
     specifically covered by this title shall be governed by 
     applicable Federal or State law.

                          ____________________