PRODUCT LIABILITY LEGISLATION: CLAIMANTS RIGHTS WHEN MFR. IS UNKNOWN

PRODUCT LIABILITY LEGISLATION: CLAIMANTS RIGHTS WHEN MFR. IS UNKNOWN would be studied by an expert panel authorized by S 44, Sen. Kasten's (D-Wisc.) uniform product liability law that passed the Senate Commerce Cmte. March 27. Under an amendment proposed by Cmte. Chairman Packwood (R-Ore.), the three man panel would "study the need for federal legislation" providing compensation to claimants who are unable to recover in civil action because "the product that caused the harm was unreasonably dangerous (as defined in the act) but the mfr. could not be identified."

The panel would also examine the need for federal legislation providing compensation to claimants unable to recover in any civil action because "the mfr. of the product did not know and could not in the exercise of reasonable prudence have known at the relevant point in time (as defined in [the act]) about the danger that caused the harm." The issues are similar to those involved in on-going cases involving DES, where claimants are trying to recover damages collectively from a group of mfrs. of DES, although they are unable to identify the specific mfr. of the drug product allegedly responsible for injury.

The legislation cleared the Commerce Cmte. by a vote of 11-yes, 5-no, and one "present." The bill reported to the Senate floor leaves intact the "Robins amendment," so called for its bearing on Dalkon Shield litigation.

Under that provision, added to the bill last fall, punitive damages may be awarded only when a claimant establishes that the "harm suffered was the result of the reckless disregard of the mfr. or product seller for the safety of product users." The provision states, however, that "punitive damages may not be awarded in the absence of a compensatory award."

The bill defines "reckless disregard" as "conduct manifesting a conscious, flagrant indifference to the safety of those persons who might be harmed by a product and constituting an extreme departure from accepted practice. A negligent choice among alternative product designs or warnings, when made in the ordinary course of business, does not by itself constitute 'reckless disregard.'"