PRODUCT LIABILITY BILL GETS "STATUTE OF REPOSE" AMENDMENT

PRODUCT LIABILITY BILL GETS "STATUTE OF REPOSE" AMENDMENT at a June 19 Senate Commerce Cmte. markup. By unanimous consent the cmte. agreed to add to its draft legislation the amendment to limit liability to 10 years for manufacturers of consumer goods and to 25 years for manufacturers of capital goods.

Offered by Sen. Kasten (R-Wis.), the statute of repose provision stipulates that claims involving capital goods "shall be barred" unless "the complaint is served and filed within 25 years of the date of delivery of the product to its first purchaser or lessee." The definition of "capital good" excludes transportation vehicles or their components. Kasten's provision was amended by Sen. Gorton (R-Wash.) so that manufacturers or product sellers of consumer goods (other than vehicles) are not liable if "a preponderance of the evidence" indicates that "that the harm was caused after the product's useful safe life." Gorton's amendment provides that "there is a presumption that the harm was caused after the useful safe life of the product if the harm was caused more than 10 years after the time of delivery of the product."

The statute of repose for both capital and consumer goods explicitly excludes claims alleging "toxic harm."

Under the bill, manufacturers could be found liable for injuries discovered after the time limits if "the harm was caused by exposure to a product, which exposure first occurred within the useful safe life of the product, even though the harm did not manifest itself until after the useful safe life," the amendment states. Toxic harm includes injury from products such as diethylstilbestrol (DES) and asbestos.

In a series of markups the Senate cmte. is considering individual provisions in an effort to develop consensus legislation. The cmte. rejected amendments to restrict plaintiff lawyers' contingency fees and to require that liability be based on showings of fault. Further markup is scheduled for June 25. The cmte. is expected to address additional incentives for settlement and an amendment to establish that compliance with federal government standards is a defense against punitive damages.