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FEDERAL PRODUCT LIABILITY REFORM WILL BE "EXTREMELY DIFFICULT," REP. FLORIO TELLS HIMA MEETING; SEN. GORE CITES PREEMPTION AS PROBLEM FOR STATE LAWS

Executive Summary

Product liability reform at the federal level will be "extremely difficult" in the current Congress, Rep. James Florio (D-N.J.) told a Sept. 17 session of the Health Industry Manufacturers Association's annual fall meeting in Washington, D.C. Noting that product liability law traditionally is the venue of the states rather than the federal government, Florio indicated that the momentum at the federal level is waning. "Congress right now is having an awful lot of difficulties doing even the fundamentals," he stated. "The talk about comprehensive major changes in a law that has traditionally been a law left to the province of the states is going to be extremely difficult. . . ." Florio's comments indicate the further diminishing prospects for federal reform from a presentation to the Proprietary Association in mid-May. Florio contended there has been a continuing effort to keep product liability reform moving. He said that committee members have been attempting to "work at the very earliest stages" to formulate a consensus on the legislation which has been proposed in the House, so that "no one ends up totally happy but no one is sufficiently off the reservation so that they will be around throwing sand in the gears." However, he said, "the controversy over particular federal reforms has sidetracked all efforts to improve the law over the last two or three sessions of the Congress." While acknowledging the unlikelihood of congressional product liability legislation, Florio continues to endorse certain certain aspects of the House bill. For example, Florio continues to support some measure of product liability protection for manufacturers that make a "good faith effort" to comply with federal regulatory requirements. Florio said another "major difficulty" which still must be overcome is the extent to which federal law would have preemption over existing state law. The current proposal to limit federal preemption "is not going to be an acceptable way to resolve the question," he stated. Rep. Richardson's (D-NM) product liability bill would allow federal law on strict, joint and several liability to preeempt state law while allowing the states to place limits on liability awards. Florio said that as written, the legislation "cuts the legs out from under the basic thought that you want uniformity so that products in interstate commerce are not going to be dealing with 50 different forums. The idea of preemption or no preemption, I think, is going to have to be resolved in an affirmative way one side or the other." The preemption issue also is raising concern on the Senate side. Product liability legislation which is pending in the Senate was considered at a Sept. 18 meeting of the consumer subcommittee of the Commerce Committee. Subcommittee Chairman Albert Gore (D-Tenn.), who scheduled the hearing at the request of Sen. Robert Kasten (R-Wis.), reflected the lack of congressional enthusiasm for liability reform. Gore expressed concern "with the practical problem" of federal preemption of product liability law, while states would continue to set legal standards for other tort law. The problem would be exacerbated when "state courts might be required to apply both a new federal law and traditional state law in a single action," Gore maintained. "For instance, if an individual is injured by a drug prescribed by his or her doctor and then sues both the doctor and the manufacturer of the drug, the suit against the manufacturer would be governed by the federal law while the suit against the doctor would be governed by present state law."

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