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Executive Summary

HOUSE ENERGY & COMMERCE CMTE. CONSIDERATION OF PRODUCT LIABILITY legislation is tentatively scheduled for May 10. Not many bills with such a small chance of passage have been the subject of so much frenzied activity in anticipation of a markup. The activity is attributed by some to Chairman Dingell's (D-Mich.) desire to move the bill. It is also being pushed by Reps. Richardson (D-N.M.), Florio (D-N.J.), and Lent (R-N.Y.). Staffers report that more than 70 amendments have been prepared for the markup. Rep. Wyden (D-Ore.), for example, has an amendment for another amendment prepared by Rep. Sikorski (D-Min.). Sikorski's proposal, endorsed by pro-life groups, would exempt oral contraceptives and abortifacients from the tort law defenses that the bill provides manufacturers. Wyden's amendment, which has the support of the Pharmaceutical Manufacturers Association and the American Medical Association, would exempt from the Sikorski exemption any products used following rape or incest or used to protect the life of a pregnant woman. Introduction of the Sikorski amendment may be obviated if the committee adopts an amendment prepared by Rep. Synar (D-Okla.). Synar's amendment provides that no protections under the bill's manufacturer liability section apply to litigation involving pharmaceuticals or medical devices. Even if the Commerce Committee reports the bill out favorably, it must be considered by the House Judiciary Committee, which is expected to stall for as long as possible. Other amendments include several which Rep. Waxman (D-Calif.) intends to offer in order to limit what he feels is damage that would be done by the bill to plaintiff rights. Another Wyden amendment stipulates that the legislation would not apply to Dalkon Shield litigation. An amendment prepared by Rep. Swift (D-Wash.) would require states to report to the Commerce Department product liability awards paid by insurance companies. The proposal elicited strenuous objections from the insurance industry. Should the House pass legislation this session, there remains no time for consideration by the Senate, where the bill has no committee support. The only hope for a House-passed bill is as a rider to unrelated Senate-passed legislation in conference.

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