Executive Summary

PRODUCT LIABILITY BILL REPORTED OUT OF SENATE COMMERCE COMMITTEE on May 22 by a 13-7 vote. In adopting the bill, the committee accepted a substitute amendment, which contained what Sen. Kasten (R-Wis), the principal sponsor, called two "technical" changes. One change limits the proposed defense against punitive damages for manufacturers of products that FDA approves or judges to be generally recognized as safe and effective. The amendment would void the FDA review-based defense against punitive damages in cases where it is shown that a representative of the manufacturer bribed an FDA official. The change was inspired by the generic drug scandal and reportedly was drafted and pushed by the Pharmaceutical Manufacturers Association. The second change pertains to a workman's compensation provision. The measure now will be sequentially referred to the Judiciary Committee. In addition, the Labor & Human Resources Committee may request referral to review the legislation's workman's compensation provisions, although it is unlikely that the Senate will unanimously consent to a third referral for the bill. Sens. Kennedy (D-Mass.) and Metzenbaum (D-Ohio), who are expected to be strong opponents of the legislation, sit on both the Judiciary and Labor Committees. Because only about 40 days remain on the legislative calendar, chances are slim that S 1400 will pass the Senate this Congress. Commerce Committee members who voted against the bill were Sens. Ford (D-Ky.), Gore (D-Tenn.), Kerry (D-Mass.), Breaux (D-La.), Bryan (D-Nev.), Packwood (R-Ore.) and Chairman Hollings (D-S.C.).