PRINTER'S NO. 812
No. 757 Session of 1997
INTRODUCED BY JUBELIRER, DELP, HELFRICK, TOMLINSON, THOMPSON,
ROBBINS, MOWERY, MADIGAN AND PUNT, MARCH 20, 1997
REFERRED TO JUDICIARY, MARCH 20, 1997
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for product
3 liability actions by establishing standards for the
4 imposition of liability and otherwise addressing actions
5 brought for recovery of damages for death or injury to
6 persons or property alleged to have been caused by a product.
7 The General Assembly finds that there is a need for
8 legislation to set forth certain rules governing product
9 liability actions. The purpose of this legislation is to set
10 forth clear rules so that manufacturers and other suppliers of
11 products are held responsible for injuries caused by defective
12 products and are encouraged to make improvements in product
13 safety while recognizing that suppliers cannot be held
14 responsible as insurers or guarantors of the absolute safety of
15 their products.
16 The General Assembly of the Commonwealth of Pennsylvania
17 hereby enacts as follows:
18 Section 1. Section 7102 of Title 42 of the Pennsylvania
19 Consolidated Statutes is amended to read:
1 § 7102. Comparative [negligence] responsibility.
2 (a) General rule.--In all actions brought to recover damages
3 for [negligence resulting in] death or injury to person or
4 property, the fact that contributory responsibility is
5 attributed to the plaintiff [may have been guilty of
6 contributory negligence] shall not bar a recovery by the
7 plaintiff or his legal representative where [such negligence]
8 the responsibility was not greater than the causal [negligence]
9 responsibility of the defendant or defendants against whom
10 recovery is sought, but any damages sustained by the plaintiff
11 shall be diminished in proportion to the amount of [negligence]
12 responsibility attributed to the plaintiff.
13 (b) Recovery against joint defendant; contribution.--Where
14 recovery is allowed against more than one defendant, each
15 defendant shall be liable for that proportion of the total
16 dollar amount awarded as damages in the ratio of the amount of
17 his causal [negligence] responsibility to the amount of causal
18 [negligence] responsibility attributed to all defendants against
19 whom recovery is allowed. The plaintiff may recover the full
20 amount of the allowed recovery from any defendant against whom
21 the plaintiff is not barred from recovery. Any defendant who is
22 so compelled to pay more than his percentage share may seek
23 contribution.
24 (c) Downhill skiing.--
25 (1) The General Assembly finds that the sport of
26 downhill skiing is practiced by a large number of citizens of
27 this Commonwealth and also attracts to this Commonwealth
28 large numbers of nonresidents significantly contributing to
29 the economy of this Commonwealth. It is recognized that as in
30 some other sports, there are inherent risks in the sport of
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1 downhill skiing.
2 (2) The doctrine of voluntary assumption of risk as it
3 applies to downhill skiing injuries and damages is not
4 modified by subsections (a) and (b).
5 (d) Voluntary assumption of risk in product liability
6 actions.--Voluntary assumption of the risk in product liability
7 actions as defined in section 8395 (relating to definitions) is
8 not modified by subsections (a) and (b). The right of an
9 employee to refuse a work assignment, whether established under
10 a collective bargaining agreement or otherwise, shall not be
11 admissible to establish voluntary assumption of this risk.
12 (e) Product liability actions.--In a product liability
13 action based on a theory of strict liability, comparative
14 responsibility shall apply only where the harm was caused by the
15 misuse, alteration or modification of the product which was
16 reasonably foreseeable, the substantial failure to maintain the
17 product or the use of alcohol or controlled substances. For
18 purposes of this subsection, the term "misuse" means use of the
19 product which is clearly inconsistent with the product's purpose
20 or characteristics.
21 (f) Environmental exclusion and removal of asbestos
22 materials from public buildings.--The extension of this section
23 to product liability actions based on theories of liability
24 other than negligence shall not bar or modify liability in
25 actions arising under the act of October 18, 1988 (P.L.756,
26 No.108), known as the Hazardous Sites Cleanup Act, or under any
27 other law of this Commonwealth or the Federal Government
28 relating to the protection or cleanup of the environment in
29 actions to recover damages to property caused by asbestos-
30 containing materials in public buildings owned by the
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1 Commonwealth or a government agency or in any other action for
2 harm caused by products containing asbestos or in actions
3 relating to statutory benefits payable for pneumoconiosis,
4 anthracosilicosis or any other form of black lung disease under
5 the laws of this Commonwealth or the Federal Government.
6 [(d)] (g) Definitions.--As used in this section, the
7 following words and phrases shall have the meanings given to
8 them in this subsection:
9 "Defendant or defendants against whom recovery is sought."
10 Includes impleaded defendants.
11 "Plaintiff." Includes counterclaimants and cross-claimants.
12 "Responsibility."
13 (1) Negligence.
14 (2) In a product liability action subject to Subchapter
15 I of Chapter 83 (relating to product liability), the
16 responsibility of a supplier under theories of liability
17 other than negligence, including strict liability in tort,
18 breach of express or implied warranty, or any other theory.
19 Section 2. Title 42 is amended by adding a section to read:
20 § 7104. Limitation on protective orders in product liability
21 actions.
22 (a) Determination of good cause.--A court shall not enter an
23 order restricting the disclosure of information in any product
24 liability action, as defined in section 8395 (relating to
25 definitions), except upon a finding of good cause. In
26 determining whether good cause has been shown, the court shall
27 consider:
28 (1) the interest of the public in information concerning
29 a product's safety;
30 (2) the availability to the public or government
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1 agencies from alternative sources of substantially equivalent
2 information; and
3 (3) the interests of the persons protected by the
4 protective order in maintaining the confidentiality of the
5 information.
6 (b) Modification of protective order.--If a showing of good
7 cause supporting a protective order is made, but the court,
8 either at the time the order is initially entered or at any
9 other time, determines that the public interest nonetheless
10 requires disclosure of some portion of the protected information
11 or of the fact that such information has been protected, the
12 court may modify the protective order to allow disclosure to an
13 appropriate Federal, State or local government agency of
14 information found by the court to disclose the existence of a
15 product hazard. If the court determines that the public interest
16 requires disclosure to an agency of product hazard information
17 contained in materials that also contain trade secrets or other
18 confidential research, development or commercial information,
19 the court shall prescribe a form of disclosure which excludes
20 such confidential information or, to the extent that is not
21 possible, prescribe such procedures as are necessary to ensure
22 continued protection of the confidential information.
23 Section 3. Chapter 83 of Title 42 is amended by adding a
24 subchapter to read:
25 SUBCHAPTER I
26 PRODUCT LIABILITY
27 Sec.
28 8393. Short title of subchapter.
29 8394. Scope of subchapter.
30 8395. Definitions.
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1 8396. Liability of suppliers.
2 8397. Product design.
3 8398. Warnings or instructions about products.
4 8399. Alteration or modification of products.
5 8399.1. Product misuse.
6 8399.2. Inadmissibility of evidence of subsequent improvements
7 or measures.
8 8399.3. Limitation on liability for punitive damages for harm
9 caused by products regulated by Federal Food and Drug
10 Administration.
11 § 8393. Short title of subchapter.
12 This subchapter shall be known and may be cited as the
13 Product Liability Act.
14 § 8394. Scope of subchapter.
15 (a) Establishment of principles.--This subchapter is not
16 intended to codify all issues relating to product liability
17 actions but to codify, clarify and establish certain principles
18 applicable to all product liability actions.
19 (b) Exclusions.--This subchapter shall not bar or modify
20 liability in actions:
21 (1) arising under the act of October 18, 1988 (P.L.756,
22 No.108), known as the Hazardous Sites Cleanup Act, or under
23 any other law of this Commonwealth or the Federal Government
24 relating to the protection or cleanup of the environment;
25 (2) to recover damages to property caused by asbestos-
26 containing materials in public buildings owned by the
27 Commonwealth or a government agency or in any other action
28 for harm caused by products containing asbestos;
29 (3) relating to statutory benefits payable for
30 pneumoconiosis, anthracosilicosis or any other form of black
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1 lung disease under the laws of this Commonwealth or the
2 Federal Government; or
3 (4) based on tobacco or tobacco products or on action or
4 inaction of tobacco suppliers with respect to tobacco or
5 tobacco products.
6 § 8395. Definitions.
7 The following words and phrases when used in this subchapter
8 shall have the meanings given to them in this section unless the
9 context clearly indicates otherwise:
10 "Defendant." Includes impleaded defendants.
11 "Harm." Death or injury to person or property.
12 "Plaintiff." Includes counterclaimants and cross-claimants.
13 "Product liability action." Any action or claim against a
14 supplier for recovery of damages for harm alleged to have been
15 caused by a product supplied in a defective condition
16 unreasonably dangerous to the user or consumer or to his
17 property, including, but not limited to, actions or claims for
18 contribution or indemnity or actions or claims based on strict
19 liability in tort, breach of express or implied warranty or
20 misrepresentation.
21 "Supplier." A person who manufactures, sells or otherwise
22 supplies a product and is engaged in the business of supplying
23 such a product.
24 § 8396. Liability of suppliers.
25 (a) General rule.--In a product liability action a supplier
26 of a product shall be liable if the plaintiff proves that the
27 product was supplied by the supplier in a defective condition as
28 a result of:
29 (1) a manufacturing defect, that is, a material
30 deviation of the product from the design specifications,
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1 formulae or performance standards of its manufacturer or from
2 otherwise identical units manufactured to the same
3 specifications, formulae or standards, provided, however,
4 that this paragraph is not intended to preclude the plaintiff
5 in certain circumstances from proving the existence of a
6 manufacturing defect with evidence of a malfunction of the
7 product;
8 (2) a defect in the design of the product;
9 (3) the failure of the supplier to provide adequate
10 warning or instruction about the product; or
11 (4) a misrepresentation or a failure of the product to
12 conform to an express or implied warranty made by the
13 supplier about the product.
14 (b) Negligence claims preserved.--Nothing in this section
15 shall prohibit a plaintiff from bringing a common-law negligence
16 claim for a product-related injury.
17 (c) Limitation applicable to nonmanufacturing suppliers.--
18 (1) Except as provided in paragraph (2), a supplier of a
19 product who did not manufacture the product in whole or in
20 part shall not be liable in a product liability action.
21 (2) Paragraph (1) shall not apply if:
22 (i) the plaintiff proves one or more of the
23 following:
24 (A) The supplier exercised substantial control
25 over the design, testing, packaging or labeling of or
26 the providing of warning or instruction about the
27 aspect of the product which caused the harm for which
28 recovery of damages is sought.
29 (B) The supplier altered or modified the
30 product, and the alteration or modification was a
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1 substantial factor in causing the harm for which
2 recovery of damages is sought.
3 (C) The supplier had, at the time the supplier
4 supplied the product, actual knowledge of the product
5 defect which caused the harm for which recovery of
6 damages is sought.
7 (D) The supplier made an express factual
8 representation about the aspect of the product which
9 caused the harm for which recovery of damages is
10 sought;
11 (ii) valid in personam jurisdiction cannot be
12 obtained in this Commonwealth over either a manufacturer
13 of the product or any other supplier described in
14 subparagraph (i); or
15 (iii) the court determines that neither a
16 manufacturer of the product nor any other supplier
17 described in subparagraph (i) would be able to satisfy a
18 judgment if found liable in a product liability action.
19 (3) After reasonable period to conduct discovery, but
20 not less than one year from the date the action was filed, a
21 nonmanufacturing supplier shall be dismissed from a product
22 liability action without prejudice upon filing of an
23 affidavit stating:
24 (i) that all information in the possession of the
25 supplier concerning the identity of the manufacturers and
26 other suppliers of the product at issue has been provided
27 to the plaintiff; and
28 (ii) that the supplier is not described in paragraph
29 (2)(i).
30 The filing of the affidavit shall have the effect of tolling
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1 or extending the statute of limitations as to the supplier
2 filing it. If the court determines that the statements made
3 in any affidavit filed under this section are inaccurate or
4 that no manufacturer or other supplier described in paragraph
5 (2)(i) is both subject to valid in personam jurisdiction in
6 this Commonwealth and able to satisfy a judgment if found
7 liable in a product liability action, the court shall, upon
8 motion of a party, immediately reinstate the claims against
9 the supplier.
10 (4) Paragraph (3) is not intended to preclude any other
11 means by which a nonmanufacturing supplier may seek dismissal
12 from a product liability action on the basis of this
13 subsection or otherwise, and this subsection is not intended
14 to preclude any other defense available to a nonmanufacturing
15 supplier in a product liability action.
16 § 8397. Product design.
17 (a) General rule.--In a product liability action the product
18 shall not be found to be in a defective condition as a result of
19 a defect in the design of the product if:
20 (1) the plaintiff does not prove that at the time the
21 product left the control of the manufacturer there was a
22 feasible alternative design of the product which could have
23 protected against the defect which is alleged to have caused
24 the harm for which recovery of damages is sought. An
25 alternative design is feasible only if, at the time the
26 product left the control of the manufacturer, the technical,
27 medical and scientific knowledge relating to the alternative
28 design existed and was capable of use in the manufacturing of
29 the product; or
30 (2) notwithstanding proof by the plaintiff of the
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1 existence of an alternative design as set forth in paragraph
2 (1), the supplier proves that the alternative design was not
3 practical or effective.
4 (b) Unavoidably unsafe products.--The Restatement, Second,
5 Torts, § 402 A, Comment k (1965) shall apply to product
6 liability cases involving drugs, pharmaceuticals and vaccines.
7 (c) No effect on liability for failure to warn.--The
8 limitations established by this section shall not affect any
9 liability of the supplier for failure to provide adequate
10 warning or instruction about the product, including warning or
11 instruction about a defect in its design discovered after it was
12 supplied.
13 § 8398. Warnings or instructions about products.
14 (a) General rule.--In a product liability action the product
15 shall be found to be in a defective condition as a result of the
16 failure of the supplier to provide adequate warning or
17 instruction about the product if the supplier failed to supply
18 the instruction or warnings as were reasonably necessary to
19 inform the user or consumer of the foreseeable risks and
20 limitations regarding the product.
21 (b) Prescription drugs.--In the case of prescription drugs
22 or medical devices that are within the licensing or approval
23 jurisdiction of the Federal Food and Drug Administration, the
24 warning may be supplied to those persons qualified to direct the
25 use or consumption of the products.
26 (c) Scope of knowledge.--A supplier shall not be liable in a
27 product liability action for failing to provide information
28 about the product which the supplier did not know and, in light
29 of the technical, medical and scientific knowledge available at
30 the time the supplier supplied the product, could not reasonably
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1 have known. This subsection is not intended to preclude the
2 existence of a duty in certain circumstances to provide warning
3 or instruction based on information that becomes available after
4 the product has been supplied.
5 (d) Warning or instruction required by the Federal Food and
6 Drug Administration.--If a warning or instruction given in
7 connection with a drug or device or food or food additive has
8 been approved or prescribed by the Federal Food and Drug
9 Administration under the Federal Food, Drug, and Cosmetic Act
10 (52 Stat. 1040, 21 U.S.C. § 301 et seq.) or the Public Health
11 Service Act (58 Stat. 682, 42 U.S.C. § 201 et seq.), a
12 rebuttable presumption shall arise that the warning or
13 instruction is adequate. For purposes of this section, the terms
14 "device," "drug," "food" and "food additive" shall have the
15 meanings given in the Federal Food, Drug, and Cosmetic Act.
16 § 8399. Alteration or modification of products.
17 A supplier shall not be liable in a product liability action
18 for harm caused by an alteration or modification of the product
19 by a person other than the supplier if the alteration or
20 modification was not reasonably foreseeable by the supplier or
21 if there was not a practical and technically feasible means by
22 which the supplier could have prevented, deterred or controlled
23 the alteration or modification or otherwise prevented the harm
24 caused by the alteration or modification.
25 § 8399.1. Product misuse.
26 A supplier shall not be liable in a product liability action
27 for harm caused by misuse of a product if the misuse was not
28 reasonably foreseeable by the supplier or if there was not a
29 practical and technically feasible means by which the supplier
30 could have prevented or deterred the misuse or otherwise
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1 prevented the harm caused by the misuse.
2 § 8399.2. Inadmissibility of evidence of subsequent
3 improvements or measures.
4 When, after a supplier has supplied a product alleged to have
5 caused harm, improvements are made or measures are taken with
6 respect to the product or any similar product which, if made or
7 taken previously, would have made the harm less likely to occur,
8 evidence of the subsequent improvements or measures is not
9 admissible against the supplier in a product liability action to
10 prove that the product was defective. Evidence of subsequent
11 improvements or measures may be admitted when offered for
12 another purpose, such as proving ownership, control, causation
13 or feasibility of improvements or measures, if controverted, or
14 impeachment.
15 § 8399.3. Limitation on liability for punitive damages for harm
16 caused by products regulated by Federal Food and Drug
17 Administration.
18 Punitive damages shall not be awarded in a product liability
19 action if a drug or device or food or food additive which caused
20 the harm for which recovery of damages is sought was subject to
21 premarket approval or licensure by the Federal Food and Drug
22 Administration (FDA) under the Federal Food, Drug, and Cosmetic
23 Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.) or the Public
24 Health Service Act (58 Stat. 682, 42 U.S.C. § 201 et seq.) and
25 was approved or licensed or is generally recognized as safe and
26 effective pursuant to conditions established by the FDA and
27 applicable regulations, including packaging and labeling
28 regulations. This limitation on liability for punitive damages
29 shall not apply if the plaintiff proves that the product
30 manufacturer intentionally withheld or misrepresented
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1 information required to be submitted under the regulations of
2 the FDA, which information was material and relevant to the harm
3 for which recovery of damages is sought. For the purposes of
4 this section, the terms "device," "drug," "food" and "food
5 additive" shall have the meanings given in the Federal Food,
6 Drug, and Cosmetic Act.
7 Section 4. The provisions of this act are severable. If any
8 provision of this act or its application to any person or
9 circumstance is held invalid, the invalidity shall not affect
10 other provisions or applications of this act which can be given
11 effect without the invalid provision or application.
12 Section 5. This act shall apply to any action commenced on
13 or after the effective date of this act.
14 Section 6. This act shall take effect immediately.
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