Reference no: EM13953073

Consistent with what is stated in the Jennings text, p. 301, "[a]lthough nearly all states have adopted some form of limitations in tort recover, these laws are a maze of laws differing from state to state and are in a fluid state of judicial review." Those, as well as federal proposals/actions by Congress, frequently take a variety of forms, from capping exemplary/punitive damages, to shielding certain categories of industries/individuals from lawsuits, raising the burden of proof to a higher standard (e.g., "substantial evidence," "clear and convincing evidence," etc.) from normal civil court "preponderance of the evidence"' standard, and/or requiring that there be "gross negligence" as opposed to just any "negligence, amongst other reform efforts.

Such attempts are by no means "new," for in 1991 bill S. 640, entitled, "A bill to regulate interstate commerce by providing for a uniform product liability law, and for other purposes," was introduced in the Senate on 13 March 1991 (with the related bill H.R. 3068 in the House of Representatives).   The Summary of the bill stated that the provisions would "govern[] any product liability action against any manufacturer or product seller, on any theory, for harm caused by a product," and "[s]upercede any inconsistent State law regarding recovery in such actions."  More specifically, the bill would have "limit[ed] punitive damages" and "require[ed] higher standards of proof for recovery of punitive damages," in that the plaintiff would have to prove that the "harm suffered was the "result of conduct manifesting a manufacturer's or product seller's conscious, flagrant indifference to the safety of those persons who might be harmed by a product," which must be shown by a raised evidentiary standard, i.e., the "clear and convincing" standard, instead of the normal "preponderance of the evidence" standard, but explicitly precluded "a failure [by the manufacturer or seller] to exercise reasonable care in choosing among alternate product designs, formulations, instructions, or warnings [as being able to constitute] such conduct."  As to meeting government standards, the Summary stated that the punitive damages would be prohibited "against the manufacturer or seller of a medical device where: (the drug or device was subject to pre-market approval by the Food and Drug Administration (FDA); or (2) the drug is generally recognized as safe and effective under conditions established by the FDA," or "against a manufacturer [but not the "seller"] of an aircraft where: (1) the aircraft was subject to pre-market certification by the Federal Aviation Administration (FAA); and (2) the manufacturer complied, after delivery, with FAA requirements and obligations with respect to continuing airworthiness."

Using your Web browser:

• Go to thomas.loc.gov (Links to an external site.). 
• Provide an example, i.e., a citation (bill number) of another bill introduced in Congress after the 111th Congress (i.e., the 112th Congress or thereafter) of proposed tort reform and/or product liability (e.g., limiting punitive damage (other than one provided by any of your classmates, so there might be some incentive to do this one relatively early in the week, and, with bills sometimes having more than one reform, e.g., H.R. 3068, referenced above, only cite one of the reforms, to ensure everyone in class can cite one), in one or more of the categories listed above.
• Give a brief description of what specifics the bill actually proposed. 

Alternatively, and this is an opportunity to begin to delve into state law searches (as not just much of tort law, but also the majority of contract law, is state, rather than federal, law), you may provide an example, subsequent to 2009, of a state law effort to "reform" tort/product liability law (i.e., where a state legislature has proposed or passed legislation similar to any of those proposed in Congress), once more, other than one provided by any of your classmates, so there might be some incentive to do this one relatively early in the week).  To this end, access to most state sites can be done using your browser and inputting " state.??.us" and replacing the " ??" with some two-letter state designator (e.g., "state.ak.co" (for Alaska), "state.me.us" (for Maine), and "state.vt.us" for Vermont),  and then do a search using applicable terms, e.g., torts, product liability, punitive damages (or, alternatively, exemplary damages), etc.