Conditions Good for Passage of Product Liability Law

Article excerpt

By Lou Anne Wolfe

Journal Record Staff Reporter

Some Oklahoma City business leaders believe conditions look better than ever for passage next month of a uniform product liability law at the federal level.

Senate 640, the proposed Product Liability Fairness Act, is scheduled for a vote in the U.S. Senate on Sept. 8, said Dean Schirf, director of government relations for the Oklahoma City Chamber of Commerce.

"We strongly support it," he said. "It's one of the main business issues that we work on, on a perennial basis, at the state Legislature."

Since product liability currently is regulated from state to state, there are 51 different sets of litigation rules when the District of Columbia is considered, Schirf said.

"We've never really had any real success in the state of Oklahoma, and the business community and chamber have tried in the last several sessions to get some product liability reform passed in the state Legislature," he said.

"I think one of the No. 1 things we have attempted to reform is the statute of limitations, and we have been unsuccessful."

In Oklahoma, there is no "real" statute of limitations, Schirf said. "You're just open to the courts, and it's creating a lot of costly and timely situations for business, and this ought to be addressed at the federal level."

Under the existing system, a product feasibly could be manufactured in one state, purchased in another state and be involved in an accident in a third state.

"So you have three states with varying degrees of precedent law within those respective states," he said. "There really needs to be a standard, and that's what this federal legislation is trying to accomplish."

Some of the provisions of Senate 640 and its companion bill, House Resolution 3030, are: A uniform statute of limitations. Claimants could bring a civil action within two years from the time an injury and its cause are discovered, or should reasonably have been discovered. Lawsuits involving heavy machinery or other capital goods more than 25 years old would be disallowed. Product sellers would be liable for harms caused by their negligence, such as that resulting from the alteration of a product, assembling a product or making false representations about it. If a manufacturer's errors caused the claimant's harm, and the manufacturer had no U.S. assets or was out of business, the seller would be liable. Punitive damages could be assessed only if there was "clear and convincing evidence" that a company showed "conscious, flagrant indifference" to public safety. Defendants could request that punitive damages be considered in a separate proceeding, apart from the issues of liability and compensatory damages.

If a manufacturer obtained prerket approval from the federal Food and Drug Administration, or Federal Aviation Administration certification, then punitive damages would not be allowed. Businesses would be liable for such nononomic damages as recovery for pain and suffering, and emotional distress, only in proportion to their share of the blame, rather than making them be jointly liable for the entire amount. …