H. Rept. 109-728 - 109th Congress (2005-2006)
December 08, 2006, As Reported by the Judiciary Committee

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House Report 109-728 - WORKPLACE GOODS JOB GROWTH AND COMPETITIVENESS ACT OF 2006




[House Report 109-728]
[From the U.S. Government Printing Office]





109th Congress                                            Rept. 109-728
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
       WORKPLACE GOODS JOB GROWTH AND COMPETITIVENESS ACT OF 2006

                                _______
                                

December 8, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3509]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3509) to establish a statute of repose for durable goods 
used in a trade or business, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Workplace Goods Job Growth and 
Competitiveness Act of 2006''.

SEC. 2. STATUTE OF REPOSE FOR DURABLE GOODS USED IN A TRADE OR 
                    BUSINESS.

  (a) In General.--Except as otherwise provided in this Act--
          (1) no civil action may be filed against the manufacturer or 
        seller of a durable good for damage to property allegedly 
        caused by that durable good if the damage to property occurred 
        more than 12 years after the date on which the durable good was 
        delivered to its first purchaser or lessee; and
          (2) no civil action may be filed against the manufacturer or 
        seller of a durable good for damages for death or personal 
        injury allegedly caused by that durable good if the death or 
        personal injury occurred more than 12 years after the date on 
        which the durable good was delivered to its first purchaser or 
        lessee and if--
                  (A) the claimant has received or is eligible to 
                receive worker compensation; and
                  (B) the injury does not involve a toxic harm 
                (including, but not limited to, any asbestos-related 
                harm).
  (b) Exceptions.--
          (1) In general.--A motor vehicle, vessel, aircraft, or train, 
        that is used primarily to transport passengers for hire, shall 
        not be subject to this Act.
          (2) Certain express warranties.--This Act does not bar a 
        civil action against a defendant who made an express warranty 
        in writing, for a period of more than 12 years, as to the 
        safety or life expectancy of a specific product, except that 
        this Act shall apply at the expiration of that warranty.
          (3) Aviation limitations period.--This Act does not affect 
        the limitations period established by the General Aviation 
        Revitalization Act of 1994 (49 U.S.C. 40101 note).
          (4) Actions involving the environment.--Subsection (a)(1) 
        does not supersede or modify any statute or common law that 
        authorizes an action for civil damages, cost recovery, or any 
        other form of relief for remediation of the environment (as 
        defined in section 101(8) of the Comprehensive Environmental 
        Response, Compensation, and Liability Act of 1980 (42 U.S.C. 
        9601(8)).
          (5) Regulatory actions.--This Act does not affect regulatory 
        enforcement actions brought by State or Federal agencies.
          (6) Actions involving fraudulent concealment.--This Act does 
        not bar a civil action against a manufacturer or seller of a 
        durable good who fraudulently concealed a defect in the durable 
        good.
  (c) Effect on State Law; Preemption.--Subject to subsection (b), this 
Act preempts and supersedes any State law that establishes a statute of 
repose to the extent such law applies to actions covered by this Act. 
Any action not specifically covered by this Act shall be governed by 
applicable State or other Federal law.
  (d) Transitional Provision Relating to Extension of Repose Period.--
To the extent that this Act shortens the period during which a civil 
action could otherwise be brought pursuant to another provision of law, 
the claimant may, notwithstanding this Act, bring the action not later 
than 1 year after the date of the enactment of this Act.

SEC. 3. DEFINITIONS.

  In this Act:
          (1) Claimant.--The term ``claimant'' means any person who 
        brings an action covered by this Act and any person on whose 
        behalf such an action is brought. If such an action is brought 
        through or on behalf of an estate, the term includes the 
        claimant's decedent. If such an action is brought through or on 
        behalf of a minor or incompetent, the term includes the 
        claimant's legal guardian.
          (2) Durable good.--The term ``durable good'' means any 
        product, or any component of any such product, which--
                  (A)(i) has a normal life expectancy of 3 or more 
                years; or
                  (ii) is of a character subject to allowance for 
                depreciation under the Internal Revenue Code of 1986; 
                and
                  (B) is--
                          (i) used in a trade or business;
                          (ii) held for the production of income; or
                          (iii) sold or donated to a governmental or 
                        private entity for the production of goods, 
                        training, demonstration, or any other similar 
                        purpose.
          (3) Fraudulently concealed.--With respect to a durable good, 
        the term ``fraudulently concealed'' means that--
                  (A) the manufacturer or seller of the durable good 
                had actual knowledge of a defect in the durable good;
                  (B) the defect in the durable good was the proximate 
                cause of the harm to the claimant; and
                  (C) the manufacturer or seller of the durable good 
                affirmatively suppressed or hid, with the intent to 
                deceive or defraud, the existence of such defect.
          (4) Seller.--The term ``seller'' means any dealer, retailer, 
        wholesaler, or distributer in the stream of commerce of a 
        durable good concluding with the sale or lease of the durable 
        good to the first end-user.
          (5) State.--The term ``State'' means any State of the United 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Northern Mariana Islands, the Virgin Islands, Guam, 
        American Samoa, any other territory or possession of the United 
        States, and any political subdivision of any of the foregoing.

SEC. 4. EFFECTIVE DATE; APPLICATION OF ACT.

  (a) Effective Date.--Except as provided in subsection (b), this Act 
shall take effect on the date of the enactment of this Act without 
regard to whether the damage to property or death or personal injury at 
issue occurred before such date of enactment.
  (b) Application of Act.--This Act shall not apply with respect to 
civil actions commenced before the date of the enactment of this Act.

                          PURPOSE AND SUMMARY

    The ``Workplace Goods Job Growth and Competitiveness Act of 
2006'' is premised on the notion that a product which is used 
safely for a substantial period of time is not likely to be 
defective at the time of manufacture, sale, or delivery. Thus 
any injury it causes after some reasonably long period of time 
is likely to have been due to either misuse or improper 
maintenance by someone other than the manufacturer. However, 
the passage of time makes it more difficult to disprove the 
existence of a defect at the time of manufacture. Memories of 
witnesses fade after several years, evidence is difficult to 
retrieve and past employees and managers are not easy to track 
down. Although manufacturers often win cases based on injuries 
from old products, the litigation costs of defending these 
cases may be enormous and can divert resources from job 
creation, research and development.
    H.R. 3509 addresses this problem by creating a uniform 
federal statute of repose for cases involving injuries caused 
by workplace durable goods. This statute of repose would bar a 
cause of action against the manufacturer of such a product 
after 12 years from the date the product was placed in the 
stream of commerce, regardless of when the injury occurred.

                BACKGROUND AND NEED FOR THE LEGISLATION

    H.R. 3509 is intended to eliminate the economic 
inefficiency of litigation that seeks to hold manufacturers of 
durable goods\1\ liable for harms caused by machinery they have 
not controlled for over twelve years. Manufacturers almost 
always prevail in such litigation when they go to trial, but 
costs associated with defending the design of machines produced 
a decade or more ago are often enormous. Knowledgeable 
personnel have often retired, died or changed jobs, and design 
and production records have often been lost. Without careful 
explanation, old machinery may appear poorly designed when 
measured against modern counterparts, even if ``ultra-modern'' 
at the time of sale. Misuse or alteration of the machine, 
disabling or removal of safety devices, or failure to properly 
train workers often do not provide a defense at trial.\2\ The 
result is a great incentive for manufacturers to settle even 
the weakest cases, so long as the settlement is less than or 
approximately equivalent to the defense costs.\3\
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    \1\Durable goods are defined as those which (1) have a normal life 
expectancy of at least 3 years or are of a character subject to 
allowance for depreciation under the Internal Revenue Code, and (b) are 
used in a trade or business, held for the production of income, or sold 
or donated to a governmental or private entity for production of goods, 
training, demonstration, or any similar purpose. H.R. 3509, 109th Cong. 
Sec. 3(2) (2006).
    \2\In many jurisdictions, a subsequent owner's contributory fault 
in altering a machine cannot be used as a defense by the machine 
manufacturer. See, e.g., Alm v. Aluminum Co. of America, 687 S.W. 2nd 
374, 381-82 (Tex. App. 1985) (the fact that the bottler-employer was 
responsible for creating risk by its failure to properly maintain 
capping machines did not preclude holding the designer of the machines 
liable for negligence), aff'd in part, 717 S.W.2d 588 (Tex. 1986).
    \3\See Legislative Hearing on H.R. 3509, ``The Workplace Goods Job 
Growth and Competitiveness Act of 2005,'' Hearing Before the Subcomm. 
on Comm. Admin. Law, 109th Cong. 8 (2006) (statement of Elizabeth 
Sitterly, Legal Counsel, Giddings & Lewis LLP) (``Honestly, given the 
nature of injuries sustained on machine tools, I am hard pressed to 
take a case to trial.'').
---------------------------------------------------------------------------
    A recent survey of machine tool manufacturers reveals the 
magnitude of transaction costs involving litigation over these 
older products. Twenty-five percent of respondents in an 
Association for Manufacturing Technology (AMT) survey reported 
having claims filed against them in 2005.\4\ None of the claims 
that year reached trial. Fifty percent of the claims were 
dropped without any payment of the award; the other 50 percent 
of the claims were settled for an average of $146,100.\5\
---------------------------------------------------------------------------
    \4\Legislative Hearing on H.R. 3509, ``The Workplace Goods Job 
Growth and Competitiveness Act of 2005,'' Hearing Before the Subcomm. 
on Comm. & Admin. Law, 109th Cong. 22 (2006) (statement of James H. 
Mack, Vice President of Tax and Economic Policy, AMT--Association for 
Manufacturing Technology).
    \5\Id.
---------------------------------------------------------------------------
    Little of the overall costs incurred by defendants in these 
cases went to the injured claimant. For every 100 claims, about 
$10.4 million was spent by manufacturers.\6\ Of this total, 
$5.1 million was spent on defense costs, and another $2.3 
million was spent on subrogation to employers or their 
insurance companies to reimburse them for money already paid to 
employees under worker compensation laws (even if the employer 
was primarily at fault).\7\ Claimants (those who are actually 
hurt in workplace accidents) only receive $3 million of the 
money spent on these claims, and, of that amount, approximately 
one-third goes to their lawyers. According to the survey, a 12-
year statute of repose would have barred 84 percent of AMT 
members' closed and pending cases, resulting in a savings of 
approximately $6.4 million over the same 100 claims.\8\
---------------------------------------------------------------------------
    \6\Id. at 23.
    \7\Id.
    \8\Id.
---------------------------------------------------------------------------
    These statistics demonstrate three crucial facts:
          
 The magnitude of the transaction and 
        subrogation costs imposed on the durable goods 
        manufacturing industry is substantial in absolute terms 
        and in relation to the overall revenues and profits of 
        the machine tool industry;
          
 The amount of money that ends up with 
        lawyers, employers, and insurance companies in these 
        cases far outweighs the amount that goes to claimants 
        themselves;
          
 Barring cases involving durable goods over 
        12 years after initial sale or lease would eliminate 84 
        percent of the cases and save millions of dollars in 
        transaction costs. These cases are clearly the least 
        productive for claimants and the most costly to defend. 
        Their value to society and the economy is minimal at 
        best.

Tort costs and competitiveness

    Product liability costs are like any other costs that 
manufacturers must take into account when pricing a product. In 
the United States, product liability costs are staggering. 
According to a Tillinghast survey released on March 14, 2006, 
U.S. tort costs reached a record $260 billion in 2004, or 
approximately $886 per person.\9\ That same survey shows that 
our foreign competitors' product liability costs are 
significantly lower than those of U.S. firms. Steve Lowe, 
leader of Tillinghast's global insurance consulting practice 
said ``tort costs in the U.S. far surpass those of the other 
countries we examined, partly [as] a result of different health 
care systems and legal systems. However, this difference may 
raise the issue of competitiveness of U.S. products in a global 
marketplace.''\10\
---------------------------------------------------------------------------
    \9\Tillinghast-Towers Perrin, U.S. Tort Costs and Cross-Border 
Perspectives: 2005 Update 4 (2006) (available at http://
www.towersperrin.com/tp/getwebcachedoc?webc=TILL/USA/2006/200603/
2005_Tort.pdf).
    \10\Press Release, Tillinghast-Towers Perrin, U.S. Tort Costs Reach 
a Record $260 Billion According to Tillinghast Study (March 2006) 
(available at http://www.towersperrin.com/tp/jsp/ 
tillinghast_webcache_html.jsp?webc=Tillinghast/United_States/
Press_Releases/2006/20060313/2006_03_13.htm&selected=press).
---------------------------------------------------------------------------
    According to a December 2003 study by the National 
Association of Manufacturers, American manufacturers have costs 
22 percent higher than their foreign competitors, of which 3.2 
percent of the overall percentage increase was due to U.S. 
legal costs.\11\ One of the reasons for the cost discrepancy 
between U.S. manufacturers and foreign competitors is that our 
international competitors all have the benefit of statutes of 
repose for manufactured goods. For example, the European Union, 
Japan, South Korea, and Australia all have 10 year statutes of 
repose. Therefore, manufacturers in those countries are able to 
pass on the cost savings from the liability protections they 
enjoy in their home market to consumers in this country, where 
they compete against U.S. manufacturers who do not have the 
same liability protections.
---------------------------------------------------------------------------
    \11\National Association of Manufacturers, How Structural Costs 
Imposed on U.S. Manufacturers Harm Workers and Threaten Competitiveness 
(2003) (available at http://www.nam.org/s_nam/
bin.asp?CID=201715&DID=227525&DOC=FILE.PDF).
---------------------------------------------------------------------------
    While foreign companies that export to the U.S. are subject 
to U.S. tort law, the preponderance of foreign capital imports 
into the U.S. have occurred within the last 25 years. As a 
result, American manufacturers' foreign competitors do not have 
the exposure of thousands of older machines present in the U.S. 
market, nor are they exposed to the same open-ended product 
liability exposure that U.S. manufacturers face.

Statutes of repose and product liability reform

    To combat this problem, manufacturers have promoted the use 
of a statute of repose to limit the duration of their liability 
exposure.\12\ Statutes of repose have been enacted in a number 
of States, under State law, to counter the long tail of 
liability that American manufacturers must shoulder. 
Approximately a dozen States currently have a statute of repose 
for products, and among those States the clear consensus is 
that the period of repose should be 12 years or less.\13\ 
Another seven States have a so-called ``soft'' statute of 
repose that extends for the useful life of the covered 
product.\14\ However, as manufacturers sell goods in all fifty 
states, a national statute of repose is needed to effectively 
address their liability exposure.
---------------------------------------------------------------------------
    \12\See, id., at 280-284.
    \13\See, e.g., Colo. Rev. Stat. Ann. Sec. 13-80-107 (seven year 
statute of repose on manufacturing equipment); Conn. Gen. Stat. Ann. 
Sec. 52-577a (ten year statute of repose on manufacturing equipment); 
Ga. Code Ann. Sec. 51-1-11 (ten year statute of repose for products); 
735 Ill. Comp. Stat. Ann. 5/13-213 (12 year statute of repose for 
products); Ind. Code Sec. 34-20-3-1 (ten year statute of repose for 
products); Iowa Code Ann. Sec. 614.1(2A) (fifteen year statute of 
repose for products); Neb. Rev. Stat. Ann. Sec. 25-224 (ten year 
statute of repose for products); N.C. Gen. Stat. Ann. Sec. 1-50(a)(6) 
(six year statute of repose for products); OR. Rev. Stat. Sec. 30.905 
(ten year statute of repose for products); Tenn. Code Ann. Sec. 29-28-
103 (ten year statute of repose for products); and Tex. Civ. Prac. & 
Rem. Code Ann. Sec. 16.012 (fifteen year statute of repose for 
products).
    \14\See, e.g., Idaho Code Ann. Sec. 6-1403(2) (creating a 
rebuttable presumption that the ``useful life'' of the product is 10 
years); Ark. Code Ann. Sec. 16-116-105 (use of a product beyond its 
anticipated useful life can be used as evidence of fault on part of 
consumer); Kan. Stat. Ann. Sec. 60-3303(b) (creating a rebuttable 
presumption that the ``useful life'' of the product is 10 years); Ky. 
Rev. Stat. Ann. Sec. 411.310(1) (creating a rebuttable presumption that 
product was not defective if the injury occurs more than 5 years after 
first purchased by user or 8 years after it was first manufactured); 
Mich. Com. Laws Ann. Sec. 600.5805(13) (plaintiff must prove prima 
facie case without benefit of any presumptions if injured by product 
over 10 years old); and Wash. Rev. Code Ann. Sec. 7.72.060(2) (creating 
a rebuttable presumption that the ``useful life'' of the product is 12 
years).
---------------------------------------------------------------------------
    Congress has considered and enacted a national statute of 
repose before. In 1994, Congress responded to concerns that the 
liability of small aircraft manufacturers was leading to the 
demise of that industry in the United States by passing the 
General Aviation Revitalization Act (GARA)\15\, creating an 18-
year statute of repose to manufacturers of small non-commercial 
aircraft.\16\ That Act is widely credited with reviving the 
general aircraft business in America without compromising 
safety.\17\
---------------------------------------------------------------------------
    \15\Pub. L. 103-298.
    \16\See Lyon v. Agusta S.P.A., 252 F3.3d 1078, 1085-1088 (9th Cir. 
2001) (holding that the 18-year statute of repose does not violate the 
Due Process Clause of the 5th Amendment).
    \17\See Victor E. Schwartz & Mark A. Behrens, A Proposal for 
Federal Product Liability Reform in the New Millennium, 4 Tex. Rev. L. 
& Pol. 261, 280-284 (2000); James F. Rodriguez, Note, Tort Reform & 
GARA: Is Repose Incompatible With Safety?, 47 Ariz. L. Rev. 577, 598-
602 (2005) (noting that general aviation manufacturing employment 
increased by 25,000 in the five years after passage of GARA).
---------------------------------------------------------------------------
    Congress has also federalized a number of other State 
causes of action when the circumstances have proven 
amenable.\18\ Significantly, in the 106th Congress, the House 
passed a predecessor bill, H.R. 2005, which had an 18-year 
statute of repose, by a vote of 222-194 on February 2, 
2000.\19\
---------------------------------------------------------------------------
    \18\See, e.g., Volunteer Protection Act of 1997, Pub. L. 105-19 
(1997); Y2K Act, Pub. L. 106-37 (1999); and Protection of Lawful 
Commerce in Arms Act, Pub. L. 109-92 (2005).
    \19\146 Cong. Rec. H183-84 (daily ed. Feb. 2, 2000).
---------------------------------------------------------------------------

Statutes of repose and federalism

    Because manufacturers of durable goods sell their products 
across State lines, out-of-State manufacturers often bear the 
brunt of litigation initiated by local claimants. Faced with 
these circumstances, State legislatures have difficulty 
effectively balancing the interests of manufacturers and 
claimants. The resulting disparity in State laws encourages 
forum-shopping, with unpredictable and inequitable results for 
claimants and defendants alike.
    Moreover, some State statutes of repose have been struck 
down under State constitutional provisions that guarantee a 
``right to a remedy,'' a provision that has no counterpart in 
the United States Constitution. This has led some courts to 
refuse to apply even the statute of repose of another State 
when standard choice-of-law rules would apply the law of the 
place of the injury.\20\
---------------------------------------------------------------------------
    \20\See, e.g., Sharp v. Case Corp., 573 N.W.2d 899 (Ct. of Appeals, 
Dist. 2, 1997) (``The policy of Wisconsin's tort law is to provide full 
compensation to persons who are injured by negligent conduct and to 
deter such conduct by imposing the full monetary consequences on the 
tortfeasor.'' If [the] Oregon [statute of repose] applied, these 
policies would not be fulfilled.''), aff'd on other grounds, 595 N.W.2d 
380 (1999).
---------------------------------------------------------------------------
    Finally, these varied State-by-State enactment of statutes 
of repose do not reduce durable good product liability 
insurance rates in the way a uniform national statute of repose 
would. Durable goods manufacturers typically ship the vast 
majority of their products out of State, so insurance carriers 
are unable to predict potential liability accurately. This 
difficulty in determining liability is due to uncertainty about 
where the durable good will be sold initially and where it will 
eventually end up when resold. When insurers set liability 
rates, they must account for the worst case scenario, which 
drives up rates even for durable goods manufacturers in States 
that have enacted statutes of repose.

H.R. 3509 is tailored to address the liability vulnerability of U.S. 
        manufacturers and to level the playing field with foreign 
        competitors

    H.R. 3509 represents a narrowly formulated statute of 
repose. Because the death and personal injury section of the 
bill is limited to cases where the claimant is eligible for 
worker compensation, H.R. 3509 ensures that no claimant will 
ever go empty-handed.\21\ Contrary to the assertions by some 
opponents, worker compensation is not a stingy remedy. In most 
States, worker compensation benefits include not only all 
medical, rehabilitation expenses and wage replacement (for life 
in the case of permanent injuries), but also ``scheduled 
payments'' for designated injuries, such as loss of use of 
limbs, hands, or serious disfigurement. These scheduled 
payments are designed to be a functional substitute for ``pain 
and suffering'' awards in court litigation.
---------------------------------------------------------------------------
    \21\H.R. 3509, 109th Cong. Sec. 2(a)(2)(A).
---------------------------------------------------------------------------
    The Act respects warranty periods on durable goods, 
ensuring that purchasers will continue to obtain the benefit of 
their negotiated bargains with durable good manufacturers or 
sellers.\22\ In the event that the product's warranty period is 
longer than 12 years, the Act will allow suit to be filed until 
the conclusion of the warranty period. It also takes into 
consideration the fact that some injuries may be caused by a 
durable good within the 12-year period of repose, but because 
of their nature, will not manifest themselves for many years 
after the exposure to the product. In recognition of the 
unfairness that a statute of repose might work on a claimant 
harmed by such ``latent'' injury, H.R. 3509 does not apply to 
personal injury or wrongful death claims where the injury 
involves a toxic harm.\23\
---------------------------------------------------------------------------
    \22\Id. Sec. 2(b)(2).
    \23\Sec. 2(a)(2)(B).
---------------------------------------------------------------------------
    As a practical matter, the design and construction of a 
machine to function smoothly for 12 years is effectively an 
effort to design and construct a machine to last as long as 
technically possible. Competitive market pressures further 
encourage manufacturers to design and build the best possible 
durable goods. Imposing a strict statute of repose for these 
products will provide no incentive for manufacturers to design 
or produce an inferior product, because they would be fully 
subject to suit for those products for the first 12 years of 
its life.
    In sum, H.R. 3509 provides a balanced solution to the 
problem of open-ended and often debilitating liability exposure 
by U.S. firms, while protecting a claimant's right to bring 
suit for injuries incurred during the repose period. It places 
a reasonable outer time limit on litigation involving older 
products used in the workplace, where injured claimants will 
have recourse to benefits from the worker compensation system.

                                HEARINGS

    The Committee's Subcommittee on Commercial and 
Administrative Law held a legislative hearing on H.R. 3509 on 
March 14, 2006. Ms. Elizabeth Sitterly, Legal Counsel to 
Giddings & Lewis, a Division of Cincinnati Manufacturing; Mr. 
Kevin P. McMahon, Partner at Nelson, Mullins, Riley & 
Scarborough, testifying on behalf of the National Association 
of Manufacturers; and Mr. James H. Mack, Vice President of 
Economic and Tax Policy at AMT--The Association for 
Manufacturing Technology--testified in favor of the bill. 
Professor Andrew F. Popper of the American University 
Washington College of Law testified in opposition to the bill.

                        COMMITTEE CONSIDERATION

    On March, 29, 2006 and July 19, 2006, the Committee met in 
open session and ordered favorably reported the bill H.R. 3509 
with an amendment by a recorded vote of 21 yeas to 12 nays, a 
quorum being present.

                         VOTE OF THE COMMITTEE

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the committee's 
consideration of H.R. 3509.
    1.  An amendment was offered by Ranking Member Conyers that 
would eliminate the protections of the Act for any manufacturer 
who moved jobs from the United States to another country. The 
amendment failed by a vote of 12 yeas to 16 nays. Date: March 
29, 2006.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                            Ayes       Nays     Present
------------------------------------------------------------------------
Mr. Hyde...............................  .........  .........  .........
Mr. Coble..............................  .........         X   .........
Mr. Smith..............................  .........         X   .........
Mr. Gallegly...........................  .........  .........  .........
Mr. Goodlatte..........................  .........         X   .........
Mr. Chabot.............................  .........         X   .........
Mr. Lungren............................  .........         X   .........
Mr. Jenkins............................  .........         X   .........
Mr. Cannon.............................  .........         X   .........
Mr. Bachus.............................  .........  .........  .........
Mr. Inglis.............................  .........         X   .........
Mr. Hostettler.........................  .........         X   .........
Mr. Green..............................  .........         X   .........
Mr. Keller.............................  .........  .........  .........
Mr. Issa...............................  .........  .........  .........
Mr. Flake..............................  .........  .........  .........
Mr. Pence..............................  .........  .........  .........
Mr. Forbes.............................  .........         X   .........
Mr. King...............................  .........         X   .........
Mr. Feeney.............................  .........         X   .........
Mr. Franks.............................  .........         X   .........
Mr. Gohmert............................  .........         X   .........
Mr. Conyers............................         X   .........  .........
Mr. Berman.............................         X   .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................         X   .........  .........
Mr. Scott..............................         X   .........  .........
Mr. Watt...............................         X   .........  .........
Ms. Lofgren............................  .........  .........  .........
Ms. Jackson-Lee........................         X   .........  .........
Ms. Waters.............................         X   .........  .........
Mr. Meehan.............................         X   .........  .........
Mr. Delahunt...........................  .........  .........  .........
Mr. Wexler.............................  .........  .........  .........
Mr. Weiner.............................  .........  .........  .........
Mr. Schiff.............................         X   .........  .........
Ms. Sanchez............................         X   .........  .........
Mr. Van Hollen.........................         X   .........  .........
Mrs. Wasserman Schultz.................         X   .........  .........
Mr. Sensenbrenner, Chairman............  .........         X   .........
                                        --------------------------------
      Total............................        12         16   .........
------------------------------------------------------------------------

    2. An amendment was offered by Rep. Scott that would 
eliminate the protections of the Act for any manufacturer that 
acted willfully, recklessly, or with wanton disregard for the 
plaintiff's safety. The amendment failed by a vote of 14 yeas 
to 15 nays. Date: March 29, 2006.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                            Ayes       Nays     Present
------------------------------------------------------------------------
Mr. Hyde...............................  .........  .........  .........
Mr. Coble..............................  .........         X   .........
Mr. Smith..............................  .........  .........  .........
Mr. Gallegly...........................  .........  .........  .........
Mr. Goodlatte..........................  .........         X   .........
Mr. Chabot.............................  .........         X   .........
Mr. Lungren............................  .........         X   .........
Mr. Jenkins............................  .........         X   .........
Mr. Cannon.............................  .........         X   .........
Mr. Bachus.............................  .........  .........  .........
Mr. Inglis.............................  .........         X   .........
Mr. Hostettler.........................  .........         X   .........
Mr. Green..............................  .........         X   .........
Mr. Keller.............................  .........         X   .........
Mr. Issa...............................  .........  .........  .........
Mr. Flake..............................  .........  .........  .........
Mr. Pence..............................  .........  .........  .........
Mr. Forbes.............................  .........         X   .........
Mr. King...............................  .........         X   .........
Mr. Feeney.............................  .........         X   .........
Mr. Franks.............................  .........         X   .........
Mr. Gohmert............................  .........  .........  .........
Mr. Conyers............................         X   .........  .........
Mr. Berman.............................         X   .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................         X   .........  .........
Mr. Scott..............................         X   .........  .........
Mr. Watt...............................         X   .........  .........
Ms. Lofgren............................         X   .........  .........
Ms. Jackson-Lee........................         X   .........  .........
Ms. Waters.............................         X   .........  .........
Mr. Meehan.............................         X   .........  .........
Mr. Delahunt...........................  .........  .........  .........
Mr. Wexler.............................  .........  .........  .........
Mr. Weiner.............................         X   .........  .........
Mr. Schiff.............................         X   .........  .........
Ms. Sanchez............................         X   .........  .........
Mr. Van Hollen.........................         X   .........  .........
Mrs. Wasserman Schultz.................         X   .........  .........
Mr. Sensenbrenner, Chairman............  .........         X   .........
                                        --------------------------------
      Total............................        14         15   .........

------------------------------------------------------------------------

    3. An amendment was offered by Rep. Jackson-Lee that would 
eliminate the protections of the Act for any manufacturer that 
did not pay a minimum wage of at least $7.25 per hour. The 
amendment failed by a vote of 15 yeas to 20 nays. Date: July 
19, 2006.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                            Ayes       Nays     Present
------------------------------------------------------------------------
Mr. Hyde...............................  .........  .........  .........
Mr. Coble..............................  .........         X   .........
Mr. Smith..............................  .........         X   .........
Mr. Gallegly...........................  .........         X   .........
Mr. Goodlatte..........................  .........         X   .........
Mr. Chabot.............................  .........         X   .........
Mr. Lungren............................  .........         X   .........
Mr. Jenkins............................  .........         X   .........
Mr. Cannon.............................  .........         X   .........
Mr. Bachus.............................  .........         X   .........
Mr. Inglis.............................  .........         X   .........
Mr. Hostettler.........................  .........         X   .........
Mr. Green..............................  .........  .........  .........
Mr. Keller.............................  .........         X   .........
Mr. Issa...............................  .........         X   .........
Mr. Flake..............................  .........  .........  .........
Mr. Pence..............................  .........         X   .........
Mr. Forbes.............................  .........         X   .........
Mr. King...............................  .........         X   .........
Mr. Feeney.............................  .........         X   .........
Mr. Franks.............................  .........         X   .........
Mr. Gohmert............................  .........         X   .........
Mr. Conyers............................         X   .........  .........
Mr. Berman.............................         X   .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................         X   .........  .........
Mr. Scott..............................         X   .........  .........
Mr. Watt...............................         X   .........  .........
Ms. Lofgren............................         X   .........  .........
Ms. Jackson-Lee........................         X   .........  .........
Ms. Waters.............................         X   .........  .........
Mr. Meehan.............................         X   .........  .........
Mr. Delahunt...........................  .........  .........  .........
Mr. Wexler.............................         X   .........  .........
Mr. Weiner.............................         X   .........  .........
Mr. Schiff.............................         X   .........  .........
Ms. Sanchez............................         X   .........  .........
Mr. Van Hollen.........................         X   .........  .........
Mrs. Wasserman Schultz.................         X   .........  .........
Mr. Sensenbrenner, Chairman............  .........         X   .........
                                        --------------------------------
      Total............................        15         20   .........
------------------------------------------------------------------------

    4. An amendment was offered by Rep. Waters that would 
eliminate the protections of the Act in any case in which an 
employee is injured by a machine that he was required to 
operate by his employer. The amendment failed by a vote of 15 
yeas to 20 nays. Date: July 19, 2006.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                            Ayes       Nays     Present
------------------------------------------------------------------------
Mr. Hyde...............................  .........  .........  .........
Mr. Coble..............................  .........         X   .........
Mr. Smith..............................  .........  .........  .........
Mr. Gallegly...........................  .........         X   .........
Mr. Goodlatte..........................  .........         X   .........
Mr. Chabot.............................  .........         X   .........
Mr. Lungren............................  .........         X   .........
Mr. Jenkins............................  .........         X   .........
Mr. Cannon.............................  .........         X   .........
Mr. Bachus.............................  .........         X   .........
Mr. Inglis.............................  .........         X   .........
Mr. Hostettler.........................  .........         X   .........
Mr. Green..............................  .........         X   .........
Mr. Keller.............................  .........         X   .........
Mr. Issa...............................  .........         X   .........
Mr. Flake..............................  .........  .........  .........
Mr. Pence..............................  .........         X   .........
Mr. Forbes.............................  .........         X   .........
Mr. King...............................  .........         X   .........
Mr. Feeney.............................  .........         X   .........
Mr. Franks.............................  .........         X   .........
Mr. Gohmert............................  .........         X   .........
Mr. Conyers............................         X   .........  .........
Mr. Berman.............................         X   .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................         X   .........  .........
Mr. Scott..............................         X   .........  .........
Mr. Watt...............................         X   .........  .........
Ms. Lofgren............................         X   .........  .........
Ms. Jackson-Lee........................         X   .........  .........
Ms. Waters.............................         X   .........  .........
Mr. Meehan.............................         X   .........  .........
Mr. Delahunt...........................  .........  .........  .........
Mr. Wexler.............................         X   .........  .........
Mr. Weiner.............................         X   .........  .........
Mr. Schiff.............................         X   .........  .........
Ms. Sanchez............................         X   .........  .........
Mr. Van Hollen.........................         X   .........  .........
Mrs. Wasserman Schultz.................         X   .........  .........
Mr. Sensenbrenner, Chairman............  .........         X   .........
                                        --------------------------------
      TOTAL............................        15         20   .........
------------------------------------------------------------------------

    5. Motion to report H.R. 3509 favorably as amended was 
agreed to by a vote of 21 yeas to 12 nays. Date: July 19, 2006.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                            Ayes       Nays     Present
------------------------------------------------------------------------
Mr. Hyde...............................  .........  .........  .........
Mr. Coble..............................         X   .........  .........
Mr. Smith..............................         X   .........  .........
Mr. Gallegly...........................         X   .........  .........
Mr. Goodlatte..........................         X   .........  .........
Mr. Chabot.............................         X   .........  .........
Mr. Lungren............................         X   .........  .........
Mr. Jenkins............................         X   .........  .........
Mr. Cannon.............................         X   .........  .........
Mr. Bachus.............................         X   .........  .........
Mr. Inglis.............................         X   .........  .........
Mr. Hostettler.........................         X   .........  .........
Mr. Green..............................         X   .........  .........
Mr. Keller.............................         X   .........  .........
Mr. Issa...............................         X   .........  .........
Mr. Flake..............................  .........  .........  .........
Mr. Pence..............................         X   .........  .........
Mr. Forbes.............................         X   .........  .........
Mr. King...............................         X   .........  .........
Mr. Feeney.............................         X   .........  .........
Mr. Franks.............................         X   .........  .........
Mr. Gohmert............................         X   .........  .........
Mr. Conyers............................  .........         X   .........
Mr. Berman.............................  .........         X   .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................  .........  .........  .........
Mr. Scott..............................  .........         X   .........
Mr. Watt...............................  .........         X   .........
Ms. Lofgren............................  .........         X   .........
Ms. Jackson-Lee........................  .........  .........  .........
Ms. Waters.............................  .........  .........  .........
Mr. Meehan.............................  .........         X   .........
Mr. Delahunt...........................  .........  .........  .........
Mr. Wexler.............................  .........         X   .........
Mr. Weiner.............................  .........         X   .........
Mr. Schiff.............................  .........         X   .........
Ms. Sanchez............................  .........         X   .........
Mr. Van Hollen.........................  .........         X   .........
Mrs. Wasserman Schultz.................  .........         X   .........
Mr. Sensenbrenner, Chairman............         X   .........  .........
                                        --------------------------------
      Total............................        21         12   .........
------------------------------------------------------------------------

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3509, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                   August 30, 3006.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3509, the 
Workplace Goods Job Growth and Competitiveness Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Daniel 
Hoople (for federal costs), Melissa Merrell (for the state and 
local impact), and Paige Piper/Bach (for the private-sector 
impact).
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

H.R. 3509--Workplace Goods Job Growth and Competitiveness Act of 2005

    Summary: H.R. 3509 would limit the length of time 
manufacturers and sellers of durable goods would be liable for 
injury and damages resulting from the use of their products. 
Because only a handful of these cases are filed in the federal 
courts, CBO estimates that enacting this bill would have no 
significant impact on the federal budget. Enacting the bill 
would not affect direct spending or revenues.
    H.R. 3509 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
preempt certain state liability laws. CBO estimates that the 
preemption would impose no costs on state, local, or tribal 
governments; therefore, the annual threshold established in 
UMRA would not be exceeded ($64 million in 2006, adjusted 
annually for inflation).
    H.R. 3509 contains a private-sector mandate, as defined in 
UMRA, because it would prohibit certain property damage and 
personal injury lawsuits against manufacturers and sellers of 
durable goods. CBO estimates that the direct cost of complying 
with the mandate would fall below the annual threshold 
established by UMRA ($128 for private-sector mandates in 2006, 
adjusted annually for inflation).
    Estimated cost to the Federal Government: Under current 
law, there is no uniform federal law establishing a statute of 
repose (the length of time after which a manufacturer is no 
longer liable) for durable goods, although at least 20 states 
have set such liability limits. H.R. 3509 would set the statute 
of repose for durable goods at 12 years past the first point of 
delivery. Under the bill, the statute would only apply in cases 
of death and personal injury where the claimant is not covered 
by worker compensation. It would not apply in cases where a 
manufacturer or seller fraudulently concealed a defect in a 
durable good, or where a written warranty had guaranteed the 
safety or life expectancy of the product beyond 12 years.
    While some product liability cases are tried in federal 
court, the majority of those that could be covered under this 
bill are handled in state courts. CBO estimates that enacting 
H.R. 3509 would have no significant impact on the number of 
cases that would be referred to federal courts and, thus, would 
have no significant impact on the federal budget.
    Estimated impact on state, local, and tribal governments: 
H.R. 3509 would establish that, in certain circumstances, a 
civil action may not be filed in any court after 12 years 
against the manufacturer or seller of certain durable goods. 
That provision would constitute a mandate as defined by UMRA 
because it would preempt state laws that have established 
different time periods for filing these types of civil suits. 
CBO estimates that this preemption would impose no costs on 
state, local, or tribal governments; therefore, the annual 
threshold established in UMRA would not be exceeded ($64 
million in 2006, adjusted annually for inflation).
    Creating a federal standard of liability in these cases may 
affect the ability of state, local, and tribal governments to 
recoup payments made for worker's compensation benefits from 
private individuals who file such suits. CBO expects any 
changes in those collections that result from this bill's 
enactment would be small.
    Estimated impact on the private sector: H.R. 3509 would 
impose a private-sector mandate by prohibiting certain property 
damage and personal injury lawsuits against manufacturers and 
sellers of durable goods as defined in the bill. Generally, the 
bill would prevent firms and individuals from recovering 
damages in cases where the accident involving a durable good 
occurred more than 12 years after that good was delivered to 
its first purchaser or lessee. The mandate would not affect 
existing claims or claims filed within one year of enactment. 
The bill also would provide exceptions to the prohibition for 
claims involving certain passenger vehicles and general 
aviation aircraft and claims involving manufacturer warranties.
    The cost of the mandate for an affected firm or individual 
would be the forgone net value of awards and settlements they 
would otherwise receive under current law. Based on information 
from industry sources regarding such awards and settlements, 
CBO estimates that the direct cost of complying with the 
mandate would fall below the annual threshold established by 
UMRA ($128 for private-sector mandates in 2006, adjusted 
annually for inflation).
    Estimate prepared by: Federal costs: Daniel Hoople. Impact 
on State, local, and tribal governments: Melissa Merrell. 
Impact on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    PERFORMANCE GOALS AND OBJECTIVES

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3509 will reduce the effects of long tail liability on American 
manufacturers by enacting a nationwide statute of repose of 12 
years on workplace durable goods. This reduction in long tail 
liability will make American manufacturers more competitive 
against foreign manufacturers who enjoy similar statutes of 
repose in their home jurisdictions.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8 of the Constitution.

               SECTION-BY-SECTION ANALYSIS AND DISCUSSION

    The following discussion describes the bill as reported by 
the Committee.

Section 1. Short title

    This section states that this Act may be cited as the 
``Workplace Goods Job Growth and Competitiveness Act of 2006.''

Section 2. Statute of repose for durable goods used in a trade or 
        business

    Subsection 2(a) sets out the basic rule of the statute of 
repose that no civil action arising out of an accident 
involving a durable good may be filed against a manufacturer or 
seller of a durable good more than 12 years after it was 
delivered to its first purchaser or lessee. In the case of 
death or personal injury claims, the scope of the bar is 
limited to circumstances where (A) the claimant has received or 
is eligible to receive worker compensation, and (B) the injury 
does not involve a toxic harm.
    The bill specifies that ``toxic harm'' includes, but is not 
limited to, all asbestos-related harm. The ``toxic harm'' 
exclusion is intended to cover all claims involving asbestos 
and other latent diseases; that is, diseases that do not 
manifest themselves for many years after the ingestion, 
inhalation, or absorption of the toxic substance.
    Subsection 2(b) sets out five exceptions where the Act does 
not apply: (1) where the injury involves a motor vehicle, 
vessel, aircraft, or train, that is used primarily to transport 
passengers for hire; (2) where the durable good has been 
warranted by the manufacturer as to safety or life expectancy 
for a period longer than 12 years (in which case suit may be 
brought until the expiration of the warranty period); and (3) 
where the case is governed by the limitations period in the 
General Aviation Revitalization Act. At markup, the Committee 
adopted two other exceptions to the Act. The first clarifies 
that it does not apply to State or Federal regulatory 
enforcement actions. The second exception is for cases where 
the manufacturer or seller of a durable good fraudulently 
concealed a defect in the durable good.
    Subsection 2(c) specifies that the Act preempts and 
supersedes any State law that establishes a statute of repose 
for actions covered by the Act. This subsection establishes a 
uniform national repose period longer than that of all but 
three existing State laws with fixed-time statutes of repose. 
Thus, all the current statutes of repose governing durable 
goods will be superceded by the Act, giving claimants in those 
States an additional number of years in which to bring claims 
against the manufacturers and sellers of durable goods used in 
the workplace. Existing and future State statutes of repose 
will continue to apply to actions that are not covered by this 
Act, such as injuries or deaths involving durable goods where 
the claimant is not eligible for worker compensation or 
involving consumer goods.
    Subsection 2(d) provides that if any provision of this Act 
would shorten the period during which a product liability 
action could otherwise be brought pursuant to another provision 
of law, the claimant may, notwithstanding this Act, bring an 
action within one year after the effective date of this Act. 
This transitional period is intended to protect a claimant who 
upon the date of enactment of the Act has already been injured 
by a workplace durable good, but has not yet filed suit on that 
claim. If the statute of limitation on that claim has not 
expired prior to the enactment date, the claimant would be 
granted the shorter of the limitation period or one year after 
enactment to file the claim, regardless of the age of the 
durable good which allegedly caused the injury.

Section 3. Definitions

    ``Claimant'' is defined as any person who brings an action 
covered by this Act or on whose behalf such an action is 
brought, including an injured person's employer, insurance 
carrier or other subrogated party, the estate of a decedent, 
and the guardian of a minor or incompetent person.
    ``Durable good'' is defined as a product or component that 
meets two criteria: (a) it must have a normal life expectancy 
of at least 3 years or be of a character subject to allowance 
for depreciation under the Internal Revenue Code, and (b) it 
must actually be used in a trade or business, held for the 
production of income, or sold or donated to a governmental or 
private entity for production of goods, training, 
demonstration, or any similar purpose.
    ``Fraudulently Concealed'' is defined to mean that the 
manufacturer or seller had actual knowledge of the defect which 
was the proximate cause of the claimant's harm and that the 
manufacturer or seller affirmatively suppressed or hid, with 
the intent to deceive or defraud, the existence of that defect.
    ``Seller'' is defined as any dealer, retailer, wholesaler, 
or distributor in the stream of commerce of a durable good 
concluding with the sale or lease of the durable good to the 
first end-user.
    ``State'' is defined as any State of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the 
Northern Mariana Islands, the Virgin Islands, Guam, American 
Samoa, and any other territory or possession of the United 
States or any of their political subdivisions.

Section 4. Effective date; application of act

    The Act takes effect immediately upon enactment, regardless 
of whether the damage, death, or injury occurred before that 
date, except that it does not affect pending litigation.

            CHANGES IN EXISTING LAW BY THE BILL, AS REPORTED

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes H.R. 3509 
makes no changes to existing law.

                           Markup Transcript




                            BUSINESS MEETING

                       WEDNESDAY, MARCH 29, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Next up is H.R. 3509. I call the 
bill up for purposes of markup and move its favorable 
recommendation to the House. Without objection, the bill will 
be considered as read and open for amendment at any point.
    [The bill, H.R. 3509, follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. The Chair recognizes the sponsor of 
this legislation, the gentleman from Ohio, Mr. Chabot, for 5 
minutes to explain the bill.
    Mr. Chabot. Thank you, Mr. Chairman.
    As the author of the Workplace Goods Job Growth and 
Competitiveness Act, I wanted to say just a few words about the 
need for this type of liability reform.
    American manufacturers of durable goods are constant 
targets for litigation over products that are decades old and 
have met all the safety standards when released into the 
market. The endless tale of liability puts U.S. manufacturers 
at a disadvantage to their foreign counterparts, who have only 
been in the U.S. market for the past few decades, and both the 
EU and Japan have 10-year statutes of repose.
    Most often when these suits are brought to trial, defendant 
companies win. However, because it costs so much to litigate 
these claims, companies are often forced to settle within their 
insurance limits. In addition, industries like the machine tool 
industry must pay half of their litigation costs to defense 
lawyers. Claimants themselves see less than 30 percent of the 
monies paid out by the manufacturers, and that amount has been 
reduced by a third or more.
    This bill will help save millions of dollars that would 
have otherwise been spent on these types of frivolous lawsuits. 
These resources could thus be used to compete in the global 
marketplace and thus create jobs not only in my district, but 
in districts all over this country.
    I also want to highlight the three core aspects of this 
bill. Number one, H.R. 3509 imposes a nationwide statute of 
repose. This national standard will provide needed stability in 
the marketplace because these goods are not just sold in one 
place, but enter into the stream of commerce throughout the 
country. In addition, 38 States currently have no statute of 
repose, which encourages forum shopping among plaintiffs to 
find a friendly statute of repose State.
    Secondly, because the bill would only apply to plaintiffs 
who are eligible to receive worker's compensation, no one will 
go uncompensated.
    And third, 12 years is an adequate amount of time to test a 
product's viability without needlessly barring victims from the 
courthouse.
    Since the 106th Congress I have worked to pass a national 
statute of repose for durable goods in the workplace, and back 
in the 106th Congress the legislation passed this Committee and 
then passed the House, and then later passed both bodies of 
Congress in product liability legislation that unfortunately 
was ultimately vetoed by President Clinton.
    Since that time, a number of us have continued to work with 
national groups, like the National Association of 
Manufacturers, and small groups located in districts all over 
the country who continue to pay settlements in frivolous cases 
because it will cost more to defend the case than to settle.
    Jobs in congressional districts all over the country are 
continually threatened by these lawsuits. In fact, back in 
2001, a local company, Madison Grinder, was forced to close its 
doors after a product liability suit. The machine tool industry 
employs over 1,500 workers in just one district, mine, in 
Cincinnati, for example, but they are all over the country.
    After the passage of several tort reform measures this 
year, I am pleased to see that we are once again highlighting 
the runaway litigation costs that businesses in our country 
face at the expense of the average consumer and at the expense 
of a loss of many jobs. Many people as a result of these 
lawsuits actually lose their jobs.
    I want to thank Chairman Sensenbrenner in particular for 
the opportunity to bring this bill before the Committee for 
consideration.
    I yield back the balance of my time.
    And I will try to be brief in many of my responses if there 
are amendments, because I know some of our colleagues have 
other important markups that they have to attend to this 
morning.
    Yield back, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Well, wait till the working people of America hear about 
this measure. Here is a measure that preempts State law to 
establish a nationwide 12-year statute of repose for durable 
goods, taking away the rights of working families, the rights 
of their employers, even, and the rights of the States. It 
throws workers out of court even before the injury has 
occurred.
    This is a measure that denies American workers injured or 
killed on the job adequate compensation for their injuries. It 
cuts off their legal rights to hold manufacturers accountable 
for injuries by a defective product that is more than 12 years 
old, regardless of how long the product was built to last and 
regardless of when the worker suffers the injury.
    This measure, 3509, would provide that these workers would 
only have access to their State worker's compensation system, 
which typically only allows for lost wages and medical 
expenses, not loss of limb or permanent disfigurement and other 
forms of pain and suffering.
    The bill unfairly singles out American workers, treating 
them differently from other injured persons. If an innocent 
bystander, who happens to be standing nearby, is injured by the 
same piece of machinery as the worker, under this measure the 
bystander can sue for lost wages, medical expenses, future lost 
wages, all forms of pain and suffering, loss of limb, and 
permanent disfigurement. Thus the bystander can receive full 
compensation, while the worker's recovery under this measure 
would be drastically limited. That is why working families are 
currently permitted under State law to sue the responsible 
third party, the manufacturer. This bill, however, illogically 
and most unfairly cuts off this right.
    Employers will also suffer if this bill is enacted. They 
won't be able to recover for any property damage they suffer 
when older equipment fails and damages the workplace. Employers 
would no longer be able to recover funds paid to an injured 
employee through worker's compensation.
    And finally, the bill raises federalism concerns because it 
could easily run afoul of the Commerce Clause limiting 
congressional authority to the regulation of interstate 
commerce, and the Tenth Amendment, which reserves all of the 
enumerated powers to the States.
    It is telling to me that in almost half of the States that 
have enacted statutes of repose, the State supreme courts have 
overturned them because they were found to violate State 
constitutional requirements relating to due process, equal 
protection, and open access to courts. Why should the Federal 
Government rush in to effect statutes of repose in States that 
have either declared them unconstitutional or determined that 
they do not need them?
    Folks, we have more to do here than to impose this kind of 
legislation nationally. This bill is not about growth nor about 
competitiveness; it is about limiting the rights of American 
workers and their employers in a large way. And when they find 
out about it, we are all going to hear from them.
    I urge my colleagues to resist this measure, and turn back 
the balance of my time.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements will be placed in the record at this time. 
Are there amendments?
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio.
    Mr. Chabot. Mr. Chairman, I have a manager's amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3509----
    Mr. Chabot. Mr. Chairman, I ask unanimous the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes in support of his amendment.
    Mr. Chabot. Thank you, Mr. Chairman. I will be brief.
    I am introducing this manager's amendment to further 
clarify some of the aspects of the bill. The first change would 
streamline the language, Section 2(a)(1) and Section 2(a)(2) to 
avoid definitional questions regarding the phrase ``arising out 
of an accident involving.''
    Second, in response to some concerns raised at the hearing 
on this bill a couple of weeks ago, the amendment would add a 
new exception to the bill that would clarify that the statute 
of repose does not apply to regulatory enforcement actions 
brought by State or Federal agencies.
    Thirdly, the amendment would add a definition for the term 
``seller'' to clarify that the protections of this bill do not 
apply to downstream re-sellers of used machinery.
    And finally, the amendment would clarify that the bill does 
not preempt other Federal legal reforms and makes a technical 
change to the bill's title; to wit, it says ``2005,'' it is now 
obviously 2006.
    I urge my colleagues to accept this amendment and support 
the underlying measure.
    Mr. Scott. Would the gentleman yield?
    Mr. Chabot. I would be happy to yield.
    Mr. Scott. I was trying to figure out Section 2, what it 
applied to. Section 2(a)(1) is just property damage. Number 2 
is personal injury or death if you are covered by worker's 
compensation. If you are not--if you have two people injured in 
the same situation, one is an employee and one is an innocent 
bystander, do I understand that the bystander can still sue but 
the employee can't?
    Mr. Chabot. That is correct. You have to be covered by 
worker's compensation in order to receive the protections of 
this bill. So by definition, the person who is a bystander 
wouldn't be covered by worker's compensation. So he could still 
sue, or she.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Chabot. I yield.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Ohio, Mr. Chabot. Those in favor 
will say aye?
    Opposed, no?
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3509 offered by Mr. Conyers of 
Michigan.
    Page 3, after line 14, add the following new paragraph:
    Offshoring of Jobs. In general, this Act does not bar a 
civil action against a manufacturer or seller that, on or after 
the date of the enactment of this Act----
    Mr. Conyers. Mr. Chairman, I ask unanimous consent the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. The gentleman from Michigan is 
recognized for 5 minutes.
    Mr. Conyers. Members of the Committee, this is a very 
elementary amendment in that it would specify that the bill's 
protections do not apply to those companies that fail to 
provide even cursory notice to their workers, their own 
workers, that their jobs are about to be offshored to a foreign 
company or foreign workers. In other words, this is a 
requirement that notice be given when workers' jobs are about 
to be offshored.
    In a more perfect world there would be a lot of other 
things that we could do to make this amendment work. But today 
I am merely proposing that we take the modest and common-sense 
first step: Give notice to workers so that they and their 
families can plan their futures. We already do this for plant 
closings, so there is not a reason I can think of that we 
should not do it for offshoring.
    If we don't approve this amendment, we are, in a very real 
sense, adding insult to injury for American workers. First we 
tell them that they are second-class citizens when it comes to 
legal liability when they are harmed in the workplace. We will 
be placing them in an inferior position to consumers and others 
who are injured by simple negligence. But also, we will be 
saying to them that even if you lose your job to foreign 
offshoring after you have been forced to train your foreign 
counterpart to do your work, after you have lost your job in 
the middle of the night without any notice for you or your 
family to plan for your futures, that you may also have lost 
the ability to bring suit for workplace injuries.
    So the proponents of this bill cannot talk about 
competitiveness. They claim this bill is needed because it is 
too difficult for U.S. firms to compete against foreign 
manufacturers. Well, what about the level playing field for the 
American worker? What about some basic fairness and dignity for 
them? That is what the amendment is all about.
    We have just learned from the Office of Technology 
Assessment that they spent $335,000 and issued a 200-page 
report examining the effects of outsourcing. They refused to 
release the taxpayer-funded report to either the Congress or to 
this Committee or the American people. And yesterday, the 
majority, on a party-line basis, refused to even ask the 
Administration to turn this report over. I think this is 
insulting the interests of our workers.
    Offshoring is a controversial subject. I know that some 
legislators believe it is a positive force in our economy, 
while others are more concerned about the impact on United 
States workers, their families, and their communities. But I 
hope we can all agree that, whatever its merits, those workers 
who are about to lose their jobs to offshoring are entitled to 
the decency and respect of some notice.
    I urge that the author of this amendment and the Committee 
join me in this very modest step for workplace justice.
    I return the balance of my time.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Thank you, Mr. Chairman. I rise in opposition to the 
amendment. I believe it is a bad idea because it would 
condition the application of the bill on the employer's choice 
of where it does its production. It introduces a complicated 
set of factual determinations that would have to be pled and 
then proved in court, thus putting companies back in the 
position that they are today, which is facing massive defense 
costs for largely meritless litigation.
    This amendment could cost jobs by creating an incentive for 
manufacturers to move their entire operations overseas because, 
in doing so, they would avoid entirely the liability the base 
bill would place within reasonable limits. This amendment is 
yet another command-and-control amendment that impairs the free 
market and will cost American jobs.
    Even though I have the greatest respect for the gentleman 
from Michigan, I have to rise in opposition to this amendment.
    I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you. I rise in support of this amendment, 
for several reasons.
    First of all, the ostensible purpose--and, I am sure, the 
real purpose, although I don't think it will that purpose--but 
the purpose of this bill, we are told, is to try to save 
companies and to save American jobs. It is perfectly reasonable 
to say, hey, wait a minute--if the company is moving the jobs 
out of the country anyway, why give them this protection, whose 
sole purposes, presumably, is to save American jobs?
    Now, I read recently that 56 percent, economists believe 
that 56 percent of all jobs in the United States today can be 
shipped to foreign countries and will be shipped to foreign 
countries if we don't change our policies in various ways over 
the next decade or so. Fifty-six percent of all American jobs.
    We are told the way out of that is by more education, and 
yet the number of college graduates is increasing much faster 
than the number of jobs that require college degrees, for 
example. Because in fact increasingly, unless it is a service 
delivery job, everything--manufacturing, computer programming, 
what Secretary Rice used to call symbolic analysts, that would 
be our strength--is exportable. So we should do anything we can 
to try to stop the export of American jobs, and that certainly 
means passing the amendment offered by the gentleman from 
Michigan.
    I would say that the bill as a whole is ill-conceived 
because, remember--statute of repose or no statute of repose--
the only time there is liability is if you find, if the jury 
finds, if the court finds that the injury was caused by 
negligent manufacture on the part of the manufacturer. And the 
manufacturer should not be protected from that.
    Now, we are told, of course, that the manufacturers of the 
durable good should be protected from the excessive cost of 
litigation--the companies can be destroyed by the cost of 
litigation whether they are guilty or innocent of the 
underlying charge. It is probably true, but I suggest that the 
energy of this Committee would be better spent on figuring out 
how to lessen the cost of litigation so that middle-class 
people can afford to sue or be sued and have access to the 
courts so that small companies can afford to have access to 
justice and can afford to sue or be sued, rather than saying 
because litigation is so expensive, we are going to close the 
courthouse door to people who are injured. Which is what this 
bill does.
    But if we are going to pass this bill, which we shouldn't 
do, the least we can do is tie it to say that the benefit of 
this bill, which is aimed, presumably, at saving American jobs, 
should not go to companies that are energetically exporting the 
jobs overseas. Otherwise, we might call this the Chinese or the 
British or the French or whoever job saving act. Which might be 
good for Parliament to pass, but not for this House.
    I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Michigan, Mr. Conyers. Those in 
favor will say aye?
    Opposed no? The noes barely have it.
    Mr. Conyers. rollcall, Mr. Chairman.
    Chairman Sensenbrenner. A record vote is requested. The 
question is on agreeing to the Conyers amendment. Those in 
favor will, as your names are called, answer aye. Those 
opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostetler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson-Lee?
    Ms. Jackson-Lee. Aye.
    The Clerk. Ms. Jackson-Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes--the gentleman from North Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostetler.
    Mr. Hostetler. No.
    The Clerk. Mr. Hostetler, no.
    Chairman Sensenbrenner. Further Members? The gentleman from 
California, Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes? If not, the clerk will 
report. The gentleman from South Carolina, Mr. Inglis?
    Mr. Inglis. Am I recorded?
    The Clerk. No.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. The clerk will try again to report. 
The gentleman from Florida, Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Chairman, there are 12 ayes and 16 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    A reporting quorum is present. The chair will take up the 
motion to report H.R. 3049, the Asian Carp bill, favorably. 
Those in favor of the motion to report the bill favorably will 
say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The motion to 
report favorably is agreed to. Without objection, the staff is 
directed to make any technical and conforming changes and all 
Members will be given 2 days, as provided by the House rules, 
in which to submit additional dissenting, supplemental, or 
minority views.
    Consideration will once again resume on the bill H.R. 3509. 
Are there further amendments?
    Mr. Scott. I have an amendment.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk--
--
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Scott. --designated ``number one'' in the upper right-
hand corner.
    The Clerk. Amendment to H.R. 3509 offered by Mr. Scott. 
Page three, after line 14, add the following new paragraph. 
Section 5: Willful, reckless, or wanton disregard for life or 
property. This Act does not bar----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, this 
amendment would make the proposed period inapplicable to injury 
caused by willful, reckless, and wanton disregard for life, 
person, or property.
    Mr. Chairman, manufacturers are in the best position to 
discover defects and recognize hazards that are likely to cause 
serious injury or death. An injured worker should not be barred 
from bringing a claim when injury has been caused because of 
the willful, reckless, or wanton disregard of a manufacturer on 
life, person, or property.
    Mr. Chairman, many manufacturers may make willful, 
reckless, and wanton decisions not to repair, recall, or 
replace a part if they can save money. A manufacturer who is 
fully aware of a defect should not get the benefit of making 
this irresponsible decision whether the product is two, 12, or 
20 years old. In order to discourage manufacturers from making 
irresponsible decisions which they know will endanger the 
public, we should not limit the claims of individuals who have 
been harmed because of the manufacturer's willful, reckless, 
and wanton acts. We need to encourage manufacturers to exercise 
due care in the design of their products, and therefore I would 
hope that my colleagues would support this amendment.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I rise in opposition 
to this amendment and I will be brief, again, because I know 
that some of our Members have other commitments.
    This amendment should be defeated. The base bill precludes 
lawsuits only when the harm is caused by the product, not by a 
human being. Adopting this amendment would imply to a court 
that it does something that it doesn't, and therefore it should 
be defeated.
    I yield back the balance of my time.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I am going to take this 
opportunity to speak on this amendment in support of the 
amendment and on the bill. I have elected not to try to offer 
any amendments, but this is a very frustrating day for those of 
us who don't support this bill, not so much because of the 
substance of the bill, but because we believe that it is an 
extreme imposition on States' rights. I am disappointed that my 
colleague from North Carolina is not here, Mr. Coble, because I 
want the Committee to understand the impact that this bill has 
on North Carolina.
    First of all, North Carolina has a 6-year statute of 
repose. This bill has a 12-year statute of repose. So if this 
were about the substance of what we are doing, I would be more 
likely to support the 12-year statute than North Carolina's 6-
year statute. For me, this is not about substance. It is about 
what States have the prerogative to do and what the Federal 
Government has the prerogative to do.
    Second, in North Carolina, if you are an employee and you 
are injured and workers' comp pays, workers' comp is subrogated 
to the claim of the employee against a third party, so in 
effect, the workers' comp carrier gets to recover against the 
negligent manufacturer of a machine under the theory of 
subrogation and so the responsibilities have been sorted out so 
that the person who actually has responsibility for causing the 
injury ends up paying, which is the whole theory on which tort 
law and liability law should be based.
    And this bill is going to destroy that. Basically, it's 
going to raise workers' comp rates because workers' comp 
carriers won't have the ability now to recover against the 
person who's actually responsible for the injury as we do under 
North Carolina law.
    Now, I don't accept all of the arguments in favor of a 
statute of repose of any duration, but I've got to assume that 
the members of my State legislature, House and Senate, in North 
Carolina have as much interest and as much intelligence to 
protect the rights and interests and relative responsibilities, 
including the business interests and the relative insurance 
interests, workers' comp and general liability interests, that 
I do as a Member of Congress. I don't always agree with them. I 
think I'd rather have a 12-year statute of repose than a 6-year 
statute of repose. But this strikes me as being just the most 
ultimate disregard of rights of States.
    Tort law has always been a matter of State law. Statutes of 
limitations for tort law have always been a matter of State 
law. Statutes of repose have always been matters of State law. 
And I, for the life of me, haven't seen a justification for 
making an exception to that proposition in this case, and I, 
for the life of me, can't understand how Members of Congress 
who got elected to Congress claiming to be advocates of 
Government and decision making close to the people and claiming 
to be advocates of States' rights could possibly be supporting 
this.
    I ask unanimous consent for one additional minute, Mr. 
Chairman.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. Now, on this amendment, it is also true that 
because the apparently fairly intelligent members of the State 
House and Senate in North Carolina agree that if somebody 
wantonly and willfully and recklessly injures a resident of 
North Carolina, whether they are an employee or somebody who is 
not an employee, that there is an exception in North Carolina, 
and so I, you know, I can't understand why, even if we were 
going to federalize this, which I think there's no 
justification for doing, why we wouldn't at least be 
responsible enough to say that a manufacturer who wantonly, 
willfully, recklessly injures somebody in my State ought not be 
held liable in damages when the North Carolina legislature has 
said that unless we have decided, as I believe this Congress 
has on a number of occasions----
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    Mr. Watt. I ask unanimous consent for one additional 
minute.
    Chairman Sensenbrenner. Without objection again.
    Mr. Watt. --unless we have decided that we are God in this 
Congress. I just don't understand the arrogance of a group of 
people here who think that for some reason, we are so much 
brighter than the folks who serve us in our State legislature, 
so much more righteous than the people who serve us in our 
State legislature, and I, for the life of me, can't understand 
why Members who rode into this institution on a States' rights 
platform, when are you going to stand up and defend the States' 
rights? I just don't understand it.
    I yield back.
    Mr. Smith. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, I will yield my time to the 
gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. I thank the gentleman for yielding and I won't 
take the full 5 minutes, but this argument about preemption and 
how it's inappropriate and the whole federalism argument, I 
just wanted to respond to that briefly here.
    Some argue, especially citing the United States Supreme 
Court, that tort law is inherently in the purview of the 
individual States. However, even the Supreme Court has 
acknowledged that there are times when it makes sense for 
Congress to preempt State tort law, such as in the case of 
asbestos claims. Congress has federalized a number of other 
State causes of action when the circumstances have proved 
appropriate, such as the Volunteer Protection Act of 1997, such 
as the Y2K Act, such as the Protection of Lawful Commerce in 
Arms Act, and Congress has also considered and enacted a 
national statute of repose before in the General Aviation 
Revitalization Act, which extended an 18-year statute of repose 
to manufacturers of small non-commercial aircraft which, at a 
time when that particular industry was really on a downward 
spiral, it took off and created an awful lot of jobs, American 
jobs. That Act is widely credited with reviving the general 
aircraft business in America without compromising safety.
    The case for Congressional action here is strong. While a 
number of States have enacted a statute of repose for workplace 
goods, others have not. Durable goods manufacturers typically 
ship the vast majority of their products out of State, and in 
many cases to all 50 States. Therefore, State-by-State 
enactment of statutes of repose do not reduce durable good 
product liability insurance rates in the way a uniform national 
statute of repose would.
    Insurance carriers, for example, are unable to predict 
potential liability accurately due to the uncertainty about 
where the durable good will be sold initially and where it will 
eventually end up when resold. So I think that this is an 
incident when it makes perfect sense for this level of 
Government to be involved, and I think this bill, having been 
in this Committee and in the House before many times, I think 
this is the time for us to get the job done.
    I yield back the balance of my time.
    Mr. Smith. Mr. Chairman, I yield back the balance of my 
time.
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Thank you very much.
    Chairman Sensenbrenner. Are there further amendments, by 
the way?
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. We will go to amendments first. The 
gentleman from California, Mr. Schiff.
    Ms. Waters. Mr. Chairman, we are in the middle of an 
amendment.
    Chairman Sensenbrenner. Okay. The gentlewoman from 
California, Ms. Waters.
    Mr. Scott. Parliamentary inquiry, Mr. Chairman.
    Chairman Sensenbrenner. State your----
    Mr. Scott. Is my amendment still pending?
    Chairman Sensenbrenner. Yes, it is.
    Ms. Waters. Thank you----
    Chairman Sensenbrenner. The question is on the adoption of 
the amendment by the gentleman from Virginia, Mr. Scott. The 
gentlewoman from California, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman. I had not 
intended to speak on the preemption aspect of this bill. It's 
all about preemption, and I think Mr. Watt absolutely made the 
case. And the reason that I'm choosing to speak on this aspect 
of the legislation is we see a pattern in the Congress of the 
United States, not only in this Committee, but in the Financial 
Services Committee where I also serve, where we have a whole 
slew of legislation that's coming from the opposite side of the 
aisle to undo consumer rights. And I think it's a dangerous 
pattern that we see and it's absolutely a pattern that's 
overriding State laws and it all seems to be a building body of 
law to undermine the ability of consumers in this country to 
get justice.
    Now, what's absolutely ridiculous about this bill, aside 
from the fact that it preempts State law and it has this 
arbitrary limit for 12 years, I took a look further at this 
bill to see that there is a Section B on transitional provision 
relating to extension of repose period. Not only do they say 
that they replace limitations on the amount of time that one 
could bring a civil action, if, for example, in your State 
there is a law that would allow for a 25-year period or a 30-
year period or anything more than the 12-year period, they 
would disregard that altogether and grant you generously one 
additional year by which you could bring an action against the 
manufacturers.
    And so I would just ask my colleagues to pay close 
attention to this preemption and understand that this joins a 
long list of preemption bills that are finding their way 
through the Congress of the United States that is absolutely 
taking away the authority of the States to determine what is in 
the best interest of their consumers, and I would ask you to 
vote aye on Mr. Scott's amendment.
    I yield back the remainder of my time.
    Chairman Sensenbrenner. The gentlewoman from Florida, Ms. 
Wasserman Schultz.
    Ms. Wasserman Schultz. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. Can I just 
try to bring the discussion back to the amendment at hand, 
because if you read the language of the amendment, what the 
gentleman from Virginia is asking here is to exempt willful, 
reckless, or wanton disregard for life or property.
    Now, the gentleman from Ohio's argument against adopting 
this amendment was that people--that this legislation doesn't 
have anything to do with people, it has to do with products or 
equipment. Now, the last time I checked, with all due respect, 
products don't manufacture themselves. People manufacture 
products, and if there is a person or a corporate officer or a 
design by people who make these products and they willfully, 
recklessly, or wantonly have a disregard during the manufacture 
of that product for life or property, then even in Florida, in 
my home State, where we have a 12-year statute of repose for 
products with a 10-year or less life, we have adopted this 
amendment, because how could you not?
    How could you not adopt an amendment that ensures that when 
someone does--manufactures a product on purpose, willfully, 
recklessly, and wantonly disregards life or property when 
manufacturing a product and that is discovered after the 12-
year statute of repose proposed in this legislation, that we 
would not ensure that a lawsuit could go forward? That is 
insanity.
    I mean, with all due respect, the gentleman of Ohio does 
not have a very strong argument when he says that this 
legislation doesn't apply to people. Of course it applies to 
people. It's people that are harmed by this legislation when 
they are harmed by a product that was willfully, recklessly, or 
wantonly manufactured without regard for life or property. So I 
would hope----
    Mr. Goodlatte. Would the gentlewoman yield?
    Ms. Wasserman Schultz. I would be happy to yield.
    Mr. Goodlatte. I hear what you are saying. I am wondering 
if you have examples of products manufactured that were 
willfully or wantonly violative of tort law and they were 
latent for 12 years or more. I mean, I understand what you are 
saying, but this is a long period of time----
    Ms. Wasserman Schultz. Reclaiming my time, I'd be glad to 
answer that question. I don't have specific examples right 
here, but I'd be glad to get some for you. But even if I was 
not able to produce examples, do you want to look the mother or 
father in the face, or the wife or sister or child of the 
person harmed by a product that was manufactured willfully, 
recklessly, or wantonly, without regard for life or property, 
and tell them, I'm sorry, I didn't support that amendment 
because I couldn't get an example out of somebody prior to the 
passage of this law----
    Mr. Schiff. Will the gentlelady yield?
    Ms. Wasserman Schultz. --where that had happened.
    Mr. Schiff. Will the gentlelady yield?
    Ms. Wasserman Schultz. I would be happy to yield.
    Mr. Schiff. Isn't the question and the burden on the 
sponsors of the legislation, if there are not the examples of 
this being a problem, then what is the purpose of the 
legislation? You can't have it both ways. You can't say that 
the gentlelady doesn't have examples of someone doing something 
that would be affected by this law. Isn't it the burden of you 
to say why it is that you are doing it? If there is such an 
absence or you are so curious about the instance of this, why 
are you passing the legislation?
    Mr. Watt. Would the gentlelady yield?
    Ms. Wasserman Schultz. Reclaiming my time, I would be happy 
to yield to the gentleman from North Carolina.
    Mr. Watt. I happen to have the burden of having practiced 
law in this area for 22 years, so I can cite the gentleman a 
situation, and here's the situation. The manufacturer becomes 
aware that a minor shield installed on a piece of equipment 
would make it safe, absolutely disregards that, recklessly and 
wantonly, and we litigated case after case after case where 
that occurred, just absolutely made a decision they're not 
going to do it.
    Ms. Wasserman Schultz. Reclaiming my time, I absolutely can 
produce an example for you. In Florida, there is a Florida case 
that would have been barred by the present law. Priscilla 
Williams, a 55-year-old woman who was permanently disabled when 
a 14-year-old Ajax steam press she was using at a dry cleaners 
seared her right hand to the bone. If Ajax had installed an 
inexpensive safeguard to this product, she would not have been 
injured and she had a valid claim under Florida law. Now she 
can no longer work due to her disability, and because Florida 
law specifically exempts willful, reckless, or wanton disregard 
for life or property, which they would no longer be able to do 
if this law passes without this amendment, she was able to make 
a claim.
    Mr. Watt. Will the gentlelady yield?
    Ms. Wasserman Schultz. I would be happy to yield.
    Mr. Watt. It is amazing that the same case has happened in 
Florida that happened in North Carolina. You all pretend they 
don't happen, but these things happen every day, and if you 
don't have the right provisions in the statute, which is 
exactly why the North Carolina legislature----
    Chairman Sensenbrenner. The time of the gentlewoman from 
Florida has expired.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I simply want to say a 
couple of things very rapidly. Number one, I am glad to learn 
from Mr. Chabot that the asbestos bill has passed both houses. 
I wasn't aware of that.
    But number two, I think that I just want to associate 
myself with the remarks that say that you cannot defend a 
company and say they should not be liable for someone's injury 
even after 12 years if the injury is a result of their willful, 
reckless, or wanton disregard for life or property. Combine 
that with the fact that in 16 States, workers' compensation 
benefits for workers severely on the job are below the poverty 
level.
    I might have a little more regard for this bill, not enough 
to vote for it, but a little more regard if as part of 
federalizing this law, we also mandated minimum workers' comp 
levels so we were not impoverishing workers who were injured 
because of the tortuous conduct of the manufacturer by 
subjecting them only to workers' comp level, which in 16 States 
are less than the poverty level.
    So I urge the adoption of this amendment. I urge defeat of 
the bill, and I yield to the gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. Mr. 
Chairman, we are talking about the kinds of cases that might 
constitute willful, reckless, and wanton disregard. This would 
be the entire category of cases where a business just makes a 
cold-blooded calculation that it's cheaper to let people die 
and be maimed rather than fix a product. And with the statute 
of repose, there is no cause. It is just letting the people, if 
you are fully aware that there is a danger, just let it go.
    Now, somebody mentioned the airline industry. I didn't 
support that, either. I thought that was a bad idea. But at 
least in that case, there was a specific industry with a 
specific problem and specific findings to justify it. This just 
covers everything.
    And you ask whether or not the manufacturer can predict 
this. This is wanton, reckless, and wanton disregard. I mean, 
certainly you can predict when you're acting that kind of way.
    I certainly don't understand the explanation where you say 
that products kill people, people don't kill people. This 
amendment deals with injuries that arise from a defendant's 
willful, reckless, and wanton disregard for life or property. I 
think we ought not be rewarding people in that category and I'd 
hope the amendment would be adopted.
    Mr. Nadler. Thank you. I yield back.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. Mr. Chairman, I rise to strike the requisite 
number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. And I yield to the gentleman from Ohio.
    Mr. Chabot. I thank the gentleman for yielding, and again, 
I will be brief. Just a couple of points here. I would hope 
that this argument would stick to the facts and the application 
of this bill. When this bill was considered back in the 106th 
Congress, opponents brought forth a number of claimed horror 
stories where injured workers would be, in their words, harmed 
by this bill. However, upon closer inspection, the facts of the 
cases they actually were, including an employer's modification 
of machinery as well as the employee's contributory negligence 
in the action, were conveniently eliminated from the opponents' 
description of the cases.
    And I'm not going to try to refute every case that the 
opponents of the bill would bring forth, but I'll say that, 
again, no one will go uncompensated under this bill. You only 
get protection from this bill if the employee is covered by 
workers' compensation, and it will protect a number of innocent 
manufacturers and their employees who face bankruptcy from so 
many of these meritless suits.
    And I also want to just refer briefly here to Black's Law 
Dictionary under strict product liability. I mean, we are 
talking here under the gentleman's amendment about willful and 
reckless and wanton disregard for life or property, again, a 
person doing something active and callous. When we are talking 
about strict products liability, Black's Law Dictionary says 
products liability arising when the buyer proves that the goods 
were unreasonably dangerous and that, one, the seller was in 
the business of selling goods; two, the goods were defective 
and when they were in the seller's hands; three, the defect 
caused the plaintiff's injury; and four, the product was 
expected to and did reach the consumer without substantial 
change in condition.
    Again, the whole idea relative to products liability, 
there's really no room for this reckless disregard argument 
that the gentleman has made in his amendment, and I yield back 
to the gentleman from California.
    Mr. Lungren. I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye.
    Opposed, no.
    The noes appear to have it. A rollcall will be ordered. 
Those in favor of the Scott amendment will, as your names are 
called, answer aye. Those opposed, no. The clerk will call the 
roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostetler?
    [No response.]
    The Clerk. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. Forbes. No.
    Mr. King. No.
    The Clerk. Mr. Forbes, no. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson-Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? The gentleman from Massachusetts, Mr. 
Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostetler.
    Mr. Hostetler. No.
    The Clerk. Mr. Hostetler, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson-Lee.
    Ms. Jackson-Lee. Thank you, Mr. Chairman. Aye.
    The Clerk. Ms. Jackson-Lee, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes?
    Mr. Weiner. Mr. Chairman, how am I recorded?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    The Clerk. Mr. Chairman, Mr. Weiner is not recorded.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report.
    [No response.]
    The Clerk. Mr. Chairman, there are 14 ayes and 15 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments? The amendment from California, 
Mr. Schiff.
    Mr. Schiff. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3509 offered by Mr. Schiff of 
California. Page three, after line 14, add the following new 
paragraph. Section 5----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
      
      

  
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

    Chairman Sensenbrenner. The gentleman from California is 
recognized for 5 minutes.
    Mr. Schiff. Thank you, Mr. Chairman. This amendment is a 
relatively simple and straightforward amendment. The purpose of 
the bill, as outlined in the majority analysis, is to address 
an alleged injury associated with use of a product after some 
reasonably long period of time. It is likely to have been due 
to either misuse or improper maintenance by someone other than 
the manufacturer. That is the premise of the bill.
    This amendment would provide that in actions involving the 
fraudulent concealment of a defect, that this statute of repose 
would not apply. It very simply provides that the act doesn't 
bar civil action against the manufacturer or seller of a 
durable good who fraudulently conceals a defect in that durable 
good. So where you have a situation where there is an 
affirmative effort to fraudulently conceal a defect, there is 
no reason to give repose to someone who's guilty of that. That 
also results in an injury.
    I think this is a very narrowly-crafted exception to this 
bill. It doesn't at all draw away from the purported premise of 
the bill, and that is to protect those who aren't responsible, 
who through no fault of their own and through misuse or 
improper maintenance of the product shouldn't be held liable. I 
think where it can be shown that someone fraudulently concealed 
a defect so that maybe the person injured didn't find out about 
this defect until after the period in the statute of repose, 
they shouldn't be barred from having some form of recovery.
    So that is, in essence, what this narrow amendment does and 
I would urge my colleagues to support it and yield back the 
balance of my time.
    Chairman Sensenbrenner. The amendment from Ohio, Mr. 
Chabot.
    Mr. Chabot. I move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I rise in opposition 
to the amendment for the reason that this amendment is really 
unnecessary. This bill as amended only covers injury claims 
that are caused by the workplace durable good. To the extent 
that the manufacturer knowingly or fraudulently withholds 
pertinent information to end users of its products, the harm is 
caused by the concealment of facts, and as a consequence, 
claims of fraudulent concealment are not barred by this Act.
    The fraudulent concealment exception to the General 
Aviation Revitalization Act was very narrow and only applied to 
knowing misrepresentations made to the Federal Aviation 
Administration. That exception is not relevant here because 
there is no Federal equivalent to the FAA for durable goods.
    To the extent that a manufacturer of a workplace durable 
good knowingly misrepresents information to a State or Federal 
regulator, that could certainly be the subject of regulatory 
action which would not be protected under this bill. Further, 
in some jurisdictions, knowingly making a false statement to an 
administrative agency or legislative body is a crime.
    The fraudulent concealment exception in the general 
aviation bill that I mentioned before is a form of Government 
compliance defense based on the principle that an entity should 
not be allowed to be sued if it cooperates fully with a 
Government entity charged with regulating its product and 
complies with such Government entity's requirements. The 
Government compliance defense exists in several parts of 
Federal law, including GARA, but only in contexts in which 
there is a Government entity charged with regulating the 
relevant product.
    Mr. Schiff. Would the gentleman yield?
    Mr. Chabot. Let me finish. There is no such Government 
entity at the Federal level charged with regulating durable 
goods generally, so the amendment is not relevant here. And in 
any case, the manager's amendment explicitly provides that any 
State governmental entity can proceed with enforcement actions 
against the manufacturers of any durable good over which that 
governmental entity has jurisdiction, and I'd be happy to yield 
to the gentleman.
    Mr. Schiff. I thank the gentleman for yielding. I guess my 
question is this. Let's say that I'm injured by a product at 
the workplace. It's during the 12-year period, so it's not 
barred by the statute of repose. I go to the seller of the 
product or the manufacturer of the product and I say, I've been 
injured in this way. Have you had any experience with any other 
people being injured in this way? Maybe it was unique to me. 
And the seller of the good or the manufacturer says, no, we've 
never heard of any problem like this. It must have been 
improper use at the workplace. But, in fact, the seller and 
manufacturer both know there are many other cases of exactly 
the same injury. So they have fraudulently concealed from me 
the facts.
    Now, I learn in year 13 that, in fact, there are 15 other 
people that have been injured in exactly the same way. Am I 
barred under your bill? It seems to me that I am----
    Mr. Chabot. Reclaiming my time, in my opinion, you would 
not be barred, because you could still go under fraudulent 
concealment, and under my--in my opinion.
    Mr. Schiff. All this amendment says is that where there's 
fraudulent concealment, I would not be barred. So if you think 
that's----
    Mr. Chabot. I mean, it's unnecessary. It doesn't say you 
can't murder people, either. It's just not necessary to have in 
this bill. So I think it just confuses it. You're having 
verbiage in there that's just unnecessary. So I would agree, if 
somebody does fraudulent conceal information and they're 
outside the year, they could still be brought under State 
regulatory action. They could still be criminally charged----
    Mr. Schiff. Well, if the gentleman would yield, I'm not 
talking about criminal charges or State regulatory action. I'm 
saying, I'm the injured party. I've been lied to by that 
manufacturer, that seller. Are you barring me----
    Mr. Chabot. Reclaiming my time, no, I don't think you're 
barred at all under this bill.
    Mr. Schiff. Then let's make it explicit. That's all this 
amendment does. If you're saying that's what you intend to do 
anyway, let's make it explicit.
    Mr. Chabot. Well, this is part of the Congressional record, 
this discussion here. I'm talking as the proponent of this 
legislation that, in my view, you would not be barred. But I 
also am saying that I don't think you need to say a lot of 
things in there unnecessarily. You could add all kinds of 
things, and that's generally what we try to avoid in these 
bills, is just excess verbiage that's unnecessary, and I yield 
back the balance of my time.
    Mr. Scott. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, I'm just reading the bill trying 
to look for that fraud exception. Other than in the amendment 
that's before me, all I see is no civil action may be filed. I 
don't see any kind of exception for fraud. You certainly 
decided that if it's wanton disregard for life and limb, that 
doesn't matter. But there's nothing in here--where, other than 
this discussion that it would be a good idea, where in the bill 
do you have a limitation that if the defect is fraudulently 
concealed, where in it do you have a right to continue--the 
language is, no civil action may be filed, with exception, and 
I yield----
    Mr. Schiff. Will the gentleman yield?
    Mr. Scott. I yield.
    Mr. Schiff. I will be happy to yield to my colleague if you 
want to respond, too, but I sat in on a Supreme Court argument 
yesterday and it was interesting to listen to the Justices talk 
about what weight they should give legislative committee 
discussion or legislative history, and the bottom line was, not 
much. If it's not in print, there's not much interest they show 
in legislative intent.
    This would put it in print, and I don't understand why we'd 
want to incentivize a manufacturer or seller to deny a history 
of defect with a product. That doesn't meet the purposes of the 
bill. And if, indeed, this is the goal the gentleman has in the 
legislation, not to preclude this kind of action, then let's 
make it explicit so we don't have the Supreme Court wondering 
what we intended to do.
    Mr. Scott. Reclaiming my time, I'd just say it's absolutely 
clear that no action may be filed if it occurred 12 years ago 
and if you had workers' comp, period. It doesn't say fraud. It 
doesn't say anything. I don't see an exception. Maybe there is. 
This is a quick reading, and I've asked the gentleman from Ohio 
to point out where in the bill he can find language to support 
what he just said.
    Mr. Nadler. Would the gentleman yield?
    Mr. Scott. I will yield.
    Mr. Nadler. I would simply point out that if the gentleman 
from Ohio is saying this is in the bill, we can't find it in 
the bill, it does no harm to make it explicit. It's very 
difficult to see how you can justify giving this kind of relief 
to someone who fraudulently concealed the defect in durable 
goods. So why not make it explicit? Adopt the gentleman's 
amendment and have done with this debate as to whether it's 
there or not. Since apparently there's agreement it ought to be 
there, put it there clearly. I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from California.
    Mr. Nadler. Mr. Chairman----
    Mr. Scott. I yield to the gentleman from North Carolina.
    Chairman Sensenbrenner. Okay. The gentleman is recognized.
    Mr. Watt. I was just going to suggest that since it's now 
clear that there's no exception for willful, wanton, and 
reckless, either, that we also put that in----
    Mr. Chabot. Will the gentleman yield?
    Mr. Watt. --while you're in the process.
    Mr. Chabot. Will the gentleman yield? Is it the gentleman 
from California's time, or whose time is it? Would the 
gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. I think the gentleman has raised some 
interesting issues, and we're not doing anything here which 
we're trying to harm workers or anybody that has a legitimate 
claim, so I'd be happy to work with the gentleman between now 
and the bill getting to the floor if the gentleman would 
consider withdrawing his amendment.
    Mr. Watt. Will the gentleman yield?
    Mr. Chabot. I would be happy to yield. Well, it's not my 
time, but----
    Mr. Watt. I just wonder, since you're working with us, can 
we just put the language in the bill and continue to work? 
[Laughter.]
    I mean, I think that's the way to do it. Right now, it's 
absolutely clear that there's no language in the bill that 
either deals with fraudulent concealment or willful, wanton, or 
reckless activity. Regardless of what you read from Black's Law 
Dictionary, there's nothing in this bill that covers that. So 
if you want to put it in the bill, let's put it in the bill and 
then you can continue to clean it up between now and the floor, 
but----
    Mr. Weiner. Will the gentleman yield?
    Mr. Watt. --if you are asking us to vote for this, I don't 
know how you could be asking us to vote on the bill like that.
    Mr. Weiner. I am curious, perhaps a good time to make 
changes in the bill to perfect it is during markup. It's this 
process in Congress after you have the hearing on the bill, you 
have a markup on the bill where the Members get together, find 
perfections that are needed. We'll call it a markup. We'll put 
it on the schedule. We'll all gather together. We'll make 
suggestions, then have votes on it. And if you support it and 
we support it, then I think this might--this concept, I know, 
is perhaps evolutionary for this Committee, but what the heck. 
Let's try it out. Let's see if it works. I yield back.
    Mr. Chabot. Let me--would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. Once again, we'll make one more try. We're 
willing to work with the gentleman. We're talking about--you 
know, this bill basically deals with products liability. You're 
talking about fraudulent concealment here. And, you know, you 
won't take yes for an answer, but we're willing----
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has expired. The question is on agreeing----
    Mr. Schiff. Mr. Chairman, may I pose a parliamentary 
inquiry, since there's not enough time? I think the gentleman's 
question is directed to me----
    Chairman Sensenbrenner. The gentleman will state a 
parliamentary inquiry.
    Mr. Schiff. Mr. Chairman, what does my colleague on the 
other side of the aisle have in mind?
    Chairman Sensenbrenner. That is not a proper parliamentary 
inquiry. The chair has learned for a long time never to read 
anybody's mind on what's going on here, including his own. So 
the question is on agreeing to the amendment offered by the 
gentleman from California, Mr. Schiff. Those in favor will say 
aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it and the 
amendment is agreed to.
    We are about ready to come up on a vote and we have seven 
more amendments pending, so I think it's time to break. We will 
start again next week, and without objection, the Committee 
stands adjourned.
    [Whereupon, at 11:21 a.m., the Committee was adjourned.]



                            BUSINESS MEETING



                              (continued)

                        WEDNESDAY, JULY 19, 2006

    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. The next item on the agenda, and 
pursuant to notice, I call up the bill H.R. 3509, the 
``Workplace Goods Job Growth and Competitiveness Act of 2005,'' 
for purposes of markup.
    When the Committee met and began consideration of this 
legislation on March 29 of this year, the Chair had moved that 
the Committee favorably recommend H.R. 3509 to the House, and 
the bill was considered as read and open for amendment at any 
point.
    A manager's amendment offered by the gentleman from Ohio, 
Mr. Chabot, had been adopted, as well as an amendment offered 
by the gentleman from California, Mr. Schiff.
    The Committee will now resume consideration of amendments 
to H.R. 3509. Are there further amendments?
    Mr. Lungren. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California?
    Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``An amendment to H.R. 3509 offered by Mr. 
Daniel E. Lungren of California. Page 5, after line 11''----
    [The amendment follows:]
      
      

  
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    Mr. Lungren. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered. The 
gentleman is recognized for 5 minutes.
    Mr. Lungren. Mr. Chairman, thank you for the time.
    Let me remind Members of the Committee that our last markup 
session of this bill we adopted an amendment offered by our 
colleague, Mr. Schiff, which provides that nothing in the bill 
would constitute a bar to a civil action against a manufacturer 
or seller of a durable good who fraudulently concealed a defect 
in the durable good.
    I supported this amendment because I agreed with the 
amendment that someone who fraudulently conceals a defect does 
not warrant the protection otherwise provided under this bill. 
That seems common-sensical.
    However, the premise of H.R. 3509 is based on the absence 
of a legal blameworthiness of someone who manufactures or sells 
a durable good which operates successfully for more than 12 
years. If a machine has functioned for such an extended period 
of time, it is unlikely that it was improperly designed. 
However, one who fraudulently conceals a defect does not 
possess the same equities and should be held liable for such 
culpability.
    At the same time, however, I think we can further improve 
upon the bill by clarifying what is meant by the phrase 
``fraudulent concealment.'' Therefore, I am now offering an 
amendment to accomplish that very thing. It is a technical 
amendment in the sense that it furthers the purpose of the bill 
as amended during our last markup. However, I realize that what 
is considered to be technical in nature is often in the eyes of 
the beholder.
    So let me explain. My amendment would define the term 
``fraudulent concealment'' to mean that the manufacturer or 
seller of the durable good had actual knowledge of a defect. 
Secondly, the defect must be the proximate cause of the harm to 
the claimant. And third, the manufacturer or seller 
affirmatively suppressed or hid with the intent to deceive or 
defraud the existence of such defect.
    I think this goes to what the gentleman from California was 
attempting to do in his amendment last time, and that is why I 
supported his amendment. But I believe this further clarifies 
the purpose. In my estimation, it captures the kind of conduct 
which should not be protected by this bill.
    I would add that this is a commonly used definition of 
``fraudulent concealment.'' As a matter of fact, it is 
virtually identical to that language found in Black's Law 
Dictionary.
    In conclusion, I think that this proposed language 
preserves the aims of H.R. 3509, preserves the intent of the 
gentleman from California with his amendment, which we 
supported and I supported, while denying bad actors any safe 
harbor. I would ask for your support.
    With that, I yield back the balance of my time.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I will be very brief.
    I strongly support this amendment. As Mr. Lungren stated at 
the last markup of the bill in March, the Committee accepted by 
voice vote an amendment by our colleague, Mr. Schiff, that 
would create an exception to the immunity protections of this 
bill for manufacturers that fraudulently concealed defects in 
their products.
    At the time of that amendment, and it being accepted, I had 
indicated that I would like to work with Mr. Schiff to clarify 
some of the terms in that amendment. Mr. Lungren's amendment 
does just that by defining ``fraudulently concealed'' in such a 
way that it is consistent with Black's Law Dictionary in its 
definition of the term, as well as the way that the term is 
used in State statutes and in case law.
    It also ensures that this fraudulent concealment exception 
does not swallow the very sensible rule that we are trying to 
establish with this bill. For that reason, I strongly support 
the amendment, and I would urge my colleagues to do so as well.
    I yield back the balance of my time.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Virginia seek recognition?
    Mr. Scott. Well, to ask the sponsor of the amendment, how 
does this----
    Chairman Sensenbrenner. The gentleman from Virginia strikes 
the last word and is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, I would ask how this changes the present law 
on fraudulent concealment? ``Fraudulent concealment'' is in 
there. If we don't pass this amendment, what would the, how 
would this be different?
    Mr. Lungren. Well, this clarifies exactly what we mean. I 
don't think it essentially changes what is commonly understood 
as ``fraudulent concealment.'' That is why I have gone to the 
commonly used language. But it prevents courts from adopting 
various different definitions of this, since this is added in 
the law by our statute that we are considering here today.
    This basically defines, I believe, what would commonly be 
understood as ``fraudulent concealment.'' Particularly, it 
makes it clear in the context of this bill. As the gentleman 
from Ohio suggested, we want to make sure that when we added 
``fraudulent concealment,'' it doesn't swallow up the purpose 
of the bill, but rather goes towards specific types of conduct 
that I think we would all agree should not have the protection 
of this bill.
    Mr. Scott. Reclaiming my time, Mr. Chairman.
    Some of the provisions like the defect was the proximate 
cause of the harm would have to be part of the case anyway. I 
am not, I am just seeing this for the first time. So if the 
intent is not to change the present law definition of 
``fraudulent concealment,'' I wouldn't have a problem with it. 
But if it is changing the law, we would have to discuss what 
the change is.
    Mr. Lungren. If the gentleman would yield?
    I do not believe it does change the law. As I said, this is 
the commonly accepted definition. It makes it clear that that 
is what we intend and nothing else. That is why I described it 
as a technical amendment, but then went on to explain it, to 
try and assure you that I am not attempting to change what the 
law is as we understand it.
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. I thank the gentleman for yielding.
    I would just quote Black's Law Dictionary here: 
``Fraudulent concealment: the affirmative suppression or hiding 
with the intent to deceive or defraud, of a material fact or 
circumstance that one is legally or sometimes morally bound to 
reveal.''
    So it just clarifies the law, and I would commend the 
gentleman from California for offering the amendment.
    Mr. Scott. Reclaiming my time, it sounds like you are 
restating the law, which would obviously be acceptable.
    I yield to the gentleman from North Carolina.
    Mr. Watt. Could I just follow up on the concern that is 
being raised? I think there is nothing in the definition that 
you read that requires actual knowledge, as opposed to 
constructive knowledge. Is this a change in the existing law in 
that respect? Or is that the current law?
    Mr. Lungren. If the gentleman would yield? I do not believe 
it does change the law. If you will recall, the language in 
Black's Law Dictionary refers to affirmative suppression or 
hiding, which would----
    Mr. Watt. But you could affirmatively hide something that 
you----
    Mr. Lungren. You didn't know about?
    Mr. Watt. Well, that you should have known about, with any 
kind of reasonable diligence. Or you can hide something that 
you actually knew about, which is what your amendment says. So 
actual knowledge is one thing. The question I am asking is, 
does the current fraudulent concealment standard require actual 
knowledge, or is it sufficient that one should have known using 
any degree of reasonable diligence?
    Mr. Lungren. Again, I would say this is not an attempt to 
change the law, as I understand it, as I understand the way the 
Supreme Court has interpreted the law where they have read 
knowledge into a statute, whether it was expressly stated or 
not. Again, I support the Schiff amendment. I supported it the 
last time we considered this bill. I thought it was good. This 
clarifies what current law is.
    Again, we are dealing with something that happens 12 years 
after it has left the hands of the individual involved. It is 
not my attempt to try and change the law. This is my best 
attempt to try and articulate what the current status of the 
law is by language of statute and by interpretations of the 
Supreme Court.
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has expired.
    For what purpose does the gentleman from California seek 
recognition?
    Mr. Schiff. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I wanted to ask the gentleman if he could read 
that definition again. The only concern I had about the 
language is in subsection C, the manufacturer or seller of the 
durable good affirmatively suppressed or hid the existence of 
the defect.
    I am just thinking about a scenario where you have a 
manufacturer or seller of a good who knows, who has actual 
knowledge that a defect exists in a product and it is hurting 
people, and doesn't disclose the defect, and people continue to 
get hurt.
    Now, that non-disclosure with knowledge arguably is not 
affirmatively suppressing it or affirmatively hiding it. It is 
just failing to disclose to the public that the product is 
injuring people. I thought the language that the gentleman 
read, but was not included in this, said something about there 
being equitable reasons why the defect needed to be disclosed.
    I was just hearing it from the gentleman for the first 
time. I don't know whether it was Mr. Chabot may have read 
that. Who read it?
    Mr. Chabot. Would the gentleman yield?
    Mr. Schiff. Yes.
    Mr. Chabot. We have the language here. It is the definition 
from Black's Law Dictionary.
    Mr. Schiff. And how did the end of that?
    Mr. Lungren. I will be happy to read it to you: ``The 
affirmative suppression or hiding with the intent to deceive or 
defraud of a material fact or circumstance that one is legally 
or sometimes morally bound to reveal.'' I would just give you 
an example of a case----
    Mr. Schiff. If I could just reclaim my time for a second.
    Mr. Lungren. Yes.
    Mr. Schiff. The ``morally required to reveal'' seems to go 
beyond hiding or suppressing it, but that language is not 
included in subsection C here. That is my only concern is that 
where you have a manufacturer is aware of the defect, knows it 
is injuring people, it seems like the way this is crafted there 
wouldn't be any obligation to reveal that defect. As long as 
you weren't suppressing the information, there wouldn't be any 
responsibility to stop the product from injuring people.
    Mr. Lungren. Well, we say ``affirmatively suppressed or 
hid,'' ``or hid.'' He didn't reveal something that he knew. The 
language I have is ``affirmatively suppressed or hid the 
existence of such defect.'' I think that covers the gentleman's 
concern. Believe me, we have tried to craft this consistent 
with the various cases that we looked at for what ``fraudulent 
concealment'' is.
    Just one example, a case out of Illinois, they said 
generally to establish fraudulent concealment sufficient to 
toll the statute of repose, plaintiffs must show affirmative 
acts or representations designed to prevent discovery of the 
cause of action or to lull or induce the plaintiffs into 
delaying the filing of their claim.
    That is why we say here, ``affirmatively suppressed or hid, 
with the intent to deceive or defraud, the existence of such 
defect.''
    Mr. Schiff. Reclaiming my time, I wish I had a little more 
time to examine this because I want to make sure that you can't 
defend against a claim that you knew about the defect, you knew 
it was hurting people, you did nothing to alert people to the 
fact that it was hurting people. And the defense would be, 
well, we didn't affirmatively suppress it. We didn't 
affirmatively take action to hide it. We just didn't disclose 
what we knew.
    Mr. Lungren. I would think affirmatively hiding it is not 
notifying people of something that you know about, that is the 
existence of such a defect, with the intent to deceive or 
defraud. I don't think I would have too much trouble in court 
with the facts that you gave me of not only passing a prima 
facie case review, but of proving my case.
    Mr. Schiff. Mr. Chairman, I will yield back the balance of 
my time.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentleman from California, Mr. 
Lungren.
    Those in favor will say ``aye.''
    Those opposed, ``no.''
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments? The gentleman from Virginia, 
Mr. Scott, for what purpose do you seek recognition?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
Scott VA 065.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to H.R. 3509 offered by Mr. Scott of 
Virginia. Page 3, beginning on line 15, strike subsection C and 
insert the following new subsection C. Effect on state law; 
preemption''----
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from Virginia is recognized 
for 5 minutes.
    Mr. Scott. Mr. Chairman, for States that have statutes of 
repose, this amendment would set a floor of such statutes at 12 
years, while leaving a ceiling for longer statutes of repose. 
At the same time, this amendment states that this act shall not 
preempt State laws that prohibit statutes of repose, nor apply 
to States that do not have a statute of repose in their laws.
    Mr. Chairman, if the purpose of the statute of repose is to 
create a line of judicial fairness between manufacturers and 
sellers on the one hand, and consumers on the other, then we 
need to be very careful where we draw the line in the interests 
of justice. Moreover, we must also respect the rights of States 
and decision-makers at the State level.
    There is a broad array of policy decisions about statutes 
of repose across the country. Some States have created a 
statute of repose that is shorter than 12 years, some longer. 
Some States have prohibited statutes of repose and some remain 
silent on the issue. We need to be cautious when we attempt to 
preempt some State laws and not others, and make sure that 
whatever we do is done judiciously.
    Mr. Chairman, we have not seen any evidence of product 
liability claims that are currently clogging the courts or 
affecting American competitiveness. There is no litigation 
explosion or insurance crisis occurring that would justify 
keeping the few injured persons affected by this bill from 
bringing forth their claims.
    According to the annual cost of risk survey prepared by 
consultant groups, in 1996 U.S. companies spent only 57 cents 
for every $100 in revenues on all liability insurance costs, 
including product liability, property and workers' comp. And 
remember, this bill only affects the few cases by establishing 
a statute of limitations for just a few of the potential 
claimants under products liability.
    For the proponents of this bill that seek uniformity in 
State laws, this amendment will help standardize the law by 
setting a floor of 12 years. However, this amendment does not 
create a ceiling that would prevent States that currently have 
or wish to enact consumer-friendly statutes of repose longer 
than 12 years.
    Similarly, we should not preempt State laws that prohibit 
statutes of repose as a means of consumer protection, nor 
should we impose this new law on States that have not elected 
to impose a statute of repose for themselves.
    Mr. Chairman, I ask that this amendment be adopted. It 
strives to strike a balance between consumers, manufacturers 
and States rights.
    I yield back.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    I strongly oppose this what amounts to a gutting amendment. 
The proposed amendment would restrict application of this bill, 
H.R. 3509, to the handful of States that currently have a 
statute of repose of less than 12 years, increasing the repose 
period in those States to 12 years.
    For States that have a repose period greater than 12 years, 
the amendment would leave those States intact. If a State 
currently did not have its own statute of repose, this 
amendment would preclude the application of a Federal statute.
    The proposed amendment would reverse H.R 3509's intended 
effect. Rather than establish a uniform policy across the 
country to preclude lawsuits concerning durable goods used in 
the workplace that are more than 12 years old, the proposed 
amendment would leave nearly completely intact the varied State 
law approaches toward statutes of repose.
    Since that patchwork of State laws has led to the liability 
difficulty that American manufacturers face today and the 
subsequent and resulting job losses, an awful lot of people 
lose their job as a result of this, particularly if a business 
goes bankrupt as a result of one of these lawsuits. I would 
strongly oppose this what amounts to a gutting amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say ``aye.''
    Those opposed, ``no.''
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments? The gentleman from Virginia, 
Mr. Scott?
    Mr. Scott. I have an amendment at the desk. It may have a 
``3'' in the upper right-hand corner, or KAS 058.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. ``Amendment to H.R. 3509 offered by Mr. Scott. 
Page 2, line 2, strike `12' and insert''----
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from Virginia is recognized 
for 5 minutes.
    Mr. Scott. Mr. Chairman, this amendment would change the 
statute of repose in the bill from 12 to 18 years. If we are 
going to have one national statute of repose, it ought to be 
more consistent with what is going on with other Federal 
statutes of repose. The model to which the proponents of the 
bill point to demonstrate the success is the General Aviation 
Revitalization Act of 1994. That bill had an 18-year statute of 
repose.
    My amendment would merely make the statute of repose for 
durable goods consistent with the statute of repose that we 
enacted in that bill. In addition, the 18-year statute of 
repose is consistent with the bill on durable goods offered by 
the same chief sponsor during the 106th Congress, which passed 
the House in February 2000, a bill offered by the same 
gentleman in the 107th Congress, and another bill offered by 
the same gentleman in this Congress.
    Mr. Chairman, at a time when we have a responsibility for 
protecting the rights of injured parties that have legitimate 
claims, and I am not aware of any vital reason why a 
manufacturer would need protection at 12 years, and clearly 
there are strong precedents for the 18-year number.
    I therefore urge my colleagues to adopt the amendment.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    I also strongly oppose this amendment. In the approximately 
one dozen States that currently have a fixed-term statute of 
repose, the clear consensus is that the period of repose should 
be 12 years or less. Another seven States have a so-called 
``soft'' statute of repose that extends for the useful life of 
the covered product. Of those States, most have a presumption 
that the useful life of the product is 12 years or less.
    Not only do most States have a statute of repose that is 
shorter than 12 years, but most of our foreign competitors do 
as well. The European Union, Japan, Australia, and South Korea 
all have a 10-year statute of repose for their goods. 
Therefore, for the jurisdictions that have considered a statute 
of repose, 12 years is certainly a sufficient time to determine 
that the product was designed and manufactured properly.
    This amendment would just seek to expose manufacturers to 
liability for an even longer period of time, and therefore 
continue to hamstring our manufacturing base against their 
foreign competitors in Europe and Japan and Australia and South 
Korea and other places.
    For that reason, I oppose this amendment. And further, only 
one State, Vermont, has a statute of repose that is longer than 
18 years. This bill would then have the effect of exposing 
manufacturers to more liability than they already have right 
now. So again, I strongly urge my colleagues to oppose this 
amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say ``aye.''
    Those opposed, ``no.''
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments? The gentlewoman from Texas, 
Ms. Jackson-Lee, for what purpose do you seek recognition?
    Ms. Jackson-Lee. Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Chabot. Mr. Chairman, I reserve a point of order on 
this.
    Chairman Sensenbrenner. A point of order is reserved by the 
gentleman from Ohio.
    The clerk will report the amendment.
    The Clerk. Mr. Chairman, there are two amendments.
    Chairman Sensenbrenner. Which one? If the gentlewoman from 
Texas would please tell the clerk which amendment she would 
like to report?
    Ms. Jackson-Lee. Number 220.
    The Clerk. ``Amendment to H.R. 3509 offered by Ms. Jackson-
Lee of Texas. Page 3, after line 14, add the following new 
paragraph: (5) Minimum Wage Requirement: This Act does not bar 
a civil action against a manufacturer or seller that on or 
after the date of an enactment of this Act, does not pay its 
employees a minimum wage of at least $7.25 per hour.''
    [The amendment follows:]
      
      

  
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    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes, subject to the reservation of the 
point of order by the gentleman from Ohio, Mr. Chabot. The 
gentlewoman is recognized.
    Ms. Jackson-Lee. Let me, Mr. Chairman, thank you very much 
and thank the Ranking Member.
    I wish to explain a very simple amendment. It simply bars 
the statute of repose from being asserted as a defense to a 
civil action for damages against a manufacturer or seller that 
does not pay its employees minimum wage of at least $7.25 per 
hour.
    It should be noted that at $7.25 per hour, an employee may 
be living, but she is hardly living large. Mr. Chairman, 
without this amendment I cannot support the bill. I believe if 
there is no expiration date for responsibility for injury or 
damages from the durable good provided by the company, all of 
the arguments in favor of the bill, reducing the number of 
frivolous lawsuits, limiting unending litigation, and lowering 
insurance rates, benefit the manufacturers directly and 
consumers indirectly, if at all.
    Moreover, I think it is scandalous that the bill preempts 
more liberal statutes of repose that States have enacted to 
protect their workers. For example, my home State of Texas 
currently protects manufacturers after 15 years from the date 
of sale. Texas still practices remedies called 16012. It is 
contradictory and redundant to take this action to eliminate 
the protection that my State citizens receive in the State of 
Texas.
    My amendment is germane. Indeed, this Committee has a long 
history of considering and approving carve-out amendments to 
legislation. When we marked up the class action bill, we 
offered amendments to carve out the Benedict Arnold 
Corporation. When we marked up the product liability bill, we 
offered amendments to exclude foreign corporations. Four months 
ago when we marked up the volunteer liability bill, we offered 
an amendment that was accepted, which excluded companies that 
did not provide notice of foreign off-shoring, and that was a 
carve-out offered by Ms. Waters.
    We should be focusing our efforts on protecting those who 
may be in jeopardy or dealt an injustice by a larger 
organization, rather than restricting a consumer's ability to 
hold a manufacturer of the purchased product accountable.
    Consider Mr. Don Rhea, an injured worker from my own State 
of Texas, and a refinery worker. Mr. Rhea was trying to repair 
a cracked valve on a steam pump when the pump's cracked valve 
drenched him in hot oil. Rhea suffered burns to over 30 percent 
of his body.
    However, the National Transit Pump and Machine Company, 
which had manufactured the defective pump over 20 years ago, is 
presumably safe from civil action. The fault is clear, and yet 
Mr. Rhea would not have any legal recourse. It is simply 
unjust.
    However, the amendment that I am proposing does not change 
the nature of the bill. It simply limits the scope of the bill 
to those manufacturers of durable goods who take exceptional 
care to minimize the likelihood that their products will be 
manufactured in a defective manner. My amendment achieves this 
purpose by recognizing that employers who compensate the 
employees adequately are likely to attract and retain their 
employees.
    Similarly, employers who manufacture their durable goods in 
the United States and sell them to Americans are also more 
likely to ensure that such products are manufactured with a 
high degree of workmanship and care.
    Mr. Chairman, did you know that today's minimum wage of 
$5.15 is the equivalent of only $4.23 in 1995, which is even 
lower than the $4.25 minimum wage before the 1996-1997 
increase. It is scandalous, Mr. Chairman, that a person can 
work full time, 40 hours per week for 52 weeks earning the 
minimum wage, which would gross just $10,700, which is well 
below the poverty line.
    A minimum wage would increase the wages of millions of 
workers. An estimated 7.3 million workers, 5.8 percent of the 
workforce would receive an increase in their hourly wage if the 
minimum wage were raised from $5.15 to $7.25 by June 2007. Due 
to spillover effects, the 8.2 million workers, 6.5 percent of 
the workforce, earning up to $1 above the minimum would also be 
likely to benefit from an increase.
    Raising the minimum wage will benefit working families. The 
earnings of minimum wage workers are crucial to their families' 
well being, and evidence from the 1996 to 1997 minimum wage 
increase shows that the average minimum wage worker brings home 
more than 54 percent, or half of his or her family's weekly 
earnings. An estimated 760,000 single mothers with children 
under 18 would benefit from a minimum wage increase to $7.25 by 
June 2007. Single mothers would benefit disproportionately from 
an increase.
    Let me also say in conclusion that, again, we have had 
these carve-out amendments. It seems to me certainly patently 
unfair that we give high benefits to those who are already 
taken care of, manufacturers who have insurance, who have deep 
roots, if you will, deep pockets, to ensure that they are 
protected, but lo and behold, those workers who are either 
injured or are now trying to oppose the opportunity for their 
protection, and then of course we are giving them minimum 
wages.
    So I ask my colleagues to support this amendment.
    Chairman Sensenbrenner. Does the gentleman from Ohio insist 
on his point of order?
    Mr. Chabot. Mr. Chairman, after, it is my understanding, 
consulting with the parliamentarian, I will withdraw my motion, 
but I do want to speak in opposition.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. I thank the Chairman.
    I oppose this amendment. This is a really transparent 
attempt to impose on machinery manufacturers an increase of the 
Federal legal minimum wage by $2.10 per hour, from $5.15 to 
$7.25. This amendment is completely unrelated to the subject 
matter of H.R. 3509. Adjustments in the minimum wage, when 
appropriate, should be considered in the context of the Fair 
Labor Standards Act, and only after careful consideration of 
the economic impact of such an adjustment.
    There is no demonstration of why the equipment industry 
should suffer economic discrimination, nor has there been any 
showing of the economic impact of the proposed amendment. 
Further, the objective of this bill is to enhance the 
competitiveness of the U.S. capital good industry, and there is 
no evidence that this amendment would do that.
    For those reasons, I oppose this amendment and would urge 
my colleagues to do the same.
    I yield back the balance of my time.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers?
    Mr. Conyers. Mr. Chairman, I rise in support of this 
amendment. I think notwithstanding the Fair Labor Act or other 
technicalities, this is a simple attempt to increase the 
minimum wage and this is an appropriate way to do it. And so I 
think that since 1997, we are not asking too much to support 
the gentlelady from Texas's amendment, which is to me really 
right on time.
    It is a common-sense attempt to counter a bill that may 
strip hard-working Americans of their ability to obtain 
justice. I would add my statement to the record and yield back 
my time.
    Chairman Sensenbrenner. Without objection.
    For what purpose does the gentleman from California, Mr. 
Issa, seek recognition?
    Mr. Issa. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Issa. Well, Mr. Conyers, Mr. Chairman, Mr. Conyers said 
it very well. This is simply an attempt to raise the minimum 
wage, something over which this Committee doesn't have 
jurisdiction. So regardless of statements by the 
parliamentarian, this would be inappropriate in this Committee. 
This would be inappropriate this time.
    But moreover, I would be happy to support this amendment if 
in fact it applied to China, to India, to Pakistan, to Sri 
Lanka, to every other place that American manufacturers find 
themselves competing against companies that have no liability 
on day one, and all they are asking for in this bill is to 
limit their liability to a reasonably insurable period.
    With all due respect to the gentlelady from Texas, it costs 
money. I think I may be the only manufacturer in this room. It 
costs money for every additional year.
    Ms. Jackson-Lee. Would the gentleman yield?
    Mr. Issa. No. For every additional year that you want to in 
fact insure. So yes, you can talk about deep pockets, but the 
American consumer pays for it and the American employee pays 
for it because those products stop being made in America. You 
can import from China and on day one there is no liability, and 
yet a decade or 2 decades later in many States or beyond, there 
is still liability.
    I yield to the gentlelady for her comments.
    Ms. Jackson-Lee. Thank you. I was just wondering if you 
believe that foreign countries should dictate what American 
workers get paid? Because by your logic----
    Mr. Issa. Reclaiming my time, if we can in fact not 
control, with this bill, we can't control the liability to make 
it closer for manufacturers so that they can stay in America 
and employ Americans at America's free market wages. America 
has a free market system and the vast majority of manufacturing 
jobs pay very well and they pay far above minimum wage.
    But the reality is that this is a very expensive part of 
being a manufacturer in America is the in perpetuity liability. 
It drove airplane manufacturers out of this country, shut them 
down. They are only back because this body enacted legislation 
to try to give them an opportunity to make it in America, and 
they are making in America again.
    Mr. Conyers. Would the gentleman yield?
    Mr. Issa. Certainly.
    Mr. Conyers. Thank you. I don't mind you being opposed to 
the amendment. As a manufacturer, you don't want to raise the 
minimum wage, but don't make us have to raise China and other 
countries.
    Mr. Issa. Reclaiming my time, if this Committee had the 
power to raise minimum wage, we could have a better discussion. 
If this Committee had the power to affect wages in China, I 
would be happy to try to assert that.
    Not having such power, I can only say that this amendment 
needs to be defeated. It needs to be defeated because it only 
serves to make what is already an incredibly difficult task, 
and that is manufacturing here in America, even harder.
    This simple, straightforward piece of legislation is 
designed to make it uniform State by State for companies to 
manufacture knowing that at some date in the future, they will 
actually no longer have liability.
    The fact is the courts have not been willing to see fit 
that even when technology not known is employed, and then later 
is known, the courts have said, well, we still are going to 
hold you liable for what you didn't know in 1939. That history 
is what we are dealing with today.
    With that, I urge defeat of this amendment. I yield back.
    Ms. Wasserman Schultz. Will the gentleman yield for a 
question?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California, Ms. Waters, seek recognition?
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Thank you very much.
    Mr. Chairman, if I may, I would like to ask the gentleman 
from California, who just made such a passionate argument about 
not raising the minimum wage because of the cost of 
manufacturing in the other countries. I would like to ask him 
if he would yield to a question or two.
    Did you support NAFTA?
    Mr. Issa. I wasn't in the Congress, but I did testify on 
behalf of the California Chamber.
    Ms. Waters. Did you support CAFTA?
    Mr. Issa. I voted for it, yes, I did.
    Ms. Waters. Are you in support of the WTO?
    Mr. Issa. Yes, ma'am.
    Ms. Waters. Okay, so you support world trade.
    Mr. Issa. Yes, I do.
    Ms. Waters. And you have not raised any arguments about the 
wage or the liability limits or any of that in your discussion 
in support of world trade. Is that right?
    Mr. Issa. With all due respect to the lady, I in fact have 
been part of trying to make sure those trade agreements have 
specific labor in them. The Oman free trade agreement is going 
to be----
    Ms. Waters. Are you supporting the Oman trade agreement?
    Mr. Issa. I am, and it is going to be a landmark for labor 
fairness.
    Ms. Waters. Are you supporting the agreement with Peru, 
where they tried to have labor standards that were resisted by 
your side of the aisle?
    Mr. Issa. I have not yet looked at Peru.
    Ms. Waters. All right, then, I don't think the gentleman 
has an argument. I yield to the gentlelady from Texas.
    Ms. Jackson-Lee. I thank the distinguished gentlelady for 
her yielding. I would simply offer a rebuttal to my good friend 
from California on several points.
    First of all, I think we on a general basis would hope to 
enhance the conditions and environment of those countries so 
named. I don't in any way believe that the United States should 
in any way seek to equal itself to countries who have been 
known for notorious work-related practices and known for 
notorious practices of enslaved labor, specifically some that 
have been named.
    What I would also argue is that this is legislation dealing 
with competitiveness. If that is the case, then I would suggest 
that we want our American workers to be competitive. But more 
pertinent to this particular amendment, it is not a direct 
increase. What it says is that it extends benefits of the 
statute of repose to those companies who would pay a minimum 
wage and above.
    Therefore, I think that it is worthy of this particular 
legislation and it is a worthy amendment because how can we, 
one, deny various States their more innovative statutes of 
repose, more protective, innovative statutes of repose, and 
then at the same time in the same voice, not support making 
workers competitive and making the benefits of the present 
legislation go to those who would do right and have a good 
conscience and raise the minimum wage.
    I was just asked an eloquent or very important question, is 
whether any of the Members can recall any of their 
relationships, their families, their neighbors trying to 
survive on a minimum wage? If you have had that kind of 
history, then you understand the value of an amendment that 
would ensure that manufacturers simply do the basics and 
provide a minimum wage.
    Just think back. Do any of you have any recollection? Maybe 
that is not your history. But if it is, then have an 
understanding of the importance of a minimum wage here and now. 
I would just join the gentleman, and I know his heart and his 
record of concern, I would join the gentleman, as many of us 
would, to put a minimum wage increase on the floor of the House 
that actually does raise the minimum wage. This one says that 
you do not benefit from the statute of repose if you do not 
increase the minimum wage.
    I would also ask that my statement in its entirety be 
submitted into the record.
    I yield back to the distinguished gentlelady.
    Ms. Waters. I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentlewoman from Texas, Ms. Jackson-Lee.
    Those in favor will say ``aye.''
    Those opposed, ``no.''
    The noes appear to have it.
    Ms. Waters. With that, I ask for a rollcall.
    Chairman Sensenbrenner. A rollcall will be ordered. Those 
in favor of the Jackson-Lee amendment will, as your names are 
called, answer ``aye.'' Those opposed, ``no.'' The clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake?
    [No response.]
    Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Bermam. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher?
    [No response.]
    Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson-Lee?
    Ms. Jackson-Lee. Aye.
    The Clerk. Ms. Jackson-Lee, aye.
    Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt?
    [No response.]
    Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen?
    [No response.]
    Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there further Members in the 
chamber who wish to cast or change their votes? If not, the 
clerk will report.
    Ms. Jackson-Lee. Mr. Chairman, how am I recorded?
    Chairman Sensenbrenner. How is the gentlewoman from Texas 
recorded?
    The Clerk. Mr. Chairman, Ms. Jackson-Lee is recorded aye.
    Chairman Sensenbrenner. Does Ms. Jackson-Lee wish to change 
her vote?
    Ms. Jackson-Lee. I think that is the correct vote, Mr. 
Chairman. Thank you for your kindness.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their vote? If not, the clerk will try again 
to report.
    The gentleman from Maryland, Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 15 ayes and 20 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Mr. Chairman, I am not sure how to characterize 
this. It is not an amendment, and it may or may not be a 
parliamentary inquiry.
    Chairman Sensenbrenner. Does the gentleman move to strike 
the last word?
    Mr. Nadler. I suppose. The last word is always good.
    Chairman Sensenbrenner. I suppose the gentleman can be 
recognized for 5 minutes. [Laughter]
    Mr. Nadler. Thank you.
    Mr. Chairman, on the floor they are now debating the rule 
to the so-called ``Pledge of Allegiance Bill.'' Now, that bill 
will be coming up for debate on the floor in a few minutes. 
That bill is a bill within the jurisdiction of this Committee. 
I realize that the bill was not reported out of Committee. I 
share what I take to be, what I have been told is the 
Chairman's annoyance at somebody for bringing the bill to the 
floor without going through this Committee.
    But having said that, I do urge that the Committee should 
not be meeting when what is really a Committee bill is on the 
floor. Some of us, I as Ranking Member on the Subcommittee on 
the Constitution, others, I am going to have to manage the bill 
in opposition. Others here will be participating in that 
debate.
    I do observe--and let me just say one thing--I do observe 
we will be debating on the floor later today the veto override 
of the stem cell bill, which is not from this Committee, though 
I would like to participate in that, too. It might be more 
appropriate to recess this Committee until later in the day, 
finish it then, so that those of us on the Committee can 
participate in the debate on what is a Committee bill.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Nadler. Yes, I will.
    Chairman Sensenbrenner. The Chair has said we have a very 
ambitious schedule today. The Chair is prepared to agree to the 
gentleman's request to recess the Committee after the vote on 
the rule until the completion of the pledge of allegiance bill, 
in exchange for a commitment by the Members of the Committee to 
expedite the consideration of the rest of the agenda today, 
meaning there is a recess if we can speed up the chatter on the 
other bills.
    Mr. Conyers. Would the gentleman from New York yield?
    Mr. Nadler. I will yield, yes.
    Mr. Conyers. I congratulate the gentleman for raising this 
subject matter. I congratulate the Chairman for agreeing to a 
recess. I think I can speak for all of us on this side that we 
will move forward with all deliberate speed to expedite the 
proceedings that remain.
    Chairman Sensenbrenner. The Chair will state that ``all 
deliberate speed'' is at the speed of the eye of the beholder. 
[Laughter]
    However, having said that, the Chair will recess the 
Committee during the general debate and vote on the amendments 
on the Pledge of Allegiance bill, but will also state we will 
not adjourn for the evening until the agenda is completed. So 
that might change the view of ``all deliberate speed'' in the 
eyes of my friend the Ranking Member, and those Members who are 
seated to his left or even his far left.
    Mr. Nadler. Mr. Chairman, reclaiming my time, reclaiming my 
time, I do not believe that the use of the phrase ``with all 
deliberate speed'' had direct reference to the history of this 
country in the 1950's and 1960's with regard to speed. Having 
said that, I thank the Chairman for his consideration. I yield 
back.
    Chairman Sensenbrenner. Okay. Are there further amendments 
to the bill?
    Ms. Waters. I have an amendment at the desk, sir.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Waters. To strike the last word.
    Chairman Sensenbrenner. For what purpose did the 
gentlewoman from California seek recognition?
    Ms. Waters. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Mr. Chairman, I have----
    Ms. Waters. It is Waters 085.
    Chairman Sensenbrenner. Okay. The clerk will report 085.
    The Clerk. ``Amendment to H.R. 3509 offered by Ms. Waters 
of California. Page 3, after line 14, add the following new 
paragraph: (5) Employment Requirements: This Act does not apply 
to a civil action filed by a claimant for damage to property or 
damages for death or personal injury arising out of an accident 
involving a durable good if the use of such durable good by the 
claimant is required by the claimant's employer.''
    [The amendment follows:]
      
      

  
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Mr. Chairman, this amendment seeks to fix the 
outdatedness of this legislation with respect to the industry 
lifespan of durable goods today, as well as the practical 
realities for many workers in the manufacturing industry 
itself. The H.R. 3509 statute of repose would bar civil suits 
for damages or death related to the use of durable goods 
outside an arbitrary 12-year period, irrespective of the 
circumstances of the use of this good.
    I would urge my colleagues to accept my amendment because 
it takes into account the fact that the use of many durable 
goods contemplated in this legislation comprises a substantial 
part of many jobs in American manufacturing plants. As the bill 
is drafted, innocent employees would by implication waive their 
rights to sue manufacturers or sellers of durable goods by 
virtue of performing their jobs, which is unconscionable and in 
bad faith on the part of the Federal legislature.
    To further illustrate my point, I offer a few examples, one 
in my home State of California. In 1995, Ronaldo Gonzalez, a 
printing press operator, had to have his arm amputated after it 
became caught in a printing press designed and manufactured by 
Heidelberg, Incorporated in 1973.
    At trial, testimony revealed that the company added 
safeguards to the same printing press model both in 1974 and 
1980, yet they never took steps to notify the prior owners of 
the machine's dangerous defect. By 1995, at least eight other 
pressmen either had their arms crushed or severed while 
operating the pre-1974 presses.
    Now, if that did not convince you, I give the example of a 
worker in the Chairman's home State of Wisconsin while 
operating a meat grinder. In 1979, Dexter Hamilton's right hand 
became caught in the grinder and four of his fingers were 
severed by the grinder's blades. The Enterprise Manufacturing 
Company manufactured the grinder 20 years prior to Hamilton's 
accident. The jury found that Enterprise Manufacturing Company 
negligently designed and manufactured the grinder.
    Mr. Chairman, these are but a couple of the many instances 
where workers have been severely injured on the job when, but 
for the negligence of either the manufacturer or the seller of 
the equipment used on the job, the injury could have been 
avoided. And therefore the claims of the worker should not be 
limited by bills such as H.R. 3509.
    I would urge my colleagues to accept this amendment also 
because the workers' compensation system does not provide the 
best or most timely remedy for many workers, especially in my 
State.
    Let me offer a few reasons why California workers need more 
than workers' compensation to provide relief when they are 
injured. Workers comp benefits in California are the lowest in 
the nation. For six out of ten workers with a permanent injury, 
overall benefits are so low that California has ranked 45th out 
of 50 States. Injured California workers have to go to court to 
get benefits 20 percent of the time, double the rate 20 years 
ago, and more than four times the national average.
    Insurers mishandle half their claims. In one of every five 
cases, the insurer will not properly notify workers of 
benefits, and in one of every six cases, workers will not be 
paid all the money they are owed, according to State audits. 
Fraud is overstated. While some insurance companies claim one 
out of three workers lie about their injury, or 33 percent, the 
actual number of fraud cases sent to prosecutors is less than 
one out of 100 or less than 1 percent.
    California has had one information counselor for every 
20,000 workers in the comp cases. No State agency again 
regularly monitors claims to see, for instance, whether 
insurance payments are received on time or whether injured 
workers are receiving appropriate medical care.
    While I cite the California problems, there are many other 
States that are even worse. I would ask my colleagues to 
seriously consider this amendment and support it.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I won't take that full 
5 minutes.
    I strongly oppose this gutting amendment. This amendment 
would completely negate the portions of this bill that relate 
to injured workers because the only reason that a person would 
be working on a piece of machinery is that their employer 
required them to do so as part of their job. In fact, this 
amendment would have the curious effect of only applying the 
liability limiting provisions of this bill to employees who are 
injured by machines that they do not operate in the normal 
course of their jobs.
    I would note once again that this bill ensures that no 
person will go uncompensated for an injury that they would 
receive at work, since the liability protections of this bill 
only apply in cases where the employee is covered by workers' 
compensation.
    Since this amendment would gut the important liability 
protections of the bill, I would strongly oppose it and urge my 
colleagues to do so, and yield back the balance of my time.
    Ms. Waters. Will the gentleman yield?
    Mr. Chabot. I would be happy to yield.
    Ms. Waters. I would like to correct some of the information 
that you just shared with my colleagues about the bill. This 
bill simply would take care of those workers that are----
    Mr. Chabot. Reclaiming my time, did you say the bill, or 
are you talking about your amendment or the bill?
    Ms. Waters. My amendment. I am sorry, my amendment, of 
those workers who are injured by machines that have defects 
that have been discovered and then later taken care of or 
fixed, and the manufacturers did not tell the owners of those 
machines in those factories that have been using those machines 
prior to the time the problems were corrected, that they had 
been corrected later on. That is what this amendment does, so 
that is the correct description of it.
    Mr. Chabot. Reclaiming my time. What this bill does is it 
makes very clear that for 12 years beyond that period of time, 
there would not be liability because we have case upon case in 
which there have been lawsuits, some which have driven 
companies out of businesses, some that make the United States 
businesses less competitive. There is a whole range of reasons 
why I believe this legislation should be supported.
    But I want to emphasize that any person who is injured on 
the job by one of these pieces of equipment, the only way that 
they would not be able to recover is if they have workers' comp 
coverage. The vast majority of the cases are going to have 
workers' comp coverage, and so there is really nobody who is 
going to lose out on this.
    I yield back the balance of my time.
    Mr. Coble. [Presiding.] The question occurs on the 
amendment. All in favor say ``aye.''
    Opposed, ``no.''
    The noes appear to have it.
    Ms. Waters. rollcall.
    Mr. Coble. A rollcall has been requested. The clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    [No response.]
    Mr. Gallegly?
    [No response.]
    Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    [No response.]
    Mr. Cannon?
    [No response.]
    Mr. Bachus?
    [No response.]
    Mr. Inglis?
    [No response.]
    Mr. Hostettler?
    [No response.]
    Mr. Green?
    [No response.]
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    [No response.]
    Mr. Flake?
    [No response.]
    Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Bermam. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher?
    [No response.]
    Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson-Lee?
    Ms. Jackson-Lee. Aye.
    The Clerk. Ms. Jackson-Lee, aye.
    Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt?
    [No response.]
    Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Mr. Coble. The clerk will report.
    The gentleman from Wisconsin?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Coble. The gentleman from California?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Coble. The gentleman from Utah?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Coble. The other gentleman from California, Mr. 
Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Coble. The gentleman from Indiana?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Coble. Members on the minority side have not voted.
    The gentleman from South Carolina?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Coble. Any Members? Mr. Bachus, the gentleman from 
Alabama, votes no.
    The Clerk. Mr. Bachus, no.
    Mr. Coble. Not to be voting for him. [Laughter]
    The clerk will report.
    The Clerk. Mr. Chairman, I don't have a vote for Mr. 
Jenkins.
    Mr. Jenkins, no.
    Mr. Chairman, there are 15 ayes and 20 nays.
    Mr. Coble. And the amendment is defeated.
    Are there further amendments? The distinguished gentleman 
from Virginia, Mr. Scott?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk. 
It is number four.
    The Clerk. ``Amendment to H.R. 3509 offered by Mr. Scott. 
Page 3, after line 14, add the following new paragraph: (5) 
Normal Life Expectancy: This Act does not bar a civil action 
for damage to property or damages for death or personal injury 
arising out of an accident involving a durable good that has a 
normal life expectancy of more than 12 years.''
    [The amendment follows:]
      
      

  
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

    Mr. Coble. Mr. Scott is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, this amendment would add an exception to the 
bill and permit civil actions for damage to property or damages 
for death or personal injury arising out of an incident 
involving a durable good that has a normal life expectancy that 
exceeds 12 years.
    The fact is that if the useful life of a product is longer 
than the repose period, then we have no business imposing a 
statute of repose and limiting the ability of a plaintiff to 
bring a perfectly legitimate lawsuit.
    For example, if a product has a normal life expectancy of 
20 years and there is damage to property after the repose 
period in the bill, but before those 20 years are up, then a 
plaintiff ought to be able to bring a suit whether or not there 
is an express warranty in writing. Of course, the burden of 
proof is on the plaintiff to prove that the injury was caused 
within the normal life expectancy of the product.
    As written, the bill would completely eliminate rights of 
workers to hold manufacturers and sellers accountable when they 
are injured by a defective product that is more than 12 years 
old regardless of how long the product was built to last. Many 
items today, such as industrial machinery, farming equipment, 
construction tools, are made to last longer than 12 years. 
Limiting the rights of those consumers in this way does nothing 
to promote justice.
    Mr. Chairman, whether or not we adopt this amendment, 
excuse me, without this amendment, this bill would shift the 
cost of injury from the producer who is reasonably expected to 
be able to know the useful life of the product, to those who 
are the injured party. The one causing the damage is obviously 
immunized, even if it is willful or reckless. He has no 
responsibility to the victim or reimbursing his workers' comp.
    Mr. Chairman, this is a unique piece of legislation because 
usually if there is negligence by an outside group, the 
employer can get workers' comp, but if he files suit there is 
subrogation. This immunizes an unrelated party so if there is a 
catastrophic injury, those who are actually working on the job 
get nothing, and those who are not working on the job can 
recover as usual and the bill will have no effect.
    I would hope, Mr. Chairman, that this bill would allow the 
employees to have the same rights as everybody else to recover 
for injuries at least when the product was within its useful 
life. So Mr. Chairman, I would hope that we would adopt this 
amendment and allow those to recover when they have a 
legitimate lawsuit.
    Mr. Coble. I thank the distinguished gentleman from 
Virginia.
    The distinguished gentleman from Ohio?
    Mr. Chabot. Thank you.
    Mr. Coble. You are recognized for 5 minutes.
    Mr. Chabot. I am going to strike the last word. Thank you.
    I strongly oppose this amendment, as well. This one truly 
guts the bill. This amendment would create an exception to the 
12-year statute of repose applicable to workplace durable goods 
if the product has a normal life expectancy of more than 12 
years. The effect of this exception would be to eliminate the 
bright-line test that H.R. 3509 creates. H.R. 3509 provides an 
absolute bar on suits that arise from damages that occur 12 
years after a product was delivered to the first purchaser or 
lessee.
    This straightforward guideline can be applied easily, 
consistently, and fairly. By contrast, this amendment would 
require companies to litigate the issue of the normal life 
expectancy of their products. The goal of the bill is to reduce 
the litigation costs of manufacturers and this amendment puts 
companies back in the position that they are today.
    This is more than a simple issue of pleading. Defendants in 
such claims would have to show, among other things, the affect 
of wear and tear from natural causes, the evolution of the 
state of the art in that particular industry, the climatic and 
local conditions where the product is used, the repair policy 
of the end-user, and any modifications made by the end-user.
    All of these elements require extensive discovery and 
experts and other defense costs. As a consequence, companies 
would like be forced to settle these claims, rather than incur 
massive defense costs, which increases the cost of the product, 
the cost to the ultimate consumer.
    The bill provides, the bill that we are talking about here, 
not the amendment, but the bill provides relief from wasteful 
litigation precisely because it relies on a fixed, objective 
12-year statute of repose. Incorporating a normal life 
expectancy standard into the bill would introduce fact-specific 
inquiries into every case, and remove all the benefits of 
uniformity, which is what this bill brings.
    Those are the benefits of the 12-year statute of repose. To 
bring this particular issue up and to have state of the art 
would be the opposite of what this bill is trying to 
accomplish. And so I strongly urge my colleagues to oppose this 
amendment.
    I yield back the balance of my time.
    Mr. Coble. The gentleman yields back.
    The distinguished gentleman from New York?
    Mr. Weiner. I won't take much time. I am just fascinated by 
the idea----
    Mr. Coble. Do you strike the last word?
    Mr. Weiner. Yes, I do.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Weiner. I am fascinated by the idea that consistency is 
such a high ideal. In fact, in court cases it is the opposite 
paradigm that you are always looking for, the individual facts 
that you are trying to learn about a case, an individual 
pattern. Since when is consistency for the sake of consistency 
more important than getting it right?
    What we should be trying to do is ensure that we get it 
right, that people who are harmed are made whole; that people 
who are not, are not. And that is why we have this fascinating 
concept in this country, it has never been fully embraced by my 
colleagues on the other side, of allowing juries and judges to 
hear cases, to make determinations, and to use their judgment.
    I am fascinated by the idea that we trust our constituents 
to vote for us, but when they get in a jury box, oh, they can't 
figure it out. We have to take away anything we can from them. 
We are just runaway juries and runaway judges. Our constituents 
are fairly smart enough and brilliant enough and intuitive 
enough to vote for their representatives, but heaven forbid we 
trust them to figure out the facts and a pattern of facts in a 
jury.
    I don't believe, frankly, that if the only opposition that 
you have to the Scott amendment is it makes issues more 
important to the case than our high-and-above, top-of-the-
pyramid judgment here. I don't think that is a legitimate 
reason to be opposed to the amendment. I think frankly we 
should have the ability to discern individual facts in 
individual cases to form individual conclusions, because it is 
possible, although I doubt it, it is possible we don't know 
everything here.
    Mr. Chabot. Will the gentleman yield?
    Mr. Weiner. Oh, certainly I will.
    Mr. Chabot. I would ask the gentleman, does the gentleman 
believe in the concept, for example, of statutes of limitation, 
which may be 2 years for a personal injury, and other things of 
that nature where you have to have some rules that you can rely 
upon, or you could be sued into infinity? Does the gentleman 
agree with those types of concepts?
    Mr. Weiner. Listen, I am not saying that there are not 
certain moments that you have to set arbitrariness, but this is 
fairly fundamental to whether a case is worthy or not. This is 
not like a statute of limitations that you have to say at some 
point when is it simply not fair to bring a trial anymore 
because the fact pattern is too difficult to discern, hard to 
find witnesses, memories fade.
    This is a seminal point about whether or not a product, you 
are going to hold someone liable, how old something is in 
comparison to how old it should be before it is deemed to be 
obsolete or the like.
    I yield back my time.
    Mr. Coble. The gentleman's time has expired.
    Mr. Watt. Mr. Chairman?
    Mr. Coble. The distinguished gentleman from North Carolina, 
Mr. Watt? For what purpose do you rise?
    Mr. Watt. I move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Watt. I won't take 5 minutes. I just want to point out 
that this amendment actually exposes the arbitrariness of the 
12-year statute. There is nothing magic about 12 years, 
obviously. It could be 10 years. It could be 6 years. It could 
be 18 years.
    Mr. Chabot. Would the gentleman yield for a second?
    Mr. Watt. I am happy to yield.
    Mr. Chabot. I thank the gentleman for yielding. I would 
just note that 12 years, one of the principal reasons we picked 
that is because that is what those States that have acted on 
this, that is the consensus of most of the States in this area.
    Mr. Watt. I am sure there is a rational reason that you 
picked it. My point is that there is nothing magic about it. It 
happens to be substantially longer than the statute of repose 
in North Carolina. So I don't know that there is anything magic 
about it.
    I am not saying that it is irrational to pick a time 
period. I am just saying that any arbitrary time period that we 
set is just arbitrary. If the purpose was to pair up the 
responsibility of people, of employers or manufacturers based 
on the duration of the effective use of the product, this 
amendment makes more sense than just grabbing a year out of 
space here and putting it in the statute.
    And if we are going to have any sense of responsibility, I 
think it is this amendment that really makes the most sense 
here because I thought what we were trying to do was pair up 
the expected life of a piece of equipment, and not have 
manufacturers and employers have responsibility beyond that 
life expectancy, rather than just picking a number out of the 
sky and putting it in a bill.
    Mr. Chabot. Would the gentleman yield?
    Mr. Watt. I am happy to yield to the gentleman.
    Mr. Chabot. I would once again just note that we didn't 
pick it out of the sky. If you look, for example, at the 
European Union, you look at Japan, South Korea, those are 10 
years.
    Mr. Watt. I definitely want to follow South Korea in 
deciding what I do.
    Mr. Berman. Would the gentleman yield?
    Mr. Watt. I am happy to yield to the gentleman from 
California.
    Mr. Berman. I was taken by the gentleman's point earlier. 
Our judges should do nothing to look at the laws of other 
countries in coming to their own judicial conclusions, but our 
legislators should spend a lot of time studying what other 
countries do before we come to our decisions on legislation.
    Mr. Chabot. Would the gentleman yield?
    Mr. Berman. It is a very interesting distinction.
    Mr. Watt. I am happy to yield to the gentleman from Ohio 
again.
    Mr. Chabot. Again, I will just make the point that we are 
competing with those countries, and our companies are competing 
on a daily basis.
    Mr. Watt. I am sure we are. I am not arguing that fact. But 
if we are going to select their standard, we ought not have a 
standard in a lot of these cases. That is the point that Mr. 
Issa was making earlier. Maybe we shouldn't have a standard at 
all if we are just going to go around the world and try to be 
competitive.
    This is about trying to fashion our law, the burden on 
manufacturers, consistent with the period of time that their 
piece of equipment that they manufactured is likely to be in 
use and in the stream of trade. That is what a statute of 
repose is supposed to be about, not just picking a number out 
of the sky, and not about South Korea or Russia or China or any 
of that.
    Now, I am happy to yield to the gentleman from California. 
I am sure he has some words of wisdom on this.
    Mr. Lungren. I am just trying to find out whether the 
gentleman is arguing that we ought to accept the North Carolina 
number, which is 6 years for the manufacturers of all goods, 
including furniture.
    Mr. Watt. My friend, I guarantee you, before this debate is 
over, you are going to hear that argument because I will tell 
you in no uncertain terms that the legislators in North 
Carolina have made a lot more sense than this group of people 
in this Committee are making on this issue. And you are going 
to hear it. Make no mistake about it. If you think this is 
about the substance of the time, this is not even about that. 
This is about whether we ought to be making this decision, as 
opposed to State legislators.
    You all, of all the people who came riding here on the 
States' rights horse, ought to be the last people that are 
supporting this bill. I mean, it is absolutely inconsistent. 
You will get your time to hear me make that argument. This is 
on this amendment, but you will get that argument and I will be 
happy to yield to you again at that point.
    Mr. Coble. The gentleman's time has expired.
    Without objection, the gentleman is allotted an additional 
minute.
    Mr. Watt. I yield to the gentleman from Virginia.
    Mr. Scott. Thank you.
    I would also note that whatever the statute of repose is in 
North Carolina is in the context of everything else they do, 
whether they have joint and several liability, whether they 
have limits in liability, whether they have collateral source 
rules and everything else. They have over the course of time 
balanced the consumers and the wrongdoers, and the statute of 
repose is part of that. This just comes out of the blue on top 
of everything, without any context at all.
    Mr. Watt. I yield back.
    Mr. Coble. The gentleman's time has expired.
    The question occurs on the amendment. All in favor say 
``aye.''
    Opposed, ``no.''
    The noes appear to have it. The noes have it, and the 
amendment fails.
    Are there additional amendments? The distinguished 
gentleman from Virginia, Mr. Scott, is recognized. For what 
purpose do you seek recognition?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk: 
In Section 2, striking paragraph (a)(1).
    Mr. Coble. The gentleman from Virginia is recognized for 5 
minutes to explain his amendment.
    Mr. Scott. Do you have that amendment? Okay. Mr. Chairman, 
has the amendment been reported?
    Mr. Watt. Report the amendment, Mr. Chairman.
    Mr. Scott. Mr. Chairman, I was recognized for an amendment. 
I don't think it has been reported yet.
    Mr. Gallegly. [Presiding.] The clerk will report the 
amendment please.
    The Clerk. ``Amendment to H.R. 3509 offered by Mr. Scott of 
Virginia. In Section 2, strike paragraph (a)(1) and redesignate 
accordingly.''
    [The amendment follows:]
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    Mr. Gallegly. The gentleman is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, the terms of H.R. 3509 do not currently apply 
to persons who sustain injury from overage products and 
equipment if those persons are bystanders. This amendment would 
also protect the property of those innocent bystanders. It is 
reasonable that an innocent bystander could not only suffer 
physical injury, but also significant property damage. It is 
only fair that they have the right to recover from property 
damage, as well as injury.
    Mr. Chairman, if you look at what would happen if a wheel 
came off a truck, even if willful and reckless, and strikes a 
bus, causing a severe accident because of the negligence of the 
manufacturer. In that case, the passengers of the bus could 
sue. The bus driver would be stuck with workers' compensation. 
The bus owner maybe or maybe not, it is a little unclear, might 
get some business losses. But the bus owner would get no 
recovery for damage to the bus.
    Since the goal seems to be to limit recovery for those 
hard-working individuals because they might get a little 
workers' compensation, we ought not totally prohibit recovery 
for property damage by innocent bystanders. I would hope that 
we would adopt the amendment, and I yield back.
    Chairman Sensenbrenner. [Presiding.] The question is on 
the----
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. I would oppose this amendment as well. The 
amendment would have the effect of stripping the liability 
protections of this bill for any damage to property that is 
caused by workplace durable goods. This means that the 
manufacturers and sellers of workplace durable goods would 
continue to be exposed to significant long-tail liability for 
machines that have long since left their control.
    Oftentimes, these machines have been significantly modified 
by the customer, without the knowledge of the original 
manufacturer, and those modifications are often the reason that 
these machines break in the first place. This amendment would 
have the effect of continuing to subject the original 
manufacturer to liability exposure for these machines that have 
been significantly modified. Because of this amendment, it 
would abrogate the important policy rationale of this bill. I 
would oppose it.
    Furthermore, I would like to note that this bill is 
supported by the National Federation of Independent Business, 
an awful lot of small companies all over this country, and 
represents over 600,000 small businesses in the United States. 
I would submit that if the nation's leading advocate for small 
business is supportive of this bill and opposed to this 
amendment, including the property damage provisions of this 
amendment, that it would strip them, that is a pretty strong 
endorsement for keeping this bill whole as it is now. So I 
would oppose this amendment.
    Mr. Scott. Would the gentleman yield?
    Mr. Chabot. I would yield, yes.
    Mr. Scott. The gentleman mentioned that the manufacturer 
would be on the hook long past the statute of repose. Isn't it 
true that he is on the hook if the damage is personal injury?
    Mr. Chabot. Would the gentleman restate that?
    Mr. Scott. Isn't the manufacturer on the hook for personal 
injury liability long past the statute of repose?
    Mr. Chabot. Reclaiming my time, if I understand the 
question----
    Mr. Scott. So long as the victim is not covered by workers' 
comp.
    Mr. Chabot. Yes, that is correct. Of course. The people 
that would not be covered are only those that are not covered 
by workers' compensation. That is right.
    Mr. Scott. So that the liability of the manufacturer still 
extends well past the statute of repose for injuries, but not 
property damage.
    Mr. Chabot. If they are not covered by workers' 
compensation.
    Mr. Scott. But not property damage?
    Mr. Chabot. You don't cover property on workers' 
compensation.
    Mr. Scott. That is right, but the innocent bystander can 
sue for injuries, but not for property damage.
    Mr. Chabot. The innocent bystander wouldn't be covered 
under workers' compensation. Therefore, could still recover. 
That is correct.
    Mr. Scott. But not for property damage?
    Mr. Chabot. Correct.
    Mr. Scott. And this amendment would allow him to get 
property damage, as well as personal injury.
    Mr. Chabot. I think we have restated this time and time 
again.
    I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say ``aye.''
    Those opposed, ``no.''
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments? If there are no further--the 
gentleman from North Carolina, for what purpose do you seek 
recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I haven't offered an amendment, but I want to rise in 
strong opposition to this bill. If I were worried about the 
result, I would sit here and be quiet because this 12-year 
statute of repose actually improves, from my perspective, North 
Carolina law. It extends it from 6 years to 12 years. And so 
this is not about the result. It is about protecting a system 
that I had thought that a number of my colleagues came into 
Congress advocating to preserve.
    The problem here is that there are a couple of principles 
that I think are being severely violated here. One is personal 
injury law. Tort law has long been considered the private 
province of States, rather than the Federal Government. So we 
are violating that principle. Personal injury law has been 
about trying to make the person who is most responsible and 
therefore has the most ability to prevent injury be 
responsible. We are violating that principle here.
    And so I just think we have lost our way in the interest of 
trying to accommodate business interests, make things 
consistent on a national basis. We have ignored some principles 
that are very important.
    Now, let me tell you the way this gets done in North 
Carolina and why I doubt if there are North Carolina small 
businesses that are supporting this. They understand what it is 
they are doing. We are shifting responsibility here in North 
Carolina from the manufacturer's liability insurance carrier to 
the workers' compensation insurance carrier because once the 
workers' compensation carrier pays in North Carolina, the 
workers' compensation carrier has the right to subrogate 
against the actual responsible party, which was the 
manufacturer. They can go and get their money back.
    Why would we set up a system that punishes the workers' 
compensation carrier, the least likely carrier to be able to 
prevent the injury, and reward the general manufacturer's 
liability carrier if we are concerned about assessing the risk 
and responsibility, that is you all's word, to the people who 
can and should be the most responsible?
    This, our law in North Carolina has been, you know, it is 6 
years rather than 12 years, but at least the members of the 
State legislature have spent some time thinking about how to 
balance these interests. And thinking about who ought to be 
responsible for paying, because they are worried about who has 
the most interest in creating a safe work environment, creating 
a safe product, and they are not shifting that cost to the 
workers' compensation carrier because the workers' compensation 
carrier in this case really can't do anything about it.
    So I just think this whole notion that setting a national 
standard in this case is contrary to everything that we say, 
and you say you believe in. And I just think this statute is 
probably the worst example of violating the things that we say 
we stand for of any of these bills. I encourage my colleagues 
to vote against it.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from Iowa, Mr. King, 
seek recognition?
    Mr. King. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman.
    I wanted to raise this issue. I rise in support of this 
bill as put together by Mr. Chabot. There has been a lot of 
work put in this. It has been a long time and he deserves a lot 
of credit for what he has done. If I were to seek to improve 
it, it would be to lower the 12-year statute of repose to 10 
years because I believe that is more the international 
standard.
    I will support it in this form and I will be looking 
forward to an opportunity, perhaps, to improve it closer to an 
international standard. But I want to make it clear that Mr. 
Chabot has done a lot of work. This country needs this 
legislation and I support it in any form, in his form, in the 
final passage if necessary.
    Thank you, and I yield back.
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Wasserman Schultz. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Florida seek recognition?
    Ms. Wasserman Schultz. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Wasserman Schultz. Thank you.
    Mr. Chairman, you know, instead of focusing on the needs of 
everyday Americans, we are here today discussing a bill that 
will hurt blue collar workers and cripple family farmers. If 
this bill were to become law, forklift and tractor 
manufacturers would have no incentive to design safe products 
that last.
    This bill creates economic incentives to cut corners and 
erode product safety. There are many responsible manufacturers 
in the market, but this bill essentially gives the green light 
to unscrupulous firms to design weaker, more dangerous 
equipment. All the window dressing and debate around that isn't 
going to change that fact.
    This bill creates a strong financial incentive for 
irresponsible businesses to manipulate the truth about dangers 
in their products, especially when defects are discovered late 
in a product's life. And who would pay the price for this? 
Construction workers at their jobsites; miners underground; 
workers on the assembly line; and farmers in the fields, not to 
mention loggers, firefighters and everyone else who works with 
heavy machinery.
    And how will they pay? They will pay in large and small 
ways with severed limbs, crushed bodies, broken bones and 
burned skin. They will pay in lost work, in medical bills, in 
stolen livelihoods, and broken dreams.
    Let's take, for example, Priscilla Williams, who is a 55-
year-old worker from my home State of Florida. One day while 
working at a laundromat, her right hand was seared to the bone 
by a 14-year-old steam press. Her injury would have simply 
prevented by an inexpensive safeguard that the manufacturer 
neglected to install. Under this legislation, she would not 
have had any claim, and now she is permanently disabled.
    And what would this bill offer her? Workers compensation. 
That is all it would offer her. In my home State of Florida, 
workers' compensation only pays 66 percent of a worker's wages. 
Who among us could take more than one-third pay cut for the 
rest of their lives? Almost no one. At a time when the cost of 
health care is spiraling out of control and wages and benefits 
are flat or declining, and will remain so given the defeat of 
the minimum wage amendment that Mr. Issa said he was for before 
he was against, we should be lifting working families up.
    This is what Republicans are offering American workers. 
This bill is not tort reform. It is the worst kind of corporate 
giveaway because it comes at the expense of honest, hard-
working blue collar Americans. I urge my colleagues on both 
sides of the aisle to consider how this bill would hurt folks 
back home. Who do we really want to put first? Major 
corporations or people? I vote for people, and I am going to 
vote against this legislation.
    I yield back the balance of my time.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    I can't let some of these comments go really uncommented 
upon myself. The arguments, some of the arguments that are 
being made rest on the false premise that State tort law it the 
only reason that manufacturers make safe products.
    Competitive market pressures encourage manufacturers to 
design and build the best possible durable goods. This includes 
safety. After all, if a manufacturer develops a reputation for 
building machines that routinely cause employees to miss time 
due to injuries, they are unlikely to sell many of those 
machines.
    However, as a practical matter, a 12-year statute of repose 
creates an incentive for manufacturers to design and construct 
a machine to function smoothly and safely for as long as 
technically possible because this gives the manufacturer the 
longest period of liability protection under the bill.
    Manufacturers would not be tempted to beat the clock by 
designing machines that safely work for only 12 years because 
they are still fully subject to suit for that product for the 
first 12 years of its life. If the company guesses wrong and 
designed a product that only lasted for 11\1/2\ years they 
could be subject to a bankruptcy-inducing jury verdict.
    Further, if it became known that the manufacturer was 
knowingly making workplace durable goods that were designed to 
be safe only for 12 years, and to then become workplace 
hazards, they could well be subject to State or Federal 
regulatory enforcement actions which would not be prevented by 
this bill.
    We have heard a number of stories in which injuries have 
occurred to various employees. When this bill was considered 
back in the 106th Congress, opponents brought forth a number of 
claimed horror stories where injured workers would be, in their 
words, harmed by this bill. However, upon closer inspection, 
the facts of many of these cases as they actually were, 
including an employer's modification of machinery, as well as 
an employee's contributory negligence in the accident in some 
instances, were conveniently eliminated from description of the 
cases.
    I am not going to try and refute every case that the 
opponents of this bill bring forth, but I will say that no one 
will go uncompensated under this bill, and it will protect a 
number of innocent manufacturers who face bankruptcy from 
meritless suits.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Are there further amendments? If 
there are no further amendments, a reporting quorum is present.
    Those in favor of the motion to report the bill, H.R. 3509, 
favorably as amended will say ``aye.''
    Those opposed, ``no.''
    The ayes appear to have it.
    Mr. Schiff. Mr. Chairman, I would like a recorded vote.
    Chairman Sensenbrenner. A recorded vote is ordered. Those 
in favor of reporting the bill as amended favorably will, at 
the call of your name, answer ``aye''; those opposed, ``no.''
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith?
    [No response.]
    Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte?
    [No response.]
    Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye.
    Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Mr. Flake?
    [No response.]
    Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman?
    Mr. Bermam. No.
    The Clerk. Mr. Berman, no.
    Mr. Boucher?
    [No response.]
    Mr. Nadler?
    [No response.]
    Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson-Lee?
    [No response.]
    Ms. Waters?
    [No response.]
    Mr. Meehan?
    [No response.]
    Mr. Delahunt?
    [No response.]
    Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Van Hollen?
    [No response.]
    Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz, no.
    Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their votes? The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. I vote aye.
    The Clerk. Mr. Smith, aye.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    While the clerk is adding it up, the Chair intends to 
recess the Committee once we announce the result of the vote, 
and pleads to the Members to be prompt coming back immediately 
after the vote on the Pledge Protection bill.
    The gentleman from Alabama, Mr. Bachus, wishes to vote? 
Okay. Further Members who wish to cast or change their vote?
    The clerk will report.
    The Clerk. Mr. Chairman, there are 21 ayes----
    Chairman Sensenbrenner. The gentleman from Maryland, Mr. 
Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 21 ayes and 12 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the bill will be reported 
favorably to the House in the form of a single amendment in the 
nature of a substitute, incorporating the amendments adopted 
here.
    Without objection, the staff is directed to make any 
technical and conforming changes, and all Members will be given 
2 days as provided by the House rules in which to submit 
additional dissenting, supplemental or minority views.
    Without objection, the Committee is recessed until 
immediately after the vote on final passage of the pledge bill. 
The Chair pleads with the Members to be prompt. We have three 
more bills we have to act on today, and we will be here until 
we are finished with them.
    Without objection, this Committee stands recessed.
    [Intervening business.]
    Without objection, the Committee stands adjourned.
    [Whereupon, at 4:02 p.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    We strongly oppose H.R. 3509, the ``Workplace Goods Job 
Growth Competitiveness Act of 2005,'' which would preempt state 
law to establish a nationwide 12-year statute of repose for 
``durable goods,''\1\ thereby barring any recovery by employees 
for death or personal injury stemming from an accident to such 
goods.\2\ H.R. 3509 is opposed by organized labor groups, such 
as the AFL-CIO\3\ and public interest groups, such as Public 
Citizen, Alliance for Justice, Center for Justice & Democracy, 
Consumer Federation of America, Consumers Union, Public 
Citizen, U.S. Public Interest Research Group\4\, and the 
National Conference of State Legislatures.\5\
---------------------------------------------------------------------------
    \1\``Durable goods'' are defined as products that are expected to 
last more than three years and that are used in a trade or business, or 
by the government.
    \2\The legislation does not apply to workers if they are ineligible 
to receive workers' compensation, or if the injury involves a ``toxic 
harm.'' The legislation also provides exceptions for (1) motor 
vehicles, vessels, aircraft or trains used primarily to transport 
passengers for hire, (2) actions based on an express warranty in 
writing for longer than 12 years, and (3) the limitation period 
established by the General Aviation Revitalization Act of 1994. The 
statute of repose, which applies 12 years after the first purchase or 
lease of the durable good, also applies to employer actions with regard 
to ``property damage,'' but not other types of harm to employers, such 
as business interruption.
    \3\See Letter from William Samuel, Director, Department of 
Legislation, American Federation of Labor and Congress of Industrial 
Organizations (``AFL-CIO''), to Chairman James Sensenbrenner, Jr. And 
Ranking Member John Conyers Jr. (March 27, 2006) (on file with the 
Democratic staff of the House Judiciary Committee) [hereinafter AFL-CIO 
Letter].
    \4\See Letter from Alliance for Justice, Center for Justice & 
Democracy, Consumer Federation of America, Consumers Union, Public 
Citizen, and U.S. Public Interest Research Group (``U.S. PIRG'') to 
House Judiciary Committee Members (March 28, 2006) (on file with the 
Democratic staff of the House Judiciary Committee) [Public Interest 
Group Letter].
    \5\See Letter from the National Conference of State Legislatures to 
Chairman James Sensenbrenner and Ranking Member John Conyers, Jr. of 
the House Committee on the Judiciary (March 28, 2006) (on file with the 
Democratic staff of the House Judiciary Committee).
---------------------------------------------------------------------------
    Like many tort ``reforms'' being sought by the majority, 
H.R. 3509 would discourage corporate responsibility by cutting 
off the rights of injured victims to obtain full recovery. A 
statute of repose is perhaps the most perilous type of such 
tort ``reform'' because it operates to totally cut off any 
right of action against the manufacturer after a 12-year period 
has elapsed, regardless of whether or not the potential injured 
party has suffered an injury yet and regardless of how long the 
product was built to last.\6\ The legislation also raises a 
host of serious federalism and constitutional issues. For these 
and the reasons set forth herein, we dissent from H.R. 3509.
---------------------------------------------------------------------------
    \6\See generally, 63a Am. Jur. 2d, Products Liability 
Sec. Sec. 921-923; Am. Law. Prod. Liab. 3d, Limitation of Actions: 
Statues of Repose Sec. Sec. 47:55-47:76
---------------------------------------------------------------------------
I. H.R. 3509 harms American workers by denying them adequate 
        compensation for their injuries and treating them differently 
        than other harmed parties
    H.R. 3509 denies workers adequate compensation for their 
injuries. As the AFL-CIO has written, the bill ``is purely and 
simply an effort to discriminate against workers injured or 
killed on the job by preventing them or their survivors from 
recovering damages from a manufacturer or seller of durable 
goods more than 12 years after the durable good was delivered 
to its first purchaser or lessee.''\7\
---------------------------------------------------------------------------
    \7\See AFL-CIO Letter.
---------------------------------------------------------------------------
    While H.R. 3509 applies only to injured workers who are 
covered by workers' compensation, for those workers, recovery 
for harm suffered can be drastically limited. This is because 
state workers' compensation laws usually only provide for 
medical costs and limited disability payments--they do not 
provide for compensation for non-economic damages, such as loss 
of fertility, loss of a limb, permanent disfigurement and other 
forms of pain and suffering.\8\ As the public interest groups 
explain in their letter:
---------------------------------------------------------------------------
    \8\See, e.g., Health v. Sears, Roebuck & Co., 464 A.2d 288 (N.H. 
1983). Even in the area of economic damages, workers compensation laws 
can be lacking. For example, a 1998 study of California's workers' 
compensation laws by the RAND Institute for Civil Justice concluded 
that because wage losses persist and benefit payments run out, workers 
compensation benefits compensated less than 40% of workers' full 
economic losses over a five-year period after the accident.

          H.R. 3509 would override many state laws that allow 
        injured workers to sue manufacturers of older defective 
        products and recover full damages for the harm caused. 
        It would discriminate against workers, especially those 
        in states that have cut their workers' compensation 
        benefits in recent years. Workers who do receive 
        workers' compensation benefits will, nonetheless, be 
        denied any damages for their pain and suffering.\9\
---------------------------------------------------------------------------
    \9\Public Interest Group Letter.

    H.R. 3509 also unfairly singles out American workers, 
treating them differently from other injured persons. Thus, for 
example, if a 25-year old elevator malfunctions and crashes, 
killing a custodian and a visitor, the bill would allow the 
visitor's family to sue, but would bar the custodian's family 
from seeking compensation in court. This is illogical and 
inequitable and provides an unjustified economic windfall to 
the elevator manufacturer.
    Moreover, it is inherently unfair in that the statute of 
repose only applies to workers injured on the job--while 
business owners would still have their full rights under state 
law to recover for business interruptions due to defective 
machinery.\10\ As the professor Andrew Popper states in his 
testimony before the Committee on the Judiciary, Subcommittee 
on Commercial and Administrative Law:
---------------------------------------------------------------------------
    \10\Although, as noted, businesses would be entitled to bring 
business interruption lawsuits, they would be barred from recovery for 
property damage when older equipment fails and damages the workplace, 
and they would no longer be able to recover the funds paid to an 
injured employee through workers' compensation. Currently, employers 
may recover these workers' compensation payments from any damages 
awarded the employee in court, ensuring that employers and workers' 
compensation systems do not subsidize manufacturers of defective 
products.

          The bill punishes consumers and workers, not for 
        filing at the wrong time or bringing claims with 
        questionable merit, but rather for being injured by a 
        defective product at the wrong moment in time.\11\
---------------------------------------------------------------------------
    \11\See Hearing on H.R. 3509, the Workplace Goods Job Growth and 
Competitiveness Act of 2005 Before the Comm. on Judiciary, Subcomm. on 
Commercial and Administrative Law (March 14, 2006) (Statement of 
Professor Andrew Popper, American University, Washington College of 
Law) [hereinafter professor Popper Testimony].

    Our concerns are not theoretical, they are very real. The 
following are just two examples of actual cases that would have 
been completely barred under this legislation.\12\
---------------------------------------------------------------------------
    \12\See Hearing on H.R. 1875 and H.R. 2005 Before the Comm. On the 
Judiciary, 106th Cong. (1999) (Statement of Tom Bantle, Legislative 
Attorney, Public Citizen) [hereinafter Public Citizen Testimony].
---------------------------------------------------------------------------
    
 In California in 1995, Reginaldo Gonzalez, 47, was 
operating a printing press designed and manufactured in 1973 by 
Heidelberg, Inc., when his hand became caught in the rollers, 
resulting in the traumatic amputation of his arm at the 
shoulder. The company added safeguards to this printing press 
model in 1974 and again in 1980, but never took steps to notify 
prior owners of the machine's dangerous defect. As a result, by 
1995, at least eight pressmen had their arms amputated or 
crushed while operating pre-1974 presses. A jury found the 
early design defective and the company's conduct negligent, and 
awarded Gonzalez $4.1 million. Under H.R. 309, this case would 
have been barred, and the manufacturer of the rollers would 
have no legal responsibility to minimize the dangers inherent 
in their product.
    
 In Massachusetts, on April 13, 1984, John Jones 
was bending material in a press brake designed and manufactured 
by Cincinnati, Inc., in 1966 when the unguarded press suddenly 
closed, crushing his hands. The court awarded Jones $500,000, 
finding that Cincinnati was aware that press operators would 
have their hands in vulnerable positions while operating this 
machine, and that the manufacturer was reckless for not 
incorporating safeguards (available to the manufacturer in 
1966) into the press's design that could have prevented the 
accident. Again, under H.R. 3509, Mr. Jones would have been 
awarded no compensation for the loss of this hands, other than 
the minimal recovery available under workers compensation.
    In addition to harming workers, the bill transfers legal 
responsibility from the manufacturer of the machine tool to the 
employer, providing a legal disincentive for such manufacturers 
to publicize and fix defective older products that are still in 
use. Moreover, under the legislation a fix that requires a new 
component might set a new 12-year clock running, providing 
further disincentives for a manufacturer to cure product 
defects late in the statutory period.
II. H.R. 3509 raises serious federalism as well as possible 
        constitutional concerns
    We are also concerned by the majority's failure to consider 
or take into account the very serious federalism and 
constitutional concerns raised by this legislation. Since 
Congress has traditionally deferred to the states regarding 
tort law in general and product liability law in particular, 
preempting state law regarding statutes of repose would 
constitute a dramatic shift in this balance.\13\ Noting this 
federalism concern, Assistant Attorney General Eleanor D. 
Acheson testified at the hearing of a previous incarnation of 
this legislation:
---------------------------------------------------------------------------
    \13\Supporters may argue that the General Aviation Revitalization 
Act of 1994 should serve as a precedent with its federal 18 year 
statute of repose, however, that law was specifically crafted to react 
to the specific circumstances in the general aviation industry, such as 
ubiquitous federal regulation and the fact that private planes are 
fully rebuilt on a periodic basis.

         This proposed national statute of repose would 
        extinguish valid lawsuits that would otherwise be 
        permitted to proceed under state law. This sort of 
        intrusion into the availability of state tort remedies 
        is inappropriate absent compelling and well-documented 
        evidence that the defendants' need for civil immunity 
        outweighs the strong policy that individuals and 
        businesses be able to seek relief for their 
        injuries.\14\
---------------------------------------------------------------------------
    \14\See Hearing on H.R. 1875 and H.R. 2005 Before the Comm. On the 
Judiciary, 106th Cong. (1999)(Statement of U.S. Department of Justice 
Assistant Attorney General Eleanor D. Acheson)[hereinafter DOJ 
Testimony].

    It should therefore come as no surprise that a whole host 
of constitutional concerns are also raised by the legislation. 
First, the bill--which contains no interstate commerce 
jurisdictional requirement--may run afoul of the constitutional 
requirement under Article I, clause 8,\15\ limiting 
congressional authority to the regulation of interstate 
commerce and under the Tenth Amendment, reserving all of the 
unenumerated powers to the States.\16\ This is a particular 
concern in light of recent Supreme Court decisions such as 
Lopez v. United States (striking down a federal gun-free school 
zone law which had no interstate commerce requirement),\17\ New 
York v. United States\18\ and Printz v. United States\19\ in 
which the Court showed extreme scepticism regarding Congress's 
ability to dictate state legal policies.
---------------------------------------------------------------------------
    \15\Article I, Section 8 of the Constitution provides, inter alia, 
``Congress shall have Power . . . To regulate Commerce with foreign 
Nations and among the several States . . . .'' U.S. Const. art I, 
Sec. 8, cl. 3.
    \16\The Tenth Amendment provides ``[t]he powers not delegated to 
the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people.'' 
U.S. Const. amend X.
    \17\514 U.S. 549 (1995). In Lopez, one of the problems with the 
school gun ban was that it contained ``no express jurisdictional 
element which might limit its reach to a discrete set of firearms 
possessions that additionally have an explicit connection with or 
effect on interstate commerce.'' When Congress acted in 1996 to remedy 
the constitutional infirmity in the school gun ban invalidated by 
Lopez, it limited the law to firearms that have ``moved in or that 
otherwise [affect] interstate or foreign commerce.'' 18 U.S.C.A. 
922(q)(2)(A) (1994) (amended 1996). See also, Employers Liability 
Cases, 207 U.S. 463 (1907) (striking down federal tort law concerning 
common carriers which preempted state tort law on interstate commerce 
grounds); T.R. Goldman, Lopez Gives Tort Reform a New Weapon, Legal 
Times, May 8, 1995, Tort Reform Notebook, at 2 (quoting Harvard Law 
School Professor Laurence Tribe for the proposition that ``Lopez is a 
reminder that the commerce clause is not a blank check. As such, it 
will operate to at least raise significant questions about some of the 
elements of proposed tort reforms pending in Congress'').
    \18\505 U.S. 144 (1992) (invalidating a federal law requiring 
States to assume ownership of radioactive waste or accept legal 
liability for damages caused by the waste because it was found to 
``commandeer the legislative processes of the States'').
    \19\521 U.S. 898; 117 S. Ct. 2365; 138 L.Ed. 2d 914; 65 U.S.L.W, 
4731 (U.S. June 27, 1997)(invalidating portions of the Brady Act 
requiring local law enforcement officials to conduct background checks 
on prospective gun purchasers).
---------------------------------------------------------------------------
    There is also the potential that H.R. 3509 may implicate 
Fifth Amendment due process\20\ and Seventh Amendment right to 
trial\21\ issues. The due process concern stems from the fact 
that the leading Supreme Court case, Duke Power Co. v. Carolina 
Envtl. Study Group,\22\ left open the question as to whether it 
is was necessary for federal tort laws to provide an offsetting 
legal benefit or quid pro quo to justify the deprivation of 
tort rights (which the legislation does not appear to do). As 
for the Seventh Amendment, although the right to jury trial has 
been found not to apply to federal limitations imposed on state 
courts, the Seventh Amendment could apply to diversity cases 
brought in federal court, particularly if a statute of repose 
is seen as extinguishing a ``common law'' right.\23\ In this 
regard, it is telling that in nearly half of the states that 
have enacted product liability statutes of repose, the state 
supreme courts have overturned them because they were found to 
violate state constitutional requirements relating to due 
process, equal protection and open access to courts.\24\
---------------------------------------------------------------------------
    \20\The Fifth Amendment provides that no person shall be ``deprived 
of life, liberty, or property without due process of law,'' a 
proscription which has been held to include an equal protection 
component. U.S. Const. amend. V.
    \21\The Seventh Amendment provides, ``[i]n suits at common law, 
where the value in controversy shall exceed twenty dollars, the right 
of trial by jury shall be preserved, and no fact tried by a jury shall 
be otherwise re-examined in any Court of the United States, than 
according to the rules of the common law.'' U.S. Const. amend VII.
    \22\439 U.S. 59, 87-88 (1978) (upholding Price-Anderson Act which, 
inter alia, capped liability at federally supervised nuclear power 
plants and mandated waiver of defenses in event of nuclear accident).
    \23\See Tull v. United States where the Seventh Amendment was found 
not to apply to the statutory civil penalty caps in the Clean Water 
Act, 481 U.S. 412 (1987), since the assessment of civil penalties 
involved neither the ```substance of a common-law right to a trial by 
jury' nor a `fundamental element of a jury trial.'' On the other hand, 
in the 1935 case Dimick v. Schiedt, 293 U.S. 474 (1935), the Court 
found unconstitutional the Federal practice of additur, because 
increasing the amount of a jury award was a question of ``fact'' 
protected by the Seventh Amendment.
    \24\ See e.g., Lankford v. Sullivan, Long & Hagarty, 416 So.2d. 996 
(Ala. 1982), Hazine v. Montgomery Elevator Co. 861 P.2d 625 (Ariz. 
1993), Heath v. Sears, Roebuck & Co., 464 A.2d 288 (N.H. 1983). Other 
states throwing out statute of repose laws include Kentucky, North 
Dakota, Rhode Island, South Dakota, and Utah.
---------------------------------------------------------------------------

                               CONCLUSION

    H.R. 3509 creates a statute of repose that unfairly singles 
out American workers and denies them full recovery for their 
injuries. Under the legislation, American workers maimed and 
killed by defective products would find themselves limited to 
workers compensation remedies and totally barred from obtaining 
damages for their pain and suffering, unlike every other 
category of injured person.
    This legislation is being propounded by the majority in the 
absence of any credible evidence that a systemic problem exists 
with regard to lawsuits concerning durable goods and with no 
corresponding understanding of the bill's impact on workers, 
their families, and their employers. In our view, we do not 
believe a threshold has been met which would justify such a 
significant intrusion into the state product liability system.
III. Description of amendments offered by Democratic members
    During the markup, there were nine amendments offered by 
Democratic members. One amendment by Mr. Conyers, five 
amendments by Mr. Scott, one by Mr. Schiff, one by Ms. Jackson-
Lee and one by Ms. Waters.
    1. Amendment offered by Rep. Conyers:

          Description of amendment: The amendment would set 
        forth requirements for notice to employees before a 
        manufacturer or seller sends work outside the United 
        States, and would exempt such companies from protection 
        under this bill if the requirements are not met.
          The amendment was defeated by a vote of 12 to 16. 
        Ayes: Representatives Conyers, Berman, Nadler, Scott, 
        Watt, Jackson-Lee, Waters, Meehan, Schiff, Sanchez, Van 
        Hollen, and Wasserman Schultz. Nays: Representatives 
        Coble, Smith, Goodlatte, Chabot, Lungren, Jenkins, 
        Cannon, Hostettler, Inglis, Green, Forbes, King, 
        Feeney, Franks, Gohmert, and Sensenbrenner.

    2. Amendment offered by Rep. Scott:

          Description of amendment: The amendment would exempt 
        from the bill's purview any action arising from the 
        defendant's ``willfull, reckless, or wanton disregard 
        for life or property.''
          The amendment was defeated by a vote of 14 to 15. 
        Ayes: Representatives Conyers, Berman, Nadler, Scott, 
        Watt, Lofgren, Jackson-Lee, Waters, Meehan, Weiner, 
        Schiff, Sanchez, Van Hollen, and Wasserman Schultz. 
        Nays: Representatives Coble, Goodlatte, Chabot, 
        Lungren, Jenkins, Cannon, Hostettler, Inglis, Green, 
        Keller, Forbes, King, Feeney, Franks, and 
        Sensenbrenner.

    3. Amendment offered by Rep. Schiff:

          Description of amendment: The amendment would exempt 
        from the bill's purview a civil action against a 
        manufacturer or seller of a durable good who 
        ``fraudulently concealed a defect in the durable 
        good.''
          The amendment was agreed to by voice vote.

    4. Amendment offered by Rep. Scott:

          Description of amendment: The amendment would preempt 
        any state law that establishes a statute of repose for 
        a period less than 12 years. It would also clarify that 
        the bill does not preempt any state law that prohibits 
        a statute of repose or impose a statute of repose on 
        states that do not have such statutes already in place.
          The amendment was defeated by voice vote.

    5. Amendment offered by Rep. Scott:

          Description of amendment: The amendment would change 
        the statute of repose in the bill from a term of 12 
        years to 18 years.
          The amendment was defeated by voice vote.

    6. Amendment offered by Ms. Jackson-Lee:

          Description of amendment: The amendment would exempt 
        from the bill's purview a civil action against a 
        manufacturer or seller that ``on or after the date of 
        the enactment of this Act, does not pay its employees a 
        minimum wage of at least $7.25 per hour.''
          The amendment was defeated by a vote of 14 to 20. 
        Ayes: Representatives Conyers, Berman, Nadler, Scott, 
        Watt, Lofgren, Jackson-Lee, Waters, Meehan, Wexler, 
        Weiner, Schiff, Sanchez, and Wasserman Schultz. Nays: 
        Representatives Coble, Smith, Gallegly, Goodlatte, 
        Chabot, Lungren, Jenkins, Cannon, Bachus, Hostettler, 
        Inglis, Keller, Issa, Forbes, King, Feeney, Franks, 
        Pence, Gohmert, and Sensenbrenner.

    7. Amendment offered by Ms. Waters:

          Description of amendment: The amendment would exempt 
        from the bill's purview any action arising ``out of an 
        accident involving a durable good if the use of such 
        durable good by the claimant is required by the 
        claimant's employer.''
          The amendment was defeated by a vote of 15 to 20. 
        Ayes: Representatives Conyers, Berman, Nadler, Scott, 
        Watt, Lofgren, Jackson-Lee, Waters, Meehan, Wexler, 
        Weiner, Schiff, Sanchez, Van Hollen, and Wasserman 
        Schultz. Nays: Representatives Coble, Gallegly, 
        Goodlatte, Chabot, Lungren, Jenkins, Cannon, Bachus, 
        Hostettler, Inglis, Green, Keller, Issa, Forbes, King, 
        Feeney, Franks, Pence, Gohmert, and Sensenbrenner.

    8. Amendment offered by Mr. Scott:

          Description of amendment: The amendment would exempt 
        from the bill's purview any action arising ``out of an 
        accident involving a durable good that has a normal 
        life expectancy of more than 12 years.''
          The amendment was defeated by voice vote.

    9. Amendment offered by Mr. Scott:

          Description of amendment: The amendment would strike 
        paragraph (a)(1) from Section 2, thereby allowing 
        actions for damage to property regardless of whether 
        the accident occurred more than 12 years after the date 
        on which the durable good was delivered.
          The amendment was defeated by voice vote.

                                   John Conyers, Jr.
                                   Bobby Scott.
                                   Zoe Lofgren.
                                   Bill Delahunt.
                                   Sheila Jackson-Lee.
                                   Martin Meehan.