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Floor Packet Page No. 199
Amend CSHB 4, Article 5, as follows:
On page 41, line 11 through page 42, line 19 strike Sec.
82.009 and substitute a new Sec. 82.009 to read as follows:
Sec. 82.009. COMPLIANCE WITH GOVERNMENT STANDARDS.
(a) In a products liability action brought against a product
manufacturer, distributor, or seller, there is a rebuttable
presumption that the product manufacturer, distributor, or seller
is not liable for any injury to a claimant caused by some aspect of
the formulation, labeling, or design of a product if the product
manufacturer, distributor, or seller establishes that the
product's formula, labeling, or design compiled with mandatory
safety standards or regulations adopted and promulgated by the
federal government, or any agency of the federal government, that
were applicable to the product at the time of manufacture, and that
governed the particular product risk allegedly by the claimant to
have caused harm. The claimant may rebut this presumption by
establishing that:
(1) the mandatory federal safety standards or
regulations applicable to the product were inadequate to protect
the public from unreasonable risks of injury or damage;
(2) the manufacturer, before or after marketing the
product, withheld from or misrepresented to the government or
agency information that was material and relevant to the
performance of the product and was causally related to the
claimant's injury;
(3) Congress included a "savings" provision, intending
to permit state common law to apply to the field being regulated;
(4) with respect to the manufacturer of a motor vehicle,
or a component thereof, after the product was sold and before the
alleged injury occurred, that the manufacturer failed to provide
the federal government, or the governing agency of the federal
government, with all incidents of which the manufacturer receives
actual notice which involve fatalities or serious injuries which
are alleged or proven to have been caused by a possible defect in
such manufacturer's motor vehicle or motor vehicle equipment in the
United States, or in a foreign country when the possible defect is
in a motor vehicle or motor vehicle equipment that is identical or
substantially similar to a motor vehicle or motor vehicle equipment
offered for sale in the United States; or
(5) with respect to the manufacture of a tire, that the
manufacturer failed to comply with the obligations set forth in the
Transportation Recall Enhancement, Accountability, and
Documentation (TREAD) Act.
(b) In a products liability action brought against a product
manufacturer, distributor or seller, there is a rebuttable
presumption that the product manufacturer, distributor, or seller
is not liable for any injury to a claimant allegedly caused by some
aspect of the formulation, labeling, or design of a product if the
product manufacturer, distributor, or seller establishes that the
product was subject to pre-market licensing or approval by the
federal government or an agency of the federal government, that the
manufacturer complied with all of the government's or agency's
procedures and requirements with respect to pre-market licensing or
approval, and that after full consideration of the product's risks
and benefits the product was approved or licensed for sale by the
government or agency. The claimant may rebut this presumption by
establishing that:
(1) the standards or procedures used in the particular
pre-market approval or licensing process were inadequate to protect
the public from unreasonable risks of injury or damage;
(2) the manufacturer, before or after pre-market
approval or licensing of the product, withheld from or
misrepresented to the government or agency information that was
material and relevant to the performance of the product and was
causally related to the claimant's injury;
(3) the Congress included a "savings" provisions,
intending to permit state common law to apply to the field being
regulated; or
(4) with respect to the manufacturer of a drug or
medical device, after the product was sold and before the alleged
injury occurred, that the manufacturer failed to provide the
federal government, or the governing agency of the federal
government, with all incidents of which the manufacturer receives
actual notice which involve fatalities or serious injuries which
are alleged or proved to have been caused by a possible defect in
such manufacturer's product.
(c) The rebuttal presumption created in sections (a) and (b)
does not exist if the claimant demonstrates that the product has
been withdrawn from the market.
(d) The rebuttable presumption created in sections (a) and
(b) does not exist if the claimant demonstrates that the product
manufacture acted with gross neglect or malice.
(e) This section does not extend to manufacturing flaws or
defects even though the product manufacturer has complied with all
quality control and manufacturing practices mandated by the state
or federal governments or agencies.