§ 1604. Liability of biomaterials suppliers

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1998

   Biomaterials Access Assurance Act of 1998

   Pub. L. 105–230 § 5 · 112 Stat. 1519

   Enacted · 21 U.S.C. § 1604

   (Pub. L. 105–230, § 5, Aug. 13, 1998, 112 Stat. 1524.)

   Source evidence

   Code source credit
   (Pub. L. 105–230, § 5, Aug. 13, 1998, 112 Stat. 1524.)

   Enacted provision · exact public law section
   SEC. 5. 21 USC 1604. LIABILITY OF BIOMATERIALS SUPPLIERS. (a) In General.— Except as provided in section 7, a biomaterials supplier shall not be liable for harm to a claimant caused by an implant unless such supplier is liable— (1) as a manufacturer of the implant, as provided in subsection (b); (2) as a seller of the implant, as provided in subsection (c); or (3) for furnishing raw materials or component parts for the implant that failed to meet applicable contractual requirements or specifications, as provided in subsection (d). (b) Liability as Manufacturer.— (1) In General.— A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable for harm to a claimant caused by an implant if the biomaterials supplier is the manufacturer of the implant. (2) Grounds for liability.— The biomaterials supplier may be considered the manufacturer of the implant that allegedly caused harm to a claimant only if the biomaterials supplier— (A) (i) registered or was required to register with the Secretary pursuant to section 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360) and the regulations issued under such section; and (ii) included or was required to include the implant on a list of devices filed with the Secretary pursuant to section 510( j) of such Act (21 U.S.C. 360( j)) and the regulations issued under such section; (B) is the subject of a declaration issued by the Secretary pursuant to paragraph (3) that states that the supplier, with respect to the implant that allegedly caused harm to the claimant, was required to— (i) register with the Secretary under section 510 of such Act (21 U.S.C. 360), and the regulations issued under such section, but failed to do so; or (ii) include the implant on a list of devices filed with the Secretary pursuant to section 510(j) of such Act (21 U.S.C. 360(j)) and the regulations issued under such section, but failed to do so; or (C) is related by common ownership or control to a person meeting all the requirements described in subparagraph (A) or (B), if the court deciding a motion to dismiss in accordance with section 6(c)(3)(B)(i) finds, on the basis of affidavits submitted in accordance with section 6, that it is necessary to impose liability on the biomaterials supplier as a manufacturer because the related manufacturer meeting the requirements of subparagraph (A) or (B) lacks sufficient financial resources to satisfy any judgment that the court feels it is likely to enter should the claimant prevail. (3) Administrative Procedures.— (A) In general.— The Secretary may issue a declaration described in paragraph (2)(B) on the motion of the Secretary or on petition by any person, after providing— (i) notice to the affected persons; and (ii) an opportunity for an informal hearing. (B) Docketing and final decision.— Immediately upon receipt of a petition filed pursuant to this paragraph, the Secretary shall docket the petition. Not later than Deadline. 120 days after the petition is filed, the Secretary shall issue a final decision on the petition. (C) Applicability of statue of limitations.— Any applicable statute of limitations shall toll during the period from the time a claimant files a petition with the Secretary under this paragraph until such time as either (i) the Secretary issues a final decision on the petition, or (ii) the petition is withdrawn. (D) Stay pending petition for declaration.— If a claimant has filed a petition for a declaration with respect to a defendant, and the Secretary has not issued a final decision on the petition, the court shall stay all proceedings with respect to that defendant until such time as the Secretary has issued a final decision on the petition. (c) Liability as Seller.— A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable as a seller for harm to a claimant caused by an implant only if— (1) the biomaterials supplier— (A) held title to the implant and then acted as a seller of the implant after its initial sale by the manufacturer; or (B) acted under contract as a seller to arrange for the transfer of the implant directly to the claimant after the initial sale by the manufacturer of the implant; or (2) the biomaterials supplier is related by common ownership or control to a person meeting all the requirements described in paragraph (1), if a court deciding a motion to dismiss in accordance with section 6(c)(3)(B)(ii) finds, on the basis of affidavits submitted in accordance with section 6, that it is necessary to impose liability on the biomaterials supplier as a seller because the related seller meeting the requirements of paragraph (1) lacks sufficient financial resources to satisfy any judgment that the court feels it is likely to enter should the claimant prevail. (d) Liability for Failure to Meet Applicable Contractural Requirements or Specification.— A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable for harm to a claimant caused by an implant if the claimant in an action shows, by a preponderance of the evidence, that— (1) the biomaterials supplier supplied raw materials or component parts for use in the implant that either— (A) did not constitute the product described in the contract between the biomaterials supplier and the person who contracted for the supplying of the product; or (B) failed to meet any specifications that were— (i) accepted, pursuant to applicable law, by the biomaterials supplier; (ii) published by the biomaterials supplier; (iii) provided by the biomaterials supplier to the person who contracted for such product; (iv) contained in a master file that was submitted by the biomaterials supplier to the Secretary and that is currently maintained by the biomaterials supplier for purposes of premarket approval of medical devices; or (v) included in the submissions for purposes of premarket approval or review by the Secretary under section 510, 513, 515, or 520 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360, 360c, 360e, or 360j), and received clearance from the Secretary if such specifications were accepted, pursuant to applicable law, by the biomaterials supplier; and (2) such failure to meet applicable contractual requirements or specifications was an actual and proximate cause of the harm to the claimant.

1 of 1 references resolved to an enrolled provision