PRINTER'S NO. 1921
No. 1620 Session of 1995
INTRODUCED BY ROEBUCK, CLARK, LaGROTTA, FAIRCHILD, MIHALICH, GIGLIOTTI, COLAIZZO, STABACK, CARN, JAROLIN, BELARDI, DiGIROLAMO, McGEEHAN, DeLUCA, COWELL, RAMOS, L. I. COHEN, MELIO, SERAFINI, WOZNIAK, TRUE, TRELLO, MUNDY, J. TAYLOR, JOSEPHS AND ITKIN, MAY 10, 1995
REFERRED TO COMMITTEE ON JUDICIARY, MAY 10, 1995
AN ACT 1 Imposing civil liability on persons participation in the illegal 2 drug market; providing for the recovery of damages by persons 3 and entities; and establishing the procedure for bringing an 4 action to recover damages. 5 TABLE OF CONTENTS 6 Section 1. Short title. 7 Section 2. Definitions. 8 Section 3. Imposition of liability for participation in 9 illegal drug market. 10 Section 4. Recovery of damages. 11 Section 5. Action by individual drug user. 12 Section 6. Indemnification prohibited. 13 Section 7. Determination of illegal drug market target 14 community. 15 Section 8. Joinder of parties. 16 Section 9. Comparative negligence. 17 Sedtion 10. Action of contribution.
1 Section 11. Procedure at trial. 2 Section 12. Judgment procedure. 3 Section 13. Time for commencement of action. 4 Section 14. District attorney authorized to bring action. 5 Section 15. Stay of action. 6 Section 16. Effective date. 7 The General Assembly of the Commonwealth of Pennsylvania hereby 8 enacts as follows: 9 Section 1. Short title. 10 This act shall be known and may be cited as the Drug Dealer 11 Liability Act. 12 Section 2. Definitions. 13 The following words and phrases when used in this act shall 14 have the meanings given to them in this section unless the 15 context clearly indicates otherwise: 16 "Illegal drug." A drug, the distribution of which, is a 17 violation of the act of April 14, 1972 (P.L.233, No.64), known 18 as The Controlled Substance, Drug, Device and Cosmetic Act. 19 "Illegal drug market." The support system of illegal drug- 20 related operations, from production to retail sales, through 21 which an illegal drug reaches the user. 22 "Illegal drug market target community." The area described 23 under section 7. 24 "Individual drug user." The person whose illegal drug use is 25 the basis of an action brought under this act. 26 "Level one offense." Possession of one quarter ounce or 27 more, but less than four ounces, or distribution of less than 28 one ounce of a specified illegal drug, or possession of one 29 pound or 25 plants or more, but less than four pounds or plants, 19950H1620B1921 - 2 -
1 or distribution of less than one pound of marijuana. 2 "Level two offense." Possession of four ounces or more, but 3 less than eight ounces, or distribution of one ounce or more, 4 but less than two ounces, of a specified illegal drug, or 5 possession of four pounds or more or 50 plants or more, but less 6 than eight pounds or 75 plants, or distribution of more than one 7 pound but less than ten pounds of marijuana. 8 "Level three offense." Possession of eight ounces or more, 9 but less than 16 ounces, or distribution of two ounces or more, 10 but less than four ounces, of a specified illegal drug or 11 possession of eight pounds or more or 75 plants or more, but 12 less than 16 pounds or 100 plants, or distribution of more than 13 five pounds but less than ten pounds of marijuana. 14 "Level four offense." Possession of 16 ounces or more or 15 distribution of four ounces or more of a specified illegal drug 16 or possession of 16 pounds but or more or 100 plants or more or 17 distribution of ten pounds or more of marijuana. 18 "Participate in the illegal drug market." To distribute, 19 possess with an intent to distribute, commit an act intended to 20 facilitate the marketing or distribution of, or agree to 21 distribute, possess with an intent to distribute, or commit an 22 act intended to facilitate the marketing and distribution of an 23 illegal drug. The term does not include the purchase or receipt 24 of an illegal drug for personal use only. 25 "Period of illegal drug use." In relation to an individual 26 drug user, the time of first use by an individual of an illegal 27 drug to the accrual of the cause of action. The period of 28 illegal drug use is presumed to commence two years before the 29 cause of action accrues unless the defendant proves otherwise by 30 clear and convincing evidence. 19950H1620B1921 - 3 -
1 "Person." An individual, a governmental entity, corporation, 2 firm, trust, partnership, or incorporated or unincorporated 3 association, existing under or authorized by the laws of this 4 Commonwealth, another state or a foreign country. 5 "Place of illegal drug activity." In relation to an 6 individual drug user, each county in which the individual 7 possesses or uses an illegal drug or in which the individual 8 resides, attends school, or is employed during the period of the 9 illegal drug use of the individual, unless the defendant proves 10 otherwise by clear and convincing evidence. 11 "Place of participation." In relation to a defendant in an 12 action brought under this act, each county in which the person 13 participates in the illegal drug market or in which the person 14 resides, attends school, or is employed during the period of the 15 participation in the illegal drug market by the person. 16 "Specified illegal drug." Any drug,the distribution of 17 which, is a violation under the act of April 14, 1972 (P.L.233, 18 No.64), known as The Controlled Substance, Drug, Device and 19 Cosmetic Act. 20 Section 3. Imposition of liability for participation in illegal 21 drug market. 22 (a) General rule.--A person who knowingly participates in 23 the illegal drug market within this Commonwealth is liable for 24 civil damages under this act for injury resulting from use of an 25 illegal drug by that person. 26 (b) Exception.--A law enforcement officer or agency, the 27 Commonwealth or a person action at the direction of a law 28 enforcement officer or agency of the Commonwealth is not liable 29 for participating in the illegal drug market, if the 30 participation is in furtherance of an official investigation. 19950H1620B1921 - 4 -
1 Section 4. Recovery of damages. 2 (a) Persons entitled to recover.--One or more of the 3 following persons may bring an action for damages caused by use 4 of an illegal drug by an individual: 5 (1) A parent, legal guardian, child, spouse, or sibling 6 of the individual drug user. 7 (2) An individual who was exposed to an illegal drug in 8 utero. 9 (3) An employer of the individual drug user. 10 (4) A medical facility, insurer, governmental entity, 11 employer, or other entity that funds a drug treatment program 12 or employee assistance program for the individual drug user 13 or that otherwise expended money on behalf of the individual 14 drug user. 15 (b) Persons liable for damages.--A person entitled to bring 16 an action under this section may seek damages from one or more 17 of the following: 18 (1) A person who knowingly distributed, or knowingly 19 participated in the chain of distribution of, an illegal drug 20 that was actually used by the individual drug user. 21 (2) A person who knowingly participated in the illegal 22 drug market if: 23 (i) the place of the illegal drug activity by the 24 individual drug user is within the illegal drug market 25 target community of the defendant; 26 (ii) the participation of the defendant in the 27 illegal drug market was connected with the same type of 28 illegal drug used by the individual user; and 29 (iii) the defendant participated in the illegal drug 30 market at any time during the illegal drug use of the 19950H1620B1921 - 5 -
1 individual user. 2 (c) Elements of damages.--A person entitled to bring an 3 action under this section may recover all of the following 4 damages: 5 (1) Economic damages, including, but not limited to, the 6 cost of treatment and rehabilitation, medical expenses, loss 7 of economic or educational potential, loss of productivity, 8 absenteeism, support proximately caused by the illegal drug 9 use. 10 (2) Noneconomic damages, including, but not limited to, 11 physical and emotional pain, suffering, physical impairment, 12 emotional distress, mental and consortium, and other 13 nonpecuniary losses proximately caused by an individual's use of 14 an illegal drug. 15 (3) Exemplary damages. 16 (4) Reasonable attorney fees. 17 (5) Cost of suit, including but not limited to, 18 reasonable expenses for expert testimony. 19 Section 5. Action by individual drug user. 20 (a) Conditions for bringing action.--An individual drug user 21 shall not bring an action for damages caused by the use of an 22 illegal drug, except as otherwise provided in this section. An 23 individual drug user may bring an action for damages caused by 24 the use of an illegal drug only if all of the damages caused by 25 the use of an illegal drug only if all of the following 26 conditions are met: 27 (1) the individual personally discloses to narcotics 28 enforcement authorities, more than six months before filing 29 the actions, all the information known to the individual 30 regarding the individual's illegal drugs; 19950H1620B1921 - 6 -
1 (2) the individual has not used an illegal drug within 2 the six months before filing the action; and 3 (3) the individual continues to remain free of the use 4 an illegal drug throughout the pendency of the action. 5 (b) Persons against whom action may be brought.--A person 6 entitled to bring an action under this section may seek damages 7 only from a person who distributed, or is in the chain of 8 distribution of, an illegal drug that was actually used by the 9 individual drug user. 10 (c) Elements of damages.--A person entitled to bring an 11 action under this section may recover only the following 12 damages: 13 (1) economic damages, including, but not limited to, the 14 cost of treatment, rehabilitation, and medical expenses, loss 15 of economic or educational potential, loss of productivity, 16 absenteeism, accidents or injury, and other pecuniary loss 17 proximately caused by the person's illegal drug use; 18 (2) reasonable attorney fees; and 19 (3) costs of suit, including, but not limited to, 20 reasonable expenses for expert testimony. 21 Section 6. Indemnification prohibited. 22 A third party shall not pay damages under this act, or 23 provide a defense or money for a defense, on behalf of an 24 insured under a contract of insurance or indemnification. 25 Section 7. Determination of illegal drug market target 26 community. 27 A person whose participation in the illegal drug market 28 constitutes the following level offense shall be considered to 29 have the following illegal drug market target community: 30 (1) For a level one offense, the county in which the 19950H1620B1921 - 7 -
1 place of participation of the defendant is situated. 2 (2) For a level two offense, the target community 3 described in paragraph (1) along with all counties with a 4 border contiguous to that target community. 5 (3) For a level three offense, the target community 6 described in paragraph (2) plus counties with a border 7 contiguous to that target community. 8 (4) For a level four offense, the Commonwealth. 9 Section 8. Joinder of parties. 10 (a) Plaintiffs.--Two or more persons may join in action 11 under this act as plaintiffs if their respective actions have at 12 least one place of illegal drug activity in common and if any 13 portion of the period of illegal drug use overlaps with the 14 period of illegal drug use for every other plaintiff. 15 (b) Defendants.--Two or more persons may be joined in one 16 action under this act as defendants if those persons are liable 17 to at least one plaintiff. 18 (c) Common interest not required.--A plaintiff need not be 19 interested in defending against all the relief demanded. 20 Judgment may be given for one more plaintiffs according to their 21 respective liabilities. 22 Section 9. Comparative negligence. 23 (a) General rule.--An action by an individual drug user is 24 governed by the principles of comparative negligence attributed 25 to the plaintiff does not bar recovery but diminishes the award 26 of compensatory damages proportionally, according to the measure 27 of negligence attributed to the plaintiff. 28 (b) Burden of proof.--The burden of proving the comparative 29 negligence of the plaintiff is on the defendant, which shall be 30 shown by clear and convincing evidence. 19950H1620B1921 - 8 -
1 (c) Negligence not attributed to certain plaintiffs.-- 2 Comparative negligence shall not be attributed to a plaintiff 3 who is not an individual drug user. 4 Section 10. Action for contribution. 5 A person subject to liability under this act has a right of 6 action for contribution against another person subject to 7 liability under this act. Contribution may be enforced either in 8 the original action or any a separate action brought for that 9 purpose. A plaintiff may seek recovery in accordance with this 10 act and existing law against a person whom a defendant has 11 asserted a right of contribution. 12 Section 11. Procedure at trial. 13 (a) Burden of proof.--Proof of participation in the illegal 14 drug market in an action brought under this act shall be shown 15 by clear and convincing evidence. Except as otherwise provided 16 in this act, other elements of the cause of action shall be 17 shown by a preponderance of the evidence. 18 (b) Effect of conviction for drug law violation.--A person 19 against whom recovery is sought who has been convicted of a 20 violation of the act of April 14, 1972 (P.L.233, No.64), known 21 as The Controlled Substance, Drug, Device and Cosmetic Act, or 22 the Comprehensive Drug Abuse Prevention and Control Act (Public 23 Law 91-513, 84 Stat. 1236), is estopped from denying 24 participation in the illegal drug market. A conviction under the 25 State or Federal law is also prima facie evidence of the 26 participation of the person in the illegal drug market during 27 the two years preceding the date of an act giving rise to a 28 conviction. 29 (c) Absence of conviction not a bar.--The absence of 30 criminal drug conviction of a person against whom recovery is 19950H1620B1921 - 9 -
1 sought does not bar an action against that person. 2 Section 12. Judgment procedure. 3 (a) Prejudgment attachment.--A plaintiff under this act, 4 subject to subsection (c), may request an ex parte prejudgment 5 attachment order from the court against all assets of a 6 defendant sufficient to satisfy a potential award. If attachment 7 is instituted, a defendant is entitled to an immediate hearing. 8 Attachment may be lifted if the defendant demonstrates that the 9 assets will be available to cover a potential award. 10 (b) Exemption of property prohibited.--A person against whom 11 a judgment has been rendered under this act is not eligible to 12 exempt any property, of whatever kind, from process to levy or 13 process to execute on the judgment. 14 (c) Property subject to forfeiture action.--Any assets 15 sought to satisfy a judgment under this act that are named in a 16 forfeiture section or have been seized for forfeiture by any 17 Federal or State agency may not be used to satisfy a judgment 18 unless and until the assets have been released following the 19 conclusion of the forfeiture action or are released by the 20 agency that seized the assets. 21 Section 13. Time for commencement of action. 22 (a) General rule.--Except as otherwise provided in this 23 section, a claim under this act shall not be brought more than 24 two years after the cause of action accrues. A cause of action 25 accrues under this act when a person who may recover has reason 26 to know of the harm from illegal drug use that is the basis for 27 the cause of action and has reason to know that the illegal drug 28 use is the cause of the harm. 29 (b) Extension of time.--For a plaintiff, the statute of 30 limitations under this section is tolled when the individual 19950H1620B1921 - 10 -
1 potential plaintiff is incapacitated by the use of an illegal 2 drug to the extent that the individual cannot reasonably be 3 expected to seek recovery under this act or as otherwise 4 provided for by law. For a defendant, the statute of limitations 5 under this section is tolled until six months after the 6 individual potential defendant is convicted of a criminal drug 7 offense. 8 (c) Claims antedating act.--The statute of limitations under 9 this act for a claim based on participation in the illegal drug 10 market that occurred prior to the effective date of this act 11 does not begin to run until the effective date of this act. 12 Section 14. District attorney authorized to bring action. 13 A district attorney may represent the Commonwealth 14 subdivision in an action under this act. 15 Section 15. Stay of action. 16 On motion by a governmental agency involved in a drug 17 investigation or prosecution, an action brought under this act 18 shall be stayed until the completion of the criminal 19 investigation or prosecution that gave rise to the motion for 20 the stay of the action. 21 Section 16. Effective date. 22 This act shall take effect in 60 days. E9L42WMB/19950H1620B1921 - 11 -