PRINTER'S NO. 951
No. 848 Session of 1999
INTRODUCED BY GREENLEAF, BOSCOLA, COSTA, WAGNER, HOLL, KASUNIC AND TOMLINSON, APRIL 27, 1999
REFERRED TO JUDICIARY, APRIL 27, 1999
AN ACT 1 Imposing civil liability on persons participating in the illegal 2 drug market; providing for the recovery of damages by certain 3 persons; and establishing the procedure for bringing an 4 action to recover damages. 5 The General Assembly of the Commonwealth of Pennsylvania 6 finds and declares that: 7 (1) The purpose of this act is to provide a civil remedy 8 for damages to persons in a community injured as a result of 9 illegal drug use. These persons include parents, employers, 10 insurers, governmental entities and others who pay for drug 11 treatment or employee assistance programs, as well as infants 12 injured as a result of exposure to drugs in utero. 13 (2) This act will enable them to recover damages from 14 those persons in the community who have joined the illegal 15 drug market. 16 (3) A further purpose of this act is to shift, to the 17 extent possible, the cost of the damage caused by the 18 existence of the illegal drug market in a community to those
1 who illegally profit from that market. 2 (4) A further purpose of this act is to establish the 3 prospect of substantial monetary loss as a deterrent to those 4 who have not yet entered into the illegal drug distribution 5 market. 6 (5) A further purpose of this act is to establish an 7 incentive for drug users to identify and seek payment for 8 their own drug treatment from those dealers who have sold 9 drugs to the user in the past. 10 TABLE OF CONTENTS 11 Section 1. Short title. 12 Section 2. Definitions. 13 Section 3. Liability for participation in illegal drug market. 14 Section 4. Recovery of damages. 15 Section 5. Limited recovery of damages. 16 Section 6. Third party cases. 17 Section 7. Illegal drug market target community. 18 Section 8. Joinder of parties. 19 Section 9. Comparative negligence. 20 Section 10. Right of contribution. 21 Section 11. Procedure at trial. 22 Section 12. Judgment procedure. 23 Section 13. Time for commencement of action. 24 Section 14. Representation for Commonwealth and political 25 subdivisions. 26 Section 15. Stay of action. 27 Section 16. Effective date. 28 The General Assembly of the Commonwealth of Pennsylvania 29 hereby enacts as follows: 30 Section 1. Short title. 19990S0848B0951 - 2 -
1 This act shall be known and may be cited as the Drug Dealer 2 Liability Act. 3 Section 2. Definitions. 4 The following words and phrases when used in this act shall 5 have the meanings given to them in this section unless the 6 context clearly indicates otherwise: 7 "Illegal drug." A drug, the distribution of which is a 8 violation of State law. 9 "Illegal drug market." The support system of illegal drug- 10 related operations, from production to retail sales, through 11 which an illegal drug reaches an individual drug user. 12 "Illegal drug market target community." The geographical 13 area described under section 7. 14 "Individual drug user." The person whose use of an illegal 15 drug serves as the basis of an action brought under this act. 16 "Level one offense." Possession of one-quarter ounce or 17 more, but less than four ounces, or distribution of less than 18 one ounce of a specified illegal drug, or possession of one 19 pound or 25 plants or more, but less than four pounds or 50 20 plants, or distribution of less than one pound of marijuana. 21 "Level two offense." Possession of four ounces or more, but 22 less than eight ounces, or distribution of one ounce or more, 23 but less than two ounces, of a specified illegal drug, or 24 possession of four pounds or more or 50 plants or more, but less 25 than eight pounds or 75 plants, or distribution of more than one 26 pound but less than five pounds of marijuana. 27 "Level three offense." Possession of eight ounces or more, 28 but less than 16 ounces, or distribution of two ounces or more, 29 but less than four ounces, of a specified illegal drug or 30 possession of eight pounds or more or 75 plants or more, but 19990S0848B0951 - 3 -
1 less than 16 pounds or 100 plants, or distribution of more than 2 five pounds but less than ten pounds of marijuana. 3 "Level four offense." Possession of 16 ounces or more or 4 distribution of four ounces or more of a specified illegal drug 5 or possession of 16 pounds or more or 100 plants or more or 6 distribution of ten pounds or more of marijuana. 7 "Participates in the illegal drug market." To distribute, 8 possess with an intent to distribute, commit an act intended to 9 facilitate the marketing or distribution of, or agree to 10 distribute, possess with an intent to distribute, or commit an 11 act intended to facilitate the marketing and distribution of an 12 illegal drug. The term does not include the purchase or receipt 13 of an illegal drug for personal use only. 14 "Period of illegal drug use." In relation to an individual 15 drug user, the time of first use by the individual of an illegal 16 drug to the accrual of the cause of action. The period of 17 illegal drug use is presumed to commence two years before the 18 cause of action accrues unless the defendant proves otherwise by 19 clear and convincing evidence. 20 "Person." An individual, a governmental entity, corporation, 21 firm, trust, partnership, or incorporated or unincorporated 22 association existing under or authorized by the laws of this 23 Commonwealth, another state or a foreign country. 24 "Place of illegal drug activity." In relation to an 25 individual drug user, each county in which the individual 26 possesses or uses an illegal drug or in which the individual 27 resides, attends school or is employed during the period of the 28 illegal drug use of the individual, unless the defendant proves 29 otherwise by clear and convincing evidence. 30 "Place of participation." In relation to a defendant in an 19990S0848B0951 - 4 -
1 action brought under this act, each county in which that person 2 participates in the illegal drug market or in which that person 3 resides, attends school or is employed during the period that 4 that person participates in the illegal drug market. 5 "Specified illegal drug." Cocaine, heroin or methamphetamine 6 and any other drug, the distribution of which is a violation of 7 State law. 8 Section 3. Liability for participation in illegal drug market. 9 (a) General rule.--A person who knowingly participates in 10 the illegal drug market within this Commonwealth shall be liable 11 for civil damages under this act. A person may recover damages 12 under this act for injury resulting from an individual's use of 13 an illegal drug. 14 (b) Exception.--A law enforcement officer or agency, the 15 Commonwealth or a person acting at the lawful direction of a law 16 enforcement officer or agency of the Commonwealth may not be 17 liable for civil damages under this act if the Commonwealth, 18 such officer, agency or person participates in the drug market 19 to further an official investigation. 20 Section 4. Recovery of damages. 21 (a) Persons entitled to recover.--One or more of the 22 following persons may bring an action for damages caused by use 23 of an illegal drug by an individual drug user: 24 (1) A parent, legal guardian, child, spouse or sibling 25 of the individual drug user. 26 (2) An individual who was exposed to an illegal drug in 27 utero. 28 (3) An employer of the individual drug user. 29 (4) A medical facility, insurer, governmental entity, 30 employer or other entity that funds a drug treatment program 19990S0848B0951 - 5 -
1 or employee assistance program for the individual drug user 2 or that otherwise expends money on behalf of the individual 3 drug user. 4 (5) A person injured as a result of the willful, 5 reckless or negligent actions of an individual drug user. 6 (b) Persons liable for civil damages.--A person entitled to 7 bring an action under this section may seek damages from one or 8 more of the following: 9 (1) A person who knowingly distributed or knowingly 10 participated in the chain of distribution of an illegal drug 11 that was actually used by the individual drug user. 12 (2) A person who knowingly participated in the illegal 13 drug market if: 14 (i) the place of the illegal drug activity by the 15 individual drug user is within the illegal drug market 16 target community of the defendant; 17 (ii) the defendant participated in the illegal drug 18 market and was connected with the same type of illegal 19 drug used by the individual drug user; and 20 (iii) the defendant participated in the illegal drug 21 market at any time during the illegal drug use by the 22 individual drug user. 23 (c) Elements of civil damages.--A person entitled to bring 24 an action under this section may recover all of the following 25 civil damages: 26 (1) Economic damages, including, but not limited to, the 27 cost of treatment and rehabilitation, medical expenses, loss 28 of economic or educational potential, loss of productivity, 29 absenteeism, support expenses, accidents or injury and any 30 other pecuniary loss proximately caused by the illegal drug 19990S0848B0951 - 6 -
1 use. 2 (2) Noneconomic damages, including, but not limited to, 3 physical and emotional pain, suffering, physical impairment, 4 emotional distress, mental anguish, disfigurement, loss of 5 enjoyment, loss of companionship, services and consortium and 6 other nonpecuniary losses proximately caused by the illegal 7 drug use. 8 (3) Exemplary damages. 9 (4) Reasonable attorney fees. 10 (5) Cost of suit, including, but not limited to, 11 reasonable expenses for expert testimony. 12 Section 5. Limited recovery of damages. 13 (a) Conditions for bringing action.--An individual drug user 14 may bring and maintain an action for damages caused by the use 15 of an illegal drug only if all of the following conditions are 16 met: 17 (1) the individual drug user personally discloses to 18 narcotics enforcement authorities, more than six months 19 before bringing the action, all of the information known to 20 the individual drug user regarding the individual drug user's 21 source of illegal drugs; 22 (2) the individual drug user has not used an illegal 23 drug within the six months prior to filing the action; and 24 (3) the individual drug user does not use an illegal 25 drug throughout the pendency of the action. 26 (b) Persons against whom action may be brought.--An 27 individual drug user entitled to bring an action under this 28 section may seek damages only from a person who distributed or 29 is in the chain of distribution of an illegal drug that was 30 actually used by the individual drug user. 19990S0848B0951 - 7 -
1 (c) Elements of damages.--An individual drug user entitled 2 to bring an action under this section may recover only the 3 following damages: 4 (1) economic damages, including, but not limited to, the 5 cost of treatment, rehabilitation and medical expenses, loss 6 of economic or educational potential, loss of productivity, 7 absenteeism, accidents or injury and other pecuniary loss 8 proximately caused by the use of an illegal drug by the 9 individual drug user; 10 (2) reasonable attorney fees; and 11 (3) costs of suit, including, but not limited to, 12 reasonable expenses for expert testimony. 13 Section 6. Third party cases. 14 A third party shall neither pay damages awarded under this 15 act, nor provide a defense or money for a defense, on behalf of 16 a person insured under a contract of insurance or 17 indemnification. 18 Section 7. Illegal drug market target community. 19 A person whose participation in the illegal drug market 20 constitutes the following level offense shall be considered to 21 have the following illegal drug market target community: 22 (1) For a level one offense, the county in which the 23 place of participation of the defendant is situated. 24 (2) For a level two offense, the target community 25 described in paragraph (1) along with all counties with a 26 border contiguous to that target community. 27 (3) For a level three offense, the target community 28 described in paragraph (2) plus all counties with a border 29 contiguous to that target community. 30 (4) For a level four offense, this Commonwealth. 19990S0848B0951 - 8 -
1 Section 8. Joinder of parties. 2 (a) Plaintiffs.--Two or more persons may join in one action 3 under this act as plaintiffs if their respective actions have at 4 least one place of illegal drug activity in common and if any 5 portion of the period of illegal drug use overlaps with the 6 period of illegal drug use for every other plaintiff. 7 (b) Defendants.--Two or more persons may be joined in one 8 action under this act as defendants if those persons are liable 9 to at least one plaintiff. 10 (c) Common interest not required.--A plaintiff need not be 11 interested in obtaining and a defendant need not be interested 12 in defending against all the relief demanded. Judgment may be 13 given for one or more plaintiffs according to their respective 14 rights to relief and against one or more defendants according to 15 their respective liabilities. 16 Section 9. Comparative negligence. 17 (a) General rule.--A defendant in an action brought by an 18 individual drug user under section 7 may plead comparative 19 negligence as an affirmative defense against the individual drug 20 user. If proved under subsection (b), such comparative 21 negligence shall not bar recovery but shall diminish the award 22 of civil damages to the individual drug user proportionally, 23 according to the measure of negligence attributed to the 24 individual drug user. 25 (b) Burden of proof.--The burden of proving the comparative 26 negligence of an individual drug user is on the defendant and 27 shall be shown by clear and convincing evidence. 28 (c) Negligence not attributed to certain plaintiffs.-- 29 Comparative negligence shall not be plead as an affirmative 30 defense attributed to a person who is not an individual drug 19990S0848B0951 - 9 -
1 user. 2 Section 10. Right of contribution. 3 A person subject to liability under this act has the right of 4 contribution set forth in 42 Pa.C.S. § 8324 (relating to right 5 of contribution) against another person subject to liability 6 under this act. Such right of contribution may be plead either 7 in the action brought under this act or by a separate action 8 brought for that purpose. A plaintiff may seek recovery in 9 accordance with this act and existing law against any person 10 against whom a defendant in the action asserts a right of 11 contribution. 12 Section 11. Procedure at trial. 13 (a) Burden of proof.--Proof that a person participates in 14 the illegal drug market in an action brought under this act 15 shall be shown by clear and convincing evidence. Except as 16 otherwise provided in this act, other elements of the cause of 17 action shall be shown by a preponderance of the evidence. 18 (b) Effect of conviction for drug law violation.--A person 19 against whom recovery is sought under this act and who has been 20 convicted of a violation of the act of April 14, 1972 (P.L.233, 21 No.64), known as The Controlled Substance, Drug, Device and 22 Cosmetic Act, or the Comprehensive Drug Abuse Prevention and 23 Control Act of 1970 (Public Law 91-513, 84 Stat. 1236) shall be 24 estopped from denying that such person participates in the 25 illegal drug market. Such a conviction shall be prima facie 26 evidence that the person participates in the illegal drug market 27 during the two years preceding the date of an act giving rise to 28 the conviction. 29 (c) Absence of conviction not a bar.--The absence of such a 30 conviction of a person against whom recovery is sought shall not 19990S0848B0951 - 10 -
1 bar an action under this act against that person. 2 Section 12. Judgment procedure. 3 (a) Prejudgment attachment.--A plaintiff subject to 4 subsection (c) may request an ex parte prejudgment attachment 5 order from the court against all assets of a defendant 6 sufficient to satisfy a potential award. If attachment is 7 instituted, a defendant shall be entitled to an immediate 8 hearing. Attachment may be lifted if the defendant demonstrates 9 that the assets will be available for a potential award or if 10 the defendant posts a bond sufficient to cover a potential 11 award. 12 (b) Exemption of property prohibited.--A defendant against 13 whom a judgment has been rendered under this act shall not be 14 eligible to exempt any property, of whatever kind, from process 15 to levy or process to execute on the judgment. 16 (c) Property subject to forfeiture action.--Any assets 17 sought to satisfy a judgment under this act that are named in a 18 forfeiture section or have been seized for forfeiture by any 19 Federal or State agency may not be used to satisfy a judgment 20 unless and until the assets have been released following the 21 conclusion of the forfeiture action or are released by the 22 agency that seized the assets. 23 Section 13. Time for commencement of action. 24 (a) General rule.--Except as otherwise provided in this 25 section, an action under section 4 or 5 shall not be brought 26 more than two years after the cause of action accrues. A cause 27 of action accrues under this act when a person who may bring the 28 action under section 4 or 5 has reason to know of the harm from 29 illegal drug use that is the basis for the action and has reason 30 to know that the illegal drug use is the cause of the harm. 19990S0848B0951 - 11 -
1 (b) Extension of time.--For a plaintiff, the statute of 2 limitations under this section shall be tolled if that 3 individual becomes incapacitated by the use of an illegal drug 4 to the extent that the individual cannot reasonably be expected 5 to seek recovery under this act or as otherwise provided for by 6 law. For a defendant, the statute of limitations under this 7 section shall be tolled until six months after the defendant is 8 convicted of a violation of Federal or State Law set forth in 9 section 11(b) or as otherwise provided by law. 10 (c) Claims antedating act.--The statute of limitations under 11 subsection (a) for an action based on participation in the 12 illegal drug market prior to the effective date of this act 13 shall not begin to run until the effective date of this act. 14 Section 14. Representation for Commonwealth and political 15 subdivisions. 16 The Attorney General or a district attorney may represent the 17 Commonwealth or a political subdivision in an action brought 18 under this act. 19 Section 15. Stay of action. 20 On motion by a governmental agency involved in an official 21 investigation or prosecution that involves the illegal drug 22 market plead in an action under sections 4 or 5, such action 23 shall be stayed until completion of the criminal investigation 24 or prosecution that gave rise to the motion. 25 Section 16. Effective date. 26 This act shall take effect in 60 days. C31L42DMS/19990S0848B0951 - 12 -