H. B. 4326
(By Delegates Beach, Perry, Paxton, Kominar,
Varner, Houston and Swartzmiller)
[Introduced February 1, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5, §60A-11-6, §60A-11-7,
§60A-11-8, §60A-11-9, §60A-11-10, §60A-11-11, §60A-11-12,
§60A-11-13, §60A-11-14, §60A-11-15, §60A-11-16 and §60A-11-17,
all relating to enacting the Drug Dealer Liability Act,
providing a s
hort title, purpose, findings and definitions;
imposing liability for participation in the illegal drug
market; allowing recovery of damages; allowing third party
cases; designating illegal drug market target communities;
allowing joinder of parties and comparative responsibility;
providing contribution among and recovery from multiple
defendants; designating standard of proof; addressing effect
of criminal drug conviction; allowing prejudgment attachment
and execution on judgments; providing statute of limitations;
allowing representation of governmental entities; and allowing stays of action.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5, §60A-11-6, §60A-11-7, §60A-11-8,
§60A-11-9, §60A-11-10, §60A-11-11, §60A-11-12, §60A-11-13,
§60A-11-14, §60A-11-15, §60A-11-16 and §60A-11-17, all to read as
follows:
ARTICLE 11. DRUG DEALER LIABILITY ACT.
§60A-11-1. Short title.
This article may be cited as the "Drug Dealer Liability Act."
§60A-11-2. Purpose.
The purpose of this article is to:
(1) Provide a civil remedy for damages to persons in a
community injured as a result of illegal drug use. These persons
include parents, employers, insurers, governmental entities and
others who pay for drug treatment or employee assistance programs,
as well as infants injured as a result of exposure to drugs in
utero ("drug babies"). The article enables them to recover damages
from those persons in the community who have joined the illegal
drug market.
(2) Shift, to the extent possible, the cost of the damage
caused by the existence of the illegal drug market in a community
to those who illegally profit from that market.
(3) Establish the prospect of substantial monetary loss as a
deterrent to those who have not yet entered into the illegal drug
distribution market.
(4) Establish an incentive for drug users to identify and seek
payment for their own drug treatment from those dealers who have
sold drugs to the user in the past.
§60A-11-3. Findings.
The Legislature finds and declares:
(1) Every community in the country is affected by the
marketing and distribution of illegal drugs. A vast amount of state
and local resources are expended in coping with the financial,
physical and emotional toll that results from the existence of the
illegal drug market. Families, employers, insurers and society in
general bear the substantial costs of coping with the marketing of
illegal drugs. Drug babies and parents, particularly those of
adolescent illegal drug users, suffer significant noneconomic
injury as well.
(2) Although the criminal justice system is an important
weapon against the illegal drug market, the civil justice system
can and must also be used. The civil justice system can provide an
avenue of compensation for those who have suffered harm as a result
of the marketing and distribution of illegal drugs. The persons who
have joined the illegal drug market should bear the cost of the
harm caused by that market in the community.
(3) The threat of liability under this article serves as an
additional deterrent to a recognizable segment of the illegal drug
network. A person who has nondrug related assets, who markets
illegal drugs at the workplace, who encourages friends to become
users, among others, is likely to decide that the added cost of
entering the market is not worth the benefit. This is particularly
true for a first-time casual dealer who has not yet made
substantial profits. This article provides a mechanism for the cost
of the injury caused by illegal drug use to be borne by those who
benefit from illegal drug dealing.
(4) This article imposes liability against all participants in
the illegal drug market, including small dealers, particularly
those in the workplace, who are not usually the focus of criminal
investigations. The small dealers increase the number of users and
are the people who become large dealers. These small dealers are
most likely to be deterred by the threat of liability.
(5) A parent of an adolescent illegal drug user often expends
considerable financial resources, typically in the tens of
thousands of dollars, for the child's drug treatment. Local and
state governments provide drug treatment and related medical
services made necessary by the distribution of illegal drugs. The
treatment of drug babies is a considerable cost to local and state
governments. Insurers pay large sums for medical treatment relating
to drug addiction and use. Employers suffer losses as a result of illegal drug use by employees due to lost productivity, employee
drug-related workplace accidents, employer contributions to medical
plans and the need to establish and maintain employee assistance
programs. Large employers, insurers and local and state governments
have existing legal staffs that can bring civil suits against those
involved in the illegal drug market, in appropriate cases, if a
clear legal mechanism for liability and recovery is established.
(6) Drug babies, who are clearly the most innocent and
vulnerable of those affected by illegal drug use, are often the
most physically and mentally damaged due to the existence of an
illegal drug market in a community. For many of these babies, the
only hope is extensive medical and psychological treatment,
physical therapy, and special education. All of these potential
remedies are expensive. These babies, through their legal guardians
and through court appointed guardians ad litem, should be able to
recover damages from those in the community who have entered and
participated in the marketing of the types of illegal drugs that
have caused their injuries.
(7)(A) In theory, civil actions for damages for distribution
of illegal drugs can be brought under existing law. They are not.
Several barriers account for this. Under existing tort law, only
those dealers in the actual chain of distribution to a particular
user could be sued. Drug babies, parents of adolescent illegal drug
users, and insurers are not likely to be able to identify the chain of distribution to a particular user. Furthermore, drug treatment
experts largely agree that users are unlikely to identify and bring
suit against their own dealers, even after they have recovered,
given the present requirements for a civil action.
(B) Recovered users are similarly unlikely to bring suit
against others in the chain of distribution, even if they know the
user. A user is unlikely to know other dealers in the chain of
distribution. Unlike the chain of distribution for legal products,
in which records identifying the parties to each transaction in the
chain are made and shared among the parties, the distribution of
illegal drugs is clandestine. Its participants expend considerable
effort to keep the chain of distribution secret.
(8) Those involved in the illegal drug market in a community
are necessarily interrelated and interdependent, even if their
identities are unknown to one another. Each new dealer obtains the
benefit of the existing illegal drug distribution system to make
illegal drugs available to him or her. In addition, the existing
market aids a new entrant by the prior development of people as
users. Many experts on the illegal drug market agree that all
participants are ultimately likely to be indirectly related. That
is, beginning with any one dealer, given the theoretical ability to
identify every person known by that dealer to be involved in
illegal drug trafficking, and in turn each of such others know to
them, and so on, the illegal drug market in a community would ultimately be fully revealed.
(9) Market liability has been created with respect to
legitimate products by judicial decision in some states. It
provides for civil recovery by plaintiffs who are unable to
identify the particular manufacturer of the product that is claimed
to have caused them harm, allowing recovery from all manufacturers
of the product who participated in that particular market. The
market liability theory has been shown to be destructive of market
initiative and product development when applied to legitimate
markets. Because of its potential for undermining markets, this
article expressly adopts a legislatively crafted form of liability
for those who intentionally join the illegal drug market. The
liability established by this article grows out of, but is distinct
from, existing judicially crafted market liability.
(10) The prospect of a future suit for the costs of drug
treatment may drive a wedge between prospective dealers and their
customers by encouraging users to turn on their dealers. Therefore,
liability for those costs, even to the user, is imposed under this
article as long as the user identifies and brings suit against his
or her own dealers.
(11) Allowing dealers who face a civil judgment for their
illegal drug marketing to bring suit against their own sources for
contribution may also drive a wedge into the relationships among
some participants in the illegal drug distribution network.
(12) While not all persons who have suffered losses as a
result of the marketing of illegal drugs will pursue an action for
damages, at least some individuals, guardians of drug babies,
government agencies that provide treatment, insurance companies,
and employers will find such an action worthwhile. These persons
deserve the opportunity to recover their losses. Some new entrants
to retail illegal drug dealing are likely to be deterred even if
only a few of these suits are actually brought.
§60A-11-4. Definitions.
As used in this article:
"Illegal drug" means any drug which is a schedule I through V
drug under article two, chapter sixty-a of this code.
"Illegal drug market" means the support system of illegal drug
related operations, from production to retail sales, through which
an illegal drug reaches the user.
"Illegal drug market target community" is the area described
under section nine of this article.
"Individual drug user" means the individual whose illegal drug
use is the basis of an action brought under this article.
"Level one offense" means possession of one-fourth ounce or
more, but less than four ounces, or distribution of less than one
ounce of an illegal drug other than marijuana, or possession of one
pound or more or twenty-five plants or more, but less than four
pounds or fifty plants, or distribution of more than one-half pound but less than one pound of marijuana.
"Level two offense" means possession of four ounces or more,
but less than eight ounces, or distribution of one ounce or more,
but less than two ounces, of an illegal drug other than marijuana,
or possession of four pounds or more or fifty plants or more but
less than eight pounds or seventy-five plants or distribution of
one pound or more but less than five pounds of marijuana.
"Level three offense" means possession of eight ounces or
more, but less than sixteen ounces, or distribution of two ounces
or more, but less than four ounces, of an illegal drug other than
marijuana, or possession of eight pounds or more or seventy-five
plants or more, but less than sixteen pounds or one hundred plants,
or distribution of five pounds or more but less than ten pounds of
marijuana.
"Level four offense" means possession of sixteen ounces or
more or distribution of four ounces or more of an illegal drug
other than marijuana, or possession of sixteen pounds or more or
one hundred plants or more or distribution of ten pounds or more of
marijuana.
"Participate in the illegal drug market" means to distribute,
possess with an intent to distribute, commit an act intended to
facilitate the marketing or distribution of, or agree to
distribute, possess with an intent to distribute, or commit an act
intended to facilitate the marketing and distribution of an illegal drug. "Participate in the illegal drug market" does not include the
purchase or receipt of an illegal drug for personal use only.
"Person" means an individual, governmental entity,
corporation, firm, trust, partnership, or incorporated or
unincorporated association, existing under or authorized by the
laws of this state, another state, or foreign country.
"Period of illegal drug use" means, in relation to the
individual drug user, the time of the individual's first use of an
illegal drug to the accrual of the cause of action. The period of
illegal drug use is presumed to commence two years before the cause
of action accrues unless the defendant proves otherwise by clear
and convincing evidence.
"Place of illegal drug activity" means, in relation to the
individual drug user, each county in which the individual possesses
or uses an illegal drug or in which the individual resides, attends
school, or is employed during the period of the individual's
illegal drug use, unless the defendant proves otherwise by clear
and convincing evidence.
"Place of participation" means, in relation to a defendant in
an action brought under this article, each county in which the
person participates in the illegal drug market or in which the
person resides, attends school, or is employed during the period of
the person's participation in the illegal drug market.
§60A-11-5. Liability for participation in the illegal drug market.
(a) A person who knowingly participates in the illegal drug
market within this state is liable for civil damages as provided in
this article. A person may recover damages under this article for
injury resulting from an individual's use of an illegal drug.
(b) A law-enforcement officer or agency, the state, or a
person acting at the direction of a law-enforcement officer or
agency or the state is not liable for participating in the illegal
drug market, if the participation is in furtherance of an official
investigation.
§60A-11-6. Recovery of damages.
(a) One or more of the following persons may bring an action
for damages caused by an individual's use of an illegal drug:
(1) A parent, legal guardian, child, spouse, or sibling of the
individual drug user.
(2) An individual who was exposed to an illegal drug in utero.
(3) An employer of the individual drug user.
(4) A medical facility, insurer, governmental entity,
employer, or other entity that funds a drug treatment program or
employee assistance program for the individual drug user or that
otherwise expended money on behalf of the individual drug user.
(5) A person injured as a result of the willful, reckless, or
negligent actions of an individual drug user.
(b) A person entitled to bring an action under this section
may seek damages from a person convicted of a drug offense or a person who knowingly distributed, or knowingly participated in the
chain of distribution of, the illegal drug that was actually used
by the individual drug user and that was the proximate cause of the
recoverable losses.
(c) No governmental entity may bring an action against a
person until after that person has been convicted of a criminal act
related to the possession, manufacture, or distribution of drugs.
(d) A person entitled to bring an action under this section
may recover all of the following damages:
(1) Economic damages, including, but not limited to, the cost
of treatment and rehabilitation, medical expenses, loss of economic
or educational potential, loss of productivity, absenteeism,
support expenses, accidents or injury and any other pecuniary loss
proximately caused by the illegal drug use;
(2) Noneconomic damages, including, but not limited to,
physical and emotional pain, suffering, physical impairment,
emotional distress, mental anguish, disfigurement, loss of
enjoyment, loss of companionship, services and consortium, and
other nonpecuniary losses proximately caused by an individual's use
of an illegal drug;
(3) Reasonable attorney fees; and
(4) Costs of suit, including, but not limited to, reasonable
expenses for expert testimony.
§60A-11-7. Limited recovery of damages.
(a) An individual drug user may not bring an action for
damages caused by the use of an illegal drug, except as otherwise
provided in this subsection. An individual drug user may bring an
action for damages caused by the use of an illegal drug only if all
of the following conditions are met:
(1) The individual personally discloses to narcotics
enforcement authorities, more than six months before filing the
action, all of the information known to the individual regarding
all that individual's sources of illegal drugs;
(2) The individual has not used an illegal drug within the six
months before filing the action; and
(3) The individual continues to remain free of the use of an
illegal drug throughout the pendency of the action.
(b) A person entitled to bring an action under this section
may seek damages only from a person who distributed, or is in the
chain of distribution of, an illegal drug that was actually used by
the individual drug user.
(c) A person entitled to bring an action under this section
may recover only the following damages:
(1) Economic damages, including, but not limited to, the cost
of treatment, rehabilitation, and medical expenses, loss of
economic or educational potential, loss of productivity,
absenteeism, accidents or injury, and any other pecuniary loss
proximately caused by the person's illegal drug use;
(2) Reasonable attorney fees; and
(3) Costs of suit, including, but not limited to, reasonable
expenses for expert testimony.
§60A-11-8. Third party cases.
A third party may not pay damages awarded under this article,
or provide a defense or money for a defense, on behalf of an
insured under a contract of insurance or indemnification.
§60A-11-9. Illegal drug market target community.
A person whose participation in the illegal drug market
constitutes the following level offense is considered to have the
following illegal drug market target community:
(1) For a level one offense, the county in which the
defendant's place of participation is situated.
(2) For a level two offense, the target community described in
subdivision (1) of this section plus all counties with a border
contiguous to that target community.
(3) For a level three offense, the target community described
in subdivision (2) of this section plus all counties with a border
contiguous to that target community.
(4) For a level four offense, the state.
§60A-11-10. Joinder of parties.
(a) Two or more persons may join in one action under this
article as plaintiffs if their respective actions have at least one
place of illegal drug activity in common and if any portion of the period of illegal drug use overlaps with the period of illegal drug
use for every other plaintiff.
(b) Two or more persons may be joined in one action under this
article as defendants if those persons are liable to at least one
plaintiff.
(c) A plaintiff need not be interested in obtaining and a
defendant need not be interested in defending against all the
relief demanded. Judgment may be given for one or more plaintiffs
according to their respective rights to relief and against one or
more defendants according to their respective liabilities.
§60A-11-11. Comparative responsibility.
(a) An action by an individual drug user is governed by the
principles of comparative responsibility. Comparative
responsibility attributed to the plaintiff does not bar recovery
but diminishes the award of compensatory damages proportionally,
according to the measure of responsibility attributed to the
plaintiff.
(b) The burden of proving the comparative responsibility of
the plaintiff is on the defendant, which shall be shown by clear
and convincing evidence.
(c) Comparative responsibility may not be attributed to a
plaintiff who is not an individual drug user.
§60A-11-12. Contribution among and recovery from multiple
defendants.
A person subject to liability under this article has a right
of action for contribution against another person subject to
liability under this article. Contribution may be enforced either
in the original action or by a separate action brought for that
purpose. A plaintiff may seek recovery in accordance with this
article and existing law against a person against whom a defendant
has asserted a right of contribution.
§60A-11-13. Standard of proof; effect of criminal drug conviction.
(a) Proof of participation in the illegal drug market in an
action brought under this article shall be shown by clear and
convincing evidence. Except as otherwise provided in this article,
other elements of the cause of action shall be shown by a
preponderance of the evidence.
(b) A person against whom recovery is sought who has a
criminal conviction under article four, chapter sixty-a of this
code, or other state drug laws or the Comprehensive Drug Abuse
Prevention and Control Act of 1970, codified at 21 U.S.C. §801 et
seq, is estopped from denying participation in the illegal drug
market. Such a conviction is also prima facie evidence of the
person's participation in the illegal drug market during the two
years preceding the date of an act giving rise to a conviction.
(c) The absence of a criminal drug conviction of a person
against whom recovery is sought does not bar an action against that
person.
§60A-11-14. Prejudgment attachment and execution on judgments.
(a) A plaintiff under this article, subject to subsection (b)
of this section, may request an ex parte prejudgment attachment
order from the court against all assets of a defendant sufficient
to satisfy a potential award. If attachment is instituted, a
defendant is entitled to an immediate hearing. Attachment may be
lifted if the defendant demonstrates that the assets will be
available for a potential award or if the defendant posts a bond
sufficient to cover a potential award.
(b) Any assets sought to satisfy a judgment under this article
that are named in a forfeiture action or have been seized for
forfeiture by any state or federal agency may not be used to
satisfy a judgment unless and until the assets have been released
following the conclusion of the forfeiture action or released by
the agency that seized the assets.
§60A-11-15. Statute of limitations.
(a) Except as otherwise provided in this section, a claim
under this article may not be brought more than two years after the
cause of action accrues. A cause of action accrues under this
article when a person who may recover has reason to know of the
harm from illegal drug use that is the basis for the cause of
action and has reason to know that the illegal drug use is the
cause of the harm.
(b) For a plaintiff, the statute of limitations under this section is tolled while the individual potential plaintiff is
incapacitated by the use of an illegal drug to the extent that the
individual cannot reasonably be expected to seek recovery under
this article or as otherwise provided by law. For a defendant, the
statute of limitations under this section is tolled until six
months after the individual potential defendant is convicted of a
criminal drug offense or as otherwise provided by law.
(c) The statute of limitations under this article for a claim
based on participation in the illegal drug market that occurred
prior to the effective date of this article does not begin to run
until the effective date of this article.
§60A-11-16. Representation of governmental entities; stay of
action.
(a) A prosecuting attorney may represent the state or a
political subdivision of the state in an action brought under this
article.
(b) Upon the filing of an action under this article, the
plaintiff shall give immediate notice in writing and provide a copy
of the writ to the Attorney General. The Attorney General shall
notify the United States Department of Justice or other appropriate
federal agency of the action.
(c) On motion by a governmental agency involved in a drug
investigation or prosecution, an action brought under this article
shall be stayed until the completion of the criminal investigation or prosecution that gave rise to the motion for a stay of the
action.
§60A-11-17. Effect on existing laws.
The provisions of this article are not intended to alter the
law regarding intra-family tort immunity.
NOTE: The purpose of this bill is to enact the Drug Dealer
Liability Act. The bill allows the recovery of civil damages
against those
participating in the illegal drug market.
This article is new; therefore, strike-throughs and
underscoring have been omitted.