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By Mr. Binienda of Worcester, petition (accompanied by bill, House, No. 1321) of John J. Binienda and others relative to providing for the civil liability of drug dealers. The Judiciary. |
The Commonwealth of Massachusetts
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PETITION OF:
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By Mr. Binienda of Worcester, petition (accompanied by bill, House, No. 1321) of John J. Binienda and others relative to providing for the civil liability of drug dealers. The Judiciary. |
The Commonwealth of Massachusetts
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PETITION OF:
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In the Year Two Thousand and Seven.
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Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The General Laws, as appearing in the 2004 Official Edition, are hereby amended by inserting after Chapter 94F the following new chapter:—
CHAPTER 94G.
DRUG DEALER LIABILITY.
Section 1. As used in this chapter, the following terms shall have the
following meanings:
(a)
“Marketing of controlled dangerous substances”, the illegal distributing,
dispensing, or possessing with intent to distribute a specific controlled
dangerous substance.
(b)
“Individual user of the controlled dangerous substance”, the individual whose
illegal use of a specified controlled dangerous substance is the basis of an
action brought under this chapter.
(c) “Level I
Offense”:
(1)
Possessing with intent to distribute less than four ounces of a specified
controlled dangerous substance as defined in this section;
(2)
Distributing or dispensing less than one ounce of a specified controlled dangerous
substance as defined in this section;
(3)
Possessing with intent to distribute 25 or more but less than 50 marijuana
plants;
(4)
Possessing with intent to distribute less than four pounds of marijuana; or
(5) Distributing
or dispensing more than 28.5 grams of marijuana.
(d) “Level 2
Offense”:
(1)
Possessing with intent to distribute four ounces or more but less than eight
ounces of a specified controlled dangerous substance as defined in this
section;
(2)
Distributing or dispensing one ounce or more but less than two ounces of a
specified controlled dangerous substance as defined in this section;
(3)
Possessing with intent to distribute 50 or more but less than 75 marijuana
plants;
(4)
Possessing with intent to distribute four pounds or more but less that 8 pounds
of marijuana; or
(5)
Distributing or dispensing more than one pound but less than five pounds of
marijuana.
(e) “Level 3
Offense”:
(1)
Possessing with intent to distribute eight ounces or more but less than 16
ounces of a specified controlled dangerous substance as defined in this
section;
(2)
Distributing or dispensing two ounces or more but less than four ounces of a
specified controlled dangerous substance as defined in this section;
(3)
Possessing with intent to distribute 75 or more but less than 100 marijuana
plants.
(4)
Possessing with intent to distribute eight pounds or more but less than 16
pounds of marijuana, or
(5)
Distributing or dispensing more than five pounds but less than ten pounds of
marijuana.
(f) “Level 4
Offense”:
(1)
Possessing with intent to distribute 16 ounces or more of a specified
controlled dangerous substance as defined in this section;
(2)
Distributing or dispensing four ounces or more of a specified controlled
dangerous substance as defined in this section;
(3)
Possessing with intent to distribute 100 or more marijuana plants;
(4)
Possessing with intent to distribute 16 pounds or more of marijuana or
(5)
Distributing or dispensing more than ten pounds of marijuana.
(g) “Person”
means an individual, governmental entity, sole proprietorship, corporation,
limited liability company, firm, trust, partnership, or incorporated or
unincorporated association, existing under or authorized by the laws of this
state, another state, or a foreign country.
(h)
“Participate in the illegal marketing of controlled dangerous substances”,
means to transport, import into the Commonwealth, distribute, dispense, sell,
possess with intent to distribute, or offer to distribute a controlled
dangerous substance, in violation of any of the provisions of chapter 94C.
“Participate in the marketing of controlled dangerous substances” does not
include the purchase or receipt of a controlled dangerous substance for a
personal use only.
(i) “Period
of illegal use”, means, in relation to the individual use of a specified
controlled dangerous substance, the time of the individual’s first illegal use
of a controlled dangerous substance to the accrual of the cause of action.
(j) “Place
of illegal activity”, means, in relation to the individual user of a specified
controlled dangerous substance, each county in which the individual illegally
possesses or uses a specified controlled dangerous substance.
(k) “Place
of participation”, means, in relation to a defendant in an action brought under
this chapter, each county in which the defendant participates in the marketing
of controlled dangerous substances.
(l)
“Specified controlled dangerous substance”, means heroin, cocaine, lyscigic
acid, diethylamide, phencyclidine, methamphetamine, phenyl-2-propanoic (P2P)
and any other controlled dangerous substance specified under the provisions of
chapter 94C as being unlawful to manufacture, distribute, or dispense, or to
possess or have under a person’s control with intent to manufacture,
distribute, or dispense.
Section 2. A
person who knowingly participates in the illegal marketing of controlled
dangerous substances within the Commonwealth is liable for damages, as provided
in this chapter, for injury resulting from an individual’s illegal use of a
controlled dangerous substance.
Section 3.
(a) Any of the following persons may bring an action for damages caused by an
individual’s illegal use of a controlled dangerous substance:
(1) A
parent, legal guardian, child, spouse, or sibling of the controlled dangerous
substance user.
(2) An
individual who was exposed to a controlled dangerous substance in utero.
(3) An
employer of the controlled dangerous substance user.
(4) A
medical facility, insurer, governmental entity, employer, or other entity that
funds a drug treatment program or employee assistance program for the
controlled dangerous substance user or that otherwise expends money on behalf
of the controlled dangerous substance user.
(5) A person
injured as a result of the willful, reckless, or negligent actions of an
individual user of an illegal controlled substance.
(b) A person
entitled to bring action under this chapter may seek damages against:
(1) A person
who distributed or dispensed a controlled dangerous substance to the individual
user of the controlled dangerous substance; or
(2) A person
who knowingly participated in the marketing of controlled dangerous substances,
if all of the following apply:
(a) The
defendant’s place of participation is situated in the same county as the
individual user’s place of illegal activity;
(b) The
defendant participated in the marketing of the same type of controlled
dangerous substances as those used by the individual user;
(c) The
defendant was previously convicted of an offense in the Commonwealth for that
type of controlled dangerous substance; and
(d) The
defendant participated in the marketing of controlled dangerous substances at
any time during the period the individual user unlawfully used the controlled
dangerous substance.
(e) 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, rehabilitation
and 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 use of a controlled dangerous
substance.
(2)
Noneconomic damages, including, but not limited to, physical and emotional
pain, suffering, physical impairment, emotional distress, disfigurement, loss
of enjoyment, loss of companionship, services and consortium, and other
nonpecuniary losses proximately caused by an individual’s use of a controlled
dangerous substance.
(3) Punitive
damages.
(4)
Reasonable attorney fees.
(5) Costs of
suit, including, but not limited to, reasonable expenses for expert testimony.
Section 4.
(a) An individual user of a controlled dangerous substance may bring an action
for damages caused by the use of a controlled dangerous substance only if all
of the following conditions are met:
(1) At least
six months before filing an action, the individual personally discloses to law
enforcement authorities all of the information known to the individual
regarding all that individual’s sources of controlled dangerous substances.
(2) The
individual does not use a controlled dangerous substance within the six months
immediately preceding the date the user files the action.
(3) The
individual continues to remain free of the use of all illegal controlled
dangerous substances throughout the pendency of the action.
(b) An
individual user entitled to bring an action under this section may seek damages
only from a person who transported, imported into this state, distributed,
dispensed, sold, possessed with intent to distribute, or offered to distribute,
in violation of any of the provisions of chapter 94C, the controlled dangerous
substance actually used by the individual user of a controlled dangerous
substance.
(c) An
individual user 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 use of a controlled dangerous substance.
(2)
Reasonable attorney fees.
(3) Costs of
suit, including, but not limited to, reasonable expenses for expert testimony.
Section 5.
(a) A third party shall not pay damages awarded under this act, or provide a
defense or money for a defense, on behalf of an insured under a contract of
insurance or indemnification.
(b) A cause
of action authorized pursuant to this chapter may not be assigned, either
expressly, by subrogation, or by any other means, directly or indirectly, to
any public or publicly funded agency or institution.
Section 6. A
person whose participation in the marketing of controlled dangerous substances
is grounds for liability pursuant to this act shall be rebuttably presumed to
be liable for damages incurred by the plaintiff in the following percentages:
(a) For a
level 1 offense, 25 percent of the damages;
(b) For a
level 2 offense, 50 percent of the damages;
(c) For a
level 3 offense, 75 percent of the damages; and
(d) For a
level 4 offense, 100 percent of the damages.
Section 7.
(a) Two or more persons may join in one action under this act as plaintiffs if
their respective actions have at least one market for controlled dangerous substances
in common and if any portion of the period of use of a controlled dangerous
substance overlaps with the period of use of a controlled dangerous substance
for every other plaintiff.
(b) Two or
more persons may be joined in one action under this chapter as defendants if
those persons are liable to at least one plaintiff.
Section 8.
(a) An action by an individual user of a controlled dangerous substance is
governed by the principles of comparative responsibility. Comparative responsibility
attributed to an individual user does not bar the user’s recovery but
diminishes the award of damages proportionately, according to the measure of
responsibility attributed to the user. The burden of proving comparative
responsibility is on the defendant, who shall prove comparative responsibility
by clear and convincing evidence.
(b)
Comparative responsibility shall not be attributed to a plaintiff who is not an
individual user of a controlled substance.
Section 9. A
person subject to liability under this chapter has a right of action for
contribution against another person subject to liability under this chapter.
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 chapter and other laws against a person whom a defendant has asserted
a right of contribution.
Section 10.
(a) Proof of liability in an action brought under this chapter shall be shown
by clear and convincing evidence.
(b) A person
against whom recovery is sought who has been convicted of a violation of
chapter 94C, manufacturing, distributing or dispensing, or an equivalent
offense under federal law or the law of any other state, is estopped from,
denying illegal participation in the market for controlled dangerous
substances. If such conviction was based upon the same type of controlled
dangerous substance as that used by the individual user, the conviction also
constitutes prima facie evidence of the person’s participation in the marketing
of controlled dangerous substances pursuant to this chapter.
(c) The
absence of a criminal conviction of a person for a violation of chapter 94C or
an equivalent offense under federal law or the law of any other state does not
bar an action against that person by a plaintiff bringing suit pursuant to this
chapter.
Section 11.
(a) A cause of action accrues under this act when a person has reason to know
of the harm from use of a controlled dangerous substance that is the basis for
the cause of action and has reason to know that the use of a controlled
dangerous substance is the cause of the harm.
(b) A claim
under this chapter shall not be brought more than three years after the
defendant distributes, dispenses, or possesses, or sells the controlled
dangerous substance and after the defendant is convicted of a crime involving
controlled dangerous substances, whichever is the later.
Section 12.
(a) The district attorney’s office or the attorney general’s office may
represent the state or a political subdivision of the state in an action
brought under this act.
(b) On
motion by a governmental agency involved in an investigation or prosecution
involving a controlled dangerous substance, an action brought under this act
shall be stayed
until the completion of any underlying criminal investigation or prosecution.
(c) An
action shall not be brought under this chapter against a law enforcement
officer or agency, or a person acting in good faith at the direction of a law
enforcement officer or agency, for participation in illegal marketing of a
controlled substance if that participation is in furtherance of an official
investigation.
SECTION 2. No cause of action shall arise based on any act by a defendant which occurred prior the effective date of this chapter