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1 1 Section 1. NEW SECTION. 670B.1 DEFINITIONS.
1 2 As used in this chapter:
1 3 1. "Illegal drug" means a drug whose distribution is
1 4 prohibited or restricted under chapter 124, 124A, 124B, or
1 5 126.
1 6 2. "Illegal drug market" means the support system of
1 7 illegal drug-related operations, from production to retail
1 8 sales, through which an illegal drug reaches the user and
1 9 which does not operate in accordance with chapter 124, 124A,
1 10 124B, or 126.
1 11 3. "Illegal drug market target community" means the
1 12 following:
1 13 a. For a level 1 offense, the county in which the
1 14 defendant's place of participation is situated.
1 15 b. For a level 2 offense, the target community described
1 16 in paragraph "a" plus all counties contiguous to that target
1 17 community.
1 18 c. For a level 3 offense, the target community described
1 19 in paragraph "b" plus all counties contiguous to that target
1 20 community.
1 21 d. For a level 4 offense, the state.
1 22 4. "Individual drug user" means the individual whose
1 23 illegal drug use is the basis of an action brought under this
1 24 chapter.
1 25 5. "Level 1 offense" means possession of one-fourth ounce
1 26 or more, but less than four ounces, or distribution of less
1 27 than one ounce of a specified illegal drug, or possession of
1 28 one pound or twenty-five plants or more, but less than four
1 29 pounds or fifty plants, or distribution of less than one pound
1 30 of marijuana.
1 31 6. "Level 2 offense" means possession of four ounces or
1 32 more, but less than eight ounces, or distribution of one ounce
1 33 or more, but less than two ounces, of a specified illegal
1 34 drug, or possession of four pounds or more or fifty plants or
1 35 more, but less than eight pounds or seventy-five plants, or
2 1 distribution of more than one pound, but less than five
2 2 pounds, of marijuana.
2 3 7. "Level 3 offense" means possession of eight ounces or
2 4 more, but less than sixteen ounces, or distribution of two
2 5 ounces or more, but less than four ounces, of a specified
2 6 illegal drug or possession of eight pounds or more or seventy-
2 7 five plants or more, but less than sixteen pounds or one
2 8 hundred plants, or distribution of more than five pounds, but
2 9 less than ten pounds, of marijuana.
2 10 8. "Level 4 offense" means possession of sixteen ounces or
2 11 more or distribution of four ounces or more of a specified
2 12 illegal drug or possession of sixteen pounds or more or one
2 13 hundred plants or more or distribution of ten pounds or more
2 14 of marijuana.
2 15 9. "Participate in the illegal drug market" means to
2 16 distribute, possess with an intent to distribute, commit an
2 17 act intended to facilitate the marketing or distribution of,
2 18 or to agree to distribute, possess with an intent to
2 19 distribute tax, or permit an act intended to facilitate the
2 20 marketing and distribution of an illegal drug in violation of
2 21 state law. "Participate in the illegal drug market" does not
2 22 include the purchase or receipt of an illegal drug for
2 23 personal use only.
2 24 10. "Period of illegal drug use" means, in relation to the
2 25 individual drug user, the time of the individual's first use
2 26 of an illegal drug distributed in violation of state law to
2 27 the accrual of the cause of action. The period of illegal
2 28 drug use is presumed to commence two years before the cause of
2 29 action accrues unless the defendant proves otherwise by clear
2 30 and convincing evidence.
2 31 11. "Place of illegal drug activity" means, in relation to
2 32 the individual drug user, each county in which the individual
2 33 possesses or uses an illegal drug which was distributed in
2 34 violation of state law or each county in which the individual
2 35 resides, attends school, or is employed during the period of
3 1 the individual's illegal drug use, unless the defendant proves
3 2 otherwise by clear and convincing evidence.
3 3 12. "Place of participation" means, in relation to a
3 4 defendant in an action brought under this chapter, each county
3 5 in which the person participates in the illegal drug market or
3 6 in which the person resides, attends school, or is employed
3 7 during the period of the person's participation in the illegal
3 8 drug market.
3 9 13. "Specified illegal drug" means cocaine, heroin, or
3 10 methamphetamine and any other illegal drug.
3 11 Sec. 2. NEW SECTION. 670B.2 LIABILITY FOR PARTICIPATION
3 12 IN THE ILLEGAL DRUG MARKET.
3 13 1. A person who knowingly participates in the illegal drug
3 14 market within this state is liable for civil damages as
3 15 provided in this chapter.
3 16 2. A person may recover damages for injury resulting from
3 17 an individual's use of an illegal drug.
3 18 3. A law enforcement officer or agency, the state, or a
3 19 person acting at the direction of a law enforcement officer or
3 20 agency or the state is not liable for participating in the
3 21 illegal drug market, if the participation is in furtherance of
3 22 an official investigation.
3 23 Sec. 3. NEW SECTION. 670B.3 RECOVERY OF DAMAGES.
3 24 1. One or more of the following persons may bring an
3 25 action for damages caused by an individual's use of an illegal
3 26 drug:
3 27 a. A parent, legal guardian, child, spouse, or sibling of
3 28 the individual drug user.
3 29 b. An individual who was exposed to an illegal drug in
3 30 utero.
3 31 c. An employer of the individual drug user.
3 32 d. A medical facility, insurer, governmental entity,
3 33 employer, or other entity that funds a drug treatment program
3 34 or employee assistance program for the individual drug user or
3 35 that otherwise expended money on behalf of the individual drug
4 1 user.
4 2 e. A person injured as a result of the willful, reckless,
4 3 or negligent actions of an individual drug user.
4 4 2. A person entitled to bring an action under this section
4 5 may seek damages from one or more of the following:
4 6 a. A person who knowingly distributed, or knowingly
4 7 participated in the chain of distribution of, an illegal drug
4 8 that was actually used by the individual drug user.
4 9 b. A person who knowingly participated in the illegal drug
4 10 market, when all of the following conditions are established:
4 11 (1) The place of illegal drug activity by the individual
4 12 drug user is within the illegal drug market target community
4 13 of the defendant.
4 14 (2) The defendant's participation in the illegal drug
4 15 market involved the same type of illegal drug used by the
4 16 individual drug user.
4 17 (3) The defendant participated in the illegal drug market
4 18 at any time during the individual drug user's period of
4 19 illegal drug use.
4 20 3. A person entitled to bring an action under this section
4 21 may recover all of the following damages:
4 22 a. Economic damages, including, but not limited to, the
4 23 cost of treatment and rehabilitation, medical expenses, loss
4 24 of economic or educational potential, loss of productivity,
4 25 absenteeism, support expenses, accidents or injury, and any
4 26 other pecuniary loss proximately caused by the illegal drug
4 27 use.
4 28 b. Noneconomic damages, including, but not limited to,
4 29 physical and emotional pain, suffering, physical impairment,
4 30 emotional distress, mental anguish, disfigurement, loss of
4 31 enjoyment, loss of companionship, services, and consortium,
4 32 and other nonpecuniary losses proximately caused by an
4 33 individual's use of an illegal drug.
4 34 c. Punitive damages.
4 35 d. Reasonable attorney fees.
5 1 e. The costs of suit, including, but not limited to,
5 2 reasonable expenses for expert testimony.
5 3 Sec. 4. NEW SECTION. 670B.4 LIMITED RECOVERY OF DAMAGES.
5 4 1. An individual drug user may bring an action for damages
5 5 caused by the use of an illegal drug only if all of the
5 6 following conditions are met:
5 7 a. The individual personally discloses to narcotics
5 8 enforcement authorities, more than six months before filing
5 9 the action, all of the information known to the individual
5 10 regarding all that individual's sources of illegal drugs.
5 11 b. The individual has not used an illegal drug within the
5 12 six months before filing the action.
5 13 c. The individual continues to remain free of the use of
5 14 an illegal drug throughout the pendency of the action.
5 15 2. An individual drug user shall not bring an action for
5 16 damages caused by the use of an illegal drug, except as
5 17 provided in this section.
5 18 3. A person entitled to bring an action under this section
5 19 may seek damages only from a person who distributed, or is in
5 20 the chain of distribution of, an illegal drug that was
5 21 actually used by the individual drug user.
5 22 4. A person entitled to bring an action under this section
5 23 may recover only the following damages:
5 24 a. Economic damages, including, but not limited to, the
5 25 cost of treatment, rehabilitation, and medical expenses, loss
5 26 of economic or educational potential, loss of productivity,
5 27 absenteeism, accidents, or injury, and any other pecuniary
5 28 loss proximately caused by the person's illegal drug use.
5 29 b. Reasonable attorney fees.
5 30 c. The costs of suit, including, but not limited to,
5 31 reasonable expenses for expert testimony.
5 32 Sec. 5. NEW SECTION. 670B.5 THIRD-PARTY CASES.
5 33 A third party shall not pay damages awarded under this
5 34 chapter, or provide a defense or moneys for a defense, on
5 35 behalf of an insured under a contract of insurance or
6 1 indemnification.
6 2 Sec. 6. NEW SECTION. 670B.6 JOINDER OF PARTIES.
6 3 1. Two or more persons may join in one action under this
6 4 chapter as plaintiffs if their respective actions have at
6 5 least one place of illegal drug activity in common and if any
6 6 portion of the period of illegal drug use of every plaintiff
6 7 overlaps with the period of illegal drug use of every other
6 8 plaintiff.
6 9 2. Two or more persons may be joined in one action under
6 10 this chapter as defendants if those persons are both liable to
6 11 at least one plaintiff.
6 12 3. Any judgment rendered may be apportioned among one or
6 13 more plaintiffs according to their respective rights to relief
6 14 and against one or more defendants according to their
6 15 respective liabilities.
6 16 Sec. 7. NEW SECTION. 670B.7 COMPARATIVE FAULT.
6 17 1. An action by an individual drug user is governed by the
6 18 principles of comparative fault, pursuant to chapter 668.
6 19 2. Notwithstanding any other law, rule, or practice, the
6 20 burden of proving the comparative fault of the plaintiff in
6 21 actions under this chapter is on the defendant, which shall be
6 22 shown by clear and convincing evidence.
6 23 3. Comparative fault pursuant to chapter 668 shall not be
6 24 attributed to a plaintiff who is not an individual drug user.
6 25 Sec. 8. NEW SECTION. 670B.8 CONTRIBUTION AMONG AND
6 26 RECOVERY FROM MULTIPLE DEFENDANTS.
6 27 1. A person subject to liability under this chapter has a
6 28 right of action for contribution against another person
6 29 subject to liability under this chapter.
6 30 2. Contribution may be enforced either in the original
6 31 action or by a separate action brought for that purpose.
6 32 3. A plaintiff may seek recovery in accordance with this
6 33 chapter and existing law against a person whom a defendant has
6 34 asserted a right of contribution.
6 35 Sec. 9. NEW SECTION. 670B.9 STANDARD OF PROOF – EFFECT
7 1 OF CRIMINAL DRUG CONVICTION.
7 2 1. Proof of participation in the illegal drug market in an
7 3 action brought under this chapter shall be shown by clear and
7 4 convincing evidence. Except as otherwise provided in this
7 5 chapter, other elements of the cause of action shall be shown
7 6 by a preponderance of the evidence.
7 7 2. A person against whom recovery is sought who has a
7 8 criminal conviction pursuant to state drug laws or 21 U.S.C. }
7 9 801 et seq. is estopped from denying participation in the
7 10 illegal drug market. Such a conviction is also prima facie
7 11 evidence of the person's participation in the illegal drug
7 12 market during the two years preceding the date of an action
7 13 giving rise to a conviction.
7 14 3. The absence of a criminal drug conviction of a person
7 15 against whom recovery is sought, including the presence of an
7 16 acquittal, does not bar an action against that person.
7 17 Sec. 10. NEW SECTION. 670B.10 PREJUDGMENT ATTACHMENT AND
7 18 EXECUTION ON JUDGMENTS.
7 19 1. Notwithstanding the provisions of chapter 639, a
7 20 plaintiff under this chapter, subject to subsection 3, may
7 21 request an ex parte prejudgment attachment order from the
7 22 court against all assets of a defendant sufficient to satisfy
7 23 a potential award. If attachment is instituted, a defendant
7 24 is entitled to an immediate hearing. Attachment may be lifted
7 25 if the defendant demonstrates that the assets will be
7 26 available for a potential award or if the defendant posts a
7 27 bond sufficient to cover a potential award.
7 28 2. A person against whom a judgment has been rendered
7 29 under this chapter is not eligible to exempt any property, of
7 30 whatever kind, from process to levy or process to execute on
7 31 the judgment.
7 32 3. Any assets sought to satisfy a judgment under this
7 33 chapter that are named in a forfeiture action or have been
7 34 seized for forfeiture by any state or federal agency may not
7 35 be used to satisfy a judgment unless and until the assets have
8 1 been released following the conclusion of the forfeiture
8 2 action or released by the agency that seized the assets.
8 3 However, this chapter does not replace or supersede any rights
8 4 or remedies with regard to property seized or forfeited
8 5 pursuant to chapters 809 and 809A.
8 6 Sec. 11. NEW SECTION. 670B.11 STATUTE OF LIMITATIONS.
8 7 1. Except as otherwise provided in this section, a claim
8 8 under this chapter shall not be brought more than two years
8 9 after the cause of action accrues. A cause of action accrues
8 10 under this chapter when a person who may recover has reason to
8 11 know of the harm from illegal drug use that is the basis for
8 12 the cause of action and has reason to know that the illegal
8 13 drug use is the cause of the harm.
8 14 2. a. For a plaintiff, notwithstanding chapter 614 or
8 15 other rule, the statute of limitations under this section is
8 16 tolled while the individual potential plaintiff is
8 17 incapacitated by the use of an illegal drug to the extent that
8 18 the individual cannot reasonably be expected to seek recovery.
8 19 b. For a defendant, the statute of limitations under this
8 20 section is tolled until six months after the individual
8 21 potential defendant is convicted of a criminal drug offense or
8 22 as otherwise provided by law.
8 23 3. The statute of limitations under the chapter for a
8 24 claim based on participation in the illegal drug market that
8 25 occurred prior to the effective date of this chapter does not
8 26 begin to run until the effective date this chapter.
8 27 Sec. 12. NEW SECTION. 670B.12 REPRESENTATION OF
8 28 GOVERNMENTAL ENTITIES – STAY OF ACTION.
8 29 1. A county attorney may represent the state or a
8 30 political subdivision of the state in an action brought under
8 31 this chapter.
8 32 2. On motion by a governmental agency involved in a drug
8 33 investigation or prosecution, an action brought under this
8 34 chapter shall be stayed until the completion of the criminal
8 35 investigation or prosecution that gave rise to the motion for
9 1 a stay of the action.
9 2 EXPLANATION
9 3 This bill creates a civil action for damages against
9 4 persons who cause injury by their participation in the illegal
9 5 drug market.
9 6 Plaintiffs may be a parent, legal guardian, child, spouse,
9 7 or sibling of the individual drug user, as well as an
9 8 employer, medical facility, insurer, or governmental entity
9 9 that expends moneys on the drug user. Any person injured by
9 10 the willful, reckless, or negligent action of a drug user may
9 11 also seek damages under a cause of action. An individual drug
9 12 user may also recover more limited damages after meeting
9 13 certain conditions, including refraining from drug use and
9 14 cooperating with law enforcement six months before bringing
9 15 suit.
9 16 Defendants include persons who knowingly distribute or
9 17 participate in the chain of distribution of illegal drugs to
9 18 the drug user or of the type used by the drug user.
9 19 A plaintiff may recover economic damages, including but not
9 20 limited to costs of treatment, loss of productivity,
9 21 accidents, or other pecuniary loss; noneconomic damages,
9 22 including but not limited to pain, suffering, and loss of
9 23 companionship; punitive damages; attorney fees; and costs of
9 24 suits, including but not limited to expert witness fees.
9 25 Other provisions regarding suit, including principles
9 26 relating to joinder of parties, comparative fault,
9 27 contribution among defendants, statute of limitations,
9 28 representation of government entities, and prejudgment
9 29 attachment of assets, are specified. Proof of participation
9 30 in the illegal drug market must be established by clear and
9 31 convincing evidence; other elements of the cause of action may
9 32 be established by a preponderance of the evidence. A person
9 33 who has a criminal drug conviction under state or federal law
9 34 cannot deny participation in the drug market, and the
9 35 conviction also constitutes prima facie evidence of such
10 1 participation for the two-year period prior to an act giving
10 2 rise to conviction.
10 3 LSB 1376YH 78
10 4 jj/cf/24
Text: HF00437 Text: HF00439 Text: HF00400 - HF00499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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