Federal Lawyer - May, 1998 - Column Focus On - PRODUCTS LIABILITY FOR ILLEGAL DRUGS - Daniel Bent [1] - Sarah Gohl [2] - Copyright 1998 by the Federal Bar Association; Daniel Bent, Sarah Gohl
Legislatures across the nation are passing a unique new statute that provides redress for those injured by illegal drugs. This new law, known as the Drug Dealer Liability Act (DDLA), makes drug dealers civilly liable to families who lose a child to illegal drugs and others injured by illegal drugs. It is essentially a products liability act for illegal drugs. This act allows the imposition of civil liability in addition to any criminal liability there may be. It adds a new dimension to a family's and a community's ability to protect its children from illegal drugs.
Further purposes of the DDLA are to establish the prospect of substantial monetary loss to deter those who have not yet entered the illegal drug distribution market and to establish an incentive for drug users to seek payment for their own drug treatment from those dealers who have sold drugs to the user in the past.
Every community in our country is affected by the marketing and distribution of illegal drugs. A vast amount of federal, state, and local resources are expended in coping with the financial, physical, and emotional toll that results from the illegal drug market. Families, employers, insurers, and society in general bear the substantial costs associated with the marketing and distribution of illegal drugs. Drug babies and parents, particularly those of adolescent illegal drug users, suffer significant non-economic injury, as well.
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 profited from the illegal drug market should bear the costs of the harm caused by that market.
Currently, Michigan, Oklahoma, Illinois, Hawaii, Arkansas, California, South Dakota, Utah, Georgia, and Indiana have passed the Drug Dealer Liability Act. The DDLA reads simply: "[a] person who knowingly participates in the illegal drug market within this state is liable for civil damages as provided in this Act. A person may recover damages under this Act for injury resulting from an individual's use of an illegal drug." Recoverable damages include: economic damages for out of pocket costs; non-economic damages for pain, suffering, and distress; exemplary damages; attorney's fees; and, costs of suit. Existing law in the remaining 40 states does not clearly establish a means by which drug dealers can be made to pay damages for the injuries they cause. The Drug Dealer Liability Act fills that void.
The DDLA 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 later become large dealers. These small dealers are most likely to be deterred by the threat of civil liability.
The first lawsuit brought under the act resulted in a judgment on July 21, 1995, of $1 million in favor of a drug baby and more than $7 million to the city of Detroit's expenses for providing drug treatment to inmates in Detroit jails. Two Detroit dealers were ordered to pay the damages to the drug baby's siblings because the baby was born addicted to cocaine and was later bludgeoned to death by her mother while high on drugs.
In Utah, the wife of a drug-using professional has brought a Drug Dealer Liability Act case against her husband's dealer of six years. That case is pending.
The Drug Dealer Liability Act offers a new approach to combating illegal drugs. Because it would be impossible to identify each person in a chain of illegal drug distribution, the act establishes a form of "market liability" so a plaintiff need only prove that a defendant was distributing illegal drugs in the plaintiff's community at the time the plaintiff was injured by the same type of drug. The plaintiff need not prove that the drug user received a specific defendant's illegal drugs.
Cases can be brought by guardians of drug babies, families of adolescent users, employers, and public hospitals that pay for treatment of drug babies, and others. The principles of "market liability" or "market-share liability" in existing case law allow civil recovery from manufacturers of hazardous materials for injury caused by those materials which affect health, even if the source of the particular product that caused the injury cannot be identified. The cases involving the pharmaceutical DES are examples. The DDLA is a legislatively created form of "market liability" to cause illegal drug dealers to pay damages for the injuries caused by their illegal drugs.
The act permits parents of children in drug treatment, state and county public agencies that pay for drug treatment and illegal drug related medical care, hospitals caring for drug babies, insurers, employers, and others who are financially injured because of illegal drugs to recover in a civil action any assets in the hands of drug dealers who have distributed drugs in their communities.
Existing federal and state drug forfeiture laws require that the money seized from convicted drug dealers be returned to them if not directly connected to their drug crimes. On the other hand, all assets, whether drug- related or not, can be recovered by a successful plaintiff under the DDLA.
Without the Drug Dealer Liability Act it would be difficult, if not impossible, for such recovery to be obtained. Current tort laws permit those intentionally and negligently injured by others to recover damages from those parties. In theory, civil actions for damages for distribution of illegal drugs can be brought under existing law. However, under existing tort law, only those dealers in the actual chain of distribution to a particular user can be sued. Drug babies, parents of adolescent drug users, and insurers are not likely to be able to identify the actual chain of distribution to a particular user. Furthermore, users and recovered users are unlikely to bring suit because they do not know other dealers in the chain of distribution. Unlike the chain of distribution for legal products, in which records identify the parties to each transaction, the distribution of illegal drugs is very clandestine as the dealers expend considerable effort to keep the chain of distribution secret. The DDLA, through its market liability approach, helps resolve the difficulties in bringing a successful lawsuit. States that have not yet passed the DDLA do not yet similarly provide for compensation from those distributing illegal drugs.
The Drug Dealer Liability Act is the first law of its kind to hold dealers who intentionally distribute illegal drugs liable for the injury they cause. It has received national attention from the Larry King Live television program, CNN, the Wall Street Journal, the National Law Journal, and Lawyers Weekly USA. The act promises a new avenue for those who have suffered because of the sale of illegal drugs in their communities who just "don't want to take it anymore!"
You can actively work to have the Drug Dealer Liability Act enacted and used in your state. By working to have the DDLA become law, and once enacted used to sue drug dealers, you will personally help establish clear civil consequences for the act of distributing illegal drugs in America's communities. Once enacted throughout the country, every drug dealer will know that law enforcement and criminal prosecution are only part of their problems.
[1]. Daniel Bent, author of the Drug Dealer Liability Act, previously served as U.S. attorney for Hawaii for 10 years. He is now a partner in the firm of Carlsmith Ball LLP, practicing in the areas of commercial litigation, mediation, and arbitration and intellectual property law. He received a degree in mechanical engineering from Louisiana State University and his law degree from Georgetown University. [Updated post publication.]
[2]. Sarah Gohl, at the time of this article, was the Eureka College student body president for the second year; a senior from Bethel, Minn., majoring in political science/business administration with a minor in Spanish and a Reagan Fellow. She spent last summer in Honolulu, mentoring with Daniel Bent and with David McClain, director of the University of Hawaii's Japan-focused MBA program and APEC Studies Center. She attends Duke University Law School. [Updated post publication.]