Amendment AA1-ASA1-SB40

SB40-ASA1-AA1,449,2 " Section 3775m. 895.08 of the statutes is created to read:

SB40-ASA1-AA1,449,4 895.08 Short title. This section and ss. 895.09 to 895.13 shall be known as the "Drug Dealer Liability Law."

SB40-ASA1-AA1, s. 3775n Section 3775n. 895.09 of the statutes is created to read:

SB40-ASA1-AA1,449,6 895.09 Definitions. In ss. 895.08 to 895.13:

SB40-ASA1-AA1,449,8 (1) "Illegal drug" means a controlled substance or controlled substance analog whose distribution is a violation of s. 961.41.

SB40-ASA1-AA1,449,11 (2) "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.

SB40-ASA1-AA1,449,13 (3) "Individual drug user" means the individual whose illegal drug use is the basis of an action brought under s. 895.10.

SB40-ASA1-AA1,449,18 (4) "Level 1 offense" means possession of 7 grams or more, but less than 113 grams, or distribution of less than 28 grams of a specified illegal drug other than marijuana, or possession of 454 grams or more, but less than 1.8 kilograms, of marijuana, or possession of 25 plants or more, but less than 50 plants, containing tetrahydrocannabinols, or distribution of less than 454 grams of marijuana.

SB40-ASA1-AA1,449,24 (5) "Level 2 offense" means possession of 113 grams or more, but less than 227 grams, or distribution of 28 grams or more, but less than 56 grams, of a specified illegal drug other than marijuana, or possession of 1.8 kilograms or more, but less than 3.6 kilograms of marijuana, or possession of 50 plants or more, but less than 75 plants, containing tetrahydrocannabinols, or distribution of more than 454 grams, but less than 2.3 kilograms, of marijuana.

SB40-ASA1-AA1,450,6 (6) "Level 3 offense" means possession of 227 grams or more, but less than 454 grams, or distribution of 56 grams or more, but less than 113 grams, of a specified illegal drug other than marijuana, or possession of 3.6 kilograms or more, but less than 7.3 kilograms of marijuana, or possession of 75 plants or more, but less than 100 plants, containing tetrahydrocannabinols, or distribution of more than 2.3 kilograms, but less than 4.5 kilograms, of marijuana.

SB40-ASA1-AA1,450,10 (7) "Level 4 offense" means possession of 454 grams or more or distribution of 113 grams or more of a specified illegal drug other than marijuana, or possession of 7.3 kilograms or more of marijuana, or possession of 100 plants or more containing tetrahydrocannabinols, or distribution of 4.5 kilograms or more of marijuana.

SB40-ASA1-AA1,450,11 (8) "Marijuana" has the meaning given in s. 961.01 (14).

SB40-ASA1-AA1,450,17 (9) "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.

SB40-ASA1-AA1,450,22 (10) "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 under s. 895.10. The period of illegal drug use is presumed to commence 2 years before the cause of action accrues unless the defendant proves otherwise by clear and convincing evidence.

SB40-ASA1-AA1,451,2 (11) "Place of illegal drug activity" means, in relation to the individual drug user and unless the defendant proves otherwise by clear and convincing evidence, each assembly district in which a claim is made that 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.

SB40-ASA1-AA1,451,6 (12) "Place of participation" means, in relation to a defendant in an action brought under s. 895.10, each assembly district 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.

SB40-ASA1-AA1, s. 3775p Section 3775p. 895.10 of the statutes is created to read:

SB40-ASA1-AA1,451,11 895.10 Liability for participation in the illegal drug market. (1) A person who knowingly participates in the illegal drug market within this state is liable for civil damages as provided in this section. A person may recover damages under this section for injury resulting from an individual's use of an illegal drug.

SB40-ASA1-AA1,451,15 (2) 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.

SB40-ASA1-AA1,451,17 (3) One or more of the following persons may bring an action for damages caused by an individual's use of an illegal drug:

SB40-ASA1-AA1,451,19 (a) A parent, legal guardian, child, spouse, or sibling of the individual drug user.

SB40-ASA1-AA1,451,20 (b) An individual who was exposed to an illegal drug in utero.

SB40-ASA1-AA1,451,21 (c) An employer of the individual drug user.

SB40-ASA1-AA1,451,25 (d) A medical facility, insurer, governmental agency, 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.

SB40-ASA1-AA1,452,2 (e) A person injured as a result of the willful, reckless, or negligent actions of an individual drug user.

SB40-ASA1-AA1,452,5 (4) A person entitled to bring an action under this section may seek damages from a person who knowingly distributed, or knowingly participated in the chain of distribution of, an illegal drug that was used by the individual drug user.

SB40-ASA1-AA1,452,7 (5) A person entitled to bring an action under this section may recover all of the following:

SB40-ASA1-AA1,452,11 (a) Economic damages, including 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.

SB40-ASA1-AA1,452,15 (b) Noneconomic damages, including 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.

SB40-ASA1-AA1,452,16 (c) Exemplary damages.

SB40-ASA1-AA1,452,17 (d) Reasonable attorney fees.

SB40-ASA1-AA1,452,18 (e) Costs of the suit, including reasonable expenses for expert testimony.

SB40-ASA1-AA1,452,22 (6) (a) An individual drug user may not bring an action for damages under this section caused by the use of an illegal drug, except as 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:

SB40-ASA1-AA1,452,25 1. The individual personally discloses to law enforcement authorities, more than 6 months before filing the action, all of the information known to the individual regarding all of that individual's sources of illegal drugs.

SB40-ASA1-AA1,453,2 2. The individual has not used an illegal drug within the 6 months before filing the action.

SB40-ASA1-AA1,453,4 3. The individual continues to remain free of the use of an illegal drug throughout the pendency of the action.

SB40-ASA1-AA1,453,7 (b) A person entitled to bring an action under this subsection 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.

SB40-ASA1-AA1,453,9 (c) A person entitled to bring an action under this subsection may recover only the following damages:

SB40-ASA1-AA1,453,13 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.

SB40-ASA1-AA1,453,14 2. Reasonable attorney fees.

SB40-ASA1-AA1,453,15 3. Costs of the suit, including reasonable expenses for expert testimony.

SB40-ASA1-AA1, s. 3775q Section 3775q. 895.11 of the statutes is created to read:

SB40-ASA1-AA1,453,19 895.11 Third-party cases and target communities. (1) A 3rd party may not pay damages awarded under s. 895.10, or provide a defense or money for a defense, on behalf of an insured under a contract of insurance or indemnification.

SB40-ASA1-AA1,453,22 (2) A person whose participation in the illegal drug market constitutes the following level of offense shall be considered to have the following illegal drug market target community:

SB40-ASA1-AA1,453,24 (a) For a level 1 offense, all assembly districts that comprise the person's place of participation.

SB40-ASA1-AA1,454,2 (b) For a level 2 offense, the target community described in par. (a) plus all assembly districts with a border contiguous to that target community.

SB40-ASA1-AA1,454,4 (c) For a level 3 offense, the target community described in par. (b) plus all assembly districts with a border contiguous to that target community.

SB40-ASA1-AA1,454,5 (d) For a level 4 offense, the state.

SB40-ASA1-AA1, s. 3775r Section 3775r. 895.12 of the statutes is created to read:

SB40-ASA1-AA1,454,12 895.12 Joinder, responsibility, contribution, and standard of proof. (1) Joinder of parties. (a) Two or more persons may join in one action under s. 895.10 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 related to one plaintiff's damages overlaps with the period of illegal drug use related to every other plaintiff's damages.

SB40-ASA1-AA1,454,14 (b) Two or more persons may be joined in one action under s. 895.10 as defendants if those persons are liable to at least one plaintiff.

SB40-ASA1-AA1,454,18 (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.

SB40-ASA1-AA1,454,20 (2) Comparative responsibility. (a) Section 895.045 applies to an action under s. 895.10.

SB40-ASA1-AA1,454,22 (b) The burden of proving the comparative negligence of the plaintiff is on the defendant, which shall be shown by clear and convincing evidence.

SB40-ASA1-AA1,454,24 (c) Comparative negligence may not be attributed to a plaintiff who is not an individual drug user.

SB40-ASA1-AA1,455,6 (3) Contribution among and recovery from multiple defendants. A person subject to liability under s. 895.10 has a right of action for contribution against another person subject to liability under that section. 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 s. 895.10 and existing law against a person whom a defendant has asserted a right of contribution.

SB40-ASA1-AA1,455,11 (4) Standard of proof: effect of criminal drug conviction. (a) Proof of participation in the illegal drug market in an action brought under s. 895.10 shall be shown by clear and convincing evidence. Except as otherwise provided in this section and ss. 895.09, 895.10, 895.11, and 895.13, other elements of the cause of action shall be shown by a preponderance of the evidence.

SB40-ASA1-AA1,455,16 (b) A person against whom recovery is sought who has a criminal conviction under ch. 961 or 21 USC 801 to 971, 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 2 years preceding the date of an act giving rise to a conviction.

SB40-ASA1-AA1,455,18 (c) The absence of a criminal conviction described under par. (b) of a person against whom recovery is sought does not bar an action against that person.

SB40-ASA1-AA1, s. 3775s Section 3775s. 895.13 of the statutes is created to read:

SB40-ASA1-AA1,456,2 895.13 Attachment, execution, and stay. (1) Except as provided in sub. (3), a plaintiff under s. 895.10 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 court hearing. The court may lift the attachment 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.

SB40-ASA1-AA1,456,5 (2) A person against whom a judgment has been rendered under s. 895.10 is not eligible to exempt any property, of whatever kind, from process to levy or process to execute on the judgment.

SB40-ASA1-AA1,456,10 (3) Any assets sought to satisfy a judgment in an action under s. 895.10 that are named in a forfeiture action or that 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.

SB40-ASA1-AA1,456,12 (4) The district attorney may represent the state or a political subdivision of the state in an action brought under s. 895.10.

SB40-ASA1-AA1,456,16 (5) On motion by a governmental agency involved in a drug investigation or prosecution, an action brought under s. 895.10 shall be stayed until the completion of the criminal investigation or prosecution that gave rise to the motion for a stay of the action.".

SB40-ASA1-AA1,456,17 2044. Page 1533, line 7: after that line insert:

SB40-ASA1-AA1,456,18 " Section 3775g. 895.046 of the statutes is created to read:

SB40-ASA1-AA1,456,20 895.046 Remedies against manufacturers, distributors, sellers, and promoters of products. (1) Definitions. In this section:

SB40-ASA1-AA1,456,22 (a) "Claimant" means a person seeking damages or other relief for injury or harm to a person or property caused by or arising from a product.

SB40-ASA1-AA1,457,3 (b) "Relevant production period" means the time period during which the specific product that allegedly caused the claimant's injury or harm was manufactured, distributed, sold, or promoted.

SB40-ASA1-AA1,457,10 (2) Applicability. This section applies to all actions in which a claimant alleges that the manufacturer, distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations that the design, manufacture, distribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a personal injury or harm to a person or property, a private nuisance, or a public nuisance, and to all related or independent claims, including unjust enrichment, restitution, or indemnification.

SB40-ASA1-AA1,457,16 (3) Remedy with specific product identification. Except as provided in sub. (4), the manufacturer, distributor, seller, or promoter of a product may be held liable in an action under sub. (2) only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant's injury or harm.

SB40-ASA1-AA1,457,20 (4) Remedy without specific product identification. Subject to sub. (5), if a claimant cannot meet the burden of proof under sub. (3), the manufacturer, distributor, seller, or promoter of a product may be held liable for an action under sub. (2) only if the claimant proves all of the following:

SB40-ASA1-AA1,457,22 (a) That no other lawful process exists for the claimant to seek redress from another person for the injury or harm.

SB40-ASA1-AA1,457,25 (b) That the claimant has suffered an injury or harm that can be caused only by a product chemically identical to the specific product that allegedly caused the claimant's injury or harm.

SB40-ASA1-AA1,458,3 (c) That the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted a product that meets all of the following criteria:

SB40-ASA1-AA1,458,5 1. Is chemically identical to the specific product that allegedly caused the claimant's injury or harm.

SB40-ASA1-AA1,458,8 2. Was manufactured, distributed, sold, or promoted in this state during the time period in which the specific product that allegedly caused the claimant's injury or harm was manufactured, distributed, sold, or promoted.

SB40-ASA1-AA1,458,12 (dm) That the action names, as defendants, those manufacturers of a product who collectively, during the relevant production period, manufactured at least 80 percent of all products sold in this state that are chemically identical to the specific product that allegedly caused the claimant's injury or harm.

SB40-ASA1-AA1,458,18 (5) Limitation on liability. No manufacturer, distributor, seller, or promoter of a product is liable under sub. (4) if more than 25 years have passed between the date that the manufacturer, distributor, seller, or promoter of a product last manufactured, distributed, sold, or promoted a product chemically identical to the specific product that allegedly caused the claimant's injury and the date that the claimant's cause of action accrued.

SB40-ASA1-AA1,458,22 (6) Apportionment of liability. If more than one manufacturer, distributor, seller, or promoter of a product is found liable for the claimant's injury or harm under subs. (4) and (5), the court shall apportion liability among those manufacturers, distributors, sellers, and promoters, but that liability shall be several and not joint.".

SB40-ASA1-AA1,458,23 2045. Page 1533, line 8: delete lines 8 to 25.

SB40-ASA1-AA1,458,24 2046. Page 1534, line 1: delete lines 1 to 8.

SB40-ASA1-AA1,459,1 2047. Page 1534, line 17: after that line insert:

SB40-ASA1-AA1,459,2 " Section 3778r. 904.16 of the statutes is created to read:

SB40-ASA1-AA1,459,9 904.16 Health care reports. Any reports that a state or federal regulatory agency requires a health care provider, as defined in s. 146.81 (1), to give or disclose to that state or federal regulatory agency and other information obtained by the state or federal regulatory agency regarding a health care provider may not be used as evidence in a civil or criminal action brought against the health care provider, except that those reports and information may be used as evidence in any administrative proceeding conducted by the state regulatory agency.".

SB40-ASA1-AA1,459,10 2048. Page 1534, line 17: after that line insert:

SB40-ASA1-AA1,459,11 " Section 3778q. 895.52 (6) (a) (intro.) of the statutes is amended to read:

SB40-ASA1-AA1,459,18 895.52 (6) (a) (intro.) The private property owner collects money, goods or services in payment for the use of the owner's property for the recreational activity during which the death or injury occurs, and the aggregate value of all payments received by the owner for the use of the owner's property for recreational activities during the year in which the death or injury occurs exceeds $2,000 $10,000. The following do not constitute payment to a private property owner for the use of his or her property for a recreational activity:".