§ 51-1-46 — "Drug Dealer Liability Act"; purpose; definitions; actions against persons participating in illegal marketing of controlled substances

(a) This Code section shall be known and may be cited as the "Drug Dealer Liability Act." (b) The General Assembly finds and declares that every community in Georgia is impacted by the marketing and distribution of illegal drugs. The purpose of this Code section is to provide a civil remedy for damages to persons in a community injured as a result of illegal drug use. Those persons include parents, employers, insurers, governmental entities, and others who pay for drug treatments, as well as infants injured as a result of exposure to drugs in utero. This Code section will enable them to recover from those persons in the community who have joined the illegal drug market. A further purpose of this Code section is to 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. Another purpose of this Code section is to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the illegal drug distribution market. (c) As used in this Code section, the term: (1) "Controlled substance" means that term as defined by paragraph (4) of Code Section 16-13-21 . For the purpose of this Code section, the term "controlled substance" shall include marijuana as defined by paragraph (16) of Code Section 16-13-21 . (2) "Individual drug abuser" means an individual who uses a controlled substance that is not obtained directly from or pursuant to a valid prescription or order of a practitioner who is acting in the course of the practitioner's professional practice or which use is not otherwise authorized by state law. (3) "Level one participation" means participating in illegal marketing of less than 50 grams of a mixture containing a specified controlled substance or of one or more pounds or 25 or more plants, but less than four pounds or 50 plants, of marijuana. (4) "Level two participation" means participating in illegal marketing of 50 or more grams, but less than 225 grams, of a mixture containing a specified controlled substance or of four or more pounds or 50 or more plants, but less than eight pounds or 75 plants, of marijuana. (5) "Level three participation" means participating in illegal marketing of 225 or more grams, but less than 650 grams, of a mixture containing a specified controlled substance or of eight or more pounds or 75 or more plants, but less than 16 pounds or 100 plants, of marijuana. (6) "Level four participation" means participating in illegal marketing of 650 or more grams of a mixture containing a specified controlled substance or of 16 or more pounds or 100 or more plants of marijuana. (7) "Market area" means the area in which a person is presumed to have participated in illegal marketing of a market area controlled substance. (8) "Market area controlled substance" means a specified controlled substance or marijuana. (9) "Participate in illegal marketing" means doing any of the following in violation of state or federal law: (A) Manufacturing, distributing, or delivering or attempting or conspiring to manufacture, distribute, or deliver, a controlled substance; or (B) Possessing or attempting or conspiring to possess a controlled substance with the intent to manufacture, distribute, or deliver a controlled substance. This definition shall not include any licensed practitioner who is acting in the course of the practitioner's professional practice. (10) "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. (11) "Practitioner" means that term as defined in paragraph (23) of Code Section 16-13-21 . (d) (1) A person injured by an individual drug abuser may bring an action under this Code section for damages against a person who participated in illegal marketing of the controlled substance used by the individual abuser. In an action brought under this Code section, participation in illegal marketing shall be proven by clear and convincing evidence. (2) If a plaintiff in an action under this Code section proves that the defendant participated in illegal marketing of a market area controlled substance actually used by the individual abuser who injured the plaintiff, the defendant is presumed to have injured the plaintiff and to have acted willfully and wantonly if the plaintiff is one of the following: (A) A parent, legal guardian, child, spouse, or sibling of the individual abuser; (B) A child whose mother was an individual abuser while the child was in utero; (C) The individual abuser's employer; or (D) A medical facility, insurer, governmental entity, or other legal entity that financially supports a drug treatment or other assistance program for, or that otherwise expends money or provides unreimbursed service on behalf of, the individual abuser. (e) (1) A plaintiff under paragraph (2) of subsection (d) of this Code section may prove that a defendant participated in illegal marketing of the market area controlled substance used by the individual abuser who injured the plaintiff by proving both of the following: (A) The defendant was participating in the illegal marketing of the market area controlled substance at the time the individual abuser obtained or used that market area controlled substance; and (B) The individual abuser obtained or used the market area controlled substance, or caused the injury, within the defendant's market area. (2) If a person participated in illegal marketing of a market area controlled substance, the person's market area for that controlled substance is the following: (A) For level one participation, each county in which the person participated in illegal marketing; (B) For level two participation, each market area described in subparagraph (A) of this paragraph plus all counties with a border contiguous to each of those market areas; (C) For level three participation, each market area described in subparagraph (B) of this paragraph plus all counties with a border contiguous to each of those market areas; and (D) For level four participation, the state. (f) (1) If a defendant under this Code section has a criminal conviction under state or federal law for an act that constitutes participation in illegal marketing of a controlled substance under this Code section, that person is conclusively presumed to have participated in illegal marketing of a controlled substance for the purposes of this Code section. (2) If a defendant is proved or presumed to have participated in illegal marketing of a controlled substance, that defendant is presumed to have participated during the two years before and the two years after the date of the participation or conviction, unless the defendant proves otherwise by clear and convincing evidence. (3) In addition to each county in which a defendant is proved to have actually participated in illegal marketing of a controlled substance, the defendant is presumed to have participated in each county in which the defendant resides, attends school, is employed, or does business during the period of participation. In addition to the counties in which the individual abuser is presumed to have obtained or used the controlled substance, the individual abuser is presumed to have obtained or used the controlled substance in each county in which the individual abuser resides, attends school, or is employed during the period of the individual's abuse of that controlled substance, unless the defendant proves otherwise by clear and convincing evidence. (g) (1) A person who is entitled to a recovery under this Code section may recover economic, noneconomic, and exemplary damages and reasonable attorneys' fees and costs, including, but not limited to, reasonable expenses for expert testimony. (2) A third party shall not pay damages awarded under this Code section or provide a defense or money for a defense on behalf of an insured under a contract of insurance or indemnification. (h) A cause of action accrues under this Code section when a person who may recover has reason to know of the harm from use of an illegally marketed controlled substance that is the basis for the cause of action and has reason to know that the controlled substance used is the cause of the harm. (i) (1) A prosecuting attorney may represent the state or a political subdivision of the state in an action brought under this Code section. (2) On motion by a governmental agency involved in a controlled substance investigation or prosecution, an action brought under this Code section shall be stayed until the completion of the investigation or prosecution that gave rise to the motion for a stay of the action. (3) An action shall not be brought under this Code section 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. (j) (1) Two or more persons may join in one action under this Code section as plaintiffs if their respective actions have at least one market area of illegal marketing activity in common. (2) 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. (3) 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.