Nexus of Causation Required in Personal Injury Law
By many measures, Oklahoma is one of the nation’s toughest law-and-order states. The Sooner State leads the nation in fatal shootings by police per capita, is number two for incarcerated residents per capita and leads in death row executions per capita. Oklahoma was also one of the first states to adopt a law holding any illegal drug dealer responsible for generalized harm resulting from the illegal drug market in their community.
Considering Oklahoma’s lethal law-and-order reputation, it may come as a surprise that an Oklahoma court would also be the first to declare unconstitutional a non-traditional liability aspect of a law that holds drug dealers responsible for harm caused by illegal drugs they did not sell to the defendants.
Part of Oklahoma Drug Dealer Liability Act is unconstitutional because it arbitrarily holds defendants liable for damages without regard to whether they actually caused the harm. In August, 2015, Oklahoma Supreme Court said the law’s tenuous construct of market share liability denies defendants substantive due process of law.
20-Year-Old Law Fabricated Causation
Along with Michigan, Oklahoma in 1994 was one of the first states to pass a law holding drug dealers civilly liable merely for their participation in the illegal drug market. Within prescribed limits, anyone harmed by illegal drugs could sue any or all illegal drug dealers.
In 1995, Michigan’s $8.7 million default judgment against two drug dealers with no direct connection to plaintiffs who sued them set the stage for other state legislature’s acceptance of a model law. At least 16 states now have similar laws patterned after a model first authored by a former United States Attorney in Hawaii. Oklahoma Supreme Court presiding Judge Brian Goree noted his court was the first to publish an opinion about constitutionality of the novel concept of drug dealer liability.
In the 1995 Michigan case, a baby born addicted to cocaine was later murdered by a drug addled mother. The judgment sought to fund drug treatment for inmates in Detroit jails. A subsequent South Dakota case in 2000 resulted in a $268 million judgment in favor of a woman whose husband was killed in a car crash caused by a drugged driver. In that case, the defendant had provided drugs to the driver.
In the case that led to the Oklahoma law being scaled back, no connection was alleged between three children whose family brought the lawsuit and 51 named defendants. The defendants’ sole connection with the children was that they had each been charged with or convicted of drug distribution crimes in Tulsa County. Of the 51 named, 11 defendants had not been convicted of a crime at the time of the lawsuit. Others had pleaded guilty and been handed deferred sentences.
A Tulsa County judge without explanation dismissed the law as unconstitutional in August, 2014. Plaintiffs appealed, paving the way for a Supreme Court review.
The three children on whose behalf the lawsuit was filed had been taken from their mother for their own safety. The mother used marijuana, methamphetamine and other illegal drugs, according to the lawsuit. The petition alleged the children suffered loss of economic potential, emotional pain, loss of companionship and other damages relating to mental anguish and lost consortium.
Limits of Market Share Liability
In considering the Oklahoma law’s merits, the state Supreme Court examined the concept of market share liability on which the law is constructed. The Oklahoma law allowed plaintiffs to name as defendants anyone charged with or convicted of participating in the “illegal drug market target community.” The Oklahoma Drug Dealer Liabilty Act did not tie any defendant’s liability to their particular share of the illegal drug market.
The law extended liability to any defendant who participated in a drug market in the same area as the plaintiff, at approximately the time a drug user obtained drugs from that market and who marketed a type of illegal drugs used by a plaintiff. Depending on the quantities of drugs alleged to have been sold, a defendant could be held liable for claimed harm in the same county as the alleged sales or statewide.
The Oklahoma Supreme Court had previously rejected the concept of market share liability in an asbestos lawsuit – Case v. Fireboard Corp. 1987 OK 79. Asbestos produced by several manufacturers was used in more than 3,000 products. The defendants had been unable to determine which particular asbestos product had caused their injuries. The court noted it would be “incalculably difficult” to determine how much each manufacture of those 3000 products contributed the defendant’s claimed harm.
In the asbestos case, the Oklahoma court found the nexus between the claimed harm and alleged wrongful conduct was too tenuous to hold any defendant liable. “Causation is a traditional element of tort liability,” the Oklahoma court stated.
It did not escape the court’s notice that other states have upheld market share liability in some form. Yet, when the California Supreme Court embraced market share liability in Sindell v. Abbott Laboratories, 163 Cal. Rptr. 132 (1980), drug manufacturers’ liability for harm caused by an artificial estrogen (diethylstilbestrol) was tied to the portion of the overall supply of drug each manufacturer had produced.
In California, manufacturers of otherwise lawful drugs where held liable for their portion of the overall market for a product because it was otherwise impossible to determine which maker had produced the doses of the particular drug that injured the plaintiff.
Drug Dealers Could Still Be Liable
The Oklahoma decision does not excuse illegal drug dealers from liability for harm caused by drugs they sell. Common law and volumes of case law hold tortfeasors liable when a reasonable nexus can be established between the plaintiff’s actions and a specific injury. The illegal nature of drug sales supports claims that drug dealers failed to exercise reasonable care although their buyers voluntarily purchased the drugs.
Beyond conventional approaches to recovering damages resulting from illegal drug sales within the scope of personal injury law, portions of the Oklahoma Drug Dealer Liability Act remain in effect. The court only struck down Okla. Stat. Tit. 63 § 2-424 (B)(2). That was where lawmakers tried to extend liability to illegal drug market participants. Okla. Stat. Tit. 63 § 2-424 (B)(1) remains in effect, although untested in Oklahoma appellate courts. That section allows defendants to seek damages from someone who knowingly participated in distribution of drugs to the individual user.
The law allows recovery of both economic and non-economic damage, as well as exemplary damages and attorneys fees. Economic damages can include costs of treatment or rehabilitation, lost productivity, absenteeism and other money damages resulting from drug use. Non-economic damages include pain and suffering, emotional distress, disfigurement and loss of consortium.
Plaintiffs authorized to file claims under the Drug Dealer Liability Act include family members, children exposed to drugs in utero, employers and entities that provide drug treatment programs. Individual drug users are allowed to bring claims within certain limitations, but may only seek economic damages, attorneys fees and costs.
Restrictions on individual drug users suing their drug dealers include requirements that they tell narcotics enforcement authorities everything they can about their drug dealers six months before filing the claim. Individual drug users who file claims against their former dealers must also not use illegal drugs for six months prior to filing the action and remain drug free during the time the lawsuit is being decided.
Strategy Session: Tulsa Injury Attorney
If you suffered a loss as a result of someone’s illegal activity, you may be entitled to compensation for your loss. Contact a Tulsa injury attorney to learn how to get the compensation you deserve. For a confidential strategy session with a Tulsa personal injury attorney, call Wirth Law Office at (918) 879-1681 or send your question using the form on this page.
