2023 Louisiana Laws
Revised Statutes
Title 9 - Civil Code-Ancillaries
§9:2800.77. Liability for fentanyl ingestion
RS 9:2800.77 - Liability for fentanyl ingestion
A. Any entity or foreign state engaging in or facilitating illicit fentanyl trafficking or its related commercial activity shall be liable for damages for serious bodily injury or death to all persons beginning January 1, 2015, resulting from the unintended ingestion of illicit fentanyl in this state if the entity or foreign state was engaging in or facilitating illicit fentanyl trafficking or its related commercial activity, having a sufficient nexus or substantial contact with the United States and with this state at the time of the ingestion resulting in the injury or death or at a time bearing a rational nexus to the ingestion, whereupon the fault of the entity or foreign state is thereby established by a rebuttable presumption.
B. A plaintiff in an action brought pursuant to this Section shall be entitled to damages, including exemplary damages, expert witness fees and expenses, court costs, and reasonable attorney fees.
C.(1) The defendant in an action for damages arising from illicit fentanyl trafficking or its related commercial activity brought pursuant to this Section may rebut the presumption of fault established in this Section, whereupon in the event the defendant in such an action shall have the burden of proving that the defendant was not engaging in or facilitating illicit fentanyl trafficking or its related commercial activity, directly or through an agent, at the time of ingestion resulting in the injury or death, or at a time bearing a rational nexus to the ingestion, for which damages are sought under this Section.
(2) This Subsection shall not apply to any manufacturer of fentanyl that is registered with the United States Attorney General pursuant to 21 U.S.C. 822.
(3) Credible information or statistical data including publications of information or statistical data provided by the United States government, its agencies, courts, or congress, or publications of information by this state, its agencies, courts, or legislature, of illicit fentanyl trafficking or its related commercial activity by an entity or foreign state, or of the nexus or contact of that trafficking or related commercial activity to the United States or to this state shall be sufficient evidence in order for the plaintiff to establish such trafficking or related commercial activity or the nexus or contact thereof to the United States or to this state to meet the burden of proof in relation thereto for the establishment of an action brought pursuant to this Section.
D. The actions of a person ingesting illicit fentanyl under circumstances whereby it is unlikely that the person had knowledge or awareness of the presence of illicit fentanyl being ingested shall not be attributable as comparative fault as provided by Civil Code Article 2323.
E. An action against an entity or foreign state for damages resulting from the illicit trafficking of fentanyl or its related commercial activity shall be subject to a liberative prescription of thirty years. This prescription commences to run from the day of the injury.
F. For the purposes of this Section:
(1) "Commercial activity" means any of the following:
(a) Any activity pertaining to commerce relating to illicit fentanyl trafficking.
(b) "Commercial activity" means the same as provided by 28 U.S.C. 1603.
(2) "Entity" means a natural or juridical person and includes any association or entity, including any drug cartel or transnational criminal organization.
(3) "Foreign state" means the same as provided in 28 U.S.C. 1603.
(4) "Illicit fentanyl" means any of the following:
(a) A mixture or substance containing a detectable amount of fentanyl or its analogues, or carfentanil, or a mixture or substance containing a detectable amount of carfentanil or its analogues, as provided by R.S. 40:967. It shall not include any substance obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978, while acting in the course of the practitioner's professional practice.
(b) A mixture or substance containing a detectable amount of fentanyl precursor agents, licit or illicit, that can be used in the production of fentanyl.
(5) "Ingestion" means the taking, absorption, consumption, or exposure to illicit fentanyl.
(6) "Serious bodily injury" means a bodily injury which involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss, or impairment of a bodily member, organ, or mental faculty, or a substantial risk of death.
(7) "Trafficking" means any of the following:
(a) Any activity, directly or through an agent, to produce, manufacture, distribute, sell, knowingly finance, or transport illicit fentanyl or to cause or facilitate illicit fentanyl to be placed into the stream of commerce.
(b) Any activity, directly or through an agent to assist, conspire, or collude with any other entity or foreign state to carry out activity described in Subparagraph (a) of this Paragraph.
(c) Any activity by a foreign state, directly or through an agent, to facilitate or allow by silent acquiescence or otherwise the placement of licit or illicit fentanyl precursor agents into the stream of commerce under circumstances whereby the fentanyl precursor agents are likely to be manufactured into illicit fentanyl and transported into the United States or this state.
Acts 2023, No. 412, §1.
