Does a Drug Dealer Face Civil Liability If Overdose Happens?

The act contemplates parents, spouses, siblings, child of a user, employers, insurers and governmental entities as possible plaintiffs.  Parents can include those suing for damages to a child “in utero,” i.e. a “drug baby,” or for the death of their adult child, i.e. in the Jim Carrey case brought against him by the mom of Cathriona White alleging that Mr. Carrey provided Ms. White the drugs causing her overdose on Ambien, Propranolol and Percocet.

The damages recoverable include economic damages, i.e. the actual money spent in hospital expenses, treatment and counseling, as well as non-economic damages (pain and suffering, loss of earnings capacity), costs of suit (including expert witness fees), attorney fees and punitive damages.  In other words, all damages normally available in a civil lawsuit, plus attorney fees.

Interestingly, liability under this act must be shown by clear and convincing evidence, which is higher than the traditional preponderance of the evidence standard.  However, the act specifies that if the defendant against whom recovery is sought has a criminal conviction under state law for the sales or transportation for sale of a controlled substance, that person is stopped (“legally barred”) from denying participation in the sale or marketing of such illegal drugs.

In other words, the best way a potential plaintiff in such a case should proceed is to let the criminal process proceed first to a conviction and then contemplate a civil action after.

Such a case must be approached with caution from a practical point of view, however, as no insurance company is going to offer coverage for someone or some business engaging in illegal activity.  Instead, a plaintiff must seek payment of damages from the personal assets of the individual defendant, which may not be much at all (Jim Carrey would be an exception), or of a business, which may be on the verge of declaring bankruptcy anyways.  In fact, the business may have attempted to stay afloat by engaging in the sale and / or marketing and distribution of illegal drugs for the high profit margins only.