§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.