Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1616 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 1252 FILED ON: 1/18/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1616
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	David Henry Argosky LeBoeuf
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act enhancing justice for families harmed by lead.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:David Henry Argosky LeBoeuf17th Worcester1/18/2023Vanna Howard17th Middlesex1/31/2023 1 of 5
16	16	HOUSE DOCKET, NO. 1252 FILED ON: 1/18/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1616
18	18	By Representative LeBoeuf of Worcester, a petition (accompanied by bill, House, No. 1616) of
19	19	David Henry Argosky LeBoeuf and Vanna Howard relative to legal proceedings to recover
20	20	damages caused by exposure to lead. The Judiciary.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 1725 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act enhancing justice for families harmed by lead.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Section 189A of Chapter 111, as appearing in the 2016 Official Edition, is
32	32	2hereby amended striking out the words “one hundred and ninety-nine B”, in line 2, and inserting
33	33	3in place thereof the following:-  “one hundred and ninety-nine C”
34	34	4 SECTION 2. Said section 189A of Chapter 111, as so appearing, is hereby further
35	35	5amended by inserting after the word “seventy-eight”, in line 39, the following:-
36	36	6 “Placing lead in commerce”.  A party shall be regarded as having placed lead in
37	37	7commerce if it offers lead for sale or incorporates lead into products and offers the products for
38	38	8sale, or the party knows or should have known that the sold materials consisting of lead or
39	39	9containing lead would be incorporated into products that would be offered for sale.  This shall 2 of 5
40	40	10not include sale for use that is not expected to cause exposures, such as lead batteries that are
41	41	11intended to be used in a closed-loop fashion and recycled, if the party placing lead into
42	42	12commerce has taken action to restrict sale to such uses and to provide assistance with recycling,
43	43	13unless it is shown that the party should have known the batteries or other lead-containing product
44	44	14intended to be used in a closed-loop fashion and recycled would not in fact be recycled.  It shall
45	45	15not include retail facilities that accept articles for sale and do not themselves incorporate lead
46	46	16into the products they sell.  It shall not include materials containing lead below limits set under
47	47	17federal or state definitions pertaining to lead-containing products.
48	48	18 “Lead-containing materials used to convey drinking water” shall include lead service
49	49	19lines and other components of drinking water systems. However, solder, brass fittings and
50	50	20pumps and decorative items shall not be included unless it is shown that lead content was present
51	51	21in excess of limits or in violation of proscriptions on use by any government authority.
52	52	22 SECTION 3. Said Chapter 111 is hereby amended by inserting, after Section 199B, the
53	53	23following section:-
54	54	24 Section 199C. (a) In any legal proceeding to recover damages caused by exposure to lead
55	55	25from coatings, lead-containing materials used to convey drinking water, materials prohibited by
56	56	26Section 196 of this chapter, and any other product made of or containing lead placed in
57	57	27commerce and used in residences, schools, hospitals or child-occupied facilities as defined under
58	58	28the federal Residential Lead-Based Paint Hazard Reduction Act, the inability to identify the
59	59	29specific party that placed lead or lead-containing products into commerce shall not prevent those
60	60	30harmed by such placement from recovering for damages caused by exposure to the lead or the
61	61	31lead-containing product. When a plaintiff is shown to have lead in blood, bones, teeth or other 3 of 5
62	62	32body tissues at levels identified in the scientific literature causative of injury such injury shall be
63	63	33presumed to have been caused by lead exposure. Plaintiffs suffering injury consistent with
64	64	34exposure to lead caused by the placement of such products in commerce may recover damages
65	65	35for their injury by establishing by a preponderance of evidence the following:
66	66	36 (1) that the defendant placed lead or lead-containing products into commerce which
67	67	37caused exposures sufficient to cause injury, and (2) that the party placing lead in commerce
68	68	38knew or should have known that such harm was a likely consequence of their actions, and
69	69	39 (3) the party placing lead in commerce took no or insufficient action to prevent such
70	70	40harm.
71	71	41 (b) No party placing lead into commerce shall be liable if they can show the following:
72	72	42 (1) that they took actions to prevent exposures by users of their product, sufficient to
73	73	43reach and adequately inform all potential users and to include all potential uses.  Proof of
74	74	44adequate measures taken to ensure safety through the life-cycle of the use of the lead or lead-
75	75	45containing product must include information about appropriate post-use management of the
76	76	46product, or
77	77	47 (2) that they sold their product for uses that a reasonable person could expect would not
78	78	48subject anyone to harm, or
79	79	49 (3) that their product could not have harmed the plaintiff, or
80	80	50 (4) that they had no reason to expect that their product might be used in residences,
81	81	51schools, hospitals, or child-occupied facilities as defined by the federal Residential Lead-Based 4 of 5
82	82	52Paint Hazard Reduction Act, or used by consumers in a manner that would cause exposure to
83	83	53lead, or
84	84	54  (c) A court may use any reasonable means of allocating liability amongst those who
85	85	55placed lead in commerce, including determining that liability may be apportioned according to
86	86	56the market share relevant to the activity that caused the harm.  The ability of courts to dictate
87	87	57allocation of liability amongst jointly responsible parties shall not mitigate the ability of
88	88	58plaintiffs to recover from any particular defendant found to be liable under this section.
89	89	59 (d) This section does not pertain to, nor does it remove any existing liability applicable to
90	90	60providers or sellers of housing, nor to the availability of a cause of action against defendants
91	91	61described herein by any plaintiffs except those injured by lead, except that public officials may
92	92	62seek compensation for victims of lead poisoning as part of an action seeking reimbursement for
93	93	63the costs of remediating lead-contaminated properties.
94	94	64 (e)  The remedy provided by this section is not exclusive and supplements any existing
95	95	65statutory or common law cause of action.
96	96	66 (f) A parent or guardian of a child, landlord, seller or manager of properties, housing
97	97	67authority, retailer, government official, child-occupied facility, school district or other entity
98	98	68except those placing lead in commerce shall not be liable to those placing lead in commerce in
99	99	69an action for contribution for damages recovered under this section.
100	100	70 (g) Nothing in this section shall prevent or mitigate any right to recover damages from
101	101	71exposure to lead nor any defense to such recovery available under other statutes or common law. 5 of 5
102	102	72 (h) The ability to recover damages from lead exposure under this section shall be
103	103	73available for six years after its passage, or six years from the time that a plaintiff has reason to
104	104	74know or should have known that they have the right to such recovery, whichever is longer.
105	105	75 (i)  The Department of Public Health, in consultation with agencies of the
106	106	76Commonwealth on the Toxics Use Reduction Administrative Council, and the Departments of
107	107	77Agricultural Resources and Fish and Wildlife as relevant, may add other products to this chapter,
108	108	78even though not commonly used in residences, schools, hospitals or child-occupied facilities, if
109	109	79they deem it advisable for the protection of public health.