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