Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1008 Compare Versions

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

Old	New	Differences
1	1	1 of 1
2	2	SENATE DOCKET, NO. 935 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1008
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patricia D. Jehlen
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 :Patricia D. JehlenSecond Middlesex 1 of 5
16	16	SENATE DOCKET, NO. 935 FILED ON: 1/18/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1008
18	18	By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 1008) of Patricia D. Jehlen for
19	19	legislation to enhance justice for families harmed by lead. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 1056 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act enhancing justice for families harmed by lead.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Section 189A of Chapter 111, as appearing in the 2018 Official Edition, is
31	31	2hereby amended striking out the words “one hundred and ninety-nine B”, in line 2, and inserting
32	32	3in place thereof the following:-  “one hundred and ninety-nine C”.
33	33	4 SECTION 2. Said section 189A of Chapter 111, as so appearing, is hereby further
34	34	5amended by inserting after the word “seventy-eight”, in line 39, the following:-
35	35	6 “Placing lead in commerce”.  A party shall be regarded as having placed lead in
36	36	7commerce if it offers lead for sale or incorporates lead into products and offers the products for
37	37	8sale, or the party knows or should have known that the sold materials consisting of lead or
38	38	9containing lead would be incorporated into products that would be offered for sale.  This shall
39	39	10not include sale for use that is not expected to cause exposures, such as lead batteries that are 2 of 5
40	40	11intended to be used in a closed-loop fashion and recycled, if the party placing lead into
41	41	12commerce has taken action to restrict sale to such uses and to provide assistance with recycling,
42	42	13unless it is shown that the party should have known the batteries or other lead-containing product
43	43	14intended to be used in a closed-loop fashion and recycled would not in fact be recycled.  It shall
44	44	15not include retail facilities that accept articles for sale and do not themselves incorporate lead
45	45	16into the products they sell.  It shall not include materials containing lead below limits set under
46	46	17federal or state definitions pertaining to lead-containing products.
47	47	18 “Lead-containing materials used to convey drinking water” shall include lead service
48	48	19lines and other components of drinking water systems. However, solder, brass fittings and
49	49	20pumps and decorative items shall not be included unless it is shown that lead content was present
50	50	21in excess of limits or in violation of proscriptions on use by any government authority.
51	51	22 SECTION 3. Said Chapter 111 is hereby amended by inserting, after Section 199B, the
52	52	23following section:-
53	53	24 Section 199C. (a) In any legal proceeding to recover damages caused by exposure to lead
54	54	25from coatings, lead-containing materials used to convey drinking water, materials prohibited by
55	55	26Section 196 of this chapter, and any other product made of or containing lead placed in
56	56	27commerce and used in residences, schools, hospitals or child-occupied facilities as defined under
57	57	28the federal Residential Lead-Based Paint Hazard Reduction Act, the inability to identify the
58	58	29specific party that placed lead or lead-containing products into commerce shall not prevent those
59	59	30harmed by such placement from recovering for damages caused by exposure to the lead or the
60	60	31lead-containing product. When a plaintiff is shown to have lead in blood, bones, teeth or other
61	61	32body tissues at levels identified in the scientific literature causative of injury such injury shall be 3 of 5
62	62	33presumed to have been caused by lead exposure. Plaintiffs suffering injury consistent with
63	63	34exposure to lead caused by the placement of such products in commerce may recover damages
64	64	35for their injury by establishing by a preponderance of evidence the following:
65	65	36 (1) that the defendant placed lead or lead-containing products into commerce which
66	66	37caused exposures sufficient to cause injury, and (2) that the party placing lead in commerce
67	67	38knew or should have known that such harm was a likely consequence of their actions, and (3) the
68	68	39party placing lead in commerce took no or insufficient action to prevent such harm.
69	69	40 (b) No party placing lead into commerce shall be liable if they can show the following:
70	70	41 (1) that they took actions to prevent exposures by users of their product, sufficient to
71	71	42reach and adequately inform all potential users and to include all potential uses.  Proof of
72	72	43adequate measures taken to ensure safety through the life-cycle of the use of the lead or lead-
73	73	44containing product must include information about appropriate post-use management of the
74	74	45product, or
75	75	46 (2) that they sold their product for uses that a reasonable person could expect would not
76	76	47subject anyone to harm, or
77	77	48 (3) that their product could not have harmed the plaintiff, or
78	78	49 (4) that they had no reason to expect that their product might be used in residences,
79	79	50schools, hospitals, or child-occupied facilities as defined by the federal Residential Lead-Based
80	80	51Paint Hazard Reduction Act, or used by consumers in a manner that would cause exposure to
81	81	52lead, or 4 of 5
82	82	53  (c) A court may use any reasonable means of allocating liability amongst those who
83	83	54placed lead in commerce, including determining that liability may be apportioned according to
84	84	55the market share relevant to the activity that caused the harm.  The ability of courts to dictate
85	85	56allocation of liability amongst jointly responsible parties shall not mitigate the ability of
86	86	57plaintiffs to recover from any particular defendant found to be liable under this section.
87	87	58 (d) This section does not pertain to, nor does it remove any existing liability applicable to
88	88	59providers or sellers of housing, nor to the availability of a cause of action against defendants
89	89	60described herein by any plaintiffs except those injured by lead, except that public officials may
90	90	61seek compensation for victims of lead poisoning as part of an action seeking reimbursement for
91	91	62the costs of remediating lead-contaminated properties.
92	92	63 (e)  The remedy provided by this section is not exclusive and supplements any existing
93	93	64statutory or common law cause of action.
94	94	65 (f) A parent or guardian of a child, landlord, seller or manager of properties, housing
95	95	66authority, retailer, government official, child-occupied facility, school district or other entity
96	96	67except those placing lead in commerce shall not be liable to those placing lead in commerce in
97	97	68an action for contribution for damages recovered under this section.
98	98	69 (g) Nothing in this section shall prevent or mitigate any right to recover damages from
99	99	70exposure to lead nor any defense to such recovery available under other statutes or common law.
100	100	71 (h) The ability to recover damages from lead exposure under this section shall be
101	101	72available for six years after its passage, or six years from the time that a plaintiff has reason to
102	102	73know or should have known that they have the right to such recovery, whichever is longer. 5 of 5
103	103	74 (i)  The Department of Public Health, in consultation with agencies of the
104	104	75Commonwealth on the Toxics Use Reduction Administrative Council, and the Departments of
105	105	76Agricultural Resources and Fish and Wildlife as relevant, may add other products to this chapter,
106	106	77even though not commonly used in residences, schools, hospitals or child-occupied facilities, if
107	107	78they deem it advisable for the protection of public health.