BRIAN JACK GOREE, Presiding Judge.
¶ 1 The issue in this appeal is whether the Drug Dealer Liability Act, 63 O.S. 2011 § 2-421 et seq., is unconstitutional. The Act permits a plaintiff who is harmed by the use of an illegal drug to recover civil damages against a defendant who has participated in the illegal drug market. The Drug Dealer Liability Act is a new and non-traditional basis for civil liability because it allows damages without proof that the defendant caused the harm allegedly suffered. We hold that the statutory parameters purporting to connect plaintiffs who are harmed by an illegal drug, and defendants who participated in the illegal drug market, are so arbitrary that liability imposed by the Act would deprive a defendant of due process of law. Title 63 O.S. 2011 § 2-424(B)(2) is unconstitutional.
¶ 2 Three minors commenced this action by their next friends, Breanne Steed and Jerri Van Ellen (Plaintiffs). Plaintiffs allege the children have suffered damages as a result of their mothers' use of marijuana in Tulsa, Oklahoma. They sued 51 defendants. The petition alleges that each defendant has been arrested and charged with an illegal drug offense in Tulsa County. One of the defendants is Chase Bain-Holloway.
¶ 3 Plaintiffs allege Bain-Holloway was arrested after the police recovered 232 grams of marijuana in a plastic bag and $1,560 cash in the center console of a car he was occupying. The petition also alleges Bain-Holloway's cell phone contained text messages suggesting he was arranging to sell marijuana by the pound. Bain-Holloway pled guilty to the charge of Unlawful Possession of a Controlled Drug with Intent to Distribute. He was not convicted, but received a five year deferred sentence. On these facts, Plaintiffs claim Bain-Holloway is liable to them under the Drug Dealer Liability Act for damages due to emotional distress, loss of economic and educational potential, and loss of consortium.
¶ 4 Bain-Holloway filed a motion to dismiss the petition with prejudice. He argued that it failed to state a claim for relief because the Drug Dealer Liability Act infringed his due process rights guaranteed by Article II, Section 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. He argued that the Act impermissibly imposed liability on him without any showing of a causal relationship between his actions and the children's damages.
¶ 6 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204, 1208. Generally, a petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Indiana National Bank v. State Department of Human Services, 1994 OK 98, ¶ 4, 880 P.2d 371, 375. A trial court's judgment dismissing a petition is reviewed de novo. Porter v. Oklahoma Farm Bureau Mutual Ins. Co., 2014 OK 50, ¶ 9, 330 P.3d 511, 514.
¶ 7 When the constitutionality of a statute is at issue, the court's function is limited to determining the validity or invalidity of the legislative provision. Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, ¶4, 984 P.2d 200, 204. The court does not concern itself with a statute's propriety, desirability, wisdom, or practicality. Id. There is a strong presumption which favors the constitutionality of legislative acts, and a reviewing court will uphold the statute unless it is clearly, palpably and plainly inconsistent with fundamental law. Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶5, 730 P.2d 510, 512.
¶ 8 The Oklahoma Legislature adopted the Act in 1994.
¶ 9 The persons who may bring such an action include a child of the individual drug user, a parent of the individual drug user, or the legal guardian, spouse, or sibling of the individual drug user. § 2-424(A)(1). An employer of an individual drug user may sue, § 2-424(A)(3), and so may a provider of funding for treatment of an individual drug user. § 2-424(A)(4). An individual who was exposed to an illegal drug in utero may also file suit. § 2-424(A)(2). Persons who bring an action under the Act must show they incurred damages "caused by use of an illegal drug by an individual." § 2-424(A).
¶ 10 Section 2-424(B)(2) permits a plaintiff to seek damages from persons who knowingly participated in the illegal drug market, provided that three proximity conditions are met. First, the "illegal drug market target community of the defendant" must be the
¶ 11 The individual user's place of drug activity must be within the illegal drug market target community of the defendant. The Act defines the target community based on the amount of the illegal drug possessed or distributed.
¶ 12 While the Act allows a defendant to join other market participants to assert a right of contribution, § 2-430, it does not limit any single defendant's liability to that defendant's market share contribution. A plaintiff may recover 100% of his or her damages against any single illegal drug market participant in the same target community.
¶ 13 Plaintiffs are not required to offer proof that Bain-Holloway supplied the drugs used by their mother. Section 2-424(B)(2) eliminates the traditional element of causation and replaces it with a requirement that a plaintiff show that a defendant marketed the same drug, within the same time period, and within the same geographic target community as that used by the individual user. Under the Act, Plaintiffs need only show they were harmed by their mother's use of marijuana, and that Bain-Holloway participated in the marijuana market in Tulsa County during the same period of time.
¶ 14 Bain-Holloway argues the statute eliminates the essential element of causation. Plaintiffs contend the Act authorizes liability based upon a rational relationship between an illegal drug participant and the individual user of an illegal drug.
¶ 15 The due process clauses of the United States and Oklahoma Constitutions
¶ 16 The right to due process protects citizens from arbitrary and unreasonable action by the state, and statutes that work an arbitrary forfeiture of property rights are unconstitutional as violations of due process. City of Edmond v. Wakefield, 1975 OK 96, ¶6, 537 P.2d 1211, 1213. An appellate court may examine the constitutional adequacy of proceedings conducted pursuant to a legislative enactment. In re Baby F. v. Oklahoma County District Court, 2015 OK 24, ¶ 14, 348 P.3d 1080. In determining whether the governmental action violates the substantive component of the due process clause, a balance must be struck between the right protected and the demands of society. In re Baby F., ¶ 16.
¶ 17 The question presented is whether the causation substitutes embodied in this new statutory tort adequately preserve the defenses of a potential defendant, or whether the Act effectively authorizes a taking without due process of law. The focus of the analysis is the degree to which the alleged conduct must be connected to the claimed harm.
¶ 18 Some courts have approved various forms of collective liability as alternative grounds for relief when an injured plaintiff is unable to identify tortfeasors. In Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), the California Supreme Court recognized the theory of market share liability. The plaintiff alleged injury in utero caused by the drug diethylstilbestrol. Plaintiff's mother had taken DES during pregnancy and the court acknowledged it would be impossible for her to identify which manufacturer had produced the drug she ingested. The court nevertheless permitted an action, provided that a substantial percentage of DES manufacturers were joined, and that the liability of any one defendant would be limited to the same proportion that their production of the drug bore to the entire market. Sindell, 163 Cal.Rptr. 132, 607 P.2d 924, 937.
¶ 19 The Oklahoma Supreme Court rejected the theory of market share liability in Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062, 1067. In Case, the plaintiffs alleged they were injured by asbestos-containing products. However, they could not tie any of the named defendants to any specific product. One concern addressed by the Court was that balancing the contributions of each manufacturer to the asbestos market would be incalculably difficult. Case, ¶9. It noted that asbestos is present in more than three thousand products commonly found in the home and work environments. Case, ¶6. Unlike DES, which was produced from a single chemical formula and caused injury in the single context of ingestion by pregnant women, asbestos fibers vary widely in chemical composition and risk of danger. Id.
¶ 20 The Supreme Court declined to adopt market share liability in Case because there was not a sufficient link between the claimed harm and the alleged wrongful conduct. When a liability theory "eliminates proof of causation for public policy reasons, it must also be clearly founded in facts which support the link between the injury suffered and the risk to which the plaintiff was exposed." Case, ¶7. Defendants who are sued in tort have a right "to have a causative link proven between that defendant's specific tortious acts and the plaintiff's injuries." Case v. Fibreboard Corp., 1987 OK 79, ¶10, 743 P.2d 1062, 1067.
¶ 22 It is unreasonable, however, to assume that the actual tortfeasor will be joined as a defendant in any case brought pursuant to § 2-424(B)(2). The Act enables a plaintiff to identify a class of defendants composed of persons who have "a criminal conviction pursuant to state drug laws or the Comprehensive Drug Abuse Prevention and Control Act of 1970." § 2-431(B). Those convicted are "estopped from denying participation in the illegal drug market" and the conviction is prima facie evidence of participation in the illegal drug market. Id. In communities where a high proportion of drug dealers successfully evade law enforcement, the statute creates an unreasonable risk that those who become liable for damages are paying for wrongful conduct that was actually caused by another.
¶ 23 In Case, the "causative link" between a plaintiff harmed by asbestos and defendants who produced products containing asbestos was not shown. The likelihood that the defendants actually caused the claimed injuries was remote considering the fact that asbestos is estimated to be present in thousands of products. The Drug Dealer Liability Act eliminates the necessity of a causation link between persons harmed by an illegal drug and participants in that illegal drug market. We conclude that defendants collectively sued under the Act, who are identifiable because they were charged or convicted of a drug offense, are not justifiable substitutes for non-identifiable persons who actually caused the harm.
¶ 24 Section 2-424(B)(2) of the Drug Dealer Liability Act arbitrarily creates civil liability because it imposes such liability without regard to whether the collection of defendants sued includes the actual provider of the illegal drug that harmed the plaintiff. Any likelihood that the actual tortfeasor is named as a defendant is speculative rather than probable.
¶ 25 Title 63 O.S. 2011 § 2-424(B)(2) is unconstitutional because it defines a liability-creating connection between an alleged harm and a wrongful conduct that is too tenuous to adequately protect a potential defendant's rights to substantive due process. Imposing liability on a person regardless of whether that person's conduct is the cause of the injury is arbitrary. The trial court's dismissal with prejudice of Plaintiffs' petition against Chase Patterson Bain-Holloway is AFFIRMED.
BUETTNER, J., concurs.
BELL, J., dissenting with opinion.
¶ 27 The majority cites Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062, when analyzing market share liability. I agree with a statement from that case, where "the creation of a program of compensation for victims . . . as a matter of policy is a matter for the legislative body and not for the courts."