Tug Valley Pharmacy v. All Below ( 2015 )

No. 14-0144 - Tug Valley Pharmacy, LLC v. All Plaintiffs Below
FILED
May 13, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Justice, dissenting: OF WEST VIRGINIA
The misguided majority has determined that whether an admitted criminal drug
abuser can recover civil monetary damages for the results of his or her drug abuse is a matter
to be decided by a jury. Assuming all facts as alleged by the parties are true, there are no
even remotely innocent victims here. Rather, there are only individuals who knowingly
participated in varying degrees of criminal or grossly reckless activity. By summarily
dismissing the wrongful conduct rule as unworkable, the majority’s decision requires hard­
working West Virginians to immerse themselves in the sordid details of the parties’
enterprise in an attempt to determine who is the least culpable—a drug addict or his dealer.
This exercise in abject futility stands in stark contrast to the fact that of those courts that have
addressed the wrongful conduct rule, the overwhelming majority have adopted it. For these
reasons, I dissent to the majority’s rejection of this rule.
The wrongful conduct rule has been adopted in thirteen other jurisdictions.1
More specifically, Florida, Iowa, Michigan, Mississippi, and a Kentucky federal court have
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Notably, the majority cites only two cases where the rule was rejected and, in those
cases, the rejection was based on statutory and constitutional grounds. See Dugger v.
Arrendondo, 408 S.W.3d 825 (Tex. 2013); Sonoran Desert Investigations, Inc. v. Miller, 141
P.3d 754 (Az. Ct. App. 2006).
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applied the rule to bar recovery in claims for drug addiction, as in the case at bar. See Foister
v. Purdue Pharma, L.P., 295 F. Supp. 2d 693 (E.D. Ky. 2003) (barring claim of addicted
plaintiff for suit brought against narcotic manufacturers and marketers for failure to warn);
Kaminer v. Eckerd Corp. of Fla., Inc., 966 So. 2d 452 (Fla. Dist. Ct. App. 2007) (barring
claim against pharmacy by estate of student who overdosed on prescription drugs); Pappas
v. Clark, 494 N.W.2d 245 (Iowa Ct. App. 1992) (barring action by wife against physician and
pharmacist for husband’s drug addiction); Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich.
1995) (barring suit against pharmacy for alleged negligent filling of controlled substance
resulting in addiction); Price v. Purdue Pharma Co., 920 So. 2d 479 (Miss. 2006) (barring
plaintiff’s claim against doctors, pharmacies, and drug manufacturers for injuries sustained
as result of drug addiction).
In addition, the rule has been adopted and applied in other states where
plaintiffs sought to recover for injuries received in the course of their own criminal activity.
See Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So. 2d 953 (Ala. 1993) (barring
claim of estate of minor killed by vending machine that fell on him while he attempt to steal
soft drinks); Lord v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991) (barring action by plaintiff
against bar for plaintiff’s subsequent criminal activity); Greenwald v. Van Handel, 88 A.3d
467 (Conn. 2014) (barring claim by patient against social worker for failure to treat patient’s
child pornography habit); Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997) (barring
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claim by convicted murderer’s conservator against physician who released murderer from
mental hospital prior to murder); Patten v. Raddatz, 895 P.2d 633 (Mont. 1995) (barring
negligence claims among parties who engaged in prostitution and drug abuse); Barker v.
Kallash, 468 N.E.2d 39 (N. Y. Ct. App. 1984) (barring claim by infant who was injured
while making pipe bomb against retailer who sold firecrackers from which pipe bomb was
made); Lee v. Nationwide Mut. Ins. Co., 497 S.E.2d 328 (Va. 1998) (barring claim by minor
injured while operating stolen car); Feltner v. Casey Family Program, 902 P.2d 206 (Wyo.
1995) (barring claim by foster family and biological son against foster care placement
program arising out of son’s sexual abuse of foster child). Although failing to demonstrate
any particular difficulty by these courts in applying the wrongful conduct rule, the majority
nonetheless concludes that these courts struggled to apply it. I suspect these courts would
be surprised to learn of the majority’s unfounded conclusion.
Despite the majority’s empty protestations, both the wrongful conduct rule and
its rationale are easily understood and applied. As the majority notes, the court in Oden held
that “[t]his rule promotes the desirable public policy objective of preventing those who
knowingly and intentionally engage in an illegal or immoral act involving moral turpitude
from imposing liability on others for the consequences of their own behavior.” Oden, 621
So. 2d at 955; see also Rimert, 680 N.E.2d at 874 (adopting same rule which “embodies the
principle that one who is responsible for the commission of a criminal or wrongful act must
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exclusively bear his or her share of the responsibility for the act, and may not evade that
responsibility either through gaining some profit for the act or shifting liability for the act to
another.”). As the Orzel court thoughtfully explained, such suits are barred “not because the
defendant is right, but rather because the plaintiff, being equally wrong, has forfeited any
claim to aid of the court.” Orzel, 537 N.W.2d at 213 n.11 (emphasis added). Indeed, there
is little difficulty in agreeing with the concept that to permit recovery under such
circumstances would “be illogical, would discredit the administration of justice, defy public
policy and shock the most unenlightened conscience.” Imperial Kosher Catering, Inc. v.
Travelers Indemnity Co., 252 N.W.2d 509, 510 (Mich. Ct. App. 1977). In the absence of a
cogent explanation, it is unclear why the majority finds this fairly uncontroversial rationale
so abhorrent.
The courts that have adopted this rule set forth clear explanations for the type
of conduct that qualifies for its application. As noted by the majority, in Price, the court
stated that the fact that a plaintiff was a lawbreaker at the time of injury was not enough to
bar recovery; rather, “[t]he injury must be a proximate result of committing the illegal act”
and that “[w]here the violation of law is merely a condition and not a contributing cause of
the injury, a recovery may be permitted.” Price, 920 So. 2d at 485 (quoting Meador v. Hotel
Grover, 9 So. 2d 782, 786 (Miss. 1942)). The Price court further explained that “[t]he
question is not merely when the wrongdoing was done, but what resulted from it.” Id.
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(emphasis added). Likewise, the Greenwald court, borrowing from the United States
Supreme Court’s discussion concerning the similar in pari delicto defense, agreed that
[t]he court’s aid is denied only when he who seeks it has
violated the law in connection with the very transaction as to
which he seeks legal redress. Then aid is denied despite the
defendant’s wrong. It is denied in order to maintain respect for
law; in order to promote confidence in the administration of
justice; in order to preserve the judicial process from
contamination.
88 A.3d at 477 (quoting Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J.,
dissenting)). There is simply nothing so arcane or inscrutable in these explanations
concerning when the wrongful conduct rule would apply that warrants the majority’s
wholesale rejection of the rule. In fact, this is precisely the type of instructive commentary
that this Court adopts on a regular basis to infuse meaning and rationale to our holdings.
Why the majority now finds such wording so incomprehensible is, at a minimum, suspect.
Moreover, the exceptions to the wrongful conduct rule, as identified by the
majority, are well-reasoned and certainly insufficient to deny the rule’s adoption. As the
majority indicates, “most” rules have categorical exceptions, which neither juries, lower
courts, nor this Court have demonstrated difficulty in applying. More importantly, such
exceptions would have no bearing in a case such as the one sub judice. As previously noted,
courts have adopted a common exception to the wrongful conduct rule where there is
inequality between the parties, such as where “plaintiff has acted under circumstances of
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oppression, imposition, hardship, undue influence, or great inequality of condition or age.”
Orzel, 537 N.W.2d at 217 (internal citations omitted). However, the Orzel court refused to
apply this particular exception to drug-abusing plaintiffs, like the instant respondents,
because “it was John Orzel who, by his continuous illegal use of Desoxyn, caused himself
to become both addicted and insane.” Id. at 217; see also Trotter v. Okawa, 445 S.E.2d 121,
123-24 (Va. 1994) (holding that wrongful conduct defense will be applied to bar recovery
if evidence shows that plaintiff freely and voluntarily consented to participation in illegal act
without duress or coercion).
Further, in cases where drug-addicted plaintiffs assert statutory violations by
the provider or dispenser of controlled substances, the Orzel court found that such statutes
were not intended to “confer special protection on persons . . . who repeatedly and
fraudulently engage in the illicit use of drugs.” Orzel, 537 N.W.2d at 219. The court
reasoned that “[o]ne of the primary purposes of these provisions is to prevent the illegal
possession and use of controlled substances. This purpose would be inherently subverted if
the courts permitted relief to illicit drug users[.]” Id. (emphasis added); accord Greenwald,
88 A.3d at 475-76; Lord, 813 P.2d at 663 (“The dram shop statute, however, was not
intended to protect persons from the consequences of their own intentional, criminal
conduct.”).
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If the case at bar is insufficient to illustrate the merits of adopting the wrongful
conduct rule, let us examine a different scenario addressed by the United States District Court
for the Southern District of West Virginia. In Gray v. Farley, No. 2:91-0935, 1992 WL
564130, at *1 (S.D.W.Va. Oct. 26, 1992), the defendant hired the plaintiff to commit an
arson at the defendant’s residence. The plaintiff, who had a last minute change of heart, was
leaving the defendant’s residence without committing the arson when he was confronted by
an off-duty police officer who allegedly beat him. The plaintiff, the hired arsonist, sued the
defendant, the individual who hired him to commit the arson, on a premises liability theory.
The plaintiff asserted that the defendant failed to maintain “reasonably safe” premises by
failing to foresee that the off-duty officer might “initiat[e] an assault, battery and beating”
of the plaintiff. Id. at *2. The federal district court, using the concepts underlying the
wrongful conduct rule, granted summary judgment to the defendant and dismissed the case
holding that “[o]ne who consents to and participates in an immoral or illegal act cannot
recover damages from other participants for the consequences of that act.” Id. (citing Miller
v. Bennett, 56 S.E.2d 217 (Va. 1949)). However, under the majority’s decision, summary
judgment would not be appropriate on such basis and a jury would have to be empaneled to
determine whether the willing arsonist was more at fault for the beating that occurred than
the individual who hired him to commit the arson. It is a gross understatement to say that
such a result is patently absurd, yet that is the result mandated by the majority’s opinion.
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Simply put, the majority has taken a nonsensical and recreant approach to its
consideration of the certified question presented by the circuit court. The end result is the
majority’s refusal to lend the force of the judiciary to the incontrovertible public policy that
criminal wrongdoers should not waste the time of the judiciary or citizenry to profit from
their crimes. Instead, the majority hides behind the construct of comparative negligence and
pays lip service to the considerable wisdom of the jury and its ability to properly apportion
fault in such matters. Ironically, this is the same jury that the majority deems incapable of
understanding and properly applying the plainly articulated wrongful conduct rule in the
event material issues of fact preclude a dispositive ruling by the circuit court.
In sum, the majority seeks to have West Virginia citizens do its “dirty work”
with no regard for the egregious waste of judicial time and resources, loss of earnings
occasioned by citizens’ jury duty, etc., that such a case engenders. While the majority
purports to be impervious to “public opinion,” the unavoidable outrage that will most
assuredly follow its decision is well-deserved. In a state where drug abuse is so prevalent
and where its devastating effects are routinely seen in cases brought before this Court, it is
simply unconscionable to me that the majority would permit admitted criminal drug abusers
to manipulate our justice system to obtain monetary damages to further fund their abuse and
addiction.
For these reasons, I respectfully dissent.
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