No. 14-0144 – Tug Valley Pharmacy LLC v. All Plaintiffs Below

                                                                          FILED
                                                                         May 28, 2015
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA
Benjamin, Justice, concurring:

              Bad cases can make bad law. This is a bad case. According to the parties, the

plaintiffs are bad people and the defendants are bad people. Plaintiffs say defendants are

“pill mills.” Indeed, many have been prosecuted. Defendants say plaintiffs are common

addicts who want to avoid self-responsibility, who engage in illegal conduct, and who simply

want defendants to fund their future illicit drug use. It might be easy to simply decide the

certified question based on gut emotions and the “badness” of the parties. However, then it

would be this Court which would be engaging in “wrongful conduct.”



              My dissenting colleagues argue that we, as judges, should lock the courthouse

doors to plaintiffs such as these. I agree that the underlying issue is one of access to our

courts: When may a citizen’s right to seek justice in our courts be barred and by whom? But

my colleagues miss the determinative fact which decides this case: The Legislature and the

Governor already fully considered the policy issues related to a wrongful conduct rule and

enacted a wrongful conduct rule for West Virginia while this case was pending on our

docket.1 It’s that simple.

       1
        Governor Earl Ray Tomblin signed West Virginia’s version of a wrongful
conduct rule, H.D. Comm. Sub. for H.B. 2002, 82nd Sess. (W. Va. 2015), on March 5,
2015, the day after this case was argued before this court. Infra.

                                            -1-
              Thus, the crucial issue in answering the certified question is whether we, as a

Court, will properly defer to our sister branches on a policy matter they have already decided.

Our job is simple: though it may not be popular, judicial conservatism compels this Court to

give effect to the wisdom of the Legislature and the Governor, and answer in the

affirmative.2 In other words, we as referees should follow the rules, not make them up as we

go.



              Allowing a plaintiff through the courthouse door, as we are compelled to do,

does not mean the plaintiff can or will recover anything. Here, I can’t see how plaintiffs can

recover on their claims. First, I don’t believe they can avoid a dismissal of their claims based

upon their refusal to answer proper discovery questions. In filing this suit, plaintiffs are

obligated to follow our Rules of Civil Procedure. Refusal to do so should compel dismissal.

Second, plaintiffs must satisfactorily prove to the jury proximate causation of their alleged

injuries by the wrongful conduct of the defendants. I am doubtful that will happen.



A.            “It must be remembered that legislatures are the ultimate guardians of


       2
         No matter how we answer the certified question, our decision will be challenged.
If we answer in the affirmative, some may argue that we are now allowing addicts to
misuse our civil justice system. If we answer in the negative, others will argue that we
are improperly immunizing drug dealers from the consequences of their actions. Ours is
not to judge to a pre-determined result, but, instead, to use the principles of judicial
conservatism and defer to our sister branches on this policy matter relating to access to
our court system.

                                              -2-
                the liberties and welfare of the people in quite as great a degree as the
                courts.” 3
                                                 – Justice Oliver Wendell Holmes

                The principles of judicial conservatism require us to give effect to the wisdom

and consideration of our sister branches of government – the branches designed to make

public policy – and not to bestow upon ourselves the role of superlegislature simply because

we do not believe they went far enough. This is the very essence of our constitutional system

and the democratic conception of our society.



                The policy underlying judicial conservatism and deference by the courts to the

legislature on policy matters was eloquently set forth by Justice Felix Frankfurter:

                As a member of this Court I am not justified in writing my
                private notions of policy into the Constitution, no matter how
                deeply I may cherish them or how mischievous I may deem their
                disregard. The duty of a judge who must decide which of two
                claims before the Court shall prevail . . . is not that of the
                ordinary person. It can never be emphasized too much that one's
                own opinion about the wisdom or evil of a law should be
                excluded altogether when one is doing one's duty on the bench.

W.Va. State Board of Educ. v. Barnette, 319 U.S. 624, 647 (1943) (Frankfurter, dissenting).

Responsibility for the civil policies of the state lies with the legislature. While the wrongful

conduct rule had not yet been considered by the Legislature when the circuit court considered

the matter below and certified its question to this Court, such is not true for this Court’s



       3
           Missouri, Kansas & Texas R. Co. v. May, 194 U.S. 267, 270 (1904).

                                              -3-
consideration of the rule. Prior to our decision in this case, the Legislature fully considered

the matter, negotiated language between both houses, and established West Virginia’s policy

related to the wrongful conduct rule through action by a conference committee endorsed by

each house.4 It is not the job of a judge to decide policy issues that have been settled in such

a democratic fashion by elected officials absent some constitutional error in the legislative

action.



B.            Our Legislature and Governor Have Already Decided This Policy Issue

              In exercising proper judicial restraint and deference, we must defer to our sister

branches in declining to enact a wrongful conduct rule as broad as requested here by the

defendants. In the 2015 legislative session, major changes were made to West Virginia law



          4
         I disagree with my colleagues on the Majority with respect to the effect of the
Legislature’s actions herein. While this case may involve facts which predate the
Legislature’s actions, the Legislature nevertheless had, by the time of this decision, now
studied the wrongful conduct rule and determined West Virginia’s public policy. There
can be no better way to establish West Virginia’ public policy regarding the rule than to
study and follow the Legislature’s 2015 direction. This matter comes to us as a certified
question asking us to make this public policy decision based upon a limited record. As
tempting as it may be to adopt the more activist rationale of my dissenting colleagues, to
do so would have this Court adopt a rule completely different from – and more restrictive
than – that adopted by the Legislature. In other words, my dissenting colleagues would
bar citizens from the courts whom our legislators would not! To ignore the clear
direction of the Legislature would be absurd and disrespectful to our sister branch of
government. Under no reading of the legislative action herein can any support be found
for answering the certified question in the negative. I therefore join with the Majority to
answer the certified question in the affirmative – I simply disagree with them with respect
to the rationale for this decision.

                                              -4-
under the heading termed, “civil justice reform,” and proposed a form of wrongful conduct

rule more restrictive than set forth in the certified question before us. Ultimately, after

considerable negotiation and study, the Legislature restricted its language even further and

forwarded an enrolled bill containing such a rule to the Governor, who signed it on March

5, 2015.5 As signed, West Virginia’s rule requires that a plaintiff be convicted of a felony


       5
        At the beginning of the session, two bills that related to civil justice reform were
introduced in the House of Delegates and the State Senate. These bills were designated
H.B. 2002 and S.B. 2, respectively. Each contained the same proposed provision for a
wrongful conduct rule for West Virginia. At the time these bills were introduced, this
case was pending on our public docket for this term of court.

             The House of Delegates took the lead. H.B. 2002, introduced on January
14, 2015, was referred to the House Judiciary Committee. As introduced, H.B. 2002
contained a wrongful conduct rule more restrictive than that advocated by the defendants
herein:
             (d) In any civil action, a defendant is not liable for damages
             that the plaintiff suffers as a result of the negligence or gross
             negligence of a defendant while the plaintiff is attempting to
             commit, committing or fleeing from the commission of a
             felony criminal act.

H.B. 2002, introduced January 14, 2015, modifying West Virginia Code §55-7-13d. H.B.
2002 included many other potential changes to our civil justice system, especially in the
area of comparative fault. In the House Judiciary Committee, the proposed wrongful
conduct rule was further restricted by amendment, adding a provision that the plaintiff
must not only have engaged in a felonious act, but also that the plaintiff have been
convicted of the felonious act before he or she would to be barred from maintaining an
action in our courts:
               In any civil action, a defendant is not liable for damages that
               the plaintiff suffers as a result of the negligence or gross
               negligence of a defendant while the plaintiff is attempting to
               commit, committing or fleeing from the commission of a
               felony criminal act; Provided, That the plaintiff has been
               convicted of such felony, or if deceased, the jury makes a

                                             -5-
before he or she is barred from filing suit.

              However one wishes to consider this issue, the fact remains that we are the

third of the three branches to consider the proper wording for a wrongful conduct rule. Our

Legislature and our Governor fully considered the policy implications of barring lawsuits and

adopted a version of the wrongful conduct rule completely inconsistent with that advanced

by defendants herein. Our duty is to accept the wisdom of the Legislature and the Governor

on the wrongful conduct rule and give it effect.6


              finding beyond a reasonable doubt that the decedent
              committed such felony.
H.B. 2002, Committee Substitute, January 21, 2015. With this language, H.B. 2002, as
amended, was adopted by the House of Delegates on January 27, 2015, and was
communicated to the State Senate. It was introduced in the State Senate on January 28,
2015, and was referred to the Senate Judiciary Committee. The State Senate ultimately
adopted the broader (original) House version of the wrongful conduct rule, without the
requirement that the plaintiff be convicted of felonious conduct. The Senate approved the
broader bill on February 9, 2015.

               On February 12, 2015, the matter was referred to Conference. On February
19, 2015, the Conference Committee resolved the differences in the language of the
competing wrongful conduct rules by adopting the more restrictive House version,
thereby requiring a conviction for felonious conduct before the rule banning access to the
courts would become applicable. As amended, the enrolled version of H.B. 2002 was
sent to Governor Earl Ray Tomblin on March 2, 2015, and was signed by the Governor
three days later. Having been on our public docket for the January 2015 Term of court,
this case was presented for oral argument before this Court on March 4, 2005.
       6
        As recently observed by Justice Loughry, “When the founding fathers decided that
separation of powers between the legislative, executive, and judicial branches of
government would be a wise approach to governing, they did not contemplate that one
branch of government would simply seize the powers of another because it believes that it
knows better. . . . It it not our place to second guess the Legislature’s reasons for doing
so.” Hammons v. WVOIC, et al., No. 12-1473 (J. Loughry, dissenting), at pp. 15-16 (filed
May 20, 2015).

                                               -6-
              With impassioned rhetoric, my dissenting colleagues argue that this policy

question is one for judges, not legislators -- in other words, my dissenting colleagues seem

comfortable with the notion that referees should not just apply the rules, they should make

them up too. Tempting as it might be for this Court to usurp the role of the Legislature and

make such a power grab under these facts, that notion is antithetical to our judicial role. As

we have previously observed,

              This Court does not sit as a superlegislature, commissioned to
              pass upon the political, social, economic or scientific merits of
              statutes pertaining to proper subjects of legislation. It is the duty
              of the Legislature to consider facts, establish, policy, and
              embody that policy in legislation. It is the duty of this Court to
              enforce legislation unless it runs afoul of the State or Federal
              Constitutions.

Syl. pt. 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).



              I certainly understand the concerns raised by my dissenting colleagues. Let’s

face it, with parties such as these, it is indeed tempting, perhaps, to ignore just this once the

principles of judicial conservatism and engage in a bit of judicial activism, i.e., legislating

from the bench. But while such a result might certainly be received by the public as plain

common-sense under these extreme facts, we cannot forget that each case we decide creates

precedential authority which binds us in our future considerations of similar legal issues. The

manner in which we decide this case may compel us to decide future cases in a manner less

well-received by the public. As referees, it is for us to call the game under the established


                                               -7-
rules, not to make up the rules to ensure a win for the home team and acceptance by the fans.7



C.            The Presumption of Open Access to the Courts

              There is a presumption of open access to our courts in West Virginia:

                      The courts of this state shall be open, and every
                      person, for an injury done to him, in his person,
                      property or reputation, shall have remedy by due
                      course of law; and justice shall be administered
                      without sale, denial or delay.

Article 3, Section 17, Constitution of West Virginia (“Courts open to all – Justice

administered swiftly”). This right to access to our courts is not absolute. The presumption

may be rebutted. In certain circumstances, the legislature may curtail the ability of a citizen

to access West Virginia’s court system. “When legislation substantially impairs a person’s

vested rights or severely limits existing procedural remedies permitting court adjudication,

thereby implicating the certain remedy provision of the constitution, the legislation will be

upheld if . . . the purpose of the alternation or repeal of the remedy is to eliminate or curtail

a clear social or economic problem . . . .” Syl. pt. 5, in part, Lewis v. Canaan Valley Resorts,

185 W. Va. 684, 408 S.E.2d 634 (1991) (discussing Skiing Responsibility Act).




       7
        H.B. 2002, as enacted, contains a number of provisions related to civil justice
reform. If the dissenters were to prevail here, thereby nullifying one of the reforms of
H.B. 2002, one need not long ponder whether all other reforms contained within that bill
would not likewise be subject to nullification by this Court.

                                               -8-
                The wrongful conduct rule requires us to confront our constitutional policy to

provide access to our courts with our gut hesitation to aid a wrongdoer. The two salient

points to be considered relating to a restriction or bar on the right to access our courts, such

as implicated in a wrongful conduct rule, is that the curtailing act be legislative and that it be

done for a clear public policy reason, i.e., “to eliminate or curtail a clear social or economic

problem.” Id. Here, the defendants would have us judicially establish a wrongful conduct

rule which is plainly inconsistent with the Rule adopted by the Legislature. Ironically

enough, that would be “wrongful conduct” on our part.



D.              Considerations Specific to This Case

                Although not related specifically to the certified question before this Court, I

am concerned about a number of issues related to the maintenance of this lawsuit. These

relate not only to the parties themselves, but also to aspects of this action itself. I raise these

in part because of my belief that the legislature may wish at some point to amend its wrongful

conduct rule.



                Conceptually, a wrongful conduct rule can vary in its broadness. At its most

broad, the rule could read: “A person may not maintain an action if he or she must rely in

whole or in part on an illegal or wrongful act or transaction to which the person is a party.”

(Emphasis added.) Of course a wrongful act may be equated to simple negligence. At its


                                                -9-
broadest, the rule would prevent a plaintiff from bringing an action in which he or she had

any fault, no matter how small. Obviously, West Virginia’s jurisprudence does not support

such a broad rule.



                 The rule requested by defendants to be judicially adopted herein is nearly as

broad: “A person may not maintain an action if he or she must rely in whole or in part on an

illegal or immoral act or transaction to which the person is a party.” (Emphasis added.) Our

court system, based upon notice and predictability, is not one which easily accommodates the

concept “immoral act or transaction.” How does one define such a term in a constitutionally-

derived system? Absent a legal definition of “immoral act or transaction” to guide a judge

deciding a motion to dismiss, the phrase is so broad as to probably require all cases to

proceed to a jury for its determination. At a minimum, inclusion of such a phrase may lead

to inconsistency in the rule’s application and be an insufficient guide to trial courts

attempting to use the rule. The Legislature was perhaps aware of this and other legal

authorities on the topic in view of its focus exclusively on illegal conduct as a threshold for

the rule’s applicability.8




       8
           A See also Restatement (Second), Torts §889 (1979) (“One is not barred from
recovery for an interference with his legally protected interests merely because at the time
of the interference he was committing a tort or a crime . . . .”). This was a carry-over of
the same language from Restatement (First) of Torts §889 (1939)

                                              -10-
              While one may point to the extreme facts of this case as a reason for the

broader language advocated by defendants, it is obvious that our Legislature looked at a

number of factors in codifying West Virginia’s wrongful conduct rule. First, the Legislature

was faced with what type of act should serve as the threshold for consideration of the rule.

The types of actions which might have been considered range from felony convictions (a

restrictive approach to banning access to the courts) to the much more difficult to define

“immoral acts” (a much easier approach to banning access to the courts). The rule ultimately

adopted by our Legislature prior to oral argument in this case goes to the more narrow or

restrictive end of the spectrum. Not only would the Legislature require that a plaintiff’s

conduct amount to a violation of a serious law, i.e., a felony, it would also require that a

plaintiff have also been convicted of such an offense. Second, the Legislature was concerned

with the level of proof of an act necessary to invoke the rule. Here again, the Legislature

could have opted for an easier civil preponderancy. It did not do so, however, opting for the

“beyond a reasonable doubt” burden necessary for a conviction.9



              The parties to this action are difficult to like. On the one hand, we have


       9
         For example, the Legislature could have considered more moderate language:
“In any civil action, a defendant is not liable for damages that the plaintiff suffers as a
result of the negligence or gross negligence of a defendant while the plaintiff is
attempting to commit, committing or fleeing from the commission of a criminal act or
transaction and such act is an integral and essential part of his or her injury.” Such a
standard, for example, requires only a criminal act directly related to the cause of action
and does not require conviction.

                                            -11-
plaintiffs whose character defendants take every opportunity to malign. Defendants point out

that all, or nearly all, of the plaintiffs have refused to answer the most basic discovery

questions about drug sources and providers. My dissenting colleagues take every opportunity

to portray plaintiffs as criminals who are attempting to use our judicial system to profit from

the negative consequences of their conduct. In other words, plaintiffs are bad people.



              On the other hand, plaintiffs argue that defendants are, at best, profiting greatly

from the drug problem of southern West Virginia by, at best, keeping their heads in the sand,

and, at worst, being nothing more than drug dealers or pushers who just happen to have the

letters “M.D.,” “Inc.,” or the like after their names. In other words, defendants are bad

people.



              One can easily understand the intuitive response simply to proclaim a pox on

all of the parties’ houses in this case and lock the courthouse door. In his dissent, Justice

Loughry observes that there may well be no innocent victims here. Perhaps not. But I am

also troubled that despite their own alleged bad acts, including criminal misconduct,

defendants now seek to use the very same justice system they would deny to plaintiffs to

shield themselves from such claims. How ironic it is that defendants claim a right for

themselves that they would deny to plaintiffs.




                                             -12-
              I am disturbed by the contention that this case can proceed beyond discovery

if the plaintiffs are permitted to use their Fifth Amendment right offensively to avoid self-

incrimination to thwart defendants below from fully discovering their case. Questions related

to the source and types of drugs used by plaintiffs would seem to be related directly to

proximate causation and damages. By commencing this action seeking damages related to

the use of drugs, plaintiffs have submitted themselves to the jurisdiction of the court and

West Virginia’s Rules of Civil Procedure. It is hard to fathom how plaintiffs have not put

their drug use, regardless of source, into issue. As such, they should be compelled either to

waive their Fifth Amendment privilege against self-incrimination and respond to discovery

procedures, or have their complaint(s) dismissed. The privilege against self-incrimination

was intended as a shield, not a sword. Otherwise, a plaintiff could use the Fifth Amendment

to harass a defendant and thwart any attempt by the defendant to properly obtain evidence

by which to necessary defend itself. See generally, Galanty v. Steel Nat’l. Bank of Chicago,

66 Ill. App. 3d 476, 481, 384 N.E.2d 57, 61 (1978); Christenson v. Christenson, 281 Minn.

507, 162 N.W.2d 194 (1968); Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483(1956);

Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Lyons v. Johnson, 415 F.2d 540

(9th Cir. 1969), cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970); Brown

v. Ames, 346 F.Supp. 1176 (D.C.Minn., 1972); Kisting v. Westchester Fire Ins. Co., 290

F.Supp. 141 (D.C.Wis., 1968), aff'd, 416 F.2d 967 (7th Cir.1969); Independent Productions

Corp. v. Loew's, Inc., 22 F.R.D. 266 (D.C.N.Y., 1958), Stockham v. Stockham, 168 So.2d 320


                                            -13-
(Fla. 1964).



               At the end of the day, plaintiffs must be able to show that defendants

proximately caused their claimed injuries. I am not sure that is possible. Plaintiffs are

seeking damages on the ground that the defendants caused them to become addicted to

narcotic pain medication. If a medical provider did “hook” an otherwise innocent victim of

a car or work-related accident onto drugs by his or her wrongful acts, a plaintiff may have

a case. However, defendants contend that many of the plaintiffs herein were “doctor

shopping,” “self-medicating,” and worse. Plaintiffs may not avoid focus on themselves as

the cause of their maladies simply because some or all of the defendants engaged in bad acts

too. Plaintiffs must show proximate causation.



               Defendants below contend that there are sufficient “punishment” mechanisms

in the law outside of the civil justice system to adequately sanction the defendants for any

alleged misconduct in which they may have engaged. In other words, the criminal justice

system and administrative licensing boards are available to punish defendants, so affording

civil immunity to such defendants is acceptable.



               While I find this to be a novel argument, it fails to take into account the

purpose of the civil justice system. Here, plaintiffs seek to pursue their claims for their


                                            -14-
alleged injuries related to the tortious conduct of the defendants. The criminal justice system

is not a replacement for the civil justice system. Nor are administrative licensing boards.

While each system may punish a bad doctor or protect future West Virginians from such a

bad doctor, they are not designed to remedy the harm allegedly done by a doctor or

pharmacist to an individual. For example, the victim of a bad lawyer may still pursue a civil

action against the lawyer despite the lawyer be disbarred and prosecuted by the State. The

civil action is the right of the individual.



               Counsel also suggested that this Court’s failure to adopt the expansive

wrongful conduct rule sought by defendants would cause insurance rates to rise. This is an

argument to be raised with the legislature and presumably was considered by the legislature

in enacting H.B. 2002 in 2015. Certainly, a more expansive rule would result in fewer claims

which could be made. On the other hand, the legislature must also worry that too expansive

a rule would simply allow bad actors to hide behind the rule, thereby potentially hurting West

Virginia citizens. Ultimately, this is a policy matter best left to the legislature.




                                               -15-
