No. 14-0144 – Tug Valley Pharmacy, LLC, et al. v. All Plaintiffs Below
                                                                             FILED
                                                                         May 13, 2015
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

Justice Ketchum dissenting:

              I dissent because criminals should not be allowed to use our judicial system

to profit from their criminal activity. The twenty-nine plaintiffs in the present matter

have admitted to engaging in the following criminal conduct: criminal possession of pain

medications; criminal distribution, purchase and receipt of pain medications; criminally

acquiring and obtaining narcotics through misrepresentation, fraud, forgery, deception,

and subterfuge (not advising doctors of addiction or receipt of narcotics from other

doctors); criminally obtaining narcotics from multiple doctors; and abusing and/or

misusing pain medication by ingesting greater amounts than prescribed and snorting or

injecting medications to enhance their effects.

              Despite this litany of criminal misconduct, the majority ruled that these

criminal plaintiffs may maintain tort actions against pharmacies and doctors who, the

plaintiffs allege, negligently or recklessly prescribed and dispensed controlled substances

to them. Further, the plaintiffs allege that the defendants negligently or recklessly caused

them to become addicted to these controlled substances. The plaintiffs do not allege

criminal or intentional conduct on the part of the defendant pharmacies and doctors. If

the plaintiffs’ complaints alleged criminal or intentional conduct, the defendant

pharmacies and doctors would not be covered by their liability insurance policies.




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                 The majority’s ruling permitting criminal plaintiffs to maintain these civil

lawsuits ignores common sense and will encourage other criminals to file similar lawsuits

in an attempt to profit from their criminal behavior. I strongly disagree with this ruling

and believe that this Court should adopt the wrongful conduct rule to prevent criminals

from making a mockery of our judicial system by attempting to profit from their criminal

activity.

                 The wrongful conduct rule has been adopted in a number of other states.1

The Michigan Supreme Court of Appeals adopted the rule and described it as follows:

“[A] person cannot maintain an action if, in order to establish his cause of action, he must

rely, in whole or in part, on an illegal or immoral act or transaction to which he is a

party.” Orzel v. Scott Drug Co., 537 N.W.2d 208, 212 (Mich. 1995). The court stated

that the rationale underlying the rule is “rooted in the public policy that courts should not

lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.”

537 N.W.2d at 213.

                 The Connecticut Supreme Court recently held that a plaintiff cannot

maintain a tort action for injuries that are sustained as the direct result of his or her

knowing and intentional participation in a criminal act. In Greenwald v. Van Handel, 88

A.3d 467, 472 (Conn. 2014), the court described the negative consequences that would

result from allowing criminal plaintiffs to profit from their criminal conduct:

                 If courts chose to regularly give their aid under such
                 circumstances, several unacceptable consequences would


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            See footnote 6 of the majority opinion.
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              result. First, by making relief potentially available for
              wrongdoers, courts in effect would condone and encourage
              illegal conduct. . . . Second, some wrongdoers would be able
              to receive a profit or compensation as a result of their illegal
              acts. Third, and related to the two previously mentioned
              results, the public would view the legal system as a mockery
              of justice. Fourth, and finally, wrongdoers would be able to
              shift much of the responsibility for their illegal acts to other
              parties. . . . [W]here the plaintiff has engaged in illegal
              conduct, it should be the plaintiff’s own criminal
              responsibility which is determinative.

Id., 88 A.3d at 472-73.

              In the present case, the majority addressed the reasons why other courts

have adopted the wrongful conduct rule but declined to adopt the rule in West Virginia

because 1) it could be difficult for courts to apply; and 2) “our system of comparative

negligence offers the most legally sound and well-reasoned approach to dealing with a

plaintiff who has engaged in immoral or illegal conduct.”

              The majority worries that “attempting to accommodate all factual scenarios

and policy concerns raised by the wrongful conduct rule make it virtually impossible to

comprehensively articulate and therefore highly unlikely to be judiciously applied.” I

disagree. The wrongful conduct rule is straightforward and requires a court to exercise

its basic common sense when applying the following: a criminal plaintiff may not

maintain a tort action based on injuries sustained as the direct result of his or her

knowing, and intentional participation in, a criminal act. Further, assuming arguendo

that complicated factual situations would arise in which it was unclear whether a court

should apply the rule, this Court is perfectly capable of reviewing such scenarios and

providing clarity on the rule’s application to a particular circumstance.

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              Next, the majority states that we need not adopt the wrongful conduct rule

and should instead rely on “our system of comparative negligence” when assessing

whether a plaintiff involved in immoral or illegal conduct should be allowed to maintain

a civil action arising from such conduct. This argument has been considered and rejected

by other courts. For instance, the Connecticut Supreme Court considered this argument

in Greenwald and stated:

              [W]e agree with other jurisdictions that have concluded that
              the mere availability of common-law or statutory comparative
              negligence, which permits a plaintiff to recover even if his
              own negligence contributed to his injuries . . . does not negate
              application of the wrongful conduct rule. As one court
              explained, comparative negligence has no application to the
              [wrongful conduct] rule precluding a plaintiff from
              recovering for injuries sustained as a direct result of his own
              illegal conduct of a serious nature. . . . That rule is not based
              on the theory that a plaintiff, with an otherwise cognizable
              cause of action, cannot recover for an injury to which he has
              contributed. . . . It rests, instead, upon the public policy
              consideration that the courts should not lend assistance to one
              who seeks compensation under the law for injuries resulting
              from his own acts when they involve a substantial violation of
              the law. . . It simply means that proof of such an injury would
              not demonstrate any cause of action cognizable at law.

Id., 88 A.3d at 476-77 (internal citation and quotation omitted).

              For the foregoing reasons, I respectfully dissent.




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