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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