Orzel by Orzel v. Scott Drug Co.

Decision Date15 August 1995
Docket NumberDocket No. 98506,No. 1,1
Citation449 Mich. 550,537 N.W.2d 208
PartiesJohn J. ORZEL, by His Guardian, Sylvia E. ORZEL, Leona Orzel, Ronald Orzel, Edward Orzel, Jr., and Sylvia E. Orzel, Individually, Plaintiffs-Appellees, v. SCOTT DRUG COMPANY, a Michigan Corporation, Defendant-Appellant. Calendar
CourtMichigan Supreme Court

Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiffs.

Highland & Zanetti, P.C. by John N. Highland, Southfield, for defendant.

Kallas & Henk, P.C. by Constantine N. Kallas, Bloomfield Hills, for amicus curiae, Michigan Association of Insurance Companies.

MICHAEL F. CAVANAGH, Justice.

In this case, we are asked to determine whether plaintiffs can maintain a tort action where plaintiffs' asserted injuries arose out of illegal conduct on the part of one of the plaintiffs, the plaintiff's culpability is equal to the defendant's and the plaintiff's alleged entitlement to recovery is not provided for under the statutes claimed to have been violated by the defendant. We hold that, under such circumstances, the plaintiffs are precluded from bringing their action.

In this case, we have also been asked to articulate the scope of a pharmacist's duty when filling prescriptions issued by licensed physicians. Because of our holding, any comment that we would make regarding a pharmacist's duty would be dicta. While we consider the issue to be jurisprudentially significant, we also believe that our examination of it is best reserved for a case in which our discussions would carry binding precedential effect. Accordingly, we decline to address the issue at this time.

In view of our holding barring the plaintiffs' claim on the basis of illegal conduct, we reverse the decision of the Court of Appeals, and affirm the order of the trial court granting the defendant judgment notwithstanding the verdict.

I. FACTS AND PROCEDURAL HISTORY

The plaintiffs, John Orzel and his relatives, filed this suit in 1983 against several defendants, claiming that each defendant negligently supplied the drug Desoxyn to John Orzel. Desoxyn, a trade name for the chemical methamphetamine, 1 is a schedule 2 controlled substance, 2 and, accordingly, may be lawfully obtained only with a valid prescription. In their complaint, the plaintiffs asserted that the defendant's negligence caused John Orzel to suffer the following damages:

John J. Orzel became physically and psychologically addicted to Desoxyn which said addiction resulted in auditory and visual hallucinations and mental illness including but not limited to paranoid schizophrenia. As a result of mental derangement and illness, plaintiff has sustained pain, suffering and disability including loss of earning capacity and has required medical aid and attention and hospital care and treatment.

The plaintiffs contend that these injuries are permanent in nature. The plaintiff relatives, further claim that the injuries cause them to experience a loss of companionship and to incur numerous medical expenditures.

When trial finally commenced in 1988, Scott Drug, was the only remaining defendant. The plaintiffs had claimed that this defendant pharmacy had breached common-law and statutory duties owed to John Orzel when it filled Desoxyn prescriptions for him without asking for identification 3 or allowing an adequate interval between prescriptions, 4 and where the prescriptions read for purposes of "weight control," when they allegedly should have said "obesity." 5

In his deposition, John Orzel explained that his use of Desoxyn did not begin the first time that the defendant filled a Desoxyn prescription for him. Sometime between 1979 and 1980, he began to use Desoxyn purchased from his co-workers at General Motors. By November 1980, he was taking one to two Desoxyns a day. By January 1981, he had increased his intake to three to five Desoxyns a day. By March 1981, he began to hear voices, experience hallucinations, and suffer from paranoid delusions because of the Desoxyn use. By April 1981, he raised his Desoxyn consumption to five to six Desoxyns a day. By May 1981, his use had escalated to five to eight Desoxyns a day. By June 1981, he was consuming eight to ten Desoxyns a day. In July 1981, he was forced to take a medical leave from his job at General Motors.

John Orzel testified that he knew that his purchase and use of Desoxyn was illegal. He also indicated that he was addicted to Desoxyn by July 1981. The plaintiffs additionally contend that by July 1981, John Orzel was no longer taking Desoxyn voluntarily, and that he was suffering from amphetamine psychosis to the point of being rendered legally insane so that he could not conform his conduct to the requirements of law.

In August 1981, John Orzel started going to the Figure Eight Weight Loss Clinic one to three times a week. There he would misrepresent to the physicians that he desired to lose weight, and the physicians would write him Desoxyn prescriptions for "weight control." It is uncontested that he never wanted or needed to lose weight, and that the only reason he went to the clinic was to obtain Desoxyn.

The defendant filled Desoxyn prescriptions for John Orzel, allegedly beginning in August 1981, and ending in January 1982. According to the evidence presented at trial, the defendant filled a total of between six to nine Desoxyn prescriptions for him, and each prescription was for a medically acceptable one month's supply of thirty tablets. Consequently, in total, John Orzel obtained between one hundred eighty to two hundred seventy Desoxyn tablets from the defendant. Each prescription that John Orzel presented to the defendant had been signed by a licensed physician.

John Orzel testified that during the period that defendant was filling Desoxyn prescriptions for him, August 1981 to January 1982, he was also obtaining Desoxyn from other sources. He would have some of his prescriptions from Figure Eight filled by other pharmacies. He also continued to purchase Desoxyn from his General Motors co-workers. He testified that, at his peak, he was using between ten to fifteen Desoxyns a day between August 1981, and January 1982.

In January 1982, he entered Northville Mental Hospital where he stayed until April 1982. Shortly after his discharge, he resumed his use of controlled substances, including the use of Desoxyn. No longer able to obtain prescriptions for Desoxyn, he purchased and used Desoxyn from street sources. John Orzel's persistent use of controlled substances 6 has resulted in further hospitalization on several occasions.

Dr. Finklestein, a psychiatrist and psychoanalyst who examined John Orzel in 1983, testified that he suffers from amphetamine psychosis, and that he is "insane," "mentally ill," and "obviously crazy, in the usual sense of the word." Dr. Finklestein attributed this psychosis to the heavy dosages of Desoxyn that John Orzel took in 1981, and opined that any subsequent drug use rendered him merely harder to treat.

Dr. Griffith, a psychiatrist who examined John Orzel in August 1986, testified that he suffers from paranoid schizophrenia induced by his Desoxyn consumption. Dr. Griffith explained that, although John Orzel was genetically predisposed to schizophrenia, the large doses of Desoxyn caused the onset of his schizophrenia.

The defendant made several motions to have this case summarily dismissed. Before trial, it filed two motions for summary disposition in which it disclaimed the plaintiffs' allegations that it had breached duties to John Orzel in the way that it filled the Desoxyn prescriptions for him. The trial court denied both motions. A few days before the scheduled trial date, it was determined that John Orzel was competent to be deposed. During a deposition held shortly thereafter, he testified regarding the complete history of his illegal transactions with Desoxyn. In response to this testimony, the defendant immediately renewed the motion for summary disposition--but this time adding an argument that, notwithstanding any breach it may have committed, the plaintiffs were precluded from any recovery because of John Orzel's illegal conduct in connection with Desoxyn. The trial judge took this motion, as well as a subsequent similarly based motion for a directed verdict, under advisement.

Without ruling on the motions, the trial judge instructed the jury to apply comparative negligence principles to determine the extent of each party's responsibility for the damages, if any. The jury found the defendant negligent, and assessed plaintiffs' damages at $3.8 million. The jury also found John Orzel to be fifty percent comparatively negligent, and the verdict was reduced to $1.9 million.

The defendant moved for judgment notwithstanding the verdict, and the trial judge granted the motion on the basis that John Orzel's illegal acts barred the plaintiffs' claim.

A Court of Appeals majority reversed the trial court in an unpublished opinion per curiam, issued December 14, 1993 (Docket No. 117270). The majority opined that John Orzel's illegal conduct should not operate to bar the plaintiffs' claim and that comparative negligence principles should apply to determine the extent of their potential recovery. Alternatively, the majority indicated that, even assuming John Orzel's illegal conduct would normally operate to bar recovery, the bar could not apply in this case because evidence showing that John Orzel was insane at the time that he committed his illegal acts made him unaccountable for the acts.

Dissenting, Judge Kathleen Jansen believed that John Orzel's illegal conduct blocked the plaintiffs' action. She also questioned his alleged insanity status in light of the legal standard for insanity under M.C.L. § 768.21a(1); M.S.A. § 28.1044(1)(1).

The defendant sought leave to appeal in this Court, which we granted. 447 Mich. 906 (1994).

II. STANDARD OF REVIEW FOR JUDGMENT NOTWITHSTANDING THE VERDICT

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