Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty., No. 14–0144.

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN, Chief Justice
Citation773 S.E.2d 627,235 W.Va. 283
Decision Date28 May 2015
Docket NumberNo. 14–0144.
PartiesTUG VALLEY PHARMACY, LLC ; B & K Pharmacies, Inc. d/b/a Family Pharmacy; Strosnider Drug Store, Inc. d/b/a Sav–Rite Pharmacy; and Dr. Diane Shafer Defendants Below, Petitioners v. ALL PLAINTIFFS BELOW IN MINGO COUNTY Civil Action Nos. 10–C–251, 11–C–332, 12–C–38, 10–C–252, 10–C–319, 12–C–39, 12–C–35, and 11–C–370, Plaintiffs Below, Respondents.

235 W.Va. 283
773 S.E.2d 627

TUG VALLEY PHARMACY, LLC ; B & K Pharmacies, Inc. d/b/a Family Pharmacy; Strosnider Drug Store, Inc. d/b/a Sav–Rite Pharmacy; and Dr. Diane Shafer Defendants Below, Petitioners
v.
ALL PLAINTIFFS BELOW IN MINGO COUNTY Civil Action Nos. 10–C–251, 11–C–332, 12–C–38, 10–C–252, 10–C–319, 12–C–39, 12–C–35, and 11–C–370, Plaintiffs Below, Respondents.

No. 14–0144.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 2015.
Decided May 13, 2015.

May 28, 2015.


Michael M. Fisher, Esq., Elizabeth S. Cimino, Esq., Jackson Kelly PLLC, Charleston, West Virginia, for Tug Valley Pharmacy, LLC, Samuel Randolph Ballengee, and, B & K Pharmacies, Inc., d/b/a Family, Pharmacy.

David F. Nelson, Esq., Hendrickson & Long, PLLC, Charleston, West Virginia, for Strosnider Drug Store, Inc. d/b/a, Sav–Rite Pharmacy.

Cecil C. Varney, Esq., Williamson, West Virginia, for Diane Shafer, M.D.

James M. Cagle, Esq., Charleston, West Virginia, for Respondents.

Opinion

WORKMAN, Chief Justice:

235 W.Va. 284

This case is before the Court upon certified questions presented by the Circuit Court of Mingo County regarding whether the respondents/plaintiffs below (hereinafter “respondents”) in the cases below may maintain causes of action against the petitioners/defendants below (hereinafter “petitioners”) for allegedly causing or contributing to respondents' addiction to controlled substances, where respondents admit to engaging in criminal conduct associated with their acquisition and abuse of the controlled substances. Petitioners maintain that, as a result of respondents' admitted criminal conduct, their actions are barred entirely by the “wrongful conduct” rule and/or the doctrine of in pari delicto.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that any wrongdoing on the part of the respondents must be assessed under our long-standing precepts of comparative negligence and does not per se operate as a complete bar to their causes of action. Accordingly, we answer the first certified question in the affirmative and decline to answer the second certified question as it is mooted by the Court's response to the first certified question.1

I. FACTS AND PROCEDURAL HISTORY

The twenty-nine individual respondents2 filed a total of eight separate civil actions in the Circuit Court of Mingo County, alleging that the petitioners and others negligently prescribed and dispensed controlled substances causing respondents to become addicted to and abuse the controlled substances. The suits were filed against several different combinations of the three petitioner pharmacies—Tug Valley Pharmacy, Strosnider Drug Store, and B & K Pharmacies—the Mountain Medical Center, and four physicians working at the Mountain Medical Center—Drs. Victorino Teleron, William Ryckman,

235 W.Va. 285
773 S.E.2d 629

Katherine Hoover, and petitioner Dr. Diane Shafer.3

Respondents were patients of the Mountain Medical Center and its physicians, most of them purportedly seeking treatment as the result of auto accidents or workplace injuries. In the course of their “treatment” at the Mountain Medical Center, respondents were prescribed controlled substances, including Lortab, Oxycontin and Xanax, which they filled at the petitioner pharmacies and to which they allege that they became addicted, allegedly resulting in their admitted criminal abuse of the prescriptions and criminal activity associated with obtaining the drugs, as more particularly described infra. Ultimately, the Mountain Medical Center and their physicians were the subjects of an FBI raid which revealed violations of federal and state law for improperly prescribing controlled substances.4 Certain of the physicians' medical licenses were revoked and some pled guilty to and served time for the federal offenses. Of the petitioner pharmacies, only Strosnider and its pharmacist, James Wooley, were subject to disciplinary and/or criminal action. Neither B & K nor Tug Valley were subject to discipline.

Most, if not all, of the respondents admit that their abuse of controlled substances pre-dated their “treatment” at Mountain Medical and even the existence of some of the petitioner pharmacies. All of the respondents admitted to engaging in most, if not all, of the following illegal activities associated with the prescription and dispensation of controlled substances while being provided services by the petitioners: criminal possession of pain medications; criminal distribution, purchase, and receipt of pain medications (“off the street”); 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 concurrently (commonly known as “doctor shopping”); and abusing and/or misusing pain medication by ingesting greater amounts than prescribed and snorting or injecting the medications to enhance their effects. Notably, during depositions conducted in the underlying cases, virtually all of the respondents asserted their Fifth Amendment privilege against self-incrimination, refusing to answer questions about other sources from whom they obtained controlled substances who were not licensed physicians.

Respondents, however, maintain that the medical providers acted “in concert” with the petitioner pharmacies, which pharmacies were well aware of the so-called “pill mill” activities of the medical providers. Respondents contend that the petitioner pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled “synergistic” controlled substances which would provide an enhancing effect to the drugs. Moreover, respondents contend that the sheer volume of business derived from the “pill mill” facilities and physicians suggests an awareness of and joint endeavor in the improper activities of the medical providers.

On the basis of respondents' admissions of their own criminal activity associated with the prescription and dispensation of controlled substances by petitioners, petitioners moved for summary judgment asserting that respondents' claims were barred as a matter of law. In particular, respondents invoked the “wrongful conduct rule” as adopted in other jurisdictions, which stands for the proposition that a plaintiff may not recover when his or her unlawful conduct or immoral act caused or contributed to the injuries. See, e.g., Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). Alternatively, petitioners argued that the doctrine of “in pari delicto ” (“in equal fault”) bars recovery. The circuit court concluded that the actions

235 W.Va. 286
773 S.E.2d 630

were not barred, but ordered that the following questions be certified to this Court pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code § 51–1A–3 (1996) (2008 Repl. Vol.):

1) May a person maintain an action if, in order to establish the cause of action, the person must rely, in whole or in part, on an illegal or immoral act or transaction to which the person is a party?
2) May the doctrine of in pari delicto be employed as a bar to tort claims under West Virginia law?

II. STANDARD OF REVIEW

It is well-established that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo. ” Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). With this standard in mind, we proceed to the issues presented.

III. DISCUSSION

Simply put, these certified questions require the Court to determine whether it will adopt the “wrongful conduct rule”5 adopted or codified6 in some jurisdictions. This Court has not, contrary to the petitioners' contention, implicitly endorsed the wrongful conduct rule and has made only passing reference to the companion in pari delicto doctrine.7 Petitioners argue that this Court should adopt a wrongful conduct bar which

235 W.Va. 287
773 S.E.2d 631

would bar entirely a claim where a plaintiff must rely on his or her illegal or immoral act to establish the cause of action. Respondents counter that such a rule merely rewards defendants' own wrongful and tortious conduct and that a plaintiff's conduct must be assessed according to our comparative fault concepts. We will examine the merits of each position in turn.

A. The Wrongful Conduct Rule

The modern statement of the wrongful conduct rule urged by petitioners is contained in Orzel, 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...

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25 practice notes
  • Weigle v. Pifer, Civil Action No. 2:14-cv-15087
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • October 14, 2015
    ...336 (2013)superseded by statute on other grounds as recognized in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo County , 773 S.E. 2d 627 (W. Va. May 13, 2015). As evidenced by the court's prior discussion of Weigle's assault, battery, and outrage claims, not all tortious acts wh......
  • City of Charleston v. Joint Comm'n, Civil Action No. 2:17-cv-04267
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 20, 2020
    ...336, 341 (2013) superseded by statute on other grounds as stated in Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cty., 235 W.Va. 283, 773 S.E.2d 627 (2015)."In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been gui......
  • Klean W. Hollywood, LLC v. Superior Court of L. A. Cnty., B283816
    • United States
    • California Court of Appeals
    • March 8, 2018
    ...concerning those who supply drugs or who abandon a demonstrably incapacitated user of drugs. (See, e.g., Tug Valley Pharmacy, LLC (2015) 235 W.Va. 283, 284-285, 297, [773 S.E.2d 627] [persons addicted to prescription drugs not barred from pursuing civil action against doctors, a medical cen......
  • C.C. v. Harrison Cnty. Bd. of Educ., 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...(footnotes omitted), superseded by statute on other grounds as stated in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cty. , 235 W. Va. 283, 773 S.E.2d 627 (2015). Accord Webb v. Brown & Williamson Tobacco Co. , 121 W. Va. 115, 118, 2 S.E.2d 898, 899 (1939) ("In every action fo......
  • Request a trial to view additional results
22 cases
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...(footnotes omitted), superseded by statute on other grounds as stated in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cty. , 235 W. Va. 283, 773 S.E.2d 627 (2015). Accord Webb v. Brown & Williamson Tobacco Co. , 121 W. Va. 115, 118, 2 S.E.2d 898, 899 (1939) ("In every action fo......
  • Weigle v. Pifer, Civil Action No. 2:14-cv-15087
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • October 14, 2015
    ...336 (2013)superseded by statute on other grounds as recognized in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo County , 773 S.E. 2d 627 (W. Va. May 13, 2015). As evidenced by the court's prior discussion of Weigle's assault, battery, and outrage claims, not all tortious acts wh......
  • City of Charleston v. Joint Comm'n, Civil Action No. 2:17-cv-04267
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 20, 2020
    ...336, 341 (2013) superseded by statute on other grounds as stated in Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cty., 235 W.Va. 283, 773 S.E.2d 627 (2015)."In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been gui......
  • Klean W. Hollywood, LLC v. Superior Court of L. A. Cnty., B283816
    • United States
    • California Court of Appeals
    • March 8, 2018
    ...concerning those who supply drugs or who abandon a demonstrably incapacitated user of drugs. (See, e.g., Tug Valley Pharmacy, LLC (2015) 235 W.Va. 283, 284-285, 297, [773 S.E.2d 627] [persons addicted to prescription drugs not barred from pursuing civil action against doctors, a medical cen......
  • Request a trial to view additional results
1 books & journal articles
  • Pursuing Public Health Through Litigation.
    • United States
    • February 1, 2021
    ...the wrongful-conduct rule, including its origin and justification, see Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County, 773 S.E.2d 627, 629-33 (W. Va. 2015); and Samuel Fresher, Comment, Opioid Addiction Litigation and the Wrongful Conduct Rule, 89 U. COLO. L. Rev. 1311, 13......

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