Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty.

• Decision Date: 28 May 2015
• Docket Number: No. 14–0144.,14–0144.
• Citation: 773 S.E.2d 627,235 W.Va. 283
• Court: West Virginia Supreme Court
• Parties: 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.

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 ShaferDefendants 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:

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, Katherine Hoover, and petitionerDr. 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.⁴Certain 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 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.⁷Petitioners argue that this Court should adopt a wrongful conduct bar which 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 or immoral act or transaction to which he is a party.”537 N.W.2d at 212(citations omitted);see alsoGreenwald v. Van Handel,311 Conn. 370, 88 A.3d 467, 472(2014)(recognizing rule 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.”).The rationale typically argued in support of the rule is the “public policy that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.”Orzel,537 N.W.2d at 213;see alsoRimert v. Mortell,680 N.E.2d 867, 874(Ind.Ct.App.1997)(wrongful conduct rule “embodies the principle that one who is responsible for the commission of a criminal or wrongful act must 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”).There are four commonly cited reasons for barring such claims: 1) to avoid “condon[ing] and encourag[ing] illegal conduct”; 2) to prevent wrongdoers from profiting from their illegal acts; 3) to avoid damage to the public's perception of the legal system; and 4) preventing wrongdoers from shifting responsibility for their illegal acts to other parties.Orzel,537...