Tug Valley Pharmacy, LLC v. All, 14-0144
| Decision Date | 13 May 2014 |
| Docket Number | No. 14-0144,14-0144 |
| 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 |
Case 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
Michael M. Fisher, Esq.
Elizabeth S. Cimino, Esq.
Samuel Randolph Ballengee, and
B & K Pharmacies, Inc., d/b/a Family
Pharmacy
James M. Cagle, Esq.
Charleston, West Virginia
Attorney for Respondents
David F. Nelson, Esq.
HENDRICKSON & LONG, PLLC
Charleston, West Virginia
Attorney for Strosnider Drug Store, Inc. d/b/a
Sav-Rite Pharmacy
Cecil C. Varney, Esq.
Williamson, West Virginia
Attorney for Diane Shafer, M. D.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
1. "The 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).
2. "A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident." Syl. Pt. 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 341, 256 S.E.2d 879, 885 (1979).
3. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. Pt. 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).
4. Where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of comparative fault.
5. A plaintiff's immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another. Unless otherwise provided at law, a plaintiff's conduct must be assessed in accordance with our principles of comparative fault.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
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 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 prescriptionsand 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 ofaddiction 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 barredas 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., 537 N.W.2d 208 (Mich. 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?
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.
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 would bar entirely a claim where a plaintiff must rely on his or her illegal or immoral act to establish the...
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