No. 14-0144 – Tug Valley Pharmacy, LLC, et al. v. All Plaintiffs Below
FILED
May 13, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Ketchum dissenting:
I dissent because criminals should not be allowed to use our judicial system
to profit from their criminal activity. The twenty-nine plaintiffs in the present matter
have admitted to engaging in the following criminal conduct: criminal possession of pain
medications; criminal distribution, purchase and receipt of pain medications; 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; and abusing and/or
misusing pain medication by ingesting greater amounts than prescribed and snorting or
injecting medications to enhance their effects.
Despite this litany of criminal misconduct, the majority ruled that these
criminal plaintiffs may maintain tort actions against pharmacies and doctors who, the
plaintiffs allege, negligently or recklessly prescribed and dispensed controlled substances
to them. Further, the plaintiffs allege that the defendants negligently or recklessly caused
them to become addicted to these controlled substances. The plaintiffs do not allege
criminal or intentional conduct on the part of the defendant pharmacies and doctors. If
the plaintiffs’ complaints alleged criminal or intentional conduct, the defendant
pharmacies and doctors would not be covered by their liability insurance policies.
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The majority’s ruling permitting criminal plaintiffs to maintain these civil
lawsuits ignores common sense and will encourage other criminals to file similar lawsuits
in an attempt to profit from their criminal behavior. I strongly disagree with this ruling
and believe that this Court should adopt the wrongful conduct rule to prevent criminals
from making a mockery of our judicial system by attempting to profit from their criminal
activity.
The wrongful conduct rule has been adopted in a number of other states.1
The Michigan Supreme Court of Appeals adopted the rule and described it 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.” Orzel v. Scott Drug Co., 537 N.W.2d 208, 212 (Mich. 1995). The court stated
that the rationale underlying the rule is “rooted in the public policy that courts should not
lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.”
537 N.W.2d at 213.
The Connecticut Supreme Court recently held 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. In Greenwald v. Van Handel, 88
A.3d 467, 472 (Conn. 2014), the court described the negative consequences that would
result from allowing criminal plaintiffs to profit from their criminal conduct:
If courts chose to regularly give their aid under such
circumstances, several unacceptable consequences would
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See footnote 6 of the majority opinion.
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result. First, by making relief potentially available for
wrongdoers, courts in effect would condone and encourage
illegal conduct. . . . Second, some wrongdoers would be able
to receive a profit or compensation as a result of their illegal
acts. Third, and related to the two previously mentioned
results, the public would view the legal system as a mockery
of justice. Fourth, and finally, wrongdoers would be able to
shift much of the responsibility for their illegal acts to other
parties. . . . [W]here the plaintiff has engaged in illegal
conduct, it should be the plaintiff’s own criminal
responsibility which is determinative.
Id., 88 A.3d at 472-73.
In the present case, the majority addressed the reasons why other courts
have adopted the wrongful conduct rule but declined to adopt the rule in West Virginia
because 1) it could be difficult for courts to apply; and 2) “our system of comparative
negligence offers the most legally sound and well-reasoned approach to dealing with a
plaintiff who has engaged in immoral or illegal conduct.”
The majority worries that “attempting to accommodate all factual scenarios
and policy concerns raised by the wrongful conduct rule make it virtually impossible to
comprehensively articulate and therefore highly unlikely to be judiciously applied.” I
disagree. The wrongful conduct rule is straightforward and requires a court to exercise
its basic common sense when applying the following: a criminal plaintiff may not
maintain a tort action based on injuries sustained as the direct result of his or her
knowing, and intentional participation in, a criminal act. Further, assuming arguendo
that complicated factual situations would arise in which it was unclear whether a court
should apply the rule, this Court is perfectly capable of reviewing such scenarios and
providing clarity on the rule’s application to a particular circumstance.
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Next, the majority states that we need not adopt the wrongful conduct rule
and should instead rely on “our system of comparative negligence” when assessing
whether a plaintiff involved in immoral or illegal conduct should be allowed to maintain
a civil action arising from such conduct. This argument has been considered and rejected
by other courts. For instance, the Connecticut Supreme Court considered this argument
in Greenwald and stated:
[W]e agree with other jurisdictions that have concluded that
the mere availability of common-law or statutory comparative
negligence, which permits a plaintiff to recover even if his
own negligence contributed to his injuries . . . does not negate
application of the wrongful conduct rule. As one court
explained, comparative negligence has no application to the
[wrongful conduct] rule precluding a plaintiff from
recovering for injuries sustained as a direct result of his own
illegal conduct of a serious nature. . . . That rule is not based
on the theory that a plaintiff, with an otherwise cognizable
cause of action, cannot recover for an injury to which he has
contributed. . . . It rests, instead, upon the public policy
consideration that the courts should not lend assistance to one
who seeks compensation under the law for injuries resulting
from his own acts when they involve a substantial violation of
the law. . . It simply means that proof of such an injury would
not demonstrate any cause of action cognizable at law.
Id., 88 A.3d at 476-77 (internal citation and quotation omitted).
For the foregoing reasons, I respectfully dissent.
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