West Virginia Rejects Wrongful Conduct Rule on Comparative Fault Grounds
Summer 2015
In the latest round of litigation related to prescription drug abuse in Appalachia, the Supreme Court of Appeals of West Virginia declined to apply the wrongful conduct rule. The court held that the drug-addicted plaintiffs in the case were able to sue the pharmacies and doctors that provided prescription painkillers to them, despite the fact that the plaintiffs engaged in criminal misconduct to obtain the prescription. Instead, these factors would be considered along with the other circumstances under a comparative fault model.
Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County,1 was an action by twenty-nine plaintiffs alleging that their prescribing doctors and dispensing pharmacies contributed to their addiction to controlled substances.2 The plaintiffs brought the suit even though they admitted to engaging in criminal conduct associated with the acquisition and abuse of the controlled substances. All of the plaintiffs were patients of the Mountain Medical Center and were prescribed Lortab, Oxycontin, and Xanax. The plaintiffs also alleged that the pharmacies filled these prescriptions knowing that the prescribing doctors were operating pill mills. All of the plaintiffs testified that their criminal abuse of prescription painkillers pre-dated their treatment at Mountain Medical Center and the filling of their prescriptions at the defendants’ pharmacies.
Based on the admissions of criminal activity that were directly related to their claims for damages, the defendants moved for summary judgment and asked the trial court to apply the “wrongful conduct rule,” 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.”3 The trial court held that the plaintiffs’ actions were not barred but agreed to certify the question of the applicability of the wrongful conduct rule to the Supreme Court of Appeals.4
The defendants argued that the wrongful conduct rule would be a complete bar to plaintiffs’ claims because the plaintiffs admitted that in order to maintain their causes of action that they must rely on their own illegal or immoral acts. The plaintiffs argued that the adoption of the wrongful conduct rule would reward the defendants’ own wrongful acts. The plaintiffs asserted that their conduct should be assessed according to West Virginia’s comparative fault concepts.5
In a 3-2 decision authored by Chief Justice Margaret Workman, the Supreme Court of Appeals declined to adopt the wrongful conduct rule, holding instead that West Virginia’s longstanding principles of comparative fault disfavored defenses that act as an absolute bar to liability. The court went on to hold that:
“[q]uestions 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.”6
The Court also feared that the adoption of the wrongful conduct rule would show a lack of faith in West Virginia’s jury system and would destabilize comparative fault in West Virginia.7
The court noted that since West Virginia adopted modified comparative fault in Bradley v. Appalachian Power Co.8 in 1979, an array of absolute defenses to liability had been abolished and were subsumed within the concept of comparative fault, including assumption of risk, last clear chance and sudden emergency.9 As a result, the evolution of comparative fault jurisprudence away from absolute bars to liability continued with the inclusion of criminal conduct by the plaintiff in the furtherance of her claim now to be considered by the jury. The Court noted that if self-incrimination issues arose in this context, those could be addressed in the normal handling of Fifth Amendment privilege preservation claims in civil matters.10
Justices Menis E. Ketchum, II and Allen H. Loughry II issued forceful dissents from the majority opinion. Justice Ketchum objected to the majority’s opinion “because criminals should not be allowed to use our judicial system to profit from their criminal activity.”11 Justice Ketchum voiced his concern that, by allowing these plaintiffs to maintain their actions, the court may be emboldening “other criminals to file similar lawsuits in an attempt to profit from their criminal behavior.”12 Justice Ketchum also chided the majority for their belief that the wrongful conduct rule was too difficult to apply. He stated that the “wrongful conduct rule is straightforward and requires a court to exercise its basic common sense when applying [it]” and that the Supreme Court of Appeals was “perfectly capable of reviewing such scenarios and providing clarity on the rule’s application to a particular circumstance.”13
In Justice Loughry’s dissent, he similarly criticized the majority for their rejection of the wrongful conduct rule. He called the majority’s opinion “misguided” and stated that, “[b]y summarily dismissing the wrongful conduct rule as unworkable, the majority’s decision requires hardworking West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable—a drug addict or his dealer.”14 Justice Loughry articulated his frustration with the majority’s opinion and the effect it will have on the citizens of West Virginia:
the majority seeks to have West Virginia citizens do its “dirty work” with no regard for the egregious waste of judicial time and resources, loss of earnings occasioned by citizens’ jury duty, etc., that such a case engenders. . . . In a state where drug abuse is so prevalent and where its devastating effects are routinely seen in cases before this Court, it is simply unconscionable to me that the majority would permit admitted criminal drug abusers to manipulate our justice system to obtain monetary damages to further fund their abuse and addiction.15
On May 28, 2015, fifteen days after the majority decision and dissents were issued, and after a groundswell of criticism of the ruling had been published by local media,16 Justice Brent D. Benjamin issued an opinion concurring with the result, but on different grounds than the majority. He also directly addressed the criticisms in the dissents of his colleagues.
Justice Benjamin believed that the dissents to the majority’s opinion amounted to judicial activism. Justice Benjamin repeatedly stated that judicial conservatism barred the dissenting justice’s rationale in light of the passing of W. Va. Code § 55-7-13d(c)17 by the West Virginia Legislature.18 Specifically, Justice Benjamin stated that “[t]he principles of judicial conservatism require us to give effect to the wisdom and consideration of our sister branches of government—the branches designed to make public policy—and not to bestow upon ourselves the role of super legislature simply because we do not believe they went far enough.19
Justice Benjamin believed that the majority’s final opinion complemented W. Va. Code § 55-7-13d(c) by not restricting access to the courts for those who base their cause of action on a criminal act that did not result in a felony conviction. Justice Benjamin strongly disagreed with his dissenting colleagues because they wanted to adopt a broader interpretation of the wrongful conduct statute than the one adopted by the Legislature and the Governor. He believed that it would be judicial activism for the Supreme Court of Appeals to adopt a broader interpretation of the wrongful conduct statute.20 The Legislature had already debated the issue of the scope of the wrongful conduct statute and had decided, along with the Governor, on the narrow interpretation instead of the broader interpretation championed by defendants and the dissenting justices.21 While Justice Benjamin believed that the plaintiffs should have access to the courts, he did not believe that they would be successful because, due to their pleading of the Fifth Amendment during their depositions, they cannot prove proximate cause.22
*Marc E. Williams is the managing partner of the West Virginia office of the law firm Nelson Mullins Riley & Scarborough. This article represents the view of the author solely, and not the view of Nelson Mullins, its partners, employees, agents or clients.
Endnotes
1 Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County, No. 14-0144 (W.Va. May 13, 2015).
2 Id. at *1.
3 Id. at *5 (citing Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995)).
4 The court also certified an issue relating to the application of the defense of in pari delicto,but the Supreme Court of Appeals failed to address that issue.
5 Id. at *7.
6 Id. at *21 (citing syl. pt. 6, McAllister v. Weirton Hosp. Co., 173 W. Va. 75, 312 S.E.2d 738 (1983)).
7 Id. at *22.
8 Bradley v. Appalachian Power Co, 256 S.E.2d 879 (W.Va. 1979)
9 Tug Valley at *18
10 Tug Valley at n.14
11 See Justice Ketchum’s dissent at *1.
12 Id. at *2.
13 Id. at *3.
14 See Loughry’s dissent at *1.
15 Id.
16 See e.g., Hoppy Kercheval, Lawmakers Should Act on Supreme Court Ruling, Charleston Daily Mail, May 19, 2015, available at http://www.charlestondailymail.com/article/20150519/DM04/150519299/1279.
17 W. Va. Code § 55-7-13d(c) shields defendants from liability when the plaintiff’s damages “arise out of the plaintiff’s commission . . . of a felony criminal act: Provided, that the plaintiff has been convicted of such felony[.]”
18 See Justice Benjamin’s concurrence at *1-8 and 15.
19 Id. at 3.
20 Id. at *3-8.
21 Id. at *1, 4-5, and 11.
22 Id. at *2 and 14.