It’s an unfortunate fact of life that there are a lot of prescription drugs out there that people can also use to get high. We’re not just talking about cocaine, barbiturates, and methamphetamines, or even the long lists of drugs found at 21 U.S.C.A. §812. The truth of the matter is that just about any painkilling drug, and most drugs sold indicated for the treatment of psychosocial conditions such as depression, can be abused.
We’re product liability lawyers, not prosecutors. Our interest in this topic comes from those situations – and there’ve been more of these than we care to think about – where discovery leads us to suspect that the injuries a plaintiff is suing over were in fact caused by recreational, rather than therapeutic use of the product.
While stoner plaintiffs often like to think that they’re being slick, in reality they’re usually not as smart as their doctors – nor are they much of a match for determined discovery. Docs are pretty smart. Unless they’re actually in cahoots with the plaintiff (unfortunately we’ve run into a few of those, too) they tend to note such things as “drug seeking behavior” or excessive consumption in their records. Most docs don’t hesitate to cut off prescriptions to suspected abusers. Also, with the increasing computerization of prescription records, it’s easier than ever to compile evidence of overuse and other abuse even where a plaintiff tries to cover his or her tracks by getting prescriptions from multiple sources and filling them at multiple pharmacies.
So, you’ve got a plaintiff that you’re convinced is responsible for his or her own injuries due to excessive (or other illegal) use of the drug. This plaintiff has violated the prescriber’s usage limitations – not to mention anything and everything that your client says in its package insert. What can you do to blow this doper out of court?
Well, in addition to the usual causation and adequacy as a matter of law defenses, there’s a special legal doctrine that’s been crafted to deal with precisely this situation. It’s called the “wrongful conduct rule” or the “in pari delicto” doctrine, and it invokes public policy to preclude anyone who injures him or herself in the course of criminal activity from recovering in tort for those injuries. It’s tailor made for the addict plaintiff – and more than that, its invocation can cause a lot of lawyers on the other side to reconsider their involvement in any given case.
So what is this doctrine? It’s a variant of the longstanding general rule that intervening criminal conduct cuts off liability, but it’s more than that, because it has a moral aspect to it as well. It’s discussed in Restatement (Second) of Torts §889, comment b (1979), which states “if the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.” The Restatement also uses as an illustration an accident where the plaintiff was driving illegally at night without lights. Id. at Illustration 5.
The wrongful conduct rule has been applied in prescription drug product liability litigation. In Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995), the plaintiff had gotten multiple prescriptions from different doctors for the defendant’s drug, and had also been buying it on the street. The court invoked the wrongful conduct rule to throw the plaintiff out of court:
[T]he wrongful-conduct rule [is] rooted in the public policy that courts should not end their aid to a plaintiff who founded his cause of action on his own illegal conduct. If courts chose to regularly give their aid under such circumstances, several unacceptable consequences would 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.
Id. at 213. See also Ortolano v. BDI Marketing, 930 So.2d 192, 196 (La. App. 2006) (affirming summary judgment against plaintiff who abused OTC athsma by taking excessive quantities “to lose weight and gain energy”); Pappas v. Clark, 494 N.W.2d 245, 246-48 (Iowa App.1992) (drug addict could not recover on claim that the defendant pharmacy should have warned other pharmacies that the plaintiff was attempting to procure prescription drugs by using fraudulent prescriptions).
We’ve seen the wrongful conduct rule cited most recently in cases involving Oxycontin, a narcotic pain reliever designed to release its active ingredient slowly over time. Lots of Oxy-C plaintiffs, however, are addicts who thwart the time release function by chewing on or otherwise breaking the time release units so that they get the entire narcotic effect at one time – of course, in violation of the law and the defendant’s instructions. That’s quite rightly gotten them thrown out of court. In Price v. Purdue Pharma Co., the plaintiff used the multiple prescription ruse to obtain illegal quantities of the drug, and the supreme court affirmed dismissal as a matter of law:
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. . . . If a plaintiff cannot open his case without showing that he has broken the law, a court will not aid him. It has been said that the objection may often sound very ill in the mouth of the defendant, but it is not for his sake the objection is allowed; it is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. The principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or illegal act.
920 So.2d 479, 484 (Miss. 2006). Seven Kentucky plaintiffs – all persons who abused Oxy-C “for their mind-altering characteristics” – suffered the same fate:
Kentucky. . .public policy. . .den[ies] recovery for illegal acts, [so] the seven plaintiffs that procured and used OxyContin illegally may not recover in this action. . . . Because they must inevitably rely on their illegal actions to establish their claims, their claims should be denied in the first instance.
Foister v. Purdue Pharma, L.P., 295 F.Supp.2d 693, 705 (E.D. Ky. 2003).
The rule arose in a slightly different context – but to the same result – in Sorrentino v. Barr Laboratories, Inc., 397 F. Supp.2d 418 (W.D.N.Y. 2005), aff’d, 218 Fed. Appx. 7 (2d Cir. 2007). There the plaintiff had murdered his wife and attempted to blame his conduct on the defendant’s product. Again, the ruling was that the plaintiff could not recover for the consequences of his own illegal act:
[P]laintiff is barred from seeking damages stemming from his wife’s death, under New York’s public policy against allowing individuals to profit from their own wrongdoing. Plaintiff states that. . .“there were two victims that night of the murder, (my wife and myself). That may be his sincere belief, but a criminal jury found otherwise. Under New York public policy, therefore, this action must be dismissed.
Id. at 422-23. Compare Patten v. Raddatz, 895 P.2d 633, 637-38 (Mont. 1995) (plaintiff’s knowing receipt and ingestion of illegally prescribed tranquilizers barred any claim for injury arising from her illegal drug use).
As these cases indicate, while the wrongful conduct rule applies to abuse of prescription drugs, this is only a specialized indication of a much broader rule. Thus defense counsel who are not litigating in one of the states where there is directly on point drug precedent should not hesitate to put the drug abusing plaintiff where he or she belongs – out of court. As a public service, to help purge the courts of cases brought by criminal plaintiffs, here’s a list of general wrongful conduct rule precedent.
- Alabama: Ex parte W.D.J., 785 So.2d 390, 393 (Ala. 2000); Oden v. Pepsi Cola Bottling Co., 621 So.2d 953, 954 (Ala. 1993).
- Alaska: Lord v. Fogcutter Bar, 813 P.2d 660, 663-664 (Alaska 1991); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240 (Alaska 1983).
- California: Kashani v. Tsann Kuen China Enterprise Co., 13 Cal. Rptr.3d 174, 194-95 (Cal. App. 2004); Goldstein v. Enoch, 57 Cal. Rptr. 19, 23 (Cal. App. 1967); Goodwin v. Anheuser-Busch Cos., 2005 WL 280330, at *4 (Cal. Super. Jan. 28, 2005).
- Colorado: Sender v. Kidder Peabody & Co., 952 P.2d 779, 782 (Colo. App. 1997).
- Florida: Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337, 342-43 (Fla. App. 2001); Cabrerizo v. Fortune International Realty, 760 So.2d 228, 230 (Fla. App. 2000).
- Illinois: Vine Street Clinic v. HealthLink, Inc., 856 N.E.2d 422, 436-37 (Ill. 2006).
- Indiana: Rimert v. Mortell, 680 N.E.2d 867, 876 (Ind. App. 1997).
- Kansas: Parker v. Mid-Century Insurance Co., 962 P.2d 1114, 1116 (Kan. App. 1998).
- Massachusetts: Nisselson v. Lernout, 469 F.3d 143, 151-52 (1st Cir. 2006); Choquette v. Isacoff, 836 N.E.2d 329, 334 (Mass. App. 2005).
- Minnesota: Christians v. Grant Thornton, LLP, 733 N.W.2d 803, 814-15 (Minn. App. 2007).
- Missouri: Dobbs v. Dobbs Tire & Auto Centers, Inc., 969 S.W.2d 894, 897-98 (Mo. App. 1998); Clouse v. Myers, 753 S.W.2d 316, 319 (Mo. App. 1988).
- New Jersey: Tryanowski v. Lodi Board of Education, 643 A.2d 1057, 1062 (N.J. Super. Law Div. 1994); Amato v. United States, 549 F. Supp. 863, 867 (D.N.J. 1982), aff’d without opinion, 729 F.2d 1445 (3rd Cir. 1984).
- New York: Alami v. Volkswagen of America, Inc., 766 N.E.2d 574, 576-77 (N.Y. 2002); Barker v. Kallash, 468 N.E.2d 39, 42 (N.Y. 1984).
- North Carolina: Carver v. Carver, 314 S.E.2d 739, 744-45 (N.C. 1984).
- Oklahoma: Tillman v. Shofner, 90 P.3d 582, 584-85 (Okla. Civ. App. 2004).
- Pennsylvania: Minnesota Fire & Casualty Co. v. Greenfield, 855 A.2d 854, 868-69 (Pa. 2004); Holt v. Navarro, ___ A.2d ___, 2007 WL 2326870, at *7 (Pa. Super. Aug. 16, 2007).
- South Carolina: Myatt v. RHBT Financial Corp., 635 S.E.2d 545, 548 (S.C. App. 2006).
- South Dakota: Quick v. Samp, 697 N.W.2d 741, 747 (S.D. 2005).
- Tennessee: Nashville Ford Tractor, Inc. v. Great American Insurance Co., 194 S.W.3d 415, 428 (Tenn. App. 2005); Moss v. Mid-South Hospital, 1989 WL 134666, at *2 (Tenn. App. Nov. 7, 1989).
- Texas: Sharpe v. Turley, 191 S.W.3d 362, 369 (Tex. App. 2006); Jones v. Hyman, 107 S.W.3d 830, 831-32 (Tex. App. 2003).
- Virginia: Martin v. Ziherl, 607 S.E.2d 367, 371 (Va. 2005); Lee v. Nationwide Mutual Insurance Co., 497 S.E.2d 328, 329-30 (Va. 1998).
- West Virginia: Gray v. Fraley, 1992 WL 564130, at *3 (S.D.W. Va. Oct. 26, 1992).
- Wyoming: Feltner v. Casey Family Program, 902 P.2d 206, 208-09 (Wyo. 1995).