Santa dropped off an early Christmas present. It was not crafted by elves. It was drafted by the Pennsylvania Supreme Court (five of its seven members, anyway), and it is so good that it is a last minute addition to our Ten Best list, which will arrive anon.
In Albert v. Sheeley’s Drug Store, Inc., 2021 WL 6062555 (Pa. Dec. 22, 2021), a wrongful death and survival action was brought after a man died from a fentanyl overdose. The theory of the case was that a pharmacy negligently permitted a son to pick up his mother’s fentanyl prescription. The son was a drug addict who engaged in dysfunctional drug-seeking behaviors, and that son shared the ill-gotten fentanyl with an addict friend – the decedent. Negligence enters the picture because the mother had entered instructions with the pharmacy that her prescription should not be dispensed to her son. She did not trust him. She was right.
The pharmacy argued that it should not be on the hook for a death that wouldn’t have happened but for the decedent’s illegal conduct. That defense is called in pari delicto, which translates to “in equal fault.” It is an equitable doctrine that precludes plaintiffs from recovering damages if their cause of action is based, at least in part, on their own illegal conduct. The pharmacy moved for summary judgment.
There was decent evidence (texts, etc.) that the decedent was in on the son’s scheme to get hold of the mom’s prescription drugs. The lower court, in a decision that we first blogged about here, seemed to adopt that inference and, therefore, applied the in pari delicto doctrine to bar any recovery on behalf of someone who overdosed on fentanyl illegally obtained from the defendant pharmacy by means of the fraudulent scheme involving presentation of a prescription under false pretenses. The defendant pharmacy won summary judgment.
But the evidence of the decedent’s knowledge that the son had hoodwinked the pharmacy was not completely buttoned down. One could choose to interpret the evidence in the record to contain gaps as to the extent to which the decedent actually knew the provenance of the fentanyl. The plaintiff (the father of the decedent, and executor of his estate) contended that the lower court should have given his side the benefit of the doubt and denied summary judgment. The case went up on appeal and was unanimously affirmed by the Superior Court. Then it went up the Pennsylvania Supreme Court.
The Pennsylvania Supreme Court’s decision in Albert is important because it is such a full-throated endorsement of the in pari delicto doctrine. The argument over the decedent’s knowledge was of no consequence. Whether or not the decedent conspired with the son to intercept mom’s fentanyl, the son knew he was ingesting fentanyl that had not been prescribed for him. Thus, the decedent committed the crime of illegal possession of a controlled substance not prescribed for him, which directly caused his death.
The plaintiff and dissent questioned the justice of this outcome, arguing that it put in place a harsh result based on a mere status crime, unduly broadened in pari delicto to bar valid claims under ridiculous circumstances, and was at odds with Pennsylvania’s system of comparative fault. None of those arguments won the day.
First, the decedent’s conduct was not a mere status crime. The claims on his behalf were not foreclosed because the decedent was a drug addict. Rather, the decedent knowingly ingested a controlled substance the he knew had not been prescribed for him. That is a crime. Some might choose to pooh-pooh that crime, might choose to focus on the problems facing drug addicts, and might choose to bemoan society’s inadequate response to widespread drug dependency, but none of that alters the fact that we are talking about a crime that is in the books and comes with severe sanctions.
Second, the plaintiff’s parade of horribles was not impressive. The plaintiff suggested that under the court’s broad application of in pari delicto, DUI defendants would skate away from responsibility if their victims did not possess valid driver’s licenses. The Pennsylvania Supreme Court rejected this slippery-slope argument. In pari delicto, as an equitable doctrine, is subject to reasonable limits. Plus, the conduct of the driver in not procuring a valid license played no real role in causing the injuries. The plaintiff in Albert never managed to conjure up a plausible case in which in pari delicto would do real injustice. Barring suits by users of illegal drugs whose criminal acts resulted in their own injuries falls squarely within the scope of the in pari delicto doctrine. Courts should neither condone nor encourage criminal conduct.
Third, because the doctrine of in pari delicto is grounded on illegal acts, it is not affected by comparative fault. Invocation of comparative negligence is a non sequitur. In pari delicto retains relevance in cases involving the plaintiff’s intentional wrongdoing, to the point of criminality. Perhaps the plaintiff’s premise is that drug addicts have lost their capacity for decision-making, so negligence rather than intentionality is at work. But the law has not embraced, and never will embrace, the notion that addicts are not responsible for their choices. To revert to the plaintiff’s DUI example, the law will never exonerate drunk drivers because they lacked control over their driving.
In Pennsylvania, in pari delicto is alive and well. Courts should continue to apply it appropriately and vigorously.
One need not think too hard to come up with examples from the current litigation landscape in which the in pari delicto doctrine should eliminate or at least cut back on claims on behalf of people whose illegal acts were the primary cause of their alleged injuries. Maybe there are very big examples. Perhaps the biggest.