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Sometimes we write about a case because it is important. Sometimes we write about a case because it is novel. And sometimes we write about a case simply because it is fun. Nixon v. Kysela Pere et Fils, Ltd. et al., 2022 U.S. Dist. LEXIS 48067 (W.D. Va. March 17, 2022), tumbles into that last category.

The defendant Kysela Pere et Fils, LTD. (“the Company”), was an international wine and spirits distributor. The plaintiff sued both the Company and its owner – that would be the Kysela part of Kysela Pere et Fils. The plaintiff alleged that she and Kysela were engaged in a romantic relationship while the plaintiff was employed as a wine salesperson at the Company. According to the plaintiff, she was fired from the Company because she ended the personal relationship. She contended that the Kysela engaged in quid pro quo sexual harassment, in violation of Title VII of the Civil Rights Act of 1964.

The facts are predictably steamy. The plaintiff and Kysela had an on and off relationship. There were salacious, nasty notes. Honestly, you will have a much better time reading the Nixon opinion than our necessarily Bowdlerized version. We’ll leave it at this: the Nixon court held that the plaintiff failed to establish a genuine issue of material fact as to certain elements of her prima facie case of quid pro quo sexual harassment — e.g., whether there were any unwanted sexual advances and whether the plaintiff was discharged on account of sex (her gender) as opposed to lack of sex (the bawdy bits). Accordingly, the court held that the defendants were entitled to summary judgment on the Title VII claim.

What does any of this have to do with drug and device law? So far, nothing. But the plaintiff had also made a claim against the Company owner for gross negligence because he let the plaintiff ingest his Clonazepam, a Schedule IV controlled substance. The owner’s doctor prescribed him Clonazepam as a sleeping aid. During the course of their romantic relationship, the plaintiff requested that Kysela share his Clonazepam with her because she was having difficulty sleeping.  The plaintiff took the medication without knowing what it was called or conducting any research on possible effects. At the same time, the plaintiff knew that taking medication that had been prescribed to someone else was illegal. The plaintiff said that she eventually became addicted to the medication. Three years after she began taking the owner’s Clonazepam, she asked her doctor to prescribe the medication to her. Her doctor refused and advised the plaintiff to stop taking the medication. Nonetheless, she continued taking the drug for two more years. After the plaintiff ended the personal relationship, she required therapy to discontinue her use of the Clonazepam. She claimed injuries from her use of the sleeping pills.

Not surprisingly, the Company owner argued that he did not owe a duty to the plaintiff. But because the case was “devoid of any evidence” that the Company owner “took any action whatsoever to avoid or advise [the plaintiff] of the harm involved in taking his prescription medication” the court could not conclude as a matter of law that the owner did not act with gross negligence when he gave his girlfriend his Clonazepam.

But that did not end the inquiry The Nixon case was governed by Virginia law, which still follows the old rule making contributory negligence a complete defense to allegations of negligence. The Nixon court reasoned that any reasonable juror could conclude that the plaintiff “failed to act as a reasonable person would have acted for her own safety by ingesting medicine without knowing what it was, what it did, or consulting a physician.” She “knew at the time that taking drugs that were prescribed to another individual constituted a crime under Virginia law.” Her “continued use of the drug after being denied her own prescription and being instructed by her physician to stop taking the drug” bolstered that conclusion. The plaintiff’s “failure to act prudently as it regards her own safety in taking a controlled substance without a physician’s advice” acted as a complete defense. The court granted summary judgment in favor of the defense.

So there you have it. The Nixon case had sex, drugs, wine, and, perhaps most delicious of all, application of the old contributory negligence rule that most of us have not encountered since we took the bar exam. What more could a law nerd want?