We don’t have much patience for litigation attempting to seek damages for drug addicts who injured or killed themselves through their illegal use of drugs. We’ve discussed several times how such plaintiffs (or their estates) should lose under the in pari delicto doctrine that prevents criminals from recovering damages for the consequences of their own criminal acts. Lots of cases so hold. See, e.g., Albert v. Sheeley’s Drug Store, Inc., 265 A.3d 442, 448 (Pa. 2021); Price v. Perdue Pharma Co., 920 So.2d 479, 486 (Miss. 2006); Orzel v. Scott Drug Co., 537 N.W.2d 208, 213 (Mich. 1995); Patten v. Raddatz, 895 P.2d 633, 637-38 (Mont. 1995); Lastrina v. Bettauer, 289 A.3d 1222, 1234 (Conn. App. 2023); Gentile v. Malenick, 112 N.Y.S.3d 364, 365 (N.Y.A.D. 2019); Kaminer v. Eckerd Corp., 966 So.2d 452, 454 (Fla. App. 2007); Pappas v. Clark, 494 N.W.2d 245, 247 (Iowa App. 1992); Inge v. McClelland, 725 F. Appx. 634, 638 (10th Cir. 2018) (applying New Mexico law); Romero v. United States, 658 F. Appx. 376, 380 (10th Cir. 2016) (applying New Mexico law); Messerli v. AW Distributing, Inc., 2023 WL 4295365, at *5 (D. Kan. June 30, 2023), certif. denied, 2023 WL 6961977 (D. Kan. Oct. 20, 2023); Alston v. Caraco Pharmaceutical, Inc., 670 F. Supp.2d 279, 287 (S.D.N.Y. 2009); Sorrentino v. Barr Laboratories, Inc., 397 F. Supp.2d 418, 422-23 (W.D.N.Y. 2005), aff’d, 218 Fed. Appx. 7 (2d Cir. 2007); Foister v. Purdue Pharma, L.P., 295 F. Supp.2d 693, 705 (E.D. Ky. 2003).
Riccelli v. Rector, 2023 WL 6267079 (Ohio C.P. Sept. 19, 2023), is another drug-abusing plaintiff case that could have been decided on in pari delicto grounds, since the plaintiff’s decedent met her unfortunate demise while illegally taking opiate drugs prescribed for someone else. Id. at *1. Specifically, she ODed on drugs prescribed for the lead defendant, “who was with her at the time of the death and faced criminal charges for the incident.” Id. Had there been no other defendants, we wouldn’t have cared about this case, but with the only equally culpable defendant being in jail and (we assume) judgment proof, plaintiff went looking for some deep pocket to try to coerce into a settlement. Of course, the drug manufacturer, along with a prescribing physician, were targeted.
Didn’t work, albeit not for reasons of in pari delicto.
The first lesson from Riccelli is to keep an eye out for abusive reliance on place-holding “John Doe” defendants. Some states allow Doe defendants, and others (like Pennsylvania) don’t. We think it makes for lazy pleading, and that was certainly the case in Riccelli. Rather than determine promptly who the drug manufacturer(s) were, plaintiff used Doe defendants – twice. Plaintiff filed one complaint in 2020, using mostly Does, and dismissed it a year later, not having added any deep-pocket defendants. Id. Then, in early 2022, plaintiff filed a second complaint and did the same thing. Id. No real defendants were substituted until seven months later. Oops.
Too bad, so sad, we’re glad, they’re mad.
Ohio’s two-year statute of limitations ran in the meantime. Ohio had some sort of “savings statute” that ordinarily would have covered the first, dismissed action, but Doe defendants don’t count.
The savings statute applies when the original suit and the new action are substantially the same. The actions are not substantially the same, however, when the parties in the original action and those in the new action are different.
Riccelli, 2023 WL 6267079, at *2 (quoting Children’s Hospital v. Ohio Dep’t. of Public Welfare, 433 N.E.2d 187, 189 (Ohio 1982)) (citations omitted). Doe defendants aren’t the “same” for purposes of the savings statute, since they don’t inform the actual defendants of the action, and thus do not serve the purposes of the statute of limitations:
When Plaintiff amended her complaint . . . to substitute the [drug manufacturer] Defendants . . ., she named different parties than her original complaint. Thus, the savings statute does not save her claims against [the [drug manufacturers] which were instead time barred [when the first complaint was voluntarily dismissed]. . . . The use of fictitious names to represent defendants to be named later . . . did not preserve Plaintiff’s claims against Defendants for the purpose of the statute of limitations.
Id. (citations omitted).
Riccelli thus underscores an important point – defendants should watch for Doe defendants, and know what to do with them. Plaintiffs often load up their complaints with Does without much of an idea what such pleading can, and cannot, accomplish. One thing they can’t do (at least in Ohio) is toll the statute of limitations when they fail to provide any notice of the action to actual defendants.
A statute of limitations dismissal would have been quite enough to free the manufacturer defendants from this junk(ie) litigation, but Riccelli took a belt and suspenders approach – and dismissed the action over and over again.
First, as we’ve pointed out before, Ohio has a product liability statute (“OPLA”) that “expressly abrogates all common law product liability claims or causes of action,” leaving only statutory claims. 2023 WL 6267079, at *3 (citations and quotation marks omitted). Plaintiff thus could not plead “negligence”-based warning claims. Id. Plaintiff – who seemed to have about as much knowledge of Ohio substantive law as she did of procedure – “does not assert an OPLA claim in this lawsuit.” Id. Oops number two.
Moreover, “[e]ven if Plaintiff had pled under OPLA,” that statute “requires proof that the defendant manufactured the actual defective product.” Id. “Plaintiff does not allege that [the decedent] ever used or came into contact with any product Defendants manufactured.” Id. Oops number three.
Second, Riccelli further held that the learned intermediary rule also bared the plaintiff’s claims. Ohio’s learned intermediary rule “precludes manufacturer liability for failure to warn the consumer when an adequate warning has been given to . . . the consumers physician.” Id. (quoting Rowland v. Purdue Pharma L.P., 821 N.E.2d 141, 146 (Ohio 2004)) (citations omitted). Plaintiff pleaded only that the manufacturer defendants “failed to warn [the decedent] and the American Public of the dangers associated with opiate medications.” Id. “Plaintiff does not allege that [the manufacturer defendants] failed to warn prescribing physicians, [so] her claims must fail.” Id. Oops number four.
Third, Riccelli held that, even had plaintiff pleaded valid claims, they were preempted because “it is impossible for a private party to comply with both federal and state law.” 2023 WL 6267079, at *3. Plaintiff sued two purported manufacturers, one generic and one branded. Generic manufacturers “cannot unilaterally change the labels of their drug” so it was “impossible for [the generic defendant] to comply with both a state law claim that it must change its labelling and its federal duties not to.” Id. The claims against the branded manufacturer were “also preempted.” That defendant gave “the warnings required by federal law and Plaintiff has not produced any allegations or evidence of how [it] could have or should have changed the warnings that it gives under federal law.” Id. at *4. Oops number five.
Fourth, and finally, plaintiff pleaded neither duty nor causation as to the decedent – since the decedent died because she deliberately took drugs that had been prescribed for somebody else.
Plaintiff has not alleged any connection between [the decedent] and the [manufacturer] Defendants. All connections alleged were with [the lead defendant] and his doctors. There is no description of a connection between the prescribed opiates [that] were involved in her death. There is no allegation of proximate cause or how [the lead defendant’s] intervening act of giving her the drugs and [the decedent] then taking the drugs did not break the chain of causation.
We’ve always believed that overdosed drug addicts make lousy plaintiffs. Riccelli let us count the ways.