A few years ago, we detailed the efforts of the plaintiffs’ bar to tweak the Restatement of Torts to decrease the chance that a suit for damages would be defeated because the plaintiff engaged in a criminal act. The Restatement (Second) from 1979 called this the Wrongful Acts Doctrine, but the concept has a long history that has resulted in many names for determining when there is or is not a bar to recovery based on the plaintiff’s criminal conduct. We tend to lump this all under in pari delicto because lawyers like to use Latin phrases even if they do not always know what the actual Latin means. In the context of torts related to personal injury, where many states apply some version of comparative or contributory negligence to allow a jury to assign fault by percentage, it is not hard to see why swinging too far in either direction might be a problem. Even curmudgeonly defense lawyers like us can see why barring the recovery of a plaintiff who can otherwise make out a claim simply because she was engaging in some arguably criminal conduct at the time of the defendant’s tortious action or the resulting injury would be wrong. At the same time, a plaintiff who was injured because he was intentionally committing a felony should be barred from recovery. And we mean a complete bar up front, not just a piece of the puzzle at trial after the defendant is forced to choose between spending a bunch of money to work up and try the case and paying the felonious plaintiff to go away.
We do not know why, but a perusal of our “in pari delicto” topic shows we have already posted on decisions addressing this issue four times in the last two years. We could have a morbid interest tort cases with some overlay of criminality, much like a Netflix viewer whose recommendations are filled with documentaries on serial killers, or there could be an actual uptick in blogworthy cases relating to whether criminal conduct by the plaintiff bars recovery. It has been said that “there is no honor among thieves.” We could add that “some plaintiff lawyers have no shame when it comes to finding someone with deep pockets to blame.” Rhyming aside, this purported principle (perhaps, a “new saw”) played out all the way to the Pennsylvania Supreme Court in DiNardo v. Kohler, — A.3d –, 2023 WL 8102948 (Pa. Nov. 22, 2023). We do not make light of the underlying facts of DiNardo, which include four murders committed by the plaintiff—his mother sued on his behalf, but we will refer to him as the plaintiff—while under the psychiatric care of the physician defendant. The plaintiff confessed, pleaded guilty to four first degree homicides, and was sued for wrongful death by the families of the murder victims. Then plaintiff sued his psychiatrist and three levels of her employers in an attempt to shift liability based on alleged malpractice in his care. Because DiNardo was decided under the Pennsylvania equivalent of 12(b)(6), we have few facts outside of plaintiff’s allegations. As a result, we do not know what happened with the wrongful death cases or whether there was any support for his allegations about the defendants. In brief, the allegations were that the psychiatrist cleared him to be released from an involuntary commitment, later reduced his antipsychotic medications, and ultimately advised him to stop the medications during a session that occurred a day after the first murder and a day before the other three. In paraphrase, the core allegation was that the psychiatrist should have known plaintiff was homicidal and prevented him from committing homicides by keeping him involuntarily committed and/or maintaining him at his highest doses of antipsychotics. As for Plaintiff’s alleged harm, we will get to that.
If there was ever going to be a case with a bar to civil suit from the plaintiff’s own criminal acts, then this one would probably be it. Yet the Pennsylvania Supreme Court accepted a discretionary review after the Superior Court expanded the trial court’s partial dismissal to a complete dismissal. Less than two years ago, the Pennsylvania Supreme Court had decided another, to us, clear application of in pari delicto in a case called Albert v. Sheeley’s Drug Store, 265 A.3d 442 (Pa. 2021). In that case, the plaintiff’s decedent alleged overdosed on a scheduled medication that was diverted by his friend, who obtained them by picking up a prescription written for his mother. Both the decedent and his friend clearly committed felonies in connection with acquiring and possessing the scheduled medication, but the plaintiff sued the dispensing pharmacy over the overdose death for allegedly not following an instruction not to let the decedent’s friend pick up prescriptions. The wrongful death claim in Albert was held barred. With that recent background, one might assume that DiNardo would be a slam dunk at every level. The trial court, however, had allowed claims for compensatory damages to proceed, while barring claims for indemnity in the wrongful death cases. 2023 WL 8102948 , *3. Its reasoning seemed to hinge on whether the harms plaintiff allegedly suffered were, according to his allegations, caused by his criminal conduct. By contrast, the Superior Court saw that each of plaintiff’s alleged harms—pain and suffering from committing murder, getting sued, seeing the impact on his family’s business, and going to prison for life—were because he had committed murder. Id.
We will detour for a minute to address an elephant or two in the room. First, even without in pari delicto or the wrongful acts doctrine, these do not seem like compensable injuries. There is no alleged physical injury to plaintiff. Even under a negligent infliction of emotional distress theory, there needs to be a physical impact and/or the plaintiff’s presence within a zone of danger. Nope. Second, the plaintiff’s guilty plea, presumably to receive a life sentence instead of the death penalty, runs directly contrary to the asserted claims and damages. Even without claim or issue preclusion—translating a criminal conviction on a plea deal to non-mutual offensive collateral estoppel in a civil case is complicated—the plaintiff gained an advantage by admitting to a Pennsylvania court that he committed the four murders with the requisite intent. Taking a contrary position in another Pennsylvania court should not be permitted. Pennsylvania civil complaints are required to be verified by the plaintiff or an authorized agent, not merely signed by a lawyer, so taking a contrary position in a complaint is no less impermissible.
Back to what DiNardo actually addressed. The question on appeal was:
Does the “no felony conviction recovery” rule preclude the award of any civil damages or relief where, as here, [Appellant] alleges that [DiNardo] would not benefit or profit from his own criminal acts, but rather would be compensated for alleged medical malpractice relating to the crimes for which he pleaded guilty?
Id. at *4. The court embarked on a lengthy recounting of the parties’ positions and an even more lengthy dive into the jurisprudence since 1725 on the subject of bars to recovery based on criminal conduct by the plaintiff. This included a discussion of the “no felony conviction rule” versus in pari delicto and other variants. We will not recap, except to highlight the conclusion:
In short, our case law, while somewhat limited, firmly establishes that, under both the no felony conviction recovery rule and the in pari delicto doctrine, persons convicted of serious crimes must bear the losses stemming from their criminal acts, and, as a matter of public policy, will not be permitted to shift responsibility for these losses to others. Stated another way, injuries that flow from volitional criminal conduct cannot provide a basis for a recovery in tort.
Id. at *11. DiNardo was far from the first time that a healthcare provider had been sued over the impacts of a patient’s criminal conduct. Such claims had been rejected by courts in at least six other states (id.) and sound public policy supported that “injuries arising from volitional criminal conduct should not provide a basis for a recovery in tort” by the criminal. Id. at *12. Among the public policy reasons was that, to hold otherwise, could have “detrimental effects on the practice of psychiatric medicine.” Id. We can go a step further: it would be hard to get mental health practitioners willing to treat serious mental illness if near boundless, and likely uninsurable, liability could result from their patient’s criminal acts.
After “reaffirming” the bar against actions for “damages sustained as a direct result of [the plaintiff’s] volitional participation in, and conviction for, serious criminal acts” and “losses which flowed from such acts,” the court identified three issues it was not resolving. Id. at *13. First, it did not address a conviction based on “less than intentional,” including a conviction for “guilty but mentally ill.” Second, it did not address what happens without a conviction. Third, it did not address “less serious crimes” than first-degree murder. Of course, the same court in Albert had barred a suit where the plaintiff’s decedent was not convicted and his felony of possessing a controlled substance without a prescription (and perhaps conspiracy to obtain same) was less serious than first-degree murder.
Applying the above rule to the DiNardo complaint and the facts of plaintiff’s conviction that the complaint had omitted, plaintiff had clearly been convicted of, and admitted to, “volitional participation in . . . serious criminal acts.” Id. at *14. In addition, every claimed “damage” or “loss” in the complaint “flow[ed] from the murders to which DiNardo pleaded guilty.” Id. Semantics over whether the relief sought in the suit would be “damages” or “benefits” to him were unavailing, well, semantics.
Whether DiNardo will make it more difficult for a plaintiff to sue over injuries sustained by taking a prescription drug that was obtained through the commission of a felony remains to be seen. On its face, the bar for applying a bar has not moved much. What has been emphasized, however, is the need for courts to look beyond creatively drafted complaints and omissions of allegations about the plaintiff’s own criminal conduct to dismiss barred claims up front.