New Mexico law has a version of the wrongful conduct rule, and it operates as a complete bar to a plaintiff’s case. Acquisition of narcotics through fraudulent prescriptions is a violation of both federal and state law. So is narcotics trafficking, which the plaintiffs admitted to when they said they were going to split the pills with the nurse practitioner. Most versions of the in pari delicto rule limit application to instances where the harm suffered is one that the violated criminal law was intended to avoid. In Inge, the alleged injury – addiction – was precisely the harm at which the criminal laws were aimed.
Yes, it is. But that’s not to say that the plaintiffs in Inge offered no resistance. The plaintiffs argued that merely presenting false prescriptions was not, in itself, illegal. Even assuming there is any force to that argument, the plaintiffs admitted that the scheme was to share the drugs with the prescribing nurse practitioner. That is straight-up illegal. (We prosecuted drug cases long ago. We harbored no love for the crazy-long federal mandatory minimum sentences, but it was hard to shed a tear for the drug-dealers. We wouldn’t have felt any sympathy for the Inge plaintiffs, and, based on the facts set forth in the court’s opinion, we would not even have considered a plea agreement that did not lock in some jail time.) The Inge plaintiffs also argued that their conduct was less culpable than the defendant pharmacist, since nothing would have come to fruition without the defendant’s alleged agreement to fill obviously bogus prescriptions. They also offered the inevitable argument that the defendant’s misconduct, as a licensed pharmacist, was worse than the misconduct of [supply your own epithet for drug-abusers and/or drug-dealers]. The court did not buy these arguments. It is not as if the pharmacist forced the plaintiffs to concoct and follow through on this opioid abuse and distribution scheme. Moreover, however serious the pharmacist’s alleged breach of professional ethics was, it did not make the plaintiffs’ illegal conduct somehow legal.
Naturally, anytime you hear of a drug dealer case in New Mexico, you probably think of Breaking Bad. This time, it’s more like Breaking Stupid.