Tug Valley Pharmacy, LLC v. All Below

773 S.E.2d 627, 235 W. Va. 283, 2015 W. Va. LEXIS 673
CourtWest Virginia Supreme Court
DecidedMay 13, 2015
Docket14-0144
StatusPublished
Cited by24 cases

This text of 773 S.E.2d 627 (Tug Valley Pharmacy, LLC v. All Below) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tug Valley Pharmacy, LLC v. All Below, 773 S.E.2d 627, 235 W. Va. 283, 2015 W. Va. LEXIS 673 (W. Va. 2015).

Opinions

WORKMAN, Chief Justice:

This case is before the Court upon certified questions presented by the Circuit Court of Mingo County regarding whether the respondents/plaintiffs below (hereinafter “respondents”) in the cases below may maintain causes of action against the petitioners/defendants below (hereinafter “petitioners”) for allegedly causing or contributing to respondents’ addiction to controlled substances, where respondents admit to engaging in criminal conduct associated with their acquisition and abuse of the controlled substances. Petitioners maintain that, as a result of respondents’ admitted criminal conduct, their actions are barred entirely by the “wrongful conduct” rule and/or the doctrine of in pari delicto.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that any wrongdoing on the part of the respondents must be assessed under our long-standing precepts of comparative negligence and does not per se operate as a complete bar to their causes of action. Accordingly, we answer the first certified question in the affirmative and decline to answer the second certified question as it is mooted by the Court’s response to the first certified question.1

I. FACTS AND PROCEDURAL HISTORY

The twenty-nine individual respondents2 filed a total of eight separate civil actions in the Circuit Court of Mingo County, alleging that the petitioners and others negligently prescribed and dispensed controlled substances causing respondents to become addicted to and abuse the controlled substances. The suits were filed against several different combinations of the three petitioner pharmacies — Tug Valley Pharmacy, Strosnider Drug Store, and B & K Pharmacies — the Mountain Medical Center, and four physicians working at the Mountain Medical Center — Drs. Victorino Teleron, William Ryek[285]*285man, Katherine Hoover, .and petitioner Dr. Diane Shafer.3

Respondents were patients of the Mountain Medical Center and its physicians, most of them purportedly seeking treatment as the result of auto accidents or workplace injuries. In the course of their “treatment” at the Mountain Medical Center, respondents were' prescribed controlled substances, including Lortab, Oxyeontin and Xanax, which they filled at the petitioner pharmacies and to which they allege that they became addicted, allegedly resulting in their admitted criminal abuse of the prescriptions and criminal activity associated with obtaining the drugs, as more particularly described infra. Ultimately, the Mountain Medical Center and their physicians were the subjects of an FBI raid which revealed violations of federal and state law for improperly prescribing controlled substances.4 Certain of the physicians’ medical licenses were revoked and some pled guilty to and served time for the federal offenses. Of the petitioner pharmacies, only Strosnider and its pharmacist, James Wooley, were subject to disciplinary and/or criminal action. Neither B & K nor Tug Valley were subject to discipline.

Most, if not all, of the respondents admit that their abuse of controlled substances predated their “treatment” at Mountain Medical and even the existence, of some of the petitioner pharmacies. All of the respondents admitted to engaging in most, if not all, of the following illegal activities associated with the prescription and dispensation of controlled substances while being provided services by the petitioners: criminal possession of pain medications; criminal distribution, purchase, and receipt of pain medications (“off the street”); criminally acquiring and obtaining narcotics through misrepresentation, fraud, forgery, deception,' and subterfuge (not advising doctors of addiction or receipt of narcotics, from other doctors); criminally obtaining narcotics from multiple doctors concurrently (commonly known as “doctor shopping”); and abusing and/or misusing pain medication by ingesting greater amounts than prescribed and snorting or injecting the medications to enhance their effects. Notably, during depositions conducted in the underlying eases, virtually all of the respondents asserted their Fifth Amendment privilege against self-incrimination, refusing to answer questions about other sources from whom they obtained controlled substances who were not licensed physicians.

Respondents, however, maintain that the medical providers acted “in concert” with the petitioner pharmacies, which pharmacies were well aware of the so-called “pill mill” activities of the medical providers. Respondents contend that the petitioner pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled “synergistic” controlled substances which would provide an enhancing effect to the drugs. Moreover, respondents contend that the sheer volume of business derived from the “pill mill” facilities and physicians suggests an awareness of and joint endeavor in the improper activities of the medical providers.

On the basis of respondents’ admissions of them own criminal activity associated with the prescription and dispensation of controlled substances by petitioners, petitioners moved for summary judgment asserting that respondents’ claims were barred as a matter of iaw. In particular, respondents invoked the “wrongful conduct rule” as adopted in other jurisdictions, which stands for the proposition that a plaintiff may not recover when his or her unlawful conduct or immoral act caused or contributed to the injuries. See, e.g., Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). Alternatively, petitioners argued that the doctrine of “in pari delicto ” (“in equal fault”) bars recovery. The circuit court concluded that the actions [286]*286were not barred, but ordered that the following questions be certified to this Court pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code § 51-1A-3 (1996) (2008 Repl. Vol.):

' 1) May a person maintain an action if, in order to establish the cause of action, the person must rely, in whole or in ■ part, on an illegal or immoral act or transaction to which the person is a party?
2) May the doctrine. of in pari delicto be employed as a bar to tort claims under West Virginia law?

II. STANDARD OF REVIEW

It'is well-established that “[t]he appellate standard of review of questions of law answered and certified by a1 circuit court is de novo." Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). With this standard in mind; we proceed to the issues presented.

III. DISCUSSION

Simply put, these certified questions require the Court to determine whether it will adopt the “wrongful conduct rule”5 adopted or codified6 in . some jurisdictions. This Court has not, contrary to the, petitioners’ contention, implicitly endorsed the. wrongful conduct rule and has made only passing reference to the companion in pan delicto doctrine.7

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Bluebook (online)
773 S.E.2d 627, 235 W. Va. 283, 2015 W. Va. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tug-valley-pharmacy-llc-v-all-below-wva-2015.