Tug Valley Pharmacy, LLC v. All Below

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2015 Term FILED

May 13, 2015

released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

No. 14-0144 OF WEST VIRGINIA

TUG VALLEY PHARMACY, LLC; B & K PHARMACIES, INC.

d/b/a FAMILY PHARMACY; STROSNIDER DRUG STORE, INC.

d/b/a SAV-RITE PHARMACY; and DR. DIANE SHAFER

Defendants Below, Petitioners

v.

ALL PLAINTIFFS BELOW IN MINGO COUNTY

CIVIL ACTION NOS. 10-C-251, 11-C-332, 12-C-38, 10-C-252, 10-C-319, 12-C-39,

12-C-35, and 11-C-370,

Plaintiffs Below, Respondents

Certified Question from the Circuit Court of Mingo County

The Honorable John Cummings, Judge

Case Nos. 10-C-251, 11-C-332, 12-C-38, 10-C-252, 10-C-319,

12-C-39, 12-C-35, and 11-C-370

CERTIFIED QUESTION ANSWERED

Submitted: March 4, 2015

Filed: May 13, 2014

Michael M. Fisher, Esq. James M. Cagle, Esq.

Elizabeth S. Cimino, Esq. Charleston, West Virginia

JACKSON KELLY PLLC Attorney for Respondents

Charleston, West Virginia

Attorneys for Tug Valley Pharmacy, LLC,

Samuel Randolph Ballengee, and

B & K Pharmacies, Inc., d/b/a Family

Pharmacy

David F. Nelson, Esq.

HENDRICKSON & LONG, PLLC

Charleston, West Virginia

Attorney for Strosnider Drug Store, Inc. d/b/a

Sav-Rite Pharmacy

Cecil C. Varney, Esq.

Williamson, West Virginia

Attorney for Diane Shafer, M. D.

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.

JUSTICES KETCHUM and LOUGHRY dissent and reserve the right to file dissenting

opinions.

SYLLABUS BY THE COURT

1. “The appellate standard of review of questions of law answered and

certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197

W.Va. 172, 475 S.E.2d 172 (1996).

2. “A party is not barred from recovering damages in a tort action so

long as his negligence or fault does not equal or exceed the combined negligence or fault

of the other parties involved in the accident.” Syl. Pt. 3, Bradley v. Appalachian Power

Co., 163 W.Va. 332, 341, 256 S.E.2d 879, 885 (1979).

3. “Questions of negligence, due care, proximate cause and concurrent

negligence present issues of fact for jury determination when the evidence pertaining to

such issues is conflicting or where the facts, even though undisputed, are such that

reasonable men may draw different conclusions from them.” Syl. Pt. 6, McAllister v.

Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).

4. Where a plaintiff has engaged in allegedly immoral or criminal acts,

the jury must consider the nature of those actions, the cause of those actions, and the

extent to which such acts contributed to their injuries, for purposes of assessment of

comparative fault.

i

5. A plaintiff’s immoral or wrongful conduct does not serve as a

common law bar to his or her recovery for injuries or damages incurred as a result of the

tortious conduct of another. Unless otherwise provided at law, a plaintiff’s conduct must

be assessed in accordance with our principles of comparative fault.

ii

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

1

“‘In a certified case, this Court will not consider certified questions not necessary

to a decision of the case.’ Syllabus Point 6, West Virginia Water Serv. Co. v.

(continued . . .)

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

Ryckman, 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, Oxycontin 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

Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957).” Syl. Pt. 7, Shell v. Metropolitan Life

Ins. Co., 181 W.Va. 16, 380 S.E.2d 183 (1989).

2

Thirty-three individuals initially filed suit; four apparently did not pursue their

claims. Twenty-six of the respondents appear to be individual drug users and/or their

representatives, while three appear to merely assert derivative claims.

3

Only the petitioner pharmacies and Dr. Diane Shafer are participants in the

proceedings before this Court.

2

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 pre-dated 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

4

Evidence adduced below indicates that the Mountain Medical Center saw

approximately 175 patients per day. Between the years of 2002 and 2010, Katherine

Hoover was the highest prescriber of controlled substances to the effect of 355,132

prescriptions for controlled substances in West Virginia alone. However, we note that

the appendix record on appeal is somewhat piecemeal and derived, in part, from

newspaper articles of varying degrees of readability.

3

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 cases, 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 their 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

4

as a matter of law. 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., 537 N.W.2d 208 (Mich. 1995). Alternatively,

petitioners argued that the doctrine of “in pari delicto” (“in equal fault”) bars recovery.

The circuit court concluded that the actions were 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 a 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.

5

III. DISCUSSION

Simply put, these certified questions require the Court to determine whether

it will adopt the “wrongful conduct rule” 5 adopted or codified 6 in some jurisdictions.

5

The rule is also occasionally referred to as the “unlawful acts doctrine” or

“serious misconduct doctrine.”

6

Many states have adopted statutory iterations of the rule including Alaska,

California, Florida, Louisiana, Ohio, Oregon, and Texas. See Alaska Stat. § 09.65.210

(1997) (“A person who suffers personal injury or death or the person’s personal

representative under AS 09.55.570 or 09.55.580 may not recover damages for the

personal injury or death if the injury or death occurred while the person was . . . engaged

in the commission of a felony, the person has been convicted of the felony, including

conviction based on a guilty plea or plea of nolo contendere, and the party defending

against the claim proves by clear and convincing evidence that the felony substantially

contributed to the personal injury or death[.]”; Cal. Civ. Code § 3333.3 (West 1997) (“In

any action for damages based on negligence, a person may not recover any damages if

the plaintiff’s injuries were in any way proximately caused by the plaintiff’s commission

of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of

that felony.”); Fla. Stat. § 776.085 (1996) (“It shall be a defense to any action for

damages for personal injury or wrongful death, or for injury to property, that such action

arose from injury sustained by a participant during the commission or attempted

commission of a forcible felony.”); La. Rev. Stat. Ann. § 9:2800.10 (1996) (“No person

shall be liable for damages for injury, death, or loss sustained by a perpetrator of a felony

offense during the commission of the offense or while fleeing the scene of the offense.”);

Ohio Rev. Code Ann. § 2307.60 (West 2008) (“Recovery on a claim for relief in a tort

action is barred to any person or the person’s legal representative if any of the following

apply: The person has been convicted of or has pleaded guilty to a felony, or to a

misdemeanor that is an offense of violence, arising out of criminal conduct that was a

proximate cause of the injury or loss for which relief is claimed in the tort action.”); Or.

Rev. Stat. § 31.180 (1997) (“Felonious conduct of plaintiff as complete defense in tort

actions”); Tex. Civ. Prac. & Rem. Code Ann. § 86.002(a) (West 1997) (“A claimant who

has been convicted of a felony or misdemeanor may not recover damages for an injury

sustained during the commission of the felony or misdemeanor if the injury would not

have been sustained but for the commission of the felony or misdemeanor.”).

We are cognizant of and expressly note that in its most recent session, our

Legislature enacted a similar statute which would bar recovery for a plaintiff whose

damages “arise out of the plaintiff’s commission, attempt to commit or fleeing from the

(continued . . .)

6

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 pari

delicto doctrine.7 Petitioners argue that this Court should adopt a wrongful conduct bar

which would bar entirely a claim where a plaintiff must rely on his or her illegal or

immoral act to establish the cause of action. Respondents counter that such a rule merely

rewards defendants’ own wrongful and tortious conduct and that a plaintiff’s conduct

must be assessed according to our comparative fault concepts. We will examine the

merits of each position in turn.

A. The Wrongful Conduct Rule

The modern statement of the wrongful conduct rule urged by petitioners is

contained in Orzel, as follows: “A person cannot maintain an action if, in order to

establish his cause of action, he must rely, in whole or in part, on an illegal or immoral

commission of a felony criminal act insofar as the plaintiff is convicted of the felony.”

H. B. 2002, 2015 Leg. 82nd Sess. (W. Va. 2015) (effective May 25, 2015). However, the

instant certified question, which asks this Court to adopt a common law version of the

wrongful conduct rule, is unaffected by this enactment which is not yet effective as of the

date this case was submitted to the Court or this opinion. Cf. Dugger v. Arredondo, 408

S.W.3d 825 (Tex. 2013) (analyzing potential availability of common law “unlawful acts

doctrine” irrespective of availability of statutory affirmative defense to similar effect).

The effect of this statute is simply not before the Court.

7

While of similar origins, the doctrine discussed under the rubric of “in pari

delicto” is typically reserved for contractual or transactional disputes, as opposed to tort

claims. In fact, that is the lone context in which this Court has spoken to the principle. In

Workman v. Lewis, 126 W. Va. 6, 28 S.E.2d 56 (1943), the Court briefly discussed in

pari delicto in addressing an allegedly fraudulent transaction regarding an indebtedness.

Beyond this scant discussion, this Court has not addressed the doctrine.

7

act or transaction to which he is a party.” 537 N.W.2d at 212 (citations omitted); see also

Greenwald v. Van Handel, 88 A.3d 467, 472 (Conn. 2014) (recognizing rule that a

plaintiff “cannot maintain a tort action for injuries that are sustained as the direct result of

his or her knowing and intentional participation in a criminal act.”). The rationale

typically argued in support of the rule is the “public policy that courts should not lend

their aid to a plaintiff who founded his cause of action on his own illegal conduct.”

Orzel, 537 N.W.2d at 213; see also Rimert v. Mortell, 680 N.E.2d 867, 874 (Ind. Ct. App.

1997) (wrongful conduct rule “embodies the principle that one who is responsible for the

commission of a criminal or wrongful act must exclusively bear his or her share of the

responsibility for the act, and may not evade that responsibility either through gaining

some profit for the act or shifting liability for the act to another”). There are four

commonly cited reasons for barring such claims: 1) to avoid “condon[ing] and

encourag[ing] illegal conduct”; 2) to prevent wrongdoers from profiting from their illegal

acts; 3) to avoid damage to the public’s perception of the legal system; and 4) preventing

wrongdoers from shifting responsibility for their illegal acts to other parties. Orzel, 537

N.W.2d at 213; see also Greenwald, 88 A.3d at 477 (“[A]id is denied despite the

defendant’s wrong . . . to maintain respect for law; in order to promote confidence in the

administration of justice; in order to preserve the judicial process from contamination.”).

Critics of the rule have deemed it “slippery and vexing,” and have focused

on the difficulty in formulating a comprehensive rule and its potential abuse or ad hoc

8

application.8 Moreover, courts dealing with this “controversial” rule have struggled to

cohesively define what qualifies as “serious” misconduct such as to bar relief. Dugger,

408 S.W.3d at 839 (Hecht, J., dissenting). One commentator has noted that since “moral

offensiveness is a patently subjective notion,” application of the rule requires the court to

“evaluate the plaintiff’s conduct through a moral prism trained on an ever changing social

landscape and climate[.]” King, supra note 8, at 1051, 1076. More importantly,

however, it has been observed that once a flaccid rule is articulated, the rule essentially

permits the court to substitute its judgment for that of the traditional fact-finder—the

jury—and therefore “may also invite judges to vent their moral sensibilities or react to

anticipated public indignation based on the moral flavor of the month.” Id. at 1072-73;

see also Dugger, 408 S.W.3d at 841 (Hecht, J., dissenting) (recognizing that “[o]ne

criticism of the unlawful acts doctrine, a criticism with substance, is that it does not have

sufficient limiting principles”).

Courts adopting the wrongful conduct rule have engaged in wide-ranging

attempts to curb potential abuse or misapplication of the rule by requiring a high degree

of causality between the wrongful conduct and the plaintiff’s injury. In Price v. Purdue

Pharma Co., 920 So.2d 479, 485 (Miss. 2006), the court attempted to articulate the

8

See Joseph H. King Jr., “Outlaws and Outlier Doctrines: The Serious

Misconduct Bar in Tort Law,” 43 Wm. & Mary L. Rev. 1011, 1076 (2002); see also

Robert A. Prentice, “Of Tort Reform and Millionaire Muggers: Should an Obscure

Equitable Doctrine be Revived to Dent the Litigation Crisis?” 32 San Diego L. Rev. 53

(1995).

9

required nexus by stating that “[w]here the violation of law is merely a condition and not

a contributing cause of the injury, a recovery may be permitted.” (quoting Meador v.

Hotel Grover, 9 So.2d 782, 786 (Miss. 1942) (emphasis added). The Price court echoed

the common, but hollow, sentiment that plaintiff’s claim is barred only if he “actually

requires essential aid from his own illegal act to establish a claim[.]” Id. The scope and

particulars of “essential aid” were not further enunciated.

Likewise grappling with a meaningful expression of the required degree of

causal connection between the wrongful conduct and the injuries, some courts have

broadly stated merely that such injuries must be a “direct result” of the wrongful conduct.

See Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 955 (Ala. 1993);

Barker v. Kallash, 468 N.E.2d 39, 41 (N. Y. Ct. App. 1984). Recognizing perhaps that

such a description does little to aid in application of the rule, the Orzel court attempted to

put a finer point on this vague incantation by stating that such claims are not barred

where the act is “merely incidentally or collaterally connected with the cause of action[.]”

537 N.W.2d at 215 (citations omitted). The Orzel court further offered the following

eloquent, yet unedifying, encapsulation: “The unlawful act must be at once the source of

both his criminal responsibility and his civil right.” Id. at 215 (quoting Manning v.

Bishop of Marquette, 76 N.W.2d 75, 78 (Mich. 1956)). These efforts to toss additional

verbiage at the rule to control its application have proven fairly unsatisfying. See King,

supra note 8, at 1050 (“The facile words of the courts are no less satisfactory despite their

confident, reassuring tone.”).

10

In addition to the difficulty in meaningfully articulating the degree of

causal connection required between the wrongful conduct and the injuries, the nature of

the “wrongful conduct” required to implicate the rule has also been variably

characterized. For example, the Oden court restricted its rule to bar actions for injuries

resulting from “the injured party’s knowing and intentional participation in a crime

involving moral turpitude.” 621 So.2d at 955 (emphasis added). In Barker, the court

held that “when the plaintiff has engaged in activities prohibited, as opposed to merely

regulated, by law, the courts will not entertain the suit[.]” 468 N.E.2d at 41 (emphasis

added). However, the Orzel court held that the conduct must be “prohibited or almost

entirely prohibited under a penal or criminal statute” as opposed to a “violation of a

safety statute, such as traffic and speed laws or requirements for a safe work place” since

such conduct does not “rise to the level of serious misconduct[.]” 537 N.W.2d at 214

(emphasis added).

Additionally, like most rules, the wrongful conduct rule is not immune to

categorical exceptions. Many courts have found the rule inapplicable where 1) there is

“inequality” between the parties such as where “plaintiff has acted ‘“under circumstances

of oppression, imposition, hardship, undue influence, or great inequality of condition or

age”’” or 2) there is a statutory basis for recovery. Orzel, 537 N.W.2d at 217-18

(citations omitted); see also Rimert, 680 N.E.2d at 874-75 (recognizing that “prohibition

against imposing liability for one’s own criminal acts to another through a civil action is

simply not justified when a plaintiff is not responsible for the act or acts in question.”);

11

O’Brien v. Bruscato, 715 S.E.2d 120 (Ga. 2011) (finding fact question of whether

plaintiff knowingly committed a wrongful act precluded application of wrongful conduct

rule); Lee v. Nationwide Mut. Ins. Co., 497 S.E.2d 328, 329 (Va. 1998) (holding wrongful

conduct defense “will be applied to bar recovery if the evidence shows that the plaintiff

freely and voluntarily consented to participation in the illegal act, without duress or

coercion”).

In addition to the criticisms that the rule lacks “lucid, predictable, or

workable standards,” the purported justifications for the rule identified at the outset have

also been deemed suspect. King, supra note 8, at 1017. First, the suggestion that the

absence of such a rule allows a plaintiff to “profit” from his wrongdoing is misguided; if

a plaintiff is injured as the result of someone’s negligence, merely obtaining

compensation for his loss does not constitute “profit.” Secondly, the idea that precluding

personal injury suits by those who engage in criminal conduct serves as a deterrent to

such conduct lacks credulity. If the criminal penalties for such activity are insufficient, it

is highly unlikely that such individuals will be deterred by the inability to bring a civil

suit in the event they are injured and are further unlikely to appreciate any risk to

themselves in participating in the criminal activity in the first instance.

Furthermore, the fear that the public will find recovery by those who

engage in criminal conduct “unseemly” is a dangerous premise for adoption of the

wrongful conduct rule. This notion is based upon the antiquated conceit that “[n]o

12

polluted hand shall touch the pure fountains of justice.” Collins v. Blantern, 2 Wils. 341,

350, 95 Eng. Rep. 847, 852 (K.B. 1765). However, as one commentator observed, “this

rationale ignores the countervailing contamination potential when the bar operates to

confer immunity on an equally bad tortfeasor.” King, supra note 8, at 1048; see also

Prentice, supra note 8, at 122 (“[T]he moral characteristics of the parties before a court

have little or no relevance to that court’s capacity to do justice or injustice.”). Our duty is

to the rule of law, not public opinion. The archaic notion that the judicial system is

unavailable to so-called “outlaws” has long-ago been supplanted by the concept of

comparative fault, which plainly permits those with “polluted hands” to access justice in

accord with the findings of the jury. The adoption of comparative fault further

undermines the final rationale that the wrongful conduct rule must be utilized to prohibit

the “shifting” of a wrongdoer’s responsibility—the allocation of relative fault prevents

inequitable “shifting” of personal responsibility.

The less-than-satisfying formulations of the rule and tenuous policy

rationales notwithstanding, the broad concept of the wrongful conduct rule is, admittedly,

superficially appealing. This Court is not so obtuse as to be unaware of the facially

offensive premise that admitted criminal drug abusers should abdicate responsibility for

their illegal conduct and make such conduct a source of income. Certainly this Court has,

for the last thirty-six years, staunchly agreed with and adhered to the notion that “where a

party substantially contributes to his own damages, he should not be permitted to recover

for any part of them.” Bradley v. Appalachian Power Co., 163 W.Va. 332, 341, 256

13

S.E.2d 879, 885 (1979). In fact, this concept is the basis of the Court’s adoption of the

modified comparative fault rule barring recovery for individuals who contribute fifty

percent or more to their own injuries, as discussed more fully infra.9

However, as illustrated above, an attempt to transmute this concept into a

per se “wrongful conduct” bar, subject to myriad considerations as to the type of conduct,

causality of such conduct, and wholesale exceptions to application of the rule, nearly

serves to obliterate the rule altogether: a sort of judicial “black hole” where the rule

essentially collapses on itself. At best, attempting to accommodate all factual scenarios

and policy concerns raised by the wrongful conduct rule make it virtually impossible to

comprehensively articulate and therefore highly unlikely to be judiciously applied. In

short, the wrongful conduct rule is “worse than an unruly horse; it is an imaginary one.”

Prentice, supra note 8, at 99. We will consider, then, the alternative.

B. The Role of Comparative Negligence

The countervailing view to adoption of the wrongful conduct rule, as

advocated by respondents, posits that a plaintiff’s wrongful conduct is simply a matter to

be evaluated by the jury under our system of comparative negligence. Respondents

contend that matters of relative wrongdoing among the parties have long been and

continue to be governed by West Virginia’s principles of comparative negligence as set

9

But see n.11, infra, regarding legislative modification to West Virginia’s

comparative fault scheme.

14

forth in Bradley and therefore must be apportioned by the jury rather than presenting a

complete bar to the claim. From a policy standpoint, respondents argue that applying the

wrongful conduct bar to their causes of action merely serves to reward and condone the

actions of petitioners, which respondents claim were equally abhorrent to public policy

and, in some instances, likewise criminal.10

As noted by one commentator, “[a]fter the adoption of comparative

negligence . . . a rule that bars the claim of the immoral plaintiff potentially conflicts with

the comparative negligence system of apportionment, which would only reduce

damages.” 1 Dan B. Dobbs, et al, The Law of Torts § 228, p. 816 (2011); see also King,

supra note 8, at 1022 (“[M]any jurisdictions adopting comparative fault have opted for a

modified version under which a plaintiff whose fault crosses a specified threshold is

completely barred, thus obviating the need to invoke an independent serious misconduct

bar to achieve a clean kill of the plaintiff’s claim.”). Regardless, however, courts which

have adopted the wrongful conduct rule have attempted to square the rule with their

respective formulations of comparative negligence by reasoning that public policy

prohibits the claim in the first instance, leaving no claim to which comparative fault may

be applied: “[R]ecovery is denied, not because the plaintiff contributed to his injury, but

10

In fact, it may reasonably be argued that wrongdoing by highly-trained, licensed

professionals, charged with the grave responsibility of the health and welfare of the

public, may actually be considered more abhorrent. As previously noted, although

petitioners make much of respondents’ criminal conduct, petitioner Dr. Diane Shafer and

pharmacist James Wooley were subjected to federal criminal charges, unlike most of the

respondents as based upon the appendix record presented.

15

because the public policy of this State generally denies judicial relief to those injured in

the course of committing a serious criminal act.” Barker, 468 N.E.2d at 41. The Barker

court further explained that “[t]he policy which applies to this case, has always existed

independently from the rule of contributory negligence and its successor, comparative

negligence” and that such a claim simply “[does] not demonstrate any cause of action

cognizable at law” to which comparative negligence would be applicable. Id. at 43-44.

In essence, these courts have concluded that “as a matter of law, the

plaintiff’s fault exceeded the defendant’s.” King, supra note 8, at 1055 (emphasis

added). However, as astutely noted, “[t]his kind of logic seems little more than a stealth

version of comparative fault, but with the court in control rather than the jury.” Id.

Rather than endorsing this surreptitious transfer of the fact-finding obligations, other

courts have reached the conclusion that plaintiff’s alleged wrongful conduct is a matter

best relegated to comparative fault standards. See Dugger, 408 S.W.3d at 830 (“Since

Texas’s shift to the proportionate responsibility scheme . . . most Texas courts have used

a plaintiff’s unlawful act to measure proportionate responsibility and reduce recovery,

rather than completely bar the plaintiff from recovering damages.”); Sonoran Desert

Investigations, Inc. v. Miller, 141 P.3d 754, 761 (Az. Ct. App. 2006) (finding that

“regardless of whether [plaintiff’s] antecedent conduct was criminal in nature and

whether it is characterized as contributory negligence or assumption of the risk” the claim

is not barred due to plaintiff’s criminal activity); see also Restatement (Second) of Torts

§ 889 (1979) (“One is not barred from recovery for an interference with his legally

16

protected interests merely because at the time of the interference he was committing a tort

or a crime[.]”).

As noted above, our rule of modified comparative negligence was first

established by this Court in Bradley. The Bradley Court abolished our strict contributory

negligence system wherein a plaintiff could not recover if he was even one percent at

fault, in favor of a modified comparative negligence scheme wherein a plaintiff may

recover unless his fault “equals or exceeds” the negligence of all other parties: “A party

is not barred from recovering damages in a tort action so long as his negligence or fault

does not equal or exceed the combined negligence or fault of the other parties involved in

the accident.” Syl. Pt. 3, id. In discussing the inequity of a strict contributory negligence

system which barred a slightly negligent plaintiff’s claim outright, the Court noted:

“[O]ur system of jurisprudence, while based on concepts of justice and fair play, contains

an anomaly in which the slightest negligence of a plaintiff precludes any recovery and

thereby excuses the defendant from the consequences of all of his negligence, however

great it may be.” Id. at 335, 256 S.E.2d at 882. Notably, the Court observed that a rule

“that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly

unfair, and in effect rewards the substantially negligent defendant by permitting him to

escape any responsibility for his negligence.” Id. at 341-42, 256 S.E.2d at 885 (emphasis

added).

17

Since that time, the comparative fault concept has remained unchanged in

West Virginia11 and has in fact subsumed a great number of doctrines which, like the

wrongful conduct rule, operated as a complete bar to plaintiff’s recovery. See Ratlief v.

Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981) (last clear chance); King v. Kayak Mfg.

Corp., 182 W.Va. 276, 387 S.E.2d 511 (1989) (assumption of risk); Moran v. Atha

Trucking, Inc., 208 W.Va. 379, 540 S.E.2d 903 (1997) (sudden emergency).12 As this

Court observed in Moran, “the adoption of the comparative negligence rule meant that

some well-settled tort doctrines developed in response to contributory negligence must

now be modified or fall by the wayside altogether.” 208 W. Va. at 385, 540 S.E.2d at

909; accord Dugger, 408 S.W.3d at 832 (“Proportionate responsibility abrogated former

common law doctrines that barred a plaintiff’s recovery because of the plaintiff’s

conduct—like assumption of the risk, imminent peril, and last clear chance—in favor of

submission of a question on proportionate responsibility.”).13

11

But see House Bill 2002, 2015 Leg. 82nd Sess. (W. Va. 2015) (effective May 25,

2015) (to be codified at West Virginia Code §§ 55-8-13a through 13d) (modifying West

Virginia’s comparative fault scheme to bar recovery only where plaintiff’s fault is greater

than the combined fault of all other persons responsible for the damages).

12

See also Hersh v. E-T Enterprises, Ltd. Partnership, 232 W.Va. 305, 752 S.E.2d

336 (2013), superseded by statute, Senate Bill 13, 2015 Leg. 82nd Sess. (W. Va. 2015) (to

be codified at West Virginia Code § 55-7-27) (open and obvious).

13

Even certain privileges, such as self-defense, which permit otherwise arguably

criminal conduct, are subject to a jury’s determination that such conduct was reasonable.

See Collins v. Bennett, 199 W.Va. 624, 628, 486 S.E.2d 793, 797 (1997) (“[A] person

who reasonably apprehends bodily harm by another is privileged under our law to

(continued . . .)

18

The doctrine most similar to the wrongful conduct rule urged by the

petitioners which ultimately gave way to a comparative fault analysis is assumption of

risk. In Syllabus Point 2 of King, the Court eliminated the “complete bar” effect of

assumption of risk, making it merely an aspect of comparative fault to be determined by

the jury: “A plaintiff is not barred from recovery by the doctrine of assumption of risk

unless his degree of fault arising therefrom equals or exceeds the combined fault or

negligence of the other parties to the accident.” 182 W. Va. 276, 387 S.E.2d 511.

Similar to the criminal conduct at issue herein, the Court noted that assumption of risk

was not mere carelessness, rather it was “venturousness”: “Knowledge and appreciation

of the danger are necessary elements of assumption of risk.” 182 W. Va. at 280-81, 387

S.E.2d at 515-16 (quoting Syl. Pt. 5, Spurlin v. Nardo, 145 W.Va. 408, 417, 114 S.E.2d

913, 919 (1960)) (emphasis added). Like conduct subject to attack under “assumption of

risk,” immoral or illegal conduct certainly has the same earmarks of knowledge,

willfulness, and appreciation of danger; the actor proceeds irrespective of the foolishness

or illegality, respectively, of his or her conduct. This Court has made plain that such

conduct does not bar the claim, but is to be considered by the jury and managed through

the apportionment of fault.

exercise reasonable force to repel the battery. The amount of force used in defense must

not be excessive and must be reasonable in relation to the perceived threat.”).

19

Accordingly, this Court finds that our system of comparative negligence

offers the most legally sound and well-reasoned approach to dealing with a plaintiff who

has engaged in immoral or illegal conduct. We find that in cases where a plaintiff has

engaged in allegedly immoral or criminal acts, the jury must consider the nature of those

actions, the cause of those actions, and the extent to which such acts contributed to their

injuries, for purposes of assessment of comparative fault. These are highly factual

inquiries, all of which require the jury’s venerable analysis and respected consideration.

In the instant case, there is an obvious threshold factual question which perfectly

illustrates the potential inequity in applying a wrongful conduct bar: did the respondents

suffer from pre-existing addiction and abuse of controlled substances which was merely

enabled and perpetuated by the petitioners’ alleged conduct or was their addiction to and

abuse of the controlled substances a result of the petitioners’ conduct? See Cowan

Brothers, L.L.C. v. American State Bank, 743 N.W.2d 411, 419 (S. D. 2007) (refusing to

bar claim where plaintiffs assert their “alleged illegal acts are a result of the tortious

conduct of [defendants]” (emphasis added)). These are complex factual issues that are

not resolved by simply placing a “bad actor” tag on each of the parties and washing the

courts’ hands of the matter.

More importantly, it seems plain to this Court that “a broad unlawful acts

doctrine could allow people who commit serious tortious conduct against others to have

civil immunity merely because the claimant was not in compliance with every law at the

time of the tortious conduct.” Dugger, 408 S.W.3d at 835-36. We find untenable the

20

complete vindication of such alleged tortious conduct simply because plaintiff’s conduct

may have in some, as-yet-undetermined degree, contributed to his or her injuries. In

advocating a wrongful conduct bar, this Court is set with the Hobson’s choice of which

conduct we greater prefer to deter—the immoral plaintiff or the tortious (perhaps

egregiously so) defendant: “[W]here the injury arises directly out of the criminal

wrongdoing, the key question is which approach will better deter criminal activity: (a)

barring plaintiff’s recovery, thereby encouraging plaintiff to obey the law, or (b)

permitting plaintiff’s recovery, thereby encouraging defendant to obey the law?”

Prentice, supra note 8, at 112 (emphasis added). Relegating such determinations to our

long-standing comparative fault system obviates the need for such a choice and leaves to

the jury, fully versed on the facts and inter-relationship between the wrongful actors, the

decision as to which conduct it, as a society, prefers to discourage.

Importantly, however, our rejection of the wrongful conduct rule in no way

undermines our long-held principle that a plaintiff who substantially contributes to his

own injuries cannot recover. Rather, our refusal to adopt the wrongful conduct rule

simply venerates the well-established principle that

“[q]uestions of negligence, due care, proximate cause and

concurrent negligence present issues of fact for jury

determination when the evidence pertaining to such issues is

conflicting or where the facts, even though undisputed, are

such that reasonable men may draw different conclusions

from them.”

21

Syl. Pt. 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983)

(citations omitted). Moreover, we agree that while “[f]acially deeming persons unworthy

may assuage the sensitivities of decision makers by masking the underlying societal

dynamic that engendered the conduct,” such a position undermines our tort system of

compensatory justice and brings us “no closer to solutions.” King, supra note 8, at 1053.

The wrongful conduct bar “allows selective resurrection of a contributory negligence

defense under the cloak of the serious misconduct bar” and “legitimizes an avenue for the

court to end-run the jury.” Id at 1066, 1067-68. This Court cannot countenance a rule

which “allows a defendant to profit from his own wrong in order to prevent plaintiff from

profiting from hers[.]” Prentice, supra note 8, at 92. Such a rule connotes a lack of faith

in our jury system and destabilizes our comparative fault construct which has faithfully

served our State well for the last thirty-six years. Without question, our citizenry is best

equipped to weigh and speak to our society’s tolerance for the panoply of wrongful

conduct presented herein on all sides.14

Accordingly, we hold that a plaintiff’s immoral or wrongful conduct does

not serve as a common law bar to his or her recovery for injuries or damages incurred as

a result of the tortious conduct of another. Unless otherwise provided at law, a plaintiff’s

14

We are not unmindful of petitioners’ concerns regarding respondents’ assertion

of their Fifth Amendment privilege against self-incrimination and problems of proof

occasioned thereby. However, we find that this is an issue to be managed in the trial

court’s discretion commensurate with this Court’s admonitions regarding the invocation

of Fifth Amendment privilege in the context of a civil matter. See State ex rel. Myers v.

Sanders, 206 W.Va. 544, 526 S.E.2d 320 (1999).

22

conduct must be assessed in accordance with our principles of comparative fault. We

therefore answer the first certified question in the affirmative.

IV. CONCLUSION

For the reasons set forth hereinabove, we answer the first certified question

in the affirmative.

Certified Question Answered.

23