Case Bulletin – West Virginia Supreme Court of Appeals Holds that the Criminal Behavior of a Plaintiff is Not a Bar to Recovery But a Consideration for the Jury on Comparative Fault
In Tug Valley Pharmacy v. All Plaintiffs (May 13, 2015), Plaintiff-patients of the Mountain Medical Center, most of whom were being treated as a result of workplace injuries or auto accident injuries, were prescribed controlled substances by Mountain’s physicians and ultimately alleged that they became addicted, criminally abused their prescriptions, and engaged in criminal activity related to their prescriptions. Eight separate civil actions were filed by twenty-nine plaintiffs asserting claims of negligence for causing the addiction and results of the addiction seeking the recovery of various damages. The plaintiff-patients admitted to engaging in illegal activities such as criminal possession, distribution, purchase and receipt of “off the street” pain medications. Most of the patients did eventually admit that their substance abuse had pre-dated their treatment with Mountain.
Petitioners, the defendants physicians and pharmacies, filed a motion for summary judgment asserting that the patients’ claims were barred by the “wrongful conduct rule” (adopted in other jurisdictions), which provides 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). The circuit court found that the actions were not barred, but asked the Court to certify the whether a person may 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.
In response, the Court analyzed the case of Orzel and explained that the public policy which supports the wrongful conduct rule is the idea that courts should not assist a plaintiff who has founded his cause of action on his own illegal conduct. Barring such claims, as discussed in Orzel, are done in an effort to (1) not condone illegal activity, (2) prevent wrongdoers from profiting from their illegal conduct, (3) avoid damages the public’s perception of the legal system, and (4) preventing wrongdoers from shifting responsibility for their own illegal acts. While those arguments and reasons appear logical, this Court nonetheless reiterated and affirmed West Virginia principles of comparative fault, and the cases which have precluded a plaintiff from recovering where they substantially contribute to their own damages. See Bradley v. Appalachian Power Co., 163 W. Va. 332 (1979). West Virginia, following this line of reasoning, has adopted a modified comparative fault rule which bars recovery by a plaintiff where they have contributed fifty percent or more to their own injuries. The Court refused to adopt or transform their comparative fault rule into a “wrongful conduct” rule calling it a “judicial black hole.”
Therefore, to date, whether criminal in nature or not, the comparative fault or actions of a plaintiff which allegedly caused and/or contributed to their cause of action and their damages, is something for the jury to consider and apportion accordingly. Specifically, the Court found that “in cases where a plaintiff has engaged in allegedly immortal or criminal acts, the jury must consider the nature of those actions, the cause of those actions and the extent of which such acts contributed to their injuries” for the purposes of assessing comparative fault.
This case affirms the modified comparative fault rule of West Virginia. Regardless of the nature of the conduct engaged in by a plaintiff that may have caused or contributed to their damages, the conduct is only to be considered by a jury for purposes of determining the percentage of fault and whether that percentage is fifty percent or more – in that case only, unless faced with a tort exception such as last clear chance or sudden emergency, the plaintiff will be barred from recovery.