CHARLESTON – One state Supreme Court justice stands behind his vote in a recent ruling allowing juries decide if residents who have broken the law to obtain and use prescription painkillers can sue physicians and pharmacies for their addictions.

Justice Brent Benjamin said the 3-2 ruling should be examined not on “gut emotions and the ‘badness’ of the parties,” but rather on the fact that the state Legislature and governor already have fully considered the wrongful conduct rule while the case was before the court.

“It’s that simple,” Benjamin wrote in his concurring opinion issued May 28. Otherwise, he said, “it would be this court which would be engaging in ‘wrongful conduct.’”

In the 3-2 ruling issued last month, the court answered certified questions from a judge regarding cases filed in Mingo County. The Supreme Court said the plaintiffs in the cases – who live in Mingo County or adjacent South Williamson, Ky. – had the right to sue the pharmacies and physicians in their cases for allegedly causing or contributing to their addictions to controlled substances even if they have admitted to criminal conduct in obtaining and abusing the drugs.

Chief Justice Margaret Workman wrote the majority opinion. Benjamin and Justice Robin Jean Davis sided with her. Justices Allen Loughry and Menis Ketchum dissented, and both filed separate opinions.

In eight separate lawsuits, 29 plaintiffs alleged that three pharmacies – Tug Valley Pharmacy, Strosnider Drug Store and B&K Pharmacies at Mountain Medical Center – as well four physicians at Mountain Medical Center – Victorino Teleron, William Ryckman, Katherine Hoover and Diane Shafer – caused them to become addicted to controlled substances such as Lortab, Oxycontin and Xanax after being given prescriptions for the drugs following auto accidents or workplace injuries.

They claimed their addictions resulted in criminal abuse of the drugs and criminal activity to obtain the drugs.

“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,” Workman wrote in the majority opinion, adding that the plaintiffs said the pharmacies and physicians worked in concert and were aware of the so-called “pill mill” activities.

“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,” Workman wrote. “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. …

“Relegating such determinations to our long-standing comparative fault system … 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. …

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

In his concurrence, Benjamin said “bad cases can make bad law.”

“This is a bad case,” he wrote. “According to the parties, the plaintiffs are bad people and the defendants are bad people. Plaintiffs say defendants are ‘pill mills.’ Indeed, many have been prosecuted. Defendants say plaintiffs are common addicts who want to avoid self-responsibility, who engage in illegal conduct, and who simply want defendants to fund their future illicit drug use.

“My dissenting colleagues argue that we, as judges, should lock the courthouse doors to plaintiffs such as these. I agree that the underlying issue is one of access to our courts. When may a citizen’s right to seek justice in our courts be barred and by whom? But my colleagues miss the determinative fact which decides this case: The Legislature and the Governor already fully considered the policy issues related to a wrongful conduct rule and enacted a wrongful conduct rule for West Virginia while this case was pending on our docket.”

Gov. Earl Ray Tomblin signed House Bill 2002 on March 5, the day after this case was argued before the court. It ensures that defendants in a trial who are ordered to pay damages will only have to pay their share of the fault.

“Our job is simple: though it may not be popular, judicial conservatism compels this court to give effect to the wisdom of the Legislature and the Governor, and answer in the affirmative,” Benjamin wrote. “In other words, we as referees should follow the rules, not make them up as we go.

“Allowing a plaintiff through the courthouse door, as we are compelled to do, does not mean the plaintiff can or will recovery anything.”

Benjamin says it would be tempting to legislate from the bench in a case such as this, but that could lead to procedural issues in future cases.

“One can easily understand the intuitive response simply to proclaim a pox on all of the parties’ houses in this case and lock the courthouse door,” Benjamin wrote. “Ultimately, this is a policy matter best left to the Legislature.”

In his previously issued dissent, Ketchum was blunt in his reasoning.

“I dissent because criminals should not be allowed to use our judicial system to profit from their criminal activity,” he wrote. “The majority’s ruling permitting criminal plaintiffs to maintain these civil lawsuits ignores common sense and will encourage other criminals to file similar lawsuits in an attempt to profit from their criminal behavior.

“I strongly disagree with this ruling and believe this court should adopt the wrongful conduct rule to prevent criminals from making a mockery of our judicial system by attempting to profit from their criminal activity.”

He notes that the supreme courts in Michigan and Connecticut – among others – recently have adopted such rules. He also chides the majority opinion for declining to adopt the rule in West Virginia “because it could be difficult for courts to apply.”

“The wrongful conduct rule is straightforward and requires a court to exercise its basic common sense when applying the following: a criminal plaintiff may not maintain a tort action based on injuries sustained as the direct result of his or her knowing, and intentional participation in, a criminal act,” Ketchum wrote. “Further … this court is perfectly capable of reviewing such scenarios and providing clarity on the rule’s application to a particular circumstance.”

Loughry calls the majority opinion “misguided.”

“The majority’s decision requires hard-working West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable – a drug addict or his dealer,” Loughry wrote in his previously issued dissent, noting some courts have applied the wrongful conduct rule to similar drug addiction cases.

“Simply put, the majority has taken a nonsensical and recreant approach to its consideration of the certified question presented by the circuit court,” he wrote. “The end result is the majority’s refusal to lend the force of the judiciary to the incontrovertible public policy that criminal wrongdoers should not waste the time of the judiciary or citizenry to profit from their crimes.

“Instead, the majority hides behind the construct of comparative negligence and pays lip service to the considerable wisdom of the jury and its ability to properly apportion fault in such matters. Ironically, this is the same jury that the majority deems incapable of understanding and properly applying the plainly articulated wrongful conduct rule.”

He says the majority ruling forces citizens do its “dirty work” without regard for the “egregious waste of judicial time and resources, loss of earnings occasioned by citizens’ jury duty.”

“While the majority purports to be impervious to ‘public opinion,’ the unavoidable outrage that will most assuredly follow its decision is well-deserved,” Loughry wrote. “In a state where drug abuse is so prevalent and where its devastating effects are routinely seen in cases brought before this court, it is simply unconscionable to me that the majority would permit admitted criminal drug abusers to manipulate our justice system to obtain monetary damages to further fund their abuse and addiction.”

The plaintiffs in the original Mingo County cases are:

Shaun Collins, Elizabeth Collins, Deborah Duncan, Willis Duncan, Paul Horn, Dewey Marcum, Misty Marcum, Steven Marcum, Polly Williams, George Ball, Kathy Ball, Bruce Blankenship, Teddy Blankenship, Ernest Meade, Mary Lou Meade, James Mullins, Joyce Mullins, Sharon Mullins, Vernon Mullins, Brenda Preece, Dennis Mitchell Smith, Charles Edward Speer and Lora Speer filed suit against Tug Valley Pharmacy, Mountain Medical Center LLC, Dr. Katherine Hoover, Dr. J. Victorino Teleron, Dr. William Ryckman and Dr. Diane E. Shafer.

Wilbert Hatcher filed suit against B&K Pharmacies Inc., doing business as Family Pharmacy, Mountain Medical, Hoover, Teleron and Ryckman.

Russell Ratliff, Bruce Blankenship, Teddy Blankenship, George Ball, Kathy Ball, Deborah Duncan, Willis Duncan, Horn, Marcella Justice, Dewey Marcum, Misty Marcum, Steven Marcum, Williams, Ernest Meade, Mary Lou Meade, Joey Porter, Preece, Lora Speers and Charles Edward Speers filed suit against Strosnider Drug Store Inc., doing business as Sav-Rite pharmacies.

Patricia Salmons, administratrix of the estate of Lynette Salmons Francis filed suit against Shafer, Tug Valley and Samuel R. Ballengee.

Sula Collins, Nickey Collins and others filed suit against Tug Valley Pharmacy, Mountain Medical, Hoover and Teleron.

Misty Marcum and Dewey Marcum filed suit against. B & K Pharmacies/Family Pharmacy, Mountain Medical, Hoover and Teleron.

Lisa L. Hensley filed suit against B & K Pharmacies/Family Pharmacy, Mountain Medical, Hoover and Teleron.

Court documents show that Tug Valley and B&K never were charged with crimes nor sanctioned. But documents show that Strosnider Drug Store in Kermit – a Wayne County town of about 400 residents – filled 7,200 prescriptions for controlled substances during a four-month period in 2008. Another Strosnider location in South Williamson, Ky., sold nearly 3.2 million doses of hydrocodone in 2006.

Wooley, who owned Sav-Rite, admitted to a conspiracy charge and was sentenced to six months in prison. Hoover didn’t face criminal charges, but she moved to the Bahamas and forfeited more than $88,000 seized from bank accounts. Shaffer admitted to negligently prescribing pain pills and was sentenced in federal court to six years in prison and a year on supervised release.

Ryckman, who spent six months in prison and a year on supervised release for conspiring to misuse his DEA registration number, and Teleron were dismissed as defendants.

Charleston attorney Jim Cagle represents the plaintiffs in the case. Michael M. Fisher and Elizabeth S. Cimino of Jackson Kelly represent Tug Valley Pharmacy, Samuel Randolph Ballangee and B&K Pharmacies dba Family Pharmacy. David F. Nelson of Hendrickson & Long represents Strosnider, and Cecil C. Varney represents Shafer.

West Virginia Supreme Court of Appeals case number 14-0144

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