WEST VIRGINIA RECORD

CHARLESTON – The executive director for a statewide legal reform group says a recent state Supreme Court opinion will encourage criminals to file lawsuits and make a “mockery” of the judicial system.

The president of a state group for trial lawyers, however, said critics are missing the point of the ruling that allowed 29 Mingo County plaintiffs who admitted to drug-related crimes could file lawsuits against pharmacies and physicians claiming they contributed to their addictions.

In a 3-2 ruling issued May 13, the court answered certified questions from a judge regarding cases filed in Mingo County. The court ruled that the plaintiffs 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, Justice Brent Benjamin, and Justice Robin Jean Davis ruled that the lawsuits can move forward, opening up the possibility of more lawsuits of this nature, according to Roman Stauffer, executive director of West Virginia Citizens Against Lawsuit Abuse.

“It’s unfortunate that a majority on the Supreme Court of Appeals decided to enable criminals and their attorneys to profit from illegal behavior,” Stauffer said. “We agree with Justices (Menis) Ketchum and (Allen) Loughry that the court should have adopted the wrongful conduct rule that would prevent these types of abusive lawsuits.”

In his dissent, Ketchum was blunt.

“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.”

Loughry wrote a separate dissent.

“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,” he wrote.

Stauffer said the ruling is a step in the wrong direction.

“We strongly applauded the actions that our Legislature took to minimalize abusive lawsuits earlier this year,” he said. “It appears the Supreme Court has just taken West Virginia a step backward.

“Next year, there will be a race for one seat on the Supreme Court of Appeals of West Virginia. West Virginians should take the time to learn about Court decisions like this one and decide if the judicial philosophy of those on the court reflects their own views.”

Anthony Majestro, president of the West Virginia Association for Justice, said the Supreme Court opinion isn’t one to reward drug users.

“That misrepresents what the court has done,” said Majestro, an attorney with Powell & Majestro in Charleston. “The decision is based on decades of existing comparative fault law which allows a plaintiff to bring a case even if he or she is partially at fault. A jury is allowed to hear the facts and assess what role, if any, the plaintiff’s own conduct contributed to the situation.

“The Mingo County case is subject to this existing law. While there may have been criminal misconduct on behalf of some of the plaintiffs, others were not responsible for their addictions.”

Majestro said the pharmacies and medical centers involved in this case were “pill mills” where physicians were violating standards of care and prescribing narcotic pain medicines to patients they did not treat.

“These doctors and local pharmacies were making substantial profits as the result of getting individuals addicted,” he said. “Two doctors went to jail, and a third left the country. Two surrendered their licenses and a third had her license revoked.

“Those people who were harmed have the right to hold these doctors, pharmacies and their insurers accountable in court.”

Majestro said the ruling won’t lead to lawsuits filed by drug addicts.

“Indeed, the West Virginia Legislature changed the state’s comparative fault law just this session,” he said. “House Bill 2002 prohibits recovery for plaintiffs if their actions result in a felony conviction or the jury determines that a deceased person would have been guilty of a felony.”