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Tug Valley Pharmacy v. Plaintiffs Below

Tug Valley Pharmacy v. Plaintiffs Below

Case No. 
Type of Proceeding: 
Certified Question From the Circuit Court of Mingo County

May a plaintiff sue for damages where his claim is based, in whole, or in part, on illegal or immoral conduct?


This case arises out of allegations that certain physicians and pharmacies in Mingo County were running “pill mills.”

The defendant, Diane Shafer, is a Mingo County physician who lost her license and was convicted of offenses involving misuse of her DEA registration number.  The defendant, James Wooley, is a Mingo County pharmacist who was convicted of drug-related offenses.  The plaintiffs allege that these defendants, among others, caused them to abuse and become addicted to prescription narcotics through “pill mill” operations.  Specifically, the physicians failed to perform necessary examinations and improperly prescribed narcotics.  The pharmacies, in turn, filled these prescriptions, which were not written for legitimate medical purposes.

Each of the plaintiffs has admitted to illegally possessing, purchasing, and using narcotics.  The defendants moved for summary judgment, claiming that the plaintiffs’ claims were barred on two grounds:  (1) they were “rely[ing], in whole or in part, on an illegal or immoral act or transaction” to which they were parties, and (2) the doctrine of in pari delicto.  The trial court concluded that neither of these grounds was a bar to prosecution of the plaintiffs’ claims, but then certified the questions to the Supreme Court.

Positions of the Parties: 

Petitioners: (Defendants below):

 West Virginia law is sparse.  However, the defendants have cited a circuit court decision by Judge Rowe in Greenbrier County involving a similar claim brought against a drug manufacturer.  Judge Rowe concluded that, under West Virginia law, “a plaintiff cannot recover where his own unlawful or immoral act caused the injuries in question.”  The defendants also have cited cases from Michigan, Kentucky, Mississippi, Florida, Iowa, Montana and New York, holding that courts will not aid those who have engaged in illegal drug conduct where the claim itself is premised on that conduct.

Respondent: (Plaintiffs Below):

 The plaintiffs argue that, in West Virginia, the doctrine of in pari delicto only applies to breach-of-contract claims and not to tort claims.  Furthermore, the plaintiffs argue that any wrongful conduct of the plaintiffs should not operate as a bar to these claims.  Rather, the plaintiffs’ conduct should be weighed against the defendants’ conduct consistently with our system of comparative fault.  See, e.g., Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

Probable Impact: 

This is a Rule 20 case.  Therefore, it is likely the Supreme Court will write an opinion containing a new syllabus point addressing this legal issue.  This could prove to be an important case.  West Virginia has very little law dealing with the effect of illegal or immoral conduct on a plaintiff’s rights.  Furthermore, this case could have a potential impact on how comparative fault will be applied in the future.

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