Albert v. Sheeley’s Drug Store, Inc.
In Albert v. Sheeley’s Drug Store, Inc., No. 5 MAP 2021 (May 19, 2021), the Pennsylvania Supreme Court determined that claims brought against a pharmacy on behalf of a decedent who overdosed on illegally obtained prescription drugs are barred by the wrongful conduct rule, otherwise known as the doctrine of in pari delicto.
In late 2015, decedent Cody Albert (“Cody”) and his friend, Zachary Ross (“Zachary”) were struggling with substance abuse issues. Zachary’s mother, April (“Kravchenko”), was taking opiate pain medications to treat blood cancer, which she filled at Sheeley’s Drug Store (“Sheeley’s”). During Kravchenko’s hospitalization, her family instructed Sheeley’s not to release her medications to anyone but Kravchenko or her boyfriend.
In March 2016, Zachary called Sheeley’s pretending to be his mother and asked about refilling her OxyContin prescription. The pharmacist stated that the OxyContin prescription could not be filled yet, but that she had a prescription for fentanyl patches ready to be picked up. Zachary told the pharmacist that her son would be picking up the prescription. Cody drove Zachary to Sheeley’s, where Zachary successfully picked up his mother’s medication even though, according to Zachary, the pharmacy receipt explicitly stated, “[d]o not give to son.”
On the drive back to Zachary’s house, Zachary punctured one of the fentanyl patches with a knife and consumed some of the drug. After arriving at Zachary’s house, Cody at some point consumed fentanyl from one of the patches, smoked marijuana, and then fell asleep on the couch. Later that night, Zachary tried to wake Cody up, but he was unresponsive. Cody was later pronounced dead at a hospital. Zachary eventually pleaded guilty to involuntary manslaughter and multiple drug offenses in connection with Cody’s overdose.
In October 2016, Cody’s father, Dale Albert (“Albert”), filed suit alleging Sheeley’s negligently allowed Zachary to pick up his mother’s fentanyl prescription, which proximately caused Cody’s overdose and death. Sheeley’s sought dismissal of the case, arguing that Albert’s suit was barred by the in pari delicto doctrine. In pari delicto is an equitable doctrine that precludes plaintiffs from recovering damages if their cause of action is based, at least partially, on their own illegal conduct. Joyce v. Erie Ins. Exch., 74 A.3d 157, 164 (Pa. Super. 2013).
The trial court entered judgment for Sheeley’s, concluding that the in pari delicto doctrine bars recovery given that Cody’s death was caused, at least partially, by his own criminal conduct: possessing and consuming a controlled substance that was not prescribed to him. Albert appealed to the Superior Court, arguing the in pari delicto doctrine was inapplicable because Cody did not engage in illegal conduct. The Superior Court rejected Albert’s argument because Cody took part in Zachary’s scheme to obtain his mother’s fentanyl, and stood in pari delicto with Sheeley’s because he possessed a controlled substance in violation of a criminal statute, 35 P.S. § 780- 113(a)(16), which prohibits an individual from “knowingly or intentionally possessing a controlled or counterfeit substance . . . unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner.”
The Pennsylvania Supreme Court held that the in pari delicto doctrine precludes plaintiffs from recovering damages if their cause of action is based at least partially on their own illegal conduct. Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Rsch. Found. v. PriceWaterhouseCoopers, LLP, 989 A.2d 313, 329 (Pa. 2010). The theory underlying this rule is that allowing such suits to proceed to trial would: (1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal acts; and (3) lead the public to “view the legal system as a mockery of justice.” Orzel v. Scott Drug Co., 537 N.W.2d 208, 213 (Mich. 1995).
Here, it was undisputed that Cody committed a crime that directly caused his death when he possessed (and then ingested) a controlled substance that was not prescribed to him. See 35 P.S. § 780-113(a)(16) (prohibiting an individual from “knowingly or intentionally possessing a controlled or counterfeit substance . . . unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner”). Albert argued however that “this is not the type of mistake that in pari delicto was created to prevent. Albert also argued that the trial court’s decision conflicted with comparative negligence concepts in that the trial court should have allowed a jury to weigh Cody’s relative fault against that of Sheeley’s and then apportion any damages accordingly.
Under Pennsylvania’s formulation of in pari delicto, courts must consider: (1) the extent of the plaintiff’s wrongdoing vis-à-vis the defendant; and (2) the connection between the plaintiff’s wrongdoing and the claims asserted. Official Committee of Unsecured Creditors, 989 A.2d at 330 n.19. With regard to the former, the Supreme Court has said that the plaintiff must bear “substantially equal or greater responsibility” for the underlying harm as compared to the defendant. Id. at 329. And, as for the latter, the plaintiff’s cause of action must directly arise from or be “grounded upon” an illegal act. Joyce, 74 A.3d at 164.
The Court highlighted the fact that Cody’s criminal conduct directly resulted in his death, while Sheeley’s conduct was further removed in the chain of causation; therefore, the doctrine applied. With respect to Albert’s comparative negligence argument, the Court found Albert’s argument to be misplaced. Comparative negligence principles apply whenever a plaintiff is contributorily negligent, while in pari delicto applies whenever a plaintiff engages in criminal conduct that directly causes the harm for which he or she seeks redress. In pari delicto “retain[s] relevance” in “cases involving intentional wrongdoing on the part of a plaintiff” despite Pennsylvania’s comparative negligence and contribution statutes. Official Committee of Unsecured Creditors, 989 A.2d at 329 n.17.
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