HARRISBURG – In a ruling it admitted may seem “harsh," the Supreme Court of Pennsylvania decided that the father of a man who died from a fentanyl overdose cannot sue the pharmacy which provided him the drug, since the decedent committed a crime by possessing and using it.
The Court’s 5-2 majority ruling, issued on Dec. 22 and authored by state Supreme Court Justice David N. Wecht, cited the in pari delicto (translating to “in equal fault”) doctrine in its reasoning, which prevents plaintiffs from being able to collect damages when their injuries come from committing a crime.
21 year-old Cody Albert died in 2016, after consuming fentanyl he was given by a childhood friend, Zachary Ross. Both Cody Albert and Ross suffered the ills of substance abuse, with the Court’s ruling explaining the two often used opioids together, such as Oxycontin.
Meanwhile, Ross’s mother, April Kravchenko, was battling multiple myeloma, a form of blood cancer. The Court said Kravchenko was prescribed opiates to treat the pain associated with the condition, and would receive these prescriptions from Sheeley’s Pharmacy, in Scranton.
Fearing that Ross would try to pick up and illegally use her opioid medication while she was in the hospital, Kravchenko told Sheeley’s Pharmacy not to let her son pick up her prescriptions because he abused drugs.
But on March 16, 2016, Ross impersonated his mother on the phone and told the pharmacist to give him the fentanyl patch. Cody Albert drove Ross to the pharmacy, where Ross picked up the patch, before later using the drug himself and dying of a fatal overdose.
According to the Court, Ross later “pled guilty to involuntary manslaughter and multiple drug offenses in connection with Cody’s overdose.”
Seven months after his son’s overdose, Dale Albert sued Sheeley’s Pharmacy for negligence in the Lackawanna County Court of Common Pleas. However, that court granted summary judgment to the pharmacy under the in pari delicto doctrine, on the grounds that Cody Albert committed a crime by possessing the fentanyl in question.
On appeal, the Superior Court of Pennsylvania agreed, leading Albert to appeal to the state Supreme Court.
“While the result here may seem harsh, this lawsuit – where a plaintiff seeks recovery for injuries caused by his own criminal act – falls squarely within the in pari delicto doctrine. Albert’s portrayal of Cody as ‘a troubled youth’ who made “a fatal mistake’ may be entirely correct. And we certainly agree that ‘addiction is not a question of morality.’ But the purpose of the in pari delicto doctrine is not to punish Albert or reward Sheeley’s,” Wecht said in the majority ruling.
“The rule exists principally because holding otherwise would force courts to condone and perhaps even encourage criminal conduct, thus diminishing the public’s perception of the legal system. Litigants should be well aware that ‘the judiciary is not tolerant of fraud and illegality, and those who come before it seeking common-law redress relative to matters in which they bear sufficient culpability may suffer disadvantage as a consequence of their own wrongdoing.’ We affirm.”
State Supreme Court Justices Max Baer, Thomas G. Saylor, Debra Todd and Sallie Updyke Mundy joined Wecht in the majority ruling.
In a dissent, state Supreme Court Justice Kevin M. Dougherty said that the majority ruling represented a “drastic” expansion of the in pari delicto doctrine.
“The majority candidly acknowledges the ‘harsh’ consequence of its holding. For my part, though, I respectfully fail to understand what compels the majority to expand this common law rule so drastically and with such disregard for matters of public policy implicated by the opioid epidemic. Precedent surely doesn’t require it. This Court has never decisively explained how, if at all, the wrongful conduct rule applies in the modern-day negligence setting, let alone considered a factual scenario remotely like this one,” Dougherty said.
Justice Christine Donohue joined Dougherty in his dissent.
Supreme Court of Pennsylvania case 5 MAP 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com