United States: New Mexico Wrongful Conduct Rule Shuts Down Opioid Case Against Pharmacist

New Mexico is called the Land of Enchantment, but when it comes to law it is the Land of You Can't Make this Up. You might think it weird that New Mexico's state constitution (Article VII, section 1) specifies that idiots aren't allowed to vote, but maybe it's the other 49 states that have it wrong. Then again, New Mexico did give us the McDonald's hot coffee case, which ranks right up there with poor Mrs. Palsgraf's conked noggin among significant injuries in the history of American tort law. If you don't remember the facts of Palsgraf v. Long Island R.R., please enjoy this Lego version. We've heard rumors (we haven't bothered to scour the New Mexico statutes) that New Mexico law frowns on letting ladies pump their own gas, and one can apparently get in trouble with the authorities there by dancing either around or under a sombrero. And let's not forget that tv-dom's number one lawyer is no longer Perry Mason, Ally McBeal, or any of the denizens of the McKenzie Brackman law firm in LA – no, it's Saul Goodman of Albuquerque. We first met Saul on Breaking Bad. Saul had his charms, but it is hard to imagine a sleazier lawyer. Now he is the protagonist (?) in one of the best current shows, Better Call Saul. If you haven't yet taken a look at the show, do yourself a favor and give it a try. The writing, the acting, the camera work — s'all good, man.

It's good to know that idiots can't vote in New Mexico. Can they bring lawsuits? Ponder that question. Don't ponder too long.

Today's lesson centers on the recent case of Inge v. McClelland, ___ F. Supp. 3d ___, 2017 WL 2829696, 2017 U.S. Dist. LEXIS 98386 (D.N.M. June 26, 2017). The plaintiffs alleged that the defendant pharmacy wrongly sold them opioids, and that the result was that the plaintiffs got addicted and suffered all the terrible sequelae of said addiction. The plaintiffs lost their jobs and lost custody of their children. The legal theories included federal RICO, various New Mexico common law torts, as well as violation of New Mexico's Unfair Practices Act. The factual assertions are rather arresting: the pharmacy dispensed thousands of opioid pills at potency levels given to end-stage cancer patients – which these plaintiffs most certainly and obviously were not.

Pretty strong case, right?

Oops, we left something out. You see, the plaintiffs had conspired with a nurse practitioner to write up fraudulent prescriptions. The plan was to find a pharmacist with flexible professional ethics or an exceedingly limited attention span. The plaintiffs would then procure the pills and split them with the nurse practitioner. It's not clear whether getting addicted and descending into a hellish fog was part of the plan, but that's what happened. Somehow the plaintiffs were able eventually to rouse themselves from their opioid torpor and file this lawsuit.

The defendant moved to dismiss the case because the claims were barred by the wrongful conduct rule and its corollary, the in pari delicto doctrine. Anytime we can hearken back to our high school Latin days, we will. In pari delicto is short for the phrase "in pari delicto melior est conditio possidentis," which means, roughly, "in equal fault, better is the condition of the possessor." Great Caesar's ghost, what does that mean? Well, all is made crystal clear in a post that Bexis wrote nearly ten years ago setting forth the in pari delicto rule and supplying a list of cases from several jurisdictions. (We wondered whether it was high time to update that list, but then Bexis told us that a reasonably current list of in pari delicto cases resides in his book. Tell your librarian to get that book!) The rule is based on a public policy to preclude anyone who injures him or herself in the course of criminal activity from recovering in tort for those injuries. Put another way, perhaps more appetizing for those of you who delight in legal jargon, criminal conduct is an intervening act that cuts off liability. In drug cases, that criminal activity usually involves plaintiffs who obtain prescription drugs under false pretenses. The drugs obtained are almost always some form of narcotics, as was so in the Inge case.

New Mexico law has a version of the wrongful conduct rule, and it operates as a complete bar to a plaintiff's case. Acquisition of narcotics through fraudulent prescriptions is a violation of both federal and state law. So is narcotics trafficking, which the plaintiffs admitted to when they said they were going to split the pills with the nurse practitioner. Most versions of the in pari delicto rule limit application to instances where the harm suffered is one that the violated criminal law was intended to avoid. In Inge, the alleged injury – addiction – was precisely the harm at which the criminal laws were aimed.

This case is a laydown, isn't it?

Yes, it is. But that's not to say that the plaintiffs in Inge offered no resistance. The plaintiffs argued that merely presenting false prescriptions was not, in itself, illegal. Even assuming there is any force to that argument, the plaintiffs admitted that the scheme was to share the drugs with the prescribing nurse practitioner. That is straight-up illegal. (We prosecuted drug cases long ago. We harbored no love for the crazy-long federal mandatory minimum sentences, but it was hard to shed a tear for the drug-dealers. We wouldn't have felt any sympathy for the Inge plaintiffs, and, based on the facts set forth in the court's opinion, we would not even have considered a plea agreement that did not lock in some jail time.) The Inge plaintiffs also argued that their conduct was less culpable than the defendant pharmacist, since nothing would have come to fruition without the defendant's alleged agreement to fill obviously bogus prescriptions. They also offered the inevitable argument that the defendant's misconduct, as a licensed pharmacist, was worse than the misconduct of [supply your own epithet for drug-abusers and/or drug-dealers]. The court did not buy these arguments. It is not as if the pharmacist forced the plaintiffs to concoct and follow through on this opioid abuse and distribution scheme. Moreover, however serious the pharmacist's alleged breach of professional ethics was, it did not make the plaintiffs' illegal conduct somehow legal.

Interestingly, the Inge plaintiffs also argued that, rather than operate as a full-blown bar to their action, the in pari delicto rule should come into play as an element of comparative fault that the jury could consider. In support of this argument, the plaintiffs cited a case from West Virginia, which allowed a case very like the Inge case to proceed. West Virginia, of course, has a significant opioid problem. See Talbot, "The Addicts Next Door," The New Yorker (June 5/12, 2017). You could quarrel with the West Virginia decision, and you could quarrel with the public policy view underlying such decision, but none of that mattered to the Inge court, because it wasn't the law of New Mexico.

As a final, and somewhat comical point, the court dismissed the unfair practices claim along with all the others, because whatever else you might say about the defendant pharmacist, he did not make any misleading, false, or deceptive statement in dispensing the pills to the plaintiffs. Nope, they got exactly what they asked for — and then they got into trouble. But what they didn't get was an opportunity to recover damages, including treble RICO damages, in a frivolous lawsuit.

Naturally, anytime you hear of a drug dealer case in New Mexico, you probably think of Breaking Bad. This time, it's more like Breaking Stupid.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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