For several years, Bexis has served as an Advisor to the American Law Institute’s (“ALI”) Third Restatement of Torts, Intentional Torts to Persons project. These things, by their nature, take a long time, but this particular project is drawing to a close. Unfortunately, however, the last part of the last section of the last draft – a “miscellaneous provision” – is highly objectionable to prescription medical product liability defendants, more frequently in drug cases, but also concerning medical devices. If not changed, this provision may require defendants and their counsel to seek revisions at the next ALI annual meeting in May, 2020.
The biggest problem is plaintiffs who essentially injure themselves by taking medications that were prescribed for other people, and then try to sue manufacturers or others in the supply chain on strict liability or negligence theories. As we’ve discussed before, our preferred defense to such cases is “in pari delicto” – the public policy rule that a tort plaintiff can’t recover if the plaintiff’s illegal activity was the reason the plaintiff got hurt in the first place.
However, we don’t win this every time. Indeed, in the case that prompted our original discussion, In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine Products Liability Litigation, 2009 WL 902351, at *3 (E.D. Pa. Apr. 2, 2009) (applying Missouri law), did not dismiss as a matter of law a plaintiff who knowingly took drugs prescribed for someone else. Instead that court held:
Missouri courts have weighed the relative culpability of the parties when applying its equitable counterpart, the doctrine of unclean hands. . . . [T]he Missouri court of appeals has specifically stated that the “doctrine of in pari delicto is the legal counterpart to the equitable doctrine of unclean hands” and, as noted above, the relative culpability of the parties is weighed when applying that doctrine. . . . Here, we cannot say that, as a matter of law, plaintiffs are barred from relief. This is a question for the jury to decide.
Id. at *3-4 (citations omitted). Thus the defendant’s fallback position, in cases where a plaintiff claims injury after intentionally (and illegally) taking non-prescribed drugs, is to appeal to the good sense of the jury and to have the jury “weigh the relative culpability of the parties.”
Now the ALI proposes to take this option away from defendants – and that’s why we’re ready to rumble. Specifically, the draft Intentional Torts restatement has proposed, as a matter of comparative fault, that:
the factfinder does not consider a plaintiff’s reckless or intentional conduct in assigning shares of responsibility for damages against a negligent, reckless, or intentional tortfeasor unless the plaintiff recklessly or intentionally encourages or provokes the defendant’s tortious conduct.
Counsel Draft No. 6, Restatement of the Law Third Torts: Intentional Torts to Persons §50(b) (ALI Sept. 20, 2019) (emphasis added).
The rest of section 50 is not as controversial. Most jurisdictions, rightly or wrongly, don’t compare a plaintiff’s contributory negligence against a defendant’s intentional conduct, as stated in draft §50(a). See Restatement (Second) of Torts §503(1) (1965); but see Uniform Comparative Fault Act 229 §1 comment, 12 U.L.A. 44 (1979) (generally, intentional torts not within Act; however, “a court determining that the general principle should apply at common law to a case before it of an intentional tort is not precluded from that holding by the Act”). The draft Restatement Third Reporters’ Notes do not include a Pennsylvania case, but the Commonwealth also follows that rule. E.g., Krivijanski v. Union Railroad Corp., 515 A.2d 933, 938 (Pa. Super. 1986).
Courts have given a variety of reasons for why a plaintiff’s negligence shouldn’t be compared to a defendant’s intentional conduct, but all of those reasons would counsel in favor, not against, holding an intentionally misbehaving plaintiff responsible for his/her intentional misconduct: (1) “an intentional tort is ordinarily a particularly serious wrong”; (2) it “would reduce the deterrent effect” of liability; and (3) negligent and intentional acts are different in kind, not merely in degree.” When the plaintiff is the intentional wrongdoer, all of these propositions counsel in favor of reduction – if not total elimination – of any award based on lesser (or at worst equal) misconduct by a defendant. Draft §50, comment c. If “intentional” conduct is “a particularly serious wrong,” that’s all the more reason – not less – for at minimum employing comparative fault when a plaintiff has acted deliberately.
We doesn’t believe that “ALI” should stand for “always liability increases,” so Bexis objected to Draft §50(b). Even the preliminary research in the draft’s Reporter’s Note (which includes the need to “[add more cites]”), id. at 138, line 25, indicates no majority exists for the remarkable proposition that a plaintiff’s intentional misconduct must be ignored in apportioning damages. Only three cases are cited, and two support allowing apportionment. Compare Hickey v. Zezulka, 487 N.W.2d 106, 123 (Mich. 1992) (“a majority of the Court has found error in the trial court’s failure to instruct on comparative fault” in jail suicide case), and Gottesman v. Graham Apartments, Inc., 2015 WL 1839746, at *28, 16 N.Y.S.3d 792 (N.Y. Civ. April 5, 2015) (“Actions to which the [comparative fault] statute applies . . . include[e] claims of plaintiffs who are themselves guilty of an intentional wrong”); with, Honegger v. Yoke’s Washington Foods, Inc., 921 P.2d 1080, 1082 (Wash. App. 1996) (no apportionment because “[i]ntentional torts are not included in the [statutory] definition”). However, Honegger involved intentional conduct on both sides (plaintiff’s theft vs. defendant’s battery), and in dictum the court stated that “[i]t would be appropriate, therefore, to instruct the jury to reduce the damages related to a negligence claim to the extent of such a plaintiff’s [intentional] contributory fault.” Id. (emphasis added). Thus, the current draft contains no support for the broad proposed black letter that would let intentionally wrongdoing plaintiffs avoid apportionment no matter what.
Before we look at more cases, we point out that, first, on the most basic level, Draft §50(b) would be contrary to another section of the Third Restatement that has already been approved by the ALI. In apportioning fault, “[p]laintiff’s negligence can include conduct that is reckless, grossly negligent, or intentional.” Restatement (Third) of Torts: Apportionment of Liability §3, comment a (2000). Second, it would also be a reversal of the ALI’s position in Restatement (Second) of Torts §502(3) (1965), under which “[a] plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm.” Third, we also observe that the two illustrations (draft comment d, nos. 3-4) supporting Draft §50(b)’s questionable proposition both involve suicide − peculiar situations where an increased risk of suicide was precisely the risk the plaintiff claimed the defendant had a duty to prevent. Thus Draft §50(d) seeks to extrapolate, from unusual suicide cases, a rule that would whitewash any and all possible forms of intentional plaintiff misconduct in any and all tort cases. That rule would let plaintiffs get away scot free with stealing pills, deliberately disobeying doctors’ orders (a frequent reason why implanted medical devices break), and intentionally taking excessive quantities of drugs.
We say no, and we can research.
As for more cases, let’s start with one cited in Gottesman. In Soto v. New York City Transit Authority, 846 N.E.2d 1211 (N.Y. 2006), the Court of Appeals held that a plaintiff’s reckless conduct could be apportioned against the defendant’s alleged negligence – as opposed to being barred altogether by the in pari delicto doctrine. See Restatement (Second) of Torts §889, comment b (1979):
Plaintiff’s conduct was undeniably reckless, but the jury appropriately considered plaintiff’s actions and determined that he bore a far greater share of the fault. This is in keeping with the doctrine of comparative negligence. Contrary to [defendant’s] argument and the dissent, plaintiff’s conduct, although a substantial factor in causing the accident, was not so egregious or unforeseeable that it must be deemed a superseding cause of the accident absolving defendant of liability.
Id. at 1214 (citation omitted). See Lomonte v. A & P Food Stores, 438 N.Y.S.2d 54, 56 (N.Y. Sup. 1981) (“a plaintiff guilty of an intentional wrong . . . may recover on the basis of the percentage of negligence which the jury ascribed to the defendant”).
In Lee v. Kiku Restaurant, 603 A.2d 503 (N.J. 1992), the court held that a plaintiff who deliberately drunk himself into a stupor could not avoid having his intentional conduct compared to the alleged negligence of the bar that kept serving him.
[I]n dram shop litigation a jury should apportion fault between the patron and the tavern based on the extent to which each party’s negligence contributed to the plaintiff’s injuries. Thus, in determining a patron’s fault, a jury may consider the extent to which the plaintiff’s injuries were caused by the patron’s conduct in drinking to the point of intoxication. Similarly, the jury will consider the extent to which the tavern’s actions in serving the patron after obvious intoxication contributed to the plaintiff’s injuries.
[A]n intoxicated patron may no longer avoid responsibility for injuries proximately caused by his or her voluntary decision to consume alcohol to the point of intoxication.
Id. at 509-10 (citations omitted). Accord Gray v. D & G, Inc., 938 N.E.2d 256, 261 & n.5 (Ind. App. 2010) (plaintiff’s intentional intoxication apportionable against server’s negligence in Dram Shop action).
In another New Jersey case, Del Tufo v. Township of Old Bridge, 650 A.2d 1044 (N.J. Super. App. Div. 1995), aff’d, 685 A.2d 1267 (N.J. 1996), the intentional conduct of the plaintiff’s decedent in swallowing a large quantity of drugs to avoid arrest was properly compared to the claimed negligence of defendant police in delaying medical attention. The court relied on an analogy to the Dram Shop scenario:
[Decedent’s] perilous physical health resulted from conduct which violated those social norms which are validated and enforced by our criminal laws. . . . [Defendant’s] fault should be viewed like . . . that of a driver who voluntarily drinks to intoxication. . . . Analogous considerations command even greater weight in the present case. [This case] must be remanded for a retrial at which the jury should be instructed to compare his culpability in ingesting a lethal dose of cocaine with the defendant’s negligent failure to summon medical assistance more promptly.
Id. at 1049 (quotation from Lee omitted).
In Mississippi Dep’t of Mental Health v. Hall, 936 So.2d 917 (Miss. 2006), the court approved the allocation of fault between the intentional acts of a mental patient attempting to escape with the negligence of the facility in failing to prevent the escape.
One of the reasons [plaintiff] was committed to [defendant] was her poor judgment. Her medical records show that she was highly impulsive and reckless. . . . The civil commitment order stated that [plaintiff] was a danger to herself and to others. . . . It was [defendant’s] duty to care and to provide a safe environment for a person who, because of her mental impairments, could not take very good care of herself.
Id. at 926. See Joseph v. State, 26 P.3d 459, 474-75 (Alaska 2001) (“the legislature has recognized that an actor’s intentional conduct does not preclude the actor from seeking an allocation of fault for injury allegedly caused by the negligence of another”).
Indeed, even in suicide cases, the Draft §50(b) has not restated the law accurately. The general rule in negligence has been that a plaintiff is precluded from obtaining damages for someone’s suicide, because “the act of suicide is considered a deliberate, intentional and intervening act.” McLaughlin v. Sullivan, 461 A.2d 123, 124 (N.H. 1983). There are lots of cases to this effect. Several are collected in Watters v. TSR, Inc., 904 F.2d 378, 383 (6th Cir. 1990) (applying Kentucky law), where the court held that the intentional act of suicide could not be blamed on the allegedly dark and violent nature of “Dungeons and Dragons.” Similarly, in Johnson v. Wal-Mart Stores, Inc., 588 F.3d 439 (7th Cir. 2009) (applying Illinois law), the court, in an negligent ammunition sale case, refused “to deviate from the traditional rule describing suicides as intervening acts that break the causal chain because of their presumptively unforeseeable nature.” Id. at 443-44.
Failing outright dismissal, comparative fault is regularly imposed in suicide cases. Most recently, in Wickersham v. Ford Motor Co., ___ S.E.2d ___, 2019 WL 3311057 (S.C. July 24, 2019), the court considered allegations that injuries suffered in an automobile accident were so excruciating that they drove the plaintiff’s decedent to suicide. It was appropriate to apply comparative fault to that situation:
When there is evidence in a crashworthiness case that the plaintiff’s own actions . . . caused his enhanced injuries, comparative principles must be employed to determine the defendant’s share of liability for the plaintiff’s enhanced injuries. . . . It is also a separate question from “fault,” and it is not necessarily a defense as we normally consider comparative negligence to be. Rather, it is a question of proximate cause. As would be true in any case, it is the plaintiff’s burden to prove the defendant proximately caused the damages he alleges.
Id. at *5.
In Hobart v. Shin, 705 N.E.2d 907 (Ill. 1998), the court refused to eliminate comparative fault where a patient had committed suicide with the pills the defendant physician had prescribed – thus reaching a holding contrary to would-be Illustration 3.
We are not prepared to hold . . . that this principle [comparative fault] is inapplicable to all patients who commit suicide while under treatment for suicidal tendencies. Rather, we believe the better-reasoned approach is as another court has written on this subject:
[T]he issue of contributory negligence of a mentally disturbed person is a question of fact; unless, of course, the evidence discloses that the person whose actions are being judged is completely devoid of reason. If he is so mentally ill that he is incapable of being contributorily negligent, he would be entitled to have the jury so instructed. . . . But only in those cases in which the evidence would admit to no other rational conclusion would plaintiff be entitled to have the issue determined as a matter of law.
De Martini v. Alexander Sanitarium, Inc., 13 Cal. Rptr. 564, 567 (Cal. App. 1961).
To rule otherwise would be to make the doctor the absolute insurer of any patient exhibiting suicidal tendencies. The consequence of such a ruling would be that no health care provider would want to risk the liability exposure in treating such a patient, and, thus, suicidal persons would be denied necessary treatment. Public policy cannot condone such a result.
705 N.E.2d at 911 (citation form modified).
Likewise, In Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104 (Iowa 2011), the court construed the state’s version of the Uniform Comparative Fault Act (“UFCA”) as permitting a plaintiff’s intentional suicide from being compared to the defendant’s alleged psychiatric malpractice. The court construed the UFCA in accordance with what it believed to be the majority rule:
Our conclusion that suicide may constitute negligence within the meaning of [the UCFA] is supported by the majority of jurisdictions holding that, notwithstanding the intentional nature of the act of suicide, the jury is permitted to compare the negligence of the noncustodial suicide victim with the fault of the defendant medical professional treating her. These jurisdictions compared the fault of the noncustodial suicidal patient regardless of whether the respective state law allows a comparative fault defense to intentional torts.
Id. at 115-16 (citations omitted). See Maunz v. Perales, 76 P.3d 1027, 1032 (Kan. 2003); Champagne v. United States, 513 N.W.2d 75, 79 (N.D. 1994); Birkner v. Salt Lake County, 771 P.2d 1053, 1060-61 (Utah 1989); Gardner v. Oregon Health Sciences University, ___ P.3d ___, 2019 WL 4316118, at *6-7 (Or. App. Sept. 11, 2019); Sheron v. Lutheran Medical Center, 18 P.3d 796, 801 (Colo. App. 2000); Brandvain v. Ridgeview Institute, Inc., 372 S.E.2d 265, 275 (Ga. App. 1988), aff’d mem., 382 S.E.2d 597 (Ga. 1989). Contra: White v. Lawrence, 975 S.W.2d 525, 531-32 (Tenn. 1998); Scheidt v. Denney, 644 So. 2d 813, 816 (La. App. 1994). Cf. Harvey v. Mid-Coast Hospital, 36 F.Supp.2d 32, 35 (D. Me. 1999) (comparative fault does not extend to plaintiff’s pre-treatment suicide attempt that created the need for defendant’s allegedly negligent medical treatment).
Mulhern also led us to Gregoire v. City of Oak Harbor, 244 P.3d 924 (Wash. 2010), in which five justices of the Court (out of nine) concluded in two opinions that intentional suicide was nonetheless properly compared to the defendant’s negligence in the jailer situation of Draft §50 Illustration 4. See Id. at 937 (2010) (Madsen, C.J., +2 concurring in part, dissenting in part) (“[A]bsent proof that the jail assumed [the decedent’s duty of self-care, the trial court on remand should be free to consider whether to instruct the jury on comparative fault”); id. at 938 n.17 (Alexander, J., +2 dissenting) (“agree[ing] with Chief Justice Madsen’s discussion of comparative negligence”). The remaining justices precluded submission of comparative fault defenses without regard to intentional torts. Id. at 931-32.
The custodial suicide cases appear to be badly split, precluding a definitive rule on either side. In favor of applying comparative fault are: Hofflander v. St. Catherine’s Hospital, Inc., 664 N.W.2d 545, 563 (Wis. 2003); Joseph, 26 P.3d at 474-75; Hickey, 487 N.W.2d at 123; Cowan v. Doering, 545 A.2d 159, 163 (N.J. 1988); City of Belen v. Harrell, 603 P.2d 711, 714 (N.M. 1979); Heflin v. Stewart County, 1995 WL 614201, at *8 (Tenn. App. Oct. 20, 1995); Molton v. City of Cleveland, 839 F.2d 240, 249 (6th Cir. 1988) (applying Ohio law); Rotzler v. United States, 2009 WL 10702040, at *4 (D. Mont. Aug. 21, 2009). Against applying comparative fault are: P.W. v. Children’s Hospital Colorado, 364 P.3d 891, 898 (Colo. 2016); Sauders v. County of Steuben, 693 N.E.2d 16, 20 (Ind. 1998); Tomfohr v. Mayo Foundation, 450 N.W.2d 121, 125 (Minn. 1990); Bramlette v. Charter-Medical-Columbia, 393 S.E.2d 914, 917 (S.C. 1990); McNamara v. Honeyman, 546 N.E.2d 139, 146-47 (Mass. 1989); Coleman v. City of Pagedale, 2008 WL 341720, at *1 (E.D. Mo. Feb. 5, 2008).
Finally, we see no “analogy,” “loose” or otherwise, to “rules precluding negligent health-care workers or rescuers from asserting comparative fault.” Reporters’ Notes to Draft §50, p. 138, lines 29-39. Cases where an accident victim subsequently suffers from alleged malpractice are not joint tortfeasor situations at all, but rather involve successive tortfeasors. They bear no resemblance to a plaintiff taking someone else’s medication, and then suing for medication-related injury.
What we’ve just discussed is the result of only a single day’s research. The draft Restatement’s reporters, however, are law professors who presumably can tap the research skills of numerous law students eager to work on a “prestige project” like an ALI restatement. We urge them to do so. What we’ve found leaves us confident that neither current precedent nor sound jurisprudence support abandonment of comparative fault in cases (such as addicts illegally obtaining prescription drugs) where the plaintiff caused his/her own injury through intentional misconduct.
If this proposal to add a general rule to the Third Restatement of Torts precluding defendants from comparing intentional plaintiff misconduct to alleged defense-side negligence is retained, we will be doing more research. Ultimately, the membership of the ALI votes on all Restatement proposals, and any member can offer amendments and argue them at the annual meeting. Bexis has done this before (successfully preventing the Principles of Aggregate Litigation from de facto endorsing medical monitoring as a cause of action), and is willing to do so again. If you’re a blog reader who belongs to the ALI, we could well be asking you to attend the next annual meeting to vote on such an amendment. If you’re an in-house blog reader who hires outside counsel, we could well be asking you to ask ALI members in your law firms likewise to attend. Be ready, because we will be.