A law that makes drug dealers liable for the injuries they cause does not apply to two pharmacies, a California appeals court has ruled, rejecting the case of a woman who got addicted to painkillers she acquired illegally from an employee of the pharmacies.

Melody Whittemore sought damages for her addiction under California's Drug Dealer Liability Act (DDLA), which provides that “A person who sold, administered, or furnished an illegal controlled substance” to a drug user is liable for “injury resulting from” the use of the drug. She bought pain pills from Stephen Correa, who had stolen them from two pharmacies where he worked.

In failing to report the missing pills to the Drug Enforcement Agency, Whittemore argued, the Owens Healthcare and Omnicare pharmacies “were instrumental in providing [her] with assorted pain medication” and acted in “reckless disregard for Plaintiff‟s welfare.”

That novel theory did not fly with the 3rd District Court of Appeal, in part because the DDLA only imposes liability on “A person who knowingly participates in the marketing of illegal controlled substances.”

“This would include Steven Correa, who sold the drugs to Melody without a prescription,” the court said in a first-of-its-kind June 22 decision. “It would not include the defendant pharmacies since they did not 'knowingly' participate in the marketing of the drugs to Melody.”

The ruling left some teeth in the DDLA, though, since it confirmed that a plaintiff's illegal conduct does not in and of itself bar a suit against a drug dealer under the doctrine of “unclean hands.”  “[T]he Act is inconsistent with the doctrine of unclean hands insofar as a case comes within its provisions,” Justice Coleman A. Blease wrote for the 3rd District.

California passed the DDLA in 1997 after a lobbying campaign by the late actor Carroll O'Connor, who had blamed a drug dealer for his son's death. At least 13 states now have such laws but they have rarely been used, in part because plaintiffs or their relatives have to admit to using drugs.

Whittemore admitted she bought various pain medications from Correa, including Norco, OxyContin and hydrocodone, between September 2005 and March 2007. She paid him more than $330,000 in cash for the pills, becoming physically and emotionally addicted to them.

Shasta County Superior Court Judge Bradley L. Boeckman dismissed Whittemore's lawsuit for failure to state a claim, finding the doctrine of “unclean hands” barred her from suing the pharmacies “[b]ased on plaintiff's own illegal conduct in buying and taking medications for which she had no prescription and which she was aware were stolen ...”

The 3rd District agreed with that finding and also rejected Whittemore's new argument that her case comes within the provisions of the DDLA because the law allows recovery of damages on grounds otherwise barred by the doctrine of unclean hands.

“We agree that the doctrine of unclean hands does not preclude recovery in circumstances covered by the Act because the very purpose of the Act is to permit recovery of damages in specified circumstances by the user and others damaged by the use of the drugs,” Blease said.

“However,” he continued, “the Act extends liability only to a person 'who knowingly participates in the marketing of illegal controlled substances within this state ...”

Earlier this year, a California jury ruled in a very unusual DDLA case that the ex-lover of a man did not injure his wife by providing him with crack cocaine during their two-year affair. Cynthia Siciliano alleged Jodie Graham-Potts was liable for the “willful, reckless, or negligent actions” of her husband related to his cocaine use.

Whittemore's case was more like Kaminer v. Eckerd Corp., 966 So.2d 452 (2007), in which a Florida appeals court said the family of a college freshman who died after ingesting OxyContin could not sue the pharmacy where the painkiller was stolen.

By Matthew Heller
6/23/10