A Florida appeals court has found that the “wrongful conduct” rule bars the family of a college freshman who died after ingesting Oxycontin from suing the pharmacy where the prescription painkiller was stolen.

Matthew Kaminer, 18, received his lethal dose of Oxycontin from his fraternity roommate at the University of Florida. A friend of the roommate worked at an Eckerd drugstore and had stolen 126 pills from his employer which had been bottled, but had yet to be picked up by a customer.

Kaminer's estate sued Eckerd for wrongful death, alleging the store failed to follow federal regulations or its own procedures for safeguarding controlled substances. The defense did not contest negligence, but invoked the common law rule that a party cannot maintain an action based on the party’s own illegal conduct.

“Florida follows this rule,” the 4th District Court of Appeal said in an opinion affirming summary dismissal of the case.

The court cited a Michigan Supreme Court precedent holding that a plaintiff who obtained amphetamines through the negligence of a pharmacy could not sue the pharmacy over injuries caused by taking the drug and two Florida decisions in cases involving police pursuits.

“Common sense and all rational notions of public policy dictate that a violator fleeing law enforcement who injures himself as a result of his own criminal misconduct should not be able to bring an action for negligence against the law enforcement officer trying to detain him, or against his employer,” the 5th District Court of Appeal said in Bryant v. Beary, 766 So.2d 1157 (2000).

In cases cited by the Kaminer family, Florida courts held owners of stolen cars liable for leaving their keys in the car when the thief injures a third party. But the 4th District said those cases “did not allow a wrongdoer to recover for injuring himself.”

By Matthew Heller
10/16/07