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10 Wake Forest L. Rev. Online 107

James W. Sprague

I. Introduction

In the summer of 2002, a Union Pacific Railroad conductor, Arnulfo Flores, agreed to transport ten Mexican nationals across the Mexican-American border undetected.[1]  When the nationals arrived on the railroad’s property, Flores ushered them into a large metal railway car and sealed them inside.[2]  Flores planned to release the nationals on American soil after crossing the Sarita Border Patrol checkpoint.[3]  For reasons unknown, however, the car remained sealed after crossing the checkpoint until reaching its final destination in Denison, Iowa, four months later.[4]  Unsurprisingly, none of the nationals survived.[5]  The medical examiner determined that all ten nationals perished by a  combination of extreme overheating, lack of oxygen, and dehydration.[6]

Surviving family members brought suit against Flores and Union Pacific as well as other parties involved in the deaths of their loved ones.[7]  Because the nationals sought to enter America illegally in violation of the Bringing and Harboring Certain Aliens Act, an act that has since been ruled unconstitutional,[8] the plaintiffs could not sustain the suit.[9]  Although rarely seen in tort cases,[10] the court used the doctrine of in pari delicto to bar the plaintiffs from recovery despite Flores’ significant contribution to the Mexican nationals’ deaths.[11]

Robert McClelland was Johnny and Elizabeth Inge’s pharmacist.[12]  Either negligently or willfully, McClelland sold the Inges, both opioid addicts, thousands of powerful narcotics, far in excess of their prescriptions.[13]  Further, McClelland did this knowing, by his own admission, that “there was absolutely no medical necessity or benefit to prescribing these medications.”[14]  After suffering significant harm due to their opioid abuse, the Inges filed suit against McClelland and his pharmacy under the Racketeer Influenced and Corrupt Organizations Act,[15] alleging negligence, unfair practices, and breach of fiduciary duties.[16]  Again, despite McClelland causing, in part, the Inges’ harms, the court absolved him and his pharmacy from all liability through in pari delicto since the Inges possessed narcotics exceeding their prescription limits, which violated state law.[17]

Finally, Elizabeth Stopera, a single woman, worked as a secretary in the Ford Motor Company’s finance department.[18]  Stopera engaged in sexual liaisons with her married coworker Dominic DiMarco, a Ford executive.[19]  For about one year, Stopera and DiMarco met repeatedly at Stopera’s house to engage in sexual intercourse, and Stopera contracted human papilloma virus, manifesting as genital warts.[20]  DiMarco had known about his infection and his duty to inform sexual partners but nevertheless refused to inform Stopera.[21]

In her suit against DiMarco for fraudulent concealment and battery, the district court dismissed Stopera’s claims because her sexual relationship with DiMarco had been adulterous and, therefore, in violation of Michigan law.[22]  Stopera argued on appeal that the court should not bar her suit because the statute outlawing adultery was “never enforced [and] regularly ignored.”[23]  The Michigan Court of Appeals disagreed with Stopera’s argument, explaining that a law’s enforcement did not alter the legality of its proscribed conduct, noting that only the legislature’s repeal of the statute could affect such a change.[24]  Nevertheless, the court of appeals reversed the district court’s dismissal by using in pari delicto because DiMarco was “egregiously” more morally culpable than Stopera.[25]  Although Stopera succeeded in overcoming dismissal, there are nearly identical cases in which courts barred plaintiff recovery.[26]

In all three cases, the plaintiffs engaged in some degree of illegal or wrongful conduct.  And, because of this conduct and in pari delicto, two culpable defendants evaded liability despite factually and proximately causing the plaintiffs’ harms.  As for the defendant that did not per se evade liability,[27] the court made its decision on whether or not to bar the claim against him by subjectively weighing the moral culpability of the parties, Stopera and DiMarco.  Both of these approaches to apportioning liability are distinctly at odds with modern American tort law, which almost universally seeks to allocate damages between parties according to their relative fault,[28] not based on the legality of plaintiff conduct[29] or the relative moral culpability of the parties.[30]  In other words, the use of in pari delicto seems to selectively resurrect contributory negligence on the basis of moral standing, completely barring plaintiff recovery for harms caused by the defendant.[31]  This Article, then, will explore how in pari delicto operates in tort law and the many ways in which it defeats quintessential tort objectives.

Part II of this Article briefly examines the history of in pari delicto and similar defenses, exploring how this legal doctrine blended with equitable doctrines, taking on some of their characteristics, and how it migrated to tort law.  In addition, Part II will discuss the modern doctrine’s variant definitions in tort.  Part III will explore in pari delicto’s inconsistencies with tort precepts.  This part will explore, in particular, the doctrine’s endorsement for weighing parties’ moral characters, its proclivity for inconsistent and arbitrary results, and, most importantly, its incompatibility with comparative fault.  Part IV will recommend how courts should approach in pari delicto in tort cases moving forward.

To be clear, this Article only considers the use of in pari delicto and its variant definitions in the context of tort law and does not seek to critique their use in, say, antitrust or contracts, legal fields which have robust albeit slightly different approaches to in pari delicto.

II. In Pari Delicto’s Development in Tort Law

In pari delicto potior est conditio defendentis means “in a case of equal or mutual guilt . . . the position of the [defending] party . . . is the better one.” [32]  This doctrine developed at common law to preserve the decorum of the courts, ensuring that the law would not be a tool for enforcing illegal agreements.[33]  The quintessential illustration of in pari delicto involves a highwayman who sues his criminal partner for a withheld share of their ill-gotten gains.[34]  Rather than allow such an unsavory suit to sully the court, English common law developed in pari delicto as an affirmative defense, enabling defendants to escape liability when sued to enforce an illegal agreement.[35]  The rationale: “[C]ourts should not lend their good offices to mediating disputes among wrongdoers.”[36]  Thus, this earliest iteration of in pari delicto clearly required joint illegal enterprise between the plaintiff and defendant.[37]  Furthermore, a plaintiff could overcome in pari delicto by showing that the defendant was more morally culpable, which required courts to balance the parties’ relative guilt.[38]

In pari delicto developed to soften common law’s maxim ex turpi causa non oritur actio, “no action arises out of an immoral act.”[39]  Ex turpi causa completely barred all plaintiffs from relief if their cause of action arose from illegal or wrongful conduct.[40]  In pari delicto’s weighing of culpability, then, provided an exceptive mechanism that sounded in equity rather than law[41] despite (and contrary to common belief) its development as a legal doctrine.[42]

Although in pari delicto began largely in contracts, it migrated to other disciplines, including torts.[43]  While the timeline regarding this migration is unclear due to lacking scholarship, tort cases employing in pari delicto began surfacing with some degree of regularity in the first half of the twentieth century.[44]

While the definition of in pari delicto has remained relatively consistent in contract law,[45] its definitions and applications in tort are inconsistent and confused.[46]  Some jurisdictions treat in pari delicto as the traditional iteration of the rule, explained above, but a minority of jurisdictions employ in pari delicto as the wrongful conduct rule in tort cases.[47]  The wrongful conduct rule evolved from ex turpi causa, discussed above, and historically barred any plaintiff from recovery if the plaintiff was engaged in illegal conduct when suffering a tort.[48]  Recall the first case discussed in the Introduction, which involved the deaths of ten Mexican nationals.[49]  Under the traditional application of in pari delicto, the surviving family members might have been able to sustain their suits against Union Pacific since Flores’ conduct—resulting in the gruesome deaths of ten people—was arguably more morally culpable than the Mexican nationals’ attempts to illegally enter the country.  Texas, however, employs in pari delicto as the wrongful conduct rule.[50]  As such, the relative weight of the parties’ moral culpability did not allow an exception to the plaintiff’s recovery bar.

III.  In Pari Delicto Conflicts with Fundamental Tort Principles

Regardless of a jurisdiction’s definition for in pari delicto, the doctrine defeats a number of tort law’s fundamental principles.  First, most courts that use in pari delicto weigh the relative culpability or moral standing of the parties when determining the plaintiff’s ability to bring suit.[51]  Second, the vague tests for determining moral culpability, coupled with other aspects of court analysis, leave room for inconsistent and arbitrary results that might obscure the real reasons behind court decisions.  These tests also leave room for judicial bias to influence court decisions.  Third, court justifications for in pari delicto reveal a fundamental misunderstanding about compensation in tort law.  Fourth, in pari delicto is redundant because tort law already has robust doctrines addressing plaintiff misconduct.  Finally, in pari delicto is inconsistent with comparative fault and operates to selectively resurrect contributory negligence[52] in jurisdictions that have abandoned that doctrine.

A. Liability Apportionment in Tort Does Not Rest on the Morality of Party Conduct

In pari delicto can protect claims from dismissal under the wrongful conduct rule, but first requires courts to weigh each party’s moral standing and determine that the plaintiff was less morally culpable than the defendant.  This, however, is inconsistent with tort law, because “[t]he moral characteristics of the parties before a court have little or no relevance to that court’s capacity to do justice or injustice.”[53]  In addition, tort law does not usually “inquire into the moral fiber of the plaintiff.”[54]  Instead, tort law first concerns itself with the causal relationship between the parties’ actions and resulting harm when apportioning liability.[55]  Thus, when considering the wrongful conduct of a plaintiff, tort law asks whether or not a party’s conduct causally contributed to the plaintiff’s harm rather than whether the plaintiff’s conduct was morally suspect.  In this manner, tort seeks to approach the issue of liability by reference to an objective standard first: causation.[56]

In pari delicto, however, complicates matters as it often calls for weighing the moral culpability of the parties at the dismissal and summary judgment thresholds.[57]  Notably, this means the court itself determines whether the plaintiff’s illegal conduct bars his or her claim, long before the factfinder has such an opportunity.[58]  Because moral standing is difficult to objectively assess, courts struggle to explain their reasoning.[59] This failure violates additional tort precepts.

B. Courts Applying In Pari Delicto Determine Relative Moral Culpability Without Reference to Discernable Standards, Creating a Mire of Inconsistency and the Risk that Judicial Bias Will Affect Court Decisions

As a result of courts’ inability to delineate standards for weighing culpability, opinions regarding in pari delicto are a mire of inconsistency.  Consider the following case: In Orzel v. Scott Drug Co.,[60] Sylvia Orzel filed suit against a drug company on behalf of her husband, John Orzel, for negligently supplying him with Desoxyn, a trade name for the chemical methamphetamine (which was an obesity treatment at the time).[61]  While John Orzel originally followed the prescription instructions, he became addicted to Desoxyn around 1981.[62]  After becoming addicted, Orzel began to consume more and more pills each day.[63]  By June 1981, Orzel consumed eight pills a day, heard voices, experienced hallucinations, and suffered paranoid delusions.[64]  Eventually, Orzel could no longer work and experienced “amphetamine psychosis,” which rendered him legally insane.[65]

In his suit, Orzel argued that Scott Drug Co. breached common law and statutory duties by selling him excess Desoxyn without verifying his identity or allowing adequate intervals between prescription refills.[66]  Scott Drug Co. argued that Orzel’s Desoxyn consumption patterns and misrepresentations to health professionals, for the purposes of receiving Desoxyn prescriptions, violated the law.[67]  In this manner, Scott Drug Co. sought to bar Orzel’s claim at summary judgment.[68]  The trial court allowed Orzel’s suit to proceed and instructed the jury to apportion damages according to Michigan’s modified comparative fault framework.[69]  The jury determined that both parties, Orzel and Scott Drug Co., were 50 percent responsible for Orzel’s harm and, as such, reduced Orzel’s remedy by half, awarding him $1.8 million.[70]

However, at the close of trial, the district court granted Scott Drug Co.’s motion for judgment notwithstanding the verdict and barred the plaintiff’s recovery under the wrongful conduct rule.[71]  The court of appeals reversed in an unsigned opinion, and the Supreme Court of Michigan affirmed the trial court’s judgment notwithstanding the verdict by applying in pari delicto, completely barring Orzel from relief despite Scott Drug Co. causing his injuries.[72]  The court, after considering the causal relationship between Orzel’s illegal conduct and his harm,[73] weighed Orzel’s relative moral culpability when affirming the reversal:

In comparing John Orzel’s wrongful conduct with the defendant’s wrongful conduct, we conclude that the two wrongdoers are equally at fault. Both parties played pivotal roles in making the illegal acts possible, and we cannot say that one party is more guilty than the other.[74]

This passage constitutes the bulk of the court’s reasoning in weighing the parties’ relative culpability.  In addition, the above passage operates more like a conclusion rather than an analysis.  Given, however, that in pari delicto is untethered to any discernable standards, it is unsurprising that the court had to assert its conclusion regarding the parties’ moral standing without thorough discussion.  Allowing courts to assert conclusions without measurable standards, as here, creates the risk that judicial bias will influence court decision.

Such a risk of judicial bias is particularly apt in cases involving in pari delicto since the plaintiffs, by definition, have somehow engaged in wrongful conduct.  Thus, a court may rule against an unattractive or morally-repugnant litigant because of that unattractiveness.  While bias is usually thought to be a problem with juries,[75] its subtle effects arise in other contexts.[76]  As such, courts should prefer a clear, rule-based approach when allocating liability to the vague balancing test discussed above.

C. The Policy Rationales Supporting In Pari Delicto Reveal a Fundamental Misunderstanding About Compensation in Tort Law

The policy rationales courts embrace when justifying in pari delicto or the wrongful acts doctrine explain that such doctrines prevent wrongdoers from “profiting as a result of their illegal acts.”[77]  While this reasoning may be superficially persuasive, it implies that the plaintiffs in torts are “profiting.”  This language may make sense in contracting or antitrust cases, but it certainly betrays a misunderstanding about the tenets of tort laws.  As one commenter explains:

In tort cases . . . plaintiffs are not seeking profit, but compensation for losses they have suffered.  At most, they will be compensated for those losses and so, in theory, “break even.”  In practice, the costs of prosecuting these suits ensure that plaintiffs will not be fully compensated for their injuries, leaving even the successful plaintiff to shoulder some part of the loss.  Because plaintiffs cannot profit from their crimes if they are allowed to recover in tort, this justification for prohibiting recovery is inapplicable in tort cases.[78]

As such, even though plaintiffs may have engaged in illegal or wrongful conduct at the time of their injury, they make no “profit” by being compensated for a defendant’s negligence.

D. In Pari Delicto is Redundant Because Tort Law Already Has Robust Affirmative Defenses Based on Plaintiff Misconduct

In addition to the above critiques, in pari delicto’s use is superfluous.  Tort has always had robust affirmative defenses based on plaintiff misconduct: contributory negligence and, eventually, comparative fault.[79]  As such, there is little need for a doctrine intended to fill the plaintiff-misconduct gap, particularly if that doctrine does so in a manner inconsistent with comparative fault.  Courts should instead rely on reliable and objective causal tests like comparative fault when assessing the role of a plaintiff’s misconduct.[80]  If the plaintiff’s actions causally contributed to his or her harm, courts should allow the factfinder to apportion liability among the parties.  This approach best serves the twin aims of tort law, which seek to provide relief to those injured by the tortious conduct of another, and to discourage negligent, reckless, and otherwise tortious behavior.[81]

E. In Pari Delicto is Inconsistent with Comparative Fault, Which Apportions First on Principles of Causation Rather than on Subjective Standards Like Moral Culpability

Finally, in pari delicto is inconsistent with comparative fault.  At its essence, comparative fault seeks to grant relief first in accordance with parties’ relative responsibility in causing the injury.[82]  Note that the inquiry here is causal, not moral culpability.  Only if a plaintiff and defendant both causally contribute to the plaintiff’s harm, can the factfinder (typically the jury) apportion liability on standards other than causation.[83]  In this manner, courts in comparative fault jurisdictions can only bar a plaintiff’s recovery when the plaintiff caused greater than 50 percent of his or her harm in a modified comparative fault jurisdiction.[84]

Comparative fault and modified comparative fault stand in opposition to the all-or-nothing contributory negligence rule that once barred numerous plaintiffs from recovery.  However, because in pari delicto bars plaintiff recovery if the plaintiff fails a moral standing analysis, it enables the selective resurrection of this harsh all-or-nothing bar,[85] in clear violation of modern tort precepts.[86]  As a result, some otherwise deserving plaintiffs will bear the entire cost of an injury caused by defendants’ negligence.  Worse, as discussed supra, in pari delicto’s test provides no substantive guidance, which causes inconsistent and potentially biased application.

In discussing tort doctrines other than contributory negligence that bar plaintiff from bringing suit, one commenter wrote:

[T]he emergence of a . . . [tort] defense that is a total bar to recovery is out of step with the strongest trend in modern American tort law because it ignores fault on the part of the defendant and focuses wholly on the fault of the plaintiff . . . Courts should be reluctant to expansively create doctrines . . . which abrogate state comparative law schemes.[87]

Apportioning liability in accordance with each party’s causal contribution to the plaintiff’s injury complies with modern tort trends and aligns with elementary perceptions of fairness.[88]  Accordingly, the evolution of contributory negligence into comparative fault “ranks as the most important development of the field of tort law in the last hundred years.”[89]  Because in pari delicto defeats this important development in jurisdictions that have embraced it, courts need to adopt a new approach that is consistent with comparative fault and/or modified comparative fault directives.

IV. Comparative Fault’s Apportionment Mechanisms Correct In Pari Delicto’s Shortcomings

This Article’s proposed solution is not earthshattering.  Instead, it calls for courts to abolish the use of in pari delicto in tort cases and rely on comparative or modified comparative fault frameworks, reducing plaintiff remedies in accordance with his or her causal contribution to the harm—rather than barring plaintiff recovery after a subjective morality assessment.  Typically, however, comparative fault enabling statutes or judicial opinions adopting comparative fault provide little guidance for courts and juries in assessing a plaintiff’s causal contribution to the harm.[90]  For instance, Kentucky’s comparative fault statute, which mirrors many pure comparative fault enabling statutes,[91] provides simply that the factfinder shall assign each party a percentage of the total fault by “consider[ing] . . . the conduct of each party . . . and the extent of the causal relation.”[92]  While this statute outlines its overall approach in broad terms, it fails to explain the causal threshold necessary before the factfinder can begin assigning relative fault.  This section, then, will delineate that causal threshold.

A. Illegal Plaintiff Conduct Should be Apportioned by the Factfinder, First on the Basis of Causation and then on the Basis of Fault

While the causal relationship between conduct and harm is typically a matter of fact,[93] factfinders and courts still need clear guidelines to ensure that final decisions align with sound reasoning.  The proposal will rely on causal principles established by the Third Restatement of Torts.[94]

By way of review, for a defendant to be a legal cause of harm, the defendant’s conduct must be a factual cause of the harm, and the harm must be within the defendant’s scope of liability.[95]  In the typical tort case, factual cause is relatively easy to show[96] and merely asks the factfinder to imagine the same factual scenario without the defendant’s tortious conduct.  If the factfinder, in entertaining such a hypothetical, finds that the injury would not have occurred without the defendant’s conduct, the defendant is a factual cause of the harm.  Conversely, if the factfinder determines that the harm would have occurred without the defendant’s conduct, the defendant is not a factual cause of the harm.  As such, a defendant cannot be the cause of an injury that would have happened regardless of his or her actions.

The second element to establish causation in tort, scope of liability or proximate cause,[97] requires the defendant’s conduct to increase the risk that the type of injury suffered by the plaintiff would occur.[98]  Because this Article examines the relationship between a plaintiff’s conduct and his or her resulting harm, it is inappropriate to refer to this second causal requirement as being within the scope of liability, largely because plaintiff conduct does not open plaintiffs to liability but instead reduces their final remedy.  As such, this Article will refer to this requirement as being within the plaintiff’s “scope of responsibility.”

Combining these two causal elements, the causal relationship between a plaintiff’s wrongful conduct and his or her harm merely requires the same straightforward analysis except regarding the plaintiff’s conduct rather than the defendant’s.  Thus, the plaintiff’s wrongful acts, in order to have caused the plaintiff’s harm, must be a factual cause of the harm and within the plaintiff’s scope of responsibility.  If either of these requirements fail, there is no causal relationship, and the plaintiff’s misconduct did not cause the harm. In such circumstances, courts cannot bar the plaintiff’s suit, regardless of the plaintiff’s illegal conduct.  Furthermore, without a causal relation between the plaintiff’s illegal conduct and the harm, factfinders cannot reduce the plaintiff’s remedy under comparative fault.

On the other hand, if the plaintiff’s conduct satisfies both causal elements, then the plaintiff causally contributed to his or her injury.  At that point, since both parties are a cause of the harm, the factfinder must assign fault percentages to each party through apportionment mechanisms.[99]  Importantly, some states include moral culpability as a factor in apportionment mechanism, but this consideration is made by the factfinder after the case-determinative dismissal and summary judgment thresholds.[100]  In this important respect, the subsequent weighing of moral considerations by the factfinder would not per se bar recovery.  As an example, consider the facts of Zysk v. Zysk,[101] a case in which the plaintiff’s premarital intercourse resulted in her contracting a sexually transmitted disease (“STD”).[102]

On the facts of the case, there is no question that Zysk’s premarital sex was a factual cause of her injury.  Had Zysk not engaged in sexual intercourse with her soon-to-be-husband,[103] she would not have contracted his STD at the time of her injury.  In other words, Zysk contracted the STD because she engaged in premarital sex.  Regarding Zysk’s scope of responsibility, however, we must examine Zysk’s wrongful conduct and its risk relationship to her harm.  To be clear, the court denied Zysk recovery because her conduct was illegal.[104]  As such, the question becomes whether her illegal conduct, i.e., premarital sex, increased her risk for contracting the STD.  It did not.

The risk of contracting herpes from a sexual partner varies according the presence of sores on the carrier’s genitals and the use of protection.[105]  That risk, however, is completely unrelated to the marital status of the sexual partners.  Thus, had Zysk waited a few months until marriage, thereby rendering her sexual intercourse lawful, her risk of contracting her husband’s concealed STD would have been the same.  This is an obvious example of illegal plaintiff conduct that did not increase the risk of the plaintiff’s injury and was therefore outside of her scope of responsibility.  Because Zysk’s conduct was a factual cause of her harm but not within her scope of responsibility, Zysk’s illegal conduct did not cause her injury in accordance with tort precepts.  Thus, Zysk’s case against her husband should not be barred since her illegal conduct did not causally contribute to her harm.[106]  Similarly, Zysk’s recovery should be subject to no remedy reduction since she did not contribute to her injury.[107]

Applying this approach to Orzel v. Scott Drug Co., discussed above, Orzel’s illegal conduct, i.e., misrepresenting himself to medical professionals to obtain additional prescriptions for Desoxyn,[108] factually contributed to his harm, especially when such actions enabled him to consume nearly eight pills per day.  Had Orzel not engaged in such actions, he would not have developed many of his harms, including amphetamine psychosis.  Similarly, Orzel’s fraudulent acquiring of excess pills[109] increased his risk for developing those harms, particularly because he had become an addict and was prone to consuming numerous pills per day.  Thus, Orzel factually caused his harm, and his harm was within his scope or responsibility.  As a result, Orzel legally caused his harm.  So too, however, did Scott Drug Co., which negligently sold Orzel dangerous amounts of Desoxyn for “illegitimate purposes” in violation of statutory and common law duties.[110]

Under in pari delicto and the wrongful conduct rule, the Michigan Supreme court barred Orzel’s claim[111] despite Michigan’s adoption of modified comparative fault.[112]  Under the proposed approach, however, because both parties causally contributed to Orzel’s harm, Scott Drug Co. would not get a windfall for its negligent (or willful) conduct.  Instead, the factfinder would assign fault percentages to each party in tandem with their relative fault and reduce Orzel’s remedy accordingly.  Thus, this approach would not bar Orzel from recovering for harms caused by Scott Drug Co.  Interestingly, this is similar to the jury’s decision at trial before Scott Drug Co. moved for a judgment notwithstanding the verdict.[113]

This causal method for liability apportionment rectifies the problems implicated by in pari delicto in tort law.  Where in pari delicto calls for judges to weigh each parties’ subjective moral culpability at case-determinate thresholds, this approach examines the causal relationship between the parties’ conduct and the resulting harm, which does not require a subjective analysis.  Furthermore, this approach applies consistent, well-established causation principles to the facts of the case.  Adopting this approach, then, will not only shore up the inconsistent application of in pari delicto, but it will also reduce the risk of judicial bias unfairly influencing judgments against potentially unattractive plaintiffs.

Finally, this approach complies with, rather than subverts, the directives of comparative and modified comparative fault.  Thus, in pure comparative fault jurisdictions, courts will not bar plaintiffs from recovery due to their wrongful acts if the defendant’s tortious conduct caused the plaintiffs harm.[114]  In modified comparative fault jurisdictions, courts will not bar plaintiffs from recovery if they’re share of the fault—as determined by the factfinder—is equal to or less than 50 percent.[115]  Recently, courts have employed the wrongful conduct rule, discussed supra, to bar opioid addicts from suing pharmaceutical companies that negligently or willfully enabled/caused their addiction.[116]  This approach, rather than barring the claims, would discount plaintiff recovery in accordance with their fault, allowing those predatorial companies to be held accountable for their harmful business practices.

B. The Shortcomings of Using Comparative Fault Mechanisms for Illegal Plaintiff Conduct

Although the suggested approach corrects many of the problems implicated in in pari delicto and its variants, it does have shortcomings.  As noted above, some courts employ in pari delicto to eliminate cases before trial based on the plaintiff’s misconduct.[117]  Because the proposed approach, however, requires juries to apportion liability in those cases where both the plaintiff and defendant have caused the plaintiff’s harm, it calls for more cases going to trial.  While the proposed approach may slightly hurt courts’ dockets, it will better apportion liability among those that caused a plaintiff’s harm rather than placing the entire cost of the injury on the plaintiff.

V. Conclusion

In pari delicto has provided numerous windfalls to defendants that tortiously caused harm to plaintiffs.  While these cases constitute a relatively small subset of all tort claims each year, court reliance on in pari delicto defeats some of tort law’s most celebrated principles.  Moreover, various plaintiffs who have been seriously harmed by the tortious conduct of another go without remedy.

This Article started with a tragic case that denied relief to the surviving family members of ten Mexican nationals notwithstanding the defendants’ tortious role in those nationals’ deaths.[118]  Rather than barring recovery under in pari delicto in such cases, courts should use well-reasoned comparative fault principles, allowing the factfinder to adjust recovery first on the basis of causation and then on the basis of fault.  In this manner, tortfeasors such as Arnulfo Flores and Union Pacific Railroad will not escape liability simply because their victims were engaged in wrongful conduct.

Tort reform replaced contributory negligence with comparative fault because courts and commenters agreed that contributory negligence’s per se recovery bar was not fair.[119]  That sense of unfairness stemmed from the following notion: when multiple parties unreasonably act to cause the plaintiff’s harm, the costs of that harm should not be allocated to only one party; rather, the costs should be apportioned between them.  Employing in pari delicto to bar plaintiff recovery based on moral unattractiveness mirrors the unfairness that necessitated replacing contributory negligence with comparative fault.  Therefore, it is time in pari delicto shared the same fate.


      [1].   Esparza Rico v. Flores, 405 F. Supp. 2d 746, 751 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007) (reversing the district court’s finding that there was improper joinder of two defendants).

      [2].   Id.

      [3].   Id.

      [4].   Id.

      [5].   Id.

      [6].   Id. at 751–52.

      [7].   Id. at 752.

      [8].   8 U.S.C. § 1324.  The Ninth Circuit ruled this act unconstitutional in United States v. Sineneng-Smith, 910 F.3d 461, 485 (9th Cir. 2018), rev’d, 140 S. Ct. 1575 (2019).

      [9].   Esparza Rico, 405 F. Supp. 2d at 764–68.

     [10].   Brian A. Blum & Amy C. Bushaw, Contracts: Cases, Discussion, and Problems 519, 522 (4th ed. 2017) (identifying in pari delicto as a defense in contracts).

     [11].   Espraza Rico, 405 F. Supp. 2d at 764–68.

     [12].   Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018).

     [13].   Id.

     [14].   Id.

     [15].   Id.

     [16].   Id.

     [17].   Id. at 638–39; see also N.M. Stat. Ann. § 30-31-23 (prohibiting possession of a controlled substance).

     [18].   Stopera v. DiMarco, 554 N.W.2d 379, 380 (1996).

     [19].   Id.

     [20].   Id.

     [21].   Id.

     [22].   Id.; see Mich. Comp. Laws § 750.30.

     [23].   Stopera, 554 N.W.2d at 381.

     [24].   Id.

     [25].   See id. at 381, 382 n.5.

     [26].   E.g., Zysk v. Zysk, 404 S.E.2d 721, 722 (Va. 1990).

     [27].   Note here that the Michigan Court of Appeals only reversed the trial court’s dismissal of Stopera’s claim.  Stopera, 554 N.W.2d at 382.  Whether DiMarco ultimately evaded liability is unknown.

     [28].   Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. a (Am. L. Inst. 2000) (“No party should be liable for harm it did not cause, and an injury caused by two or more persons should be apportioned according to their respective shares of comparative responsibility.”).

     [29].   Restatement (Second) of Torts § 918 cmt. a (Am. L. Inst. 1979) (“One is not barred from recovery for an interference with his legally protected interests merely because at the time of the interference he was committing a tort or a crime.”).

     [30].   Joseph H. King, Jr., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 Wm. & Mary L. Rev. 1011, 1018 (2002) (explaining that tort law does not “inquire into the moral fiber of the plaintiff”).

     [31].   See Ardinger v. Hummell, 982 P.2d 727, 736 (Alaska 1999) (“[I]n those cases in which recovery is barred on public policy grounds, the result mirrors the outcome of the abandoned contributory negligence rule.”).

     [32].   Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 (1985) (quoting In pari delicto potior est conditio possidentis [defendentis], Black’s Law Dictionary (5th ed. 1979)).

     [33].   Matthew D. Menghini, Note, The Availability of the In Pari Delicto Defense in Tippee-Tipper Rule 10b-5 Actions After Dirks v. SEC, 62 Wash. Univ. L. Rev. Q. 519, 519 (1984).

     [34].   Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 574 (7th Cir. 2004).  Another example: if Annette hires Jean to set fire to her house and Jean fails to perform, the doctrine of in pari delicto would constitute a defense to Annette’s breach of contract claim.

     [35].   Id.

     [36].   See Bateman Eichler, Hill Richards, Inc., 472 U.S. at 306 (“[D]enying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.”).

     [37].   Id. While courts in the late eighteenth century appreciated the need to prevent themselves from becoming arenas for disputing illegal enterprise, one commenter, Lord Mansfield, vehemently expressed his disdain for those who would invoke the doctrine:

The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant.  It is not for his sake, however, that the objection is ever allowed; but is founded in general principles of policy, which the defendant has the advantage of, contrary to real justice, as between him and the plaintiff, by accident, if I may so say.

Holman v. Johnson [1775] 98 Eng. Rep. 1120, 1121.

     [38].   Blum & Bushaw, supra note 10, at 522.

     [39].   Id.

     [40].   Id.

     [41].   Id.

     [42].   T. Leigh Anenson, Treating Equity Like Law: A Post-Merger Justification of Unclean Hands, 45 Am. Bus. L.J. 455, 482 (2008).  It is important to note that, prior to the eleventh and twelfth century, equity and law operated together.  George Burton Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91 (1916).  Their eventual separation, which would persist for centuries, resulted from power struggles between English barons and the king.  Roger L. Severns, Nineteenth Century Equity: A Study in Law Reform- Part I, 12 Chi.-Kent L. Rev. 81, 91 (1934); William F. Walsh, Equity Prior to the Chancellor’s Court, 17 Geo. L.J. 97, 100–06 (1929).

     [43].   See, e.g., Esparza Rico v. Flores, 405 F. Supp. 2d 746, 767­–68 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007).

     [44].   See, e.g., Manning v. Noa, 76 N.W.2d 75, 78 (Mich. 1956); Pinter v. James Barker, Inc., 116 A. 498, 498 (Pa. 1922).

     [45].   Blum & Bushaw, supra note 10, at 522.

     [46].   Compare Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018) (conflating in pari delicto with tort’s “wrongful conduct rule”), and Espraza Rico, 405 F. Supp. 2d at 760 (arguing that in pari delicto is the same tort doctrine as “unlawful acts”), with Smith v. Long, 281 A.D.2d 897, 898 (N.Y. App. Div. 2001) (conflating in pari delicto with unclean hands), and Tex. Cap. Bank, N.A. v. First Am. Title Ins. Co., No. 3:09CV-661-H, 2012 WL 443460, at *2 (W.D. Ky. Feb. 10, 2012) (defining two negligent tortfeasors that serendipitously cause the plaintiff’s harm as in pari delicto).

     [47].   See, e.g., Inge, 725 F. App’x at 636 (conflating in pari delicto with tort’s “wrongful conduct rule”).

     [48].   The unlawful acts doctrine is also called the “outlaw doctrine,” the “ex turpi rule,” the “wrongful-conduct rule,” and the “serious misconduct doctrine.”  King, supra note 30, at 1020, 1020 n.35.

     [49].   Rico v. Flores, 481 F.3d 234, 237 (5th Cir. 2007).

     [50].   Esparza Rico, 405 F. Supp. 2d at 764–67, 770–71 (explaining that “[r]esolution of this matter hinges upon determining the applicability of the in pari delicto or unlawful acts rules in wrongful death actions”), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007).

     [51].   See, e.g., Inge, 725 F. App’x at 636; Stopera v. DiMarco, 554 N.W.2d 379, 381 (Mich. Ct. App. 1996).

     [52].   As a reminder, contributory negligence is a tort doctrine that prevents a plaintiff from recovering in tort if he or she is even 1 percent at fault for causing the injury.  The states still employing contributory negligence are Alabama, the District of Columbia, Maryland, North Carolina, and Virginia.  Matthiesen, Wickert & Lehrer, S.C., Contributory Negligence/Comparative Fault in All 50 States 2 (2019),

     [53].   Robert A. Prentice, Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine be Revived to Dent the Litigation Crisis?, 32 San Diego L. Rev. 53, 122 (1995).

     [54].   King, supra note 30, at 1018.

     [55].   See Restatement (Third) of Torts: Apportionment of Liab. § 7 (Am. L. Inst. 2000).

     [56].   Id.

     [57].   See, e.g., Cork v. St. Charles County, 10 S.W.3d 608, 609 (Mo. Ct. App. 2000).

     [58].   Id.

     [59].   See, e.g., Ardinger v. Hummell, 982 P.2d 727, 736 (Alaska 1999) (weighing whether the plaintiff’s illegal conduct should bar his suit by considering the policy implications); Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 208, 217 (Mich. 1995) (providing a conclusion about the relative moral culpability between the parties without substantive discussion).

     [60].   537 N.W.2d 208 (Mich. 1995).

     [61].   Id. at 210.  At the time, methamphetamine was a schedule 2 controlled substance and available by valid prescription.  Id.

     [62].   Id. at 211.

     [63].   Id.

     [64].   Id.

     [65].   Id.

     [66].   Id. at 210.

     [67].   Id. at 212.

     [68].   Id.

     [69].   Id.

     [70].   Id.

     [71].   Id.

     [72].   Id. at 217–18.

     [73].   Id. at 215.

     [74].   Id. at 217.

     [75].   James J. Gobert & Ellen Kreitzberg, Jury Selection: The Law, Art and Science of Selecting a Jury § 7:4 Actual, Implied, and Inferred Bias (2020).

     [76].   See Gail D. Hollister, Tort Suits for Injuries Sustained During Illegal Abortions: The Effects of Judicial Bias, 45 Vill. L. Rev. 387, 429 (2000).

     [77].   Orzel, 537 N.W.2d at 213; (“[S]ome wrongdoers would be able to receive a profit or compensation as a result of their illegal acts.”); see also Inge v. McClelland, 725 F. App’x 634, 639 (10th Cir. 2018) (applying New Mexico law) (“Nor does the law allow them to ‘profit’ from their own illegal conduct.”); Esparza Rico v. Flores, 405 F. Supp. 2d 746, 751 (S.D. Tex. 2005) (“One can certainly argue without appearing too unsympathetic that a person cannot and should not be able to profit from his or her own illegal activities.”), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007); Zysk v. Zysk, 404 S.E.2d 721, 722 (Va. 1990) (“The rule mainly is premised on the idea that courts will not assist the participant in an illegal act who seeks to profit from the act’s commission.”).

     [78].   See Hollister, supra note 76, at 392.

     [79].   Marc A. Franklin et al., Tort Law and Alternatives 435–42 (10th ed. 2016).

     [80].   See infra Subpart IV.A.

     [81].   See Franklin et al., supra note 79, at 1–3.

     [82].   Restatement (Third) of Torts: Apportionment of Liab. § 7 (Am. L. Inst.  2000).

     [83].   Id. § 26 cmt. c (explaining that the two-step apportionment process apportions first on causation and then on relative party fault for indivisible harms).

     [84].   Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 3 (“Under Modified Comparative Fault System, each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (e.g., 50% or 51%).  If the plaintiff’s own negligence reaches this percentage bar, then the plaintiff cannot recover any damages.  There are competing schools of thought in the 33 states that recognize the Modified Comparative Fault Rule.”).

     [85].   See, e.g., Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018) (barring the plaintiffs’ claims despite New Mexico’s adoption of pure comparative fault); Esparza Rico v. Flores, 405 F. Supp. 2d 746, 764–68 (S.D. Tex. 2005) (barring the plaintiffs’ claims via in pari delicto despite Texas’s adoption of modified comparative fault), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007); Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 201, 217 (Mich. 1995) (barring the plaintiff’s claim despite Michigan’s adoption of modified comparative fault); Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 2–6.

     [86].   Vincent R. Johnson, The Unlawful Conduct Defense in Legal Malpractice, 77 UMKC L. Rev. 43, 78–79 (2008) (“Nevertheless, the widespread endorsement of comparative negligence and comparative fault in forty-six states cannot be ignored.  The substitution of proportionality principles for the earlier all-or-nothing rule of contributory negligence ranks as the most important development of the field of tort law in the last hundred years.”).

     [87].   Id. at 79.

     [88].   See Restatement (Third) of Torts: Apportionment Liab. § 7 cmt. j (Am. L. Inst. 2000) (listing pure comparative fault statutes that track with the Restatement approach).

     [89].   Johnson, supra note 86, at 79.

     [90].   See, e.g., Ky. Rev. Stat. Ann. § 411.182 (West).

     [91].   See, e.g., Ariz. Rev. Stat. Ann. § 12-2505; Fla. Stat. § 768.81(2); Miss. Code Ann. § 11-7-15.

     [92].   Ky. Rev. Stat. Ann. § 411.182(2) (West).

     [93].   See Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. c (Am. L. Inst. 2000).

     [94].   See Restatement (Third) of Torts: Physical & Emotional Harm §§ 26, 29 (Am. L. Inst. 2010); Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. c (Am. L. Inst. 2000).

     [95].   Restatement (Third) of Torts: Physical & Emotional Harm §§ 26, 29 (Am. L. Inst. 2010).

     [96].   Robin Kundis Craig, Michael D. Green, Andrew R. Klein & Joseph Sanders, Toxic and Environmental Torts 159 (2011).

     [97].   Restatement (Third) of Torts: Physical & Emotional Harm § 29 cmt. a (Am. L. Inst. 2010).

     [98].   Id. at § 29 cmt. d illus. 3.  An illustration clarifies this rule:

Richard, a hunter, finishes his day in the field and stops at a friend’s house while walking home.  His friend’s nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house.  Kim drops the shotgun, which lands on her toe, breaking it.  Although Richard is negligent for giving Kim his shotgun, the risk that makes Richard negligent is that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy nor unwieldy).  Kim’s broken toe is outside the scope of Richard’s liability, even though Richard’s tortious conduct was a factual cause of Kim’s harm.

     [99].   Restatement (Third) of Torts: Apportionment of Liab. §§ 8 & 26 (Am. L. Inst. 2000).

   [100].   Id. § 26.

   [101].   404 S.E.2d 721 (Va. 1990).  Note that this case occurs in Virginia, which still applies contributory negligence.  In such jurisdictions, it is equally important that courts get the causal inquiry correct.  Incorrectly finding a causal link between the plaintiff’s conduct and the resulting injury in contributory negligence jurisdictions similarly bar the claim.  See Franklin et al., supra note 79, at 435.

   [102].   Zysk, 404 S.E.2d at 721.

   [103].   Id.

   [104].   Id. at 722.

   [105].   Sexually Transmitted Infections, S.F. City Clinic (last visited Sept. 24, 2020),

   [106].   Remember that Virginia still adheres to contributory negligence.  Because Zysk’s illegal conduct did not causally contribute to her harm, however, the court should not have barred her recovery under contributory negligence.  See Franklin et al., supra note 79, at 435.

   [107].   Restatement (Third) of Torts: Apportionment of Liab. §§ 8 & 26 (Am. L. Inst. 2000).

   [108].   Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 208, 211 (Mich. 1995).

   [109].   Id.

   [110].   Id. at 217 (“The defendant filled many Desoxyn prescriptions for John Orzel, and, when it did, its conduct was seriously blameworthy. The defendant filled Desoxyn prescriptions for John Orzel without first confirming his identity, it filled the prescriptions too frequently, and it filled them for arguably illegitimate purposes.”).

   [111].   Id. at 221.

   [112].   Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 5.

   [113].   Orzel ex rel. Orzel, 537 N.W.2d at 212 (addressing the approach followed by the trial court in its unpublished opinion).

   [114].   See Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 2.

   [115].   Id. at 4.

   [116].   See Samuel Fresher, Comment, Opioid Addiction Litigation and the Wrongful Conduct Rule, 89 U. Colo. L. Rev. 1311, 1320–26 (2018).

   [117].   King, supra note 30, at 1077 n.56.

   [118].   Esparza Rico v. Flores, 405 F. Supp. 2d 746, 764–68 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234, 236, 244 (5th Cir. 2007) (affirming the district court barring plaintiff recovery).

   [119].   See Franklin et al., supra note 79, at 439–40.

By: Katherine Wenner & Holly Ingram

On February 6, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for Campbell v. Boston Scientific Corporation. The case affirmed a major products liability decision involving four plaintiffs, where each plaintiff received awards for over $4 million.

I. Facts and Procedural History

The case involved four plaintiffs who were each involved in a multidistrict litigation, which encompassed over 25,000 cases total. Defendant Boston Scientific Corporation (“BSC”) manufactured a transvaginal mesh prescription medical device, called Obtryx Transobturator Mid-Urethral Sling System (“Obtryx”) which was approved by the Food and Drug Administration (“FDA”) under its 510(k) approval process. That process approves products which are “substantially equivalent” to a device already approved on the market and does not require clinical trials. The problem with the device, according to the plaintiffs’ experts, was that it could degrade when implanted and cause the growth of scar tissue. Over the course of a few years, each of the plaintiffs experienced device dysfunction and brought separate lawsuits against BSC. Their claims were filed against BSC directly into a pre-existing Judicial Panel on Multidistrict Litigation, which is pending in the Southern District of West Virginia. The district court consolidated several cases before case-specific discovery began. BSC moved to conduct separate trials for the cases at issue today, but the motion was denied.

There were also two evidentiary motions that occurred prior to trial. In one motion, BSC moved to exclude evidence of the Marlex polypropylene’s MSDS, but this was denied. Additionally, plaintiffs moved to exclude evidence regarding the FDA’s 510(k) process and approval. This motion the district court granted.

Following an eleven-day trial, the jury returned verdicts in favor of plaintiffs, awarding $250,000 for past-compensatory damages, $1,000,000 for punitive damages, and future-compensatory damages ranging from $3–4.5 million dollars to each plaintiff.

BSC appealed the judgments on the grounds that the district court abused its discretion by (1) consolidating the four cases for trial; (2) permitting the MSDS evidence; and (3) excluding the 510(k) evidence. It also challenged the verdicts for lacking sufficient evidence and challenged the punitive damages awards, asserting there was an erroneous jury instruction.

II. The District Court did not abuse its discretion in consolidating the four cases, excluding the 510(k) evidence, or permitting the MSDS evidence.

The Fourth Circuit concluded that consolidating the independent cases did not render the decision unfair because the court first identified many common questions of law and fact across the trials. Additionally, the plaintiffs shared expert witnesses and presented much of the same evidence. Thus, the trials would have been largely repetitive and caused undue burdens, delays, and expenses. Moreover, the district court adequately endeavored throughout the trial to limit any potential jury confusion or prejudice. BSC lacked evidence to claim that the district court’s safeguards were inadequate. Further, although the four awards were similar, the damages were not identical. This evidenced that the merely similar values were because of the acute similarities between the injuries—which further justifies the consolidation. The Fourth Circuit ultimately notified that this illustrates the effectiveness of streamlining the judicial process, especially in cases such as this Multidistrict Litigation, which has over 25,000 cases involved.

Turning to the evidentiary dispute, the Fourth Circuit concluded that exclusion of the 510(k) evidence was not an abuse of discretion. BSC attempted to use this to argue that its conduct was reasonable. Yet, the court noted that although the 510(k) clearance may have said something about the safety of the product, it did not say anything very specific. Further, it would likely have only amplified the risk of confusion and wasted time. Thus, exclusion was not an abuse of discretion.

Next the Fourth Circuit concluded that including the MSDS was not inadmissible hearsay, as BSC so argued, because it was not admitted for the truth of the matter asserted. While it may have suggested that the company should have further investigated the safety of their product, it did not evince that the warning was actually correct. Thus, including the evidence was appropriate, and the district court did not abuse its discretion.

III. BSC was not entitled to judgment as a matter of law and the district court used the proper standard to instruct the jury on punitive damages.

Moving on to BSC’s contention that it was entitled to judgment as a matter of law, BSC argued that the plaintiffs did not have sufficient evidence for their claims. However, the Fourth Circuit noted that jury verdicts are only set aside in unusual circumstances, which were not present in this case. The plaintiffs identified several aspects of the Obtryx’s design that contributed to its danger and presented evidence of safer alternative designs that existed. BSC claimed that the jury should have been instructed that a safer alternative was an element of the plaintiffs’ claim, but the Fourth Circuit noted that this argument was made for the first time on appeal and was therefore inappropriate.

Under the failure to warn claims, BSC argued that the plaintiffs’ testimony was also inadequate. However, because the plaintiffs did provide testimony, then it was sufficient. The court agreed that expert testimony may have been helpful, but it was not required.

Finally BSC challenged that the district court’s jury instruction standards for punitive damages. However, the court concluded that the district court’s instruction was a correct statement of West Virginia law at the time. Since the time of trial, the West Virginia legislature has changed its statute regarding the award of punitive damages, but the new statute was not in effect at the time of the trial. Therefore, the punitive damages award was also affirmed.

IV. Conclusion

Because the district court did not abuse its discretion or use any improper legal standards, the judgments of the district court were affirmed.


By Daniel Stratton

On December 29, 2015, the Fourth Circuit affirmed in part, and reversed in part, a district court’s dismissal of an inmate’s Federal Tort Claims Act (“FCTA”) claim, after he was stabbed and severely beaten by fellow inmates  in the published civil case Rich v. United States. The appellant, Joshua Rich, argued on appeal that the district court incorrectly dismissed his claim after determining that the FCTA’s discretionary function exception applied to the prison officials’ conduct. The Fourth Circuit, after reviewing Rich’s appeal, affirmed the district court’s determination that the prison officials’ decisions on prisoner placement were shielded by the discretionary function exception, but reversed the lower court’s decision regarding Rich’s opportunity to engage in discovery about the prison officials’ claims that they properly searched Rich’s attackers before placing them in proximity to Rich.

Rich is Sentenced to Fifty-Seven Years, Claims He was Targeted by Aryan Brotherhood While Incarcerated

In 2008, Rich was sentenced by the U.S. District Court for the District of Utah to fifty-seven years’ imprisonment, following his conviction for armed bank robbery, and for carrying a firearm in relation to the crime. He entered the U.S. Bureau of Prison (“BOP”)’s custody in September 2008.

Rich alleges that he was targeted by the white supremacist group, the Aryan Brotherhood, almost immediately after entering the BOP’s prison system for refusing to participate in the group’s criminal activities. Rich was transferred to several prisons over the course of 2008 to 2011 and required separation from the Aryan Brotherhood. In February 2011, Rich was moved to a U.S. penitentiary in West Virginia, USP Hazelton. While at USP Hazelton, Rich was attacked by five inmates on August 5, 2011, after they were put into the same recreation area, or “cage.”

Rich was severely beaten and stabbed multiple times. His injuries included laceration to his liver, among others, and he underwent several invasive surgeries as a result. A nine-inch homemade knife was recovered in the cage where the attack occurred.

Rich sued the federal government under the FCTA, claiming negligence on the part of the prison officials when they failed to protect him from harm. He argued that the prison’s correctional officers should have kept him separated from his attackers, and that those officers had failed to properly screen or search the other inmates before placing them in the same cage as Rich. The government moved to dismiss Rich’s claim, asserting that the discretionary function exception applied to both the prison officials’ decisions about separating Rich and his attackers and to the way in which the officers searched the attackers. The district court agreed with the government, and additionally found that Rich was not entitled to any discovery about whether the prison had any directives mandating a particular approach to performing pat downs and searches. As a result, the district court granted the government’s motion to dismiss for lack of subject matter jurisdiction.

The FCTA, the Discretionary Function Exception, and Their Application to Federal Prisons

The United States is generally immune from suit under the legal doctrine of sovereign immunity, however the FCTA provides an exception. Under the FCTA, sovereign immunity is waived when the federal government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred” for torts like negligence when they are committed by federal employees acting within the scope of their employment.  The FCTA’s discretionary function exception limits this waiver, however, in situations where an employee must perform a discretionary function or duty.

To determine whether conduct fits within this exception, courts generally apply a two-pronged test. First, the court determines if the challenged conduct involves an element of judgment or choice. If a statute, regulation, or policy sets out a specific course of action to the degree that there is no exercise of discretion, then the exception does not apply. If the action does involve an element of judgment, the court must then tackle the second prong, which is to determine whether the judgment was based on considerations of public policy. If it was, then a government employee defendant can assert that the court lacks subject matter jurisdiction under the exception.

If a defendant disputes the allegations in a complaint that could establish subject matter jurisdiction, a court may engage in an evidentiary hearing to determine if there are facts that support the jurisdictional allegations. Generally, under these circumstances, a plaintiff’s allegations in his complaint are not afforded a presumption of truthfulness. However, if the jurisdictional facts are intertwined with merit facts central to the complaint, a presumption of truthfulness will attach to the plaintiff’s claims. While the application of the discretionary function exception to decisions about the separation of prisoners is an issue of first impression for the Fourth Circuit, other circuits have weighed in on this issue previously.

The Fourth Circuit Decides that the Discretionary Function Exception Applies to Decisions about Separating Prisoners

The Fourth Circuit began its analysis by determining if the discretionary function exception applied to the prison officers’ decision to place Rich and his attackers in the same cage. The first step in this analysis was to apply prong one of the two-pronged test. Noting that the BOP is tasked with protecting and caring for all persons in its custody, the Fourth Circuit explained that the BOP retained discretion in implementing those tasks. Prison officials must consider and balance several factors when determining if an individual inmate may require separation. This, the Court concluded, satisfied the first prong of the test.

The Court, noting the issue of first impression, drew on other circuits’ experiences in determining whether the second prong was met. Other circuits, including the Seventh, Ninth, Eleventh have previously held that prisoner placement and potential threats to prisoners against one another was a standard part of the public policy considerations of maintaining order and security in federal prisons. Those circuits viewed factors such as available resources, proper classification of inmates, and appropriate security levels as inherent in various policy questions. Following in the other circuits’ footsteps, the Fourth Circuit agreed that prison officials should be afforded discretion in determining prisoner placement and separation. This, the Court held, meant that the discretionary function exception shielded prison officials from liability regarding whether they should have kept Rich separated from his attackers.  The Fourth Circuit, in turn, affirmed the lower court’s refusal to grant discovery on this issue.

Turning to the question of whether Rich should be granted discovery as to his allegations that the prison did not properly search the attackers before putting them in his recreation cage, the Fourth Circuit diverged from the district court. On this claim, the Fourth Circuit found that the disputed jurisdictional facts were intertwined with the merits of Rich’s claim that the prison had not properly executed pat downs of the attackers. Citing the fact that the prison officials’ signed declarations that they had performed pat downs of the attackers stood in contrast to Rich’s allegations, the Fourth Circuit explained that the allegations applied to both the merits of Rich’s claim as well as the jurisdictional questions over his claim.

The Court argued that a period of discovery would give Rich the opportunity to challenge the prison officials’ declarations that they carried out the searches. The Court also explained that even if they accepted the declarations as fact, those did not resolve the question about whether the pat down searches were carried out correctly. The Fourth Circuit reasoned that because the pat downs were to be conducted as outlined in the Correctional Services Manual, this suggested the existence of specific directives which Rich should be permitted to find in discovery.

Because inmates who have a history of weapons possession are required to undergo visual searches, including a body cavity search, prior to entering a recreation area, discovery could reveal whether any of the attackers had such a history and if such a search was undertaken.

The Court finally noted that Rich could potentially establish jurisdiction under this claim if he could show that the discretionary conduct engaged in by the prison officers was marked by carelessness or laziness, because such conduct cannot be grounded in policy decisions.

The Fourth Circuit Vacates and Remands to Allow Discovery on the Prison Officials’ Pat downs

While the Fourth Circuit affirmed that the discretionary function exception shielded the decision to place Rich and his attackers in the same recreation cage, the Court vacated and remanded to allow Rich to engage in discovery on the issue of whether and how prison officials performed pat downs and searches.


By Kayleigh Butterfield

On April 30, 2015, the Fourth Circuit issued a published opinion in the civil case Harris v. Norfolk Southern Railway Co. Norfolk Southern Railway Company (“Norfolk Southern”) appealed the district court’s grant of summary judgment against it on the issue of liability in a negligence action brought by Charles Harris, who sought compensation for injuries suffered from a train derailment. Harris cross-appealed the district court’s summary judgment grant against him on a claim for punitive damages. The Fourth Circuit reversed the grant of summary judgment on the issue of liability, affirmed the grant against punitive damages, and remanded the case for further proceedings.

Factual Background

On July 21, 2009, Harris was working at a coal-loading facility (“loadout”) in Mingo County, West Virginia. Norfolk Southern employees backed an empty train of freight rail cars over an area of the railroad track running underneath the loadout where Harris was working. Both the train and track were owned and operated by Norfolk Southern. A section of the rail about 35 feet from the loadout was heavily corroded between the ball and vertical part of the rail. When the rail cars passed over the damaged portion of the track, a part of the rail separated and the cars derailed. When one of the cars crashed into the loadout’s support beams, the loadout collapsed and Harris subsequently suffered severe physical and mental injuries. The evidence showed that most of the track damage occurred months or years prior to the derailment.

Standard of Review

Summary judgment is reviewed de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate so long as the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Federal Rail Safety Act and Track Safety Standards

Under the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. Norfolk Southern has a duty to inspect the rail in accordance with the comprehensive track safety standards (“TSS”) as set forth by the Secretary of Transportation. 49 C.F.R. Part 213. The TSS sets forth minimum requirements for how inspections must be conducted and how issues should be remedied.

Norfolk Southern Breached Its Duty to Inspect

Section 213.5 of the TSS states that a track owner “who knows or has notice that the track does not comply with the requirements of this part” is responsible for remedying the problem in accordance with the TSS. The Fourth Circuit examined the plain language of the Federal Railroad Administration’s (“FRA”) commentary to the 1998 TSS amendments, and found that their reading of the phrase “knows or has notice” was reasonably interpreted to include constructive notice.

The Fourth Circuit then determined the scope of Norfolk Southern’s duty to inspect the track. While the court rejected Harris’ contention that a visual inspection requires someone to look at every part of the track structure, the court concluded that a reasonable visual inspection must be made in light of the surrounding circumstances. In this case, evidence was brought showing that Norfolk Southern knew that the obstruction of coal and debris on the tracks could cause corrosion. Despite this knowledge, Norfolk Southern failed to examine any of the embedded portion of the track over a period of months and years. Thus, the Fourth Circuit determined that any reasonable jury would find that Norfolk Southern breached its duty to inspect.

Genuine Dispute as to Proximate Cause

The Fourth Circuit concluded that a genuine dispute of material fact existed as to proximate cause. Expert testimony revealed that corrosion could have been detected through ultrasonic testing or digging out coal debris from the damaged parts of the track. However, the court noted that the testimony did not provide that the damage was consistent along the track or that it would necessarily be discovered by digging out sample areas of coal debris. Because a jury could reasonably find that Norfolk Southern’s breach was not the proximate cause of Harris’s injuries, the Fourth Circuit reversed summary judgment on the issue of liability.

Harris Did Not Meet Standard for Punitive Damages

The Fourth Circuit did not find that Norfolk Southern’s conduct met the standard of severe negligence required for an award of punitive damages. The court noted that Norfolk Southern conducted ultrasonic rail testing and visual inspections on a regular basis. While the defect remained undiscovered, the court held that Norfolk Southern’s actions simply did not rise to the near-reckless level of negligence needed to award punitive damages.


For the above reasons, the Fourth Circuit reversed the grant of summary judgment on the issue of Norfolk Southern’s liability, affirmed the grant of summary judgment on Harris’s claim for punitive damages, and remanded to the district court for further proceedings.