West Virginia Supreme Court Justice Brent Benjamin made clear in a separate opinion Thursday that the court’s recent decision to allow people who illegally abused drugs prescribed to them to sue their doctors and pharmacists was a decision made by lawmakers during the most recent legislative session.

In a 3-2 decision filed May 13, justices ruled that just because plaintiffs have engaged in wrongful conduct, it doesn’t mean their lawsuits against doctors who prescribed them pain medication and the pharmacists who filled them should be thrown out. The case involves 29 former patients of Mountain Medical Center in Williamson, who were prescribed controlled substances and became addicted after abusing prescriptions.

Instead, it will be up to jurors to weigh their criminal conduct against the alleged negligent or wrongful conduct of the doctors and pharmacists, who claim the plaintiffs were doctor shopping, among other things.

In a concurring opinion, Benjamin wrote that his colleagues who disagreed with the majority opinion believe “we, as judges, should lock the courthouse doors to plaintiffs such as these.”

“But my colleagues miss the determinative fact which decides this case: The Legislature and the Governor already fully considered the policy issues related to a wrongful conduct rule and enacted a wrongful conduct rule for West Virginia while this case was pending on our docket. It’s that simple,” Benjamin wrote.

The new law (HB 2002), which took effect May 25, prevents those convicted of felonies from recovering damages when wrongful conduct is part of their claim.

“The principles of judicial conservatism require us to give effect to the wisdom and consideration of our sister branches of government — the branches designed to make public policy — and not to bestow upon ourselves the role of super-legislature simply because we don’t believe [lawmakers] went far enough,” the concurring opinion states.

Justices Allen Loughry and Menis Ketchum filed separate dissenting opinions.

“By summarily dismissing the wrongful conduct rule as unworkable, the majority’s decision requires hard-working West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable — a drug addict or his dealer,” Loughry wrote.

Ketchum wrote that “criminals should not be allowed to use our judicial system to profit from their criminal activity.”

Plaintiffs filed eight lawsuits, which are ongoing in Mingo County Circuit Court against Tug Valley Pharmacy, Strosnider Drug Store, B&K Pharmacies, the Mountain Medical Center and four of its physicians. The cases were put on hold until justices answered the question regarding wrongful conduct.

In 2010, the FBI raided and shut down Mountain Medical Center, after finding that controlled substances had been improperly prescribed.

“The parties to this action are difficult to like,” Benjamin wrote. Attorneys for the pharmacists and doctors portray plaintiffs as trying to profit from the negative consequences of their conduct, while plaintiffs assert that the doctors and pharmacists are nothing more than drug dealers who are profiting from the drug problem of southern West Virginia.

“One can easily understand the intuitive response simply to proclaim a pox on all of the parties’ houses in this case and lock the courthouse door,” Benjamin wrote. “In his dissent, Justice Loughry observes that there may well be no innocent victims here. Perhaps not. But I am also troubled that despite their own alleged bad acts, including criminal misconduct, defendants now seek to use the very same justice system they would deny to plaintiffs to shield themselves from such claims.

“How ironic it is that defendants claim a right for themselves that they would deny to plaintiffs.”

Read the court decision here: http://www.courtswv.gov/supreme-court/docs/spring2015/14-0144.PDF

Read the concurring opinion here: http://www.courtswv.gov/supreme-court/docs/spring2015/14-0144c.PDF

Reach Kate White at kate.white@wvgazette.com, 304-348-1723 or @KateLWhite on Twitter.