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Victory Upheld: Michigan Court of Appeals Affirms Motion for Summary Disposition

By: Kopka Pinkus Dolin

Congratulations to Senior Attorney Berton May (Michigan) and Senior Attorney Lizabeth Hopkins (Indiana), who assisted with the Appeal, on their recent victory in the Court of Appeals affirming the Trial Court’s granting of Motion for Summary Disposition in Michigan under MCR 2.116(C)(8). Attorney May argued this matter before the Court of Appeals.

The case involved two families who were neighbors and friends for many years. According to the Complaint, the plaintiffs’ minor son allegedly purchased a pill from the defendants’ minor son, thinking it was Percocet, but it was alleged to have been Fentanyl. The plaintiffs’ son overdosed and was found by his sister the next morning. The complaint also alleged that the defendant parents had a duty above the general public in regard to the care and storage of prescription medications because they were licensed medical professionals. The allegations state that the defendant (mother) obtained the pill and stored it in her medicine cabinet; her son gained access to it and sold it. There was no prescription for the pill and therefore would be in violation of Michigan law requiring the possessor of a controlled substance to have a valid prescription. The allegations were drafted as negligence to avoid an intentional act exclusion in the defendant’s insurance policy. As part of the allegations, none of the parties knew that the pill was Fentanyl and not Percocet.

The Summary Disposition motion and the response to the Appeal were based solely upon the Complaint allegations. Mr. May argued that under MCR 2.116(C)(8) that the the wrongful conduct rule barred plaintiffs’ claims. Specifically, pursuant to Orzel v Scott Drug Co., 449 Mich 550 (1995) which holds:

“When a plaintiff’s action is based, in whole or in part, on his own illegal conduct, a fundamental common-law maxim generally applies to bar the plaintiff’s claim: [A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party. When a plaintiff’s action is based on his own illegal conduct, and the defendant has participated equally in the illegal activity, a similar common-law maxim, known as the “doctrine of in pari delicto” generally applies to also bar the plaintiff’s claim: [A]s between parties in pari delicto, that is equally in the wrong, the law will not lend itself to afford relief to one as against the other, but will leave them as it finds them. We shall refer to these maxims collectively as the “wrongful-conduct rule.”

Under this rule both parties must be engaged in illegal activity and their wrongs must be equal in nature. The conduct must be entirely prohibited or almost entirely prohibited under a penal criminal statute. Attorney May argued that both selling and possessing a Schedule II controlled substance (either Percocet or Fentanyl) is entirely prohibited without a valid prescription so both minor children were equally in violation. He further argued that despite the defendants being licensed medical professionals, neither had a valid prescription for the pill sold by their son and therefore were also in violation of the law. The Trial Court and Court of Appeals agreed despite a number of arguments by Plaintiffs. The Court of Appeals concluded their opinion as follows:

“Because Plaintiffs in the present case cannot establish their cause of action without relying at least in part on their son’s illegal conduct, the trial court did not err by determining that plaintiffs’ action was barred by the wrongful-conduct rule and granting summary disposition under MCR 2.116(C)(8) on that basis. Orzel, 449 Mich at 558.”