11 Wake Forest L. Rev. Online 93 (2021)


In 2018, 128 people died every day from an opioid overdose, twenty-five percent of patients misused opioids prescribed for chronic pain, and approximately 1.7 million people developed a substance use disorder directly from prescription opioid use.[1]  The effects were so devastating that the opioid epidemic was declared a national emergency.[2]  In response, government officials and courts sought criminal and civil retribution to hold pharmaceutical executives responsible for their roles in the epidemic, most recently with the Racketeer Influenced and Corrupt Organizations Act (“RICO”).[3]  When applied in the civil context, however, courts disagree on whether a fraudulent misrepresentation can satisfy the proximate cause requirements under RICO.[4]  This Comment seeks to identify whether a misrepresentation of the addictive qualities of opioids would be a sufficient showing of proximate cause for a civil RICO claim to succeed and argues that such misrepresentations would be sufficient.

This Comment proceeds in five parts.  Part I explains the progression of the opioid epidemic, pharmaceutical companies’ fraudulent misrepresentations, and the recovery options available to combat the epidemic—particularly RICO.  Part II discusses RICO’s role in addressing fraudulent misrepresentations in the pharmaceutical industry.  Part III describes the circuit split regarding fraudulent misrepresentations in civil RICO causation.  Part IV analyzes the fraudulent misrepresentations that led to the opioid epidemic and argues that those misrepresentations are sufficient to establish proximate cause in a civil RICO claim.  Part V recommends that the Supreme Court should grant certiorari on this issue and hold that misrepresentations of a drug’s harmful side effects are sufficient to show proximate cause in civil RICO cases.

I. Background

A. The United States Opioid Epidemic

The United States opioid epidemic is a major public health issue that has devastated the country’s social and economic welfare.[5]  The epidemic began in the late 1990s when pharmaceutical companies began encouraging the medical community to prescribe prescription opioids to their patients.[6]  During this time, pharmaceutical companies paid physicians to host informational seminars on drugs for their peers.[7]  While hosting these events can be a positive source of information in the medical community, the speakers of these programs often received kickbacks to prescribe the drugs they were promoting.[8]  The more prescriptions the physicians wrote, the more kickbacks they received.[9]  By 2015, nearly fifty percent of physicians received kickbacks for prescribing pharmaceutical drugs.[10]

Often, physicians knew little about the drugs they were prescribing.[11] Pharmaceutical companies assured physicians of opioid safety, guaranteeing that patients would not become addicted.[12]  As a result, physicians prescribed the drugs at high rates and quantities, leading to widespread addiction.[13]  Newly addicted and reliant, patients soon turned to more potent drugs—like cocaine and heroin—culminating in the opioid epidemic now overtaking the United States.[14]

B. The History of Fraudulent Misrepresentations in the Pharmaceutical Industry

The pharmaceutical industry has a long history of systemic fraud related to the “testing, marketing, and distribution of dangerous pharmaceutical drugs.”[15]  Throughout this history, pharmaceutical representatives have routinely concealed harmful side effects from physicians to convince them to prescribe dangerous drugs using “lies, bribes, and kickbacks.”[16]  In fact, in the pharmaceutical industry, it is so common for physicians to be deceived about dangerous products “that it’s often dismissed as the equivalent of driving slightly over the speed limit.”[17]

Drug representatives are also targeted as these individuals are often offered large bonuses for selling harmful drugs.[18]  For example, to increase sales of OxyContin, Purdue Pharma developed a “bonus system [that] encouraged sales representatives”[19] to use “any means necessary” to increase sales rates, even if it meant downplaying OxyContin’s addictive tendencies.[20]  In this way, pharmaceutical manufacturers frequently engage in a “coordinated conspiracy to deceive the American public and the medical profession about the efficacy and safety of opioids.”[21]


In 2017, the federal government and state governments began to pursue criminal and civil retribution against pharmaceutical companies for their role in the opioid epidemic.[22]  These entities often sought to recover for the economic harm they incurred due to increased rates of addiction in their communities.[23]  While civil lawsuits were routinely unsuccessful early on, settlements have begun to increase in recent years, indicating their growing success.[24]  For example, in 2007, Purdue Pharma settled in a civil suit with twenty-six states for $19.5 million.[25]  In 2016, Cardinal Health and AmerisourceBergen, distributors of prescription opioids, did the same, settling with the State of West Virginia for $34 million.[26]

Generally, individual plaintiffs seeking damages for personalized injuries have also sought to recover via direct-injury lawsuits.[27]  In the pharmaceutical context, direct-injury lawsuits “generally target opioid manufacturers for alleged misrepresentations during advertisement or opioid distributors for an alleged failure to monitor illicit distribution.”[28]  When asserting direct-injury claims, plaintiffs generally rely on tort-based theories, one of which is RICO.[29] 

RICO makes it “unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such [an] enterprise’s affairs through a pattern of racketeering activity” that affects interstate commerce.[30]  To assert a RICO violation, a claimant must establish an “association-in-fact” enterprise, defined as a “group of persons associated together for a common purpose.”[31]  To be a part of such an enterprise, a defendant must have either made decisions or intentionally performed acts that furthered the enterprise’s common purpose.[32]  The enterprise’s common purpose must be “separate from the pattern of racketeering activity” that the enterprise is engaging in; otherwise, it will not amount to a RICO violation, only a general conspiracy to commit a crime.[33] 

To establish a pattern of racketeering activity, there must be two or more acts that are “‘chargeable’ . . . under a host of state and federal laws,”[34] as well as interrelated, continuous, and occurring within a ten-year period.[35]  Otherwise, the acts will be deemed “isolated” and will fail to constitute a pattern.[36]  Furthermore, either the enterprise itself or the predicate acts of the enterprise must have a de minimis impact on interstate commerce.[37]  This is generally a low threshold, as courts routinely find that most, if not all, economic behavior impacts interstate commerce.[38]  Thus, to prosecute a defendant under RICO, a plaintiff must show that (i) a defendant performed two or more acts, (ii) those activities together formed a pattern of racketeering activity, (iii) the defendant benefitted from or participated in an enterprise, and (iv) the activities of that enterprise affected interstate commerce.[39] 

II. RICO and the Pharmaceutical Industry

In the pharmaceutical context, defendants participate in a RICO enterprise when they give or follow a directive to engage in fraud or when they exert influence or control in a scheme to fraudulently profit from the sale of prescription drugs.[40]  Thus, a RICO enterprise is formed when pharmaceutical companies conspire to misrepresent the efficacy and risks of opioids and opioid addiction.[41] While pharmaceutical executives are typically the easiest to implicate in such an enterprise, any person engaged in “false claims, kickback schemes, and acts of clinical and publication bias” are potential defendants for inclusion.[42]

A. Proving Causation in Civil RICO Claims

Standing to bring a civil RICO claim is stated under 18 U.S.C. § 1964(c).[43]  Under the statute, a plaintiff has standing for a civil RICO claim when their injury (i) is to their business or property, and (ii) was caused “by reason of” the RICO violation.[44]  The Supreme Court’s interpretation of “by reason of” requires the plaintiff to prove both proximate and but-for causation.[45]  But-for causation asks whether the plaintiff’s injury would have occurred but for the defendant’s conduct.[46]  Proximate causation serves to prevent liability when the link between the defendant’s conduct and the plaintiff’s injury has been severed.[47]  Thus, proximate causation requires a plaintiff to show some sort of direct relationship between the defendant’s actions and the plaintiff’s injury.[48]

Holmes v. Securities Investor Protection Corp.[49] sets out three principles to guide the causation analysis[50]

First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors.  Second, . . . recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries.  And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general . . . .[51]

The first Holmes principle asserts that an injured party must be readily identifiable with readily apparent damages.[52]  Damages are considered to be readily apparent when the action that caused the plaintiff’s injury has already occurred, because this negates the need for factual speculation.[53]  The second principle requires damages to be awarded to the plaintiffs without fear that multiple parties will receive overlapping damages.[54]  To conform with this principle, a court can award damages when only one party is seeking recovery for their payments towards a drug or when each individual plaintiff seeks only to recover for the damages they individually paid for a prescription drug.[55]  Finally, the third principle requires that those most directly injured are bringing the suit; thus, the parties bringing the suit must be those best suited to do so.[56]

Since Holmes, however, the Supreme Court has eased the proximate cause standard for plaintiffs bringing RICO claims on mail and wire fraud.[57]  In Bridge v. Phoenix Bond & Indemnity Co.,[58] the Court held that a plaintiff asserting a RICO claim on mail or wire fraud does not need to show that they relied on the defendant’s alleged misrepresentations to establish proximate cause.[59]  As such, the plaintiff may recover whether or not they are the direct recipient of the false statements made.[60]  But because a plaintiff must establish both but-for and proximate causation, they often still must show that someone relied on the defendant’s misrepresentation.[61]

B. Criminal RICO Application

In 2019, a Massachusetts court found John Kapoor (“Kapoor”), former executive of pharmaceutical company Insys, guilty of conducting a national scheme to pay physicians to prescribe a highly potent and addictive fentanyl-spray.[62]  In Kapoor’s case, United States v. Michael Babich,[63] the Insys executives knowingly instructed physicians to prescribe the fentanyl-spray at six times the FDA-approved limit to guarantee patient reliance.[64]  To ensure compliance, the executives held speaker programs disguised as “educational lunches and dinners,” which they used to pay bribes and kickbacks to high-prescribing physicians.[65]  The Insys executives also targeted third-party payors (“TPPs”) using fake call centers to trick insurance companies into covering the spray at higher rates than they otherwise would have if they had known of the spray’s addictive tendencies.[66] 

Kapoor and six other Insys executives were found guilty of racketeering, wire fraud, and mail fraud conspiracy, marking the “first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids.”[67]  As such, this case serves as the beginning of a new era in civil litigation to hold executives responsible for their role in the opioid epidemic.[68]

III.  Conflicting Interpretations of Misrepresentations Under RICO

Several federal circuit courts have addressed the question of whether, in the civil context, fraudulent misrepresentation can satisfy the direct-injury requirements necessary to establish proximate cause under RICO.[69]  The First, Third, and recently the Ninth Circuit have held that fraudulent misrepresentations can satisfy the direct-injury requirement, while the Second and Seventh Circuit have held that they cannot.[70]  To date, the Supreme Court has not granted certiorari to resolve this issue.[71]

A. Fraudulent Misrepresentation as a Sufficient Assertion of Proximate Cause

  1. Ninth Circuit

In Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals,[72] the Ninth Circuit reviewed whether patients and TPPs can sufficiently meet the proximate cause requirements in a civil RICO claim when a pharmaceutical manufacturer fraudulently misrepresents a drug’s allegedly known safety risks.[73]  There the defendants allegedly knew of and concealed that Actos, a drug prescribed to regulate blood sugar for Type II diabetics, increased a patient’s risk of developing bladder cancer.[74]  The plaintiffs alleged that they would never have paid for or taken the drug if they had known of the risk of bladder cancer.[75]

The court concluded that the plaintiffs were the direct victims of the defendants’ alleged misrepresentations and therefore that the defendants’ fraudulent misrepresentations were directly related to the plaintiff’s harm.[76]  Thus, the Ninth Circuit held that both patients and TPPs who paid for Actos could successfully meet the proximate cause requirements.[77]  In so holding, the Ninth Circuit noted that because physicians commonly prescribe prescription drugs—like Actos—it is foreseeable that physicians would prescribe such a drug and therefore “play a causative role” in the defendant’s fraudulent scheme.[78]  Accordingly, physician actions do not sever proximate cause.[79]

The Painters decision marked an express change of opinion for the Ninth Circuit.[80]  Ten years prior, in 2009, the Ninth Circuit conversely found that misrepresentation claims could not successfully assert proximate cause in civil RICO claims.[81]  Now, with the Ninth Circuit basing its decision on policy implications and societal interest, Painters introduces new considerations on the issue that cannot be ignored.[82] 

  1. First Circuit

In In re Neurontin,[83] the First Circuit considered whether the Kaiser Foundation (“Kaiser”) could recover for an alleged injury arising from Pfizer’s alleged fraudulent marketing of Neurontin for off-label uses.[84]  Kaiser argued that Pfizer’s campaign explicitly targeted TPPs to influence formulary and prescribing decisions and encouraged physicians to serve on speaker’s bureaus and sponsor informational sessions to promote Pfizer drugs, while disguising bribe and kickback payments.[85]  Through expert witness testimony, the court found that three out of ten Neurontin prescriptions made for such off-label uses would not have been written but for Pfizer’s fraudulent marketing scheme.[86]  As such, the court held that Kaiser was a primary, intended, and direct victim that successfully met the proximate cause requirements under RICO.[87] 

  1. Third Circuit

In In re Avandia,[88] GlaxoSmithKline (“GSK”) marketed Avandia as a safer and more effective alternative to existing medications currently available for Type II diabetes treatment.[89]  As a result, TPPs added Avandia to their formularies and covered Avandia prescriptions at preferred rates.[90]  Soon after, however, risks arose regarding heart-related side effects, which GSK actively denied and countered despite knowledge to the contrary.[91] 

The Third Circuit held that the presence of intermediaries did not sever proximate cause because the TPPs’ injury was a foreseeable result of GSK’s scheme.[92]  Since TPPs covered the costs of Avandia directly because of GSK’s misrepresentations of Avandia’s risks, the TPPs were held to be intended and direct victims.[93]  Thus, the court concluded that reliance on GSK’s misrepresentations was sufficient to allege proximate cause.[94]

B. Fraudulent Misrepresentation as an Insufficient Assertion of Proximate Cause

In a Seventh Circuit case, Sidney Hillman Health Center of Rochester v. Abbott Labs.,[95] Abbott Labs allegedly solicited physicians to prescribe Depakote, a drug approved to treat seizures and migraines, for off-label uses.[96]  There the Seventh Circuit reasoned that because it would be too difficult to calculate the plaintiff’s damages due to unknown factors—some patients likely benefitted from taking Depakote for an off-label use, and some physicians would undoubtedly have prescribed Depakote for off-label uses regardless of solicitation—misrepresentations made to physicians fail the first Holmes factor and do not constitute a direct injury.[97]  As such, the Seventh Circuit held that such misrepresentations cannot meet the proximate cause requirements of civil RICO claims.[98]  Similarly, in UFCW Local 1776 v. Eli Lilly & Co.,[99] the Second Circuit concluded that a physicians’ reliance on misrepresentations is not a but-for cause of a drug’s higher price because physicians do not consider a drug’s price when they order prescriptions.[100]  Thus, the Second Circuit held that fraudulent misrepresentations do not sufficiently establish proximate cause for a civil RICO claim.[101]

IV. Analysis

Painters, In re Avandia, and In re Neurontin discuss the issue of recovery for TPPs (and patients as well in the case of Painters) when dealing with fraudulent misrepresentations of a prescription drug’s harmful side effects.[102]  These cases more closely align with the issues arising out of the opioid epidemic—as seen in Michael Babich—where pharmaceutical manufacturers and their executives fraudulently misrepresented the addictive qualities of opioids, in the form of a fentanyl-spray, resulting in economic injury to both patients and TPPs.[103]

A. The Opioid Epidemic Compared to Other Civil Applications

Like the pharmaceutical manufacturers in In re Avandia who falsely promoted Avandia as safe for use, the Insys executives in Michael Babich misrepresented the risks of the addictive qualities of their fentanyl-spray to ensure its coverage and use.[104]  In In re Avandia, the pharmaceutical manufacturer knew of Avandia’s increased cardiac complications; in Michael Babich, the pharmaceutical manufacturer knew their fentanyl-spray risked addiction and misuse.[105]  Like the pharmaceutical manufacturer in In re Avandia who promoted Avandia knowing its cardiac risks, the pharmaceutical executives in Painters also actively misled physicians, consumers, and TPPs to prescribe and use Actos despite knowing its risk for bladder cancer.[106]  Thus, in all three cases, pharmaceutical manufacturers formulated schemes to misrepresent the harmful side effects of their touted drugs to increase prescription rates at the expense of patients and TPPs.

Michael Babich also mimicked these cases’ use of speakers’ bureaus and physician targeting.  Both Michael Babich and In re Neurontin used speaker programs to target physicians with high prescription numbers and pay bribes and kickbacks to these physicians in exchange for increased prescription orders and dosages.[107]  Furthermore, like Pfizer’s marketing scheme in In re Neurontin that actively targeted TPPs to add drugs to their formularies and influence prescribing decisions, Insys’ marketing scheme in Michael Babich targeted TPPs through the use of a fake call center that was used to guarantee insurance coverage of their fentanyl-spray.[108]  In both cases, the use of these schemes directly targeted TPPs, causing them to prescribe more opioids than they otherwise would have prescribed.[109]  In these ways, the facts of Michael Babich reflect those of Painters, In re Avandia, and In re Neurontin.

Thus, as the fraudulent misrepresentations presented in the aforementioned cases all constituted a direct injury,[110] it is likely that a civil RICO claim based on the fraudulent misrepresentations of the opioid epidemic would be successful.  Therefore, opioid epidemic plaintiffs should bring civil—as well as criminal—suits when seeking retribution for their injuries caused by pharmaceutical companies’ fraudulent misrepresentations of the addictive qualities of opioids.

B. Analyzing the Proximate Cause Requirements of Civil RICO Claims

  1. How Opioid Epidemic Plaintiffs Can Meet the Damages Attributable Requirement

In situations where plaintiffs can allege damages due to the failure to warn of a drug’s harmful side effects, damages are not based on factual speculation and are thus readily apparent.[111]  In these situations, plaintiffs bring suit because they incurred an injury from taking a drug.  To have such an injury, a plaintiff must have already taken the drug, meaning that their injury has already occurred and cannot be based on factual speculation.  In the context of the opioid epidemic, a plaintiff brings suit asserting injury for the harm incurred from taking a drug with addictive characteristics.  Because the factual scenario seen in the opioid epidemic falls squarely into this context, a plaintiff’s damages will be readily apparent and meet the damages attributable requirement.

Damages in these cases will also be readily determinable.[112]  When a plaintiff’s injury is based on a fraudulent misrepresentation of a drug’s harmful side effects, the amount of damages attributable would amount to the difference between the cost of the injurious drug and the cost of a cheaper, alternative drug.[113]  Thus, in the context of the opioid epidemic, the damages alleged would amount to the cost between what a patient, or TPPs, would have paid for an alternative drug and what they paid for the harmful drug prescribed.  Because this amount is easily determinable, patients and TPPs would likely meet this requirement in any civil litigation arising from the opioid epidemic.

  1. How Opioid Epidemic Plaintiffs Can Avoid Duplicative Recovery

In opioid epidemic cases, multiple parties, including patients and TPPs, will likely look to recover damages.  In these cases, each individual plaintiff will be limited in what they can recover while still conforming with the second Holmes principle.[114]  To ensure that there is no duplicative recovery, and thus no violation of the second principle, each plaintiff will only be able to recover damages for what they individually paid for a prescription drug.[115]  Because both TPPs and patients will have incurred economic injury in a civil litigation suit, such a limitation is the only way to ensure compliance with the second Holmes principle and sufficiently assert proximate cause.[116] 

  1. How Opioid Epidemic Plaintiffs Can Meet the Direct-Injury Requirement

In civil opioid epidemic litigation, patients are directly injured parties because they incur financial and personal injury when they suffer harmful effects from using dangerous drugs.[117]  Patients suffer financial injury in paying out-of-pocket for expensive, harmful drugs that often lead to complications and further health problems, including addiction and drug misuse.  TPPs are directly injured parties that incur financial loss when they are targeted to add drugs to their formularies at preferred rates.[118]  For the preceding reasons, TPPs and patients are the most directly injured parties of pharmaceutical companies’ fraudulent schemes to market and promote harmful drugs; thus, they are the best suited plaintiffs to bring suits against pharmaceutical companies.  As such, both patients and TPPs would meet this third and final requirement in any future civil litigation related to the opioid epidemic.

C. Policy Considerations

Policy considerations further drive the argument in favor of allowing pharmaceutical companies’ fraudulent misrepresentations to sufficiently constitute proximate cause for patients and TPPs in civil RICO claims.  For one, if courts hold that the causal chain is too attenuated to constitute proximate cause for TPPs and patients—like the Second and Seventh Circuits do—the implications would effectively allow pharmaceutical companies to avoid liability for their fraudulent marketing schemes.[119]  In this way, pharmaceutical companies would be shielded from liability and permitted to hide behind the physicians who prescribed their drugs.[120]

For example, in the context of the opioid epidemic, such a holding would allow pharmaceutical companies to go unpunished for encouraging physicians to prescribe opioids at dangerous doses and rates.  While arguably physicians should still be held liable for their own roles in the opioid epidemic, by not extending this same liability to pharmaceutical companies there would be no deterrence to stop pharmaceutical companies from engaging in these fraudulent schemes too.  As such, pharmaceutical companies are likely to continue utilizing these harmful and fraudulent methods and will undoubtedly continue to use physicians as a proxy for engaging in such methods in the future if such actions are not met with liability.

Fraudulent misrepresentations should also be held to constitute proximate cause in civil RICO claims to allow plaintiffs to recover for their injuries.  Patients and TPPs routinely incur economic injury in paying for expensive drugs.[121]  Patients often incur additional financial harm when forced to sustain their habits.[122]  For example, following the onset of addiction, patients must often pay to continue to use prescription opioids, or when prescription opioids are unavailable, they must pay for other drugs, such as heroin and cocaine.[123]  When the financial harm stems from the patients’ continued use of prescription opioids, TPPs are also financially affected.[124]  Since addiction to these drugs results in the need for continued use, permitting such recovery would allow patients and TPPs to obtain some compensation for the harms wrongfully inflicted upon them.[125]  Therefore, pharmaceutical companies should not be allowed to cause such extreme harm and avoid responsibility,[126] especially when the societal harm caused by these misrepresentations far outweighs the corporate gains.  Thus, for society to fully recover, adequate recovery must be allowed.

Ensuring liability would also allow trust to be restored in the medical system. Patients need to feel comfortable seeking care from their physicians.  For this to occur, patients and other medical consumers must maintain a certain level of trust in the field of science and medicine.  Patients need to feel that their physicians are prescribing them medications for their own betterment, not for the personal gain or profit of the prescribing physician.  Thus, if pharmaceutical schemes, aimed to profit to the detriment of patients and TPPs, are ensured to be met with litigation, then pharmaceutical companies’ wrongful conduct will be deterred while increasing societal trust in the medical system.

Pharmaceutical executives must be held accountable before progress can be efficiently made.  Allowing plaintiffs to satisfy the requirements of proximate cause in civil RICO claims will allow the largest societal benefit.  Therefore, this position should be upheld in future civil litigation surrounding the opioid epidemic.

V. Recommendation

While pharmaceutical companies misrepresenting drugs to consumers and insurers to increase profits is certainly not a new occurrence, the opioid epidemic has arguably been the most widespread incidence of such an event.  Because the opioid epidemic can affect anyone and everyone, the opioid epidemic is arguably one of the most transcendent public health issues that the United States has ever encountered.  For this reason, the Supreme Court should grant certiorari on the issue of whether a fraudulent misrepresentation can constitute proximate cause in a civil RICO claim, especially regarding recovery for cases dealing with the opioid epidemic and the addictive tendencies of opioids.

The Supreme Court should grant certiorari on this issue because it is crucial for a uniform approach to be created and adhered to in the United States.  If the Supreme Court denies certiorari and allows this issue to remain with the various circuits, then pharmaceutical companies could continue to avoid liability.  Without a uniform approach, pharmaceutical companies can continue to bypass responsibility, establishing their companies in circuits that do not regard fraudulent misrepresentations as a sufficient means of causation in civil RICO claims.  Thus, by failing to grant certiorari on this issue, the Supreme Court would be allowing pharmaceutical companies, and their executives, to avoid prosecution for their wrongful acts by allowing them the opportunity to reside in circuits with favorable precedent.  Since the opioid epidemic affects every state on a national level, this sort of piecemeal approach across the circuits is not a suitable option; instead, the only way to truly curb these immense harms is with a uniform, national standard guaranteed to be consistently applied.

Should the Supreme Court grant certiorari to hear this issue of fraudulent misrepresentation as sufficient for proximate cause, the Court should follow the approach taken by the First, Third, and Ninth Circuits.  Victims of the opioid epidemic have suffered.  Not only have patients suffered physical injury, dealing with increased risk of disease or a newfound lifelong addiction, but patients have incurred financial injury in paying for drugs that not only did not ease their existing medical ailments, but also created new conditions that have further exacerbated their financial situations.  States and local communities have also suffered economic injury.  These communities have seen spikes in crime rates as consumers seek to maintain their habits and incur increased costs stemming from the need to provide treatment for their constituents.  As such, if the Court grants certiorari on the issue, not only should it hold that fraudulent misrepresentations are enough to assert proximate cause, but it should also hold that patients, TPPs, state governments, and municipal communities are all victims of such misrepresentations, and thus, are entitled to recovery.

The Supreme Court should also hold that fraudulent misrepresentations should be sufficient allegations of proximate cause because of the effect that such a holding would have on the legal system moving forward.  Allowing pharmaceutical companies to fraudulently misrepresent drugs at the peril of consumers and TPPs effectively contributes to the overburdening of the legal system.  With fewer persons addicted to drugs that often lead to addiction of more potent drugs, such as heroin and cocaine, the crime rates in local communities would arguably decrease.  With fewer crimes being committed by addicts attempting to maintain their habits, heavily impacted communities and the legal system would become less strained.  As such, the deterrence of fraudulent misrepresentations of a harmful drug’s side effects, especially opioids, would have immense societal benefit.  Thus, not only should the Court grant certiorari on this issue, but it should also hold that fraudulent misrepresentations of the addictive qualities of opioids are sufficient to allege proximate cause in civil RICO claims.


The opioid epidemic has recently subjected pharmaceutical companies to increased scrutiny, which will likely result in an uproar of future opioid epidemic litigation.  Should this litigation arise, the Supreme Court should grant certiorari on the issue of whether fraudulent misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for civil RICO claims.  Due to the policy considerations and societal implications the opioid epidemic has created, the Supreme Court should hold—as the First, Third, and Ninth Circuits have held—that misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for a civil RICO claim.

Shannon Porterfield[127]*

       [1].   Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse (Mar. 11, 2021), https://www.drugabuse.gov/drug-topics/opioids/opioid-overdose-crisis.

      [2].   See Edgar Aliferov, Note, The Role of Direct-Injury Government-Entity Lawsuits in the Opioid Litigation, 87 Fordham L. Rev. 1141, 1142 (2018).

      [3].   See 18 U.S.C. §§ 1961–1968.

      [4].   See infra Part III.

      [5].   Societal costs soared in recent years, rising from roughly $55.7 billion in 2011 to $78.5 billion in 2016. Aliferov, supra note 2, at 1144; see also Nat’l Inst. on Drug Abuse, supra note 1.

      [6].   See Nat’l Inst. on Drug Abuse, supra note 1.

      [7].   Aaron Kessler et al., The More Opioids Doctors Prescribe, the More Money They Make, CNN (Mar. 12, 2018, 8:45 AM), https://www.cnn.com/2018/03/11/health/prescription-opioid-payments-eprise/index.html.

      [8].   Id.  Hosting such events is not illegal until and unless physicians receive kickbacks in exchange for prescribing the drugs.  Id.  A kickback is any form of payment provided in exchange for an action or transaction that is usually illegal or improper.  See What Is Kickback?, The Law Dictionary, https://thelawdictionary.org/kickback/#:~:text=Black’s%20Law%20Dictionary)-,What%20is%20KICKBACK%3F,job%2C%20contract%2C%20or%20order (last visited Aug. 24, 2021) (defining kickback as “a bribe for routing a job, contract, or order.”).

      [9].   Kessler et al., supra note 7.

     [10].   Id.

      [11].   Nat’l Inst. on Drug Abuse, supra note 1.

     [12].   Id.

     [13].   Id.

     [14].   Understanding the Epidemic, Ctrs. For Disease Control & Prevention, https://www.cdc.gov/drugoverdose/epidemic/index.html (last visited Aug. 24, 2021).

     [15].   Eugene McCarthy, A Call to Prosecute Drug Company Fraud as Organized Crime, 69 Syracuse L. Rev. 439, 442 (2019).

     [16].   Id.

     [17].   Id. at 478 (quoting Stephanie M. Greene, After Caronia: First Amendment Concerns in Off-Label Promotion, 51 San Diego L. Rev. 645, 648 (2014) (internal citation omitted)).

     [18].   McCarthy, supra note 15, at 478.

      [19].    Id. (brackets in original source) (quoting Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 222 (2009)).

     [20].   Id. (quoting Zee, supra note 19, at 222).

     [21].   Richard Ausness, The Current State of Opioid Litigation, 70 S.C. L. Rev. 565, 586 (2019) (quoting Complaint and Demand for Jury Trial at 135, City of Lansing v. Purdue Pharma L.P., No. 1:17-CV-01114 (W.D. Mich. Dec. 19, 2017)).

     [22].   See Aliferov, supra note 2, at 1152–53, 1155.

     [23].   Id. at 1144.

     [24].   Id. at 1152.

     [25].   Id.

     [26].   Id. at 1153–54 (noting that Cardinal Health was sued for its failure to monitor suspicious orders for opioids, which West Virginia argued “facilitated the operation of pill mills throughout the state”).  Cardinal Health agreed to pay $20 million of the $36 million settlement.  Id. at 1154 n.94.

     [27].   See, e.g., id. at 1156–57 (“When initiated by a party other than the government, a direct-injury claim is simple: a plaintiff’s personal interests (e.g., health or property) have been injured by a third party and the plaintiff seeks to recover damages flowing from that injury.”).

     [28].   Id. at 1156.

     [29].   See generally id. at 1160 (noting that “plaintiffs employ either a tort-based theory or equitable theory to complete the direct-injury claim” and subsequently referencing the various tort theories, including RICO).  While RICO was enacted primarily to combat organized crime, its use in other contexts—including the opioid epidemic—has grown substantially, particularly because of its ability to “prosecute an entire criminal enterprise and its constituent members at once.”  McCarthy, supra note 15, at 471, 441.

     [30].   18 U.S.C. § 1962(c).

     [31].   In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *2 (N.D. Ohio Sept. 10, 2019) (quoting Boyle v. United States, 556 U.S. 938, 946 (2009)).

     [32].   Id. at *3; see also 18 U.S.C. § 1962(c) (stating that defendants must participate “directly or indirectly”).

     [33].   In re Nat’l Prescription Opiate Litig., 2019 WL 4279233, at *2 (quoting Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993)).

      [34].  David Farve et al., Racketeer Influenced and Corrupt Organizations, 57 Am. Crim. L. Rev. 1191, 1195, 1197 (2020) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–57 (1994)). 

     [35].   Id. at 1197.  Such acts could include murder, robbery, bribery, extortion, or federal offenses involving bankruptcy or securities fraud.  Id. at 1195–96.  In the criminal context, the required acts that amount to racketeering activity can also include “mail fraud, wire fraud, insurance fraud, false claims, and honest services fraud.”  McCarthy, supra note 15, at 465.

     [36].   Farve et al., supra note 34, at 1197–98.

     [37].   Id. at 1207.

     [38].   McCarthy, supra note 15, at 466.

     [39].   Farve et al., supra note 34, at 1194.

     [40].   McCarthy, supra note 15, at 476.  In the pharmaceutical context, “[pharmaceutical] [e]xecutives, sales representatives, doctors, lawyers, and politicians” often make up such enterprises.  Id.

     [41].   See, e.g., In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *3 (N.D. Ohio Sept. 10, 2019) (holding that the plaintiffs “produced sufficient evidence for a reasonable jury to conclude that all [d]efendants . . . associated together for the common purpose of expanding the prescription opioid market,” thereby forming a RICO enterprise).

     [42].   McCarthy, supra note 15, at 477–78.

     [43].   18 U.S.C. § 1964(c); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1248 (9th Cir. 2019).

     [44].   18 U.S.C. § 1964(c); Painters, 943 F.3d at 1248.

     [45].   Painters, 943 F.3d at 1248 (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992)).

     [46].   Ausness, supra note 21, at 595 (asking “whether the injury would have occurred in the absence of the defendant’s conduct”).

     [47].   Id. at 599.  In Ashley County v. Pfizer, Inc., drug companies selling over-the-counter cold medicines used to produce methamphetamine were said not to have proximately caused the counties’ increased costs even though they knew the medicine would be used to make methamphetamine.  552 F.3d 659, 662–73 (8th Cir. 2009).  The court held that the act of selling cold medicine was “totally independent” from the defendant’s production of methamphetamine.  Id. at 670; see also Ausness, supra note 21, at 599–600 (discussing the Ashley County opinion).

     [48].   Holmes, 503 U.S. at 268.

     [49].   503 U.S. 258.

     [50].   See id. at 269.

     [51].   Id. at 269–70 (citations omitted).

     [52].   Id. at 269.

     [53].   In re Avandia Mktg., Sales, Pracs. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d. Cir. 2015); see also Sidney Hillman Health Ctr. of Rochester v. Abbott Labs, 873 F.3d 574, 577 (7th Cir. 2017).  In Sidney Hillman, the plaintiffs’ claim was too speculative to meet the first Holmes requirement.  873 F.3d at 577.   The court held that it was too difficult for the court to determine whether TPPs would have incurred costs from paying for another medication or whether physicians would have prescribed the drug for off-label uses without solicitation; thus, there was too much speculation for the damages to be readily apparent.  Id.

     [54].   Holmes, 503 U.S. at 269.

     [55].   In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 37 (1st Cir. 2013); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms., 943 F.3d 1243, 1251 (9th Cir. 2019).

     [56].   In re Neurontin, 712 F.3d at 38.

     [57].   Farve et al., supra note 34, at 1235.

     [58].   553 U.S. 639 (2008).

     [59].   Id. at 649 (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 476 (2006) (“Because an individual can commit an indictable act of mail or wire fraud even if no on relies on his fraud, he can engage in a pattern of racketeering activity . . . without proof of reliance.”)). 

     [60].   See id. at 656.  The RICO statute “provides no basis for imposing a first-party reliance requirement.”  Id. at 660.

     [61].   Id. at 658.

     [62].   Gabrielle Emanuel, Opioid Executive John Kapoor Found Guilty in Landmark Bribery Case, NPR (May 2, 2019, 2:37 PM), https://www.npr.org/2019/05/02/711346081/opioid-executive-john-kapoor-found-guilty-inlandmark-bribery-case; see also First Superseding Indictment at 7–8, United States v. Michael Babich, Crim. No. 16cr10343ADB (D. Mass. Oct. 24, 2017), https://www.justice.gov/usao-ma/page/file/1010246/download.

     [63].   First Superseding Indictment, supra note 62 at 16.

     [64].   Id. at 25–26.  This was especially dangerous due to the potency of the fentanyl-spray; if the fentanyl-spray was prescribed at the same dosage as other fentanyl-based products on the market, then the patient could risk a fatal overdose.  Id. at 10.

     [65].   Id. at 16–17.

     [66].   Id. at 32–33.

     [67].   See Emmanuel, supra note 62; see also Hannah Kuchler et al., Insys Executives Are Sentenced to Prison Time, Putting Opioid Makers on Notice, PBS (Jan. 23, 2020), https://www.pbs.org/wgbh/frontline/article/opioid-maker-insys-executives-sentenced-prison-subsys/.

     [68].   See Emmanuel, supra note 62.

     [69].   See infra Part III.A–B.

     [70].   See infra Part III.A–B.

     [71].   See Sergeants Benevolent Assoc. Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 137 S. Ct. 140 (2016).

     [72].   943 F.3d 1243 (9th Cir. 2019).

     [73].   Id. at 1252–53.

     [74].   Id. at 1246 (alleging that defendants misrepresented the risk of bladder cancer to increase sales of Actos).

     [75].   Id. at 1247, 1251.

     [76].   Id. at 1251.

     [77].   Id. at 1252 (reasoning that “all patients and TPPs who paid for Actos on the premise that it did not cause an increased risk of bladder cancer were allegedly defrauded by Defendants and suffered the same direct, economic injury: payments for a drug which would not have been purchased if suitably described”).

     [78].   Id. at 1257.

     [79].   Id.

     [80].   See generally In re Epogen & Aranesp Off-Label Mktg. & Sales Pracs. Litig., No. MDL 08-1934 PSG, 2009 WL 1703285 (Cal. June 17, 2009) (detailing the contrary holding).

     [81].   See In re Epogen, 2009 WL 1703285, at *7–8.

     [82].   See Painters, 943 F.3d at 1257–59 (discussing the benefits of deterring wrongful conduct and allowing economic recovery for victims).

     [83].   712 F.3d 21 (1st Cir. 2013).

     [84].   Id. at 25–26.

     [85].   Id. at 28.

     [86].   Id. at 30.

     [87].   Id. at 37–38.

     [88].   804 F.3d 633 (3d Cir. 2015).

     [89].   Id. at 635.

     [90].   Id.

     [91].   Id. at 635–36.

     [92].   Id. at 645.

     [93].   Id.

     [94].   Id.

     [95].   873 F.3d 574 (7th Cir. 2017).

     [96].   Id. at 575.  While physicians can prescribe medications to their patients to treat off-label conditions, drug manufacturers are prohibited from promoting drugs for such purposes.  Id.

     [97].   Id. at 577; see also Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269 (1992).

     [98].   Sidney Hillman, 873 F.3d at 578.

     [99].   620 F.3d 121 (2d Cir. 2010).

   [100].   Id. at 133–34.

   [101].   Id. at 134.

   [102].   See supra Part III.A.  Sidney Hillman and UFCW deal with fraudulent promotions of “off-label” uses and pricing decisions rather than a fraudulent failure to warn of a drug’s known risk of harmful side effects.  See supra Part III.B.

   [103].   See First Superseding Indictment, supra note 62, at 7–8.

   [104].   See id. at 26–27; see also Kuchler et al., supra note 67; Emanuel, supra note 62; In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 635 (3d Cir. 2015).

   [105].   See First Superseding Indictment, supra note 62, at 7–8, 26–27; In re Avandia, 804 F.3d at 635.

   [106].   See Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1246 (9th Cir. 2019).

   [107].   See First Superseding Indictment, supra note 62, at 17–18, 20 (quoting Burlakoff telling a sales representative “[t]hey do not need to be good speakers, they need to write a lot of . . . [prescriptions for the Fentanyl-Spray]”); In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 28 (1st Cir. 2013).

   [108].   See In re Neurontin, 712 F.3d at 40; Emanuel, supra note 62; see also First Superseding Indictment, supra note 62, at 32–33 (misleading insurers as to their employment, patient diagnoses, and past medications used).

   [109].   In re Neurontin, 712 F.3d at 40; First Superseding Indictment, supra note 62, at 20–22, 27, 30–31.

   [110].   See supra Part III.A.

   [111].   See In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d Cir. 2015).

   [112].   See supra notes 52–53 and accompanying text.

   [113].   In re Avandia, 804 F.3d at 644.

   [114].   See Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269–70 (1992); see also supra notes 54–55 and accompanying text.

   [115].   Painters, 943 F.3d at 1251–52; see also In re Neurontin, 712 F.3d at 37.

   [116].   In re Avandia, 804 F.3d at 645–46; Painters, 943 F.3d at 1251–52.

   [117].   See, e.g., Painters, 943 F.3d at 1251–52.  It does not matter if some plaintiffs incurred extra or less harm from taking a drug that has harmful benefits; all patients are held to suffer the same direct economic injury.  Id.

   [118].   In In re Avandia, the court noted that TPPs are held to “suffer[] direct economic harm when, as a result of [a pharmaceutical company’s] alleged misrepresentations, they pa[y] supracompetitive prices for [brand drugs] instead of purchasing lower-priced generic [drugs].”  In re Avandia, 804 F.3d at 639–40 (citing In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531 (3d Cir. 2004)).

   [119].   Painters, 943 F.3d at 1257.

   [120].   Id.

   [121].   See, e.g., id. at 1252 (discussing how patients and TPPs suffered economic injury paying for the drug Actos, which they would not have purchased if not for the fraudulent misrepresentation).

   [122].   See generally Nat’l Inst. on Drug Abuse, supra note 1 (discussing the “total ‘economic burden’ of prescription opioid misuse . . . including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement”).

   [123].   See id. (stating that roughly five percent of those who developed an opioid addiction transitioned to heroin and roughly eighty percent of those who use heroin misused opioids before using heroin).

   [124].   See, e.g., In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 38–39 (1st Cir. 2013) (showing that TPPs incur injury from paying for additional prescriptions due to fraudulent marketing schemes).

   [125].   Id.

   [126].   Id. at 38–39.

       *.   J.D. Candidate 2022, Wake Forest University School of Law.  Shannon would like to thank the Wake Forest Law Review Board and Staff for their hard work and time on this Comment.  She would also like to thank her family and friends for their unyielding support and encouragement.

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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), https://www.mwl-law.com/wp-content/uploads/2018/02/COMPARATIVE-FAULT-SYSTEMS-CHART.pdf.

     [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), https://www.sfcityclinic.org/diseases/genital-herpes.

   [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.