Comparative Negligence: How Most States Deal with Cases Where Multiple Parties Cause Tragedy

I recently read an article about a case against Subaru that was scheduled for trial. The West Virginia lawsuit resulted from a fatal wreck on April 2, 2009. A 2002 Ford Explorer crossed the center line and hit a 1999 Subaru Forester head-on. The Subaru went over an embankment and caught fire, trapping the driver, her 16-year-old daughter, and her daughter’s friend inside. All occupants perished in the crash. The lawsuit alleges that the construction of the Subaru contributed to the deaths. Subaru denies any allegations.

A lawsuit was filed against multiple defendants. Plaintiff alleged different causes of action against:

1. the negligent driver,
2. the doctor who wrote several prescriptions for pain medication for that driver,
3. several pharmacies that filled the prescription orders, and
4. Subaru.

All of the claims, except the Subaru claim, have been settled; details have not been disclosed.

In separate criminal actions, the driver of the Explorer pleaded guilty to driving under the influence of prescription painkillers and three counts of DUI causing death. She was sentenced to up to 30 years in prison. The doctor pleaded guilty to aiding and abetting in obtaining controlled substances by misrepresentation, fraud, forgery, and subterfuge. During her plea hearing, the doctor admitted that she wrote a total of nearly 6,000 pills containing oxycodone and a total of more than 220 pills for the painkiller Endocet to the negligent driver during the few years she was a patient. The doctor also admitted to knowing that the patient was abusing the medications. Her medical license has been revoked.

As I studied the facts and circumstances of the case, I learned that an investigation into the doctor did not begin with this incident. According to reports, a federal investigation into the doctor revealed that through her drug prescribing practices, she knowingly and willingly contributed to the deaths of at least eleven people over a period of nearly six years, including the three victims of the fatal crash. The negligent doctor was sentence to two years in prison, four times the maximum recommended by federal guideline which called for a sentence of zero to six months, according to federal prosecutors. This is simple math – a mere two year sentence for 11 deaths equates to about two months per death.

Pill mill doctors prescribe hundreds of pills without medical justification, raking in millions of dollars. The doctor in this case typically charged $160 for a first visit and $80 for each subsequent visit. According to an affidavit, most paid with cash which is typical in such situations. The affidavit also said that a state Osteopathy Board report from September 2007 found general deficiencies in the doctor’s record keeping and treatment processes. Additionally, the Board found that she continued prescribing medication to the patient seven weeks after the crash. In another case, it was found that the doctor continued prescribing pills to a patient who refused a drug screening.

The lawsuit against Subaru is all that remains of this litigation. The lawsuit alleges that negligent construction caused the vehicle to burst into flames. So, in addition to all of the other at fault parties who contributed to this tragedy, was the auto manufacturer negligent, as well? A jury will be impaneled to decide the issue. One interesting feature of this case, similar to the party bus case we discussed in a previous post (dated December 7, 2016) is that, sometimes, multiple defendants commit multiple wrongs that result in terrible, painful consequences. Here, an atrociously (criminally) negligent driver and doctor, and, possibly, a negligent automobile manufacturer combined to cause these tragic results.

While Subaru may not be found the biggest contributor in the fatalities, the auto manufacturer may still be held at least partially accountable if it is determined that a defect in the vehicle caused the fire. My older readers might remember the Ford Pinto exploding gas tank cases as examples of manufacturer negligence resulting in serious injuries and deaths. West Virginia is a comparative negligence state; this, means that a jury is tasked with determining what percentage of negligence each party is responsible for. Subaru may be found partially, even minimally responsible, but not completely blameless. The jury will determine the total damage, how much fault, if any, that Subaru contributed, and an award against Subaru, if found negligent, would be limited to the percentage of the total award that is allocated to the automobile manufacturer. Lawsuit Financial will be watching for the final result.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.