Latin phrases are not currently in vogue within the context of proper English
communication (written or spoken), court opinions continue using archaic terms
as if they were part of the lexicon of the day. There is a growing body of
literature telling us that communication errors are at the center of avoidable
patient harm.1 Most "younger pharmacists" pick up on the idioms we
use to fill prescriptions either in a pharmacy terminology class in school or
through on-the-job learning sessions. A small segment of "older pharmacists"
2 took classes in Latin while in high school or as undergraduates in
college. At one time or another, students who expressed interest in health
care were instructed to take at least two years, or preferably, four years of
formal classroom training in the language, based on the premise that many
medical ideas have roots in this language that is no longer spoken.
Irrespective of how or where you learned it, Latin phrases still make it onto
prescriptions that pharmacists are supposed to translate into the 's English,"
or something similar, that patients will hopefully understand. For many of us,
abbreviations such as qid, tid, qd, and os are
shortcuts that we use like a second language with our colleagues.
There are many legal terms
that also rely heavily on Latin words that have been used for centuries to
describe "common law" concepts and doctrines.3 This is
no error or an oddity of history. Practitioners of any vocation in any sector
of the universe have communication shortcuts, abbreviations, and foreign
phrases or languages that are known only to those inside the occupation. In
fact, there is a notion that professionals intentionally use words or phrases
that are unknown to the general populace as a mechanism of keeping lay people
from getting to know too much about any given profession. Remember this the
next time you have maintenance on your automobile when the workman explains
that your PCV valve is not working and you need a complete flush of the
powertrain hoses that serpentine around the rotary parts of your calipers. And
you, a college graduate who is trained in scientific principles, have
absolutely no clue what any of this nonsense means except that it is going to
cost you more money than the oil change you needed.
For similar reasons, there are
some legal vocabulary concepts that pharmacists should be aware of. In pari
delicto is one of the legal doctrines that can have a significant impact
on your ability to practice your chosen profession.4 The
translation is fairly simple. It means equally wrong and is used to
describe the situation when one party to a lawsuit is as much at fault as the
opposing party.5 In a vernacular easier to comprehend, it means
that one cannot go to court and seek redress of a claimed wrong deed when the
accuser has "dirty hands." The phrase is a common-law defense indicating that
a plaintiff's recovery may be barred by his own wrongful conduct. In most
situations, the defendant to a lawsuit will allege that the plaintiff has done
something so bad that the court should not hear the complaints of the
Two prevailing philosophies
are used to justify application of the doctrine. The first is that courts
should not lend their good offices to mediating disputes among wrongdoers. The
second is that denying judicial relief to an admitted wrongdoer is an
effective means of deterring illegality. In its classic formulation, the in
pari delicto defense was narrowly limited to situations where the
plaintiff truly bore, at least substantially, equal responsibility for his
injury, because "in cases where both parties are in delicto,
i.e., concurring in an illegal act, it does not always mean that the parties
stand in pari delicto; there may be, and often are, very different
degrees in their guilt."6 Even such, going back as far as
1985, the federal Supreme Court explained the uses and limitations of the
doctrine.7 Nevertheless, it should be considered as a defense
strategy at appropriate times.
While it is easy to define the
term and make it understandable to the nonlawyers among us, the rub will come
when one asks how dirty the plaintiff's hands must be for a court to
forbid the plaintiff from stating his or her claim. That brings up the case
reviewed this month.
In a nutshell, back
in May 2004, a group of consumers and organizations from Minnesota purchased
prescription drugs in the United States from the defendant drug companies.
They filed federal antitrust claims and also filed for restraint of trade
under state statutes.8 The essence of the complaint was that the
defendants unlawfully conspired to suppress the importation of Canadian
prescription drugs for personal use, alleging that the defendants had "engaged
in a concerted course of conduct designed to prevent brand name prescription
drugs purchased from Canadian pharmacies from entering the United States."
9 As a result of this alleged unlawful conspiracy, the claim was that
the defendants eliminated a legal source of prescription drugs and caused
American consumers to pay higher drug prices and engaged in anticompetitive
conduct, including (1) requiring Canadian pharmacies to certify that they were
not selling prescription drugs to persons whom the pharmacies knew or should
have known were taking the drugs outside the country; (2) monitoring orders of
Canadian pharmacies and limiting their purchases to historical levels; (3)
creating "blacklists" of pharmacies that were suspected of selling drugs to
American consumers and directing wholesalers not to sell to the blacklisted
pharmacies; and (4) cutting off supplies to wholesalers who did not comply
with their policies. The defendants asked the trial court judge to dismiss the
complaint for failure to state a claim.10
As is common in
these types of cases, the matter was sent to a magistrate for recommendations
as to the trial court judge's options under the applicable law. The magistrate
recommended granting the motion to dismiss the federal antitrust claims. The
report concluded that because the importation of Canadian prescription drugs
was prohibited by the federal Food, Drug, and Cosmetic Act (FDCA), the
plaintiffs could not demonstrate that they have an injury "of the kind the
federal antitrust laws were designed to prevent." The trial court judge
accepted the Magistrate's recommendations and dismissed the federal antitrust
and state claims.
Court of Appeals
Unhappy with this
result, the plaintiffs took their claim to the federal Court of Appeals.11
The appellate court noted that the trial court judge concluded that the
plaintiffs lacked standing to pursue their federal antitrust claims because
the allegedly anticompetitive behavior discouraged only unlawful importation
of drugs and not lawful activity that the antitrust laws are designed to
protect. In particular, the trial court found that drugs imported from Canada,
even when imported for personal use, were nevertheless still "misbranded"
under the laws of the U.S., because their labels did not bear the required "Rx
The Court of Appeals also took
notice that the trial court judge's decision to dismiss the federal claims was
premised on its conclusion that federal law prohibits the importation of
prescription drugs from Canada for personal use. The plaintiffs continued to
assert that the common assumption that such importation is unlawful is based
purely on "myth," and that no federal statute actually precludes a citizen
from carrying prescription drugs purchased in Canada into the U.S. But that
assertion must be squared with the FDA, that virtually all importation of
drugs into the U.S. by individual consumers violates the FDCA, because the
drugs are not approved,13 are not labeled as required,14
or are dispensed without a valid prescription.15 Adding to this
state of affairs, the FDA's Office of Compliance has cautioned that "drugs
from foreign countries do not have the same assurance of safety as drugs
actually regulated by the FDA." Furthermore, the trial court judge's decision
expressed the view that "drugs delivered to the American public from foreign
countries may be very different from FDA approved drugs with respect to
formulation, potency, quality, and labeling." As expected, the appellate court
affirmed the ruling issued by the trial court judge.
So what does all
this have to do with the in pari delicto discussion in the beginning of
the column? Here, the plaintiffs wanted to import drugs from Canada to save
money. They went so far as to claim that the drug manufacturers had conspired
with each other to make the ban on importation illegal. The problem was that
the defendant drug manufacturers did not make or try to enforce the laws that
make drug importation from other countries unlawful (even if they did fully
support this application of the law). Instead, it was the government, not the
manufacturers, that enforced the ban. In a juxtaposition of reasoning, this
was application of the in pari delicto doctrine in reverse. The
plaintiffs wanted cheaper drugs from Canada even though they would be labeled
with virtual "dirty hands." Oddly, it was the government that would not let
them engage in activities that would be in violation of the law.
The court concluded that there
was no legally cognizable harm done to these plaintiffs by these defendants
even if, as the complaint alleged, it was true that the drug companies had
conspired to make the import ban illegal. It was the government enforcing its
own policies, as opposed to the defendants trying to enforce a law that they
are joyfully content with. Maybe the plaintiffs selected the wrong defendants.
Maybe they should have also sued the FDA, claiming it conspired with the drug
companies. It is interesting to speculate on the outcome had the litigation
strategy been altered.
Consider application of the
in pari delicto doctrine in a setting that might be more plausible. You
are working in a community pharmacy. A customer presents a few prescriptions
for controlled substances. You verify their legitimacy and dispense the
medication. Over the course of a year or so, you file a significant number of
prescriptions for that patient and for a few other people that asked your
patient to pick up medication for their prescriptions. The list of dispensed
medications begins to grow significantly for these patrons. One day, after
another year or so, you are presented with a lawsuit from that one customer
who claims that the prescriptions you filled (in good faith) were in fact
forged and you should have known they were forged by the quantity of drugs you
dispensed and the frequency of dispensing. The lawsuit also claims that the
patient is now addicted to the very same medications you dispensed.
This would be an opportune
time to defend your action on the grounds of in pari delicto. You can
point out that while your conduct may not have been stellar, the patient
should not be permitted to prosper at your expense, because the patient
engaged in wrongdoing by either doing the forging himself or getting
prescriptions from physicians on false pretenses. Believe it or not, there is
precedence that this approach to defending yourself just might work.16
www.cerner.com/public/Cerner_3.asp?id=27431 as examples of communicative
2. By older, I mean
anyone over the age of 60. By utilizing this arbitrary number, I successfully
remain in the category of "younger pharmacists."
3. As used here,
"common law" refers to "judge-made" rulings as opposed to legislative statues.
4. The full phrase is "
in pari delicto potior est conditio defendentis": "In a case of equal or
mutual fault … the position of the [defending] party… is the better one."
Bateman Eichler, Hill Richards, Inc. V. Berner, 472 U.S. 299 (1985).
www.insidejustice.com/resources/glossary.php. Accessed December 20, 2006.
6. See Bateman Eichler,
472 U.S. 299, at 307, note 3, supra. See also. J. Story, Equity
Jurisprudence 304-305 (13th ed. 1886) In more concrete terms, the Court
stated: "Thus there might be an "inequality of condition" between the parties,
id., at 305, or "a confidential relationship between them" that determined
their "relative standing" before a court. In addition, the public policy
considerations that undergirded the in pari delicto defense were
frequently construed as precluding the defense even where the plaintiff bore
substantial fault for his injury: "[T]here may be on the part of the court
itself a necessity of supporting the public interests or public policy in many
cases, however reprehensible the acts of the parties may be."1 Story 305.
Notwithstanding these traditional limitations, many courts have given the
in pari delicto defense a broad application to bar actions where
plaintiffs simply have been involved generally in "the same sort of
wrongdoing" as defendants. Perma Life Mufflers, Inc. v. International
Parts Corp., 392 U.S., at 138.
7. See Bateman Eichler,
note 4 supra.
8. § 4 of the Clayton
Act, 15 U.S.C. § 15, for damages caused by alleged violations of § 1 of the
Sherman Antitrust Act, 15 U.S.C. § 1, and pursuant to § 16 of the Clayton Act,
15 U.S.C. § 26, seeking injunctive relief.
9. In Re: Canadian Imp.
Antitrust Litigation, Slip Op No. 5-3873 (November 30, 2006), 2006 US App
10. See Fed. R. Civ. P.
11. Eighth Circuit,
2006 US App Lexis 29394, 2006-2 Trade Cas, CCH P75, 508.
12. For a discussion of
the "Rx" symbol, see Vivian JC. The value of a symbol. US Pharm
. 2005;10:64-65. Posted October 19, 2005 in US Pharmacist:
13. 21 U.S.C. § 355.
14. 21 U.S.C. § 352.
15. 21 U.S.C. §
16. Orzel v Scott
Drug, 537 NW 208 (Mich), 1995.
To comment on this article, contact