By: Campbell E. Wallace and Everett R. Fineran

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1 By: Campbell E. Wallace and Everett R. Fineran Frilot LLC 1100 Poydras Street, Ste New Orleans, Louisiana (504) Introduction The story begins in a familiar way: an uninsured driver loses control of his vehicle, causing a pile-up of cars and trucks that were trailing behind. The accident is particularly catastrophic for the driver of an 18-wheeler who tried to avoid the collision but lost control, jack-knifed, and flipped his rig. His truck piled into several other cars, keeping many independent adjusters up through the night and ultimately leading to a flurry of litigation. One of the cars squished by the 18-wheeler in the accident was the Mini-Cooper of a young attorney on her way to work. Both the attorney and the driver of the 18-wheeler suffer serious back and neck injuries and hire the same Big Rig attorney who refers them to Dr. Zipper for treatment. Physical therapy offers little or no relief, and the claimants begin taking ever-increasing amounts of painkillers to ease their pain. Although both reach maximum medical improvement after fusion surgeries, they continue to suffer from what they subjectively report as moderate to excruciating pain and take one type of painkiller or another on a daily basis. Dr. Zipper eventually prescribes a maintenance dosage of Oxycontin (a heavy-duty painkiller that is time-released and is taken once or twice a day) and says that the claimants may need to take the medicine indefinitely. By objective clinical standards, both claimants are now physically capable of returning to work but for their dependence on painkillers. They make worker s compensation claims for addiction injury damages and sue your client, the driver of another 18-wheeler involved in the accident, for past and future lost wages caused by their daily use of painkillers. An increasing number of claimants like those in this hypothetical are seeking damages for addiction to painkillers that they started taking to treat injuries sustained in accident with an 18-wheeler.[i] Claimants assert

2 that an inability to work while taking painkillers is a foreseeable result of their accident, while trucking companies and their insurers take the position a claimant s drug dependency was caused by the claimant or his physician, not the trucking accident. Who is right? This article discusses how courts deal with painkiller damages [ii] in bodily injury litigation and strategies for defendants to combat this problem, including such issues as: 1. Can a claimant recover for his dependence on painkillers as a foreseeable consequence of a trucking accident? 2. If so, is the claimant s addiction a separate, independent cause of his ongoing painkiller damages for which he is at fault? 3. Is there potential third-party liability of the claimant s treating physicians for causing the claimant s dependence on painkillers? 4. Does a claimant who refuses to undergo detoxification fail to mitigate his painkiller damages? While trucking companies and their insurers face an uphill battle in defending claims for painkiller damages after an accident, there are ways to challenge them and make the claimant accept responsibility and ownership for his own addiction. Typical Legal Theories on Which Claimants Rely to Support a Claim for Addiction Damages Claimants alleging painkiller damages in trucking accident cases rely on a variety of legal theories to support their claims. Many, for instance, embrace the fundamental legal tenet that, as a defendant, you must take your victim as you find him even the classic eggshell skull plaintiff. Jacob A. Stein, 2 Stein on Personal Injury Damages 11:1 (3d ed. 2012) (noting that the classic thin skull or eggshell skull rule is virtually universally applied today). That is, even the claimant with a strong predisposition towards addictive behavior can recover for addiction to painkillers prescribed to treat bodily injuries caused by the defendant s fault. Stoleson v. United States, 708 F.2d (7th Cir. 1983) (Posner, J.) (holding that the eggshell skull rule applied to a plaintiff s claim that he became a hypochondriac with delusions and unfounded physical illnesses allegedly caused by a workplace accident). The claimant s proclivity towards addiction, so the argument goes, is simply another condition that the defendant must accept just as if the claimant had frail bones or a bleeding disorder. Similarly, claimants who find themselves addicted to painkillers may rely on traditional concepts of causation: but for the defendant s conduct in causing the accident, the claimant would not have needed nor become addicted to painkillers. Assuming that the addiction genuinely began only after the claimant took painkillers to dull the pain from injuries sustained in the accident with the defendant, his causation argument may have merit; a defendant is generally liable for all natural and probable consequences of his tort. See Norton Farms, Inc. v. Anadarko Petroleum Corp., 91 P.3d 1239, 1243 (Kan. Ct. App. 2004) (holding that natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur. ),

3 Finally, claimants may analogize painkiller damages to a tortfeasor s liability for medical malpractice in treating injuries sustained in an accident. So long as the underlying accident and the malpractice bear a causal relationship and are not too attenuated in time, defendants may be liable for any additional injuries to the claimant sustained, as courts have found that malpractice is a foreseeable consequence of the accident. See, e.g., Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331, 334 (La. 1994) ( There is an ease of association between the original injury and the negligent medical treatment which creates joint and several liability between the defendant tortfeasor and those guilty of medical malpractice. ). Under this so-called continuing tort theory of recovery, a trucking defendant may be jointly and severally liable for painkiller damages that were sustained when the claimant s treating physician or pain specialist negligently overprescribed painkillers months or even years after the accident. In summary, our claimants in the hypothetical the 18-wheeler driver and the young lawyer have legal theories that provide avenues to recover substantial painkiller damages from the trucking company defendants. Courts have recognized addiction damages The idea that a defendant could be liable for a claimant becoming hooked on an addictive substance is not novel. Countless lawsuits against tobacco manufacturers brought in the 1990 s culminated in a series of rulings generally recognizing that Big Tobacco may be liable for smoking-related addiction damages proximately caused by their conduct. And some of these courts have expressly held that the addiction itself may be a compensable injury. See, e.g., Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 2003 WL (Ala. 2003) (holding that [a]ddiction to nicotine is a compensable injury, at a minimum, in terms of the costs of supporting an addiction ). Courts have also held that doctors may be liable for the bad faith prescribing of painkillers that gets their patients addicted. See, e.g., Com v. Kobrin, 893 N.E. 2d 384, 391 (Mass. App. Ct. 2008) (holding that a physician may be liable for a patient s drug addiction that was the proximate cause of plaintiff taking prescriptions for drugs not intended to treat the patient s condition in the usual course of practice). One court even went so far as to rule that substance addiction caused by workplace stress may be a compensable injury for purposes of worker s compensation laws. See Parris-Eastlake v. Alaska, 26 P.3d 1099, 1105 (Alaska 2001) (holding addiction injury is compensable under Alaska s worker s compensation law if it proximately caused by stress in the workplace). These addiction damage cases provide the groundwork for claimants to recover painkiller damages related to trucking accidents. Challenging Painkiller Damages Based on Causation As the first line of defense to most claims of painkiller damages, the defense should consider arguing that the underlying tort was not the proximate cause of the painkiller damages. Two theories might break the causal chain in this context: the defendant might argue that (1) the addiction was not and could never be a

4 reasonably foreseeable result of a trucking accident or similar tort or (2) the claimant s post-accident conduct acted as a separate, independent cause that superseded anything the defendant did to the claimant in the accident. Courts in more conservative jurisdictions would perhaps be more receptive to the former theory, which endorses a bright-line limit of how far traditional notions of proximate cause may be stretched. If accepted, then such an argument would establish a precedent that painkiller damages in bodily injury cases are, barring unusual circumstances, not compensable as a matter of law. Painkiller addiction, these courts might reason, is simply too remote and attenuated from the original accident for it to be a reasonably foreseeable result thereof. But the latter theory that the claimant s conduct may serve as an independent cause that cuts off any liability for painkiller damages that might otherwise exist should be more universally appealing because of its application on a case-by-case basis. Thus, even courts who have recognized addiction injury generally say that the claimant s conduct in taking drugs may constitute an independent and superseding cause. See Williams v. White Castle Sys., Inc., 173 S.W.3d 231, 236 (Ky. 2005) (holding that a decedent s act of taking unprescribed medications in addition to painkillers that his doctor gave him acted as an independent, intervening cause of his death from an overdose). For instance, in Parris-Eastlake, where the Court recognized that addiction injury may be compensable for worker s compensation purposes, it went on to hold that the administrative authorities should also consider whether any intervening events or conduct cut off any relationship between work and addiction. Parris-Eastlake, 26 P.3d at The causal chain might be broken, for instance, if the claimant used painkillers negligently or intentionally... in violation of prescriptions or if the addiction resulted from exposure to painkillers to treat disorders unrelated to the workplace. Id. Drug manufacturers, pharmacists and doctors have had success with the wrongful conduct defense to break the causal chain between a claimant s painkiller addiction and a defendant s conduct. In Price v. Purdu Pharma Company, 920 So.2d 479 (Miss. 2006), the claimant abused and became addicted to painkiller. It was undisputed that the claimant in that case doctor-shopped Oxycontin from different doctors and illegally obtained this prescription medication. In affirming summary judgment in favor of the defendants, the Court applied the wrongful conduct rule (also followed in Michigan, Iowa and Kentucky) that requires a defendant to prove that: [Claimant s] injury [was] a proximate result of [him] committing the illegal act. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of [claimant s] case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted. The question is not merely when the wrongdoing was done, but what resulted from it. This Court has long held that if a plaintiff actually requires essential aid from his own illegal act to establish a claim, he has no cause. Id. at 485 (internal quotations and citations omitted.) While this rule bars recovery against drug manufacturers, caregivers and pharmacies when the cause of the claimant s addiction is an illegal act, it could readily be expanded to protect trucking defendants.

5 The circumstances in Price might serve as independent causes in a traditional tort case as well. And they are likely more common than one would think: people who become addicted to painkillers often will overuse them and seek to obtain greater and greater quantities of the drugs either on the street or by pill shopping among numerous doctors. Discovery should, therefore, focus on obtaining prescription and medical records that will demonstrate a pattern of conduct in overusing painkillers that may serve a separate, independent cause that breaks any causal chain to the trucking accident that might otherwise exist. Similarly, defense counsel may uncover evidence that the addiction stemmed from some other condition or injury that pre-dated the accident at issue, another sort of pre-existing condition for which the defendant may not be liable. In sum, trucking companies have a viable causation defense to defeat a claimant s painkiller damages if it can be shown that claimant s conduct was a separate, independent cause of his addiction. Third-Party Liability for Claimant s Addiction Injury If a claimant becomes addicted to painkillers by following doctor s orders, should his treating physicians share liability for addiction injury in wrongly prescribing painkillers? Although the answer will depend on the facts and circumstances of each case, a growing number of courts have held that physicians may be liable for their patients becoming hooked on drugs as a result of negligent or reckless painkiller prescription or medication monitoring practices. See, e.g., Taglieri v. Moss, 842 A.2d 280, 288 (N.J. App. Ct. 2004) (affirming district court s holding that a physician who prescribed excessive amounts of painkillers in willful violation of regulations was liable for patient s addiction); see also 38 Am. Jur. Proof of Facts 589, Physician s Liability for Causing Patient s Drug Addiction (2012). Therefore, a third-party demand against an addicted claimant s prescribing physician should be considered. But counsel representing trucking companies must tread carefully through this terrain, as there are plenty of traps for the unwary. First, the alleged negligence of a physician in a third-party complaint likely requires the same proof as medical malpractice in many jurisdictions and most doctors are inclined to proceed to trial to defend their reputation in a malpractice claim. Second, physicians brought into the fray might forcibly argue to the indirect benefit of the claimant that their medical judgment of the tradeoff between the risk of addiction and the pain-alleviating effects of narcotics should not be second-guessed. [iii] Indeed, doctors who refuse to prescribe pain medicine can find themselves being sued for not properly treating their patient s pain. In Bergman v. Chin, No. H (Cal. Super. Ct. June 13, 2001), for instance, the survivors of a man who died from cancer sued his treating physicians, hospital, and nursing home for failing to adequately treat his pain. The jury awarded $1.5 million, finding that the defendants should have prescribed painkiller more aggressively, particularly considering the medical consensus that pain associated with terminal cancer should be treated without regard to potential addiction. Doctors sued for overprescribing might argue that to avoid a no win situation courts should afford them wide discretion in their judgment of an appropriate pain management regimen.

6 Third, legislatures in dozens of states have stepped in to protect doctors from liability for writing prescriptions. A near-majority of states have now adopted statutes that give physicians immunity from disciplinary action when they prescribe painkillers in accordance with certain rules and regulations. See Sandra Johnson, Legal Issues in the Use of Controlled Substances in Pain Management, 12(1) Med. Ethics (2005). Physicians following such guidelines may rely on them as safeguards that set the standard of care in their respective communities. Instead of pursuing a third-party complaint against a physician and joining him as a party to the litigation, a defendant may want to establish by medical testimony that the claimant s physician erroneously prescribed painkillers to claimant, despite the lack of any objective evidence of pain or medical problems causing pain. Ladner v. Gov t-employees Ins. Co., 992 So.2d 1098 (La. Ct. App. 2008). By this tack, the defendant may defeat claimant s claim of causation without directly taking on the treating physician as an adverse party. Overall, a third-party proceeding against a claimant s physician for addiction injury liability may be an uphill battle in trucking litigation. It should not be ruled out, however, and may be appropriate in cases where there is evidence prescribing in contravention of strict state or federal regulations governing painkiller prescriptions. Claimants Who Abuse Painkillers May Fail to Mitigate Their Damages An injured party has a duty to take reasonable steps to mitigate his damages. However, the burden rests on the tortfeasor to show that the injured claimant failed to mitigate his damages. The defendant must show (1) that the claimant s conduct after the injury was unreasonable and (2) that the unreasonable conduct had the consequence of aggravating the harm. Assouline Ritz LLC v. Edward I. Mills & Associates, Architects, PC, 91 A.D.3d 473, 474 (N.Y. App. Div. 2012); State Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026, 1043 (Cal. 2003). The rule rests on the principle that the community's notions of fair compensation to an injured plaintiff do not include wounds which in a practical sense are self-inflicted. Ellerman Lines, Ltd. v. The Steamship President Harding, 288 F.2d 288, 290 (2d Cir. 1961). Along these lines, a claimant who abuses prescription drugs may fail to mitigate his damages. In Adams v. Chenault, 836 So. 2d 1193, 1197 (La. Ct. App. 2003), for instance, the court found that a claimant who had a pattern of abusing painkillers failed to mitigate her damages and actually made them worse. The court held that, as a general rule, bad faith, fraud, or failure to take [prescription drugs] as directed by a claimant may constitute a failure to mitigate damages that cuts off or reduces the claimant s recovery. Id. Because the claimant in Adams made worse her primary complaint, headaches, by overusing prescription painkillers, the court found her general damages award of $100,000 excessive and reduced it to $45,000. But the converse of the general rule articulated by the Adams court may also be true: the use of painkillers with a valid prescription and taken as directed ordinarily will not constitute a failure to mitigate

7 damages. See Taylor v. Tulane Med. Ctr., 751 So. 2d 949, 954 (La. Ct. App. 1999) ( [T]he use of prescribed medications does not constitute a failure to mitigate in the absence of bad faith, fraud, or a showing that the medication was not taken as directed. ). Thus, claimants who can show that they have adhered to the doctor s orders will likely prevail in arguing that any resultant addiction was not a failure to mitigate their damages. In this regard, the duty to mitigate is almost universally a low threshold to meet, and failure to mitigate is an affirmative defense that defendants must plead and prove. Fair v. Red Lion Inn, 943 P.2d 431, 437 (Colo. 1997). And, the defense will fail unless it can be shown that the claimant acted unreasonably under the circumstances. Id. Even then, as in Adams, proving a failure to mitigate will serve only to reduce the claimant s damages not defeat his claim altogether. When a Claimant Refuses Detoxification What happens when a claimant has reached maximum medical improvement but is left with an addiction to painkillers that outlives the pain associated with his underlying injury? Under these circumstances, the defendants in a lawsuit may argue that the claimant s failure to participate in a detoxification program is the only thing preventing a full recovery and his ability to return to work. Although a court is unlikely to order that a claimant undergo forced detox, the claimant s failure to do so voluntarily may constitute a failure to mitigate damages. See Powers v. Allstate Ins. Co., 102 N.W.2d 393 (Wis. 1960) (holding that there is never a legal requirement that a plaintiff undergo a corrective procedure but that the issue is relevant to the extent of the plaintiff s damages). Courts have considered this issue under such analogous circumstances as when a party refuses to undergo a corrective surgery that could potentially improve his condition. When that happens, courts generally hold plaintiffs to the reasonable person standard: if a reasonable person would undergo the proposed corrective surgery, then the claimant should too and fails to mitigate his damages by refusing to do so. Zimmerman v. Ausland, 266 Or. 427, 432 (Or. 1973) ( [It is] well established that the plaintiff in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including possible surgery, when a reasonable person would do so under the same circumstances. ); Seagers v. Pailet, 656 So.2d 700 (La. Ct. App. 1995) (holding that a plaintiff is under a duty to minimize damages by submitting to reasonable corrective surgery necessary to eliminate any permanent disability ). Whether a claimant is unreasonable in refusing a detoxification program depends on all of the facts and circumstances of the particular case and will ordinarily be an issue for the finder of fact. But courts have articulated several factors that should be considered: the likelihood that the detoxification program will succeed in getting the claimant off painkillers and back to work; the risks to the claimant s health involved in the program; the pain or inconvenience caused by detoxification; and the ability of the claimant to pay for the program. Simmons v. Erie Ins. Exch., 891 N.E.2d 1059, 1067 (Ind. App. 2008).

8 Medical testimony is crucial in this context, and a psychiatric examination of the claimant may show that the claimant can return to work except for painkiller addiction and that the addiction is treatable through a detoxification program. The claimant may argue that the painkillers are required to treat serious pain and that a detoxification program would ultimately fail because the pain would return and require further treatment with painkillers. Particularly when the claimant has no objective symptoms of ongoing physical problems for which painkillers are needed, the veracity of such a claim should be challenged on the grounds that the claimant is malingering to obtain drugs. Malingering is a recognized psychological condition that trained defense psychiatrists can identify through testing. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV-TR) ( The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. ) (emphasis added). Conclusion Claimants, like the 18-wheeler driver and injured lawyer in the hypothetical, likely have a cause of action to recover painkiller damages caused in a trucking accident. However, trucking companies and their insurers have tools to eliminate or lessen these damages, including causation and failure to mitigate defenses, third-party complaints against physicians and use of psychiatrists and pharmacologists to prove the claimant is liable for his own failure to detox and wean himself from painkillers. i. The painkiller addiction problem is not so hypothetical. Recognizing the widespread abuse of painkillers in America, in January 2013 an advisory panel for the Food and Drug Administration voted to toughen restrictions on prescriptions for the common painkiller Vicodin. See Sabrina T. Rnise, F.D.A. Likely to Add Limits on Painkillers, N.Y. Times, Jan. 26, 2013, at A1. While the regulatory process will have to play out on this issue, courts and litigants will continue to grapple with problems related to painkiller addiction in bodiliy injury cases. ii. Painkiller damages refer to all of a claimant s special and general damages that accrue after he has reached maximum medical improvement from a physical standpoint and can return to work after an accident but cannot do so because of his use of painkillers. iii. Some avant-garde legal commentators even argue that painkillers are underprescribed and that there is a Constitutional right to painkiller relief. See Beth Packman Weinman, Freedom from Pain: Establishing a Constitutional Right to Pain Relief, 24 J. Legal Med. 495 (2003).

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