Drugs of choice? Whitney probe, lesser known NJ case raise questions about personal responsibility

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Published February 17, 2012

| FoxNews.com

As authorities eye the potential role of a Beverly Hills pharmacy in Whitney Houston's death, owners of a mom-and-pop drugstore on the other side of the country have learned the hard way how filling prescriptions can bring legal liability.

Months before Houston died after ingesting pills reportedly filled at the Mickey Fine Pharmacy, the far lesser-known Harding Pharmacy & Liquors in Ridgewood, N.J., reached a $1.9 million settlement in December with a man who suffered permanent nerve damage after overdosing on stolen Xanax in 2007. The drugs were given to Scott Simon, now 21, by a former Harding employee at a party, and Simon's lawyers successfully argued the drugstore should have better safeguarded them.

In the wake of Houston's death, some critics have said any blame for her demise rests with her for flaunting a lifestyle of alcohol abuse and pill-popping. Similar debates erupted after the deaths of Michael Jackson -- who reportedly filled hundreds of thousands of dollars' worth of prescriptions at Mickey Fine -- and Anna Nicole Smith, whose fatal overdose some blamed on "enablers." 

Regardless where the Houston investigation leads, experts say that case -- and the more obscure one involving Simon -- raises questions about where a pharmacy's culpability ends and personal responsibility begins.

"[Simon] is being compensated for his own stupidity, but the parties who end up paying the bill are not the parties who are responsible for what happened," said Ted Frank, an adjunct fellow with the Center for Legal Policy at the Manhattan Institute, a New York-based think tank. "They're just the nearest deep pocket."

Simon, who cannot walk or feed himself, was awarded a total of $4.1 million, according to his attorney, John Schepisi. The rest of the settlement will be paid by the family that hosted the party, as well as the pharmacy employee who provided the stolen prescription pills and other guests who waited before driving Simon to the hospital after he fell into a coma.

Frank said he sympathizes with Simon, but said it was not the fault of the pharmacy. He called the case a troubling example of "jackpot justice."

"This is a problem where who is facing the liability aren't the people who are the most culpable, but the people with the deepest pockets," he said. "You're not punishing bad behavior; you're punishing successful behavior."

Schepisi likened the New Jersey case to the way that gun dealers can be blamed for not safeguarding their wares.

"It's the exact same scenario," he said. "The pharmacy did not take the appropriate control. This has got to be a lesson to every pharmacy out there that they are responsible for their acts."

Carmen Catizone, executive director of the National Association of Boards of Pharmacy, told FoxNews.com he worries that blaming pharmacies when people overdose could be "the beginning of a trend." He acknowledged that the pharmacy should be disciplined, but added that it should not negate the "personal responsibility" of people who use drugs illegally.

Darren McKinney, director of communications for the American Tort Reform Association, which monitors America's $246 billion civil justice system, agreed, saying it's "absurd on its face" to hold an entity responsible for the criminal activity of another individual.

"The responsibility for drug addiction and drug overdoses falls to the drug addict and he or she who ran his or her life in such a way that they ending up overdosing," he said. "Whether you're talking about Whitney Houston or [Simon], ultimately the responsibility rests on the shoulders of the drug user."

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