Wrongful death over drug use civil suit dismissed

The judge agreed neither teenager was competent to handle the drug and both were involved in wrongdoing.

STAFF REPORT

NEW CASTLE, Pa. — A judge has dismissed a wrongful death civil suit against a teenager accused of selling oxycodone to a female classmate who later died from taking the drug after prosecutors were unable to prove the pills sold to her were the ones that killed her.

Atty. Keenan Holmes, representing Josh Stewart, 17, of Wallace Avenue in New Castle, had asked Lawrence County Common Pleas Court in August to dismiss the suit brought by Veronica Million Passerrello on behalf of her daughter, Erica Jo Million. Erica Jo was 16 when she died March 4, 2007, in a Pittsburgh hospital five days after taking oxycodone at New Castle High School.

In a juvenile criminal case, Stewart was judged delinquent only on a charge of possession with intent to deliver after witnesses at his March hearing said they saw him sell pills to Erica Jo.

In August, Holmes argued before Common Pleas Judge J. Craig Cox that under state law, the plaintiff is not allowed to profit from her own wrongdoing. Judge Cox recently agreed with that argument, saying that the court can’t impose civil liability on Josh or his stepfather, Alton Henry.

Henry was also named in the suit for “failing to prevent a dangerous narcotic” from coming into Josh’s possession.

“Although Mr. Stewart also participated in illegal conduct, which the Court does not condone in any manner, the prevailing case law dictates that defendants cannot be held civilly liable as Ms. Million’s illegal conduct bars plaintiff’s recovery in the current matter,” Cox wrote in his opinion.

Holmes had also argued that a minor doesn’t “owe a duty” to another minor when providing an intoxicant. Again, Judge Cox agreed. “According to the prevailing case law regarding social host liability, it is illogical to maintain that Mr. Stewart owed Ms. Million a duty when providing her with an illegal substance.”

The judge said that neither Erica Jo nor Josh were competent to handle the oxycodone.

Holmes was unavailable to comment.

Passerrello’s attorney, Edward J. Balzarini Jr., did not return a call to comment.

Passerrello can appeal the decision.