Doherty v. Merck & Co.

• Decision Date: 26 January 2017
• Docket Number: Docket: Fed–16–14
• Citation: 154 A.3d 1202
• Parties: Kayla DOHERTY v. MERCK & CO., INC., et al.
• Court: Maine Supreme Court

154 A.3d 1202

Kayla DOHERTY

v.MERCK & CO., INC., et al.

Docket: Fed–16–14

Supreme Judicial Court of Maine.

Argued: September 8, 2016

Decided: January 26, 2017

Laura H. White, Esq. (orally), Bergen & Parkinson, LLC, Kennebunk, for appellant Kayla Doherty

Paul McDonald, Esq., (orally), and Daniel J. Mitchell, Bernstein Shur, Portland, and Thomas J. Yoo, Esq., Reed Smith LLP, Los Angeles, California, for appellee Merck & Co., Inc.

Thomas E. Delahanty II, United States Attorney, and Andrew K. Lizotte, Asst. U.S. Atty. (orally), Office of the United States Attorney, Portland, for appellee United States of America

Janet T. Mills, Attorney General, and Susan P. Herman, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN,^* JABAR, and HUMPHREY, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

Concurrence: SAUFLEY, C.J., and ALEXANDER and GORMAN, JJ.

MEAD, J.

[¶1] After Kayla Doherty gave birth to a healthy son in June 2014, she filed a complaint against Merck & Co., Inc., and the United States in the United States District Court for the District of Maine, alleging that in February 2012, at a community health center for which the United States was responsible, a physician negligently failed, as a result of Merck's defective applicator, to insert into her arm an implant manufactured by Merck that was designed to prevent pregnancy for at least three years. Pursuant to 4 M.R.S. § 57 (2016) and M.R. App. P. 25, the federal court (Hornby, J. ) has certified three questions of state law to us:

1. Does the protection of Maine's Wrongful Birth statute, 24 M.R.S.A. § 2931, extend to the defendant Merck & Co., Inc., as a drug manufacturer and distributor?

2. If not, does the Law Court's decision in Macomber v. Dillman , 505 A.2d 810 (Me. 1986), which concerned a failed sterilization by a health care provider, apply to the plaintiff Kayla Doherty's claim against Merck as a drug manufacturer and distributor?

3. Does Maine's Wrongful Birth statute prohibit all recovery for Doherty against both defendants (Merck if it is covered by the statute, see question one, supra ) because of the nature of the procedure she underwent? Or does the statute allow Doherty to proceed with her claims but limit the recoverable damages to her expenses incurred for the procedure and pregnancy, pain and suffering connected with the pregnancy, and loss of earnings during pregnancy?

[¶2] We answer the first question in the affirmative. Accordingly, we decline to answer the second question. In answer to the third question, pursuant to 24 M.R.S. § 2931 (2016) Doherty may not recover any damages on her claims against either defendant.

I. BACKGROUND

[¶3] The United States District Court denied without prejudice the defendants' motion to dismiss Doherty's complaint. The court stated in its certification to us that "the following factual allegations are properly pleaded. The plaintiff's factual allegations are therefore taken as true for the purpose of testing the defendants' argument that Maine law allows no recovery to the plaintiff even if her allegations are proven." See Miller v. Town of Wenham , 833 F.3d 46, 51 (1st Cir. 2016) (stating that in reviewing the dismissal of a claim pursuant to Fed. R. Civ. P. 12(b)(6), the federal courts "accept as true all well-pled facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor" (alteration and quotation marks omitted)).

[¶4] Doherty's complaint alleges that on January 26, 2012, she visited a federally-supported health care center in Albion to inquire about birth control options. She saw a physician, who recommended the use of an implantable drug manufactured by Merck consisting of a single, four-centimeter-long rod inserted under the skin of the inner side of the patient's upper arm with a syringe-like applicator. The drug, which is designed to be effective for at least three years unless the rod is removed sooner by a physician, works by inhibiting ovulation. Merck knew, or should have known, that the applicator had a history of failed insertion attempts occurring when, unbeknownst to the treating physician, the rod would remain stuck in the applicator following the procedure.

[¶5] On February 28, 2012, the physician who recommended the drug to Doherty carried out the implantation procedure, but failed to check her arm to see if it was successful. A pregnancy test at the health care center on October 16, 2013, confirmed that Doherty was pregnant. An examination and subsequent ultrasound examination failed to locate the rod in either of Doherty's arms. A nurse later told Doherty that the physician "believes it was never inserted."

[¶6] On June 9, 2014, Doherty gave birth to a healthy boy following a long and painful delivery. In connection with her pregnancy, Doherty suffered nausea, mental and physical pain and suffering, insomnia, swelling, and weight gain. She also incurred expenses, and she lost wages as a result of missing work for medical appointments. Following the birth of her son, Doherty received mental health counseling and suffered emotional distress as a result of being unprepared to raise a child as a single mother.

[¶7] Doherty filed suit against Merck on theories of strict product liability, breach of warranty, negligence, and negligent misrepresentation; and against the United States for the negligence of the physician, and for the physician's failure to obtain her informed consent. The complaint also asked the federal court to declare that 24 M.R.S. § 2931 is unconstitutional, both facially and as applied. Merck and the United States moved to dismiss the complaint on the grounds that (1) pursuant to 24 M.R.S. § 2931(1), the birth of a healthy child is not a "legally recognizable injury" for which Doherty may recover damages; and (2) pursuant to 24 M.R.S. § 2931(2), Doherty did not undergo a "failed sterilization procedure" that would invoke the statute's exception and allow her to recover limited damages. The court denied the motions pending our answers to the three certified questions.

II. DISCUSSION

A. Acceptance of the Certified Questions

[¶8] A threshold issue is whether we will agree to consider the certified questions. See Bankr. Estate of Everest v. Bank of Am., N.A. , 2015 ME 19, ¶ 13, 111 A.3d 655 ("Title 4 M.R.S. § 57 authorizes, but does not require, us to consider a certified question of state law posed by a federal court in certain circumstances." (quotation marks omitted)). In resolving that issue,

[w]e may consider the merits of a certified question from the United States District Court and, in our discretion, provide an answer if (1) there is no dispute as to the material facts at issue; (2) there is no clear controlling precedent; and (3) our answer, in at least one alternative, would be determinative of the case.

We have stated that wherever reasonably possible, the state court of last resort should be given [the] opportunity to decide state law issues on which there are no state precedents which are controlling or clearly indicative of the developmental course of the state law because this approach (1) tends to avoid the uncertainty and inconsistency in the exposition of state law caused when federal courts render decisions of state law which have an interim effectiveness until the issues are finally settled by the state court of last resort; and (2) minimizes the potential for state-federal tensions arising from actual, or fancied, federal court efforts to influence the development of state law.

Id. ¶¶ 13–14, 111 A.3d 655 (alterations, citation, and quotation marks omitted).

[¶9] Here there is no dispute as to the facts to be accepted as true at this stage of the case; no clear controlling precedent that would answer the questions; and one alternative that would be determinative of the case, in that the federal court stated in its certification that "a decision by the Law Court that no recovery is available to the plaintiff under Maine law even if all her factual allegations are true ... would be determinative of the cause and would end the lawsuit now." Therefore, we agree to consider the certified questions.

B. Scope of 24 M.R.S. § 2931

[¶10] Maine's "wrongful birth" statute provides, in part:

§ 2931. Wrongful birth; wrongful life

1. Intent. It is the intent of the Legislature that the birth of a normal, healthy child does not constitute a legally recognizable injury and that it is contrary to public policy to award damages for the birth or rearing of a healthy child.

2. Birth of healthy child; claim for damages prohibited . No person may maintain a claim for relief or receive an award for damages based on the claim that the birth and rearing of a healthy child resulted in damages to him. A person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive an award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering connected with the pregnancy and the loss of earnings by the mother during pregnancy.

....

24 M.R.S. § 2931(1)–(2).

[¶11] The first certified question asks whether section 2931 applies to Merck. We have often said that "[i]n interpreting a statute, we seek to effectuate the intent of the Legislature, which is ordinarily gleaned from the plain language of the statute. We will not look beyond the plain language of the statute if it is unambiguous." State v. Knight , 2016 ME 123, ¶ 9, 145 A.3d 1046. (citation and quotation marks omitted).

[¶12] Section 2931 is not at all ambiguous in that it bars a specific legal claim regardless of the party that the claim is brought against: "No person may maintain a claim for relief or receive an award for damages based on the claim that the birth and rearing of a healthy child resulted in damages to him." 24 M.R.S. § 2931(2). Consistent with the Legislature's...