Ashby v. Mortimer
| Decision Date | 05 February 2020 |
| Docket Number | Case No. 4:18-cv-00143-DCN |
| Parties | SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs, v. GERALD MORTIMER, M.D., and OBSTETRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants. |
| Court | U.S. District Court — District of Idaho |
Before the Court is Defendant Gerald Mortimer M.D.'s Motion for Summary Judgment (Dkt. 49); Defendant Obstetrics and Gynecology Associates of Idaho Falls, P.A.'s ("OGA") Motion for Summary Judgment (Dkt. 50); Plaintiffs Sally Ashby and Howard Fowler's ("Plaintiffs") Motion to Amend Complaint to Include Prayer for Punitive Damages (Dkt. 53); Dr. Mortimer's Motion to Strike Declaration of Plaintiffs' Expert (Dkt. 66); and Plaintiffs' Motion for Summary Judgment (Dkt. 72). The Court heard oral argument on the motions on September 23, 2019. For the reasons stated herein, the Court will DENY Dr. Mortimer's Motion for Summary Judgment, GRANT OGA's Motion for Summary Judgment, GRANT Plaintiffs' Motion to Amend, GRANT in part and DENY in part Dr. Mortimer's Motion to Strike, and GRANT Plaintiffs' Motion for Summary Judgment.
Plaintiffs are a formerly married couple who struggled to conceive between 1973 and 1978. In 1978, Plaintiffs contacted an adoption agency to have their names placed on an adoption list. When they were told it could take as long as four years for a child to become available for adoption, Plaintiffs decided adoption would be a backup plan, and sought fertility treatment from Defendant OGA, under the care of Dr. Mortimer, an OB/GYN.
In order to assist the couple, Dr. Mortimer recorded Ashby and Fowler's relevant medical history, performed physical examinations of Ashby, ordered multiple lab tests for Fowler, and ultimately diagnosed Ashby with a tipped uterus and Fowler with a low-sperm count and low-sperm motility. To address such fertility issues, Dr. Mortimer prescribed Clomid and first recommended artificial insemination using Fowler's semen. The couple agreed, and the procedure was performed two to three times a month for six to eight months. As a result of the Clomid, Fowler's sperm motility increased from 30% to 50%, and his sperm count increased from 5 million to 35 million. However, when artificial insemination using Fowler's semen did not result in conception, Dr. Mortimer suggested that the couple undergo a form of artificial insemination in which donor semen from ananonymous donor would be mixed with Fowler's semen in a lab prior to insemination to increase the chances of conception. The couple agreed and were told that Fowler's semen would be mixed with the donor semen in an 85%/15% ratio.2 Plaintiffs understood that there was a chance conception could result from the donor sperm and identified certain requirements for the donor.3 Plaintiffs also insisted on anonymity so that no one would know they had used artificial insemination, so they would not know the donor and the donor would not know them, and so they could consider any resulting child to be their baby. Dkt. 49-4, Ex. A at 40:3-25.
Dr. Mortimer performed the artificial insemination procedure on various occasions in June, July, and August of 1980. In September 1980, Ashby discovered she was pregnant. Plaintiffs were thrilled when Ashby gave birth to daughter Kelli Rowlette on May 20, 1981. Two years after Rowlette's birth, Plaintiffs were able to naturally conceive a son without any medical intervention. Ashby went to Dr. Mortimer for the prenatal care and delivery of her son, and brought Rowlette with her to "every appointment" she had with Dr. Mortimer. Dkt. 63-5, Ex. C at 90:17-20.
Many years later, Rowlette received notification from Ancestry.com that a DNAsample she had submitted matched a sample submitted by Dr. Mortimer. Ancestry.com predicted there was a parent-child relationship between the two individuals based upon the samples it had reviewed. Rowlette did not know Dr. Mortimer and was completely unaware that her parents had undergone artificial insemination to help them conceive. When Rowlette first confronted Ashby, Ashby was in shock and claimed it must be a mistake. Realizing Dr. Mortimer must have used his own semen to inseminate her, Ashby felt like she had been raped by her doctor. Id. at 82:21-25; 83:1-5. Although they initially kept it from Rowlette because they believed "it would destroy her," Plaintiffs ultimately divulged the truth. Dkt. 49-4, Ex. A at 84:13-21. The three subsequently brought the instant suit alleging that, instead of using a mix of semen from Fowler and an anonymous donor, Dr. Mortimer used his own semen to inseminate Ashby.4
Although he initially denied it, Dr. Mortimer has since admitted that he inseminated Ashby with his own semen and that he is Rowlette's biological father. Dr. Mortimer also admitted he used his own semen a number of times during his almost 30-year practice with OGA to inseminate other patients who were having fertility problems. He suggests he did so out of concern for patients and his personal desire to help them conceive. Dr. Mortimer did not inform anyone at OGA that he was using, or had used, his semen to artificially inseminate patients, and no one at OGA was aware of his conduct. Because he feared that he would be discovered, Dr. Mortimer eventually stopped using his own semen toinseminate his patients when DNA testing became more widespread through internet companies such as Ancestry.com.
Plaintiffs and Rowlette filed their Complaint in this matter on March 30, 2018, against Dr. Mortimer, his wife, and OGA. Although the Complaint alleged eight causes of action—medical malpractice, lack of informed consent, fraud, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and violation of Idaho's Consumer Protection Act—Plaintiffs later voluntarily dismissed the battery, breach of contract, and Idaho Consumer Protection Act claims. Following Motions to Dismiss by Dr. Mortimer and OGA, the Court dismissed Rowlette as a plaintiff and Ms. Mortimer as a defendant, and also dismissed each of Plaintiffs' remaining claims except for their claim for medical malpractice.5
On April 5, 2019, Dr. Mortimer filed a Motion for Summary Judgment (Dkt. 49) arguing this suit should be dismissed in its entirety because Plaintiffs cannot establish the causation and damages elements of a medical malpractice claim. OGA filed its own Motion for Summary Judgment on April 8, 2019. Dkt. 50. On April 10, 2019, Plaintiffs followed with a Motion to Amend/Correct Complaint to Include a Prayer for Punitive Damages. Dkt. 53. Plaintiffs' Reply in Support of their Motion to Amend included a declaration fromPlaintiffs' expert, Dr. Lee Parsons. Because the declaration purportedly contained conclusions not included in Dr. Parsons' expert report, Dr. Mortimer moved to strike Dr. Parsons' declaration on May 20, 2019. Dkt. 66. Finally, on July 5, 2019, Plaintiffs filed a Motion for Partial Summary Judgment. Dkt. 72. The Court heard oral argument on all of the pending motions on September 23, 2019.
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides that judgment shall be granted if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). According to Rule 56, an issue must be both "material" and "genuine" to preclude entry of summary judgment. Id. An issue is "material" if it affects the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975). That is, a material fact is one that is relevant to an element of a claim or defense which might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
On the other hand, an issue is "genuine" when there is "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn, 523 F.2d at 464 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., Inc., 391 U.S. 253, 289 (1968)). Because factual disputes areto be decided at trial, in ruling on summary judgment motions, the Court does not resolve conflicting evidence with respect to disputed material facts, nor does it make credibility determinations. T.W. Elec. Serv., Inc., 809 F.2d at 630. Further, all reasonable inferences must be drawn in the light most favorable to the nonmoving party. Id. at 631.
Finally, where, as here, the parties both move for summary judgment, the Court will consider each motion on its own merits. Fair Housing Council of Riverside Cty., Inc., v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In ruling on cross-motions, the Court will consider the entirety of each party's evidentiary submission, regardless of which motion (or opposition) the evidence accompanied. Id. at 1136-37.
Pursuant to the Court's October 25, 2018 Order, the only cause of action still at issue in this suit is Plaintiffs' claim for medical malpractice. Dkt. 40, at 35. To prove medical malpractice, a plaintiff must establish that: (1) the defendant owed a duty to plaintiff to conform to a certain standard of care; (2) the defendant breached that standard; (3) the defendant's breach caused an injury; and (4) the plaintiff sustained a legally recognized injury or damage. Schmechel v. Dille, 219 P.3d 1192, 1203 (Idaho 2009). Although filed last, the Court addresses Plaintiffs' Motion for Partial Summary Judgment first...
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