Doherty v. Merck & Co., CIVIL NO. 1:15-cv-129-DBH
| Decision Date | 24 August 2017 |
| Docket Number | CIVIL NO. 1:15-cv-129-DBH |
| Parties | KAYLA DOHERTY, PLAINTIFF v. MERCK & CO., INC. and UNITED STATES OF AMERICA, DEFENDANTS AND ATTORNEY GENERAL FOR THE STATE OF MAINE, INTERVENOR DEFENDANT |
| Court | U.S. District Court — District of Maine |
In this lawsuit involving Maine's Wrongful Birth Statute, the next step is to determine the statute's constitutionality. Kayla Doherty blames her doctor and a drug manufacturing company for a failed contraceptive implant that led to her unplanned pregnancy and delivery of a healthy child. She sued the United States on the basis that it is responsible for her doctor's negligence; and Merck & Co, Inc. for what she claims was a defective implant device. The defendants moved to dismiss her lawsuit on the basis of Maine's Wrongful Birth Statute. I certified questions about the statute's interpretation to the Maine Law Court, see Certification of Questions (ECF No. 63), and received that Court's response. Doherty v. Merck & Co., Inc., 154 A.3d 1202 (Me. 2017). The Attorney General for the State of Maine has intervened to defend the statute's constitutionality.1
On the motions to dismiss, I take the facts as alleged; they are stated in both my certification and the Law Court's decision. Basically, the plaintiff Doherty asserts that a doctor for whose actions the United States was responsible negligently failed to insert a Merck implant device that was designed to prevent pregnancy for at least three years; that Merck had negligently designed the device such that implantation failed; and that the outcome was an unplanned pregnancy, a long and painful delivery, and the birth of a healthy baby; and damages consisting of medical expenses, lost wages, pain and suffering, expenses of mental health counseling from rearing the child as a single mother without adequate preparation, planning and economic resources, and resulting delay in pursuing her professional goals. First Am. Compl. (ECF No. 11) ¶¶ 27-78.
As a result of the Law Court's decision, it is now law of this case that "pursuant to 24 M.R.S. § 2931 the plaintiff may not recover any damages on her claims against either defendant [United States or Merck]." Doherty, 154 A.3d at 1210. The Law Court did not address the constitutionality of the statute because I had not explicitly certified the question of state or federal constitutionality.2This opinion, therefore, addresses Dohertys arguments that the statute, as the Law Court has interpreted it, is unconstitutional under both state and federal constitutions. I address each of the constitutional issues Doherty has raised. I conclude that the Wrongful Birth Statute is not unconstitutional and grant the motions to dismiss.
Article 1, Section 19 of the Maine Constitution provides:
Every person, for an injury inflicted on the person or the person's reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.
Doherty contends that Maine's Wrongful Birth Statute unconstitutionally deprives her of a remedy for the injury that the failed implant caused.
Maine's Law Court has consistently held that Maine's Open Courts provision means "that 'the courts must be accessible to all persons alike without discrimination, at times and places designated for their sitting, and afford a speedy remedy for every wrong recognized by law as remediable in a court.'" Godbout v. WLB Holding, Inc., 997 A.2d 92, 94 (Me. 2010) (emphasis added) (upholding statute of repose) (quoting State v. Bilynsky, 942 A.2d 1234, 1236 (Me. 2008) (), (quoting Me. Med. Ctr. v. Cote, 577 A.2d 1173, 1176 (Me. 1990) ())); accord Peters v. Saft, 597 A.2d 50, 54 (Me.1991) (damages cap under Maine's Liquor Liability Act); Choroszy v. Tso, 647 A.2d 803, 807 (Me. 1994) (statute of limitations). In the wake of the Law Court's decision on my certification, Doherty does not have, in Godbout's language, a "wrong recognized by law as remediable in a court," 997 A.2d at 94, and therefore the Open Courts provision does not help Doherty.3
Alternatively, the Law Court has held that "[i]n view of [the Open Courts] provision, legislation should not be deemed to preclude an injured person from having a remedy of his own for a recognized wrong in the absence of a clear manifestation of intent to that effect." Gibson v. Nat'l Ben Franklin Ins. Co., 387 A.2d 220, 223 (Me. 1978). The Law Court's certified answers to my questions show that the Maine Legislature demonstrated "a clear manifestation of intent" to foreclose a cause of action for a plaintiff in Doherty's circumstances. Again, therefore, the Open Courts provision does not help Doherty in her claim that the Maine statute is unconstitutional.
The First Amendment to the United States Constitution protects the people's right "to petition the Government for a redress of grievances." U.S. Const. amend. I. This provision has been applied to the states through the Fourteenth Amendment, Edwards v. South Carolina, 372 U.S. 229, 235-37 (1963), and the Supreme Court has regularly held that it extends to court access. See, e.g., BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002) (). The SupremeCourt has said that its precedents demonstrate an "unsettled . . . basis of the constitutional right of access to courts"4 but, regardless of the basis of the right, "our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Christopher v. Harbury, 536 U.S. 403, 415 (2002) (emphasis added). The Second Circuit has interpreted this Supreme Court language to mean that "[t]he right to petition exists in the presence of an underlying cause of action and is not violated by a statute that provides a complete defense to a cause of action or curtails a category of causes of action." City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008). Or as the First Circuit said even before Christopher v. Harbury: "In a nutshell, while there is a constitutional right to court access, there is no complementary constitutional right to receive or be eligible for a particular form of relief." Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997). I follow that reasoning. In other words, the federal analysis is the same as for the Open Courts provision of the Maine Constitution: there can be no constitutional claim regarding denial of court access unless the plaintiff has a viable underlying cause of action. Since the Maine Law Court has decided that Doherty has no underlying cause of action, her federal constitutional right of access to courts has not been violated.
Since the Law Court has determined that the Wrongful Birth Statute forecloses Doherty's right to recover, she can have no federal constitutional right to a jury trial on her claims. I follow the Sixth Circuit's unqualified statement:
Nothing in the text or history indicates that the Seventh Amendment protects the existence of certain common-law causes of action. The Seventh Amendment protects a litigant's right to a jury trial where there exists a cause of action at common law, or one analogous thereto, for legal relief, where the amount in controversy exceeds twenty dollars.
Martin v. Telectronics Pacing Sys., Inc., 105 F.3d 1090, 1101 (6th Cir. 1997) (emphasis added). And where there is no cause of action, a plaintiff has "no 'suit[ ] at common law' and the Seventh Amendment's guarantees are not implicated." Id.; see also Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989); accord Sullivan v. United States, 788 F.2d 813, 816 (1st Cir. 1986) (); Kelly v. United States, 789 F.2d 94, 97-98 (1st Cir. 1986) (same).5
The result is the same for Doherty's claim under Maine's Constitution Article I, Section 20.6 Like the First Circuit cases cited above, the Maine Law Court says that the right to jury trial is the right to have a jury decide questions of fact when the substantive law makes those questions of fact material. Petersv. Saft, 597 A.2d 50, 53 (Me. 1991). Since there is no cause of action for Doherty's injury as she has described it, there are no material questions of fact for a jury to decide.
As part of her argument that her right to jury trial has been violated, Doherty asserts that the Maine Legislature does not have unfettered discretion to abolish the common law. Pl.'s Consol. Opp'n (ECF No. 73) at 14-16. Assuming that there was a right at common law to recover for a wrongful birth,7 I have found no Maine precedents that support Doherty's proposition that the Open Courts provision of the Maine Constitution limits "the Maine Legislature's authority to determine the substantive dimensions of a cause of action," Page v. Amtrak, Inc., 168 F. Supp. 3d 337, 346 & n.19 (D. Me. 2016), aff'd, 664 F. App'x 12 (1st Cir. 2016), as it has done here.
The Maine Law Court has said that it interprets state statutes narrowly or strictly when they are "in derogation of" the common law. Batchelder v. Realty Res. Hosp., LLC, 914 A.2d 1116, 1124 (Me. 2007); Beaulieu v. The Aube Corp., 796 A.2d 683, 689 (Me. 2002); Ziegler v. Am. Maize-Products Co., 658 A.2d 219, 222 (Me. 1995). It has not said that such statutes are forbidden altogether. TheLaw Court has already provided its interpretation of the Wrongful Birth Statute in this case, so there is no more work to do for this principle of statutory...
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