Maher v. Vaughn, Silverberg & Assocs., LLP

• Decision Date: 05 March 2015
• Docket Number: Case No. A–13–CA–543–SS.
• Citation: 95 F.Supp.3d 999
• Parties: Heidi MAHER, Plaintiff, v. VAUGHN, SILVERBERG & ASSOCIATES, LLP d/b/a Texas Fertility Clinic; and Austin IVF, LLP, Defendants.
• Court: U.S. District Court — Western District of Texas

95 F.Supp.3d 999

Heidi MAHER, Plaintiff

v.VAUGHN, SILVERBERG & ASSOCIATES, LLP d/b/a Texas Fertility Clinic; and Austin IVF, LLP, Defendants.

Case No. A–13–CA–543–SS.

United States District Court, W.D. Texas, Austin Division.

Signed March 5, 2015.

Filed March 6, 2015.

Dean A. Schaffer, Attorney at Law, Austin, TX, for Plaintiff.

Mark T. Beaman, Ryan C. Bueche, Germer, Beaman & Brown PLLC, Austin, TX, for Defendants.

ORDER

SAM SPARKS, District Judge.

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiff Heidi Maher's Motion for Partial Summary Judgment [# 17], Defendants Vaughn, Silverberg & Associates, LLP and Austin IVF, LLP (Defendants)'s Response [# 19], Maher's Reply [# 27], Defendants' Sur–Reply [# 31], and Maher's Sur–Reply [# 41]; Defendants' Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction [# 21], Maher's Response [# 29], Defendants' Reply [# 35], Defendants' Supplement [# 43], Defendants' Sur–Reply [# 46], and Maher's Response to Defendants' Supplement [# 44]; Defendants' Rule 12(b)(6) Motion to Dismiss Non–Cognizable Claims [# 42], Maher's Response [# 47], and Defendants' Reply [# 49]; Defendants' Motion for Partial Summary Judgment [# 51], Maher's Response [# 59], Defendants' Reply [# 66], and Defendants' Supplement [# 67]; Maher's Motion for Summary Judgment on Application for Declaratory Relief [# 53], Defendants' Response [# 56], and Maher's Reply [# 58]; and Defendants' Second Motion for Partial Summary Judgment [# 71], Maher's Response [# 75], and Defendants' Reply [# 76]. Having considered the documents, the file as a whole, and the governing law, the Court enters the following opinion and orders GRANTING Defendants' Rule 12(b)(1) motion and DISMISSING the case for lack of subject matter jurisdiction.

Background

Heidi Maher sought to become pregnant through an in vitro fertilization

(IVF) procedure,¹ and she enlisted the services of Texas Fertility Center and Austin IVF to assist in the process. In preparation, Maher purchased sperm from two different donors, one vial from Donor 1999 and two vials from Donor 11076. See Mot. Dismiss [# 21–2] Ex. B (Maher Dep.) at 74:17–20. While Donor 11076 was the backup option to Donor 1999, Maher considered both donors to be acceptable, at least for this first procedure. Id. at 81:23–82:8. With the help of Texas Fertility Center and Austin IVF, Maher became pregnant and gave birth to a child in 2009 using sperm from Donor 1999. See Am. Compl. [# 70] ¶ 12. After the procedure, there were no more remaining vials of Donor 1999's sperm with Austin IVF, but Austin IVF retained custody of the sperm from Donor 11076. See Maher Dep. at 92:19–93:7.

In 2011, Maher turned to Texas Fertility Center and Austin IVF again as she desired a second child with the biological father of her first child, Donor 1999. Am. Compl. [# 70] ¶ 12. Maher located a sperm bank with vials of Donor 1999's semen and arranged for that bank to send the vials to Austin IVF. Id. Austin IVF received the vials on June 21, 2011. Id. According to Maher, “[t]he Lab Director for Austin IVF, Thomas G. Turner, took possession of the vials in his regulatory capacity as ‘Responsible Person.’ ” Id.

On June 30, 2011, after retrieving Maher's eggs, employees of Austin IVF fertilized the eggs, but instead of fertilizing them with sperm from Donor 1999, they unintentionally used sperm from Donor 11076.Id. ¶ 13–14. According to Maher, “Donor 1999 was approved as eligible for use by the Austin IVF Lab Director, a Responsible Person as defined by federal law.” Id. ¶ 14. Maher alleges Donor 11076 was not approved as eligible for use. Id. On July 7, 2011, employees of Austin IVF—unaware of their error—transferred three embryos to Maher. Id.

A week later, Maher was concerned her IVF procedure had failed and contacted Austin IVF. Id. ¶ 15. As she and Austin IVF representatives examined her case, they realized for the first time the wrong sperm had been used. Id. ¶ 15–16. Maher became upset both with Austin IVF's error and their treatment of her after they discovered their mistake. Id. ¶ 16–17. Eventually, however, her treating doctor, Dr. Lisa Hansard, told Maher new safety protocols would be implemented because of the incident. Id. ¶ 17. Also, in light of the mix-up and the fact Maher did not get pregnant during her second IVF procedure, Dr. Hansard persuaded Maher to try IVF again. Id. In August 2011, Maher underwent a third IVF procedure, this time properly using Donor 1999. Id. ¶ 18. The third effort did not successfully result in a pregnancy. Id. ¶ 19.

Still upset about the second procedure, Maher complained to Austin IVF, and a meeting took place on November 6, 2011. Id. ¶ 20. According to Maher, Austin IVF representatives claimed Maher selected Donor 11076 for the June 30, 2011 procedure, and they produced her chart, which indicated her selection of Donor 11076. Id. Maher claims Austin IVF falsely inserted those chart notes to make it look like she selected Donor 11076 once they realized their mistake, as they knew she wanted Donor 1999. Id. ¶ 21.

Based on this series of events, Maher filed this lawsuit in federal court against non-diverse Defendants Vaughn, Silverberg & Associates, LLP d/b/a Texas Fertility Center, incorrectly named in the complaint as “Texas Fertility Clinic,” and Austin IVF, LLP. She asserts the following causes of action: (1) “Federal Violations and Negligence Per Se” (Id. ¶¶ 24–40); (2) “Negligent Hiring, Supervision, and/or Management” (Id. ¶¶ 41–42); (3) “Promissory Estoppel” (Id. ¶¶ 43–44); (4) “Offensive Physical Contact or Battery” (Id. ¶¶ 45–46); and (5) “Intentional Infliction of Emotional Distress” (Id. ¶ 47). Maher seeks damages for past and future medical expenses; past physical pain and suffering; past loss of time and earnings; past and future mental anguish; pecuniary and consequential damages; and exemplary damages. Id. ¶ 48–49. Finally, Maher seeks declaratory and injunctive relief in connection with documents Defendants allegedly placed in Maher's medical records and which Maher wants removed. Id. ¶ 50.

Since the initiation of the lawsuit, the parties have conducted discovery and currently have pending before the Court a number of motions to dismiss and motions for partial summary judgment. The only motion requiring any analysis by the Court, however, is Defendants' threshold motion to dismiss for lack of subject matter jurisdiction.

Analysis

Defendants move to dismiss Maher's case pursuant to Rule 12(b)(1) as they contend her amended complaint does not invoke this Court's federal question jurisdiction under 28 U.S.C. § 1331.²

I. Allegations and Facts Concerning Subject Matter Jurisdiction

At the status conference held October 21, 2014, Maher's counsel conceded the plaintiff's theory of the case is novel concerning its basis for federal jurisdiction. After review of the amended complaint, the Court does not find its jurisdictional allegations to be a model of clarity but rather a hodgepodge of references to federal regulations and statutes. This scattershot approach appears to be made in the hope one of the references might stick or perhaps that the Court, taking all of these references in the aggregate, will manufacture federal jurisdiction under circumstances the plaintiff admits no other court has ever found jurisdiction. The result is a confusing and meandering pleading. Nevertheless, the Court attempts to describe the alleged bases for federal jurisdiction.

Generally, Maher's argument is that “[t]o assume uniformity, proficiency, and sensitivity, Congress empowered federal oversight of assisted human reproduction,” and “[t]he field is occupied by federal law.” Id. ¶ 1. Moreover, Maher contends “[g]aps in federal statutory provisions may be filled by interstitial federal common law.” Id. ¶ 6. As support for the notion Congress “has enacted a general regulatory scheme for assisted reproduction,” Maher first cites the Code of Federal Regulations on Human Cells, Tissues, and Cellular and Tissue–Based Products (HCT/Ps). Id. (citing 21 C.F.R. Pt. 1271). Section 1271.1 is a federal regulation promulgated by the United States Food and Drug Administration (FDA), the purpose of which “is to create a unified registration and listing system for establishments that manufacture [HCT/Ps] and to establish donor-eligibility, current good tissue practice, and other procedures to prevent the introduction, transmission, and spread of communicable diseases by [HCT/Ps].” 21 C.F.R. § 1271.1(a). Second, Maher cites the Clinical Laboratory Improvement Act (CLIA), which sets the standards and certificate requirements for clinical laboratory testing. Am. Compl. [# 70] ¶ 1 (citing 42 U.S.C. § 263a ).

In addition, Maher contends Defendants “[t]out [f]ederal [l]aw and [c]ertification” through their website and marketing materials by which they represent to the public they must earn a certificate through CLIA and are subject to unannounced inspection by the FDA. Id. ¶ 7. According to Maher, “Defendants should be estopped from inviting public trust by virtue of federal law, while at the same time denying the Court's authority to decide if they have complied with federal law.” Id.

Maher also highlights Defendants' membership in the American Society for Reproductive Medicine (ASRM). Id. ¶ 8. Maher alleges the ASRM held a meeting and published an executive summary describing federal regulation of assisted reproductive technology (ART), including: (1) the Centers for Disease Control and Prevention (CDC)'s “collect[ion] and publish[ing] of data on ART procedures;” (2) the FDA's “control[ ][of] approval and use of drugs, biological products, and medical devices and [its] jurisdiction over screening and testing of reproductive tissues, such as donor eggs and sperm; and (3) the Centers for Medicare and Medicaid Services (CMS)'s responsib[ility] for implementation of the [CLIA] to ensure the quality of laboratory testing.” Id. Maher alleges that by...