Rowlette v. Mortimer

• Decision Date: 25 October 2018
• Docket Number: Case No. 4:18-cv-00143-DCN
• Citation: 352 F.Supp.3d 1012
• Parties: Kelli ROWLETTE, an Individual, Sally Ashby, an Individual, and Howard Fowler, an Individual, Plaintiffs, v. Gerald E. MORTIMER, M.D., Linda G. McKinnon Mortimer, and the Marital Community Comprised Thereof, and Obstetrics and Gynecology Associates of Idaho Falls, P.A., an Idaho Professional Corporation, Defendants.
• Court: U.S. District Court — District of Idaho

352 F.Supp.3d 1012

Kelli ROWLETTE, an Individual, Sally Ashby, an Individual, and Howard Fowler, an Individual, Plaintiffs,

v.Gerald E. MORTIMER, M.D., Linda G. McKinnon Mortimer, and the Marital Community Comprised Thereof, and Obstetrics and Gynecology Associates of Idaho Falls, P.A., an Idaho Professional Corporation, Defendants.

Case No. 4:18-cv-00143-DCN

United States District Court, D. Idaho.

Signed October 25, 2018

Jillian A. Harlington, Pro Hac Vice, Walker Heye Meehan & Eisinger, PLLC, Mathew M. Purcell, Pro Hac Vice, Purcell Law, PLLC, Shea C. Meehan, Walker Heye Meehan Eisinger, Richland, WA, for Plaintiffs.

Raymond D. Powers, Portia L. Rauer, Powers Tolman Farley, PLLC, Boise, ID, J. Michael Wheiler, Richard R. Friess, Thomsen Holman Wheiler, PLLC, Idaho Falls, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

David C. Nye, U.S. District Court Judge

I. INTRODUCTION

Pending before the Court is Defendants Gerald Mortimer and Linda G. McKinnon Mortimer's (the "Mortimers") Motion to Dismiss. Dkt. 16. Defendant Obstetrics and Gynecology Associates of Idaho Falls, P.A.'s ("OGA") also filed a Motion to Dismiss based upon the same general arguments. Dkt. 17. After holding oral argument, the Court took the motions under advisement. Upon review, the Court now issues the following decision GRANTING in PART and DENYING in PART the Motions.

The right to procreate has been recognized by the United States Supreme Court in Skinner v. Oklahoma , 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), albeit in the context of sterilization. In Skinner , the Supreme Court stated:

This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race – the right to have offspring.

....

Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

Id. at 541, 62 S.Ct. 1110.

The Skinner court recognized that the power to sterilize, when wielded by evil hands, deprives others of a fundamental right. Today, the Court is not asked to address improper sterilization; however, the alleged misconduct is similarly abhorrent and concerning. When a woman pursues artificial insemination, she and her loved ones entrust their physician with access to, and power over, areas of life that are unusually intimate and sacred. When that trust is unknowingly placed in a physician with evil hands and selfish motives, the fundamental right of procreation is debased and degraded. Today, the Court addresses such an allegation.

Plaintiffs Ashby and Fowler were married and struggled to procreate. They decided to undergo artificial insemination with sperm from an undisclosed donor. Defendant Dr. Mortimer allegedly used his own sperm to artificially inseminate Ashby. He did not disclose that it was his sperm. There can be little argument that Mortimer's alleged conduct in using his own sperm to artificially inseminate Ashby without her knowledge is morally repugnant, ethically questionable, and demeaning to Ashby. The Court does not take lightly allegations that a physician so grossly abused his position of trust, particularly when those actions are related to the important right of procreation. However, the issue here is whether Plaintiffs can legally recover under tort law for Mortimer's conduct.

II. BACKGROUND

A. Factual¹

In 1979, Plaintiffs Ashby and Fowler were a married couple residing in Idaho Falls, Idaho. The couple struggled to conceive children and consequently became patients of OGA under the care of Dr. Gerald E. Mortimer ("Dr. Mortimer"), an OB/GYN. Upon examination, Dr. Mortimer diagnosed Ashby with a tipped uterus and Fowler with low sperm count

and low sperm motility. Dr. Mortimer recommended that the couple undergo a form of artificial insemination in which donor sperm from an anonymous donor would be mixed with Fowler's sperm in a lab prior to insemination to increase the chances of conception. In short, 85% of the mixture would be Fowler's sperm, while 15% was to come from the anonymous donor. The couple agreed to the procedure; however, they requested that the donor be a college student with brown hair, blue eyes, and over six feet tall. It is unclear whether this request was verbal or in writing.

Ultimately, Dr. Mortimer performed the artificial insemination

procedure on various occasions in June, July, and August of 1980. In August 1980, Ashby discovered that she was pregnant. On May 20, 1981, Ashby gave birth to Plaintiff Kelli Rowlette. Dr. Mortimer delivered Rowlette.

Subsequently, the family (Ashby, Fowler, Rowlette, and a son conceived after Rowlette without medical assistance) moved to Washington State.

In July 2017, Rowlette received notification from Ancestry.com that a DNA sample she had submitted matched a sample submitted by one Gerald Mortimer. Ancestry.com predicted that there was a parent-child relationship between the two individuals based upon the samples reviewed. Rowlette did not know Dr. Mortimer, and was, in fact, completely unaware that her parents had undergone artificial insemination to help them conceive some 38 years prior. Rowlette gave Ashby access to the Ancestry.com results. Ashby knew Mortimer had been her doctor, but she did not disclose this to Rowlette. Ashby did disclose the Ancestry.com results to her now ex-husband, Fowler, but he also did not disclose who Mortimer was to Ashby.

In October of the same year, Rowlette was going through personal documents at her father's home and noticed that the name of the delivering physician on her birth certificate was Dr. Gerald Mortimer.

Based upon Mortimer's role in Rowlette's conception, and the Ancestry.com DNA results, Plaintiffs' allege that instead of using sperm from an anonymous donor back in 1980 to supplement Fowler's sperm for the artificial insemination

procedure, Dr. Mortimer instead used his own sperm. Plaintiffs allege a variety of causes of action based upon this alleged improper behavior.

B. Procedural

Plaintiffs filed their Complaint in this matter on March 30, 2018, alleging 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. Dkt. 1. OGA filed an Answer on May 4, 2018. Dkt. 10. The Mortimers filed their joint Answer on May 29, 2018. Dkt. 13. On June 13, 2018, the Mortimers filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 16 Approximately one week later, on June 19, 2018, OGA filed a Motion to Dismiss also pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 17.

On June 26, 2018, Plaintiffs filed a Motion to Strike the pending Motions to Dismiss alleging that the Motions were improper and untimely. Dkt. 19. A short briefing schedule followed. The Court then took Plaintiffs' Motion under advisement and determined that while Defendants filed their respective Motions to Dismiss after filing responsive pleadings, such a tactical decision did not require the Court to strike the motions altogether, but simply convert them from Motions to Dismiss under Rule 12(b)(6) into Motions for Judgment on the Pleadings under Rule 12(h)(2)(B) and Rule 12(c).

III. LEGAL STANDARD

Defendants seek dismissal for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). When a defendant brings such a motion after answering the complaint, the motion is treated as one for judgment on the pleadings under Federal Rule of Civil Procedure Rule 12(c), rather than Rule 12(b)(6). Hoeft v. Tucson Unified School Dist. , 967 F.2d 1298, 1301 n. 2 (9th Cir. 1992). Motions to dismiss under Rules 12(c) and 12(b)(6) differ only in the time of filing; because they are functionally identical, the same standard applies to motions brought under either rule. Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (citing Dworkin v. Hustler Magazine Inc. , 867 F.2d 1188, 1192 (9th Cir. 1989) ). The Court evaluates a motion for judgment on the pleadings under the same standard applicable to motions to dismiss brought under Rule 12(b)(6). See Enron Oil Trading & Trans. Co. v. Walbrook Ins. Co., Ltd. , 132 F.3d 526, 529 (9th Cir. 1997). The standard for a motion for judgment on the pleadings is articulated in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A motion to dismiss for failure to state a claim challenges the legal sufficiency of the claims stated in the complaint. Conservation Force v. Salazar , 646 F.3d 1240, 1242 (9th Cir. 2011). "A complaint generally must satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to avoid dismissal under a Rule 12(b)(6) motion." Id. (citing Porter v. Jones , 319 F.3d 483, 494 (9th Cir. 2003) ). " Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests,’ " Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).

To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading "does not need detailed factual allegations;" however, the "[f]actual allegations must be enough to raise a right to relief above...