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Doherty v. Merck & Co. Inc.

United States District Court, D. Maine

January 7, 2016

KAYLA DOHERTY, Plaintiff
v.
MERCK & CO., INC. and UNITED STATES OF AMERICA, Defendants and ATTORNEY GENERAL FOR THE STATE OF MAINE, Intervenor Defendant

CERTIFICATE OF QUESTIONS OF STATE LAW TO THE MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT

D. Brock Hornby United States District Judge

After oral argument on December 3, 2015, the United States District Court for the District of Maine finds that this case involves questions of law of the State of Maine that may be determinative of the cause and that there are no clear controlling precedents thereon in the decisions of the Maine Supreme Judicial Court. See M.R. App. P. 25(a). Although this case is at an early stage (the defendants’ motions to dismiss the First Amended Complaint have just been denied without prejudice), 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 (the defendants’ contention in their motions to dismiss that I rejected) would be determinative of the cause and would end the lawsuit now.

Specifically, there is a question whether Maine’s Wrongful Birth statute, 24 M.R.S.A. § 2931 (2015)-added in 1986 to the Maine Health Security Act[1] as part of “An Act Relating to Medical and Legal Professional Liability, ” L.D. 2400, § 16 (112th Legis. 1986)[2]-applies to drug manufacturers and distributors; and, if it does not, the scope (as it applies to drug manufacturers and distributors) of an earlier Law Court decision, Macomber v. Dillman, 505 A.2d 810 (Me. 1986), that limits damages against health care providers for failed sterilization. There is also a definitional question regarding the scope of the statutory language in section 2931(2) allowing limited damages for a “failed sterilization procedure”- specifically, whether it covers the method of birth control at issue in this case. The plaintiff contends that the “open courts” provision of article 1, section 19 of the Maine Constitution bears upon the answers.

The style of the case is Kayla Doherty, Plaintiff, v. Merck & Co., Inc., and United States of America, Defendants. See M.R. App. P. 25(b). The Attorney General for the State of Maine has intervened to defend the constitutionality of Maine’s Wrongful Birth statute. See 28 U.S.C.A. § 2403(b) (2006).

A statement of facts showing the nature of the case and the circumstances out of which the questions of law arise is attached as Appendix A. See M.R. App. P. 25(b).

The questions of law to be answered are:

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?

Guided by the Law Court’s observation “that promotion of federal-state comity counsels that ‘[w]herever reasonably possible, the state court of last resort should be given 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, ’” Dinan v. Alpha Networks Inc., 2013 ME 22, ¶ 12, 60 A.3d 792 (alteration in original) (quoting White v. Edgar, 320 A.2d 668, 675 (Me. 1974)), I respectfully ask for instructions concerning these questions of Maine law, see 4 M.R.S.A. § 57 (1989 & Pamph. 2015); M.R. App. P. 25(a), now that I have denied (pending the Law Court’s answers to the foregoing questions of Maine law) the defendants’ motions to dismiss that assert that Maine law prevents any recovery by this plaintiff.

I suggest that the plaintiff Kayla Doherty be treated as the appellant before the Law Court, see M.R. App. P. 25(b), because she requested the certification.

The Clerk of this Court is hereby Directed to cause twelve (12) copies of this Order and the Appendix to be certified, under official seal, to the Maine Supreme Judicial Court sitting as the Law Court. It is Further Ordered that the Clerk of this Court be, and is hereby, authorized and directed to provide, without any cost to the Law Court, upon written request of the Chief Justice or the Clerk thereof, copies of any and all filings of the parties herein and of the docket entries pertaining to this case.

So Ordered.

APPENDIX A


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