Argued: September 8, 2016
H. White, Esq. (orally), Bergen & Parkinson, LLC,
Kennebunk, for appellant Kayla Doherty
McDonald, Esq., (orally), and Daniel J. Mitchell, Bernstein
Shur, Portland, and Thomas J. Yoo, Esq., Reed Smith LLP, Los
Angeles, California, for appellee Merck & Co., Inc.
E. Delahanty II, United States Attorney, and Andrew K.
Lizotte, Asst. U.S. Atty. (orally), Office of the United
States Attorney, Portland, for appellee United States of
T. Mills, Attorney General, and Susan P. Herman, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, [*] JABAR, and
Concurrence: SAUFLEY. C.T.. and ALEXANDER and GORMAN, JJ.
After Kayla Doherty gave birth to a healthy son in June 2014,
she filed a complaint against Merck & Co., Inc., and the
United States in the United States District Court for the
District of Maine, alleging that in February 2012, at a
community health center for which the United States was
responsible, a physician negligently failed, as a result of
Merck's defective applicator, to insert into her arm an
implant manufactured by Merck that was designed to prevent
pregnancy for at least three years. Pursuant to 4 M.R.S.
§ 57 (2016) and M.R. App. P. 25, the federal court
[Hornby, J.) has certified three questions of state
law to us:
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
We answer the first question in the affirmative. Accordingly,
we decline to answer the second question. In answer to the
third question, pursuant to 24 M.R.S. § 2931 (2016)
Doherty may not recover any damages on her claims against
The United States District Court denied without prejudice the
defendants' motion to dismiss Doherty's complaint.
The court stated in its certification to us that "the
following factual allegations are properly pleaded. The
plaintiffs factual allegations are therefore taken as true
for the purpose of testing the defendants' argument that
Maine law allows no recovery to the plaintiff even if her
allegations are proven." See Miller v. Town of
Wenham, 833 F.3d46, 51 (1stCir. 2016) (stating that in
reviewing the dismissal of a claim pursuant to Fed.R.Civ.P.
12(b)(6), the federal courts "accept as true all
well-pled facts alleged in the complaint and draw all
reasonable inferences in the plaintiff's favor"
(alteration and quotation marks omitted)).
Doherty's complaint alleges that on January 26, 2012, she
visited a federally-supported health care center in Albion to
inquire about birth control options. She saw a physician, who
recommended the use of an implantable drug manufactured by
Merck consisting of a single, four-centimeter-long rod
inserted under the skin of the inner side of the
patient's upper arm with a syringe-like applicator. The
drug, which is designed to be effective for at least three
years unless the rod is removed sooner by a physician, works
by inhibiting ovulation. Merck knew, or should have known,
that the applicator had a history of failed insertion
attempts occurring when, unbeknownst to the treating
physician, the rod would remain stuck in the applicator
following the procedure.
[¶5] On February 28, 2012, the physician who recommended
the drug to Doherty carried out the implantation procedure,
but failed to check her arm to see if it was successful. A
pregnancy test at the health care center on October 16, 2013,
confirmed that Doherty was pregnant. An examination and
subsequent ultrasound examination failed to locate the rod in
either of Doherty's arms. A nurse later told Doherty that
the physician "believes it was never inserted."
On June 9, 2014, Doherty gave birth to a healthy boy
following a long and painful delivery. In connection with her
pregnancy, Doherty suffered nausea, mental and physical pain
and suffering, insomnia, swelling, and weight gain. She also
incurred expenses, and she lost wages as a result of missing
work for medical appointments. Following the birth of her
son, Doherty received mental health counseling and suffered
emotional distress as a result of being unprepared to raise a
child as a single mother.
Doherty filed suit against Merck on theories of strict
product liability, breach of warranty, negligence, and
negligent misrepresentation; and against the United States
for the negligence of the physician, and for the
physician's failure to obtain her informed consent. The
complaint also asked the federal court to declare that 24
M.R.S. § 2931 is unconstitutional, both facially and as
applied. Merck and the United States moved to dismiss the
complaint on the grounds that (1) pursuant to 24 M.R.S.
§ 2931(1), the birth of a healthy child is not a
"legally recognizable injury" for which Doherty may
recover damages; and (2) pursuant to 24 M.R.S. §
2931(2), Doherty did not undergo a "failed sterilization
procedure" that would invoke the statute's exception
and allow her to recover limited damages. The court denied
the motions pending our answers to the three certified
Acceptance of the ...