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Doherty v. Merck & Co. Inc.

Supreme Court of Maine

January 26, 2017

MERCK & CO., INC., etal.

          Argued: September 8, 2016

          Laura H. White, Esq. (orally), Bergen & Parkinson, LLC, Kennebunk, for appellant Kayla Doherty

          Paul 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.

          Thomas 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 America

          Janet T. Mills, Attorney General, and Susan P. Herman, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, [*] JABAR, and HUMPHREY, JJ.

          Concurrence: SAUFLEY. C.T.. and ALEXANDER and GORMAN, JJ.

          MEAD, J.

         [¶l] 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 pregnancy?

         [¶2] 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 either defendant.

         I. BACKGROUND

         [¶3] 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)).

         [¶4] 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."

         [¶6] 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.

         [¶7] 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 questions.


         A. Acceptance of the ...

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