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Doherty v. Merck & Co., Inc.

United States District Court, D. Maine

August 24, 2017



          D. Brock Hornby United States District Judge.

         In this lawsuit involving Maine's Wrongful Birth Statute, the next step is to determine the statute's constitutionality. Kayla Doherty blames her doctor and a drug manufacturing company for a failed contraceptive implant that led to her unplanned pregnancy and delivery of a healthy child. She sued the United States on the basis that it is responsible for her doctor's negligence; and Merck & Co, Inc. for what she claims was a defective implant device. The defendants moved to dismiss her lawsuit on the basis of Maine's Wrongful Birth Statute. I certified questions about the statute's interpretation to the Maine Law Court, see Certification of Questions (ECF No. 63), and received that Court's response. Doherty v. Merck & Co., Inc., 154 A.3d 1202 (Me. 2017). The Attorney General for the State of Maine has intervened to defend the statute's constitutionality.[1]

         On the motions to dismiss, I take the facts as alleged; they are stated in both my certification and the Law Court's decision. Basically, the plaintiff Doherty asserts that a doctor for whose actions the United States was responsible negligently failed to insert a Merck implant device that was designed to prevent pregnancy for at least three years; that Merck had negligently designed the device such that implantation failed; and that the outcome was an unplanned pregnancy, a long and painful delivery, and the birth of a healthy baby; and damages consisting of medical expenses, lost wages, pain and suffering, expenses of mental health counseling from rearing the child as a single mother without adequate preparation, planning and economic resources, and resulting delay in pursuing her professional goals. First Am. Compl. (ECF No. 11) ¶¶ 27-78.

         As a result of the Law Court's decision, it is now law of this case that “pursuant to 24 M.R.S. § 2931 the plaintiff may not recover any damages on her claims against either defendant [United States or Merck].” Doherty, 154 A.3d at 1210. The Law Court did not address the constitutionality of the statute because I had not explicitly certified the question of state or federal constitutionality.[2] This opinion, therefore, addresses Dohertys arguments that the statute, as the Law Court has interpreted it, is unconstitutional under both state and federal constitutions. I address each of the constitutional issues Doherty has raised. I conclude that the Wrongful Birth Statute is not unconstitutional and grant the motions to dismiss.

         1. Access to Courts

         a. Maine's Open Courts Provision

         Article 1, Section 19 of the Maine Constitution provides:

Every person, for an injury inflicted on the person or the person's reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.

         Doherty contends that Maine's Wrongful Birth Statute unconstitutionally deprives her of a remedy for the injury that the failed implant caused.

         Maine's Law Court has consistently held that Maine's Open Courts provision means “that ‘the courts must be accessible to all persons alike without discrimination, at times and places designated for their sitting, and afford a speedy remedy for every wrong recognized by law as remediable in a court.'” Godbout v. WLB Holding, Inc., 997 A.2d 92, 94 (Me. 2010) (emphasis added) (upholding statute of repose) (quoting State v. Bilynsky, 942 A.2d 1234, 1236 (Me. 2008) (upholding limitation period for withdrawing a plea in a criminal case), (quoting Me. Med. Ctr. v. Cote, 577 A.2d 1173, 1176 (Me. 1990) (upholding statute of limitations for a minor))); accord Peters v. Saft, 597 A.2d 50, 54 (Me. 1991) (damages cap under Maine's Liquor Liability Act); Choroszy v. Tso, 647 A.2d 803, 807 (Me. 1994) (statute of limitations). In the wake of the Law Court's decision on my certification, Doherty does not have, in Godbout's language, a “wrong recognized by law as remediable in a court, ” 997 A.2d at 94, and therefore the Open Courts provision does not help Doherty.[3]

         Alternatively, the Law Court has held that “[i]n view of [the Open Courts] provision, legislation should not be deemed to preclude an injured person from having a remedy of his own for a recognized wrong in the absence of a clear manifestation of intent to that effect.” Gibson v. Nat'l Ben Franklin Ins. Co., 387 A.2d 220, 223 (Me. 1978). The Law Court's certified answers to my questions show that the Maine Legislature demonstrated “a clear manifestation of intent” to foreclose a cause of action for a plaintiff in Doherty's circumstances. Again, therefore, the Open Courts provision does not help Doherty in her claim that the Maine statute is unconstitutional.

         b. United States Constitution

         The First Amendment to the United States Constitution protects the people's right “to petition the Government for a redress of grievances.” U.S. Const. amend. I. This provision has been applied to the states through the Fourteenth Amendment, Edwards v. South Carolina, 372 U.S. 229, 235-37 (1963), and the Supreme Court has regularly held that it extends to court access. See, e.g., BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002) (“[t]he right of access to the courts is . . . but one aspect of the right of petition”). The Supreme Court has said that its precedents demonstrate an “unsettled . . . basis of the constitutional right of access to courts”[4] but, regardless of the basis of the right, “our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (emphasis added). The Second Circuit has interpreted this Supreme Court language to mean that “[t]he right to petition exists in the presence of an underlying cause of action and is not violated by a statute that provides a complete defense to a cause of action or curtails a category of causes of action.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008). Or as the First Circuit said even before Christopher v. Harbury: “In a nutshell, while there is a constitutional right to court access, there is no complementary constitutional right to receive or be eligible for a particular form of relief.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997). I follow that reasoning. In other words, the federal analysis is the same as for the Open Courts provision of the Maine Constitution: there can be no constitutional claim regarding denial of court access unless the plaintiff has a viable underlying cause of action. Since the Maine Law Court has decided that Doherty has no underlying cause of action, her federal constitutional right of access to courts has not been violated.

         2. Constitutional Right to Jury Trial under the Maine and United States Constitutions

         Since the Law Court has determined that the Wrongful Birth Statute forecloses Doherty's right to recover, she can have no federal constitutional right to a jury trial on her claims. I follow the Sixth Circuit's unqualified statement:

Nothing in the text or history indicates that the Seventh Amendment protects the existence of certain common-law causes of action. The Seventh Amendment protects a litigant's right to a jury trial where there exists a cause of action at common law, or one analogous thereto, for legal relief, where the amount in controversy exceeds twenty dollars.

Martin v. Telectronics Pacing Sys., Inc., 105 F.3d 1090, 1101 (6th Cir. 1997) (emphasis added). And where there is no cause of action, a plaintiff has “no ‘suit[ ] at common law' and the Seventh Amendment's guarantees are not implicated.” Id.; see also Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989); accord Sullivan v. United States, 788 F.2d 813, 816 (1st Cir. 1986) (Seventh Amendment jury trial right exists only where there is a genuine issue of material fact to be determined); Kelly v. United States, 789 F.2d 94, 97-98 (1st Cir. 1986) (same).[5]

         The result is the same for Doherty's claim under Maine's Constitution Article I, Section 20.[6] Like the First Circuit cases cited above, the Maine Law Court says that the right to jury trial is the right to have a jury decide questions of fact when the substantive law makes those questions of fact material. Peters v. Saft, 597 A.2d 50, 53 (Me. 1991). Since there is no cause of action for Doherty's injury as she has described it, there are no material questions of fact for a jury to decide.

         As part of her argument that her right to jury trial has been violated, Doherty asserts that the Maine Legislature does not have unfettered discretion to abolish the common law. Pl.'s Consol. Opp'n (ECF No. 73) at 14-16. Assuming that there was a right at common law to recover for a wrongful birth, [7] I have found no Maine precedents that support Doherty's proposition that the Open Courts provision of the Maine Constitution limits “the Maine Legislature's authority to determine the substantive dimensions of a cause of action, ” Page v. Amtrak, Inc., 168 F.Supp.3d 337, 346 & n.19 (D. Me. 2016), aff'd, 664 F. App'x 12 (1st Cir. 2016), as it has done here.

         The Maine Law Court has said that it interprets state statutes narrowly or strictly when they are “in derogation of” the common law. Batchelder v. Realty Res. Hosp., LLC, 914 A.2d 1116, 1124 (Me. 2007); Beaulieu v. The Aube Corp., 796 A.2d 683, 689 (Me. 2002); Ziegler v. Am. Maize-Products Co., 658 A.2d 219, 222 (Me. 1995). It has not said that such statutes are forbidden altogether. The Law Court has already provided its interpretation of the Wrongful Birth Statute in this case, so there is no more work to do for this principle of statutory construction. I conclude that as a result of the Law Court's interpretation of the statute, the wrong to Doherty is not “recognized by law as remediable in a court, ” Godbout v. WLB Holding, Inc., 997 A.2d 92, 94 (Me. 2010), the Open Courts provision does not apply, [8] and there is no improper displacement of the common law.[9]

         3. Separation of Powers

         Doherty also makes a separation-of-powers argument. The federal cases she cites on separation of powers, however, do not apply here because Doherty is challenging state, not congressional, legislation.[10] Doherty cites three Maine cases dealing with Maine's constitutional provision regarding separation of powers. Two of them involved commutation of sentences. The Maine Constitution, Article V, Part 1, Section 11, explicitly grants the Governor the power to commute sentences. The Law Court found a separation-of-powers violation, therefore, in granting such authority to the courts, State v. Hunter, 447 A.2d 797, 798 (Me. 1982), and in a legislative enactment that would result in a commutation of existing sentences Bossie v. State of Maine, 488 A.2d 477, 480 (Me. 1985). The third Maine case found a separation-of-powers violation in the effort by the State Employees Appeals Board to review and rule on an employment termination decision by the Chief Judge of the District Court, because it would unconstitutionally result in “a review by the executive branch of the government of the action of the judicial branch” contrary to Article III, Section 2, prohibiting persons in any of the three branches from “exercis[ing] any of the powers properly belonging to either of the others.” Dist. Court for Dist. IX v. Williams, 268 A.2d 812, 812-13 (Me. 1970). None of these cases helps Doherty; the Legislature's action in determining the scope of any cause of action for wrongful birth is well within the legislative branch's power, and does not violate the Maine Constitution's separation-of-powers provision.

         4. Substantive Due Process under the United States Constitution

         The defendants United States and Merck (not the Maine Attorney General) argue that there are no constitutional issues of due process and equal protection because there is no state action. I cannot fathom that argument. Doherty is attacking the application to her of a state statute. If that is not state action, I do not know what is.[11]

         Doherty says that federal substantive due process under the Fourteenth Amendment recognizes a “zone of privacy” with respect to a woman's contraception decisions, a fundamental constitutional right that Maine's Wrongful Birth Statute violates. Pl.'s Consol. Opp'n at 24. In that respect, she cites many of the Supreme Court's famous decisions involving contraceptives, birth control, and abortion, including Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Carey v. Population Services International, 431 U.S. 678 (1977); and Planned Parenthood v. Casey, 505 U.S. 833 (1992). Doherty argues that “substantive due process is about an entire ‘zone of privacy, ' which protects childrearing and other intimate, personal matters of the home.” Pl.'s Consol. Opp'n at 24.

         But the Maine Wrongful Birth Statute did not intrude on Doherty's and her doctor's decision regarding what contraceptive to use, and she does not allege that it did. The statute contains no prohibition on private choice in that respect and no criminal penalties. It does structure what recovery is available once the birth of a healthy child occurs despite a parent's efforts to avoid conception and, as the Law Court has determined, affords Doherty no recovery for her failed implant. But the United States Supreme Court has made clear that its decisions on reproductive practices primarily concerned state actions where the State “attempts to impose its will by force of law, ” Maher v. Roe, 432 U.S. 464, 476 (1977)-state actions that outright prohibit contraception or abortion (as by criminalizing it)-not state actions that refuse to fund certain procedures or fail to eliminate obstacles to those procedures. See Harris v. McRae, 448 U.S. 297 (1980).

         Instead, the Supreme Court says that states can make value judgments, for example, “favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.” Maher, 432 U.S. at 474. The Supreme Court, faced with a state's failure to provide funding, declined to characterize this as the placement of an obstacle in the path to abortion. Id. It stated: “although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation.” Harris, 448 U.S. at 316. Here, Doherty's choice of birth control method was left between her and her doctor, unimpeded by government-placed obstacles. And even if she had alleged that the Wrongful Birth Statute influenced that decision via its arguably value-laden allocation of negligence liability, Harris and Maher foreclose the argument that such an ...

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