FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
H. White, with whom Bergen & Parkinson, LLC was on brief,
J. Boranian, with whom Thomas J. Yoo, Reed Smith LLP, Paul
McDonald, Daniel J. Mitchell, and Bernstein Shur were on
brief, for appellee Merck & Co., Inc.
P. Herman, Deputy Attorney General, with whom Janet T. Mills,
Attorney General, and Christopher C. Taub, Assistant Attorney
General, Senior Litigation Counsel, were on brief, for
intervenor appellee Attorney General for the State of Maine.
K. Lizotte, Assistant United States Attorney, with whom
Richard W. Murphy, Acting United States Attorney, and John G.
Osborn, Civil Chief, were on brief, for appellee United
States of America.
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
Doherty became pregnant while supposedly protected by a
contraceptive implant manufactured by Merck & Co., Inc.
After she gave birth to a healthy child, she brought this
lawsuit against Merck, claiming that the implant and/or its
applicator were defective. She also sued the federal
government under the Federal Tort Claims Act, claiming that
her doctor at a federally-funded community health center
committed malpractice in unsuccessfully implanting the Merck
product. Confronted with Maine's "Wrongful Birth
Statute, " which bars any claim for relief in these
circumstances, Doherty presses several constitutional
challenges to that statute. For the following reasons, we
find that these challenges as presented on appeal fail.
assume (without deciding) that the following allegations,
contained in Doherty's operative complaint, are true.
See Calderón-Ortiz v. LaBoy-Alvarado, 300
F.3d 60, 62-63 (1st Cir. 2002). In January 2012, Doherty
visited the Lovejoy Health Center ("Center") in
Albion, Maine to inquire about birth control options. Because
the Center is a federally funded community health center,
suits based on its employees' conduct can be brought
against the United States under the Federal Tort Claims Act
("FTCA"). 28 U.S.C. § 1346(b). While at the
Center, Doherty met with a doctor, who recommended
implantable contraception in the form of either Implanon or
Nexplanon. Implanon and Nexplanon are manufactured and sold
by Merck & Co., Inc. ("Merck") and are forms of
hormonal birth control that prevent pregnancy by inhibiting
ovulation. The implant comes in the form of a small
(four centimeters by two centimeters) rod that is inserted
below the skin on the inner side of a woman's arm,
between the bicep and tricep muscles, via a syringe-type
applicator that Merck sells together with the implant. The
implant provides contraception for at least three years.
returned to the Center a month later for insertion of the
implant. Her doctor used a syringe to insert the implant into
Doherty's arm but did not examine her arm to ensure that
it was properly inserted. About a year and a half later,
Doherty learned she was pregnant. She visited a hospital in
Waterville, Maine to have her implant removed but the
hospital staff was unable to locate it in her arm. The
following day, a nurse from the Center told Doherty that the
doctor who had administered her implant "believes it was
never inserted." Morally opposed to abortion, Doherty
carried her baby to term. She gave birth to a healthy boy in
April 2015, Doherty filed suit in federal court against Merck
(asserting claims for strict products liability, breach of
implied and express warranty, negligence, and negligent
misrepresentation) and against the United States for the acts
of the Center's doctor (asserting claims of medical
negligence and informed consent). Doherty alleged that as a
result of the defendants' actions, she experienced
physical pain and suffering, incurred medical expenses, and
suffered lost wages due to her pregnancy. She also alleged
that since her son's birth, she has undergone mental
health counseling associated with the distress of rearing a
child as a single mother.
United States moved to dismiss Doherty's complaint on the
grounds that the district court lacked jurisdiction under the
FTCA because the operation of Maine's Wrongful Birth
Statute, Me. Rev. Stat. Ann. tit. 24, § 2931, barred
Doherty from suing for damages stemming from the birth of a
healthy child. Merck also moved to dismiss in reliance on
the state statute.
Wrongful Birth Statute was proposed in the Maine legislature
as part of legislation aimed at making it more difficult to
recover damages from doctors for malpractice, thereby
reducing malpractice insurance premiums and, in turn,
healthcare costs. While the legislation was pending,
Maine's Supreme Judicial Court, sitting as the Law Court,
weighed in on the common law viability of claims arising out
of a failed sterilization. See Macomber v. Dillman,
505 A.2d 810 (Me. 1986). The Law Court held "for reasons
of public policy" that, under Maine common law, a parent
could not recover damages for the birth and rearing of a
healthy child. Id. at 813. The court did, however,
allow the plaintiff to recover medical expenses associated
with her failed tubal ligation and damages associated with
her pregnancy. Id. Maine's legislature then
amended the proposed legislation to include an exception to
the no-recovery rule for failed sterilization procedures,
apparently in an effort to mirror Macomber. As
ultimately enacted, the law reads in material part as
1. Intent. It is the intent of the Legislature that the birth
of a normal, healthy child does not constitute a legally
recognizable injury and that it is contrary to public policy
to award ...