Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doherty v. Merck & Co., Inc.

United States Court of Appeals, First Circuit

June 18, 2018

KAYLA DOHERTY, Plaintiff, Appellant,


          Laura H. White, with whom Bergen & Parkinson, LLC was on brief, for appellant.

          Steven 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.

          Susan 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.

          Andrew 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.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         Kayla 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.


         We 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.[1] 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.

         Doherty 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 June 2014.

         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.

         The 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.[2] Merck also moved to dismiss in reliance on the state statute.

         The 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 follows:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.