Date: 06-21-2018

Case Style:

Case Number: 17-1997

Judge: Kayatta

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Laura H. White

Defendant's Attorney: 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.

Description: 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.
I.
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
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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,
1 Doherty's complaint does not specify whether she arranged
to receive Implanon or Nexplanon. For simplicity, we refer to
Doherty's contraception as "the implant."
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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
2 A suit under the FTCA is governed by the substantive tort
law of the "place where the act or omission occurred." 28 U.S.C.
§ 1346(b)(1).
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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 damages for the birth
or rearing of a healthy child.
2. Birth of healthy child; claim for damages
prohibited. No person may maintain a claim
for relief or receive an award for damages
based on the claim that the birth and rearing
of a healthy child resulted in damages to him.
A person may maintain a claim for relief based
on a failed sterilization procedure resulting
in the birth of a healthy child and receive an
award of damages for the hospital and medical
expenses incurred for the sterilization
procedures and pregnancy, the pain and
suffering connected with the pregnancy and the
loss of earnings by the mother during
pregnancy.
Me. Rev. Stat. Ann. tit. 24, § 2931.
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In response to the motions to dismiss, Doherty filed an
amended complaint, reasserting her original claims and adding a
request for a declaratory judgment that Maine's Wrongful Birth
Statute is unconstitutional under the Maine and federal
Constitutions, both on its face and as applied. In the
alternative, Doherty sought a declaratory judgment that the
statute does not apply to her. Also in her amended complaint,
Doherty, for the first time, characterized the implant as a "type
of sterilization procedure."
The defendants responded with a second round of motions
to dismiss. Doherty opposed the motions and moved to certify
various questions regarding the interpretation and
constitutionality of the Wrongful Birth Statute to the Maine Law
Court. Meanwhile, the district court allowed the Attorney General
for the State of Maine to intervene to defend the constitutionality
of the statute. After holding a hearing, the district court
certified the following three questions to the Law Court:
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?
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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?
The Law Court answered the first question in the
affirmative, finding that the statute unambiguously bars a
specific category of claims, regardless of the identity of the
defendant. It declined to answer the second question but did note
that the Maine legislature had "occupied the field on this issue"
and that Macomber therefore no longer had "independent
jurisprudential vitality." The Law Court then answered the third
question in the affirmative, finding that Doherty did not qualify
for the statute's sterilization exception because the implant she
sought was a "temporary pharmaceutical intervention" and was not
designed to be irreversible. The Law Court declined to analyze
the constitutionality of the statute, leaving those issues for the
district court to decide. After an additional round of briefing,
the district court dismissed Doherty's case, rejecting her
constitutional challenges to the Wrongful Birth Statute. This
appeal followed.
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II.
In light of the Law Court's ruling, the only issues
before us concern Doherty's challenges to the constitutionality of
the Wrongful Birth Statute under the Maine and federal
Constitutions. We review such challenges de novo. See United
States v. Caro-Muñiz, 406 F.3d 22, 26 (1st Cir. 2005).
A.
One of Doherty's principal arguments on appeal rests on
the "open courts" guarantee in Maine's Constitution. That
provision states: "[e]very person, for an injury inflicted on the
person or the person's reputation, property or immunities, shall
have remedy by due course of law." Me. Const. art. I, § 19.
Doherty argues that, in so stating, the open courts guarantee
prohibits the state legislature from eliminating or severely
limiting a cause of action available at common law.
In a careful and well-supported opinion, the district
court judge explained why the "open courts" guarantee in Maine's
Constitution provides no reason to strike down the Wrongful Birth
Statute. In a nutshell, Maine's "open courts" guarantee only
applies to wrongs "recognized by law as remediable in a court,"
Doherty v. Merck & Co. Inc., 2017 WL 3668415, at *4 (D. Me. Aug.
24, 2017) (quoting Godbout v. WLB Holding, Inc., 997 A.2d 92, 94
(Me. 2010)), and does not prevent the legislature from deeming an
event to be not remediable as long as the legislature clearly
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manifests its intent to do so, id. at *2 (citing Gibson v. Nat'l
Ben Franklin Ins. Co., 387 A.2d 220, 223 (Me. 1978)).
On appeal, Doherty argues that none of the Maine cases
upon which the district court relied approved an absolute
substantive bar to recovery. Rather, she contends, they approved
of procedural impediments such as a limitations period, see, e.g.,
Godbout, 997 A.2d at 93–94, that still left a diligent plaintiff
with some meaningful remedy.
Doherty's description of the cases cited by the district
court is accurate. But her conclusion that Maine law therefore
welcomes her view of the open courts guarantee is not. Just last
year, the Law Court recognized that "[t]he Legislature retains the
power to determine which types of claims are available in court by
limiting or even abolishing common law tort claims and causes of
action." Gaudette v. Davis, 160 A.3d 1190, 1205 (Me. 2017)
(emphasis added). As an example, Maine long ago eliminated --
without any apparent challenge -- any cause of action for
alienation of affection. Me. Rev. Stat. Ann. tit. 14, § 301. And
it was the state's highest court that actually pronounced that
Maine common law did not recognize the birth of a healthy child as
a remediable injury. See Macomber, 505 A.2d at 813. Doherty
nevertheless claims support for her view in Maine's adoption of
the rule that statutes in derogation of the common law need be
strictly construed. See Ziegler v. Am. Maize-Products Co., 658
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A.2d 219, 222 (Me. 1995) (restating a rule traceable to Palmer v.
Inhabitants of Town of Sumner, 177 A. 711, 713 (Me. 1935)). But
such a rule plainly presumes that legislation can indeed derogate
the common law. Maine's Constitution appears to preclude the
elimination of a cause of action for breach of contract, see Me.
Const. art. I, § 11; cf. Clark v. Rust Eng'g Co., 595 A.2d 416,
419 (Me. 1991) ("The contract clause of the Maine Constitution
tracks the language of the cognate federal provision."), but this
preclusion would not be necessary were Doherty correct.
So, while Maine's open courts guarantee may call for a
"remedy by due course of law" when there is a remediable injury,
it guarantees Doherty no independent protection from the
legislature's ability to decide what events or effects qualify as
a remediable injury. We need say no more to reject Doherty's
challenges to the district court's conclusion that the Wrongful
Birth Statute does not run afoul of this provision of Maine's
Constitution. See Waldron v. George Weston Bakeries Inc., 570
F.3d 5, 9 (1st Cir. 2009) ("[W]hen a district court adroitly takes
the measure of a case and articulates a persuasive rationale in
disposing of it, there is scant need for a reviewing court to write
at length merely to hear its own words resonate.").
B.
Similar reasoning also disposes of Doherty's argument
under Maine's jury trial provision. The Maine Constitution
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guarantees the right to a trial by jury "[i]n all civil suits, and
in all controversies concerning property."3 Me. Const. art. I,
§ 20. Because Doherty cannot maintain a civil suit, she has no
corresponding right to try such a nonexistent suit, much less to
try it to a jury.
C.
So, too, goes Doherty's argument that the Wrongful Birth
Statute violates her First Amendment right under the federal
Constitution to "petition the Government for a redress of
grievances." U.S. Const. amend. I. While it is true that the
right of petition includes access to the courts, see BE & K Const.
Co. v. NLRB, 536 U.S. 516, 525 (2002), that right is "ancillary to
the underlying claim," Christopher v. Harbury, 536 U.S. 403, 415
(2002). Because Doherty has no underlying claim, she has no First
Amendment right to petition the courts for redress of such a
nonexistent claim.
3 Because the Seventh Amendment of the federal Constitution
limits only the federal government, see González-Oyarzun v.
Caribbean City Builders, Inc., 798 F.3d 26, 29–30 (1st Cir. 2015)
(per curiam), we do not address Doherty's argument that Maine's
Wrongful Birth Statute violates that provision. Were we to reach
the argument, it would fail for the reasons set forth in this
section.
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D.
Doherty next contends that the Wrongful Birth Statute
infringes on her fundamental right to privacy.4 As to how this
infringement occurs, Doherty asserts only that "[b]y placing a
value judgment on and morally reinforcing the decision to give
birth to a child in the face of unintended pregnancy, the Court
has impermissibly stepped into these private liberty matters."
Even if we agreed with this characterization, Doherty
offers no analysis suggesting that the indirect interference about
which she complains would trigger strict scrutiny. While there
may be good reasons to distinguish the Wrongful Birth Statute from
the line of precedent on which the defendants rely, see Harris v.
McRae, 448 U.S. 297, 315, 324 (1980) (applying rational basis
review to a statute that "encourages alternative activity [to
abortion]"); Maher v. Roe, 432 U.S. 464, 474 (1977) (applying
rational basis review to a regulation that "may have made
childbirth a more attractive alternative, thereby influencing the
woman's decision"), other than simply repeating her bald
assertions that there must be a judicial remedy for any injury,
Doherty has failed to develop an argument in favor of drawing such
a distinction. Nor does she suggest that the result might be
4 "[T]he substantive due process rights of the United States
and Maine Constitutions are coextensive." Doe I v. Williams, 61
A.3d 718, 737 (Me. 2013).
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different under the Maine Constitution. It is a familiar refrain
in this circuit that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
Doherty makes no argument that some other form of
heightened review should apply to her claim that the Wrongful Birth
Statute in some indirect manner influences the choice whether to
give birth. Insofar as Doherty argues that the statute cannot
survive rational basis review, a question we take up next, she
provides no basis for so concluding.
Under the rational basis standard of review,
"legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest." City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 440 (1985). Doherty bears "the burden
of demonstrating that there exists no fairly conceivable set of
facts that could ground a rational relationship between the
challenged classification and the government's legitimate goals."
Eulitt ex rel. Eulitt v. Maine, Dep't of Educ., 386 F.3d 344, 356
(1st Cir. 2004).
Here, again, we have little to add to the district court
opinion setting forth the several rational bases sufficient to
sustain the statute. Briefly summarized, the district court
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opinion points to the public policy pronouncements adopted by the
Law Court in Macomber and the cost savings considerations behind
the legislation of which the Wrongful Birth Statute was a part.
Whether or not one agrees with these rationales, they are rational.
And the Maine legislature could have rationally believed that the
Wrongful Birth Statute could help achieve these objectives. Cf.
Musk v. Nelson, 647 A.2d 1198, 1202 (Me. 1994) ("Limiting the
availability of the discovery rule [to extend the statute of
limitations] bears a rational relationship to the Legislature's
goal to reduce malpractice insurance premiums and control the cost
of health care.").
Doherty points out that a law can fail even rational
basis review when the state's objectives are themselves invalid.
But she does not explain why the case she cites in support of this
proposition, City of Cleburne, Tex v. Cleburne Living Ctr., should
govern here. In City of Cleburne, the Supreme Court struck down,
on rational basis review, the application of a zoning ordinance to
a planned living center for individuals with mental disabilities.
473 U.S. at 447–50. It rejected the city's purported
justifications -- concern over negative attitudes of nearby
property owners and fear that students at a junior high school in
the neighborhood would harass occupants of the center -- on the
grounds that accommodating private biases is not a legitimate
interest. Id. Elsewhere in her brief, Doherty offers bare
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assertions that bias is driving the government action in this case,
but she does not tie these assertions to her argument under City
of Cleburne. Rather, Doherty contends that Maine's purported
interests are not rational because unintended motherhood forces
women into welfare and onto the state's payroll. Even if this
were the case, Doherty does not explain how it renders irrational
the state's pursuit of its interest in reducing malpractice
premiums and healthcare costs. Her remaining assertion that other
portions of the legislation passed along with the Wrongful Birth
Statute "already reduce[] healthcare costs" is simply a policy
argument, ill-suited to rational basis review, about how far Maine
should go to limit malpractice recovery at the margins. We
therefore find that Doherty's arguments that the Wrongful Birth
Statute is not rationally related to a legitimate governmental
interest are insufficient to withstand a motion to dismiss.
E.
Toward the end of Doherty's opening brief, she includes
two very short paragraphs with four footnotes asserting, in
conclusory form, that "the [Wrongful Birth Statute] contains a
gender-based classification and has a disparate impact on women."
Merck's opposition brief then reviews in detail the case law and
concepts that would need to be addressed to develop an equal
protection challenge to part or all of the statute. Doherty's
Reply offers no response. Such a skimpy effort to advance an issue
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-- much less a constitutional challenge to a state statute --
waives the issue. See Zannino, 895 F.2d at 17. We therefore have
no occasion to opine on the merits of a gender discrimination
challenge to Maine's Wrongful Birth Statute.

Outcome: Unpersuaded by Doherty's discernible arguments, and
uncompelled to address any hints of other arguments free of
development in her brief, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments: