154 A.3d 1202
Me.2017Background
- Kayla Doherty alleged that in Feb 2012 a physician at a federally funded clinic failed to insert a Merck-manufactured contraceptive implant because the applicator was defective, resulting in an unintended pregnancy and the birth of a healthy child in June 2014.
- Doherty sued Merck (product liability, negligence, breach of warranty, negligent misrepresentation) and the United States (medical negligence, lack of informed consent).
- Defendants moved to dismiss under Maine’s "wrongful birth" statute, 24 M.R.S. § 2931, which bars recovery for the birth and rearing of a healthy child but allows limited damages for a "failed sterilization procedure."
- The U.S. District Court certified three questions of Maine law to the Maine Supreme Judicial Court about: (1) whether § 2931 applies to a drug manufacturer like Merck; (2) whether Macomber v. Dillman applies to Merck; and (3) whether the failed-sterilization exception covers Doherty’s facts or limits her recoverable damages.
- The Law Court accepted certification, treated the complaint’s factual allegations as true for purposes of the questions, and answered that § 2931 applies to Merck and that Doherty cannot recover any damages under § 2931 on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maine's wrongful birth statute, 24 M.R.S. § 2931, applies to Merck (a drug manufacturer/distributor) | § 2931 should not bar claims against Merck because it targets health-care providers, not product manufacturers | § 2931 bars any claim seeking damages for the birth and rearing of a healthy child, regardless of defendant identity | Held: § 2931 applies to Merck; the statute bars claims based on the birth and rearing of a healthy child against any defendant |
| Whether Macomber v. Dillman (failed sterilization by a provider) governs claims against Merck | Macomber’s reasoning should extend to manufacturers if the effect is the same as failed sterilization | Macomber is displaced by the statutory language of § 2931 and the Legislature’s occupation of the field | Declined to answer (question conditioned on a negative answer to Q1); Court noted Macomber has no independent vitality after § 2931’s enactment |
| Whether the "failed sterilization procedure" exception applies (i.e., is the implant a sterilization procedure) and what damages, if any, are recoverable | The long-acting implant is functionally equivalent to sterilization; thus the exception should permit limited damages | "Sterilization procedure" means medical/surgical procedures intended to permanently render incapable of procreation; reversible contraception and implants are not sterilization | Held: Exception does not apply; § 2931 allows no recovery on these facts (only limited damages for failed sterilization procedures, which do not include reversible implants) |
Key Cases Cited
- Macomber v. Dillman, 505 A.2d 810 (Me. 1986) (failed sterilization case referenced regarding wrongful birth claims)
- Musk v. Nelson, 647 A.2d 1198 (Me. 1994) (statutory interpretation: expressio unius rule applied to § 2931’s limited damages)
- Thibeault v. Larson, 666 A.2d 112 (Me. 1995) (confirming § 2931 permits only limited damages for failed sterilization)
- Skinner v. Oklahoma, 316 U.S. 535 (1942) (discussing permanency and gravity of sterilization)
- Cheng v. Attorney General, 623 F.3d 175 (3d Cir. 2010) (distinguishing permanent sterilization from reversible contraception)
- Miller v. Town of Wenham, 833 F.3d 46 (1st Cir. 2016) (pleading standard: accept well-pled facts as true for Rule 12(b)(6) review)