21 F.4th 1183
9th Cir.2022Background
- In Dec 2009 Yesenia Pacheco sought contraception (Depo‑Provera) to avoid an unwanted pregnancy; she received injections periodically through July 2011.
- On Sept 30, 2011, a NeighborCare employee mistakenly administered a flu vaccine instead of Pacheco’s scheduled Depo‑Provera, and Pacheco did not learn of the error until December 2011 when a pregnancy test was positive.
- Pacheco did not intend to become pregnant then; the district court found that but for the missed Depo‑Provera she would not have conceived.
- The child, S.L.P., was born in Aug 2012 with epilepsy and bilateral perisylvian polymicrogyria, requiring substantial future medical care.
- The district court found the United States negligent under the FTCA and awarded about $10 million, including $7.5 million for S.L.P.’s future special damages.
- The Ninth Circuit determined the dispositive legal question — whether Washington law permits extraordinary child‑rearing damages in wrongful birth/wrongful life claims when contraceptive negligence occurred absent any reason to suspect defects — is unsettled and certified that question to the Washington Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WA allows extraordinary damages for child‑rearing costs in wrongful birth/wrongful life when contraceptive care was negligently provided but parents had no reason to fear birth defects | Non‑negligent contraception is a duty; breach that is a but‑for cause of a defective child supports extraordinary damages | Duty is limited to risks defendant knew or should have foreseen; absent concern about defects, no duty to pay extraordinary child‑rearing costs | Ninth Circuit found the issue unsettled and certified it to the Washington Supreme Court |
| Scope of duty/foreseeability: does general contraceptive negligence encompass the risk of congenital defects | Plaintiffs: incidence of birth defects makes such harms foreseeable enough to fall within duty | U.S.: harm is too remote; duty concerns only unwanted pregnancy/birth, not subsequent specific medical conditions | Unresolved under Washington law; certified for state court clarification |
| Proper application/limits of Harbeson (wrongful birth/wrongful life) — must the negligent act be aimed at preventing defective births specifically? | Plaintiffs: Harbeson’s but‑for causation and duties to prevent conception support recovery even when contraception was sought only to avoid an unwanted child | U.S.: Harbeson is limited to failures to warn or procedures aimed at preventing defective births (sterilization/abortion), so it does not reach routine contraception errors | Court concluded Washington precedent is ambiguous on this point and certified the question |
Key Cases Cited
- Harbeson v. Parke‑Davis, Inc., 656 P.2d 483 (Wash. 1983) (recognizing wrongful birth and wrongful life causes; elements and available damages)
- McKernan v. Aasheim, 687 P.2d 850 (Wash. 1984) (parents may not recover child‑rearing costs where a failed contraceptive resulted in a healthy child; other pregnancy/birth damages remain recoverable)
- Christen v. Lee, 780 P.2d 1307 (Wash. 1989) (analyzing duty by reference to the general type of harm a defendant should anticipate)
- Maltman v. Sauer, 530 P.2d 254 (Wash. 1975) (rescue‑doctrine/duty analysis emphasizing remoteness of harm)
- Quimby v. Fine, 724 P.2d 403 (Wash. Ct. App. 1986) (post‑failed tubal ligation wrongful birth appeal focusing on statute of limitations; does not resolve foreseeability question)
- Wuth ex rel. Kessler v. Lab. Corp. of Am., 359 P.3d 841 (Wash. Ct. App. 2015) (child born with defects after genetic testing failures permitted wrongful life damages)
- Putman v. Wenatchee Valley Med. Ctr., P.S., 216 P.3d 374 (Wash. 2009) (medical malpractice claims are grounded in common‑law negligence principles)
- McKown v. Simon Prop. Grp., Inc., 344 P.3d 661 (Wash. 2015) (existence of legal duty is a question of law for the court)
- Rikstad v. Holmberg, 456 P.2d 355 (Wash. 1969) (foreseeability/duty framed as whether the actual harm fell within the general field of danger to be anticipated)