Doherty v. Merck & Co., Inc.

United States Court of Appeals
For the First Circuit

No. 17-1997

KAYLA DOHERTY,

Plaintiff, Appellant,

v.

MERCK & CO., INC.; THE UNITED STATES OF AMERICA,

Defendants, Appellees,

ATTORNEY GENERAL FOR THE STATE OF MAINE,

Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

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.

June 18, 2018
 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.

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.

III.

Unpersuaded by Doherty's discernible arguments, and

uncompelled to address any hints of other arguments free of

development in her brief, we affirm.

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