Doherty v. Merck & Co., Inc.

In January 2012, Kayla Doherty (plaintiff) visited a healthcare center in Maine regarding options for birth control. The physician who saw Doherty recommended an implantable birth-control drug manufactured by Merck and Company, Incorporated (defendant). The drug was contained in a rod that was designed to be inserted into a patient’s upper arm. The drug was effective for at least three years unless removed earlier. A month later, Doherty returned for the implantation procedure. However, the physician did not check Doherty’s arm to ensure the rod had been properly inserted. In October 2013, Doherty took a pregnancy test, which indicated that she was pregnant. An examination of Doherty’s arms failed to locate the rod. A nurse opined that she believed the rod was never inserted. In June 2014, Doherty gave birth to a healthy boy. Doherty had experienced some negative physical and mental effects, incurred expenses, and lost wages due to the pregnancy. Doherty sued Merck in federal district court for damages resulting from the pregnancy under theories of product liability, breach of warranty, and negligence. The federal district court certified three questions of state law to the Maine Supreme Judicial Court. First, does Maine’s wrongful-birth statute protect drug manufacturers? Second, if not, does a previous court decision concerning a failed sterilization apply? Third, does the wrongful-birth statute prevent all recovery for Doherty because of the nature of the procedure she underwent, or may she recover limited damages related to the pregnancy?