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Way back in law school our moot court topic involved allegations of “wrongful birth” or “wrongful conception.”  The plaintiffs alleged that a doctor failed to detect a catastrophic birth defect, thus depriving the parents of the option to terminate the pregnancy.  The case involved intractable moral/philosophical  and, thus, legal issues.  That “thus” feels mandatory, but perhaps will not withstand rigorous analysis.  Nevertheless, it’s a touchy subject.  Such claims suggest, at least implicitly, that it might be better never to have been yanked from the void into this maelstrom of meat.  Many people recoil from that notion.  When a recent New Yorker article quoted the father of the Newtown, Ct shooter as wishing his son had never been born, the sentiment seemed both sensible and shocking.

Law school seems like a long time ago, and the intervening years have been blissfully bereft of issues of wrongful conception.  But a case last week caught our eye and contains some of these same issues, as well as others that are more typical in our practice.  The case was Vanden Bosch v. Bayer Healthcare Pharmaceuticals, Inc., 2014 U.S. Dist. LEXIS 48055 (W.D. Ky. April 8, 2014), and it concerned an intrauterine contraceptive system.  One of the plaintiffs, Ms. Vanden Bosch, was an Indiana resident.  She claimed that the contraceptive system caused her to suffer from interstitial cystitis.  The other two plaintiffs were Kentucky residents.  They were a mother and daughter.  The mother claimed that the contraceptive caused a chromosome deletion and that, consequently, the daughter was born with severe genetic defects.

The first issue was choice of law.  This topic can seem dry, but it can be outcome dispositive and in this case we were treated to a rather colorful statement of law that Kentucky courts “are very egocentric or protective concerning choice of law questions” and there is a “strong preference in Kentucky for applying Kentucky law”.  Vanden Bosch, 2014 U.S. Dist. LEXIS 48055 at *7.  Kentucky has a one year statute of limitations and plaintiff Vanden Bosch acknowledged that her claim was barred if that one-year rule applied.  She tried to escape the one year rule, but could not.  In responding to the defendant’s motion to dismiss, Vanden Bosch submitted an affidavit stating that the Amended Complaint “mistakenly alleges the place of the device insertion as Louisville, Kentucky” and that to the best of her recollection, her contraceptive device was actually inserted in Indiana.  Indiana had a longer SOL.  But the court refused to consider these new facts, as they were outside of the pleadings.   Id. at *9 n. 2.  It does not much matter, because Kentucky’s borrowing statute applies the statute of limitations of another state only when a cause of action arose in that state and only when the other state has a shorter statute of limitations.  The real problem for Vanden Bosch was the filing of her case in Kentucky.

And now we get to the wrongful conception issue.  To the extent that plaintiff Hogue was trying to recover damages based on the birth of her daughter, the court was having none of it:  “A parent has no cognizable legal injury when alleged wrongdoing results in a genetically or congenitally impaired human life, even severally impaired….”  Id. at *17.  Put another way, a “child’s life cannot be considered a legally cognizable injury.”  Id. at *18.  That’s it.  There is considerably less agonizing over that issue than we recall from our law school exercise.  Real life can be cut and dry.  Law school never is.    The former pays better.

The rest of the plaintiffs’ tort claims were relatively quotidian.   The claim for negligent design and manufacturing encountered the usual problem; the plaintiffs did not actually allege how the device was defectively designed, nor did they allege how their specific devices were defective due to manufacturing.  “It is not enough for Plaintiffs to simply rely on their basic injury allegations and argue that the product was somehow defective because it was ‘dangerous.’”  Id. at *25.  The plaintiffs asserted that the products were in an “unsafe, defective, and inherently dangerous condition,” and that they were defectively designed because they were “not  reasonably fit, suitable, or safe” for their intended purpose.  They never alleged what part of their devices failed-or that their devices broke or malfunctioned once inserted.  The plaintiffs also failed to allege specific facts to support their manufacturing defect claim.  They did not allege any specific manufacturing defect that occurred with their products and did not allege how their specific contraceptive products differed from Bayer’s specifications.  Goodbye negligence claims, right?  Well, mostly.  The court did not completely knock out the negligence cause of action, because the defendant did not challenge that cause of action insofar as it addressed “researching, marketing, supplying, promoting, packaging, sale, testing, quality assurance, quality control and/or distribution” of the device.  Id. at *25-26.  Really?  We cannot believe the motion to dismiss did not reach those issues.  Nor can we figure out how researching, packaging, testing, QA, and QC manage to linger after design and manufacturing claims go by the boards.

Strange to say, but the plaintiffs’ fraud-based claims, which must satisfy a higher pleading standard, fared better.  Fed. R. Civ. P. 9(b) requires plaintiffs to show: (1) the time, place, and content of any allegedly false representations; (2) the fraudulent scheme; (3) the defendant’s fraudulent intent; and (4) the resulting injury.  The plaintiffs argued for “a less stringent pleading standard” on the ground that they were alleging sins of omission rather than commission.  The court did not buy it.  But the court did buy the plaintiffs’ argument that they  had satisfied Rule 9(b) when they identified the type and source of communications (i.e. pamphlets, brochures, and commercials), identified when they received such communications (i.e. “on or around” the time of the contraceptive insertions), and alleged that the communications “omitted, concealed, downplayed,
underreported and underestimated the dangers” of the device.  Id. at *33-39.  Yikes.  The court seems to have performed rough dentistry on Rule 9(b), removing most of its teeth.

Just when we are about to toss the decision into the circular file, trying to forget it as completely as we contrived to forget that moot court assignment, the court revives our faith in judicial modesty and common sense by refusing to read into Kentucky products liability law an independent failure to test claim.  Id. at *42.  The court also threw out the claims for implied warranty for want of privity.  Id. at *48.  Sadly, though, the court resorted to an exception to the privity requirement for the express warranty claim, reasoning that such a claim “can be maintained…where…express warranties were clearly intended for the product’s consumers.”  Id. at *52.  The plaintiffs alleged that certain television commercials, pamphlets, or brochures implied that the contraceptive had been tested and was found to be safe and effective for contraceptive purposes.  The court was agnostic on these allegations, content to wait for them to be “better fleshed out at the summary judgment stage.”  Id. at *47.

The Amended Complaint included a section entitled “Federal Requirements,” alleging violations of federal law.  The allegations were as vague as such things invariably are, and the defendant filed a motion to strike.  For one thing, the “Federal Requirements” section did not bother to indicate that the plaintiffs were harmed by any violation.  We can understand how any defendant would want to excise from a complaint any allegations that are improper and potentially prejudicial.  It always make sense to clear the underbrush.  It makes for cleaner and leaner discovery and trial.  But the court considered striking a pleading to be “a drastic remedy to be resorted to only when required for the purposes of justice” and only when “the pleading to be stricken has no possible relation to the controversy.”   Id. at *56.  Because the defendant did not contend that the allegations were immaterial, impertinent, or scandalous but, instead, only that they were  vague (in fact, the allegations were all of those things), the court declined to wield the judicial red pen.

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After we were done with law school and all things law school-ish, such as moot courts, late nights in the library, sweating over the Socratic method in first year, and blithely uttering “pass” in third year, we went on the almost mandatory backpack trek through Europe before joining a law firm.  It’s like the reverse of that architectural technique of compression-and-release.  One day we were trudging through a field in Ireland.  We saw a farmer leaning against a fence.  He was reading a book.  In a preemptive strike of friendliness (always tough to pull off among the supremely chummy Irish), we asked the farmer how the book was.

“Well,” he said, “some parts I like, some parts I’m not so sure about, and some parts I haven’t gotten to yet.”   That’s how we feel about the Vanden Bosch decision.  Some parts we like.  Some parts seem lazy or weird.  And in some parts the court seems to have accorded undue leniency to the plaintiffs, though summary judgment hovers just off-stage.