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.