Rowlette et al v. Mortimer et al
Filing
1
COMPLAINT against Gerald Mortimer, Obstetrics and Gynecology Associates of Idaho Falls, PA, Linda mortimer ( Filing fee $ 400 receipt number 0976-1717953.), filed by Kelli Rowlette, Howard Fowler, Sally J Ashby. (Attachments: # 1 Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 1 of 14
1
2
3
Shea C. Meehan,ISB #6407
Walker Heye Meehan & Eisinger,PLLC
1333 Columbia Park Trail, Ste 220
Richland, WA 99352
4
Telephone:(509)735-4444
Fax:(509)735-7140
5
smeehan@walkerheve.com
Attorneys for Plaintiffs
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9
IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF IDAHO
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12
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KELLI ROWLETTE,an individual,
SALLY ASHBY,an individual, and
HOWARD FOWLER,an individual.
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Plaintiffs,
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Cause No.
COMPLAINT
V.
GERALD E. MORTIMER,M.D.,
LINDA G. McKINNON MORTIMER,
[Demand for Jury Trial]
and the marital community comprised
18
19
thereof, and OBSTETRICS AND
GYNECOLOGY ASSOCIATES OF
IDAHO FALLS,P.A, an Idaho
20
professional corporation.
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Defendants.
PARTIES.JURISDICTION & VENUE
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1.
Plaintiff Kelli Rowlette(Mrs. Rowlette) is a United States citizen and
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a married person domiciled in Benton County, within the Eastern District of
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Washington.
COMPLAINT -1
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALICER
HEYE
MEEHAN
EISINGER^
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 2 of 14
^
2.
Plaintiff Sally Ashby (Ms. Ashby) is a United States citizen and a
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single person domiciled in Benton County, within the Eastern District of
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^ Washington.
5
6
3.
Plaintiff Howard Fowler(Mr. Fowler) is a United States citizen and a
married person domiciled in Benton County, within the Eastern District of
7
Washington.
8
9
4.
Defendant Gerald E. Mortimer, M.D.,(Dr. Mortimer) is a physician
10 licensed in the State of Idaho, license number M-3709 with a specialty in
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Obstetrics and Gynecology(OB/GYN).
12
5.
Dr. Mortimer and Linda G. McKinnon Mortimer(Mrs. Mortimer) are
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husband and wife, comprise a marital community under the laws of the State of
15 Idaho, are United States Citizens, and are domiciled in Bonneville County, within
the District of Idaho. The acts and omissions complained of herein were for the
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benefit ofthe marital community.
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6.
Defendant Obstetrics and Gynecology Associates ofIdaho Falls, P.A.,
(OGA)is professional corporation incorporated under the laws of Idaho, domiciled
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with its principal place of business in Bonneville County, within the District of
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Idaho. Dr. Mortimer was an employee acting in the course and scope of his
24 employment with OGA when the acts and omissions complained of herein
occurred
COMPLAINT-2
1333 Columbia Park Trail, Suite 220
Richland,WA 99352
P(509)735-4444
F(509)735-7140
WALKiR
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 3 of 14
'
7.
The matters in controversy complained of herein exceed $75,000.00,
2
exclusive of interests and costs, are between citizens of different states, and
3
^ occurred in Bonneville County, within the District of Idaho.
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8.
The Court has jurisdiction pursuant to 28 U.S.C. § 1332
^
9.
Venue is proper pursuant to 28 U.S.C. § 1391.
^
FACTS
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^
10. In 1979 Ms. Ashby and Mr. Fowler were a married couple residing in
10 Idaho Falls, Idaho. At the time, Mr. Fowler was stationed at the Naval Reactors
11
Facility approximately 50 miles northwest of Idaho Falls. The couple were having
12
difficulty conceiving a child and became patients of OGA under the care of Dr.
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Mortimer, an OB/GYN.
11.
Dr. Mortimer examined Ms. Ashby and Mr. Fowler to ascertain what
may be causing their reproductive difficulties. Ultimately, Dr. Mortimer diagnosed
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Ms. Ashby with a tipped uterus and diagnosed Mr. Fowler with a low sperm count
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19 and low sperm motility.
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12.
Dr. Mortimer recommended that Ms. Ashby and Mr. Fowler undergo
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a procedure whereby donor sperm/semen (hereinafter "genetic material") would be
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mixed with Mr. Fowler's genetic material in the medical lab prior to insemination
24 to increase the chances of conception. Dr. Mortimer represented that 85% of the
mixture would be Mr. Fowler's genetic material, while 15% of the mixture would
COMPLAINT - 3
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 4 of 14
1
be genetic material from an anonymous donor of characteristics selected by Ms.
2
Ashby and Mr. Fowler. Dr. Mortimer would then inseminate Ms. Ashby with the
3
^ mixture(the Procedure).
5
13.
Ms. Ashby and Mr. Fowler agreed to try the Procedure, but only if Dr.
^ Mortimer could find a donor with the following characteristics: a college student
7
who physically resembled Mr. Fowler and, to that end, the donor would have
8
^ brown hair, blue eyes, and would be over six (6)feet tall.
10
14.
Dr. Mortimer represented to Ms. Ashby and Mr. Fowler that he had
'' access to genetic material from a donor matching their requirements. Relying on
12
this representation from their trusted physician, Ms. Ashby and Mr. Fowler agreed
13
14 to P^y Dr. Mortimer to perform the Procedure with the donor genetic material and
•5
Mr. Fowler's genetic material combined. Ms. Ashby and Mr. Fowler also agreed
to pay for access to the donor genetic material which was to be used for the
17
Procedure.
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15.
Dr. Mortimer collected genetic material from Mr. Fowler for use in
the Procedure on several occasions.
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16.
Dr. Mortimer ultimately performed the Procedure. However, instead
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of using donor genetic material and Mr. Fowler's genetic material as promised. Dr.
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Mortimer inseminated Ms. Ashby with his own genetic material. Dr. Mortimer
falsely represented that he had used donor genetic material and Mr. Fowler's
COMPLAINT-4
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EISINGERe
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 5 of 14
• genetic material, and intentionally concealed this fact from Ms. Ashby and Mr.
2
Fowler. Dr. Mortimer did not match the donor specifications Ms. Ashby and Mr.
3
^ Fowler agreed to.
5
17.
Had Mr. Fowler and Ms. Ashby known Dr. Mortimer was going to
^ inseminate Ms. Ashby with his own genetic material, they would not have agreed
7
to the Procedure.
8
^
18. The Procedure was performed every other day for a total of three
10 procedures per month when Ms. Ashby was ovulating.
11
The Procedure was
repeated on this basis in the months ofJune, July, and August, of 1980.
12
19.
In August of 1980, Ms. Ashby discovered she was pregnant. On May
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20, 1981, Ms. Ashby gave birth to Kelli Rowlette (maiden name, Kelli Fowler).
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Dr. Mortimer delivered Kelli Rowlette.
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20.
Dr. Mortimer remained Ms. Ashby's OB/GYN for several years. Two
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years after Kelli Rowlette's birth, Ms. Ashby and Mr. Fowler successfully
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19 conceived a son without medical assistance. Ms. Ashby, Mr. Fowler, and their
children eventually moved from Idaho Falls, Idaho to the State of Washington. Dr.
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Mortimer cried when Ms. Ashby informed him they were moving. Dr. Mortimer
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knew Kelli Rowlette was his biological daughter but did not disclose this to Ms.
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Ashby or Mr. Fowler. Dr. Mortimer fraudulently and knowingly concealed his use
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of his own genetic material in the Procedure.
COMPLAINT-5
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EiSlNGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 6 of 14
'
21.
The truth that Dr. Mortimer's use of his own genetic material to
2
impregnate Ms. Ashby remained concealed until July 2017, when Mrs. Rowlette
3
^ received a notification on Ancestry.com that a DNA sample she had submitted
5 matched with Dr. Mortimer's DNA sample. Ancestry.com predicted a parent-child
relationship between Dr. Mortimer and Mrs. Rowlette. Mrs. Rowlette did not
know who Dr. Mortimer was at the time and was not aware that her parents had
undergone the Procedure to help them conceive.
10
11
22.
error.
Mrs. Rowlette initially believed the Ancestry.com results were in
She mentioned the confusing results to Ms. Ashby and relayed her
12
disappointment in the unreliability of the service she had thought she was getting
13
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from Ancestry.com. Mrs. Rowlette gave Ms. Ashby access to the results from
15 Ancestry.com.
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When Ms. Ashby was alone, she accessed the account to
investigate fiirther.
When Ms. Ashby saw Dr. Mortimer's name, she was
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devastated.
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23.
Ms. Ashby contacted Mr. Fowler, her now ex-husband, and relayed
20 the information she obtained from Ancestry.com. Mr. Fowler was also devastated
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by the news. For several months Ms. Ashby and Mr. Fowler painfully labored
22
over whether to tell Mrs. Rowlette that Dr. Mortimer had been their OB/GYN
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when she was conceived, and that they had intended on using 15% donor genetic
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material to aid in conception. Ms. Ashby and Mr. Fowler struggled to cope with
COMPLAINT - 6
•533 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 7 of 14
' their own anguish, and had difficulty contemplating the torment the discovery
2
would cause their daughter when and ifshe found out.
3
^
24. In October 2017, Mrs. Rowlette was at Mr. Fowler's house helping
5 him clean out old papers that had gathered over the course of her life and had been
^ saved in a roll-top desk. Mrs. Rowlette discovered her birth certificate among the
7
Stack of papers. Upon inspection, she observed that her birth certificate had been
8
^ signed by Dr. Mortimer. Mrs. Rowlette was horrified and contacted Ms. Ashby
10 and Mr. Fowler in a panic to relay what she had found.
25.
Since discovering Dr. Mortimer's actions, Ms. Ashby, Mr. Fowler,
12
and Mrs. Rowlette have been suffering immeasurably.
13
CAUSES OF ACTION
Medical Negligence
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26.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
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forth under this count and further allege:
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19
27.
Dr. Mortimer had a duty to his patients, Ms. Ashby, Mr. Fowler, and
Mrs. Rowlette, to provide health care consistent with the standard of care expected
21
of an OB/GYN in Idaho Falls, Idaho as the standard existed in 1980.
22
28.
Dr. Mortimer breached the standard of care as to Ms. Ashby, Mr.
24 Fowler, and Mrs. Rowlette by inseminating Ms. Ashby with his own genetic
material.
COMPLAINT - 7
1333 Columbia Park Trail, Suite 220
Rich!and,WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EISINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 8 of 14
'
29.
Dr. Mortimer breached the standard of care as to Ms. Ashby, Mr.
2
Fowler, and Mrs. Rowlette by inseminating Ms. Ashby with a mixture of genetic
3
^ material from multiple different sources.
5
30.
Ms. Ashby, Mr. Fowler, and Mrs. Rowlette have suffered damages as
^ a direct and proximate result of Dr. Mortimer's breach ofthe standard ofcare,
7
Failure to Obtain Informed Consent
31.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
10 forth under this count and further allege:
11
32.
Dr. Mortimer failed to disclose to Ms. Ashby and Mr. Fowler that he
12
was using his own genetic material to inseminate Ms. Ashby.
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14
33.
Ms. Ashby and Mr. Fowler have been damaged as a direct and
15 proximate result of Dr. Mortimer's failure to disclose that he was using his own
16
genetic material to inseminate Ms. Ashby.
17
Fraud
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19
34.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
20 forth under this count and fiirther allege:
21
35.
Dr. Mortimer represented to Ms. Ashby and Mr. Fowler that Ms.
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Ashby would be inseminated with a mixture of genetic material that was 85% from
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Mr. Fowler and 15% from a donor who was a college student with brown hair, blue
25
eyes, and over six(6)feet tall.
COMPLAINT-8
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 9 of 14
1
36.
Dr. Mortimer's representation was false, and he instead inseminated
2
Ms. Ashby with his own genetic material without consent.
3
37.
Ms. Ashby and Mr. Fowler would not have agreed to use Dr.
4
5
Mortimer's genetic material for the Procedure.
38.
Dr. Mortimer knew his representation was false and intended that Mr.
Fowler and Ms. Ashby would nevertheless rely on his false representation in
agreeing to go forward with the procedure.
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39.
Ms. Ashby and Mr. Fowler did not know that Dr. Mortimer's
representation was false, and justifiably relied on their trusted doctor's
12
representation.
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40.
Ms. Ashby and Mr. Fowler were damaged as a direct and proximate
15 result of Dr. Mortimer's fraudulent representation
16
Battery
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41.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
18
19
forth under this count and further allege:
42.
Dr. Mortimer intended to inseminate Ms. Ashby with his own genetic
21
material.
22
43.
Ms. Ashby did not consent to being inseminated with Dr. Mortimer's
24 genetic material
25
COMPLAINT - 9
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EISINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 10 of 14
'
44.
Dr. Mortimer's insemination of Ms. Ashby with his own genetic
2
material is harmful and offensive.
3
Intentional Infliction of Emotional Distress
4
5
6
45.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
forth under this count and further allege:
7
46.
Dr. Mortimer's conduct of inseminating Ms. Ashby with his genetic
8
9
10
11
material without her consent or the consent of Mr. Fowler was extreme and
outrageous.
47.
Dr. Mortimer intentionally caused severe emotional distress to Ms.
12
Ashby, Mr. Fowler, and Mrs. Rowlette as a direct and proximate result of his
13
14
15
16
conduct.
48.
Dr. Mortimer recklessly caused severe emotional distress to Ms
Ashby, Mr. Fowler, and Mrs. Rowlette as a direct and proximate result of his
17
conduct.
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19
20
Negligent Infliction of Emotional Distress
49.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
21
forth under this count and further allege:
22
50.
Dr. Mortimer owed Ms. Ashby, Mr. Fowler, and Mrs. Rowlette a duty
24 of care as their physician and breached that standard ofcare through the conduct of
25
inseminating Ms. Ashby with his own genetic material.
COMPLAINT - 10
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EISlNGERl
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 11 of 14
'
51.
Ms. Ashby, Mr. Fowler, and Mrs. Rowlette have been damaged as a
2
direct and proximate result of Dr. Mortimer's breach.
3
Breach of Contract
4
5
52.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
^ forth under this count and further allege:
7
53.
Dr. Mortimer entered into a contract with Ms. Ashby and Mr. Fowler
whereby Dr. Mortimer would obtain genetic material from an anonymous donor
10 who was a college student with brown hair, blue eyes, and was over six (6)feet tall
11
to use in the Procedure. In exchange, Ms. Ashby and Mr. Fowler paid Dr.
12
Mortimer for the donor genetic material.
13
14
15
16
54.
Dr. Mortimer entered into a contract with Ms. Ashby and Mr. Fowler
whereby Dr. Mortimer would inseminate Ms. Ashby with a mixture of 85%
genetic material from Mr. Fowler and 15% genetic material from an anonymous
17
donor who was a college student with brown hair, blue eyes, and was over six (6)
18
19 feet tall to use in the Procedure. In exchange, Ms. Ashby and Mr. Fowler paid Dr.
20 Mortimer for performing the Procedure
21
55.
Dr. Mortimer breached the contract between the parties by failing to
22
obtain genetic material from an anonymous donor who was a college student with
23
24
brown hair, blue eyes, and was over six (6)feet tall to use in the Procedure
25
COMPLAINT - 11
1533 Columbia Park Trail, Suite 220
Richland,WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 12 of 14
56.
Dr. Mortimer breached the contract between the parties by failing to
inseminate Ms. Ashby with a mixture of 85% genetic material from Mr. Fowler
and 15% genetic material from an anonymous donor who was a college student
with brown hair, blue eyes, and was over six (6)feet tall.
57.
Ms. Ashby and Mr. Fowler suffered damages as a direct and
proximate result of Dr. Mortimer's breach ofthe contract between the parties.
Consumer Protection Act Violation
11
forth under this count and further allege:
12
59.
Dr. Mortimer engaged in unfair and deceptive acts and practices in the
13
14
conduct of his trade and in commerce by selling his own genetic material to Ms.
•5 Ashby and Mr. Fowler and leading them to believe they were purchasing genetic
'material from a college student with brown hair, blue eyes, and a height over six
17
(6)feet tall.
18
19
60.
Dr. Mortimer engaged in unfair and deceptive acts and practices in the
conduct of his trade and in commerce by inseminating Ms. Ashby with his own
21
genetic material and without the consent of Ms. Ashby and Mr. Fowler, while
22
leading them to believe Ms. Ashby would be inseminated with a mixture of 85%
23
24
Mr. Fowler's genetic material and 15% genetic material from a college student
25
with brown hair, blue eyes, and a height over six (6)feet tall.
COMPLAINT - 12
•333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
ElSINGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 13 of 14
'
61.
Dr. Mortimer knew or should have known that his acts were unfair
2
and deceptive because they caused a likelihood of misunderstanding as to the
3
source ofthe donor genetic material.
4
5
6
62.
Dr. Mortimer knew or should have known that his acts were unfair
and deceptive because they caused a likelihood of misunderstanding as to the
7
medical community's approval of the practice of mixing of genetic material from
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9
10
11
multiple donors prior to insemination.
63.
Dr. Mortimer knew or should have known that his acts were unfair
and deceptive because he misrepresented the source ofthe donor genetic material.
12
64.
Dr. Mortimer knew or should have known that his acts were unfair
13
14
and deceptive because he misrepresented the medical community's approval of the
15 practice of mixing of genetic material from multiple donors prior to insemination.
16
Respondeat Superior
17
65.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
18
19 forth under this count and further allege:
20
66.
Dr. Mortimer was operating in the course and scope of his job duties
21
as an employee of OGA when he committed the acts and omissions complained of
22
herein.
23
24
67.
As a result, OGA is vicariously liable for the acts of Dr. Mortimer.
25
COMPLAINT - 13
'^33 Columbia Park Trail, Suite 220
Richland,WA 99352
P(509)735-4444
F(509)735-7140
WALICER
HEYE
MEEHAN
ElSlNGERi
Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 14 of 14
Negligent Supervision
1
2
68.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set
3
forth under this count and further allege:
4
5
6
69.
OGA knew of Dr. Mortimer's propensity to use his own genetic
material as donor genetic material without patients' consent and failed to exercise
7
due care to control Dr. Mortimer so he would not injure patients.
8
PRAYER FOR RELIEF
9
10
WHEREFORE,the Plaintiffs pray as follows:
11
70.
For judgment against the Defendants and their respective marital
12
community individually, jointly, and severally in an amount in excess of $75,000
13
14
15
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plus costs, disbursements, reasonable attorney fees, interest; and
71.
For such other and further relief as this Court deems just and
equitable.
17
DATED this 30^ day of March,2018.
18
s/Shea C. Meehan
19
Shea C. Meehan,ISB #6407
20
Attorneys for Plaintiffs
Walker Heye Meehan & Eisinger, PLLC
1333 Columbia Park Trail, Ste 220
Richland, WA 99352
Telephone:(509)735-4444
Fax:(509)735-7140
E-mail: smeehan@walkerheye.com
21
22
23
24
25
COMPLAINT - 14
1333 Columbia Park Trail, Suite 220
Richland, WA 99352
P(509)735-4444
F(509)735-7140
WALKER
HEYE
MEEHAN
EISINGERi
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