DOHERTY v. MERCK & CO INC et al

Filing 64

PROCEDURAL ORDER By JUDGE D. BROCK HORNBY. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KAYLA DOHERTY,
PLAINTIFF
v.
MERCK & CO., INC. and
UNITED STATES OF AMERICA,
DEFENDANTS
and
ATTORNEY GENERAL FOR THE
STATE OF MAINE,
INTERVENOR DEFENDANT

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CIVIL NO. 1:15-cv-129-DBH

PROCEDURAL ORDER
After oral argument in December 2015, I circulated a proposed
Certification Order to the parties and directed the parties to comment in writing
by January 4, 2016. (ECF. No. 55.) Today I am entering the revised Certification
Order for transmittal to the Law Court. In this Procedural Order, I explain to the
parties some of the changes I made or declined.
I accept and incorporate Merck’s suggestions to highlight throughout the
Order and Appendix that the defendants’ motions to dismiss the First Amended
Complaint have been denied without prejudice, pending the Law Court’s answers
to the certified questions.
I accept and incorporate the government’s suggestion to include more
background information related to its role as a defendant in this matter; namely,

more detailed language to reflect that Lovejoy HRCHC is a covered entity under
the Federal Tort Claims Act (FTCA) pursuant to the Federally Supported Health
Centers Assistance Act, which extends the FTCA’s exclusive remedial nature to
Lovejoy HRCHC and its employees acting within the scope of their employment.
I do not agree with the defendants’ repeated requests to include express
characterization of the drugs at issue as “contraceptive” drugs and the procedure
that the plaintiff underwent as some form of “contraceptive” procedure. As I
informed the parties at oral argument in December, my goal is to avoid word
choices that implicate the legal issues over which they are arguing.

The

Statement of Facts describes what the various parties said and did, and I leave
the characterization issue and its significance to the Law Court.
I reject Merck’s request to state expressly that the plaintiff “did not have
an intent to seek permanent sterilization.” Def. Merck & Co., Inc.’s Response to
the Ct.’s Proposed Certification Order at 2 (ECF No. 59-1). The statements from
the plaintiff’s First Amended Complaint indicating her intention and desire to
postpone parenthood until a later point in her life are sufficiently included in the
Order and Appendix for the Law Court to determine whether or not the plaintiff’s
intent in that respect is relevant to its analysis.
I reject Merck’s request to strike mention of the plaintiff’s contention that
the “open courts” provision of the Maine Constitution could bear upon the
answers to these questions of state law. Such a contention could be relevant to
the Law Court’s statutory analysis.

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I recognize that both defendants take issue with certain language used
throughout the Order and Appendix that, they assert, misrepresents Implanon
and Nexplanon.

Specifically, the defendants request that certain technical

descriptions of the drugs be corrected.

I have attempted to deal with the

defendants’ concerns by addressing those issues in footnotes throughout the
Appendix, but I feel it necessary, at this stage in the litigation, to keep the
language as close as possible to that used by the plaintiff in her First Amended
Complaint.
SO ORDERED.
DATED THIS 7TH DAY OF JANUARY, 2016
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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