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Rowlette v. Mortimer

United States District Court, D. Idaho

October 25, 2018

KELLI ROWLETTE, an individual, SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
GERALD E. MORTIMER, M.D., LINDA G. McKINNON MORTIMER, and the marital community comprised thereof, and OBSTETRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants.




         Pending before the Court is Defendants Gerald Mortimer and Linda G. McKinnon Mortimer's (the “Mortimers”) Motion to Dismiss. Dkt. 16. Defendant Obstetrics and Gynecology Associates of Idaho Falls, P.A.'s (“OGA”) also filed a Motion to Dismiss based upon the same general arguments. Dkt. 17. After holding oral argument, the Court took the motions under advisement. Upon review, the Court now issues the following decision GRANTING in PART and DENYING in PART the Motions.

         The right to procreate has been recognized by the United States Supreme Court in Skinner v. Oklahoma, 316 U.S. 535 (1942), albeit in the context of sterilization. In Skinner, the Supreme Court stated:

This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race - the right to have offspring.
Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

Id. at 541.

         The Skinner court recognized that the power to sterilize, when wielded by evil hands, deprives others of a fundamental right. Today, the Court is not asked to address improper sterilization; however, the alleged misconduct is similarly abhorrent and concerning. When a woman pursues artificial insemination, she and her loved ones entrust their physician with access to, and power over, areas of life that are unusually intimate and sacred. When that trust is unknowingly placed in a physician with evil hands and selfish motives, the fundamental right of procreation is debased and degraded. Today, the Court addresses such an allegation.

         Plaintiffs Ashby and Fowler were married and struggled to procreate. They decided to undergo artificial insemination with sperm from an undisclosed donor. Defendant Dr. Mortimer allegedly used his own sperm to artificially inseminate Ashby. He did not disclose that it was his sperm. There can be little argument that Mortimer's alleged conduct in using his own sperm to artificially inseminate Ashby without her knowledge is morally repugnant, ethically questionable, and demeaning to Ashby. The Court does not take lightly allegations that a physician so grossly abused his position of trust, particularly when those actions are related to the important right of procreation. However, the issue here is whether Plaintiffs can legally recover under tort law for Mortimer's conduct.


         A. Factual[1]

         In 1979, Plaintiffs Ashby and Fowler were a married couple residing in Idaho Falls, Idaho. The couple struggled to conceive children and consequently became patients of OGA under the care of Dr. Gerald E. Mortimer (“Dr. Mortimer”), an OB/GYN. Upon examination, Dr. Mortimer diagnosed Ashby with a tipped uterus and Fowler with low sperm count and low sperm motility. Dr. Mortimer recommended that the couple undergo a form of artificial insemination in which donor sperm from an anonymous donor would be mixed with Fowler's sperm in a lab prior to insemination to increase the chances of conception. In short, 85% of the mixture would be Fowler's sperm, while 15% was to come from the anonymous donor. The couple agreed to the procedure; however, they requested that the donor be a college student with brown hair, blue eyes, and over six feet tall. It is unclear whether this request was verbal or in writing.

         Ultimately, Dr. Mortimer performed the artificial insemination procedure on various occasions in June, July, and August of 1980. In August 1980, Ashby discovered that she was pregnant. On May 20, 1981, Ashby gave birth to Plaintiff Kelli Rowlette. Dr. Mortimer delivered Rowlette.

         Subsequently, the family (Ashby, Fowler, Rowlette, and a son conceived after Rowlette without medical assistance) moved to Washington State.

         In July 2017, Rowlette received notification from that a DNA sample she had submitted matched a sample submitted by one Gerald Mortimer. predicted that there was a parent-child relationship between the two individuals based upon the samples reviewed. Rowlette did not know Dr. Mortimer, and was, in fact, completely unaware that her parents had undergone artificial insemination to help them conceive some 38 years prior. Rowlette gave Ashby access to the results. Ashby knew Mortimer had been her doctor, but she did not disclose this to Rowlette. Ashby did disclose the results to her now ex-husband, Fowler, but he also did not disclose who Mortimer was to Ashby.

         In October of the same year, Rowlette was going through personal documents at her father's home and noticed that the name of the delivering physician on her birth certificate was Dr. Gerald Mortimer.

         Based upon Mortimer's role in Rowlette's conception, and the DNA results, Plaintiffs' allege that instead of using sperm from an anonymous donor back in 1980 to supplement Fowler's sperm for the artificial insemination procedure, Dr. Mortimer instead used his own sperm. Plaintiffs allege a variety of causes of action based upon this alleged improper behavior.

         B. Procedural

         Plaintiffs filed their Complaint in this matter on March 30, 2018, alleging eight causes of action: medical malpractice, lack of informed consent, fraud, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and violation of Idaho's consumer protection act. Dkt. 1. OGA filed an Answer on May 4, 2018. Dkt. 10. The Mortimers filed their joint Answer on May 29, 2018. Dkt. 13. On June 13, 2018, the Mortimers filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 16 Approximately one week later, on June 19, 2018, OGA filed a Motion to Dismiss also pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 17.

         On June 26, 2018, Plaintiffs filed a Motion to Strike the pending Motions to Dismiss alleging that the Motions were improper and untimely. Dkt. 19. A short briefing schedule followed. The Court then took Plaintiffs' Motion under advisement and determined that while Defendants filed their respective Motions to Dismiss after filing responsive pleadings, such a tactical decision did not require the Court to strike the motions altogether, but simply convert them from Motions to Dismiss under Rule 12(b)(6) into Motions for Judgment on the Pleadings under Rule 12(h)(2)(B) and Rule 12(c).


         Defendants seek dismissal for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). When a defendant brings such a motion after answering the complaint, the motion is treated as one for judgment on the pleadings under Federal Rule of Civil Procedure Rule 12(c), rather than Rule 12(b)(6). Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1301 n. 2 (9th Cir. 1992). Motions to dismiss under Rules 12(c) and 12(b)(6) differ only in the time of filing; because they are functionally identical, the same standard applies to motions brought under either rule. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (citing Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). The Court evaluates a motion for judgment on the pleadings under the same standard applicable to motions to dismiss brought under Rule 12(b)(6). See Enron Oil Trading & Trans. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997). The standard for a motion for judgment on the pleadings is articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         A motion to dismiss for failure to state a claim challenges the legal sufficiency of the claims stated in the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). “A complaint generally must satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to avoid dismissal under a Rule 12(b)(6) motion.” Id. (citing Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003)). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, '” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading “does not need detailed factual allegations;” however, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. Mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Id. Rather, there must be “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In other words, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In light of Twombly and Iqbal, the Ninth Circuit summarized the governing standard as follows: “In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         In deciding whether to grant a motion to dismiss, the court must accept as true all well-pleaded factual allegations made in the pleading under attack. Iqbal, 556 U.S. at 663. A court is not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         In cases decided after Iqbal and Twombly, the Ninth Circuit has continued to adhere to the rule that a dismissal of a complaint without leave to amend is inappropriate unless it is beyond doubt that the complaint could not be saved by an amendment. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).

         IV. ANALYSIS

         Defendants[2] assert that all of Plaintiffs claims are barred by either (1) Idaho Code section 6-1012 (“Section 6-1012”); (2) statutes of limitations; (3) Rule 12(b)(6)-failure to state a claim; or (4) a combination of all of the above.

         For organizational purposes, the Court will begin by discussing Section 6-1012 and the implications it has in this case. Second, the Court will address each claim and the various arguments Defendants raise in favor of dismissal. Then the Court will review Plaintiffs' arguments in support of why each claim should survive.

         As a threshold matter, however, the Court must address certain arguments raised concerning the parties in interest. The Court addresses these issues at the outset because there is no need to discuss the claims as to individual plaintiffs if the Court determines that a plaintiff is not a real party in interest and must be dismissed.

         A. Parties in Interest

         1. Ms. Mortimer

         Defendants contend that the Court should dismiss Ms. Mortimer as a defendant because Plaintiffs have not plead any claims against her, nor alleged any facts that suggest any misconduct by Ms. Mortimer in relation to the underlying conduct of Dr. Mortimer. The Court must agree. Even a cursory review of the Complaint shows that Ms. Mortimer's name only appears twice: once in the caption, and once in the “Parties” section where Plaintiffs have listed her as the wife of Dr. Mortimer.

         Plaintiffs assert that Ms. Mortimer is a proper defendant because marital property can be reached to satisfy any debt incurred as the result of a favorable judgment. In other words, Plaintiffs have listed Ms. Mortimer to ensure that in the event they prevail, there will be sufficient assets to cover any award, i.e., not just Dr. Mortimer's assets, but the marital community property as well. In support of their position, Defendants cite Hegg v. IRS, 28 P.3d 1004 (Idaho 2001), wherein the Idaho Supreme Court held that “community assets may be reached to satisfy a debt incurred by one spouse's fraud committed during marriage even if the other spouse is completely innocent of the fraud and has no personal liability where the fraud benefits the community or occurs during the spouse's management of the community.” Id. at 1006.[3] While Plaintiffs correctly state the law, they need not list Ms. Mortimer-or the “marital community [property] comprised thereof”-as an actual defendant in this case. If a judgment or debt is owed, pursuant to law, community assets may be reached to satisfy the debt because Idaho is a community property state. Plaintiffs have not alleged any facts against Ms. Mortimer and they do not need to list her specifically as a defendant for possible judgment/debt purposes. Accordingly, the Court DISMISSES Linda Mortimer as an improper party.

         2. Kelli Rowlette

         Defendants contend that neither Rowlette nor Fowler have standing to bring this action because neither of them were “patients” of Dr. Mortimer, nor were either of them the recipients of the conduct that forms the basis of the claims at issue in this case.

         As to Rowlette, it is clear she was never a patient of Dr. Mortimer's with respect to the alleged misconduct that took place before she was born. Said differently, Dr. Mortimer did not breach any duty of care to Rowlette because he owed her none. Plaintiffs assert that because Dr. Mortimer delivered Rowlette she was his patient. While the Court would agree that Dr. Mortimer-as the delivering doctor-likely owed a duty to Rowlette during and immediately following the delivery, those actions are not the event at issue in this case. Instead, the claims here arise from the insemination process, which (of necessity) occurred prior to Rowlette's birth.

         Even assuming, arguendo, that Rowlette was Dr. Mortimer's patient (at the time of insemination) it is unclear what duty Dr. Mortimer breached or what damages Rowlette has incurred since then. Although Rowlette does not explicitly raise the argument, the only way to classify her potential damages in this case would be in the form of a wrongful life claim. The State of Idaho-like most jurisdictions-does not recognize claims for wrongful life. Idaho Code § 5-334; Blake v. Cruz, 698 F.2d 315 (Idaho 1984).

         As will be discussed in greater detail below, if a medical malpractice claim is present, the Idaho Supreme Court has determined that most other claims are precluded.

         See Hoover v. Hunter, 249 P.3d 851, 856 (2011) (quoting Hough v. Fry, 131 Idaho 230, 233 (1998)). This outcome stems from the unique evidentiary standards outlined in Section 6-1012 for medical malpractice claims.

         Importantly, the Idaho Supreme Court has specifically held that intentional torts that arise out of the failure to provide adequate health care-such as claims for emotional distress-are to be construed as claims for medical malpractice. Hall v. Rocky Mountain Emergency Physicians, 312 P.3d 313 (Idaho 2013). Thus, under Section 6-1012, the emotional distress claims are subsumed into the medical malpractice claims-however, as the Court just noted, Rowlette does not have standing to bring any medical malpractice claim as she was not a patient of Dr. Mortimer's when the alleged malpractice occurred. This is presumably why Plaintiffs specifically noted at oral argument that if the Court did not find that Rowlette was a patient-and therefore did not have a valid medical malpractice claim-she could nonetheless proceed independently on her claims of emotional distress. The Court will not allow such a course of action for three reasons.

         First, the statute of limitations has long since run on Rowlette's emotional distress claims. See Idaho Code § 5-219(4). As will be discussed in greater detail below, the claims in this case are not continuing torts subject to tolling. Thus, the statute of limitations acts as an independent bar on Rowlette's remaining claims.

         Second, the broad language of Section 6-1012 itself disqualifies Rowlette's claims as its preclusion requirements relate to “any case, claim or action for damages due to injury . . . brought against any physician . . . on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto.” Idaho Code § 6-1012. Here, there is no doubt that Rowlette's emotional distress was caused by a matter “incidental or related” to health care. Accordingly, even though Rowlette cannot pursue a medical malpractice action on her own, she likewise cannot pursue other intentional torts because this case is still nonetheless a medical malpractice action.

         Third, and finally, it is not entirely clear that Rowlette's emotional distress in this case can be attributed to Dr. Mortimer. Ashby and Fowler never told Rowlette that they had undergone artificial insemination to achieve her conception. Their silence continued even after they knew that Mortimer may have used his own sperm. Thus, the underlying cause for the shock Rowlette suffered did not stem from the fact that Dr. Mortimer could be her biological father, but rather that the person she thought was her biological father- Fowler-was not.[4] In other words, even if Dr. Mortimer had not used his own sperm, Rowlette may have eventually made the same upsetting ...

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