United States District Court, D. Idaho
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.
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE
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.
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
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
Id. at 541.
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.
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
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.
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.
the family (Ashby, Fowler, Rowlette, and a son conceived
after Rowlette without medical assistance) moved to
2017, Rowlette received notification from Ancestry.com that a
DNA sample she had submitted matched a sample submitted by
one Gerald Mortimer. Ancestry.com 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 Ancestry.com results. Ashby knew Mortimer had been her
doctor, but she did not disclose this to Rowlette. Ashby did
disclose the Ancestry.com results to her now ex-husband,
Fowler, but he also did not disclose who Mortimer was to
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.
upon Mortimer's role in Rowlette's conception, and
the Ancestray.com 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.
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.
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
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).
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)).
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).
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).
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).
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).
Defendants 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.
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.
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.
Parties in Interest
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.
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. 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.
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.
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
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).
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.
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.
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.
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.
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.
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
In other words, even if Dr. Mortimer had not used his own
sperm, Rowlette may have eventually made the same upsetting