Yesenia Pacheco v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YESENIA PACHECO; LUIS No. 21-35175
LEMUS; S. L. P., minor child,
by and through her Guardian ad D.C. No.
Litem, Brian Comfort, 2:15-cv-01175-RSL
Plaintiffs-Appellees,
ORDER CERTIFYING
v. QUESTION TO THE
WASHINGTON
UNITED STATES OF AMERICA, SUPREME COURT
Defendant-Appellant.
Filed January 3, 2022
Before: Ronald M. Gould, Richard C. Tallman, and
Patrick J. Bumatay, Circuit Judges.
Order
2 PACHECO V. UNITED STATES
SUMMARY *
Federal Tort Claims Act / Wrongful Birth and
Wrongful Life
In an action brought under the Federal Tort Claims Act,
the panel certified the following question to the
Washington Supreme Court:
Under claims for wrongful birth or wrongful
life, does Washington law allow
extraordinary damages for costs associated
with raising a child with birth defects when
defendant(s) negligently provided
contraceptive care even though plaintiff(s)
did not seek contraceptives to prevent
conceiving a child later born with birth
defects?
COUNSEL
Leif Overvold (argued) and Daniel Tenny, Attorneys,
Appellate Staff; Tessa M. Gorman; United States Attorney;
Brian M. Boynton, Acting Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendant-Appellant.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PACHECO V. UNITED STATES 3
Michael A. Maxwell (argued), Maxwell Graham, P.S.,
Issaquah, Washington; Steve Alvarez, Alvarez Law,
Tacoma, Washington; for Plaintiffs-Appellees.
ORDER
This case arises from a dispute between Plaintiffs-
Appellees Yesenia Pacheco, Louis Lemus, and their minor
child, S.L.P., and Defendant-Appellant the United States
about whether the latter’s actions made it liable for
damages stemming from S.L.P.’s birth with a rare
neurological condition. We have jurisdiction under
28 U.S.C. § 1291.
The appeal turns on whether the United States can be
held liable for extraordinary damages in Washington
wrongful birth and wrongful life actions when the parties
had no reason to suspect the birth of a child with defects.
We determine that this issue is dispositive and has not been
settled by Washington caselaw. Thus, we respectfully
certify the following question to the Washington Supreme
Court:
Under claims for wrongful birth or wrongful
life, does Washington law allow
extraordinary damages for costs associated
with raising a child with birth defects when
defendant(s) negligently provided
contraceptive care even though plaintiff(s)
did not seek contraceptives to prevent
conceiving a child later born with birth
defects?
4 PACHECO V. UNITED STATES
I.
We summarize the material facts. Pacheco, Lemus, and
S.L.P., sued the United States under the Federal Tort
Claims Act (“FTCA”) alleging negligence on the part of
NeighborCare Health Center, a federally qualified
community health center. Pacheco visited NeighborCare in
December 2009 to discuss her birth control options, as she
“desired to prevent the birth of an unwanted child.” Five
days after her initial visit, Pacheco received a Depo-
Provera injection from NeighborCare. Depo-Provera is a
highly effective contraceptive that requires injections to be
administered every eleven to thirteen weeks. It is important
that the Depo-Provera injections are administered on time
to work as an effective contraception method. Pacheco
says she received Depo-Provera injections from
NeighborCare in March 2010, and January, April, and July
2011.
Pacheco called NeighborCare on September 29, 2011,
about twelve-and-a-half weeks since her last injection, to
schedule her next Depo-Provera injection. Pacheco visited
NeigborCare the next day to receive the shot. Pacheco was
supposed to receive this “on-time” injection from Gloria
Rodriguez, a NeighborCare employee. But instead of
administering the Depo-Provera shot, Rodriguez injected
Pacheco with a flu vaccine. Pacheco alleged in her
complaint that at her appointment on September 30, 2011,
she did not request or consent to a flu shot and was not
informed she received a flu shot from Rodriguez instead of
the scheduled Depo-Provera injection. The district court
found that Rodriguez failed to meet the minimum standard
of care, as she never confirmed the reason for Pacheco’s
visit, failed to document consent to the flu vaccine she
administered, and never advised Pacheco of the side effects
PACHECO V. UNITED STATES 5
of the flu shot or the consequences of skipping a Depo-
Provera injection.
Pacheco did not learn that she received a flu shot
instead of her scheduled Depo-Provera injection until
December 2011, when she called NeighborCare to schedule
her next injection. At that time, NeighborCare informed
Pacheco that she was injected with a flu vaccine instead of
Depo-Provera at her last appointment and requested she
come to the clinic for a pregnancy test. Pacheco complied,
and her pregnancy test was positive.
Pacheco did not intend to become pregnant in the fall of
2011 and the district court found that “[h]ad she received a
Depo-Provera injection on September 30, 2011, she would
not have conceived.” Yet Pacheco gave birth to S.L.P. in
August 2012, after an emergency cesarean section. The
district court found that S.L.P. was born with epilepsy and
bilateral perisylvian polymicrogyria (“PMG”), a disability
that contributes to S.L.P.’s neurological delays, that will
impose future medical expenses on both S.L.P. and her
parents.
The district court ruled for the plaintiffs, holding that
the defendant United States was negligent in failing to
administer a Depo-Provera injection on September 30,
2011. The district court held that this negligence both
directly and proximately caused the plaintiffs’ injuries.
Even though no party at first had reason to suspect a child
conceived by Pacheco would be born with a disability, the
district court held that the unwanted pregnancy, S.L.P.’s
birth, and the medical expenses associated with the
condition were foreseeable consequences caused by the
defendant’s negligence.
6 PACHECO V. UNITED STATES
At a separate trial to address damages, the district court
awarded $10,042,294.81. Of that, the court awarded
$1,542,294.81 to Pacheco, $1 million to Lemus, and the
remaining $7.5 million awarded represented S.L.P.’s future
special damages.
II.
A.
Under the FTCA, the law of the state where the tort
allegedly occurred controls issues of liability. Daly v.
United States, 946 F.2d 1467, 1469 (9th Cir. 1991). The
Court reviews de novo the district court’s interpretations of
state law and reviews its findings of fact for clear error. Id.“The existence and extent of the standard of conduct are
questions of law, reviewable de novo, but issues of breach
and proximate cause are questions of fact, reviewable for
clear error.” Liebsack v. United States, 731 F.3d 850, 854
(9th Cir. 2013) (simplified).
When issues of state law are unclear, it is sometimes
necessary for a federal court to certify a question to a
state’s highest court “to obtain authoritative answers.”
Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid
Co., 779 F.2d 1429, 1432 (9th Cir. 1986), amended by, 831
F.2d 180 (9th Cir. 1987). The decision to certify is within
the “sound discretion of the federal court.” Lehman Bros.
v. Schein, 416 U.S. 386, 391 (1974). Yet, as we’ve
repeatedly held, certification is appropriate where a case
presents “complex” issues of state law with “significant
policy implications.” See, e.g., Centurion Props. III, LLC
v. Chi. Title Ins. Co., 793 F.3d 1087, 1089 (9th Cir. 2015);
McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1091
(9th Cir. 2012); Perez-Farias v. Glob. Horizons, Inc., 668
F.3d 588, 593 (9th Cir. 2011).
PACHECO V. UNITED STATES 7
Washington law authorizes the state supreme court to
accept certified questions from the federal courts. Wash.
Rev. Code § 2.60.020. Washington’s certification statute
allows certification where “it is necessary to ascertain the
local law of [Washington] state in order to dispose of [a]
proceeding and the local law has not been clearly
determined.” Id. Thus, we have certified questions where
we’ve “believe[d] that the Washington Supreme Court . . .
[was] better qualified to answer . . . in the first instance.”
Parents Involved in Cmty. Schs. v. Order Seattle Sch. Dist.,
No. 1, 294 F.3d 1085, 1092 (9th Cir. 2002).
B.
1.
This case presents an issue ripe for certification. The
parties dispute whether, in providing routine contraception,
healthcare providers assume a duty related to the birth of
defective 1 children without evidence that any party was or
should have been concerned with the birth of such children.
In Washington, whether this duty exists is a question of
law. McKown v. Simon Prop. Grp., Inc., 344 P.3d 661, 664
(Wash. 2015) (“The existence of a legal duty is a question
of law for the court.”).
The Washington Supreme Court in Harbeson v. Parke-
Davis, Inc., 656 P.2d 483 (Wash. 1983), established the tort
of wrongful birth in Washington. A wrongful birth action
is brought by parents against a healthcare provider whose
1
Washington courts use the term “defective” to describe children
with congenital defects. Harbeson v. Parke-Davis, Inc., 656 P.2d 483,
488 (Wash. 1983).
8 PACHECO V. UNITED STATES
negligent action while treating a mother caused the birth of
a defective child. Harbeson, 656 P.2d at 488. The
negligence can be either (1) a failure to give parents
material information necessary for them to informedly
decide whether to conceive or give birth to a child or
(2) negligent “performance of a procedure to prevent the
birth of a defective child.” Id. In short, the parent’s claim
is that the practitioner’s negligence “is a proximate cause of
the birth of a defective child.” Id.
As a negligence action, to prevail in a wrongful birth
claim, the parents must prove duty, breach, injury, and
proximate causation. See id. at 489. In Washington,
parents have a right to prevent the birth of a defective child,
and healthcare providers have a duty “correlative” to that
right to use reasonable care when medical procedures are
performed. Id. at 488–94. Medical providers breach this
duty “by failure to conform to the appropriate standard of
skill, care, or learning.” Id. at 492. The birth of a defective
child is an “actionable injury.” Id. Proximate causation is
shown by establishing that breach of the provider’s duty
was the cause in fact of the injury and that legal liability
should attach. Id. at 493. Cause in fact is established by
showing that the injury would not have occurred but for the
breach of duty. Id. Under Washington law, in wrongful
birth cases, the establishment of cause in fact also
establishes that liability should attach. Id. When the
elements are met, the parents may recover “medical,
hospital, and medication expenses attributable to the child’s
birth and to its defective condition,” and they may also
recover damages for emotional injury. Id.
For wrongful birth actions, it appears important that the
child indeed be “defective.” Washington courts have long
held that parents may not recover child-rearing costs from
PACHECO V. UNITED STATES 9
practitioners whose negligent performance of a
contraceptive procedure resulted in the birth of a healthy
child. See McKernan v. Aasheim, 687 P.2d 850, 854–56
(Wash. 1984). In these cases, however, “damages for the
expense, pain and suffering, and loss of consortium
associated with the failed [contraceptive procedure],
pregnancy and childbirth” may still be recovered. Id. at
856.
A wrongful life claim is the “child’s equivalent of the
parents’ wrongful birth action.” Harbeson, 656 P.2d at
494. Like wrongful birth, the Washington Supreme Court
first recognized the tort of wrongful life in Harbeson.
There, the court defined the action as a claim in which the
child alleges his birth and the pain and suffering
accompanying his condition would not have occurred but
for the clinician’s failure to adequately inform his parents
of a risk or perform “a procedure intended to prevent the
birth of a defective child,” such as “sterilization or
abortion.” Id.
As above, to prevail in a wrongful life action, the
plaintiff must prove duty, breach, injury, and proximate
causation. Id. at 495. The medical practitioner has duties
to an unborn child “corresponding” to those owed to the
child’s parents to inform the parents of any material risks
that the child will be born with defects and to conform to
the appropriate standard of care should action be taken to
prevent the birth or conception of the child. Id. at 496. The
practitioner’s “duty [is] breached by failure to observe the
appropriate standard of care.” Id. Injury resulting from
this breach is measured in terms of extraordinary expenses
to be incurred over the life of the child. Id. Proximate
cause, lastly, is whether “[b]ut for the physician’s
negligence, the parents would have avoided conception, or
10 PACHECO V. UNITED STATES
aborted the pregnancy, and the child would not have
existed.” Id. at 497.
Thus, as we’ve observed so far, both the wrongful birth
and wrongful life causes of action are based on (1) the right
of parents to prevent the conception and birth of defective
children, (2) the existence of healthcare practitioners’ duty
to inform parents of the risks of having defective children
and to perform with due care procedures to prevent the
birth of defective children, and (3) that a healthcare
practitioner’s negligence in failing to adequately inform the
parents of the relevant risks or to exercise due care in the
performance of any sterilization or abortion procedure was
a but-for cause of the child’s birth.
Here, in line with the third factor, the district court
found that S.L.P. would not have been born but for the
United States’ negligence. Yet unlike the rule announced
in Harbeson, the negligently performed procedure here was
not “intended to prevent the birth of a defective child,”
Harbeson, 656 P.2d at 494, but as the complaint says, to
generally “prevent the birth of an unwanted child.”
According to the United States, this is important because it
means that this case lies outside the duty imposed on
healthcare providers to assume responsibility when they
encumber parents’ rights by failing to adequately complete
procedures geared towards preventing the births of
defective children. 2
2
Though the United States contests liability for extraordinary
damages under Washington’s wrongful birth and wrongful life causes
of action, it concedes that under “longstanding principles of tort law,”
Plaintiffs-Appellees should recover expenses associated with
pregnancy and childbirth.
PACHECO V. UNITED STATES 11
Indeed, in discussing wrongful life, the Harbeson court
noted that the element of duty in that cause of action is
“limited, like any other duty, by the element of
foreseeability.” Harbeson, 656 P.2d at 495. For instance,
the mother in Harbeson was taking epilepsy medication
and specifically inquired of three doctors regarding any
risks for her becoming pregnant in the future. Id. at 463.
No doctor conducted literature searches or reviewed other
sources for pertinent information regarding the nexus
between the medication and birth defects, and the mother
subsequently gave birth to two children with congenital
defects. Id. The facts are much different here. Perhaps
absent any specific objective to prevent the birth of a
defective child, the Washington Supreme Court would find
that responsibility for S.L.P.’s birth lies outside the
Harbeson duties.
On the other hand, the Washington Supreme Court
might decide, as the district court did here, that breach of
the general duty to non-negligently administer
contraceptives under state law is enough to establish
liability for extraordinary damages in birth defect cases. If
so, the Washington Supreme Court might note, as the
district court did, the fact that about three percent of
children born in the United States are born with a birth
defect of some kind. The Washington Supreme Court
could construe this incidence as making the occurrence of
birth defects foreseeable enough to fall within the bounds
of the Harbeson duties.
The need for clarification in this area of the law is
illustrated by the fact that no Washington court discussing
wrongful birth or wrongful life has ever explicitly approved
of finding liability where neither the parents nor the
healthcare providers had or should have had a specific
12 PACHECO V. UNITED STATES
concern about the birth of a defective child. This case
contrasts with Wuth ex rel. Kessler v. Lab. Corp. of Am.,
where a child born with birth defects was found entitled to
seek wrongful life damages where medical defendants who
tested for genetic abnormalities failed to detect them. 359
P.3d 841 (Wash. Ct. App. 2015). It also contrasts with
Harbeson itself, which concerned the failure of doctors to
warn a mother of possible congenital defects that could
result from her ingestion of a drug that they had prescribed.
Harbeson, 656 P.2d at 496.
At least two Washington cases have fact patterns
somewhat like this case. They, however, fail to elucidate
this area of the law. Quimby v. Fine, 724 P.2d 403 (Wash.
Ct. App. 1986) and Shupe v. Ketting, 1999 Wash. App.
LEXIS 921 (Ct. App. May 25, 1999) (unpublished), mostly
analyze statute of limitations issues and their holdings do
not address foreseeability in the context of duty. In
Quimby, the plaintiffs sued a healthcare provider for
wrongful birth after Mrs. Quimby gave birth to a child with
ultimately fatal birth defects. 724 P.2d at 404. The
defective child was conceived following a failed tubal
ligation procedure performed by the defendant. Id. The
Quimby court found for the plaintiffs on the statute of
limitations issue but did not say whether any party had or
should have had any particular concern about Mrs. Quimby
bearing children with birth defects. See id. at 405.
In Shupe, a mother sued doctors after two unplanned
births occurred following two botched contraceptive
procedures. 1999 Wash. App. LEXIS 921, at *1–2. The
mother sued only after one of her children developed a rare
genetic neurological disorder years after birth. Id. at *7.
Shupe is distinct from this case because the alleged defect
was not manifest at the time of birth. Even so, dicta in
PACHECO V. UNITED STATES 13
Shupe further befogs the issue as to Washington’s
recognition of extraordinary damages in cases such as the
one at bar. Apparently objecting to the defendants’ lack of
awareness of an increased risk of defects resulting from the
plaintiff’s pregnancy, the court opined that Washington law
had not “recognized a cause of action based upon such a
condition, which the doctors in question had no reason to
foresee.” Id. at *23.
In sum, Washington wrongful birth and wrongful life
caselaw is unclear on the allowability of extraordinary costs
associated with the birth of a child with birth defects when
defendants negligently administered birth control
medications and plaintiff(s) did not seek birth control to
prevent the birth of a child with birth defects.
2.
Washington caselaw outside the wrongful birth and
wrongful life contexts is similarly inconclusive. Wrongful
birth and wrongful life actions are species of medical
malpractice claims. Harbeson, 656 P.2d at 486. Such
“claims are fundamentally negligence claims, rooted in the
common law tradition.” Putman v. Wenatchee Valley Med.
Ctr., P.S., 216 P.3d 374, 378 (Wash. 2009). Washington’s
legislature has “not extinguished the common law action
and replaced it with a statutory remedy.” Id. So, the
ordinary concepts that apply to negligence claims in
Washington should also apply here.
As the United States notes, Washington tort law has
long defined defendants’ duties in terms of the risks that
make conduct unreasonably dangerous. In Rikstad v.
Holmberg, 456 P.2d 355, 358 (Wash. 1969), the state
supreme court restated its precedents that there is no
liability where harm is unforeseeable and that for
14 PACHECO V. UNITED STATES
foreseeability, when measured in terms of duty or
proximate cause, the “question is whether the actual harm
fell within a general field of danger which should have
been anticipated.” Id. at 358 (simplified). This field of
danger, however, is not unlimited, but restricted to
“unreasonably dangerous conduct” made dangerous
because it “threatens particular kinds of harm to particular
kinds of persons in particular ways.” Id. (simplified). To
be foreseeable “the duty imposed by the risk [must]
embrace[] that conduct which resulted in injury to the
plaintiff.” Id.It is unclear, however, whether the actual harm of
S.L.P.’s birth with defects falls within the scope of the
harms associated with the United States’ failure to
adequately administer contraceptives to Pacheco. For its
part, the United States argues that the type of harm
encompassed by “providing treatment to avoid childbirth is
the harm associated with the unwanted pregnancy and
birth, not the expenses associated with a particular medical
condition” a child might have at birth.
In support of its position, the United States cites
Christen v. Lee, 780 P.2d 1307 (Wash. 1989). In Christen,
the Washington Supreme Court affirmed summary
judgment when the plaintiffs sued to hold defendant
drinking establishments liable for injuries the plaintiffs
sustained as the result of criminal assaults perpetrated by
patrons of the establishments. Id. at 1317.
There, the court assayed the “general type of harm”
embraced by the specific duty owed by those who sell
liquor, and concluded that drunk driving was a relevant
harm, but violent crime was not. Id. at 1315. Though the
court recognized that the defendant owed a “duty not to
furnish intoxicating liquor to a person who is obviously
PACHECO V. UNITED STATES 15
intoxicated,” it determined that a breach of that duty did not
make the defendant liable for damages for violent assault.
Id. A seller of liquor may owe a duty to protect the public
against the risk of criminal assault by a patron, “but only if
the drinking establishment which furnished the intoxicating
liquor had some notice of the possibility of harm from prior
actions of the person causing the injury.” Id. at 1312.
Christen, the United States contends, is analogous to
the situation here. In this case, the healthcare practitioner
had an undisputed general duty to administer
contraceptives with due care. But absent any specific intent
to avoid the birth of a child with congenital defects, the
United States claims it cannot be said that the healthcare
provider had a specific duty associated with the unlikely
occurrence of S.L.P.’s condition.
On the other hand, Christen, may be inapt in wrongful
birth and wrongful life cases. In Christen, the court held
that the defendant establishments had no duty absent “some
notice of the possibility of harm from prior actions of the
person causing the injury.” Id. Washington law has never
required that congenital defects occur in prior births so that
defendants can be “on notice” before their negligent acts.
Instead, even under the United States’ reading of Harbeson,
the contraceptive procedure need only be “designed to
avoid the conception or birth of a child suffering from a
birth defect.”
The United States also relies on Maltman v. Sauer, 530
P.2d 254 (Wash. 1975). In Maltman, a driver was seriously
injured in an automobile accident and a helicopter
dispatched to assist the driver crashed while en route to the
scene of the accident, killing its occupants. Id. at 256. The
estates of the decedent helicopter crew sued under the
“rescue doctrine.” Id. Though the court observed the
16 PACHECO V. UNITED STATES
existence of “some duty” on behalf of the defendant
because his actions invited rescue, it held that the “accident
suffered by the helicopter crew was too remote from the
actual realm of peril created by the defendant’s original
negligence to come within that duty.” Id. at 258. Thus, the
court concluded, it was “inconceivable that the defendant
owed a duty to the plaintiff to assure against a helicopter
crash.” Id. at 259.
Like Christen, the United States argues that Maltman
supports the idea that though Washington healthcare
providers are “subject to a duty [it] does nothing to render
them liable for hazards tied to a duty to which they were
not subject and with respect to which their conduct was not
negligent.” Plaintiffs-Appellees, by contrast, contend that
Maltman is irrelevant to the present analysis.
Indeed, Maltman may not apply here because the harm
that befell Plaintiffs-Appellees—S.L.P.’s birth with
defects—is seemingly insufficiently remote from the
defendant’s negligence as to make the existence of a duty
to assure against it “inconceivable.” Instead, as Plaintiffs-
Appellees note, “even the United States concedes” that it
breached some duty.
In Washington, the “existence of a legal duty is a
question of law and depends on mixed considerations of
logic, common sense, justice, policy, and precedent.”
Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283, 285
(Wash. 2005) (simplified). Given the policy-laden nature
of this inquiry, we believe it “lies properly within the
purview of the Washington Supreme Court.” See
Centurion Props., 793 F.3d at 1091.
PACHECO V. UNITED STATES 17
III.
We do not intend the phrasing of our question to restrict
the Washington Supreme Court’s consideration of the
issue. We recognize that the Washington Supreme Court
may, in its discretion, reformulate the question. Broad v.
Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th
Cir. 1999).
The Clerk of the Court is directed to transmit to the
Washington Supreme Court, under official seal of the Ninth
Circuit, this order and request for certification along with
copies of all relevant briefs and excerpts of record pursuant
to Wash. Rev. Code §§ 2.60.020 and 2.60.030.
If the Washington Supreme Court accepts the certified
question, we designate Defendant-Appellant United States
as the party to file the first brief pursuant to Wash. R. App.
P. 16.16(e)(1).
Further proceedings in this Court are stayed pending the
Washington Supreme Court’s decision whether it will
accept review and, if so, receipt of the answer to the
certified question. The case is withdrawn from submission
until further order from this Court. The Clerk is directed to
administratively close this docket pending further order.
The panel will resume control and jurisdiction upon receipt
of an answer to the certified question or upon the
Washington Supreme Court’s decision to not accept the
certified question.
When the Washington Supreme Court decides whether
to accept the certified question, the parties will promptly
file a joint status report informing this Court of the
decision. If the Washington Supreme Court accepts the
certified question, the parties will file another joint status
18 PACHECO V. UNITED STATES
report informing this Court when the Washington Supreme
Court issues an answer to the certified question promptly
upon the issuance of that determination.
IT IS SO ORDERED.
________________________
Chief Judge Mary H. Murguia
U.S. Court of Appeals for the Ninth Circuit