Kayla Doherty v. Merck & Co., Inc.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 19 Docket: Fed-16-14
Argued: September 8, 2016
Decided: January 26, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN,* JABAR, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Concurrence: SAUFLEY, C.J., and ALEXANDER and GORMAN, JJ.
KAYLA DOHERTY
v.
MERCK & CO., INC., et al.
MEAD, J.
[¶1] After Kayla Doherty gave birth to a healthy son in June 2014, she
filed a complaint against Merck & Co., Inc., and the United States in the
United States District Court for the District of Maine, alleging that in
February 2012, at a community health center for which the United States was
responsible, a physician negligently failed, as a result of Merck’s defective
applicator, to insert into her arm an implant manufactured by Merck that was
designed to prevent pregnancy for at least three years. Pursuant to
* Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a) (“A qualified justice may participate in a decision even though not
present at oral argument.”).
2
4 M.R.S. § 57 (2016) and M.R. App. P. 25, the federal court (Hornby, J.) has
certified three questions of state law to us:
1. Does the protection of Maine’s Wrongful Birth statute,
24 M.R.S.A. § 2931, extend to the defendant Merck & Co., Inc., as a
drug manufacturer and distributor?
2. If not, does the Law Court’s decision in Macomber v. Dillman,
505 A.2d 810 (Me. 1986), which concerned a failed sterilization by
a health care provider, apply to the plaintiff Kayla Doherty’s claim
against Merck as a drug manufacturer and distributor?
3. Does Maine’s Wrongful Birth statute prohibit all recovery for
Doherty against both defendants (Merck if it is covered by the
statute, see question one, supra) because of the nature of the
procedure she underwent? Or does the statute allow Doherty to
proceed with her claims but limit the recoverable damages to her
expenses incurred for the procedure and pregnancy, pain and
suffering connected with the pregnancy, and loss of earnings
during pregnancy?
[¶2] We answer the first question in the affirmative. Accordingly, we
decline to answer the second question. In answer to the third question,
pursuant to 24 M.R.S. § 2931 (2016) Doherty may not recover any damages on
her claims against either defendant.
I. BACKGROUND
[¶3] The United States District Court denied without prejudice the
defendants’ motion to dismiss Doherty’s complaint. The court stated in its
certification to us that “the following factual allegations are properly pleaded.
3
The plaintiff’s factual allegations are therefore taken as true for the purpose of
testing the defendants’ argument that Maine law allows no recovery to the
plaintiff even if her allegations are proven.” See Miller v. Town of Wenham,
833 F.3d 46, 51 (1st Cir. 2016) (stating that in reviewing the dismissal of a claim
pursuant to Fed. R. Civ. P. 12(b)(6), the federal courts “accept as true all
well-pled facts alleged in the complaint and draw all reasonable inferences in
the plaintiff’s favor” (alteration and quotation marks omitted)).
[¶4] Doherty’s complaint alleges that on January 26, 2012, she visited a
federally-supported health care center in Albion to inquire about birth control
options. She saw a physician, who recommended the use of an implantable
drug manufactured by Merck consisting of a single, four-centimeter-long rod
inserted under the skin of the inner side of the patient’s upper arm with a
syringe-like applicator. The drug, which is designed to be effective for at least
three years unless the rod is removed sooner by a physician, works by
inhibiting ovulation. Merck knew, or should have known, that the applicator
had a history of failed insertion attempts occurring when, unbeknownst to the
treating physician, the rod would remain stuck in the applicator following the
procedure.
4
[¶5] On February 28, 2012, the physician who recommended the drug to
Doherty carried out the implantation procedure, but failed to check her arm to
see if it was successful. A pregnancy test at the health care center on
October 16, 2013, confirmed that Doherty was pregnant. An examination and
subsequent ultrasound examination failed to locate the rod in either of
Doherty’s arms. A nurse later told Doherty that the physician “believes it was
never inserted.”
[¶6] On June 9, 2014, Doherty gave birth to a healthy boy following a long
and painful delivery. In connection with her pregnancy, Doherty suffered
nausea, mental and physical pain and suffering, insomnia, swelling, and weight
gain. She also incurred expenses, and she lost wages as a result of missing work
for medical appointments. Following the birth of her son, Doherty received
mental health counseling and suffered emotional distress as a result of being
unprepared to raise a child as a single mother.
[¶7] Doherty filed suit against Merck on theories of strict product
liability, breach of warranty, negligence, and negligent misrepresentation; and
against the United States for the negligence of the physician, and for the
physician’s failure to obtain her informed consent. The complaint also asked
the federal court to declare that 24 M.R.S. § 2931 is unconstitutional, both
5
facially and as applied. Merck and the United States moved to dismiss the
complaint on the grounds that (1) pursuant to 24 M.R.S. § 2931(1), the birth of
a healthy child is not a “legally recognizable injury” for which Doherty may
recover damages; and (2) pursuant to 24 M.R.S. § 2931(2), Doherty did not
undergo a “failed sterilization procedure” that would invoke the statute’s
exception and allow her to recover limited damages. The court denied the
motions pending our answers to the three certified questions.
II. DISCUSSION
A. Acceptance of the Certified Questions
[¶8] A threshold issue is whether we will agree to consider the certified
questions. See Bankr. Estate of Everest v. Bank of Am., N.A., 2015 ME 19, ¶ 13,
111 A.3d 655 (“Title 4 M.R.S. § 57 authorizes, but does not require, us to
consider a certified question of state law posed by a federal court in certain
circumstances.” (quotation marks omitted)). In resolving that issue,
[w]e may consider the merits of a certified question from the
United States District Court and, in our discretion, provide an
answer if (1) there is no dispute as to the material facts at issue;
(2) there is no clear controlling precedent; and (3) our answer, in
at least one alternative, would be determinative of the case.
We have stated that wherever reasonably possible, the state
court of last resort should be given [the] opportunity to decide
state law issues on which there are no state precedents which are
controlling or clearly indicative of the developmental course of the
6
state law because this approach (1) tends to avoid the uncertainty
and inconsistency in the exposition of state law caused when
federal courts render decisions of state law which have an interim
effectiveness until the issues are finally settled by the state court of
last resort; and (2) minimizes the potential for state-federal
tensions arising from actual, or fancied, federal court efforts to
influence the development of state law.
Id. ¶¶ 13-14 (alterations, citation, and quotation marks omitted).
[¶9] Here there is no dispute as to the facts to be accepted as true at this
stage of the case; no clear controlling precedent that would answer the
questions; and one alternative that would be determinative of the case, in that
the federal court stated in its certification that “a decision by the Law Court that
no recovery is available to the plaintiff under Maine law even if all her factual
allegations are true . . . would be determinative of the cause and would end the
lawsuit now.” Therefore, we agree to consider the certified questions.
B. Scope of 24 M.R.S. § 2931
[¶10] Maine’s “wrongful birth” statute provides, in part:
§ 2931. Wrongful birth; wrongful life
1. Intent. It is the intent of the Legislature that the birth of a
normal, healthy child does not constitute a legally recognizable
injury and that it is contrary to public policy to award damages for
the birth or rearing of a healthy child.
2. Birth of healthy child; claim for damages prohibited. No
person may maintain a claim for relief or receive an award for
damages based on the claim that the birth and rearing of a healthy
7
child resulted in damages to him. A person may maintain a claim
for relief based on a failed sterilization procedure resulting in the
birth of a healthy child and receive an award of damages for the
hospital and medical expenses incurred for the sterilization
procedures and pregnancy, the pain and suffering connected with
the pregnancy and the loss of earnings by the mother during
pregnancy.
. . . .
24 M.R.S. § 2931(1)-(2).
[¶11] The first certified question asks whether section 2931 applies to
Merck. We have often said that “[i]n interpreting a statute, we seek to effectuate
the intent of the Legislature, which is ordinarily gleaned from the plain
language of the statute. We will not look beyond the plain language of the
statute if it is unambiguous.” State v. Knight, 2016 ME 123, ¶ 9, 145 A.3d 1046.
(citation and quotation marks omitted).
[¶12] Section 2931 is not at all ambiguous in that it bars a specific legal
claim regardless of the party that the claim is brought against: “No person may
maintain a claim for relief or receive an award for damages based on the claim
that the birth and rearing of a healthy child resulted in damages to him.”
24 M.R.S. § 2931(2). Consistent with the Legislature’s stated public policy—
“the birth of a normal, healthy child does not constitute a legally recognizable
injury,” 24 M.R.S. § 2931(1)—the statute addresses only the basis for the claim,
8
not the identity of the defendant. In the case of a legislative public policy
decision,
[w]hen it is clear that the Legislature enacted specific legislation to
remedy an existing problem, social or otherwise, such statutory
enactment must be construed so as to promote the policy
consideration which brought about the Legislature’s action. . . .
We must look to the end which our Legislators sought in the
enactment of the law and approve a construction which will not
nullify its purpose.
Waddell v. Briggs, 381 A.2d 1132, 1135 (Me. 1978).
[¶13] Here, Doherty claims that she is entitled to damages resulting from
injuries that she suffered when the failure of Merck’s product resulted in a
non-remarkable pregnancy leading to the birth of her healthy child. That is
precisely the claim barred by the very clear language of the statute. Doherty’s
argument that the statute applies to the physician who treated her but not to
Merck disregards the statute’s declaration that the birth of a healthy child is not
a legally recognizable injury ab initio; therefore, it is not actionable against any
defendant. As a result, unless the “failed sterilization procedure” exception
contained in section 2931(2) and discussed infra applies, Doherty may not
recover damages against either Merck or the United States for the birth and
expense of raising her healthy child.1
1 In her brief Doherty argues that not all claims, and by implication not all damages, are barred by
the statute. She does not specify the damages that would conceivably remain once all damages for
9
[¶14] For these reasons, we answer the first certified question in the
affirmative.
C. Scope of Macomber v. Dillman
[¶15] The second certified question asks whether our holding in
Macomber v. Dillman, 505 A.2d 810 (Me. 1986), a case involving a failed tubal
ligation procedure resulting in the birth of a healthy child, id. at 812, is
applicable to Merck. Because the federal court conditioned the second question
upon a negative answer to the first question, and we have answered that
question in the affirmative, we do not answer the second question.2
“the birth and rearing of a healthy child,” 24 M.R.S. § 2931(2) (2016), are excluded. In any event, that
the Legislature in section 2931(2) created a very specific category of damages—“the hospital and
medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering
connected with the pregnancy and the loss of earnings by the mother during pregnancy”—that are
available in a very specific and limited circumstance, namely when “a failed sterilization procedure
result[s] in the birth of a healthy child,” means, employing well-recognized principles of statutory
construction, that those are the only damages that may be awarded as a result of claims arising from
the birth of a healthy child. See Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994) (“[A] well-settled
rule of statutory interpretation states that express mention of one concept implies the exclusion of
others not listed.”); Lee v. Massie, 447 A.2d 65, 68 (Me. 1982) (“[T]he maxim[] expressio unius est
exclusio alterius . . . is regarded as well recognized in Maine.” (quotation marks omitted)). We said as
much in Thibeault v. Larson: “As expressed in [24 M.R.S. § 2931] subsections (1) and (2), the birth of
a healthy child is not a legally cognizable injury and an action may only be maintained for limited
damages if the healthy child is born as a result of a failed sterilization.” 666 A.2d 112, 115 (Me. 1995)
(emphases added).
2 We note, in any event, that because the Legislature has occupied the field on this issue in enacting
section 2931, Macomber no longer has any independent jurisprudential vitality.
10
D. The “Failed Sterilization Procedure” Exception
[¶16] The third certified question asks if the single exception to the
statute’s blanket prohibition against claims based on the birth of a healthy child
is applicable on these facts. The relevant section provides:
No person may maintain a claim for relief or receive an award for
damages based on the claim that the birth and rearing of a healthy
child resulted in damages to him. A person may maintain a claim
for relief based on a failed sterilization procedure resulting in the
birth of a healthy child and receive an award of damages for the
hospital and medical expenses incurred for the sterilization
procedures and pregnancy, the pain and suffering connected with
the pregnancy and the loss of earnings by the mother during
pregnancy.
24 M.R.S. § 2931(2).
[¶17] The term “sterilization procedure” is not defined in the Maine
Health Security Act, 24 M.R.S. §§ 2501-2988 (2016), where section 2931 is
located. Doherty argues that the exception should apply here because Merck’s
implantable, long-term drug is “synonymous with sterilization,” and therefore
“the only reasonable interpretation of [section 2931] is that the term
‘sterilization procedure’ . . . applies to any long-lasting effort to render a woman
infertile.” We disagree, and conclude that the Legislature intended
“sterilization procedure” to include medical or surgical procedures that alter
the body’s anatomy for the purpose of permanently ending the possibility of
11
procreation. The term does not include temporary pharmaceutical
intervention in the reproductive process, such as the implant Doherty sought,
nor does it include physical intervention, such as an intrauterine device, that is
designed to be reversible without permanently altering the body’s
reproductive organs. These are methods of contraception, and in section 2931
the Legislature explicitly made an exception to its prohibition against
recovering damages for the birth of a healthy child only for “sterilization.”
24 M.R.S. § 2931(2).
[¶18] Our construction is supported by the Legislature’s
near-contemporaneous definition of the term “sterilization procedure[]” in
title 34-B. In the Due Process in Sterilization Act of 1982, 34-B M.R.S.
§§ 7001-7017 (2016), the effective date of which predated the enactment of
section 2931 by two years, the Legislature stated that it “finds and declares that
sterilization procedures are generally irreversible and represent potentially
permanent and highly significant consequences for the patient involved.”
34-B M.R.S. § 7002 (emphases added) (enacted by P.L. 1983, ch. 459, § 7
(effective Jan. 15, 1984)). The Act goes on to define “[s]terilization” as
“a medical or surgical procedure, the purpose of which is to render an individual
12
permanently incapable of procreation.” 34-B M.R.S. § 7003(9) (emphases
added).
[¶19] This definition was known to the Legislature when it enacted
section 2931 just two years later. See Musk v. Nelson, 647 A.2d 1198, 1202
(Me. 1994) (“The Legislature is presumed to be aware of the state of the law
and decisions of this Court when it passes an act.”). During that short time
interval, the Legislature was aware that traditional methods of sterilization
such as tubal ligation or vasectomy that are intended to be permanent may
sometimes be reversed,3 yet it did not include a more expansive definition of
“sterilization procedure” in section 2931. Presumably, if the Legislature,
mindful of its recent enactment in title 34-B, meant to include procedures—
such as the implant at issue here—that are intended to be reversible in the
section 2931(2) exception, it would have said so, and not used the same term it
had recently defined to mean procedures that are “generally irreversible,” and
“the purpose of which is to render an individual permanently incapable of
procreation.” 34-B M.R.S. §§ 7002, 7003(9). In contrast to what the Legislature
3 Indeed, when a court orders that a sterilization be performed, by statute it “shall be the most
reversible procedure available at the time” unless the treating physician adjudges otherwise.
34-B M.R.S. § 7013(6) (2016). Nevertheless, the Legislature determined in defining “[s]terilization”
as it did that the purpose of the procedure, even if it is potentially reversible, “is to render an
individual permanently incapable of procreation.” 34-B M.R.S. § 7003(6) (2016).
13
explicitly defined to be a “sterilization procedure[],” the procedure that
Doherty underwent was not “generally irreversible,” nor “potentially
permanent,” nor intended to “render [her] permanently incapable of
procreation.” 34-B M.R.S. §§ 7002, 7003(9).
[¶20] Other courts and authorities are in accord with our conclusion that
sterilization is commonly understood to mean a procedure that is intended to
be permanent. See Semian v. Ledgemere Transp., Inc., 2014 ME 141, ¶¶ 8-9,
106 A.3d 405 (stating that when a statute is “reasonably susceptible to different
interpretations” the Law Court may “look to extrinsic information to determine
the Legislature's intent” (quotation marks omitted)).
[¶21] In a 1942 case where the United States Supreme Court reviewed
an Oklahoma compulsory sterilization statute, Justice Douglas emphasized the
gravity of sterilization as a permanent procedure, writing, “We are dealing here
with legislation which involves one of the basic civil rights of man. . . . 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.” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
14
[¶22] Courts to the present day have continued to recognize the
distinction between permanent sterilization and reversible contraception.4
In 2010, the United States Court of Appeals for the Third Circuit, examining the
question of whether the compelled insertion of an intrauterine device (IUD)
constitutes sterilization for the purpose of asylum eligibility, concluded that
“the term ‘involuntary sterilization’ by definition contemplates a permanent
inhibition of reproductive capacity,” and noted that
[i]ndeed, taken to its extreme, [the applicant’s] attempt to read the
permanency out of "sterilization" would lead to such bizarre
propositions as considering the use of any contraceptive . . . to be
4 See, e.g., Huang v. Holder, 591 F.3d 124, 129-30 (2d Cir. 2010) (“The BIA’s [Board of Immigration
Appeals] reasoning that sterilization makes one permanently incapable of having children, whereas
an IUD is a temporary measure, is reasonable.”); Chen v. Holder, 313 F. App’x 625, 630 (4th Cir. 2009)
(concluding, upon reviewing the BIA’s determination that “the sterilization procedure . . . leaves one
incapable of having children . . . [and] IUD use should not be treated as the equivalent of sterilization,”
that “we certainly cannot say that [the BIA’s] interpretation is unreasonable” (alteration and
quotation marks omitted)); Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002) (“Sterilization is
intrusive, permanent, and irreparable.”); Peck v. Califano, 454 F. Supp. 484, 487-88 (D. Utah 1977)
(“unlike other contraceptive or family planning measures, sterilization results in a permanent waiver
of the fundamental right to procreate” (quotation marks omitted)); C.D.M. v. State, 627 P.2d 607, 612
(Alaska 1981) (“Sterilization necessarily results in the permanent termination of the intensely
personal right to procreate.”); Kennedy v. Kennedy, 845 N.W.2d 707, 714-15 (Iowa 2014) (citing
C.D.M., 627 P.2d at 612, as well as a source describing sterilization as “the permanent physical
deprivation of a fundamental constitutional right” (quotation marks omitted)); In re Moe, 432 N.E.2d
712, 716 n.3 (Mass. 1982) (“Sterilization is a surgical procedure that, in nearly all cases, renders a
person permanently incapable of reproduction.”); In re Truesdell, 304 S.E.2d 793, 812 (N.C. Ct. App.
1983) (“State action to compel a sterilization constitutes an irreversible certainty. It would
permanently and irrevocably deprive [the ward] of her procreative capacity.”); In re Terwilliger,
450 A.2d 1376, 1382 (Pa. Super. Ct. 1982) (“sterilization necessarily results in the permanent
termination of the intensely personal right of procreation” (italics omitted)); In re Guardianship of
Eberhardy, 307 N.W.2d 881, 897 (Wis. 1981) (“[S]tate action to authorize sterilization constitutes an
irreversible certainty. It would permanently and irrevocably deprive [the ward] of her procreative
capability.”); see also Conservatorship of Valerie N., 707 P.2d 760, 787 n.9, 788 (Cal. 1985) (Bird, C.J.,
dissenting) (“Other methods of contraception do not irreversibly prevent procreation, nor do they
require the surgical destruction of any biological capacity for a nonmedical purpose. . . . [T]he
majority fail[s] to weigh the impact of the irreversible deprivation of the right to procreate . . . .”).
15
“sterilization,” since all contraceptives inhibit reproduction. At the
risk of stating the obvious, the use of a contraceptive ordinarily
would not amount to sterilization, since sterilization is permanent
and irreparable and the use of a contraceptive—even an IUD, which
is designed to remain in place until removed by a physician—is not.
Cheng v. Att’y Gen., 623 F.3d 175, 182-83, 187 & n.6 (3d Cir. 2010) (alterations,
ellipsis and quotation marks omitted).
[¶23] Beyond the widely-held view of numerous courts,
Black’s Law Dictionary defines “sterilization” as “[t]he act of making (a person
or other living thing) permanently unable to reproduce.” Black’s Law
Dictionary 1640 (10th ed. 2014) (emphasis added); see also Stedman’s Medical
Dictionary 1475 (25th ed. 1990) (defining “sterilization” as “[t]he act or process
by which an individual is rendered incapable of . . . reproduction, as by
vasectomy, salpingectomy, or castration”); Richard Sloane, The Sloane-Dorland
Annotated Medical-Legal Dictionary 670 (1987) (defining “sterilize” as “to
render incapable of reproduction”); Webster’s Third New International
Dictionary Unabridged 2238 (1986) (defining “sterilization” as “a procedure by
which a human . . . is made incapable of reproduction”). Contrary to Doherty’s
assertion that the Black’s definition is unreliable because it dates to 1905, that
the definition is of such long standing suggests that the Legislature would have
been clear had it intended to expand the commonly-understood meaning—the
16
same meaning that it used in 34-B M.R.S. § 7003(9) in 1984—to encompass
Doherty’s situation.
[¶24] For these reasons, we conclude that the “failed sterilization
procedure” exception is not applicable on the facts presented to us.
Accordingly, our answer to the third certified question is that pursuant to
section 2931, Doherty may not recover any damages on her claims against
Merck or the United States.5
The entry is:
We answer the certified questions as follows:
“We answer the first certified question in the
affirmative. Accordingly, we decline to answer
the second certified question. In answer to the
third certified question, pursuant to 24 M.R.S.
§ 2931 the plaintiff may not recover any
damages on her claims against either
defendant.”
5 Doherty asserts that this result violates several provisions of the United States and Maine
Constitutions. The United States District Court did not certify a question of the statute’s
constitutionality to us, and we decline to address that issue before the federal court has done so in
this federal case. See M.R. App. P. 25(b) (“The certificate . . . shall contain . . . the question or questions
of law to be answered.”).
17
SAUFLEY, C.J., with whom ALEXANDER and GORMAN, JJ., join, concurring.
[¶25] Although we concur with the Court’s answers, we write separately
to make clear the very limited scope of the questions presented and our
responses to those questions.
[¶26] The federal court has not asked us to determine whether the
wrongful life statute goes beyond declaring that the birth and the life of a
healthy child do not constitute damages, that is, legally recognizable injury.
24 M.R.S. § 2931(1) (2016). Nor has it asked us to determine whether, if the
statute does go beyond the gender-neutral declaration that a child is not an
“injury,” doing so constitutes an unconstitutional violation of a woman’s right
to equal protection under the law. Id.
[¶27] Moreover, in light of the questions presented, we are not required
to consider whether a person may bring claims of ordinary medical malpractice
for any negligent medical care provided to a person who sought medical care
to avoid pregnancy as a result of a medical condition. For example, a person
who suffers from certain illnesses may be seriously or fatally harmed by a
pregnancy. In answering the questions presented, we are not required to
consider whether a claim of medical malpractice for contraception failure may
proceed in those circumstances. Put another way, those injuries would be
18
factually distinct from the nature of the claim before the federal court related
to the birth of an unanticipated but healthy child. In the end, we are not asked
to determine whether that type of harm to a person, unrelated to the child, falls
outside of the statute’s limitation on negligence actions.
[¶28] Finally, although we cannot disagree with the Court’s careful
parsing of the concepts of “sterilization,” particularly as used in other statutory
contexts, it is clear from the lengths the Court goes to in attempting to
distinguish various methods of permanent or semi-permanent contraception
that medicine has outstripped the statutory definitions and that further
attention to the language of 24 M.R.S. § 2931 (2016) is needed.
[¶29] In sum, we write to clarify that we do not opine on the
constitutionality of the statute, and we do not opine on whether a person may
maintain a claim for other types of injuries—unrelated to the existence of a
healthy child—arising from allegations of medical malpractice in the context of
a pregnancy.
Laura H. White, Esq. (orally), Bergen & Parkinson, LLC, Kennebunk, for
appellant Kayla Doherty
Paul McDonald, Esq., (orally), and Daniel J. Mitchell, Bernstein Shur, Portland,
and Thomas J. Yoo, Esq., Reed Smith LLP, Los Angeles, California, for appellee
Merck & Co., Inc.
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Thomas E. Delahanty II, United States Attorney, and Andrew K. Lizotte, Asst.
U.S. Atty. (orally), Office of the United States Attorney, Portland, for appellee
United States of America
Janet T. Mills, Attorney General, and Susan P. Herman, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine
United States District Court for the District of Maine docket number 1:15-cv-129-DBH
FOR CLERK REFERENCE ONLY