United States District Court, W.D. Washington
YESENIA PACHECO, LUIS LEMUS, and S.L.P., minor child, by and through her Guardian ad Litem Brian Comfort, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY
ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on “Plaintiffs'
Motion for Summary Judgment to Hold Defendant Liable On
Plaintiffs' ‘Wrongful Birth' and
‘Wrongful Life' Claims.” Dkt. # 20. Having
reviewed the memoranda submitted by the parties, including
plaintiffs' reply, Dkt. # 26, and the government's
supplemental surreply, Dkt. # 31, and having heard oral
argument on the motion,  the Court finds as follows.
Yesenia Pacheco and Luis Lemus and their child, S.L.P., bring
claims for “wrongful birth” and “wrongful
life” pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671,
et seq., and RCW 7.70.030 (1) and (3) as interpreted
by Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460
was a patient at NeighborCare Health, a Federally Qualified
Community Health Center. Plaintiffs allege that the health
care providers at NeighborCare Health acted on behalf of
defendant, the United States, in providing treatment within
the scope of their employment. Pacheco received
Depo-Provera injections at NeighborCare Health on
January 24, 2011, April 12, 2011, and July 5, 2011. Dkt. # 1
at 4; Dkt. # 9 at 3. Pacheco had scheduled a Depo-Provera
injection at NeighborCare Health for September 30, 2011.
Gloria Rodriguez, a certified medical assistant at
NeighborCare Health, administered a flu vaccination to
Pacheco on September 30, 2011. Rodriguez did not administer a
Depo-Provera injection at that time. Pacheco thereafter
conceived and she gave birth to S.L.P. on August 2, 2012.
Plaintiffs allege that S.L.P developed clinical seizure
activity involving convulsive movements.
filed this suit in July 2015, arguing that defendant is
liable on plaintiffs' wrongful birth and wrongful life
claims because Pacheco would not have given birth absent the
clinic's incorrect injection. In September 2016,
plaintiffs moved for summary judgment. Plaintiffs do not ask
the Court to decide the nature or extent of plaintiffs'
damages in the context of this motion.
A. Summary Judgment Standard
judgment is appropriate if, viewing the evidence in the light
most favorable to the nonmoving party, “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); L.A. Printex Indus., Inc.
v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012).
The moving party “bears the initial responsibility of
informing the district court of the basis for its
motion.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). It need not “produce evidence showing
the absence of a genuine issue of material fact” but
instead may discharge its burden under Rule 56 by
“pointing out . . . that there is an absence of
evidence to support the nonmoving party's case.”
Id. at 325. Once the moving party has satisfied its
burden, it is entitled to summary judgment if the non-moving
party fails to designate “specific facts showing that
there is a genuine issue for trial.” Id. at
324. Although the Court must reserve for trial genuine issues
regarding credibility, the weight of the evidence, and
legitimate inferences, the “mere existence of a
scintilla of evidence in support of the non-moving
party's position will be insufficient” to avoid
judgment. City of Pomona v. SQM N. Am. Corp., 750
F.3d 1036, 1049 (9th Cir. 2014); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
FTCA provides that the United States is liable only “if
a private person would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b). The
substantive law of Washington applies because the alleged
negligence occurred in Washington State. Dkt. # 1. In order
to establish wrongful birth or life claims under Washington
law, plaintiffs bear the burden of establishing duty, breach
of duty, proximate cause, and damages. See generally
Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983);
see also RCW 7.70.030-050. Washington law provides
that two main duties may be at issue in this case: the duty
to perform medical procedures with due care and the duty to
obtain informed consent. See RCW 7.70.030(1), (3);
Harbeson, 98 Wn.2d at 466-67.
respect to the first duty, plaintiffs contend that defendant
failed to exercise due care when Rodriguez allegedly injected
Pacheco with the wrong substance. As for the second duty,
plaintiffs contend that defendant failed to obtain informed
consent when Rodriguez allegedly failed to inform Pacheco
that she would be injecting her with a flu shot in lieu of
the Depo-Provera birth control. Plaintiffs contend that these
breaches of duty caused the injury because a flu shot is
ineffective in preventing an unwanted pregnancy. The
parents' injury for the wrongful birth claim is the
unwanted birth of the “defective” child, which
may have produced damages for mental anguish and the medical
expenses attributable to the child's birth and defective
condition. See id. at 473-75. S.L.P.'s injury
for the wrongful life claim includes the expenses of medical
care and special training. See id. at 482.
Genuine Issue of Material Fact
parties agree that Pacheco scheduled a Depo-Provera injection
for September 30, 2011 and instead received a flu
vaccination. Dkt. # 20 at 7; Dkt. # 23 at 6. The dispute
between the parties is whether Pacheco agreed and understood
that she would be receiving a flu vaccine instead of a
Depo-Provera injection. Dkt. # 23 at 6; Dkt. # 26 at 9. If
Pacheco did agree and understand then there was no ...