United States District Court, D. Maryland
JONATHAN E. DOWLING, et al. Plaintiffs,
A.R.T. INSTITUTE OF WASHINGTON, INC., et al. Defendants.
PAULA XINIS UNITED STATES DISTRICT JUDGE
case concerns the heartbreak of infertility compounded by the
suffering of an infant born with a severe congenital
disorder. In filing this suit, Plaintiff Jonathan Dowling
lays bare his family's difficult journey. Dowling asserts
that the embryology practice where Dowling and his wife
sought assistance caused the couple unwittingly to agree to a
high-tech in-vitro fertilization procedure which, in their
view, led to their infant son's severe and ultimately
fatal birth defects. Before this opinion unfolds, it is
important to recognize the depth of the Dowlings'
suffering and loss.
Court must review the Complaint for legal sufficiency.
Defendants A.R.T. Institute of Washington, Inc. and Erika
Cullingford (collectively, “Defendants”) have
moved to dismiss the Complaint or in the alternative for
summary judgment. ECF No. 7. Dowling has opposed the motion
and moves for partial summary judgment in his favor. ECF No.
21. The Court held a hearing on February 25, 2019. For the
following reasons, the Court denies Defendants' motion
and grants Dowling's motion in part.
Dowling (“Dowling”) is a Lieutenant Commander in
the Judge Advocate General's Corps of the United States
Navy. ECF No. 1 at 2. For quite some time, he and his wife
Kathryn had wanted a baby, and tried a variety of fertility
treatments to no avail. Id. ¶ 18. At some
point, the couple chose to pursue in vitro fertilization
(“IVF”) at the Walter Reed National Military
Medical Center (“WRNMMC”) in Bethesda, Maryland.
Id. WRNMMC contracted with the A.R.T. Institute of
Washington, Inc (“A.R.T.”) to provide embryology
services to military servicemembers and their families.
Id. ¶¶ 14, 19-20.
pursuit of IVF, the Dowlings met with medical staff from
WRNMMC and A.R.T. on February 21, 2012. Id. ¶
36. At this meeting, the Dowlings signed a written consent
form pertaining to IVF generally and to a specific type of
embryological service called intracytoplasmic sperm injection
(“ICSI”). Id. ¶ 37. ICSI is a
procedure where trained medical personnel identify from the
male partner's sperm sample a single sperm that provides
the best opportunity for fertilization, and then injects that
single sperm via a pipette directly into the egg. ECF No. 1-6
at 6. ICSI is often used when “the sperm may not be
judged adequate to achieve fertilization using conventional
insemination (putting the eggs and sperm closely
initial meeting with the Dowlings, A.R.T. presented the ICSI
consent form for their review and signatures. The form
memorialized that the Dowlings understood how ICSI worked, in
that prior to an IVF-ICSI cycle, Dowling would provide a
semen sample “for analysis by the andrology
laboratory.” Id. at 1. If the sample was
“not judged adequate to achieve fertilization using
conventional insemination” or “where
fertilization has failed or was substantially reduced in
prior IVF cycles, ” ICSI would offer a better chance of
conceiving. Id. at 6.
of the ICSI consent form, the Dowlings were apprised of
several risks and precautions. Specifically, under a
prominent heading in boldface type which read “We
understand that ICSI may involve the following risks or
disadvantages, ” the consent form expressly warned that
“[t]his technology is relatively new (started 1992),
and there may be unknown risks to the baby or mother.”
ECF No. 1-6 at 6-7. The consent further warned that
“[w]hile there seems to be no higher overall incidence
of congenital malformations in children born after ICSI . . .
the risk cannot be totally ruled out.” Id. at
7. The consent form confirmed that the Dowlings knew and
understood all the terms: “We hereby attest that we
have read the above referenced consent forms, or that they
have been read to us, so that we understand it completely. We
further attest that any and all questions of ours regarding
all procedures have been answered to our complete
satisfaction.” Id. at 12.
March 7, 2012, Dowling provided a semen sample for evaluation
to A.R.T. junior embryologist Erika Cullingford
(“Cullingford”). ECF No. 1 ¶¶ 28, 47.
Dowling noted on the accompanying Semen Analysis Form that he
had begun taking paroxetine, commonly known as Paxil, that
same day. Id. ¶¶ 46-47. Cullingford and
another A.R.T. employee analyzed his sample and found the
sperm's “pre-wash motility” to be 39%, with
the “normal value” noted as >40%. Id.
¶ 47; ECF No. 1-9. The form also noted a finding of
“ICSI Low initial motility.” ECF No. 1-9.
Dowlings then began their IVF procedure, which included
Kathryn Dowling taking hormone stimulants to promote
maturation of several eggs at once. Prior to beginning this
phase of the IVF process, A.R.T. invoiced the Dowlings for
their upcoming IVF cycle, which included a separate charge
for ICSI. ECF No. 1 ¶¶ 31, 48. When Kathryn Dowling
asked A.R.T. about the charge for ICSI, she was told that the
“low initial motility” finding from the March 7,
2012 sperm sample warranted the use of ICSI. Id.
¶ 48. The Dowlings paid the invoice in full.
Id. ¶ 49.
6, 2012, the Dowlings returned to WRNMMC for the clinic to
retrieve Kathryn Dowling's eggs and collect another semen
sample from Dowling for fertilization via ICSI. Id.
¶ 53. Before this day, Dowling had researched the
effects of Paxil on conception. Specifically, Dowling had
read that using Paxil may lead to increased DNA fragmentation
in sperm that could complicate pregnancy and risk
abnormalities in the fetus. Id. ¶ 51. Dowling
shared these concerns with the WRNMMC medical providers who
responded that the risk of Dowling's recent Paxil use was
“negligible” in terms of fertilization.
Id. ¶¶ 51, 54. Dowling again filled out
the A.R.T. Semen Analysis Form, noting that he was taking
Paxil and that “Doctor did not provide information on
impacts on sperm. Discovered study last night on
internet.” Id. ¶ 55. According to the
study Dowling had found, the likely DNA fragmentation in his
sperm in July 2012 was 42%, well above the 30% threshold for
abnormal DNA fragmentation. Id. ¶ 70. In
contrast, when Dowling underwent semen analysis in February
2013, after discontinuing Paxil in October 2012, his DNA
fragmentation level was 26%. Id. ¶ 69. In other
words, an abnormally high percentage of the sperm sample used
for ICSI included damaged sperm attributable to using Paxil.
Dowlings proceeded with egg retrieval and fertilization.
Dowling provided a sperm sample which Cullingford analyzed as
having a “prewash motility of 48%” and a
“prewash progression of 40%.” Id. ¶
56. Cullingford noted on the Semen Analysis Form that
“[t]he sample that has been prepared is of ICSI
standards . . . due to [l]ow initial motility.”
Id. Dowling reviewed this form prior to agreement to
use ICSI for fertilization. He understood Cullingford's
note to mean that the sample he had given that day (July 6,
2012) had low motility. Consequently, he and his wife
consented to the ICSI procedure. Id. ¶ 57.
selected twelve individual sperm cells to fertilize twelve
eggs retrieved from Kathryn Dowling. Id. ¶ 58.
On July 11, 2012, an embryo was transferred to Kathryn
Dowling. Id. ¶ 59. Several days later, the
Dowlings learned they were pregnant. Id. ¶ 61.
Kathryn's six month of pregnancy, doctors diagnosed the
fetus with a rare disorder called pentalogy of Cantrell.
Id. ¶ 63. The disorder spans a broad spectrum
of severity and may involve major defects to five areas of
the body: the sternum, heart, pericardium (heart lining),
diaphragm, and abdominal wall. Id.; ECF No. 1-11 at
3. Although the exact prevalence is not fully known, an
estimated 5.5 of every 1 million babies suffer from pentalogy
of Cantrell of varying severity. ECF No. 1-11 at 3.
J.A.D. was born, doctors determined that J.A.D. suffered from
a particularly severe case of the disorder. ECF No. 1 ¶
73; ECF No. 1-11 at 4-5. Among other life-saving measures,
J.A.D. underwent open-heart surgery, chest closure surgery,
and three catheter procedures. ECF No. 1 ¶ 76. In total,
J.A.D. spent roughly half his young life in the hospital.
Id. On October 26, 2013, J.A.D. died as a result, at
home and in his parents' arms. Id. ¶ 78.
losing J.A.D., the Dowlings filed suit in the United States
District Court for the District of Washington on behalf of
themselves and J.A.D.'s estate against the WRNMMC
physicians and Washington state military medical personnel
pursuant to the Federal Tort Claims Act
(“FTCA”). ECF No. 1-12; ECF No. 1 ¶ 87
(“Washington case”). In the Washington case, the
Dowlings asserted claims for lack of informed consent,
wrongful death and survivorship based on WRNMMC's
participation in the consent and fertilization process. The
Washington Complaint also included medical negligence claims
against the military physicians who failed to diagnose
J.A.D.'s pentalogy of Cantrell in a timely manner. The
Washington Complaint, however, did not name A.R.T. or
Cullingford as defendants, but rather described them as
“independent contractor[s]” that provided
embryology services to the military medical personnel at
WRNMMC. ECF No. 7-8 ¶ 15. The Washington Complaint also
alleged that WRNMMC and A.R.T. medical personnel played
various roles in obtaining consent from the Dowlings to
undergo IVF-ICSI. See, e.g., id.
¶¶ 15-17 (describing an IVF orientation
administered by A.R.T. where the Dowlings signed consent
forms); see also Id. ¶ 42 (Dowling signed
consent forms for semen collection and analysis for IVF/ICSI
on July 6, 2012 wherein he noted concern about Paxil damaging
of 2016, the Dowlings executed a settlement and release with
the United States (the “Settlement Agreement”).
ECF No. 7-2. The Settlement Agreement expressly states that
The parties [the Dowlings and the United States] do hereby
agree to settle and compromise each and every claim of any
kind, against all persons, in their individual or official
capacities, and against the United States of America
and all of its agencies, whether known or unknown,
arising directly or indirectly, from the acts or omissions
that gave rise to the above-captioned action under the terms
and conditions set forth in this Stipulation for Compromise
Settlement and Release.
Id. ¶ 1 (emphasis added). The Settlement
Agreement further provides that
The United States of America agrees to pay
the sum of [REDACTED] . . . which sum shall be in full
settlement and satisfaction of any and all claims, demands,
rights and causes of action of whatsoever kind and nature,
arising from, and by reason of, any and all known and
unknown, foreseen and unforeseen bodily and personal
injuries, damage to property and the consequences thereof,
resulting, and to result, from the subject matter of this
settlement, including any claims for wrongful death, for
which Plaintiffs or their guardians, heirs, executors,
administrators, or assigns, and each of them, now have or may
have hereafter acquire against the United States of
America, its agents, servants and employees.
Id. ¶ 2 (emphasis added). The agreement finally
contemplates possible future litigation against parties not
involved in the Washington case, stating
Plaintiffs . . . further agree to reimburse, indemnify and
hold harmless the United States of America, its agents,
servants, and employees from and against any and all such
causes of action, claims, liens, rights, or subrogated or
contribution interests incident to or resulting from
further litigation or the prosecution of claims by
the plaintiff . . . against any third party or against the
United States, including claims for wrongful death.
Id. ¶ 3 (emphasis added). The United States and
Dowling consummated this agreement, and the Washington case
was dismissed. ECF No. 7-9.
January 12, 2018, Dowling, individually and as the personal
representative of the estate of J.A.D. and to the use of
Kathryn Dowling, brought suit against A.R.T. and Cullingford
asserting largely, but not wholly, similar claims to those
raised in the Washington case. ECF No. 1. Dowling brings suit
on his own behalf for failure to provide Dowling adequate
informed consent, as well as wrongful death and survivorship
claims premised on the same consent failures. The Complaint
also pleads negligent misrepresentation against Cullingford
for misreporting the results of Dowling's semen analysis
and constructive fraud as to both Defendants. Dowling further
asks this Court to declare that the Settlement Agreement does
not completely bar this suit proceeding against A.R.T. and
contend that dismissal of the Complaint is warranted on
several grounds, to include that the Settlement Agreement
reaches these claims and parties; that the Washington
doctors' negligence in failing to diagnose J.A.D.'s
disease sooner constitutes an intervening cause that bars
relief; and that the informed consent claims must fail as a
matter of law. ECF No. 7. Dowling has cross-moved for partial
summary judgment regarding whether the FTCA bars this suit.
ECF No. 21.
Standard of Review
Although the parties urge this Court to review this case
under a summary judgment standard, the Court notes that the
Complaint incorporates by reference the documents necessary
for the Court to treat the Defendants motion as one to
dismiss under Rule 12(b)(6). Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). Because
no formal discovery has taken place, the Court reviews
Defendants' motion under Rule 12(b)(6).
motion to dismiss is designed to test the sufficiency of the
complaint. Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006). The Court accepts “the
well-pled allegations of the complaint as true, ” and
construes all facts and reasonable inferences most favorably
to the plaintiff. See Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). To survive a motion to
dismiss, a complaint's factual allegations “must be
enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
The FTCA Settlement
contend that Dowling cannot pursue claims against them
because the Settlement Agreement constitutes full
satisfaction for all claims against all parties arising out
of the informed consent procedure for ICSI, and that to allow
the claim to proceed would permit the Dowlings to double
recover. For the following reasons, the Court disagrees that
the Settlement Agreement bars suit.
action is brought against the United States for claims
involving government actors who would otherwise enjoy
immunity from suit. 28 U.S.C. § 1346; see also
United States v. Orleans, 425 U.S. 807, 813 (1976) (The
FTCA constitutes a “limited waiver of sovereign
immunity, making the Federal Government liable to the same
extent as a private party for certain torts of federal
employees acting within the scope of their
employment.”), abrogated on other grounds by United
States v. Olson, 546 U.S. 43 (2005). Most relevant to
this case, “[t]he FTCA explicitly excludes
independent contractors from its scope.” In re KBR,
Inc., 736 F.Supp.2d 954, 963-64 (D. Md. 2010),
modified on reh'g sub nom. In re KBR, Inc., Burn Pit
Litig., 925 F.Supp.2d 752 (D. Md. 2013), vacated on
other grounds and remanded, 744 F.3d 326 (4th Cir.
2014); see also Robb v. United States, 80 F.3d 884,
887 (4th Cir. 1996) (affirming the dismissal of FTCA claims
against physicians who were independent contractors on an Air
Force base because “Congress has not waived the
sovereign immunity of the United States for injuries
resulting from the actions of independent contractors
performing work for the government”). Thus, ...