Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 1 of 14 1 2 3 Shea C. Meehan,ISB #6407 Walker Heye Meehan & Eisinger,PLLC 1333 Columbia Park Trail, Ste 220 Richland, WA 99352 4 Telephone:(509)735-4444 Fax:(509)735-7140 5 smeehan@walkerheve.com Attorneys for Plaintiffs 6 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF IDAHO 11 12 13 KELLI ROWLETTE,an individual, SALLY ASHBY,an individual, and HOWARD FOWLER,an individual. 14 Plaintiffs, 15 16 17 Cause No. COMPLAINT V. GERALD E. MORTIMER,M.D., LINDA G. McKINNON MORTIMER, [Demand for Jury Trial] and the marital community comprised 18 19 thereof, and OBSTETRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS,P.A, an Idaho 20 professional corporation. 21 Defendants. PARTIES.JURISDICTION & VENUE 22 23 1. Plaintiff Kelli Rowlette(Mrs. Rowlette) is a United States citizen and 24 a married person domiciled in Benton County, within the Eastern District of 25 Washington. COMPLAINT -1 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALICER HEYE MEEHAN EISINGER^ Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 2 of 14 ^ 2. Plaintiff Sally Ashby (Ms. Ashby) is a United States citizen and a 2 single person domiciled in Benton County, within the Eastern District of 3 ^ Washington. 5 6 3. Plaintiff Howard Fowler(Mr. Fowler) is a United States citizen and a married person domiciled in Benton County, within the Eastern District of 7 Washington. 8 9 4. Defendant Gerald E. Mortimer, M.D.,(Dr. Mortimer) is a physician 10 licensed in the State of Idaho, license number M-3709 with a specialty in 11 Obstetrics and Gynecology(OB/GYN). 12 5. Dr. Mortimer and Linda G. McKinnon Mortimer(Mrs. Mortimer) are 13 14 husband and wife, comprise a marital community under the laws of the State of 15 Idaho, are United States Citizens, and are domiciled in Bonneville County, within the District of Idaho. The acts and omissions complained of herein were for the 17 benefit ofthe marital community. 18 19 6. Defendant Obstetrics and Gynecology Associates ofIdaho Falls, P.A., (OGA)is professional corporation incorporated under the laws of Idaho, domiciled 21 with its principal place of business in Bonneville County, within the District of 22 Idaho. Dr. Mortimer was an employee acting in the course and scope of his 24 employment with OGA when the acts and omissions complained of herein occurred COMPLAINT-2 1333 Columbia Park Trail, Suite 220 Richland,WA 99352 P(509)735-4444 F(509)735-7140 WALKiR HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 3 of 14 ' 7. The matters in controversy complained of herein exceed $75,000.00, 2 exclusive of interests and costs, are between citizens of different states, and 3 ^ occurred in Bonneville County, within the District of Idaho. 5 8. The Court has jurisdiction pursuant to 28 U.S.C. § 1332 ^ 9. Venue is proper pursuant to 28 U.S.C. § 1391. ^ FACTS 8 ^ 10. In 1979 Ms. Ashby and Mr. Fowler were a married couple residing in 10 Idaho Falls, Idaho. At the time, Mr. Fowler was stationed at the Naval Reactors 11 Facility approximately 50 miles northwest of Idaho Falls. The couple were having 12 difficulty conceiving a child and became patients of OGA under the care of Dr. 13 14 15 16 Mortimer, an OB/GYN. 11. Dr. Mortimer examined Ms. Ashby and Mr. Fowler to ascertain what may be causing their reproductive difficulties. Ultimately, Dr. Mortimer diagnosed 17 Ms. Ashby with a tipped uterus and diagnosed Mr. Fowler with a low sperm count 18 19 and low sperm motility. 20 12. Dr. Mortimer recommended that Ms. Ashby and Mr. Fowler undergo 21 a procedure whereby donor sperm/semen (hereinafter "genetic material") would be 22 mixed with Mr. Fowler's genetic material in the medical lab prior to insemination 24 to increase the chances of conception. Dr. Mortimer represented that 85% of the mixture would be Mr. Fowler's genetic material, while 15% of the mixture would COMPLAINT - 3 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 4 of 14 1 be genetic material from an anonymous donor of characteristics selected by Ms. 2 Ashby and Mr. Fowler. Dr. Mortimer would then inseminate Ms. Ashby with the 3 ^ mixture(the Procedure). 5 13. Ms. Ashby and Mr. Fowler agreed to try the Procedure, but only if Dr. ^ Mortimer could find a donor with the following characteristics: a college student 7 who physically resembled Mr. Fowler and, to that end, the donor would have 8 ^ brown hair, blue eyes, and would be over six (6)feet tall. 10 14. Dr. Mortimer represented to Ms. Ashby and Mr. Fowler that he had '' access to genetic material from a donor matching their requirements. Relying on 12 this representation from their trusted physician, Ms. Ashby and Mr. Fowler agreed 13 14 to P^y Dr. Mortimer to perform the Procedure with the donor genetic material and •5 Mr. Fowler's genetic material combined. Ms. Ashby and Mr. Fowler also agreed to pay for access to the donor genetic material which was to be used for the 17 Procedure. 18 19 20 15. Dr. Mortimer collected genetic material from Mr. Fowler for use in the Procedure on several occasions. 21 16. Dr. Mortimer ultimately performed the Procedure. However, instead 22 of using donor genetic material and Mr. Fowler's genetic material as promised. Dr. 24 Mortimer inseminated Ms. Ashby with his own genetic material. Dr. Mortimer falsely represented that he had used donor genetic material and Mr. Fowler's COMPLAINT-4 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EISINGERe Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 5 of 14 • genetic material, and intentionally concealed this fact from Ms. Ashby and Mr. 2 Fowler. Dr. Mortimer did not match the donor specifications Ms. Ashby and Mr. 3 ^ Fowler agreed to. 5 17. Had Mr. Fowler and Ms. Ashby known Dr. Mortimer was going to ^ inseminate Ms. Ashby with his own genetic material, they would not have agreed 7 to the Procedure. 8 ^ 18. The Procedure was performed every other day for a total of three 10 procedures per month when Ms. Ashby was ovulating. 11 The Procedure was repeated on this basis in the months ofJune, July, and August, of 1980. 12 19. In August of 1980, Ms. Ashby discovered she was pregnant. On May 13 14 20, 1981, Ms. Ashby gave birth to Kelli Rowlette (maiden name, Kelli Fowler). '5 Dr. Mortimer delivered Kelli Rowlette. 16 20. Dr. Mortimer remained Ms. Ashby's OB/GYN for several years. Two 17 years after Kelli Rowlette's birth, Ms. Ashby and Mr. Fowler successfully 18 19 conceived a son without medical assistance. Ms. Ashby, Mr. Fowler, and their children eventually moved from Idaho Falls, Idaho to the State of Washington. Dr. 21 Mortimer cried when Ms. Ashby informed him they were moving. Dr. Mortimer 22 knew Kelli Rowlette was his biological daughter but did not disclose this to Ms. 24 Ashby or Mr. Fowler. Dr. Mortimer fraudulently and knowingly concealed his use 25 of his own genetic material in the Procedure. COMPLAINT-5 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EiSlNGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 6 of 14 ' 21. The truth that Dr. Mortimer's use of his own genetic material to 2 impregnate Ms. Ashby remained concealed until July 2017, when Mrs. Rowlette 3 ^ received a notification on Ancestry.com that a DNA sample she had submitted 5 matched with Dr. Mortimer's DNA sample. Ancestry.com predicted a parent-child relationship between Dr. Mortimer and Mrs. Rowlette. Mrs. Rowlette did not know who Dr. Mortimer was at the time and was not aware that her parents had undergone the Procedure to help them conceive. 10 11 22. error. Mrs. Rowlette initially believed the Ancestry.com results were in She mentioned the confusing results to Ms. Ashby and relayed her 12 disappointment in the unreliability of the service she had thought she was getting 13 14 from Ancestry.com. Mrs. Rowlette gave Ms. Ashby access to the results from 15 Ancestry.com. 16 When Ms. Ashby was alone, she accessed the account to investigate fiirther. When Ms. Ashby saw Dr. Mortimer's name, she was 17 devastated. 18 19 23. Ms. Ashby contacted Mr. Fowler, her now ex-husband, and relayed 20 the information she obtained from Ancestry.com. Mr. Fowler was also devastated 21 by the news. For several months Ms. Ashby and Mr. Fowler painfully labored 22 over whether to tell Mrs. Rowlette that Dr. Mortimer had been their OB/GYN 23 24 when she was conceived, and that they had intended on using 15% donor genetic 25 material to aid in conception. Ms. Ashby and Mr. Fowler struggled to cope with COMPLAINT - 6 •533 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 7 of 14 ' their own anguish, and had difficulty contemplating the torment the discovery 2 would cause their daughter when and ifshe found out. 3 ^ 24. In October 2017, Mrs. Rowlette was at Mr. Fowler's house helping 5 him clean out old papers that had gathered over the course of her life and had been ^ saved in a roll-top desk. Mrs. Rowlette discovered her birth certificate among the 7 Stack of papers. Upon inspection, she observed that her birth certificate had been 8 ^ signed by Dr. Mortimer. Mrs. Rowlette was horrified and contacted Ms. Ashby 10 and Mr. Fowler in a panic to relay what she had found. 25. Since discovering Dr. Mortimer's actions, Ms. Ashby, Mr. Fowler, 12 and Mrs. Rowlette have been suffering immeasurably. 13 CAUSES OF ACTION Medical Negligence 16 26. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 17 forth under this count and further allege: 18 19 27. Dr. Mortimer had a duty to his patients, Ms. Ashby, Mr. Fowler, and Mrs. Rowlette, to provide health care consistent with the standard of care expected 21 of an OB/GYN in Idaho Falls, Idaho as the standard existed in 1980. 22 28. Dr. Mortimer breached the standard of care as to Ms. Ashby, Mr. 24 Fowler, and Mrs. Rowlette by inseminating Ms. Ashby with his own genetic material. COMPLAINT - 7 1333 Columbia Park Trail, Suite 220 Rich!and,WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EISINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 8 of 14 ' 29. Dr. Mortimer breached the standard of care as to Ms. Ashby, Mr. 2 Fowler, and Mrs. Rowlette by inseminating Ms. Ashby with a mixture of genetic 3 ^ material from multiple different sources. 5 30. Ms. Ashby, Mr. Fowler, and Mrs. Rowlette have suffered damages as ^ a direct and proximate result of Dr. Mortimer's breach ofthe standard ofcare, 7 Failure to Obtain Informed Consent 31. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 10 forth under this count and further allege: 11 32. Dr. Mortimer failed to disclose to Ms. Ashby and Mr. Fowler that he 12 was using his own genetic material to inseminate Ms. Ashby. 13 14 33. Ms. Ashby and Mr. Fowler have been damaged as a direct and 15 proximate result of Dr. Mortimer's failure to disclose that he was using his own 16 genetic material to inseminate Ms. Ashby. 17 Fraud 18 19 34. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 20 forth under this count and fiirther allege: 21 35. Dr. Mortimer represented to Ms. Ashby and Mr. Fowler that Ms. 22 Ashby would be inseminated with a mixture of genetic material that was 85% from 23 24 Mr. Fowler and 15% from a donor who was a college student with brown hair, blue 25 eyes, and over six(6)feet tall. COMPLAINT-8 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 9 of 14 1 36. Dr. Mortimer's representation was false, and he instead inseminated 2 Ms. Ashby with his own genetic material without consent. 3 37. Ms. Ashby and Mr. Fowler would not have agreed to use Dr. 4 5 Mortimer's genetic material for the Procedure. 38. Dr. Mortimer knew his representation was false and intended that Mr. Fowler and Ms. Ashby would nevertheless rely on his false representation in agreeing to go forward with the procedure. 10 11 39. Ms. Ashby and Mr. Fowler did not know that Dr. Mortimer's representation was false, and justifiably relied on their trusted doctor's 12 representation. 13 14 40. Ms. Ashby and Mr. Fowler were damaged as a direct and proximate 15 result of Dr. Mortimer's fraudulent representation 16 Battery 17 41. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 18 19 forth under this count and further allege: 42. Dr. Mortimer intended to inseminate Ms. Ashby with his own genetic 21 material. 22 43. Ms. Ashby did not consent to being inseminated with Dr. Mortimer's 24 genetic material 25 COMPLAINT - 9 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EISINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 10 of 14 ' 44. Dr. Mortimer's insemination of Ms. Ashby with his own genetic 2 material is harmful and offensive. 3 Intentional Infliction of Emotional Distress 4 5 6 45. Plaintiffs incorporate all paragraphs of this Complaint as if fully set forth under this count and further allege: 7 46. Dr. Mortimer's conduct of inseminating Ms. Ashby with his genetic 8 9 10 11 material without her consent or the consent of Mr. Fowler was extreme and outrageous. 47. Dr. Mortimer intentionally caused severe emotional distress to Ms. 12 Ashby, Mr. Fowler, and Mrs. Rowlette as a direct and proximate result of his 13 14 15 16 conduct. 48. Dr. Mortimer recklessly caused severe emotional distress to Ms Ashby, Mr. Fowler, and Mrs. Rowlette as a direct and proximate result of his 17 conduct. 18 19 20 Negligent Infliction of Emotional Distress 49. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 21 forth under this count and further allege: 22 50. Dr. Mortimer owed Ms. Ashby, Mr. Fowler, and Mrs. Rowlette a duty 24 of care as their physician and breached that standard ofcare through the conduct of 25 inseminating Ms. Ashby with his own genetic material. COMPLAINT - 10 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EISlNGERl Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 11 of 14 ' 51. Ms. Ashby, Mr. Fowler, and Mrs. Rowlette have been damaged as a 2 direct and proximate result of Dr. Mortimer's breach. 3 Breach of Contract 4 5 52. Plaintiffs incorporate all paragraphs of this Complaint as if fully set ^ forth under this count and further allege: 7 53. Dr. Mortimer entered into a contract with Ms. Ashby and Mr. Fowler whereby Dr. Mortimer would obtain genetic material from an anonymous donor 10 who was a college student with brown hair, blue eyes, and was over six (6)feet tall 11 to use in the Procedure. In exchange, Ms. Ashby and Mr. Fowler paid Dr. 12 Mortimer for the donor genetic material. 13 14 15 16 54. Dr. Mortimer entered into a contract with Ms. Ashby and Mr. Fowler whereby Dr. Mortimer would inseminate Ms. Ashby with a mixture of 85% genetic material from Mr. Fowler and 15% genetic material from an anonymous 17 donor who was a college student with brown hair, blue eyes, and was over six (6) 18 19 feet tall to use in the Procedure. In exchange, Ms. Ashby and Mr. Fowler paid Dr. 20 Mortimer for performing the Procedure 21 55. Dr. Mortimer breached the contract between the parties by failing to 22 obtain genetic material from an anonymous donor who was a college student with 23 24 brown hair, blue eyes, and was over six (6)feet tall to use in the Procedure 25 COMPLAINT - 11 1533 Columbia Park Trail, Suite 220 Richland,WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 12 of 14 56. Dr. Mortimer breached the contract between the parties by failing to inseminate Ms. Ashby with a mixture of 85% genetic material from Mr. Fowler and 15% genetic material from an anonymous donor who was a college student with brown hair, blue eyes, and was over six (6)feet tall. 57. Ms. Ashby and Mr. Fowler suffered damages as a direct and proximate result of Dr. Mortimer's breach ofthe contract between the parties. Consumer Protection Act Violation 11 forth under this count and further allege: 12 59. Dr. Mortimer engaged in unfair and deceptive acts and practices in the 13 14 conduct of his trade and in commerce by selling his own genetic material to Ms. •5 Ashby and Mr. Fowler and leading them to believe they were purchasing genetic 'material from a college student with brown hair, blue eyes, and a height over six 17 (6)feet tall. 18 19 60. Dr. Mortimer engaged in unfair and deceptive acts and practices in the conduct of his trade and in commerce by inseminating Ms. Ashby with his own 21 genetic material and without the consent of Ms. Ashby and Mr. Fowler, while 22 leading them to believe Ms. Ashby would be inseminated with a mixture of 85% 23 24 Mr. Fowler's genetic material and 15% genetic material from a college student 25 with brown hair, blue eyes, and a height over six (6)feet tall. COMPLAINT - 12 •333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN ElSINGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 13 of 14 ' 61. Dr. Mortimer knew or should have known that his acts were unfair 2 and deceptive because they caused a likelihood of misunderstanding as to the 3 source ofthe donor genetic material. 4 5 6 62. Dr. Mortimer knew or should have known that his acts were unfair and deceptive because they caused a likelihood of misunderstanding as to the 7 medical community's approval of the practice of mixing of genetic material from 8 9 10 11 multiple donors prior to insemination. 63. Dr. Mortimer knew or should have known that his acts were unfair and deceptive because he misrepresented the source ofthe donor genetic material. 12 64. Dr. Mortimer knew or should have known that his acts were unfair 13 14 and deceptive because he misrepresented the medical community's approval of the 15 practice of mixing of genetic material from multiple donors prior to insemination. 16 Respondeat Superior 17 65. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 18 19 forth under this count and further allege: 20 66. Dr. Mortimer was operating in the course and scope of his job duties 21 as an employee of OGA when he committed the acts and omissions complained of 22 herein. 23 24 67. As a result, OGA is vicariously liable for the acts of Dr. Mortimer. 25 COMPLAINT - 13 '^33 Columbia Park Trail, Suite 220 Richland,WA 99352 P(509)735-4444 F(509)735-7140 WALICER HEYE MEEHAN ElSlNGERi Case 4:18-cv-00143-DCN Document 1 Filed 03/30/18 Page 14 of 14 Negligent Supervision 1 2 68. Plaintiffs incorporate all paragraphs of this Complaint as if fully set 3 forth under this count and further allege: 4 5 6 69. OGA knew of Dr. Mortimer's propensity to use his own genetic material as donor genetic material without patients' consent and failed to exercise 7 due care to control Dr. Mortimer so he would not injure patients. 8 PRAYER FOR RELIEF 9 10 WHEREFORE,the Plaintiffs pray as follows: 11 70. For judgment against the Defendants and their respective marital 12 community individually, jointly, and severally in an amount in excess of $75,000 13 14 15 16 plus costs, disbursements, reasonable attorney fees, interest; and 71. For such other and further relief as this Court deems just and equitable. 17 DATED this 30^ day of March,2018. 18 s/Shea C. Meehan 19 Shea C. Meehan,ISB #6407 20 Attorneys for Plaintiffs Walker Heye Meehan & Eisinger, PLLC 1333 Columbia Park Trail, Ste 220 Richland, WA 99352 Telephone:(509)735-4444 Fax:(509)735-7140 E-mail: smeehan@walkerheye.com 21 22 23 24 25 COMPLAINT - 14 1333 Columbia Park Trail, Suite 220 Richland, WA 99352 P(509)735-4444 F(509)735-7140 WALKER HEYE MEEHAN EISINGERi