Cryogenic company to face trial over tank malfunction, loss of eggs, embryos

A U.S. magistrate judge has denied a motion for summary judgment in a case involving a cryogenic tank malfunction, resulting in the loss of several women's eggs and embryos and moving the case toward a trial in May in San Francisco.

The women said they preserved their eggs at the Pacific Fertility Center in a cryopreservation tank manufactured by Chart Industries Inc. In March 2018, the center's laboratory director discovered the tank, which contained 1,500 eggs and 2,500 embryos, had lost liquid nitrogen, according to court documents.

Dena C. Sharp of Girard Sharp LLP and Amy M. Zeman of Gibbs Law Group LLP, who represent the plaintiffs, said in a joint statement on Tuesday, "We are pleased with the court's ruling, which is an across the board victory for plaintiffs that paves a clear path to the May 3, 2021 trial date."

The women claim manufacturing and design defects and a failure to recall faulty machinery. In Re Pacific Fertility Center Litigation, 18-CV01586 (N.D. Cal. Filed March 13, 2018).

Chart Industries filed a motion for summary judgment in December, arguing the plaintiffs failed to provide sufficient expert opinion on their claims.

The company also argued the consumer expectations test, used to determine if a product fails to meet reasonable expectations of consumers, is not applicable because the reasons for the tank's failure "are technical, scientific and engineering questions well beyond the ken of an ordinary juror."

Chart also argued that even if the court were to allow some of the women's claims to move forward, the court should reduce the damages since one of the women had a less than 50% chance of achieving a live birth even before the tank incident.

Chart's counsel, John J. Duffy at Swanson, Martin and Bell LLP, did not return a request for comment before press time.

U.S. Magistrate Judge Jacqueline Scott Corley denied Chart's motion on Monday, saying her decision does not "depend on resolving whether there is a genuine factual dispute regarding plaintiffs' claims for relief -- there are many -- but rather legal questions underlying plaintiffs' claims."

Corley also said Chart's consumer expectation test argument did not establish the tank's issue is so complex jurors would not understand, while the plaintiffs offered evidence to the contrary.

Corley agreed that one woman could not recover damages for not being able to have a live birth due to the tank incident. However, she reasoned the woman appeared to be seeking emotional distress damages supported by evidence.

"Chart's defense strategy in this case is particularly astonishing given that Chart knew the risk of tank failure, as documented in its own engineering analysis," Sharp and Zeman said in their statement. "Yet to this day, Chart refuses to accept accountability for the catastrophic tank failure at Pacific Fertility Center more than three years ago. We look forward to presenting our clients' claims to the jury, so that they may finally obtain the relief they deserve."