In re Pacific Fertility Center Litigation

Negligence

Northern District

U.S. District Magistrate Judge Jacqueline Scott Corley

Plaintiffs Attorney: Girard Sharp, Dena C. Sharp, Adam E. Polk, Nina R. Gliozzo; Gibbs Law Group Llp, Amy M. Zeman, Geoffrey A. Munroe, John E. Bicknell; Koeller, Nebeker, Carlson, & Haluck, Llp, Adam B. Wolf, Tracey B. Cowan

Defense Attorneys: Swanson, Martin & Bell, Llp, John J. Duffy, Christopher R. Griffin, Nathaniel S. Widell, Taylor Van Hove, Andrew A. Lothson, Margaret C. Redshaw, Kevin M. Ringel; Sheuerman, Martini, Tabari, Zenere & Garvin, Marc G. Cowden, Adam M. Stoddard

Dena C. Sharp

The most important evidence that led a federal court jury last June to award nearly $15 million to five potential parents for the destruction of their frozen embryos and eggs was those parents' own testimony about their loss, according to the plaintiffs' attorneys.

"I think our clients, first and last, were what moved the jury because they had the courage to get up there and tell their stories," Dena C. Sharp said. "That was very impactful."

The trial included testimony from engineering and other experts who explained how the cryogenic tank storing the eggs and embryos likely failed. Still, said Sharp's partner and co-counsel, Adam E. Polk, "Watching the jury and taking in the whole court, it was really the client testimony."

The trial was the first out of the March 4, 2018, failure of Tank 4 at San Francisco's Pacific Fertility Center in which thousands of embryos and eggs belonging to hundreds of women and families were destroyed. In re Pacific Fertility Center Litigation, 18-CV-01586 (N.D. Cal., filed March 13, 2018).

About 150 plaintiffs were brought together for the federal litigation and roughly another 50 in similar actions in the state court, said plaintiffs' co-counsel Amy M. Zeman. "It was probably the most procedurally complicated case I've been involved in," she said.

The defendants were the Pacific Fertility Center clinic, the lab company Prelude Fertility Inc. and subsidiary Pacific MSO LLC and the maker of the cryogenic tank itself, Chart Industries Inc. Early on, the center successfully moved the litigation against it to arbitration. Then the 9th U.S. Circuit Court of Appeals ruled Prelude and its subsidiary also belonged in arbitration. That left Chart standing alone.

Class certification was denied, but the plaintiffs' team had signed up over 100 plaintiffs individually in case. The five people in this first trial were selected because they had been the designated class representatives, so discovery about them was concluded, according to Sharp and Zeman.

On the technical side of the case, the plaintiffs argued a tank weld cracked, sucking in the surrounding liquid nitrogen and causing the tank to implode. They also alleged that a computerized controller atop the tank had failed perhaps weeks before.

But in reality, "this case was unique in that it involves human life," Sharp said. "I think everybody recognized that."

Chart has appealed to the 9th Circuit. A.B. v. Chart Inc., 21-17016 (9th Cir., filed Dec. 6, 2021).

Meanwhile, the parties in the arbitrations have reached an aggregate settlement in principle, but Chart has moved for a good faith determination, according to Sharp and Zeman.

So far, the litigation has lasted nearly four years, which is not long for a mass tort, Zeman said. "But for these clients who are... trying to build a family, four years is an eternity."

Defense attorneys John J. Duffy and Marc G. Cowden did not respond to a request to comment on the verdict.

- Don DeBenedictis

Adam E. Polk