Jurors Asked to Award $30 Million for Lost Eggs and Embryos

Lawyers for fertility patients who lost eggs and embryos in a 2018 accident asked jurors to reject the tank manufacturer’s argument that fertility clinic employees caused the disaster and conspired to cover it up.

This cryogenic tank manufactured by Chart Inc. imploded after a March 2018 mishap that prematurely thawed 3,500 frozen eggs and embryos stored at the Pacific Fertility Center lab in San Francisco. (court exhibit)

SAN FRANCISCO (CN) — Capping off a nine-day trial over a devastating fertility clinic mishap, a lawyer for five patients suing a cryogenic tank maker for the loss of frozen eggs and embryos asked jurors to award her clients $30 million for lost property and emotional distress.

During the trial, jurors heard emotional testimony from the plaintiffs — three women and one married couple — about feelings of hopelessness and despair that descended on them after a tank accident dashed their hopes of having biological children or a sibling for their previously born kids.   

“Nothing can bring these eggs and embryos back,” plaintiffs’ lawyer Dena Sharp said in her closing argument Wednesday. “Nothing can turn back that biological clock. Nothing can truly restore what these plaintiffs had taken from them.”

The best the law can offer is compensation in the form of American dollars, Sharp said. The lawyer tallied up how much each plaintiff spent to undergo fertility treatments and freeze and store eggs and embryos. The totals ranged from $10,000 to $40,000.

She also asked jurors to consider the value of the “priceless” lost property and how much each plaintiff would pay to get their younger eggs and embryos returned to them. She recommended the jury award economic damages for each of three female plaintiffs at $175,000 to 350,000 and noneconomic damages — compensation for pain, suffering and emotional distress — at $3 million to $6 million.

For Kevin and Laura Parsell, who lost four frozen embryos after enduring years of painful procedures and fertility treatments, Sharp asked jurors to award the couple $1 million in economic damages and between $8 million and $10 million for emotional distress.

Were jurors to adopt those recommendations and hold the tank maker Chart Inc. responsible, the company would pay more than $30 million in damages. The verdict could also establish the company’s liability for the loss of frozen eggs and embryos belonging to hundreds of other patients.

The dispute stems from an accident that occurred at the Pacific Fertility Center lab in San Francisco on March 4, 2018. On that day, employees discovered liquid nitrogen levels in a cryogenic tank made by Chart had dropped to nearly zero, thawing 3,500 frozen eggs and embryos to a temperature at which ice crystals can form and damage the delicate reproductive tissue.

The plaintiffs claim the catastrophe was caused by Chart’s use of a weaker weld near a liquid nitrogen inflow pipe, making the tank susceptible to cracking, leaks and failure. Chart denies those claims and says the failure resulted from fertility clinic employees misusing the product.

Chart lawyer John Duffy faulted the fertility clinic lab’s director, Joseph Conaghan, for unplugging the tank’s controller device 17 days before the accident. Conaghan testified that he unplugged the device because it was malfunctioning and sending off false alarms about low liquid nitrogen levels. The lab director told his employees to start manually measuring the tank’s liquid nitrogen with a dipstick daily.

Duffy highlighted evidence that some measurements were backdated after the tank failure, that recorded measurements were inconsistent with dipstick metrics and that it was taking longer than usual to fill the tank with liquid nitrogen, suggesting there was a problem that should have been detected.

He also lambasted the lab director for not immediately moving the 3,500 eggs and embryos in Tank 4 to a backup tank on Feb. 15, 2018, when the controller started malfunctioning. Continuing to use the tank without a monitoring system that could alert staff about tank problems 24 hours a day was a violation of the clinic’s quality management plan, Duffy argued.

“It’s outrageous that he would unplug that controller with human tissue in it,” Duffy said. “It’s outrageous that he doesn’t go downstairs to get the backup tank.”

Conaghan testified that because frozen eggs and embryos are extremely delicate, he wanted to avoid transferring them to a different container unless it was absolutely necessary.

Plaintiffs’ lawyer Amy Zeman cited evidence that Chart knew of problems that could cause its tank to fail from a 2012 internal study. She said Chart also knew customers had complained about controller devices going haywire as early as 2015.

“By 2017, Chart knew its tanks could fail suddenly and catastrophically, that its Tech 3000 controllers were malfunctioning and that it had a retrofit available for those controllers that solved the problem,” Zeman said. “A reasonable manufacturer would have recalled or retrofit the Tech 3000 controller to alert customers that a sudden loss of vacuum failure could warm and damage human tissue.”

Chart asks jurors to reject the theory that its tank failed because of a manufacturing defect. The company says lab employees caused the accident by failing to adequately monitor the tank’s liquid nitrogen levels. Duffy attacked the credibility of lab workers who testified at trial. He accused them of conspiring to hide the truth to protect their jobs and their employer.

“Did you notice anything unusual about the way they testified,” Duffy asked. “It was rehearsed. It was coordinated.”

Zeman asked jurors not to believe Chart’s hypothesis that lab workers were not properly filling or monitoring the tank and that they conspired to cover up their negligence.

“Does Chart get to Monday-morning quarterback the way [Pacific Fertility Center] handled the failure of Chart’s product,” Zeman asked. “Did the embryologists sound like the kind of people who would conspire to let Tank 4 and only Tank 4 fail and then cover it up?”

After about four hours of argument, the nine-member jury retired to a closed-door room to start their deliberations.

U.S. Magistrate Judge Jacqueline Scott Corley thanked lawyers on both sides for vigorous advocacy on behalf of their clients. She added that this has been “the most interesting trial” she has ever presided over.

The judge also had a message for the five plaintiffs who lost frozen eggs and embryos in the 2018 tank accident.

“On behalf of myself and the court staff, we’re so sorry about what happened to you and regardless of the outcome of this case, we wish you all of the happiness in the world because each of you deserve it,” Corley said.

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