SAN FRANCISCO (CN) – After a nine-day trial over a fertility clinic mishap that destroyed thousands of frozen eggs and embryos, a federal jury on Thursday found a cryogenic tank manufacturer 90% responsible for the accident and awarded five fertility patients nearly $15 million.
The jury found a manufacturing defect was the primary cause of a tank failure that prematurely thawed 3,500 frozen eggs and embryos at the Pacific Fertility Center lab in San Francisco on March 4, 2018. Jurors also concluded the tank maker, Chart Inc., negligently failed to recall a malfunctioning controller device for the tank that monitors liquid nitrogen levels and sends off alerts about tank problems.
“This verdict should be a wakeup call not only to Chart, but also to fertility clinics around the country,” plaintiffs’ attorney Adam Wolf said in a phone interview. “When they make mistakes and the embryos and eggs they are entrusted to safeguard are jeopardized, the consequences are severe and real.”
Wolf is with the firm Peiffer Wolf Carr Kane & Conway.
Throughout the trial, Chart argued the accident was caused by fertility clinic lab employees misusing the product. In closing arguments, Chart attorney John Duffy blamed the lab director for unplugging the tank’s malfunctioning controller and then keeping eggs and embryos in a container with no system in place to alert staff about problems for 17 days. Duffy also accused lab employees of failing to properly monitor and fill the tank and conspiring to cover up their mistakes.
But the jury largely rejected that narrative and concluded that Chart was 90% to blame for the accident.
The plaintiffs had presented evidence that Chart knew about a problem that could make the tank fail from a 2012 internal study and that it had received complaints about the malfunctioning controller device as early as 2015.
Still, the nine jurors determined the fertility clinic was 10% responsible for the accident. Chart presented evidence that the lab director's decision to keep using the tank while it was disconnected from an alarm system violated the clinic's quality management plan.
Rosalynn, a 43-year-old mother of two who requested redaction of her last name, lost 18 eggs in the accident and was awarded $2.6 million. Adrienne Sletten, a 43-year-old woman who lost two eggs and still wants to be a mother, was awarded $2,075,000. Chloe Poynton, a 39-year-old woman who lost nine eggs and still has dreams of becoming a mother, was awarded $3.1 million. Laura and Kevin Parsell, a couple who have two children from previous in vitro fertilization procedures but had plans to have more kids with four frozen embryos that were lost in the accident, were awarded $7.2 million.
The total award for all five plaintiffs comes to just under $15 million. The jury’s finding that the fertility clinic was 10% responsible for the accident will reduce the damages Chart must pay by 10%, resulting in $13.5 million award.
Plaintiffs’ attorney Dena Sharp had asked the jurors to award up to $30 million in her closing arguments Wednesday.
The jury deliberated about four hours Wednesday afternoon and four hours on Thursday before reaching their verdict.
This bellwether trial involved only five plaintiffs, but lawyers say it is considered indicative of how future juries could rule in hundreds of other cases pending against Chart. About 140 federal lawsuits have been filed against the tank manufacturer over the March 2018 accident. A second trial involving approximately five other plaintiffs is scheduled to begin this fall, Wolf said.
During the trial, jurors heard emotional testimony from each of the five plaintiffs, who described the sense of loss, sadness and anger they felt after learning their frozen eggs and embryos were damaged in a tank failure.. Kevin Parsell, who spent $40,000 on fertility treatments with his wife and endured painful surgery on his testicles, said he could no longer trust anyone or anything after the accident. He and his wife had four embryos in the tank. Poynton told jurors that the trauma of losing her nine frozen eggs has harmed her relationships with friends and made her feel more alone.
“It’s really painful to be at a baby shower celebrating someone else’s family being built and knowing inside you’ll never get that,” Poynton said in her testimony. “So you start to pull back. You start to isolate.”
Patients who lost eggs and embryos in the accident are also pursuing claims against the fertility clinic in private arbitration. Prelude Fertility acquired Pacific Fertility in September 2017, and Prelude’s subsidiary Pacific MSO now manages the San Francisco clinic.
Attorneys for Chart did not immediately return an email requesting comment Thursday.
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