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Trial Kicks Off Over Tank Failure That Destroyed Frozen Embryos

A lawyer for a company that makes cryogenic tanks told jurors that a tank failure that ruined human reproductive tissue was caused by product misuse, not a manufacturing defect.

A lawyer for a company that makes cryogenic tanks told jurors that a tank failure that ruined human reproductive tissue was caused by product misuse, not a manufacturing defect.

SAN FRANCISCO (CN) – On the first day of a federal jury trial over a freezer tank failure that destroyed thousands of frozen eggs and embryos, jurors heard dueling narratives about what caused the catastrophe that dashed some families’ only hope of having biological children.

“Irreplaceable” is the word attorney Dena Sharp used to describe the loss of reproductive tissue at a Pacific Fertility Center lab in San Francisco on March 4, 2018.

Sharp represents three women and one married couple who are suing Chart Inc., the company that manufactured the cryogenic tank. While the trial only involves five plaintiffs, it is a bellwether case that could establish Chart’s liability for the loss of eggs and embryos belonging to hundreds of other people.

“The tank had one job --- to keep those eggs and embryos cold and safe,” Sharp told the jury in her opening argument Monday. “But the tank failed.”

Sharp gave jurors a sneak peek of evidence her team plans to present throughout the trial, including expert testimony that the tank was made with the wrong type of weld that made it susceptible to cracking and failure. She also cited a 2012 internal Chart document that warned of a potential defect that could result in “implosion and total tank failure.”

Sharp argued that Chart used a weaker type of weld than was intended in the tank's design specifications. She argued that forensic evidence will show that weld caused a crack that leaked liquid nitrogen into the vessel's vacuum layer, eventually leading the tank to crumple and implode, destroying all 2,500 embryos and 1,500 eggs inside.

Chart denies that an improper weld caused the problem. The company insists human error and product misuse led the tank to implode. Chart attorney John Duffy said the implosion is what caused the weld to crack, not the other way around.

Duffy blamed the failure on incompetence at a Pacific Fertility Center clinic where the tank was maintained. He described how the facility’s lab director, Dr. Joseph Conaghan, improperly “unplugged” the freezer tank’s controller when he found it was giving inaccurate readings on liquid nitrogen levels on Feb. 15, 2018. He said the staff messed up by not immediately transferring frozen eggs to a backup tank, not trying hard enough to get a technician to service the defective controller and for muting 128 alerts about tank problems over 17 days.  

“We will prove that [Pacific Fertility Center] misused our product, and you should consider that to be the sole cause [of the tank failure],” Duffy told jurors.

The fertility clinic and its owners were also sued for the loss of eggs and embryos, but those claims were sent to private arbitration. Prelude Fertility acquired Pacific Fertility in September 2017, and Prelude’s subsidiary Pacific MSO started running the San Francisco clinic before the tank failure occurred in March 2018.

Anand Kasbekar, a mechanical engineer hired by plaintiffs’ lawyers, was the first witness called to testify at trial Monday. He described multiple tests he conducted using helium, red dye, bubbles and other material to trace leaks and cracks to a welded area of the tank's interior layer. He also described “stress risers” present in the weld, which he compared to lines in a candy bar that make it easier to break off a piece of chocolate.

He also likened the tank’s use of a “partial penetration weld” instead of a “full penetration weld” to gluing the ends of your index fingers, instead of applying glue to both palms of your hands and slapping them together.

“If only my index fingers are glued and I have a force that wants to pull them apart from this direction, that’s going to pull them right apart,” Kasbekar said.

The metallurgist also reviewed design specifications for the tank and determined that a stronger weld was intended for the cryogenic container.

Additionally, Kasbekar cited a 2012 internal failure analysis document by Chart that warned about a potential problem that could cause cracks and lead to an implosion of the tank.

“It shows Chart’s engineers had foreseen these cracks occurring and the consequences of those occurring,” Kasbekar said. “It tells you if you have a crack here, you’re going to have an implosion and loss of vacuums, and that they know weld lines are of particular concern.”

Kasbekar wrapped up his initial testimony after about two hours. He is expected to face cross-examination by Chart’s attorneys on Tuesday.

Some women, including a plaintiff known only as S.M. in the originally filed complaint, paid as much as $10,000 out of pocket to retrieve, freeze and store eggs.

Chart recalled its cryogenic storage tanks on April 23, 2018, saying it needed to investigate a “vacuum leak and/or failure which may be due to inadequate adhesion of the composite neck to the aluminum unit.”

The plaintiffs' claims include product liability and failure to recall the tank’s allegedly defective controller device that measures liquid nitrogen levels and sends off alerts about tank problems.

The trial is expected to continue through June 10.

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