(CN) --- A federal magistrate judge appeared ready to let a case involving the loss of several women’s embryos and eggs following cryopreservation tank failures proceed to trial.
“This is the perfect example of why you need a trial,” said U.S. Magistrate Judge Jacqueline Corley at one point during Thursday’s remote hearing, referring to a difference of material fact.
The parties had sought summary judgment, in which the judge in the case makes a legal analysis based on the material facts in the case that are beyond dispute. But in the present instance, the parties could not find common ground on what exactly caused the storage tanks in fertility clinics around the nation to fail, resulting in the loss of countless eggs and embryos --- some of which represented the last chance for women to give birth.
“There is evidence that Chart knew there was a problem with the controller,” said Dena Sharp, an attorney arguing on behalf of plaintiffs. “Chart could have taken action immediately, they could have had the tanks recalled or had them retrofitted.”
Chart Industries manufactures the cryopreservation tanks used in various fertility clinics, including the Pacific Fertility Clinic in San Francisco where a tank failure resulted in the loss of an entire batch of frozen embryos.
Chart's attorney John Duffy asked Corley to ignore the testimony of the plaintiffs' expert witness regarding the reasons behind the tank failure, saying the fundamental science was incorrect.
“The inputs they put in the scientific analysis are flat wrong,” Duffy said of the expert's testimony. “He comes to an erroneous scientific conclusion.”
Corley refused the request, saying the plaintiffs and defendants differ on the material facts of the case. For instance, the plaintiffs say the tank was inappropriately welded given the stress caused by the extreme temperatures of the liquid nitrogen that is used to keep the eggs and embryos frozen.
Chart says its tanks are materially sound and it was user error by poorly trained employees that caused the fissure that led to the loss of embryos. Specifically, the employees failed to fill the tanks properly, Duffy said.
The judge said she would not exclude the expert testimony of any witness, even if that testimony is based on facts that the other party doesn’t agree with.
“That’s what experts do,” Corley said. “They assume a set of facts and base their analysis on that, and if the facts aren’t right their analysis doesn’t work.”
The plaintiffs are also suing the fertility facility for failing to alert them regarding the problem when a new company called Prelude Fertility bought Pacific Fertility in 2018. The lawsuit against Chart involves claims of product liability.
Chart eventually recalled its cryogenic storage tanks, 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.”
In August 2019, Corley dismissed claims based on a failure to warn and recall because the plaintiffs did not show Chart knew of the alleged defect before March 4, 2018.
The judge refused to dismiss a product liability claim against Chart based on an alleged design defect. The judge said it was too early in the litigation to assess Chart’s claim that the tank performed “as safely as an ordinary consumer would expect.”
The plaintiffs in the suit note freezing their eggs was not cheap.
One woman, known only by her initials S.M., said she paid $10,000 out-of-pocket in October 2016 to retrieve, freeze and store her eggs “indefinitely.” She said she called the center after getting the email and learned all of her eggs had been destroyed.
The clinic believes the tank malfunctioned due to a leak in the tank’s seal, according to the complaint. But S.M. says regardless of the cause, the electronic tank monitoring sensors should have detected a drop in liquid nitrogen levels or a rise in temperature and alerted staff to the problem earlier. She says the clinic’s monitoring system fell below industry standards.
According to the complaint, one cycle of egg retrieval, freezing and annual storage costs $8,345, and a second cycle costs $6,995. Embryo-freezing services, the complaint states, also involve “significant” costs.
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