Women Who Lost Frozen Eggs Must Amend Complaint

SAN FRANCISCO (CN) – Women whose frozen embryos were destroyed at a San Francisco storage facility must present more facts to hold a fertility center and tank manufacturer liable for the loss of their “best and only hope” of having children, a federal judge ruled Thursday.

U.S. Magistrate Judge Jacqueline Scott Corley found the plaintiffs, eight anonymous women seeking to represent a larger class, failed to show a fertility company and its subsidiary had a duty to inform them when they took over Pacific Fertility’s egg and embryo storage facilities in 2017.

Prelude Fertility acquired Pacific Fertility in September 2017. Prelude and its subsidiary Pacific MSO took over operations at Pacific’s egg and embryo storage facilities in San Francisco, which it allegedly staffed with non-clinical employees that lacked medical training.

Earlier this year, Corley granted Pacific Fertility’s motion to compel arbitration in the lawsuit, but she denied other defendants’ motions to compel arbitration. That ruling is now under appeal.

In March 2018, a liquid nitrogen tank at the San Francisco facility failed, destroying a batch of frozen embryos. The plaintiffs were told in an email that the incident “likely involved a failure of the tank’s vacuum seal.”

The plaintiffs claim the facility operators should have had alarms to alert them about the malfunction.

In a 22-page ruling, Corley found the plaintiffs failed to allege any kind of relationship that would require Prelude or its subsidiary to disclose their role in storing and maintaining the frozen embryos.

“Plaintiffs did not deliver their property to Prelude for storage and eventual shipment,” Corley wrote. “Plaintiffs delivered their property to Pacific Fertility for storage and with no knowledge that Pacific Fertility would hand over storage to Prelude.”

However, Corley refused to dismiss premises liability claims against the two companies. She rejected arguments that premises liability only applies to individuals and not property stored at a location.

“Neither Prelude nor Pacific MSO have cited a case which holds that premises liability only covers injuries to persons and not property,” Corley wrote.

The plaintiffs are also suing the tank manufacturer, Chart Industries, for product liability.

In order to sue Chart for failing to recall the product or warn consumers of a defect, Corley said the plaintiffs must show the company knew its tanks were defective prior to March 4, 2018, when its liquid nitrogen storage tank failed in San Francisco.

Chart recalled its cryogenic storage tanks on April 23, 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.”

Corley dismissed claims based on a failure to warn and recall because the plaintiffs did not allege that 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.”

Plaintiffs’ attorney Adam Polk, of Girard Sharp in San Francisco, said he and his clients are pleased with Corley’s ruling because it upholds the plaintiffs’ core claims and provides a clear path forward to amend the counts that were dismissed.

“We look forward to continuing to prosecute our clients’ claims towards trial, and obtaining relief to the individuals and families whose lives have been impacted by the tank failure,” Polk said in an email.

Attorneys for Prelude Fertility and Chart Industries did not immediately return emails seeking comment Thursday.

Prelude is represented by Erin Bosman of Morrison & Foerster in San Diego. Chart is represented by Benjamin Smith of Morgan, Lewis & Bockius in San Francisco.

The plaintiffs must submit an amended complaint within 21 days.

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