Claimants v. Cryogenic Device Maker (S.F. Sup. Ct.) Following the tragic loss of eggs and embryos belonging to more than 400 couples and individuals, our team headed by Doris Cheng and Mike Kelly filed negligence and product liability cases against a fertility service provider and a cryogenic storage device maker on behalf of more than 20 individuals and couples. Our clients suffered irreparable harm when the storage tank lost liquid nitrogen and all of the reproductive tissue in the tank thawed. In discovery, our engineering experts identified a welding defect created during the manufacturing process of the tank. Document and deposition discovery revealed that the fertility center did not keep accurate track of the liquid nitrogen levels which were depleting as a result of the leak. Once the liquid nitrogen filler was empty, the temperature in the tank was too warm to cryopreserve the eggs and embryos. After four years of litigation, one trial in federal court and multiple mediations with three different mediators, the claims of our clients have been resolved pursuant to a global negotiated resolution. While the amounts of the individual settlements are confidential, the various defendants contributed both insurance proceeds and personal contributions for allocation to the victims with the aid of a special master. Because each plaintiff and each household had different circumstances relating to their IVF experience, the amount of compensation for each settling party reflected the severity of their injury following a settlement allocation methodology reviewed and approved by an independent Special Master. According to that methodology individual case evaluations included consideration of a number of objective factors. Those factors included the expected success rate of implantation, the plaintiff’s age at the time of the March 4 incident, the number of children already in a household at the time of the tank failure, the number of attempts to replace the damage or destroyed eggs and embryos after the tank failure and the existence of a spouse or partner claimant who also suffered a loss. We are hopeful that the lessons learned by the defendants will be taken to heart, with appropriate remedial measures instituted, so that no similar tragedies will occur in the future.
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