F.G. v. CooperSurgical, Inc.

Background

CooperSurgical, Inc. and The Cooper Companies, Inc. manufacture, market, and sell products to fertility clinics, including embryo culture media used during in vitro fertilization. CooperSurgical issued a December 5, 2023 recall for three lots of its Global Media product after reporting increased complaints and identifying a risk of impaired embryo development.

The complaint alleges that the media contained insufficient magnesium, which can interfere with embryonic development and DNA repair. Plaintiffs F.G. and H.I. alleged that all four of their developing embryos were destroyed after being placed in the media. Plaintiffs T.U. and V.W. alleged that six donor eggs were fertilized and placed in the media; five developing embryos were destroyed, and the remaining embryo was chromosomally abnormal and unusable.

Plaintiffs asserted strict products-liability claims for design, warning, and manufacturing defects; negligent failure to recall; negligence or gross negligence; trespass to chattels; and unjust enrichment or restitution. They also proposed a class of people in the United States whose eggs or embryos were exposed to the recalled lots.

Motions Before the Court

The court considered CooperSurgical’s motion to dismiss and the joint motion by CooperSurgical and CooperCompanies to strike the class allegations. The court stated that it would decide the motion to strike and the portion of CooperSurgical’s dismissal motion directed to T.U. and V.W. It deferred ruling on CooperCompanies’ dismissal motion and on the portion of CooperSurgical’s motion directed to non-California plaintiffs pending jurisdictional discovery.

Motion to Dismiss

The court applied the pleading standard for a motion to dismiss for failure to state a claim. At this stage, the court accepted the complaint’s factual allegations as true and asked whether they plausibly supported relief.

The court held that T.U. and V.W. adequately alleged damages. Assuming without deciding that embryos are property under California law, the court concluded that emotional-distress damages are available for the negligent destruction of human embryos. It also held that the complaint adequately alleged causation. The alleged uncertainty of in vitro fertilization and the fact that the eggs were placed in the media three days after the recall did not categorically defeat CooperSurgical’s potential liability at the pleading stage.

The court held that T.U. and V.W. plausibly stated a strict-liability design-defect claim under both California design-defect tests. Their allegations that the media was used as intended, that users would not expect it to prevent embryo development, and that insufficient magnesium caused the destruction of the embryos were sufficient at this stage.

The court also rejected CooperSurgical’s arguments concerning the failure-to-warn claim. The complaint alleged that CooperSurgical provided no adequate warning, knew or should have known about the alleged defect, and had a duty to warn of a risk that was knowable based on scientific and medical knowledge. The court found that arguments about the fertility clinic as an intermediary and about sophisticated users raised factual issues that could not be resolved on a motion to dismiss.

The court held that T.U. and V.W. adequately alleged a manufacturing defect because they alleged that the media lacked sufficient magnesium when it left CooperSurgical’s possession and that this defect caused economic loss and emotional distress. It also held that their negligent-failure-to-recall claim was plausibly pleaded, because issuing a recall notice did not necessarily show that the recall was timely or effective.

The court rejected CooperSurgical’s arguments that causation and California’s economic-loss rule defeated the negligence or gross-negligence claims. The court reasoned that the alleged injury was damage to the fertilized eggs, rather than merely damage to the culture media that was purchased.

The court held that the trespass-to-chattels claim was adequately pleaded because T.U. and V.W. alleged that CooperSurgical intentionally interfered with their possession of the fertilized eggs by manufacturing a defective product and failing to recall or warn about it.

Finally, the court held that T.U. and V.W. adequately pleaded unjust enrichment or restitution. Although CooperSurgical was paid by fertility clinics rather than by T.U. and V.W., the court concluded that the plaintiffs could pursue restitution if they had a better legal or equitable right to revenue CooperSurgical received from selling the allegedly defective media.

Motion to Strike Class Allegations

The defendants asked the court to strike the class allegations under Federal Rules of Civil Procedure 12(f) and 23. They argued that individualized personal-injury issues and differences among the laws of many states would prevent certification.

The court denied the motion to strike. It concluded that this was not an exceptional case in which class allegations should be removed before discovery. The court stated that the issues raised by the defendants should be addressed at the class-certification stage, after discovery, rather than at the pleading stage.

Disposition

The court denied the defendants’ motion to strike and denied CooperSurgical’s motion to dismiss as directed to T.U. and V.W. The court deferred the other identified portions of the dismissal motions pending jurisdictional discovery.