Ivison v. Fertility

Background

Lauren Ivison brought this diversity case against Extend Fertility, LLC, a reproductive-services laboratory and facility in New York. She underwent egg-retrieval and freezing procedures at Extend on October 12, 2018, and January 25, 2019. The procedures produced three mature eggs, which were frozen on two storage devices called cryotops or straws.

In 2020, Ivison asked that the eggs be transferred to a Colorado fertility clinic. One straw arrived first, and Extend later shipped the second. When the Colorado clinic tried to warm the straws, it found no egg on the straw labeled as containing one egg and one degraded egg on the straw labeled as containing two eggs. The second straw also arrived without its protective cap. Ivison testified that she experienced anxiety, interrupted sleep, loss of appetite, physical stress, and pain after learning what happened.

Earlier rulings dismissed Ivison’s medical-negligence, fraud, and contract claims. An earlier ruling also held that a liability limitation in the consent form applied to negligence and negligent-infliction-of-emotional-distress claims arising from the first retrieval, but not claims arising from the second retrieval. The limitation generally caps Extend’s liability at the fees paid to Extend, while the gross-negligence claim and claims arising from the second retrieval are not subject to that ruling’s limitation.

The Summary-Judgment Motion

Extend moved for summary judgment on Ivison’s three remaining claims. Summary judgment is allowed only when the evidence shows no genuine dispute about an important fact and the moving party is legally entitled to win without a trial. The court denied the motion.

Negligence

Under New York law, negligence requires a duty, a breach of that duty, and an injury substantially caused by the breach. Extend did not dispute that it had a duty to safeguard Ivison’s frozen eggs and transport them securely. It argued instead that the evidence showed its handling and storage procedures complied with the applicable standard of care.

The court found a genuine factual dispute about whether Extend breached its duty. Evidence showed that the embryologist who performed the first retrieval was still in training, while the record did not show that the supervising embryologist received training on Extend’s specific procedures. The parties’ experts also disagreed about Extend’s identification, quality-control, and chain-of-custody procedures.

The court also found a factual dispute about causation. Extend argued that the Colorado embryologist may have lost two eggs by removing the cryotops from the thawing solution while searching for the eggs. Ivison argued that the eggs were lost before the straws reached Colorado and pointed to the missing cap on one straw. The court held that Extend’s explanation was not conclusive and that a jury could consider both theories.

Extend further argued that Ivison could not prove proximate cause because her chance of a successful pregnancy was very low. Its expert estimated a one-to-two-percent chance of a live birth even if two eggs had not been lost. The court held that the chance was not zero and that losing two of three eggs reduced that chance by two-thirds. Under the New York decisions discussed by the court, a jury must decide whether that reduction was substantial.

Gross Negligence

Gross negligence requires more than ordinary carelessness. It involves a failure to use even slight care, reckless disregard for another person’s rights, or conduct suggesting intentional wrongdoing.

The court held that the evidence could support a jury finding of gross negligence. The evidence included Extend’s assurance that the eggs were being stored safely, the fact that one straw was temporarily not at the long-term storage facility when transfer was requested, and the arrival of the other straw without its protective cap. The court therefore denied summary judgment on this claim.

Negligent Infliction of Emotional Distress

Under the theory relevant here, New York law permits recovery for emotional harm caused directly by a breach of duty when the plaintiff shows causation, substantial harm, and circumstances that make the harm especially likely to be genuine. The court had previously determined that special circumstances could exist when negligence directly affects a person’s ability to conceive genetic children.

The court rejected Extend’s argument that Ivison had to show that Extend endangered her physical safety or caused her to fear for her safety. Ivison testified about her shock and continuing emotional and physical symptoms after learning that the eggs were missing or had not survived. The court held that a jury could find genuine and serious mental distress if it credited her testimony and found that Extend’s negligence caused the loss. Summary judgment was therefore denied on this claim as well.

Disposition

Judge Barbara Moses denied Extend Fertility, LLC’s motion for summary judgment in full. The parties were directed to submit a joint pretrial order and provide their availability for trial during January or February 2026.