In Re Pacific Fertility Center Litigation

Background

Plaintiffs obtained fertility services from Pacific Fertility Center, including storage of eggs and embryos in a cryopreservation tank. On March 4, 2018, the laboratory director discovered that Tank 4 had lost liquid nitrogen. The tank contained approximately 2,500 embryos and 1,500 eggs, including plaintiffs’ eggs and embryos. Plaintiffs sued Chart Industries, alleging manufacturing and design defects and negligent failure to recall or upgrade a controller associated with the tank.

Chart’s Motion

Chart moved for summary judgment on all of plaintiffs’ claims. Summary judgment is a ruling entered without a trial when the moving party is entitled to judgment as a matter of law. Chart argued that plaintiffs lacked admissible expert testimony on causation, that the consumer-expectations test could not apply to a complex cryogenic tank, and that plaintiffs lacked expert testimony concerning the controller and the failure-to-recall claim. Chart also argued that plaintiffs could not recover punitive damages and that G.H. could not recover damages based on reduced odds of a successful live birth.

Strict Products-Liability Claims

The court denied Chart’s arguments based on the alleged lack of admissible expert testimony. The court had previously denied Chart’s request to exclude plaintiffs’ expert, Dr. Kasbekar, explaining that Chart’s arguments largely concerned the weight of the opinion rather than whether it was admissible.

The court also rejected Chart’s argument that the consumer-expectations test was unavailable because the tank was complex. Under that test, a product may be defective if it performs less safely than its ordinary users reasonably expect. The court explained that the test can apply to complex or technical products depending on the circumstances. Plaintiffs offered evidence from Dr. Wininger, an experienced embryologist and user of cryogenic tanks, that users would not expect a sudden total loss of vacuum insulation or consumption of more than 14 inches of liquid nitrogen in less than 24 hours. Chart did not establish as a matter of law that the tank’s operation was too complex for the test to apply. The court therefore denied summary judgment on the strict products-liability claims.

Negligent Failure to Recall or Upgrade

The court also denied summary judgment on plaintiffs’ negligent failure-to-recall claim. The court identified the elements as requiring proof that Chart manufactured the controller; knew or should have known it was dangerous; learned of the defect after sale; failed to recall, upgrade, or warn; should have recalled or upgraded it under the circumstances; harmed plaintiffs; and substantially contributed to that harm.

The court found no authority requiring expert testimony to prove this claim, including whether a reasonable manufacturer would have recalled or upgraded the controller. Drawing reasonable inferences for plaintiffs, the court concluded that the record could support findings that the controller malfunctioned, that Chart knew about the problem more than two years before the incident, and that Chart did not notify customers, offer upgrades, or issue a recall notice. A jury could also find that a functioning controller would have alerted laboratory staff to the falling liquid-nitrogen level and allowed them to move the eggs and embryos to a backup tank.

The court further explained that plaintiffs did not have to show that the controller alone caused the injury. Under California law, negligent conduct can combine with another factor to cause harm if the conduct was a substantial factor in causing the harm. The court concluded that Chart’s arguments concerned the weight and persuasiveness of plaintiffs’ evidence, not a basis for summary judgment.

Damages

The court denied summary judgment on plaintiffs’ punitive-damages claim. Punitive damages require clear and convincing evidence of oppression, fraud, or malice. The court found that plaintiffs had identified evidence from which a jury could find that Chart knew about the controller defect, failed to act unless customers raised the issue, and knew that sudden liquid-nitrogen changes could damage or disable a freezer. The court stated that it intended to separate the punitive-damages issue from the other issues for trial.

As to G.H., the court agreed that she could not recover damages for being unable to have a live birth because of the Tank 4 incident. The court reasoned that it was not more likely than not that she would have conceived using those eggs even without the incident. But the court understood G.H. to be seeking emotional-distress damages from learning that the incident damaged her stored eggs. The court found evidence that the eggs were more likely than not damaged and denied summary judgment on G.H.’s claim. The court noted that the precise damages issues could be addressed through a later motion or at trial.

Disposition

The court denied Chart’s motion for summary judgment in its entirety. The order did not enter judgment for either side on the claims, and the court stated that the punitive-damages issue would be bifurcated.