In Re Pacific Fertility Center Litigation

Background

The plaintiffs brought product-liability and negligent-failure-to-recall claims against Chart after a Chart-manufactured cryopreservation tank at Pacific Fertility Center lost liquid nitrogen on March 4, 2018. The tank contained the plaintiffs’ eggs and embryos. Chart denied liability and attributed the incident to Pacific Fertility Center’s negligence. More than 130 related individual actions had been consolidated, and the five original plaintiffs were scheduled for trial on May 3, 2021.

In preparation for summary judgment and trial, Chart moved under Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. to exclude the opinions of three plaintiffs’ experts: Dr. Anand David Kasbekar, Dr. David Wininger, and Dr. Elizabeth Grill. The order addressed Chart’s motions at Docket Nos. 629 and 631.

Legal standard

Rule 702 permits expert testimony when the expert’s specialized knowledge will help the fact finder, the testimony rests on sufficient facts or data, the methods are reliable, and the expert reliably applied those methods to the case. The court’s inquiry focuses on relevance and reliability. The judge evaluates the principles and methods supporting the testimony, not whether the expert’s ultimate conclusion is persuasive or correct. Weaknesses in an expert’s evidence generally may be tested through cross-examination and competing testimony rather than exclusion.

Dr. Kasbekar

Dr. Kasbekar, a mechanical engineer with more than 35 years of experience in failure analysis and related fields, investigated the condition and possible cause of the tank’s failure. Chart argued that he was not qualified because he was not a cryogenic engineer, that his assumptions about the tank’s liquid-nitrogen level and evaporation were unreliable, that he did not test every alternative explanation, and that his finite element analysis in a rebuttal report was flawed and untimely.

The court found Dr. Kasbekar qualified based on his extensive failure-analysis experience and prior experience examining a failed cryogenic tank. It concluded that his analysis followed the general process described in the ASM Handbook on Failure Analysis and therefore used a method within accepted scientific standards. Disputes about the reported liquid-nitrogen level, the failure theory, alternative causes, and the competing experts’ analyses concerned the weight and credibility of the evidence, which were matters for the jury. The court also ruled that the finite element analysis properly responded to another expert’s opinions and that Chart had identified no prejudice from its timing.

Dr. Wininger

Dr. Wininger, an embryologist and longtime in-vitro-fertilization laboratory director, offered opinions about whether the tank performed as safely as an ordinary user would expect, whether the eggs and embryos were damaged, and whether they were exposed to dangerous conditions. Chart did not seek to exclude his opinion about whether the eggs or embryos were damaged, but challenged his qualifications, the foundation for his causation opinion, and his consideration of alternative explanations.

The court found that Dr. Wininger had the necessary minimum foundation because he had worked with cryogenic storage containers for about 30 years, used Chart MVE products including an MVE 808 tank, and worked with such containers daily. The court also found his experience relevant to the consumer-expectation issue and ruled that disagreements about the factual basis of his opinion went to its weight rather than admissibility.

Dr. Grill

Dr. Grill, a clinical psychologist specializing in reproductive mental health, offered opinions about the plaintiffs’ emotional distress. Chart argued that she was not qualified, failed to use the methods required for a forensic evaluation, relied on incomplete information, and did not reconcile conflicting data.

The court found Dr. Grill qualified based on her education, training, and experience. It rejected the argument that only a forensic psychologist could testify about the plaintiffs’ emotional distress, explaining that Dr. Grill offered a clinical-psychology opinion rather than a forensic-psychology opinion. The court also found that her use of comprehensive psychosocial interviews, depositions, records, peer-reviewed literature, and clinical judgment was sufficiently reliable. Concerns about the rigor of her interviews and literature review could be addressed through cross-examination and rebuttal evidence.

Disposition

Judge Jacqueline Scott Corley denied Chart’s motions to exclude the opinions of Dr. Kasbekar, Dr. Wininger, and Dr. Grill. The order disposed of Docket Nos. 629 and 631.