The devastating news landed in the inboxes of the fertility clinic patients early one morning in March 2018.
A tank storing frozen human embryos and eggs at Pacific Fertility Center in San Francisco had failed, potentially destroying the precious cells that scores of people hoped would one day bring them biological children. Some might still be viable, the clinic told them in the alert, but the full extent of the damage was unclear.
On Thursday, after more than three years of litigation in federal court, a jury in California awarded five of the patients who lost embryos and eggs a combined $15 million in damages — a historic verdict that could have far-reaching consequences for the loosely regulated U.S. fertility industry.
Jurors found that the storage tank maker, Chart Industries, knew about a defect in its equipment that prevented accurate temperature monitoring but neglected to recall the units or warn the public about the problem. When the part malfunctioned in the Pacific Fertility Center tank, more than 3,500 frozen eggs and embryos prematurely thawed, according to plaintiffs’ attorneys. Jurors held Chart 90 percent responsible and Pacific Fertility Center 10 percent responsible for the failure.
The verdict appears to mark the first time a jury has awarded damages in a case involving the destruction of eggs and embryos, according to experts in family law. The outcome could serve as a bellwether not just for the hundreds of other plaintiffs with claims pending against Chart and the fertility clinic but for others whose dreams of becoming parents were dashed by similar errors, they said.
The lawsuit says the tank systems made by Chart had for years “been failing in large numbers due to a defect that rendered the controllers unable to reliably detect changes in temperature and liquid nitrogen levels or sound alarms.”
The complaint alleged negligence, product liability and other claims. Hundreds of would-be parents who stored eggs and embryos at the clinic eventually joined the case. A judge rejected a request to certify the lawsuit as a class action but allowed the litigation to proceed otherwise.
No government agency directly oversees assisted reproduction in the United States, and the only federal law that touches the process primarily regulates the manner in which clinics can advertise their pregnancy success rates. Private groups such as the American Society for Reproductive Medicine set industry standards for facilities that opt in, but the recommendations are voluntary and the organizations have no real enforcement power. At the state level, most assisted reproduction laws are limited to embryonic stem cell research, with little regulating the fertility industry’s procedures or practices.