A San Jose couple can continue, for now, their class action lawsuit against CooperSurgical over claims a fluid made by the company, which is essential for invitro fertilization, was defective and resulted in the loss of fertilized embryos, a federal judge has ruled.
In the decision, the judge agreed the couple and others should be legally allowed to demand the company pay them for emotional distress, as well as for their claims against CooperSurgical for allegedly selling and making a defective product.
The Dec. 4 ruling from U.S. District Judge Jon S. Tigar comes as the latest step in the legal actions against CooperSurgical over claims the company manufactured defective "culture media" used to aid the fertilization and development of human embryos.
Lawsuits began to be filed earlier this year, after CooperSurgical announced they had recalled some of the culture media lots, which had been sold to fertility clinics across the U.S., because the company said evidence showed the culture media lacked magnesium, which is essential to developing embryos.
According to court documents, at least 39 class action lawsuits have been filed against CooperSurgical in California, with still other cases pending in other federal courts elsewhere.
While the California cases have been centralized before Judge Tigar, a federal judicial panel in October specifically rejected an attempt by plaintiffs - most of whom are represented by the same lawyers - to centralize all of the cases in San Francisco court or another federal district court.
In response to the lawsuits, CooperSurgical and its parent company, Cooper Companies, have filed separate motions to dismiss in the individual cases, along with a joint motion to strike class claims in all of the cases.
In September, Tigar granted the motion to dismiss one of the cases on procedural and jurisdictional grounds. However, he allowed the plaintiffs the opportunity to amend their action and try again to address the identified shortcomings in that lawsuit.
Tigar, however, said claims brought by a San Jose couple in a different class action lawsuit can survive, for now.
That action was brought by attorneys with the firms of Girard Sharp LLP, of San Francisco; Sauder Schelkopf LLC, of Berwyn, Pennsylvania; and the Clarkson Law Firm, of San Francisco and Malibu.
It was initially filed in March on behalf of a New York couple, identified only by their initials F.G. and H.I.
The complaint was later amended to add the California couple, identified by their initials, T.U. and V.W.
In the ruling, Tigar said his decision concerned CooperSurgical's attempt to dismiss the claims from the California couple.
In their lawsuit, the California couple said they, like others, had attempted to use the services of a fertility clinic in Foster City. According to the complaint, the process had produced six fertilized eggs, which they intended to develop into viable embryos to be implanted into the mother.
However, the lawsuit asserts they lost all but one of the embryos, allegedly because of the defective CooperSurgical culture media, significantly decreasing their chances of a successful pregnancy.
The lawsuit leveled claims against CooperSurgical and its parent company for emotional distress caused by the loss of the embryos, as well as accusing the company of selling a defective product and failing to warn clinics and patients of the alleged defects.
In seeking to dismiss, CooperSurgical argued the emotional distress claims should not be allowed, because the state of California considers human embryos to be property under the law.
They also argued the claims should be tossed because the California couple moved ahead with the in vitro fertilization process after the problems with the culture media fluid began to be known.
Tigar, however, sided with the plaintiffs, saying the news of the failure was not common knowledge either within the human fertility profession, and much less within the general public at that point to allow CooperSurgical to easily escape the failure to warn and liability claims.
And the judge said the emotional distress claims should be allowed to continue, because the loss of embryos, allegedly because of negligence, is not the same as a typical property loss, as it results from "activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm."
He noted courts have begun to expand liability for emotional harm to cases in which so-called property loss could subject people to "psychological trauma" and "serious emotional harm."
The judge noted a California court has allowed a jury to award damages for emotional distress in a case involving "the destruction of cryopreserved eggs and embryos caused by the failure of a defective storage tank."
In this instance, the plaintiffs argued the loss of the embryos also left them facing emotionally taxing decisions to continue the costly process and try again.
CooperSurgical argued that case involved more developed embryos rather than fertilized eggs.
But Tigar said that distinction shouldn't matter in this case.
"... CooperSurgical fails to explain why emotional distress damages would be available for the destruction of 'matured, frozen embryos' but not fertilized eggs - particularly given its argument that all embryos are considered property and not the proper subject of emotional distress damages," Tigar wrote.
Tigar also rejected CooperSurgical's attempt to toss the class action claims, as well.
The company asserted the various claims in the different lawsuits were too different to allow them to claim common harm.
But the judge said it was too early in the proceedings to allow him to decide such questions.
CooperSurgical is represented in the case by attorney Jenny A. Covington, of the firm of Nelson Mullins Riley & Scarborough LLP, of Minneapolis.
Attorneys for the plaintiffs include Dena C. Sharp, Adam E. Polk, Nina R. Gliozzo and Patrick T. Johnson, of Girard Sharp; Joseph G. Sauder, Matthew D. Schelkopf and Juliette T. Morgenson, of Sauder Schelkopf; and Tracey B. Cowan, Ryan J. Clarkson, Shireen M. Clarkson and Olivia E. Davis, of the Clarkson Law Firm.