On June 10, 2021, a California jury awarded $14.975 million in aggregate damages to five patients who tragically lost eggs and embryos when a cryo-preservation tank catastrophically failed at Pacific Fertility Center’s San Francisco clinic in early March 2018. The jury found the tank manufacturer, Chart Inc., liable on all claims.
Specifically, the jury found that the tank contained manufacturing and design defects, and that Chart had negligently failed to recall or retrofit the tank’s controller, despite having known for years that the controller model was prone to malfunction, reading inaccurate liquid nitrogen levels and temperatures and issuing constant false alarms. For each claim, the jury found that the deficiency was a substantial factor in causing harm to the plaintiffs.
“[A] historic verdict that could have far-reaching consequences for the loosely regulated U.S. fertility industry.”
First Trial Against Chart: Jury Awards $14.975 Million to Plaintiffs, Finds Chart Liable for Defective Tank
The first trial against Chart for the tank failure at Pacific Fertility Center addressed claims brought by three individuals whose eggs were stored in the failed tank, and two individuals whose shared embryos were in the tank. The multi-week trial began on May 20, 2021 in federal court in San Francisco, California.
In the lead up to trial, Chart filed a Motion for Summary Judgment, effectively asking the Court to rule in its favor without requiring it to appear at a trial. Chart also filed a motion to exclude three of the Plaintiffs’ five expert witnesses, challenging their qualifications to testify. At the same time, Plaintiffs filed a motion to exclude portions of Chart’s expert witness testimony.
The hearing on these motions was held on March 4, 2021. Shortly after, U.S. Magistrate Judge Jacqueline Scott Corley issued formal written orders denying Chart’s motion for summary judgement and its motion to exclude. All claims asserted by the plaintiffs can now proceed to a jury trial, and all of the Plaintiffs’ expert witnesses may testify in support of those claims. The Court also issued a ruling granting parts of Plaintiffs’ motion to exclude portions of testimony from Chart’s experts, limiting what expert testimony Chart may present to a jury during trial.
With those motions decided, the litigation is ripe for the first trial. A second trial is scheduled to begin in November 2021 on behalf of nine individuals whose embryos were stored in the failed tank. Additional trials are scheduled in 2022 for more groups of plaintiffs.
Tank Failure Discovered after Routine Lab Walk-through
On March 4, 2018, an embryologist at Pacific Fertility Center performing a routine walk-through discovered that the liquid nitrogen in one of the cryopreservation tanks had dropped to an unsafe level for an undetermined period of time, potentially destroying or jeopardizing the eggs and embryos stored inside.
In an email sent to affected patients one week later, PFC characterized the tank failure as a “very unfortunate incident” and suggested some of the eggs and embryos stored there might have been destroyed. At the time of the incident, PFC could not say why its cryopreservation tank had failed so suddenly.
Over one month later, on April 19, 2018, PFC notified patients that an investigation had determined the incident resulted from “a failure of the tank’s vacuum seal.”
According to the lawsuit, Tank 4 failed due to a defective weld that was unable to withstand long-term exposure to thermal stress. The weld eventually cracked, and when it did, the tank allegedly lost its vacuum insulation and ability to maintain a safe temperature for plaintiffs’ eggs and embryos. The cracked weld allowed liquid nitrogen to seep from the tank’s inner vessel into its vacuum-insulation layer, where it warmed, expanded, and caused the tank’s inner vessel to implode. Plaintiffs’ complaint alleges that Chart predicted that failure scenario.
Related Claims Against Pacific Fertility Center, Prelude Fertility, and Pacific MSO
The litigation against Chart initially included claims against Pacific Fertility Center and the entities that own and operate its embryology lab. Those defendants moved to enforce arbitration agreements that Pacific Fertility Center patients must sign when they initiate treatment with the clinic, and the claims were compelled to arbitration. Gibbs Law Group represents dozens of claimants in arbitration proceedings separate from the federal lawsuits against Chart related to the same tank failure.
The federal case and arbitrations seek money damages for patients whose eggs and embryos were in the affected Tank 4.
News Coverage of Our Case
KTVU Fox 2 News – March 16, 2018
KQED News: March 16, 2018
“A woman whose frozen eggs were destroyed after a freezer malfunction at San Francisco’s Pacific Fertility Center has filed a class action lawsuit against the company. The suit claims the company was negligent and didn’t properly maintain equipment. We’ll discuss the lawsuit and would like to hear from you: Were you affected by the freezer malfunction? How, if at all, does it influence your decision to freeze your eggs?”
San Francisco Chronicle: March 14, 2018
“A San Francisco woman has filed a lawsuit against Pacific Fertility Center, alleging the San Francisco clinic’s mishandling of a storage tank containing frozen embryos and eggs resulted in the loss of her eggs. The suit seeks $5 million in damages and was filed Tuesday in U.S. District Court for the Northern District of California. It also names as a defendant Prelude Fertility, a private-equity-owned reproductive health company based in Atlanta, which in 2017 acquired a majority stake in Pacific Fertility Center.”
The Mercury News: March 14, 2018
“In the first suit to be filed after a rare malfunction that remains under investigation, a patient is seeking compensation for negligence, breach of contract and emotional distress from Pacific Fertility Center.”
Street Insider: March 26, 2019
“San Francisco-based law firm Girard Sharp LLP, along with Oakland-based Gibbs Law Group LLP, are pleased to announce that the federal judge overseeing the Pacific Fertility Center class action lawsuit has denied several of the defendants’ attempts to push the lawsuits filed against them into confidential arbitrations.”
Law360: March 9, 2021
“A California federal judge has denied a cryopreservation tank manufacturer’s bid for an early win in a proposed class action that claims its faulty storage tank caused the loss of frozen embryos, saying Monday there’s evidence the company knew of the defect.”
Egg and Embryo Freezer Failures Becoming More Common
Another storage tank failure occurred the same weekend. On March 9, 2018, the Washington Post reports that “[m]ore than 2,000 frozen eggs and embryos stored at a Cleveland-area fertility clinic may no longer be viable after temperatures in a storage bank rose over the weekend.” The affected clinic, University Hospitals Ahuja Medical Center, informed “about 700 patients that their frozen eggs and embryos may have suffered damage.” In a statement, the clinic said that “[i]t is unknown whether the problem was caused by a human error or mechanical failure.”
A spokesman for the American Society for Reproductive Medicine, a major professional organization, said that such large-scale failures are “unprecedented.” But as a growing number of Americans elect to freeze eggs or embryos, such incidents may become more common.
The Costs of Lost or Damaged Eggs, Embryos
Damage to or loss of frozen eggs or embryos in the event of a cryo-preservation equipment failure is emotionally and financially devastating to the individuals and couples who have entrusted their hope for children and their own biological material to their fertility clinics.
Women may choose to freeze their eggs to preserve their reproductive options for a later time, after which they’re no longer fertile. Some women freeze eggs before undergoing medical procedures that render them infertile, such as chemotherapy or a hysterectomy. Still other women donate their eggs to other hopeful women whose eggs are not reproductively viable.
Many couples who cannot conceive naturally, who wish to conceive later, or who plan to run genetic testing on their offspring prior to implantation rely on the services of a fertility clinic to help them through in vitro fertilization. Couples who hope to adopt embryos from others are affected by freezer failures, as well.
Harvesting the eggs puts strain on the body. It requires a series of blood tests and ultrasounds, 9-10 days of hormone injections to stimulate the ovaries to ripen multiple eggs, and an extraction process, which involves inserting a needle into the ovaries.
After harvesting the eggs, they can be stored unfertilized (as an ovum) or fertilized (as an embryo). The eggs or embryos are treated with antifreeze and stored in a medical-grade freezer.
Harvesting and preserving reproductive tissue is also an enormous financial investment. On average, it costs $10,000 to $12,000 for the egg freezing process, and $800 per year for storage.
About Our Team
Gibbs Law Group is a California-based law firm committed to protecting the rights of clients nationwide who have been harmed by corporate misconduct. We represent individuals, whistleblowers, employees, and small businesses across the U.S. against the world’s largest corporations. Our award-winning lawyers have achieved landmark recoveries and over a billion dollars for our clients in high-stakes class action and individual cases involving consumer protection, data breach, digital privacy, and federal and California employment lawsuits. Our attorneys have received numerous honors for their work, including “Top Plaintiff Lawyers in California,” “Top Class Action Attorneys Under 40,” “Consumer Protection MVP,” “Best Lawyers in America,” and “Top Cybersecurity/ Privacy Attorneys Under 40.”
Premier Bay Area Attorneys with a National Reputation
Our track record of success and approach to litigation are widely-respected with our colleagues and judges, and have earned us numerous accolades and awards:
- “Top Plaintiff Lawyers in California,” Daily Journal (Eric Gibbs)
- “MVP for Consumer Protection,” Law360 (Eric Gibbs)
- “Consumer Attorney of the Year,” Finalist, Consumer Attorneys of California (Eric Gibbs)
- “California Lawyer’s Attorney of the Year (CLAY) Award” (Jordan Elias)
- “Top 40 Under 40,” Daily Journal (David Stein)
- “Top Consumer Protection Attorneys Under 40,” Law360 Rising Stars (David Stein)
- “Top Privacy Attorneys Under 40,” Law360 Rising Stars (Andre Mura)
- “Plaintiff’s Hot List,” National Law Journal
- “AV-Preeminent” peer-review rating, Martindale-Hubbell (highest possible ranking for professional ethics and legal skills) (Eric Gibbs, Daniel Girard, A.J. de Bartolomeo)
- Tier 1 Best Law Firms in plaintiffs’ mass tort and class action litigation,” U.S. News & World Report
Praise from Our Clients & the Courts
-Client, Medtronic Lawsuit
-Client, Transvaginal Mesh Lawsuit
-U.S. District Judge Dickinson Debevoise, District of New Jersey
-U.S. District Judge David Herndon, Northern District of Illinois
Relevant Experience & Track Record of Success
SSRI Birth Defect State and Federal Litigations
Represented as co-lead counsel infants and their families injured through the taking of antidepressants during pregnancy. (Karen Barth Menzies)
Risperdal and Invega Product Liability Cases
Co-lead and co-liaison counsel representing thousands of male children who took the popular antipsychotic drug Risperdal and suffered irreversible male breast growth. (Eric Gibbs)
Taxotere Products Liability Litigation
Co-lead counsel on behalf of breast cancer survivors who suffered permanent, disfiguring hair loss after chemotherapy treatment. (Karen Barth Menzies)
In re Actos Products Liability Litigation
Appointed to the Plaintiffs Steering Committee in this litigation on behalf of thousands of people who suffered from bladder cancer after taking the diabetes drug Actos, which resulted in a $2.37 billion settlement. (A.J. de Bartolomeo)
In re Yasmin and Yaz Marketing, Sales, Practices and Products Liability Litigation
Appointed to the Plaintiffs Steering Committee in the litigation, on behalf of women who suffered serious side effects, including stroke, pulmonary embolism, blood clots and deep vein thrombosis, after taking Yaz, Yasmin and Ocella birth control pills. The lawsuits settled for approximately $1.6 billion. (A.J. de Bartolomeo)
In re Pradaxa Products Liability Litigation
A.J. de Bartolomeo was on the Plaintiffs Steering Committee in this litigation on behalf of patients who suffered irreversible internal bleeding after taking Pradaxa blood thinners. Lawsuit resolved for settlements of approximately $650 million.
In Re Medtronic, Inc. Implantable Defibrillators Product Liability Litigation
Filed on behalf of individuals who had the defective Medtronic defibrillator device implanted. Approximately 2,000 individual cases were filed around the country and consolidated in an MDL proceeding in District Court in Minnesota. The cases were settled for $75 million.
Key Attorney Profiles
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