By James F. McCarty
The Plain Dealer, Cleveland
WWR Article Summary (tl;dr) At least three couples whose frozen eggs and embryos were destroyed filed lawsuits over the weekend. The hospital said last week that about 2,000 eggs and embryos stored in a large liquid nitrogen freezer at the Ahuja Medical Fertility Center in Beachwood may have been damaged when the temperature rose in a storage tank.
At least three couples whose frozen eggs and embryos were destroyed filed lawsuits over the weekend, as dozens more were expected to sue University Hospitals in the coming days, lawyers said Monday.
Plaintiffs attorney Tom Merriman said he met with multiple clients Monday, and received at least 15 emails from among the 700 people whose frozen eggs and embryos were thawed after a storage tank malfunction at the hospital’s Ahuja Medical Center in Beachwood last week.
Merriman said a team of lawyers at his firm was preparing lawsuits for filing later this week in Cuyahoga County Common Pleas Court.
“I’ve talked to a lot of women and couples who have spoken with their fertility doctors, and not a one of them has been told that their embryos are still viable,” Merriman said. “I think this is far more catastrophic than anyone realized.”
The three lawsuits filed so far have all been assigned randomly to different judges, but that is likely to change, said Judge John J. Russo, the court’s administrative and presiding judge.
“Normally, we look to the first judge to receive a filed case and consolidate all of the subsequent cases with that judge,” Russo said.
University Hospitals or any of the plaintiffs’ lawyers would first have to file a motion of consolidation for the cases, Russo said. In this case, that judge would be Stuart Friedman, who was assigned the first lawsuit filed Friday by Cleveland attorney Stuart Scott on behalf of John and Kristine Brickel of Bay Village.
The other lawsuits were filed by Lauren and Dustin Clark of Pennsylvania, and Amber and Elliott Ash of Bay Village.
The in vitro fertilization process cost the Brickel’s about $20,000, according to their lawsuit.
UH officials said earlier the hospital does not comment on litigation.
The hospital said last week that about 2,000 eggs and embryos stored in a large liquid nitrogen freezer at the Ahuja Medical Fertility Center in Beachwood may have been damaged when the temperature rose in a storage tank. UH said about 700 patients were notified about the incident.
Scott and several other lawyers said they eventually plan to seek class action certification, citing the uniformity of the failure caused by the UH fertility clinic malfunction, and the similarity of the damages inflicted on the couples who lost frozen eggs and embryos.
“You can imagine how devastating it would be to realize your son or daughter has been lost,” Scott said. “They already knew the sexes of their embryos. Many had planned on implanting the embryos this year, and had already chosen a name.”
Scott noted a similar devastating fertility clinic malfunction that occurred in San Francisco last weekend. But unlike that incident, in which some of the thousands of frozen eggs and embryos were rescued, Scott said he suspects “99 to 100 percent” of the UH specimens were destroyed.
University Hospitals said last week the eggs and embryos have been moved to a different storage tank.
Although most of the lawyers in the early cases have expressed a desire to seek class action status, Merriman said there are benefits to opting out of the class and pursuing individual actions on behalf of his clients via a mass tort case.
“Given the nature of their losses, it’s important to have a process that doesn’t treat them like a number,” Merriman said. “This isn’t just about people who bought a consumer product that didn’t work,” such as is the basis of many class action cases.
Mass torts involve injuries to a group of people from the same area, but who are treated as individuals in court. Class action plaintiffs, on the other hand, are treated as one plaintiff, and known collectively as the class.
Mass torts, procedurally, require each plaintiff to establish certain facts specific to that particular plaintiff, and how that person was damaged by the actions of defendant. The rewards also can be greater in a mass torts case.
“There is nothing you can do to fix what happened to these families,” Merriman said. “But what we can do is hold the hospital accountable so it never happens again.”