Litigation

Cryo tank maker says clinic to blame in embryo loss trial

4 minute read

REUTERS/Chip East

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  • Chart Industries accused of concealing defect that led to failure
  • Company says Pacific Fertility Center's 'misuse' to blame

(Reuters) - Cryogenic tank manufacturer Chart Industries Inc on Monday faced the first trial over the failure of one of its tanks at a San Francisco fertility clinic that destroyed thousands of eggs and emrbyos.

Dena Sharp of Girard Sharp, a lawyer for the plaintiffs, said in her opening statement in San Francisco federal court that the Georgia-based company knew of defects in its tank long before the March 4, 2018 failure caused it to implode "like a crushed soda can," leaving patients' lives "irreversibly changed."

"None of those people can turn back the biological clock to where they were before that day," she said.

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John Duffy of Swanson, Martin & Bell, a lawyer for Chart, said the failure happened because employees at San Francisco's Pacific Fertility Center ignored alarms and used the tanks improperly, overriding its built-in "fail safe" technology.

"If our product is malfunctioning, call somebody or get the backup freezer," he said. "Don't keep using it."

Hundreds of people sued the clinic and Chart following the tank failure. Pacific Fertility and its parent company Prelude Fertility Inc previously got claims against them sent to arbitration, leaving Chart as the only defendant in court.

U.S. District Judge Jacqueline Scott Corley last June denied a motion by the plaintiffs to certify the case as a class action, ruling that their injuries varied too widely, instead ordering individual trials.

The trial that began Monday involves five plaintiffs - three women who lost eggs frozen in the tank, and a couple who lost embryos.

Sharp told jurors that the tank was designed with a faulty weld that made it prone to leaking the liquid nitrogen used to keep the eggs and embryos at super cold temperatures.

Sharp also said that Chart was aware for years that the electronic controller used to monitor the tank was defective, but did not recall it or notify consumers. She said jurors would see an internal Chart email from 2017 saying not to draw customers' attention to the problem.

The defect, Sharp said, resulted in incorrect readings and a constant alarm. When the tank's controller failed, she said, employees at the clinic disabled the alarm and monitored the tank manually instead.

Duffy told jurors that the clinic "misused this product in such an extraordinarily unbelievable way" that it should be held solely liable for the failure. He said that a supervising doctor failed to request that the tank be repaired until it had not been working correctly for 13 days, instead disabling the alarm and using a manual procedure that went against the clinic's own policies.

"The controller is telling you, 128 times, do something," he said.

Duffy said the claim of a defective weld was "simply not true," and that despite clinic employees' claims to the contrary, there must have been physical signs of a leak, like frost buildup.

The case is In re Pacific Fertility Center Litigation, U.S. District Court for the Northern District of California, No. 18-cv-01586.

For the plaintiffs: Dena Sharp of Girard Sharp

For Chart: John Duffy of Swanson, Martin & Bell

Read more:

Cryo tank maker must face defective-design claims after fertility clinic failure

Embryo tank maker ducks class action over failure at California clinic

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