Colorado fertility clinic sued over lost embryos

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REUTERS/Kacper Pempel

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  • Couple says clinic employees allowed embryos to dry out
  • Law firm has handled other clinic lawsuits, including Pacific Fertility meltdown

(Reuters) - A Washington state couple has sued a Colorado fertility clinic for allegedly destroying all seven of their viable embryos, the latest in a series of lawsuits over fertility clinic accidents in recent years.

In a complaint filed Wednesday in Denver federal court, Kara Seldin-Howell and Kolton Howell accused CNY Fertility Colorado PLLC of being negligent in its hiring and training of employees. They are seeking unspecified money damages.

CNY did not immediately respond to a request for comment.

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"This tragedy was utterly preventable," said Adam Wolf of Peiffer Wolf Carr Kane Conway & Wise, a lawyer for the plaintiffs. "The fact that CNY Fertility could destroy our clients' embryos and only now promise to start 'double-checking' laboratory work speaks volumes about the lack of oversight of the IVF industry."

According to the lawsuit, the couple traveled to Colorado for in vitro fertilization (IVF) treatment in the spring of 2021. In IVF, eggs are fertilized with sperm in a laboratory and then implanted in the uterus.

On May 6, the couple was informed by a doctor at CNY that seven embryos had been successfully created. Just two days later, however, the doctor informed them that the embryos had been destroyed, according to the lawsuit.

A subsequent investigation revealed that CNY employees had failed to make sure that the embryos were in an oil medium designed to mimic the environment of a fallopian tube and keep them alive, allowing them to dry out.

The plaintiffs said they suffered both financial harm and "severe emotional trauma" because of the loss.

"By failing to exercise even the slightest degree of care, acting recklessly, and deliberately disregarding the safety of Kara and Kolton's embryos, defendants were grossly negligent," they said.

Wolf and his firm have represented plaintiffs in other lawsuits over fertility clinic failures, notably against San Francisco-based Pacific Fertility and cryogenic tank maker Chart Industries Inc over a 2018 cryogenic tank meltdown that destroyed thousands of eggs and embryos. Hundreds of lawsuits have been filed over that incident, though Pacific Fertility successfully moved to have the claims against it sent to arbitration.

The first trial against Chart, in San Francisco federal court, ended with a $15 million verdict, for which the manufacturer was found 90% liable. Further trials have been put on hold while Chart appeals to the 9th U.S. Circuit Court of Appeals.

The New Orleans-based law firm has also lobbied for tighter regulation of fertility clinics, including mandatory disclosure of events like loss of embryos, but Wolf said Wednesday that the industry remained largely unregulated.

The case is Seldin-Howell v. CNY Fertility PLLC, U.S. District Court, District of Colorado, No. 1:22-cv-00956.

For plaintiffs: Adam Wolf, Ashlie Sletvold and Jessica Savoie of Peiffer Wolf Carr Kane Conway & Wise

For CNY: not available

Read more:

Jury awards $15 mln in fertility clinic cryotank failure trial

Judge asked to toss $13.5 mln verdict over fertility clinic meltdown

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.