A Sacramento-area couple who learned their embryos might have been destroyed as a result of an equipment malfunction is suing the Pacific Fertility Center in federal court in San Francisco, and their attorneys are seeking class-action status.
"This is about the loss of our client’s sensitive and most important property, eggs and embryos," said attorneys Adam Wolf, a partner in Peiffer Rosca Wolf Abdullah Carr & Kane. "Pacific Fertility Center squashed this couple’s dreams of becoming parents in the future. Pacific promised to safeguard and protect our client’s frozen embryos, vouching to maximize their chances of becoming pregnant and their opportunity to raise as many children as they would like."
San Francisco-based Pacific Fertility said that its staff discovered on March 4 that the temperature in one cryogenic tank dipped below necessary levels, and in an odd coincidence, a similar failure occurred the same day at a Cleveland fertility clinic. More than 400 people have been affected at Pacific, roughly 700 at Cleveland's University Hospital Fertility Clinic.
Wolf's firm filed a lawsuit Thursday in the U.S. District Court in San Francisco on behalf of Jonathan and Megan Bauer and seeking class-action status to represent all other individuals who experienced the loss of eggs or embryos at Pacific Fertility. They are seeking in excess of $5 million in damages.
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Peiffer Rosca Wolf is the second firm to file such a suit in the court. The firm also is seeking class-action status for a plaintiff affected by the equipment failure at University Hospital Fertility Clinic.
Representatives of the Pacific Fertility Center did not respond to The Bee's request for comment, but in an interview earlier this week with The Washington Post, company President Carl Herbert said patients have been angry about their losses in phone conversations with his team. He said Pacific’s goal is to figure out, if the tissue is no longer viable, what steps can be taken next to ensure the patients do not feel defeated.
The Bauers, speaking through their attorney, declined to be interviewed because they wanted to maintain their privacy. The couple had eight embryos stored in the tank that failed at Pacific Fertility, Wolf said, and they are suing for breach of contract, negligence and conversion. Conversion, Wolf explained, is when you entrust somebody with your property, and that person then does something to that property against your wishes.
Over at least three years, Wolf said, the Bauers paid Pacific $600 a year for storage of their embryos. The clinic said it charges $8,345 to freeze eggs and in-vitro fertilization costs $11,595.
"Pacific has made noise about letting people do this process over free of charge," Wolf said. "Let us be entirely clear: This is not a process by which everything is made OK by having a do-over. Nothing will ever put these folks back in the position where they were. The embryos are absolutely irreplaceable, and it is not even a first step to say, ‘Oh, so sorry, we will just do this again for free. Nothing to see here.’"
Tracey Cowan, also an attorney at Peiffer Rosca and Wolf, added that the viability of eggs declines precipitously, especially after a certain age for women. Wolf said his firm has been contacted by dozens of other women and couples affected by the Pacific Fertility equipment failure.