IVF Class Action Lawsuit Filed Over Recalled CooperSurgical Embryo Culture Media

Complaint comes as the U.S. Judicial Panel on Multidistrict Litigation considers whether to consolidate all CooperSurgical embryo culture media IVF lawsuits before one federal judge for pretrial proceedings.

CooperSurgical faces a class action lawsuit seeking to represent couples whose hopes for an IVF pregnancy were dashed when the company was forced to recall its Lifeglobal embryo culture media, because it was destroying fertilized eggs instead of causing them to grow as intended.

The complaint (PDF) was filed by a plaintiff identified only as J.G. on July 30 in the U.S. District Court for the Northern District of California, seeking class action status for all women and couples affected by the recall nationwide, and specifically in New York and North Carolina. The lawsuit names The Cooper Companies and CooperSurgical, Inc. as defendants.

IVF Embryo Culture Media Recall

During in vitro fertilization (IVF), health care professionals remove a woman’s eggs and fertilize them with sperm. The eggs are then placed in an embryo culture medium, which is intended to promote their growth to the blastocyst stage, before being implanted back into the woman’s uterus to be carried to term. The entire IVF process can take months or years, and can cost tens of thousands of dollars.

Late last year, CooperSurgical announced a LifeGlobal IVF culture media recall, after discovering that the product was defective. Instead of helping the embryos grow, CooperSurgical’s IVF culture media has been blamed for destroying embryos, making them unusable.

Since the company only notified retailers and distributors about the recall, a number of couples who incurred the financial and emotional costs associated with failed fertility treatment are only now learning that defective CooperSurgical IVF culture media may be responsible for their lost embryos. This has led to a growing number of similar CooperSurgical IVF culture media lawsuits being filed in different U.S. District Courts nationwide over the past few months. However, unlike this new class action complaint, most has been pursued as individual product liability lawsuits.

The CooperSurgical IVC class action lawsuit was brought by a Connecticut woman who underwent fertility treatment with her husband in New York, and was told that the treatment center used the recalled CooperSurgical culture media on fertilized eggs extracted from her as part of the procedure.

According to the complaint, all of her embryos were lost due to the use of the recalled culture media. The lawsuit indicates that the fact that this occurred during the final stages of fertility treatment were devastating, raising concerns that she may have lost her opportunity to bear children.

“CooperSurgical knew or should have known of the significant economic and emotional toll imposed on fertility patients through its manufacturing, selling, and shipping of defective Global Media to fertility clinics,” the lawsuit states. “Given that substantial and foreseeable risk, CooperSurgical had a duty to reasonably manufacture its Global Media and implement quality control measures to inspect, test, and ensure that its media met the required specifications.”

She presents claims of manufacturing defect, failure to warn, negligent failure to recall, trespass to Chattels and unjust enrichment.

In addition to seeking compensation for her own damages, the lawsuit filed by J.G. seeks class action status to pursue claims on all other similary situated individuals throughout the United States who lost one or more embryos cultered using any of the recalled culture media. Subclasses have also been proposed for residents of New York and North Carolina, if the nationwide class action is not certified.

“Plaintiff believes that there are hundreds of members of the Nationwide Class and in each of the Subclasses,” J.G. states in the complaint. “CooperSurgical’s recall notice estimates nearly 1,000 affected bottles of the culter media, with nearly 500 purchased and used by clinics, indicating a signficant number of patients impacted by the defective media. Additionally, Class members may be identified through objective means via fertility clinic records. Class members may be notified of the pendency of this action by recognied, Court-approved notice dissemination methods, which may include U.S. mail, electronic mail, internet postings and/or published notice.”

IVF Embryo Culture Media Lawsuits

The class action complaint raises claims and allegations nearly identical to at least 30 different IVF lawsuits filed against CooperSurgical over the past few months, which are currently spread throughout at least four different U.S. District Courts.

To avoid duplicative discovery and potentially conflicting pretrial rulings, a group of four plaintiffs filed a motion to centralize all IVF embryo culture media lawsuits with the U.S. Judicial Panel on Multidistrict Litigation (JPML) on June 27, requesting that the claims be transferred to one judge in the U.S. District Court for the Northern District of California.

If the JPML chooses to consolidate the lawsuits before one judge, pretrial proceedings will be coordinated to avoid duplicative discovery into common issues in the cases, and the court will likely establish a bellwether program where a small group of cases will be prioritized, to help gauge how juries may interpret expert testimony and evidence likely to be used in most, if not all, of the trials.

After the bellwether trials, if the parties have not reached a CooperSurgical IVF culture media lawsuit settlement agreement, or some other resolution to the litigation, the cases will be remanded back to the districts where they were originally filed for individual trial dates.