JPML to Consider Consolidation of CooperSurgical IVF Recall Lawsuits Over Failed Fertility Treatments

As a growing number of IVF recall lawsuits continue to be filed by individuals and couples whose fertility treatments failed when CooperSurgical’s LifeGlobal embryo culture media destroyed fertilized eggs, the U.S. Judicial Panel on Multidistrict Litigation (JPML) will hold a hearing next month to determine whether the claims should be centralized before one judge for pretrial proceedings.

The litigation stems from a CooperSurgical recall (PDF) issued in December 2023, after the manufacturer acknowledged a sudden increase in complaints involving failed fertility treatments linked to several lots of its LifeGlobal media culture, which was destroying embryos at clinics nationwide.

CooperSurgical’s LifeGlobal media is commonly used during in vitro fertilization (IVF), after a healthcare professional removes a woman’s eggs and fertilizes them with sperm in a laboratory setting. After fertilization, the eggs are placed in an embryo culture media, which is intended to promote the eggs’ growth to the blastocyst stage before being implanted back into the woman’s uterus to be carried to term.

Over the past few months, dozens of couples and individuals nationwide have filed lawsuits against CooperSurgical seeking financial compensation for failed fertility treatments, each raising similar allegations that the company knew or should have known about the risk of problems, but withheld information from the healthcare community and patients undergoing the costly process.

According to the lawsuits, CooperSurgical’s recalled IVF embryo media not only failed to cause blastocysts to form properly, but it actually damaged the embryos and made them unusable.

CooperSurgical IVF Lawsuits Considered for Consolidation

In June, a group of plaintiffs filed a motion with the JPML seeking to centralize all CooperSurgical IVF recall lawsuits brought throughout the federal court system, due to similarities of fact and law raised in at least 30 cases pending in different U.S. District Courts.

The initial motion requested that the cases be centralized before one judge in the U.S. District Court for the Northern District of California, since that is the jurisdiction where the manufacturer’s headquarters are located and where the majority of lawsuits have been filed.

CooperSurgical filed a response (PDF) to this motion on July 23, opposing the effort to establish a federal multidistrict litigation (MDL) for the IVF recall lawsuits, indicating that many individualized factors affect embryo development in and out of a laboratory setting, which will make centralized pretrial proceedings “unworkable, unmanageable, and inefficient.”

The company argued that the reasons each of the embryos failed could have been a result of the actions of each of the different laboratories using CooperSurgical’s LifeGlobal embryo cultures, or it could have had to do with the individual patient’s health or medical history, potentially making the facts of the case different in each instance. Therefore, the company maintained that it is not appropriate to establish an IVF recall lawsuit MDL, and it is better to maintain separate pretrial schedules for each case.

In response to CooperSurgical’s opposition, the plaintiffs filed a reply brief (PDF) on July 30, arguing that individual issues do not outweigh the common questions raised in the litigation.  Without centralization, the plaintiffs argue that multiple courts will be left to oversee parallel and overlapping pretrial motions, discovery and expert work.

“Centralization will deliver efficiency, as it will facilitate resolution of the key issues in this IVF product defect case in one stroke: was the Defendants’ product defective, why did a defective product reach consumers, and what effect did the defect have on the eggs and embryos it encountered,” argued plaintiffs in the reply.

On August 16, the U.S. JPML issued a Notice of Hearing Session (PDF), scheduling oral arguments on the motion for September 26, 2024, at the Fred D. Thompson U.S. Courthouse and Federal Building in Nashville, Tennessee.  At that time, the panel will determine whether the issues raised in the CooperSurgical IVF recall lawsuits raise sufficiently common questions to justify establishing an MDL, as well as what venue will be the most appropriate to manage the litigation.

As plaintiffs pointed out in their reply, the size and scope of the litigation continues to increase rapidly, with new cases being filed weekly.

If the JPML establishes an IVF recall lawsuit MDL, each of those claims will be transferred to one judge for coordinated discovery and pretrial proceedings. The Court will likely then select a small group of representative cases to be prepared for early bellwether trials, which will help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

However, following the consolidated pretrial proceedings and any bellwether trials, if the parties fail to reach IVF recall settlements for couples and individuals impacted by the failed fertility treatments, each individual lawsuit may later be returned to the U.S. District Court where it was originally filed for separate trial dates in the future.