Couple Files Lawsuit Against CooperSurgical After Recalled Culture Media Destroys IVF Embryos

Complaint comes days before a panel of federal judges will review whether to consolidate all lawsuits over recalled CooperSurgical culture media for pretrial proceedings.

A Florida couple is seeking to hold CooperSurgical liable for the destruction of their developing IVF treatment embryos, which were placed in culture media recalled by the company late last year. Although the culture media was supposed to help embryos grow, defects have caused couples throughout the U.S. to experience failed fertility treatments.

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.

The couple filed the complaint (PDF) on September 6 in the U.S. District Court for the Northern District of California, joining a growing number of families nationwide who are now pursuing lawsuits against CooperSurgical over destroyed IVF embryos.

Like many others who have filed similar claims, plaintiffs in this new lawsuit are keeping their names anonymous, due to the sensitive nature of the litigation, identifying themselves only with the initials M.M. and N.N.

Embryo Culture Media Recall

The lawsuit involves problems with CooperSurgical LifeGlobal IVF culture media recalled in December 2023, after it was discovered that the product was destroying embryos, instead of helping them grow.

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 have only recently learned that defective CooperSurgical IVF culture media may have been 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.

This recent lawsuit was filed by a married couple that sought IVF treatment in hopes of having biological children. However, after nine fertilized eggs supplied by a donor were placed in the medium and damaged, they were not able to be used.

According to the complaint, two embryos stopped developing before the third day, five stopped growing before the fifth day, and the attempted transfer of the remaining two failed.

“Because of Defendants’ manufacturing, marketing, promoting, distributing, and/or selling their defective culture media, Plaintiffs lost invaluable, irreplaceable property – embryos that could have grown into their children – and were emotionally, physically, and psychologically damaged,” the lawsuit states. “Plaintiffs bring this action to hold Defendants accountable for their conduct.”

The couple presents claims of strict product liability, manufacturing defect, design defect, failure to warn, negligent failure to recall, trespass to chattels and unjust enrichment. They seek both compensatory and punitive damages.

CooperSurgical Embryo Culture Media Lawsuits

There are currently dozens of lawsuits against CooperSurgical alleging that the recalled culture media destroyed IVF embryos.

Since all of the complaints involve the same medical product and nearly identical injuries, several plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) in June, requesting that the courts establish a CooperSurgical IVF lawsuit MDL, and transfer claims brought throughout the federal court system to one judge in the U.S. District Court for the Northern District of California for coordinated discovery and pretrial proceedings.

The JPML is currently scheduled to consider oral arguments on the motion during a hearing session set for September 26, 2024, at the Fred D. Thompson U.S. Courthouse and Federal Building, in Nashville, Tennessee.

If the CooperSurgical embryo culture media lawsuits are consolidated before one judge, pretrial proceedings will be coordinated to avoid duplicative discovery into common issues in the cases. The court will also 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 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.