JPML Hears Oral Arguments Today Over IVF Embryo Culture Media Recall Lawsuits

A panel of federal judges will hear oral arguments today, to determine whether to consolidate all federal lawsuits over CooperSurgical’s recalled IVF embryo culture, and centralize the litigation before one judge for coordinated discovery and pretrial proceedings.

Dozens of lawsuits have been filed in various different U.S. District Courts since CooperSurgical announced a LifeGlobal IVF culture media recall late last year, amid reports that a product used during costly fertility treatments was destroying embryos, instead of helping them grow.

During in vitro fertilization (IVF), embryos are typically placed in a culture media, which is intended to promote the embryos’ development through the blastocyst stage, before being implanted back into the woman’s body to be carried to term.

Plaintiffs pursuing the IVF embryo culture media recall lawsuits each raise similar allegations, indicating that CooperSurgical sold a defective and unreasonably dangerous product to fertility clinics nationwide, and failed to inform prospective parents about the risk that their fertilized embryos may be destroyed, and become unusable.

To help coordinate and oversee the litigation, a motion to centralize all CooperSurgical IVF lawsuits was filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) in June 2024, requesting that at least 30 different lawsuits currently pending in the federal court system be transferred to one judge in the U.S. District Court for the Northern District of California.

The size of the litigation is expected to continue to grow over the next year, raising concerns that different courts will issue conflicting pretrial rulings or discovery schedules, which plaintiffs say they hope to avoid through a multidistrict litigation (MDL) process.

Last month, the JPML issued a notice (PDF) announcing that it will hear oral arguments on the motion during a hearing set for today, September 26, at the Fred D. Thompson U.S. Courthouse and Federal Building in Nashville, Tennessee.

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