The Washington Post

Out-of-court settlement in 2018 fertility clinic mishap


An appeal of a landmark jury verdict that awarded nearly $15 million to five people who lost embryos and eggs in a fertility clinic mishap has settled out of court. The amount of the agreement is confidenti­al, according to a court filing.

“All parties to this appeal have executed a confidenti­al settlement agreement,” attorneys for Chart Inc., the manufactur­er of a tank that contained the human tissue, wrote to a federal appellate court in San Francisco. “The settlement agreement is now final,” they added, but payments have not yet been made.

More than 2,500 embryos and 1,500 eggs belonging to more than 400 people were in the cryopreser­vation tank at Pacific Fertility Center in San Francisco when it malfunctio­ned in March 2018, according to a court filing. It is unclear how many of those people will share in what may be a substantia­l monetary settlement.

The tank was designed to keep embryos and eggs frozen at nearly 200 degrees below-zero Celsius. Many were damaged when they quickly thawed.

In a rare bellwether trial in federal court, jurors found Chart liable for 90 percent of the damage, and the fertility clinic responsibl­e for 10 percent. They awarded three women and a married couple a total of nearly $15 million in 2021.

According to experts, the verdict may have been the first to assign a value to embryos and eggs, and award damages in a public legal proceeding. Most fertility cases are settled out of court.

Chart appealed, and the case was scheduled for oral argument March 30 in the U.S. Court of Appeals for the 9th Circuit in San Francisco. According to a court filing, 341 people filed arbitratio­n claims, which also are not made public, against the fertility clinic.

Attorneys for both sides and a spokesman for Chart did not return calls and emails seeking comment on the settlement this week.

In a coincidenc­e, more than 4,000 eggs and embryos were lost the same weekend when another tank in an Ohio fertility clinic also malfunctio­ned. Those cases appear to have been settled out of court.

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