MDL Sought for Lawsuits Over Recalled CooperSurgical IVF Culture Media Blamed For Destroying Embryos

Couples pursuing lawsuits against CooperSurgical over failed IVF treatments have joined together to file a request with the U.S. Judicial Panel on Multidistrict Litigation (JPML), seeking to establish consolidated pretrial proceeding for all claims brought throughout the federal court system over CooperSurgical’s recalled LifeGlobal embryo culture media, which has has been linked to the destruction of embryos.

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 CooperSurgical IVF culture media lawsuits being filed in different U.S. District Courts nationwide over the past few months.

Since all of the complaints involve the same medical product and nearly identical injuries, four plaintiffs filed a motion to transfer (PDF) with the U.S. Judicial Panel on Multidistrict Litigation (JPML) on June 27, 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 for coordinated discovery and pretrial proceedings.

The CooperSurgical IVF culture media lawsuits are currently pending in at least four different federal district courts, and the size of the litigation is expected to continue to grow over the next year, raising the risk that different courts will issue conflicting pretrial rulings or discovery schedules.

In one recent complaint (PDF) filed late last month in the U.S. District Court for the District of Oregon, a couple who has chosen to remain anonymous, indicates that CooperSurgical knew or should have known that manufacturing problems resulted in a lack of magnesium in their IVF culture media, which may result in the destruction of embryos and increased costs for patients. However, the company continued to market and sell their embryo culture media, suggesting that it was properly formulated and tested, when it was not.

“Unfortunately, Defendants’ defective embryo culture media—a crucial supply used in In Vitro Fertilization — compromised, delayed development, or completely destroyed all fifteen (15) of Plaintiffs’ healthy, fertilized embryos,” the lawsuit states. “Defendants not only interfered with what should have been a happy, fulfilling experience, but they directly impeded the creation of human life.”

To avoid conflicting pretrial schedules, inconsistent rulings and to serve the convenience of common witnesses, the motion filed with the U.S. JPML indicates that a CooperSurgical IVF culture media lawsuit multidistrict litigation, or MDL, should be created. However, it is unlikely oral arguments on the motion will be considered until a hearing currently scheduled for September 26, 2024, 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 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.