Morrison Mahoney Partner Kimberly Iverson Tufo recently secured summary judgment in the U.S. District Court for the District of Massachusetts on behalf of her client, a cryogenic storage facility.
Plaintiff alleged that our client mishandled her frozen oocytes in violation of the standard of care, resulting in their destruction and, ultimately, the loss of her ability to have a biological child. The case also included gross negligence, breach of contract, and fraud claims and involved nearly twenty fact and expert depositions across multiple disciplines, including embryology and reproductive medicine. Adding to its complexity, the case presented several novel and unsettled legal questions under Massachusetts law, including as to whether oocytes are considered “property” and the legal viability of certain of Plaintiff’s claims and damages in such a context.
Plaintiff’s expert faulted our client for several purported breaches in the standard of care. However, in a turning point in the case, Kimberly deposed the Plaintiff’s expert and, through skillful cross-examination, elicited several critical concessions, including that our client had not actually done anything wrong and did not cause the destruction of Plaintiff’s oocytes, which, as the expert further conceded, was most likely due to circumstances separate and unrelated to our client. In short, under Kimberly’s cross examination, Plaintiff’s expert walked back her core opinions against our client.
Kimberly then moved for summary judgment on behalf of our client, arguing that (1) there was neither evidence of any wrongdoing by our client that caused the destruction of the Plaintiff’s oocytes, nor any evidence of any fraud or a breach of contract by our client, (2) contractual limitations otherwise preclude Plaintiff’s damages claims and foreclose liability for our client, and (3) Plaintiff also otherwise has no viable damages claims because oocytes constitute personal property and the plaintiff’s damages, as a matter of law, are not recoverable or available for the loss of personal property. Prior to our motion, the Plaintiff declined to voluntarily dismiss following the expert’s deposition.
Plaintiff, in an effort to control and offset the damage from her expert’s deposition testimony, made extensive contested attempts to seal the deposition transcript and to obtain the source information of Kimberly’s impeachment material from the deposition. After significant motion practice, the Court denied those efforts, agreeing with Kimberly that there was no legal basis for sealing the transcript or for compelling disclosure of the source information. The Court also granted our summary judgment motion in full, dismissing all claims against our client.
