Case Results
G&S Successfully Defends Fertility
Doctor Against Surviving Spouse's Claims for "Wrongful Non-Birth"
and Emotional Distress from the Destruction of Decedent's Last Remaining
Sperm — July 2006.
Type of Case: Negligent Handling
of Sperm.
Venue: New York Supreme Court,
Westchester County.
Background Facts: G&S represented
a fertility doctor who allegedly improperly released all of the
decedent's sperm prior to an anticipated in-vitro procedure. At
time of the loss, the decedent donor was undergoing chemotherapy
and could not bank further sperm. As a result, the decedent and
his wife claimed they were denied the ability to have a further
child. The decedent had signed a contract with the doctor which
limited damages to $2500 in case of the destruction of the sperm.
The contract also contained a provision whereby the decedent agreed
to indemnify the doctor for third-party claims resulting from his
services. The surviving spouse brought an individual claim and a
claim for damages on behalf of the husband's estate alleging damages
for being unable to conceive a biological child and for emotional
distress from the loss of the sperm.
Special Problems: The New York
Court of Appeals recently held in Broadnax v. Gonzalez, that a woman
can maintain a cause of action for emotional distress, without a
physical injury where she gives birth to a still born child due
to medical malpractice. Plaintiff claimed this case was applicable
to instant case. Plaintiff also argued that the liquidated damages
provision was not applicable because the sperm were not destroyed
or lost, but rather they were unavailable because the doctor had
used them in a prior procedure.
Our Strategy: We moved for
summary judgment arguing that New York did not recognize the tort
of "wrongful non-birth" given its inherently speculative
nature, and plaintiff's claim for negligent infliction of emotional
distress did not state a cause of action under New York law in the
absence of a physical injury. In addition, we argued that the spouse's
claim was precluded by her conflict of interest in representing
the estate. We also moved to dismiss the claim of the estate to
the extent it exceeded $2500, the amount set forth for liquidated
damages.
Result: The Supreme Court granted
summary judgment on the basis of all four arguments. Specifically,
it found that the plaintiff's spouse did not state a cause of action
for emotional distress in the absence of a physical injury, that
New York does not recognize a claim for wrongful non-birth, and
that the spouse's claim was precluded due to an irreconcilable conflict
of interest caused by the fact that she was the Administratrix of
the estate that was contractually obligated to indemnify the doctor
for her individual claim. As for the estate's claim, the Court found
the liquidated damages provision both applicable and enforeable
and thus dismissed its claims except to the extent of a contractual
claim for $2500.
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