Third Circuit Rejects Defective Sperm As Basis for Product Liability Suit

On April 1, the Third U.S. Circuit Court of Appeals, in Donovan v. Idant Laboratories, upheld a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by a mother and her daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

Judge O'Neill's Decisions

Judge O'Neill had initially ruled that, under New York law, the sperm bank could be sued under product liability laws because “the sale of sperm is considered a product and is subject to strict liability.” But two months later, he reversed himself and dismissed the entire case, predicting that the New York's highest court, the Court of Appeals, would reject the claim. In both rulings, O'Neill rejected all claims by the mother on statute of limitations grounds, finding that she waited too long after learning that her daughter's genetic defects were directly connected to the sperm donor.

The Third Circuit Ruling

Now the Third Circuit has ruled that Judge O'Neill's second decision was correct in holding that the mother's claims were untimely and that the daughter plaintiff had “no cognizable injury.” “Wrongful life cases pose particularly thorny problems in the damages context,” Third Circuit Judge Maryanne Trump Barry wrote. Barry quoted from Becker v. Schwartz, a 1978 decision of New York's highest court, that said: “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.”

Plaintiffs attorney Daniel L. Thistle said he had urged the Third Circuit to certify the appeal to the New York courts because he believed the courts would allow the daughter to sue over the genetic defects in the sperm since the state recognizes so-called “wrongful birth” cases in which parents bring such claims, and since New York's blood shield law is narrowly worded and does not prohibit suits over human tissue.

The Suit

According to the suit, Donna Donovan began research in 1994 to find a sperm bank and was promised by Idant Laboratories that its donors go through a rigorous screening process to ensure that they have a good genetic background and that it employed a screening program that far exceeds mandated standards. Idant shipped semen from Donor G738 to Donovan's physician in April 1995, the suit said, and Idant subsequently gave birth to Brittany in January 1996.

The suit says Donna Donovan soon noticed abnormalities in her daughter's development and that the child was diagnosed as a Fragile X carrier in December 1997. Further genetic testing showed that Donna Donovan was not a Fragile X carrier and that Donor G738 was a carrier. But Donna Donovan claims that doctors at Idant continued to assure her that Brittany's developmental problems were not related to Fragile X and could not possibly be the result of the sperm that was purchased through Idant.

Thistle argued in court papers that it was not until 2008, when Donovan saw a report in The American Journal of Medical Genetics, that she knew her daughter's problems were related to the sperm donor's genetic defect. When Idant's lawyers moved for dismissal of the mother's claims as too late, Thistle argued that the discovery rule should toll the statute of limitations because of the fraudulent concealment by Idant. Judge O'Neill disagreed, saying Donovan should never have relied on Idant's doctors. The fact that Idant's doctors proposed alternative explanations for Brittany's problems cannot be considered fraudulent concealment, O'Neill found.

The Third Circuit agreed with O'Neill, holding that because Donna Donovan “was aware of both an injury and its source in 1998, her claims were untimely and were properly dismissed.” The appellate court also found that O'Neill had properly rejected the daughter's claims as unrecognizable under New York law.

In arguing that the defective semen left her daughter impaired and in need of costly treatment, the Third Circuit said, the suit essentially alleged that the child's “genetic makeup” is her injury. “The difficulties that [Brittany] now faces and will face are surely tragic, but New York law, which controls here, states that she 'like any other [child], does not have a protected right to be born free of genetic defects ' To find the contrary would ' require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.'”

Shannon Duffy is a reporter for The Legal Intelligencer, an ALM sister publication of this newsletter. This article originally ran in that publication.

On April 1, the Third U.S. Circuit Court of Appeals, in Donovan v. Idant Laboratories, upheld a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by a mother and her daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

Judge O'Neill's Decisions

Judge O'Neill had initially ruled that, under New York law, the sperm bank could be sued under product liability laws because “the sale of sperm is considered a product and is subject to strict liability.” But two months later, he reversed himself and dismissed the entire case, predicting that the New York's highest court, the Court of Appeals, would reject the claim. In both rulings, O'Neill rejected all claims by the mother on statute of limitations grounds, finding that she waited too long after learning that her daughter's genetic defects were directly connected to the sperm donor.

The Third Circuit Ruling

Now the Third Circuit has ruled that Judge O'Neill's second decision was correct in holding that the mother's claims were untimely and that the daughter plaintiff had “no cognizable injury.” “Wrongful life cases pose particularly thorny problems in the damages context,” Third Circuit Judge Maryanne Trump Barry wrote. Barry quoted from Becker v. Schwartz, a 1978 decision of New York's highest court, that said: “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.”

Plaintiffs attorney Daniel L. Thistle said he had urged the Third Circuit to certify the appeal to the New York courts because he believed the courts would allow the daughter to sue over the genetic defects in the sperm since the state recognizes so-called “wrongful birth” cases in which parents bring such claims, and since New York's blood shield law is narrowly worded and does not prohibit suits over human tissue.

The Suit

According to the suit, Donna Donovan began research in 1994 to find a sperm bank and was promised by Idant Laboratories that its donors go through a rigorous screening process to ensure that they have a good genetic background and that it employed a screening program that far exceeds mandated standards. Idant shipped semen from Donor G738 to Donovan's physician in April 1995, the suit said, and Idant subsequently gave birth to Brittany in January 1996.

The suit says Donna Donovan soon noticed abnormalities in her daughter's development and that the child was diagnosed as a Fragile X carrier in December 1997. Further genetic testing showed that Donna Donovan was not a Fragile X carrier and that Donor G738 was a carrier. But Donna Donovan claims that doctors at Idant continued to assure her that Brittany's developmental problems were not related to Fragile X and could not possibly be the result of the sperm that was purchased through Idant.

Thistle argued in court papers that it was not until 2008, when Donovan saw a report in The American Journal of Medical Genetics, that she knew her daughter's problems were related to the sperm donor's genetic defect. When Idant's lawyers moved for dismissal of the mother's claims as too late, Thistle argued that the discovery rule should toll the statute of limitations because of the fraudulent concealment by Idant. Judge O'Neill disagreed, saying Donovan should never have relied on Idant's doctors. The fact that Idant's doctors proposed alternative explanations for Brittany's problems cannot be considered fraudulent concealment, O'Neill found.

The Third Circuit agreed with O'Neill, holding that because Donna Donovan “was aware of both an injury and its source in 1998, her claims were untimely and were properly dismissed.” The appellate court also found that O'Neill had properly rejected the daughter's claims as unrecognizable under New York law.

In arguing that the defective semen left her daughter impaired and in need of costly treatment, the Third Circuit said, the suit essentially alleged that the child's “genetic makeup” is her injury. “The difficulties that [Brittany] now faces and will face are surely tragic, but New York law, which controls here, states that she 'like any other [child], does not have a protected right to be born free of genetic defects ' To find the contrary would ' require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.'”

Shannon Duffy is a reporter for The Legal Intelligencer, an ALM sister publication of this newsletter. This article originally ran in that publication.