Mother can't sue over genetic defects in sperm that caused child's Fragile X syndrome

From The Legal Intelligencer:

Genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, a federal appeals court has ruled, because allowing such a claim would be tantamount to recognizing a claim of "wrongful life."

The ruling by the 3rd U.S. Circuit Court of Appeals in Donovan v. Idant Laboratories upholds a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by both a mother and a daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

O'Neill had initially ruled that, under New York law, the sperm bank could be sued under products liability laws because "the sale of sperm is considered a product and is subject to strict liability."

But two months later, O'Neill reversed himself and dismissed the entire case, predicting that the New York Court of Appeals would reject the claim. "I find it more likely than not that it would find that the injuries alleged in plaintiff's strict liability and warranty claims are essentially claims for wrongful life."

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.

Now the 3rd Circuit has ruled that 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," 3rd Circuit Judge Maryanne Trump Barry wrote.

"Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson's choice of life in an impaired state and nonexistence," Barry wrote. "This comparison the law is not equipped to make."

Barry, who was joined by Judges Theodore A. McKee and Morton I. Greenberg, 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."

The ruling is a victory for attorney Rory L. Lubin of Wilson Elser Moskowitz Edelman & Dicker in White Plains, N.Y.

Plaintiffs attorney Daniel L. Thistle said he had urged the 3rd 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 doesn't prohibit suits over human tissue.

"I wish they had let New York make that decision, but there's not much we can do now," Thistle said in an interview. "It was an interesting and challenging case. You can't always win."

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 she gave birth to Brittany in January 1996.

The suit says Donna Donovan soon noticed abnormalities in her daughter's development and that she 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 couldn't 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.

O'Neill disagreed, saying Donovan should never have relied on Idant's doctors.

"Common sense would cause a reasonable person to question statements in the letters from Idant's doctors regarding its liability especially in light of the facts that Brittany had been diagnosed by an independent hospital and that an independent laboratory had found a genetic link between the donor genes and Brittany's Fragile X carrier status," O'Neill wrote.

The fact that Idant's doctors proposed alternative explanations for Brittany's problems cannot be considered fraudulent concealment, O'Neill found.

"To hold otherwise would be to permit tolling for fraudulent concealment every time a defendant offered a different explanation of events which caused it to believe that it was not at fault. That is an untenable extension of the fraudulent concealment doctrine," O'Neill wrote.

The 3rd 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, Barry 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,'" Barry wrote.

"To find the contrary would invite litigation for any number of claimed injuries and, even more problematic, require courts to identify certain traits below some arbitrarily established marker of perfection as 'injuries,'" Barry wrote.