This story is updated below, at the end of the original post
I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.
The plaintiffs' claim is for product liability based on the alleged defective design of the tanks. The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it. This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.
Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs. The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.
So, my first question is what is a claim for the "loss of" the eggs and embryos? I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized. If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of. And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act. So I wonder if the claim is not for wrongful death but for something else? Is it just a contracts dispute then? I just don' know.
On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims? If the jurisdiction requires impact, I don't think there is support for the claim, for example. Also, the facts don't seem to fit a claim for emotional distress of a bystander.
Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc. But I wonder what the answers are.
UPDATE May 30, 2021: Courthouse News is following the trial closely. This week they published the following stories: