Judge orders streamlined process in suits against Cleveland fertility center

Cuyahoga County Judge Stuart Friedman's order, which was filed June 21, provides structure to cases that had been consolidated this year. The order creates an executive committee and five subcommittees made up of plaintiffs' lawyers from 15 firms.

This is intended to streamline the legal process and keep the lawyers from doing duplicative work.

The case management order, which came from a joint motion filed by both plaintiffs and defendants, will assist all parties and the court in the management of the litigation, according to a University Hospitals statement.

Eggs and embryos had been stored in a liquid nitrogen tank at University Hospitals in Cleveland, which was equipped with a remote alarm system that should have alerted an employee to any temperature change. But the hospital says the alarm was off, so an alert was never issued when an apparent malfunction caused temperatures in the tank to rise. Because it was Saturday night when the lab wasn't staffed, no one noticed the continuing rise in temperature. As a result, the eggs and embryos thawed.

University Hospitals has said that patients are its first priority and that it is working to improve the operations in the fertility clinic, such as new freezer tanks and a different remote alarm system.

Sylwia Sierko of Mantua, Ohio, is one of those affected by the incident.

She and her husband, Paul, had been trying to conceive a child when she was diagnosed with breast cancer in August 2015. She decided to seek fertility treatment at University Hospitals and was told that she could get pregnant two years after she completed chemotherapy. In spite of her health concerns, Sierko said, her family was excited about the prospect of a new baby, especially her 7-year-old daughter.

Sierko's daughter had seen her mother's bald head during the cancer treatment, and Sierko had to explain to her that "mommy was sick."

But nearly three years later, when Sierko received the news about her stored embryos, it was even more difficult to explain to her daughter what embryos were and why hers were unviable.

"It's still a touchy subject with her still asking me why all the time," said Sierko, who says she feels devastated about her inability to have more children. "It won't go away. It will always be a void in our lives."

Attorney James Kelley III, who will speak to the court on behalf of all plaintiffs in his role as the court liaison council, said that work on the cases under the order applies to the plaintiffs' common issues, especially in the discovery phase.

"When you think about these cases, some are people who can go through another retrieval; some can't," Kelley said. "Everybody's kind of in a different position: They had different numbers of embryos and eggs; they have different opportunities going forward in re-creating and re-establishing their family plan."

A consolidation of cases is not the same as a class-action suit. Kelley pointed out that every plaintiff doesn't have the same damages, and so they may pursue their own claims and reach their own resolutions.

Sierko hopes the trial goes quickly. "Whatever happens, I hope the government, whether state or federal, will make rules and regulations for the lab so something like this doesn't happen to anyone else. It's horrifying," she said.

A storage tank also malfunctioned at Pacific Fertility Center in San Francisco on March 4, the same day as the incident in Cleveland.