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UH fertility clinic lawsuits resume in January with new judge, unsettled legal issues

December 23, 2018

UH fertility clinic lawsuits resume in January with new judge, unsettled legal issues

CLEVELAND, Ohio – Legal experts say the 70 lawsuits filed against University Hospitals for the operational failure of a storage freezer at its fertility clinic could eventually land in the U.S. Supreme Court. But until then, the consolidated lawsuits will be heard by a 35-year-old newly elected judge with no experience on the bench.

Ashley Kilbane is scheduled to be sworn in Jan. 2, replacing Judge Stuart Friedman, who served for 31 years on the Cuyahoga County Common Pleas Court, but was age-limited from running for another term.

In a recent meeting between Kilbane, Friedman and a delegation of UH and plaintiffs’ attorneys, Kilbane said she is committed to keeping the cases.

“The plaintiffs are thankful for the work of Judge Friedman, and look forward to working with Judge Kilbane,” said attorney Jay Kelley III, the managing partner at the firm of Elk & Elk and the lead plaintiffs’ lawyer.

The lawsuits were filed in the aftermath of an incident at UH’s Ahuja Medical Center in Beachwood the weekend of March 3-4, when a rise in the temperature of a storage tank freezer damaged and left nonviable 4,000 eggs and embryos belonging to nearly 1,000 fertility patients.

Friedman’s request to remain on the bench beyond his retirement date to retain jurisdiction over the “extremely complex” cases was rebuffed by Chief Justice Maureen O’Connor of the Ohio Supreme Court. The case has been on hold since October.

“I’m excited the whole thing is over and we’re looking forward to getting things moving again,” said Wendy Penniman of Broadview Heights who, with her husband Rick, lost three embryos and were among the first plaintiffs to file lawsuits.

Plaintiffs’ lawyers familiar with Kilbane say they’ve been impressed with her judicial temperament and take-charge approach to what will likely be among the most momentous cases of her career.

Before winning election in November, Kilbane, of Rocky River, worked for five years as an assistant Cuyahoga County prosecutor, where she “followed her passion,” handling criminal cases. Prior to that, she worked for three years as an associate at the Porter Wright Morris & Arthur law firm, concentrating on complex commercial litigation, contract disputes and intellectual property protection. She graduated from the Cleveland-Marshall College of Law in 2009.

As the UH lawsuit litigation prepares to resume in Common Pleas Court, the Pennimans are engaged in a separate, potentially landmark case in the 8th Ohio District Court of Appeals that has been on hold since September.

The Pennimans are seeking a legal declaration that their lost embryos were living persons and should have been treated as patients, not as pieces of property. Friedman previously threw out their case.

“I believe wholeheartedly that, at the very least, these people [at UH] should have treated these embryos as children,” Wendy Penniman said. “We’ve created these children, they’re just not at the point to where they can survive outside the womb. To me those were my babies.”

The Pennimans’ case has subjected them to a deluge of hate mail, she said. The majority is from advocates who accuse the couple of pushing back women’s rights hundreds of years and threatening Roe vs. Wade, the court decision that gave women the right to an abortion.

Other mail is coming from the opposing side, anti-abortion activists who have reached out to the Pennimans, asking Wendy to be the poster child for their cause.

Neither argument aligns with the Pennimans’ motivation for their lawsuit, said Wendy, 41, a scientist, mother of two young children conceived naturally, an advocate of women’s rights, and neither a Catholic or especially religious.

“All I want to do is what’s best for my children,” she said. “What ripped me to the core was when I looked at my kids and I was overtaken with the grief at what we had lost. A complete sense of grief and anger took over.”

Appeal seeks rights for embryos

In their appeals case, the Pennimans maintain that Ohio law is not definitive, and that Friedman was wrong to throw out the couple’s case in common pleas court.

Friedman sided with UH, basing his decision on a finding that the couple’s fertilized embryos did not deserve the same legal protections as a child. UH argued that Ohio law has consistently found that frozen embryos are not people.

Taubman suspects the four-month delay in the Court of Appeals is due to the appellate judges awaiting a resolution to the controversial “Heartbeat Bill” passed Dec. 12 by the Ohio Senate. The bill would outlaw abortions at the point a fetal heartbeat is detected.

Gov. John Kasich has vowed to veto the bill and has until the week of Dec. 24 to act. The senators would need to return during their Christmas break if they choose to override the veto.

Taubman said the bill’s passage could bolster his case in the court of appeals. If necessary, the Pennimans are prepared to argue their case all the way to the U.S. Supreme Court, he said.

Browne Lewis, a professor specializing in biomedical ethics at Cleveland-Marshall College of Law, told The Plain Dealer in October that she expects the U.S. Supreme Court is where the UH cases will ultimately land.

Lewis said she foresees prolonged litigation disputes over medical malpractice, questions of wrongful death and the ways hospitals treat frozen eggs and embryos.

“Embryos are not property, they’re too close to being people,” Lewis said at the time. “The distinction between a fetus and an embryo is closing, but the law hasn’t kept up.”

Many of the plaintiffs have sought and obtained their destroyed embryos from UH, Wendy Penniman said. She and her husband didn’t want to retrieve their embryos until they had solidified their plans for a proper burial, but they intend to act soon, she said.

“We plan to have a memorial in a plot to honor them,” she said. “The thought that they would remain frozen in a tank was unbearable for me. They can’t stay there in the hands of the people who destroyed them.”

New judge faces difficult decisions

As the date for Kilbane’s swearing-in ceremony approaches, the new judge won’t have much time to familiarize herself with her job before she will be required to make several important decisions.

Plaintiffs’ lawyers are expecting UH to renew its request for a judge’s order requiring that all of the lawsuits be refiled as medical malpractice cases – a decision some of the lawyers have vowed to oppose.

In May, Friedman rejected a similar request by UH, denying the hospital’s claim that the freezing and maintaining of frozen eggs and embryos required medical expertise. Rather, he sided with a motion filed by the Pennimans’ attorney, Bruce Taubman, that the basis of the lawsuits was focused on UH’s negligence in monitoring the storage tanks, and not actions related to medical procedures.

“I argued that just because it happened in a hospital doesn’t make it medical malpractice, and Judge Friedman agreed,” Taubman said.

If the cases remain focused on negligence, Taubman said the plaintiffs will argue that the hospital was aware of malfunctions with the freezer tanks yet did nothing to repair them.

In response to questions about its upcoming defense strategy, a UH spokesman cited a gag order issued by Friedman in July.

“Under a court order, attorneys working on this matter are prohibited from commenting. University Hospitals respects the court’s ruling that matters relating to these important cases should be addressed in the courtroom,” the hospital said in a written statement. “All of us at University Hospitals remain dedicated to supporting our patients, and we continue to work with the court and patients’ counsel to move these cases toward resolution.”

UH’s motivation for seeking a new order from Kilbane is understandable, plaintiffs’ attorneys say. According to Ohio law, medical malpractice cases contain caps on damages for pain and suffering of $350,000 for individuals and $500,000 for couples.

Also significant is that the statute of limitations on filing medical malpractice cases is one year from the date of the event, which would require any patient who wanted to seek legal remedy to file or refile a lawsuit by the first week of March, potentially limiting the hospital’s exposure to hundreds of additional lawsuits.

As many as half the 1,000 fertility patients who lost eggs or embryos in the March event have not filed lawsuits or engaged lawyers, according to plaintiffs’ lawyers. Several lawyers have said they have been retained and are preparing dozens of cases for filing prior to the first week of March.

Two of the original plaintiffs recently settled their cases with UH, and at least two more have indicated on the plaintiffs’ Facebook page that they are negotiating settlements, according to members of the private group. The settlements contain confidentiality clauses that prevent the parties from revealing the amount of the damages.

The statute of limitations on negligence cases is two years, and jury damage awards can potentially far exceed the caps on medical malpractice cases.

“I’m in it for the long haul, fighting for what’s been stolen from my family,” Wendy Penniman said. “I don’t give a crap about the money.”

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