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Akron Univ. School of Law

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Monday, April 12, 2010

Defective Sperm No Basis for Products Liability Suit

Hat tip to Kim Krawiec over at the Faculty Lounge for this story:

The 3rd U.S. Circuit Court of Appeals has ruled in Donovan v. Idant Laboratories that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, because it would recognize a claim of "wrongful life."  According to Law.com, the case:

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."

The Third Circuit affirmed, stating: “Regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of B.D. suffer from the same defect: the lack of a cognizable injury.”  Said the Court:

Wrongful life cases pose particularly thorny problems in the damages context:  “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.  This comparison the law is not equipped to make.”  Becker, 46 N.Y.2d at 412.

For procedural geeks, the lower case raised some interesting choice of law issues. While both New York and Pennsylvania have "blood shield statutes" that prohibit products liability suits stemming from blood or blood products, Pennsylvania's blood shield statute includes human tissues other than blood, whereas New York's statute includes only blood and its derivatives:

O'Neill found that there was a "true conflict" between the laws of the two states because "semen is not a blood derivative," and Brittany Donovan would therefore have a valid cause of action under New York law, but not under Pennsylvania law. . . .

Although other states' blood shield laws and Section 19 of the Restatement (Third) of Torts all say that human tissue and organs are included in the list of products that are exempted from strict liability law, O'Neill found that "the relevant New York statute does not and no case law has extended the statute to also exempt human tissues like sperm."

For a history of blood shield laws and an argument that the blood industry’s response to the HIV/AIDS epidemic in the early 1980’s strongly suggests that things would have turned out better for some, perhaps many, recipients of blood products had strict-liability rules been in effect, see Clark C. Havighurst, Trafficking in Human Blood: Titmuss (1970) and Products Liability (PDF). 

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