HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

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, 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). 

April 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 11, 2010

Call for Papers on Costs and End-of-Life Medical Treatment

The Journal of Law, Medicine & Ethics will host a thematic issue on costs and end-of-life medical treatment in 2011. Robert Arnold, Amber Barnato and Thaddeus Pope have been asked to serve as Guest Editors.  The Journal of Law, Medicine & Ethics is the peer-reviewed journal of the American Society of Law, Medicine & Ethics.


Articles may be submitted for any topic relating to costs and end-of-life medical treatment.  The Journal is primarily interested in shorter papers (10 – 30 double spaced pages; 3000 – 9000 words, exclusive of endnotes), although longer papers will receive careful consideration.  The JLME style sheet is found on the ASLME website: 


Please submit an abstract by June 15, 2010.  Papers are due by November 1, 2010 so that the editorial and review process can be completed in a timely manner.  Early submissions are appreciated.  All correspondence should be directed to Thaddeus Pope at [email protected]. 

April 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 4, 2010

Do Soda Taxes Curb Consumption?

Two studies published in Health Affairs suggest that soda taxes have mixed results. Shirley S. Wang of the WSJ Health Blog summarizes the studies:  

One study led by a Rand Corp. researcher examined children’s body mass index and consumption of sugar-sweetened drinks in a national sample of more 7,000 elementary-school students between 1998 and 2004. The majority of the kids lived in states where sodas were taxed more than other foods, with levies on sodas ranging as high as 7%.

The results showed no overall difference in beverage consumption in states that taxed sodas more, but there was some benefit for some groups including kids who started off heavier, those from low-income families, African Americans and those who watched a lot of TV. There was some evidence that a higher tax was linked to lower body mass index in third- to fifth-graders.

“To have a measurable effect on consumption, taxes need to be tied to consumption, and they need to be larger than the existing state variation in sales taxes,” the study authors concluded.

The second study, looking at another national sample of kids, found “little difference” in the body mass indexes of kids who live in states with a soda tax compared with states without one. They also found that fifth through eighth graders drank less sodas at school when vending machine access was limited.

“This finding of little consumer response to soft drink taxes in reducing consumption could be partially explained if consumers do not react to the small, and often hidden, tax rates typically applied to soft drinks,” according to the researchers led by a Yale prof.

Earlier studies have found have found that taxing sugary sodas just a penny an ounce would decrease consumption significantly. A recent study suggest that 10% increase in price leads to an 8% reduction in consumption.

Read more the controversy here and here.

April 4, 2010 | Permalink | Comments (0) | TrackBack (0)