Jane Doe 1 et al v. Xytex Corporation et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In SupportN.D. Ga.July 12, 2016 4825-4325-6628.1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA JANE DOE 1 & JANE DOE 2, ) individuals ) ) CIVIL ACTION NO.: Plaintiffs, ) 1:16-CV-01453-TWT ) v. ) ) XYTEX CORPORATION, a Georgia ) Corporation, XYTEX CRYO ) INTERNATIONAL LTD, a Georgia ) MARY HARTLEY, an individual, J. TODD SPRADLIN, an individual; and DOES 1-25 ) ) ) ) Defendants. ) DEFENDANTS XYTEX CORPORATION, XYTEX CRYO INTERNATIONAL, LTD, J. TODD SPRADLIN, AND MARY HARTLEY’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, PARTIAL MOTION TO DISMISS COME NOW Defendants Xytex Corporation and Xytex Cryo International, LTD, herein referred to collectively as “Xytex,” Defendant J. Todd Spradlin, and Defendant Mary Hartley, and hereby file their Motion to Dismiss, or in the alternative, Partial Motion to Dismiss, showing this Court the following: OPERATIVE ALLEGATIONS In this lawsuit filed May 4, 2016, the anonymous Plaintiffs allege they are a couple from England who conceived two children via intrauterine insemination using Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 1 of 33 4825-4325-6628.1 2 sperm of Donor #BMG 9623. Plaintiffs allegedly acquired the sperm via Defendants Xytex, who employed Defendant Mary Hartley at their Atlanta location and where Dr. Spradlin is the medical director. Complaint at ¶¶ 1-10. On February 28, 2012, Plaintiff Jane Doe 1 gave birth to A.W., a child allegedly conceived from the sperm of Donor #BMG 9623. Id. at ¶32. On February 22, 2015, Plaintiff Jane Doe 1 gave birth to B.W., a child allegedly conceived from the sperm of Donor #BMG 9623. Id. Plaintiffs claim they chose sperm from Donor #BMG 9623 based on information they learned about that donor via Defendants Xytex, Spradlin, and Hartley. Plaintiffs claim that certain information they allegedly relied upon in choosing Donor #BMG 9623 was other than was represented to them. See generally Complaint. Plaintiffs have not alleged that either A.W. or B.W. have any medical and/or mental health problems at all. Id. Plaintiffs’ Complaint alleges eleven (11) separate causes of action, to wit: 1) Fraud; 2) Negligent Misrepresentation; 3) Products Liability/Strict Liability; 4) Products Liability/Negligence; 5) Breach of Express Warranty; 6) Breach of Implied Warranty; 7) Battery; 8) Negligence; 9) Unfair Business Practices; 10) Specific Performance; and 11) False Advertising. Id. For the following reasons, all of Plaintiffs’ claims should be dismissed. In the alternative, certain of Plaintiffs’ claims should be dismissed. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 2 of 33 4825-4325-6628.1 3 HISTORY OF THESE CASES Regardless of how each claim is labeled, it is clear that Plaintiffs’ main contention is that had the various claimants known the alleged “truth” about Donor #BMG9623 they would have chosen a different donor before the insemination procedure, thereby avoiding the birth of these specific children. This case centers on allegations that Donor #9623 provided false information to Defendants, and in turn that false information was provided to the various claimants by Defendants. These same claims (and indeed an almost identical complaint from the same attorneys) was dismissed by Judge Robert McBurney of the Superior Court of Fulton County, Georgia. The October 20, 2015 Order dismissing all of plaintiffs’ claims is attached hereto as Exhibit A. Judge McBurney correctly concluded that under Georgia law all claims 1 brought by plaintiff there were derivative claims for wrongful birth and must be dismissed because this state does not and will not acknowledge wrongful birth claims. Ex. A. Simply, in Spires, then-Judge Carley, writing for the majority, relied on the Abelson case in finding that appellant-plaintiffs could not maintain an 1 Those plaintiffs brought the following claims: 1) Fraud; 2) Negligent Misrepresentation; 3) Products Liability/Strict Liability; 4) Products Liability/Negligence; 5) Breach of Express Warranty; 6) Breach of Implied Warranty; 7) Battery; 8) Negligence; 9) Unfair Business Practices; and 10) third party fraud. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 3 of 33 4825-4325-6628.1 4 action alleging that a defendant failed to disclose certain information that would have allowed plaintiffs to “avoid the birth of an impaired child.” (emphasis supplied) Spires v. Kim, 203 Ga. App. 302 (1992). Defendants ask this Court to follow clear Georgia law and dismiss all Plaintiffs’ claims. ARGUMENT AND CITATION OF LAW A. State law will govern the substantive arguments in this case This case is brought pursuant to diversity jurisdiction. See Complaint, Jurisdiction and Venue. In exercising diversity jurisdiction, the Court engages in a two-step inquiry to determine if state or federal law applies. First, the Court determines whether the matter at hand is procedural or substantive for Erie Railroad Co. v. Tompkins purposes. Pinkerton & Law, Inc. v. Royal Ins. Co., 227 F. Supp. 2d 1348, 1357 (N.D. Ga. 2002) (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). If the matter is procedural, federal law applies, but if the matter is substantive, the forum state’s law applies. Id. (citing Erie, 304 U.S. at 78). Second, if the matter is substantive, the Court will examine the substantive law of the forum state, to determine the applicable substantive law. Id. (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 4 of 33 4825-4325-6628.1 5 The Eleventh Circuit previously held when analyzing wrongful birth claims that such claims, if brought in federal court, will be determined by Georgia substantive law. Campbell v. United States, 962 F.2d 1579 (11th Cir. 1992). The Eleventh Circuit in Campbell affirmed the District Court’s dismissal of a wrongful birth action. Id. Georgia law on wrongful birth has not changed since the Campbell decision and the same result should be applied here. Additionally, the Supreme Court held that a forum state’s statutes of limitations are substantive laws and must be followed by federal courts in diversity actions. Guaranty Trust Co. v. York, 326 U.S. 99 (1945); Walker v. Armco Steel Corp., 446 U.S. 740 (1980). B. Plaintiffs’ claims, and each of them, constitute an impermissible claim for “wrongful birth,” which Georgia law does not recognize. Although set forth in eleven (11) separate causes of action, the entirety of Plaintiffs’ case ultimately suggests that had Plaintiffs possessed different information about Donor #BMG 9623, they would not have purchased his sperm, thus minors A.W. and B.W. would have never been born. Complaint at ¶ 33. Had plaintiffs known the true facts about Donor 9623’s background and medical history, plaintiff would not have purchased sperm from defendants and avoided the birth of their children from the Donor 9623’s semen. Id. The assertion implicit in this allegation is that if Plaintiffs had different information, their two children would never have been born. Such a claim is known as a claim for “wrongful birth,” and is not recognized under Georgia Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 5 of 33 4825-4325-6628.1 6 law. Campbell, 962 F.2d at 1580-1584; Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 (1990). In 1990, the Georgia Supreme Court determined that Georgia statutory law does not recognize “wrongful birth,” and declined to create such a claim as a matter of common law. Abelson, 260 Ga. 711. Since that opinion, other plaintiffs have attempted to pursue such claims, all ultimately failing to survive appellate scrutiny. See Spires v. Kim, 203 Ga. App. 302 (1992) (“Our Supreme Court has held that ‘wrongful life’ claims implicitly and ‘wrongful birth’ claims explicitly ‘shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.” (citing Abelson)); Gale v. Obstetrics & Gynecology of Atlanta; 213 Ga. App. 614 (1994) (“Though couched in terms of breach of contract, breach of confidential relationship, and negligence, the cause of action set forth in their complaint is, in reality, one for wrongful birth,” and the trial court’s dismissal was upheld based on the failure to state a claim upon which relief could be granted.); and Vance v. T.R.C., 229 Ga. App. 608 (1997) (holding a child born as the result of the rape of an underage girl has no claim for wrongful birth in Georgia). In 1999, a plaintiff sued her obstetrician for failing to inform the parents that the fetus showed potential for Downs Syndrome on prenatal testing, which would have led the parents to abort the child. Etkind v. Suarez, 271 Ga. 352 (1999). Once again, Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 6 of 33 4825-4325-6628.1 7 the Georgia Supreme Court cited Abelson and indicated that absent a statute authorizing such a claim, Georgia law does not recognize a claim for wrongful birth. Id. Yet again, the Georgia Supreme Court confirmed that the Georgia legislature has passed no such statute. Id. Through all subsequent legislative sessions, the Georgia General Assembly has still passed no statute recognizing a claim for wrongful birth in Georgia. Consistent with Abelson, Spires, Gale, Vance, and Etkind, Plaintiffs’ entire case should be dismissed for failure to state a claim upon which relief may be granted because their entire case is ultimately a claim for wrongful birth, a claim that Georgia law does not recognize. This reasoning was affirmed by the Eleventh Circuit Court of Appeals. Campbell, 962 F.2d at 1584. The plaintiffs from the prior Fulton County Case filed yet another lawsuit in Canada. That complaint is attached hereto as Exhibit B. Making the same claims as the Plaintiffs here, the Canadian plaintiffs include a count for “wrongful birth.” Ex. B, p. 15 ¶32. In that count, the Canadian plaintiffs allege that they “would not have proceeded with the insemination of [the mother] had they been properly informed for Donor #9623’s history of hereditary mental disorders.” Id. As is quite clear, the claims made here are effectively the same argument: Plaintiffs allege that had they known Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 7 of 33 4825-4325-6628.1 8 what they contend are the true facts about the donor, they would have avoided the birth of their children. This is an impermissible claim for wrongful birth. 2 C. Plaintiffs’ claims, and each of them, must fail based on the applicable statute of limitations. All of Plaintiffs’ claims, regardless how they are pled, are subject to various applicable statutes of limitation, each of which expired well before Plaintiffs filed this lawsuit on May 4, 2016. 3 Specifically, there are four (4) different applicable statutes 2 Indeed, Plaintiffs seem to be seeking some sort of legislative change asking for more oversight on sperm banks than currently exist. See generally Complaint. Contrary to Plaintiffs’ assertions, sperm banks are already governed by the FDA, as well as Georgia state law regarding clinical laboratories. 21 C.F.R. Part 1271 et seq.; O.C.G.A. §111-8-10 et seq. Plaintiffs tacitly admit they ask this Court to enact legislative change when they discuss a public policy crisis in their complaint as well as in the numerous media articles and quotations from their counsel. See generally Complaint. This is not the proper forum and this Court should not enact change that is only appropriate for the legislative branch. Moreover, the Supreme Court previously held that wrongful birth claims like this can only be created by the legislature and not the courts of Georgia. Etkind, 271 Ga. at 354. The law forecloses this theory of recovery. “[T]he lack of a legislative response indicates that the General Assembly has not been persuaded by any reason, including subsequent medical advances, to exercise its constitutional power to amend the malpractice act so as to permit a recovery for wrongful birth claims.” Id. at 353-4. This alone requires dismissal of these claims. “The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.” (Citation and punctuation omitted) Allen v. Wright, 282 Ga. 9 (2007). 3 While Plaintiffs’ various causes of action should also be dismissed for various reasons described in Defendants’ Motion in the Alternative below, those reasons for dismissal vary by the individual causes of action alleged by Plaintiffs. As all of (footnote continued) Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 8 of 33 4825-4325-6628.1 9 of limitation that may apply to certain and/or all of the various claims Plaintiffs allege. They are: O.C.G.A. §9-3-33 – the two year statute of limitations applicable to personal injury O.C.G.A. §9-3-31 – the four year statute of limitations applicable to fraud O.C.G.A. §9-3-26 – the four year statute of limitations applicable to breach of contract O.C.G.A. §9-3-71 – the two year statute of limitations and the five year statute of repose applicable to medical malpractice Plaintiffs’ various claims are untimely under these statutes and should be dismissed. 1. The two year statute of limitations for personal injury bars claims. O.C.G.A. § 9-3-33 states, “Actions for injuries to the person shall be brought within two years after the right of action accrues.” In this case, arguably all, but at least several of Plaintiffs’ causes of action sound in personal injury and are subject to the two year statute of limitations, to wit: negligent misrepresentation; products Plaintiffs’ claims should be dismissed based on applicable statutes of limitation, the statute of limitations arguments are all addressed in this section of Defendants’ Motion to Dismiss. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 9 of 33 4825-4325-6628.1 10 liability/strict liability; products liability/negligence; breach of express warranty; breach of implied warranty; battery; and negligence. Plaintiffs’ causes of action related to personal injury would have accrued either at the time Donor #BMG 9623’s semen was purchased by Plaintiffs or at the latest at the time it was used to inseminate Plaintiff Jane Doe 1. Although the Complaint does not make it clear the date of purchase or insemination, the date of birth of A.W. is pled as February 28, 2012. Complaint ¶32. 4 Although pregnancy lengths vary based on a variety of gestational factors, the Court can reasonably take judicial notice that Plaintiff was inseminated with sperm in April or May of 2011. Plaintiffs, based on the allegations made in the Complaint, made calls to Xytex and researched Xytex and the Donor because it was a very important decision. Complaint ¶30. Therefore, it is likely that Plaintiffs first reviewed the information from Xytex in the months prior to May 2011. Given this range of dates, the statute of limitations would have expired before May 2013. 5 4 There are no allegations that Plaintiffs reviewed this information again when selecting the donor for their second child. Therefore, the various statutes of limitations will begin to run from the date of the review of information and/or insemination of the first child. 5 The statute would run from the inception of A.W. and not B.W. because this would be the first time that Plaintiffs reviewed the information on Donor 9623 and purchased samples. Marta v. Maloof, 304 Ga. App. 824 (2010). Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 10 of 33 4825-4325-6628.1 11 Plaintiffs’ lawsuit was filed three (3) years too late. Therefore, Plaintiffs’ personal injury claims should be dismissed. 2. The four year statute of limitations for fraud bars claims. O.C.G.A. § 9-3-31 provides a four (4) year statute of limitations on claims of fraud. See Willis v. City of Atlanta, 265 Ga. App. 640, 595 S.E.2d 339 (2004). Plaintiffs’ causes of action for fraud, and their cause of action for negligent misrepresentation, are governed by this four (4) year statute of limitations. Based on the birth of A.W. discussed above, the statute of limitations for fraud and/or negligent misrepresentation would have expired in May 2015 at the latest – and more likely prior to that – as the alleged fraud and/or negligent misrepresentation date for statute of limitations purposes would have been tied to the purchase of the semen, not the later insemination. Regardless of the date the statute of limitations began to run, it expired at least the year prior to Plaintiffs filing suit. While Plaintiffs may seek to argue that they did not discover Defendants’ alleged fraud and/or misrepresentation until June 2014, that does not toll the applicable statute of limitations. Fraud, by itself, does not automatically toll the statute of limitations unless the fraud “conceals the cause of action from the plaintiff.” Moore v. Mack, 266 Ga. App. 847, 849 (2004). “To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 11 of 33 4825-4325-6628.1 12 employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information.” Id. (quoting Federal Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 244 (2003)). Here, the Plaintiffs do not allege the Defendants committed fraud that specifically and intentionally concealed their cause of action that constitutes moral turpitude, or otherwise triggered the tolling of the statute. Plaintiffs’ claims for fraud are time-barred and should be dismissed. 3. The four year statute of limitations for breach of warranty bars claims. Assuming, arguendo, that Defendants’ sale of semen can be subject to breach of warranty claims, 6 under O.C.G.A. §9-3-26 Plaintiffs were required to bring the breach of warranty claims within four (4) years of the breach of either an express or implied warranty. 7 Case law is clear that a breach of warranty accrues on the date of the alleged breach or the first day that such a claim may successfully be brought. See generally Limoli v. First Georgia Bank, 147 Ga. App. 755, 756-7 (1978) (citing Mobley v. Murray County, 178 Ga. 388 (1934)). 6 Georgia’s blood shield statute, O.C.G.A. § 51-1-28, which provides that semen is not properly considered a “commodity,” is discussed infra. 7 Even if Plaintiffs erroneously attempt to claim that the “semen” sold was a “good” under the Commercial Code, O.C.G.A. § 11-2-725 would still impose a four year statute of limitation and the analysis would be the same barring the claims. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 12 of 33 4825-4325-6628.1 13 In this case, that would be the date of purchase of the semen. As discussed above – and generously giving Plaintiffs until the date of insemination which would be before May 2011 – the statute would have run no later than April 2015. 4. The two year statute of limitations for medical malpractice bars claims. Plaintiffs sued J. Todd Spradlin as the medical director of Defendants Xytex. Complaint ¶¶5 and 38 (“Chief Medical and Laboratory Director for Xytex”). Plaintiffs’ allegations center on the “medical documents,” “medical history,” “medical professionals,” “comprehensive medical processes,” representations and review, and “medical skill” provided by Defendant Xytex. Complaint at ¶¶ 5, 12, 16, 17, 18, 21, 22, 26, 38, and 68. 8 Such claims are based in medical malpractice and medical negligence, as they allege injury arising from “[h]ealth, medical, . . . diagnosis, prescription, treatment, or care rendered by a person authorized by law” . . . or a “clinic, . . . facility, or institution, or by any officer, agent, or employee thereof acting 8 Even though Plaintiffs fail to call these claims “medical malpractice,” a complaint’s characterization of claims as stating professional or ordinary negligence does not control. Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga.App. 408, 409-410 (2003). Rather, this determination is a matter of law. Baskette v. Atlanta Ctr. for Reprod. Med., LLC, 285 Ga. App. 876, 879 (2007). Georgia courts look not to the plaintiff’s claims, but to whether the underlying allegations implicate professional knowledge and skill. Id. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 13 of 33 4825-4325-6628.1 14 within the scope of his employment.” O.C.G.A. § 9-3-70 (1) and (2); Baskette v. Atlanta Ctr. for Reprod. Med., LLC, 285 Ga. App. 876, 880 (2007). In Baskette, a couple brought suit against a reproductive medical center and its employees for negligently using all of the couple’s stored sperm during their first in vitro fertilization (IVF) attempt and leaving none for a second IVF attempt. 9 Id. at 876-877. Because plaintiff’s alleged injury had occurred on the date all of the sperm was negligently used, not the date that they discovered the mistake, their suit was untimely. When confronted with the fact that the statute of limitations had run on their malpractice claim, the plaintiffs attempted to assert that they were actually claiming simple negligence. Id. at 878. Rejecting that claim, the court found that under O.C.G.A. § 9-3-70, “medical malpractice” is broadly defined to include: medical … service, … treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or care or service rendered by any … clinic, … facility, or institution, or by any … employee thereof acting within the scope of his employment. Id. at 880, quoting O.C.G.A. § 9-3-70 (2007). Because the center was a medical facility, and because the non-doctor defendants (the director of laboratory services and a medical technologist) were acting under the supervision of medical professionals 9 The husband had frozen his sperm prior to receiving cancer treatments that rendered him sterile. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 14 of 33 4825-4325-6628.1 15 when they thawed and used plaintiff’s sperm, claims against them sounded in medical malpractice. Id. The plaintiffs further alleged that they asserted only simple negligence when they claimed that the employees had failed to “mark” or otherwise identify the sperm to indicate that there could be no more forthcoming samples. Id. Plaintiffs argued that marking the stored sperm was merely an “administrative or routine act, the negligent performance of which would give rise to an action for simple negligence.” Id. The court disagreed, saying that the use and marking of the sperm still arose out of the fundamentally medical decision of how to use the sperm, a decision involving the exercise of medical skill and judgment and requiring an expert affidavit. Id. All plaintiffs’ claims sounded in medical malpractice, therefore they were bound by the two-year statute of limitations that commenced on the date of the first IVF insemination. Further, all of Plaintiffs’ damages claims – such as their inability to conceive a child, adoption expenses, noneconomic damages, and negligent infliction of emotional distress – were derivative of their medical malpractice claim and thus prohibited. The Court of Appeals affirmed the trial court’s grant of summary judgment to defendants. Id. Because Plaintiffs’ claims are actually thinly-veiled medical malpractice and medical negligence claims, such claims had to have been filed within two years from Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 15 of 33 4825-4325-6628.1 16 the alleged wrongful acts. O.C.G.A. § 9-3-71(a) and (c). Just as in Baskette, all claims against all Defendants here must be dismissed. Again, the Complaint is vague as to the dates of the wrongful conduct, but at best Plaintiffs’ claims expired against Dr. Spradlin and all the Xytex entities in April of 2014, two (2) years before their Complaint was filed. 5. The five year statute of repose for medical malpractice bars claims. O.C.G.A. § 9-3-71(b) proscribes any claims of medical negligence or medical malpractice after five years. See also O.C.G.A. § 9-3-71(c) (“Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.”). Such a statute of repose may not be tolled. Simmons v. Sonyika, 279 Ga. 378 (2005). “A statute of repose stands as an unyielding barrier to a plaintiff’s right of action. The statute of repose is absolute. . . . The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.” Wright v. Robinson, 262 Ga. 844, 845 (1993). Here, the causes of action brought based on Defendants’ medical negligence and medical malpractice expired and no longer existed because, as alleged by the Plaintiffs, even beginning in 2000, the Defendants knew or should have known about the truth of Donor 9623. Complaint ¶¶1-30; O.C.G.A. §9-3-71(b); Christian v. Atha, Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 16 of 33 4825-4325-6628.1 17 267 Ga. App. 186 (2004) (statute of repose focuses on negligent act or omission, not the injury); see generally Complaint. Notwithstanding the purported knowledge from 2000, any and all alleged medical malpractice that occurred prior to May 2011 is clearly barred by the statute of repose. 10 Even assuming the use of the date of insemination as the triggering date, at the very latest, the statute of repose ran in April-May 2016 absolutely barring Plaintiff’s Complaint. Notwithstanding the purported knowledge from 2000, any and all alleged medical malpractice that occurred prior to May 2011 is clearly barred by the statute of repose. There is no tolling of the statute of repose in Georgia. Wright, 262 Ga. at 845. For this reason and those enumerated above, Plaintiffs’ claims should be dismissed as untimely under the applicable statutes of limitations and repose. MOTION IN THE ALTERNATIVE As stated above, Plaintiffs’ claims, and each of them, should be dismissed based on them being impermissible claims for “wrongful birth” and based on the applicable statutes of limitation. To the extent this Court does not dismiss this entire case based on either of these grounds, the following individual claims should be dismissed for the following reasons: 10 Five years prior to the date of the lawsuit. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 17 of 33 4825-4325-6628.1 18 A. Plaintiffs’ fraud claim fails as a matter of law. In all averments of fraud or mistake, the circumstance constituting fraud or mistake shall be stated with particularity. Fed.R.Civ.Pro. 9; O.C.G.A. § 9-11-9. A party asserting fraud in Georgia must allege: (1) a false representation made by the defendant; (2) scienter; (3) an intention to induce the plaintiff to act in reliance on the false representation; (4) actual, justifiable reliance by the plaintiff; (5) and damage to the plaintiff. Nodvin v. W., 204 Ga. App. 280, 281 (1992); Zarrella v. Pac. Life Ins. Co., 755 F.Supp. 2d 1218 (2010). Plaintiffs have not made sufficient allegations to establish these elements of fraud. First, Plaintiffs allege that Defendants made a false representation about the qualifications of Donor #BMG 9623. But Plaintiffs do not sufficiently allege that Defendants did so knowingly, willfully, or with the requisite scienter to establish fraud. Plaintiffs have alleged that Donor #BMG 9623’s claims were false, but have not alleged that Defendants knew that Donor #BMG 9623’s claims were false. To the extent Plaintiffs claim that Defendants should have known these claims were false, that claim sounds in negligence and is insufficient to sustain a claim for fraud, which requires not only intent to induce a party through false representation, but also the active knowledge of wrongdoing at the time of the inducement. Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832 (2012). Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 18 of 33 4825-4325-6628.1 19 Further, Plaintiffs have not alleged that they suffered any actual damages from the purchase of Donor #BMG 9623’s semen. There is no indication or allegation that their children suffer from any medical conditions or deficits, and, as discussed above, the allegation that their children were wrongfully born cannot stand under Georgia law. Plaintiffs’ assertion that their children are at an increased risk to develop mental health issues is likewise unsustainable. See Boyd v. Orkin Exterminating Co., Inc., 191 Ga. App. 38, 381 (1989) (overruled on other grounds by Hanna v. McWilliams, 213 Ga. App. 648 (1994)). In Boyd, plaintiffs sued a pest control company claiming that their negligent application of pesticide in their home created an increased risk of cancer in their children. The plaintiffs claimed that their children had suffered an injury because they “would require periodic monitoring over the ensuing years to determine whether they were developing any health problems.” Id. at 40. However, the children’s medical histories were “unremarkable,” 11 and “[a]bsent any indication that the [pesticide chemicals] had caused or would eventually cause actual disease, pain, or impairment of some kind, damages were not warranted.” Id. This is because 11 This was true even though tests on the children found the “presence of significantly elevated levels” of a heptachlor expoxide metabolite in their bloodstream, a chemical that increases the risk of cancer. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 19 of 33 4825-4325-6628.1 20 damages cannot be based on imagined possibilities. Russaw v. Martin, 221 Ga. App. 683, 687 (1996). To the extent that Plaintiffs claim emotional damages flowing from the alleged fraud, those claims fail under Georgia’s stringent “impact” rule. Complaint ¶¶33-36. Georgia law has long required that any recovery for emotional distress must be associated with a physical injury to the plaintiff. Lee v. State Farm Mut. Ins. Co., 272 Ga. 583 (2000). Plaintiffs’ circumstances do not fit into the narrow exceptions to this rule, and Plaintiffs have made no showing that they were physically injured by receiving a different specimen than they expected. For these reasons, Plaintiffs can prove neither the intent and scienter elements of fraud, nor their damages, and Plaintiffs’ fraud claims must fail. B. Plaintiffs’ negligent misrepresentation claim fails as a matter of law. In order to state a claim for negligent misrepresentation, Plaintiffs must prove “(1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.” Futch v. Lowndes County, 297 Ga. App. 308, 312 (2009). “A plain reading of the essential elements underlying this cause of action shows that in order to file a legitimate claim, plaintiffs must show actual economic loss proximately resulting from the defendants’ negligent Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 20 of 33 4825-4325-6628.1 21 misrepresentation.” Newitt v. First Union Nat’l Bank, 270 Ga. App. 538, 547 (2004). In Newitt, the Court skipped deciding the first two prongs of the analysis because it was apparent that the plaintiffs could not prove they had suffered an actual, economic loss. Id. Therefore, they could not sustain a claim for negligent misrepresentation. Id. The same result is warranted here. As discussed in Section A, supra, Plaintiffs have not alleged and cannot prove claims for past or current actual damages stemming from Defendants’ alleged negligent misrepresentation. Because this element is crucial to their claim, Plaintiffs’ claim for negligent misrepresentation must fail. C. Plaintiffs’ products liability/strict liability claim fails as a matter of law. Plaintiffs’ strict products liability claim fails as a matter of law because Defendants were providing a medical service, not selling a commodity. Georgia’s blood shield statute, O.C.G.A. § 51-1-28, protects such providers from lawsuits based on strict liability: The injection, transfusion, or other transfer of human whole blood, blood plasma, blood products, or blood derivatives and the transplanting or other transfer of any tissue, bones, or organs into or onto the human body shall not be considered a sale of any commodity, goods, property, or product subject to sale or barter but, instead, shall be considered as the rendition of medical services. No implied warranties of any kind or description shall be applicable thereto and no person, firm, or corporation participating in such services shall be liable for damages unless negligence is proven. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 21 of 33 4825-4325-6628.1 22 Semen is considered a human tissue. See Donovan v. Idant Labs., 625 F. Supp. 2d 256, 271 (E.D. Pa. 2009) (finding that sperm bank would not be subject to strict liability under Pennsylvania’s blood shield statute, which included “tissue” among its protections, but would be under New York’s statute which was strictly limited to “blood”). Georgia courts have expressly held that its “blood shield” statute applies not just to hospitals, but to commercial laboratories and other commercial providers. See, e.g., Jones v. Miles Laboratories, Inc., 705 F. Supp. 561 (N.D. Ga. 1987) (applying statute to a commercial laboratory); McAllister v. American Nat'l Red Cross, 240 Ga. 246 (1977) (applying statute to American National Red Cross). Under Georgia’s broad Blood Shield statute, Defendants’ provision of semen was the type of protected medical activity that is not subject to strict liability. Plaintiffs’ strict products liability claim should be dismissed. D. Plaintiffs’ products liability/negligence claim fails as a matter of law. In products liability, as with any negligence claim, a plaintiff must establish a duty, a breach of that duty, causation, and damages. Here, Plaintiffs fail to establish the very first element: duty. Plaintiffs make no allegations in their Complaint that Defendants had a duty to investigate or inspect its product above or beyond the tests it actually performed. According to the Complaint, Defendants warranted that it would “generat[e] a lot of medical, psychological, genetic and social information about Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 22 of 33 4825-4325-6628.1 23 donors,” that it was validated by state and national government agencies, that donors undergo a comprehensive physical exam, and that donors complete a professional psychological evaluation.” Complaint at ¶ 18. Plaintiffs do not allege that these tests or reviews were not completed, and do not allege that Defendants were required to do more than this. Therefore, inasmuch as Defendants owed a duty to Plaintiffs to perform its promised testing, Plaintiffs have not alleged that Defendant failed to perform these tests. Moreover, inasmuch as Plaintiffs believe Defendants owed an additional duty, Plaintiffs have not sufficiently alleged what this duty was or why it attached. Further, Plaintiffs claim that “defendants, and each of them, knew that the product was of such a nature that if it was not properly tested, inspected, labeled, distributed, reviewed, evaluated, marketed, promoted, recommended, it was likely to injure users.” Complaint at ¶ 54. (emphasis added). However, as discussed above, Plaintiffs have not alleged – much less demonstrated – a cognizable injury under Georgia law. Their claims for injury are against public policy (wrongful life) and/or without direct proximate relationship to the alleged negligence at issue (emotional distress as prohibited by the impact rule), and/or too speculative to be recognized under Georgia law. See, Boyd, 191 Ga. App. at 381. Plaintiffs’ claim for products liability should be dismissed. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 23 of 33 4825-4325-6628.1 24 E. Plaintiffs’ breach of express warranty claim fails as a matter of law. Where a seller conveys to a buyer what it reasonably believes to be true about a product, there is no breach of warranty, even where the product is later discovered not to have met the buyer’s description. See e.g. Charles Evans Nissan, Inc. v. Trussell Ford-Mazda, Inc., 200 Ga. App. 432 (1991) (defendant did not breach any express warranty concerning the actual mileage of an automobile where, at the time it made a statement regarding an odometer reading, it had no knowledge or any reason to believe that the true mileage differed from the mileage shown on the odometer); Masinter v. Salem Rd. Assocs.,L.L.C, 240 Ga. App. 522, 522 (1999) (landlord seller did not breach any express warranty when he assured buyer all tenants complied with the law, and it turned out a tenant was illegally selling alcohol, because seller had no reason to believe tenant was not following laws). Further, it is a fundamental element of a breach of warranty claim that a buyer suffer damages. Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 618 S.E.2d 87 (2005) (directed verdict for seller where the buyer offered no probative evidence of damages). As already discussed in several sections, Plaintiffs failed to assert cognizable damages from Defendants’ alleged breach of warranty. This claim should be dismissed. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 24 of 33 4825-4325-6628.1 25 F. Plaintiffs’ breach of implied warranty claim fails as a matter of law. Similarly to the arguments made in Section C, supra, O.C.G.A. § 11-2-316 (5) makes explicit that Defendants are providing medical services, not selling commodities, and therefore the implied warranty of merchantability does not apply to them. The language of O.C.G.A. § 11-2-316 directly and purposefully tracks O.C.G.A. § 51-1-28’s blood shield statute. As such, Defendants cannot be liable for a breach of implied warranty which caused no damage and this claim must be dismissed. G. Plaintiffs’ battery claim fails as a matter of law. Plaintiffs claim that when Plaintiff Jane Doe 1 was inseminated “with the semen of a person to whom she would not have consented if she knew the truth about him,” it constituted a nonconsensual contact and, therefore, was a battery. Complaint at ¶¶61- 63. Thus, Plaintiffs claim that the physical act of insemination with Donor #BMG 9623’s sperm was a battery. However, first, Plaintiffs do not allege that Xytex or its employees physically inseminated Plaintiff Jane Doe 1. Xytex is a provider of human tissue services, not an OB-GYN, and does not perform the physical insemination procedure. Second, as defined by Georgia law, A person commits the offense of simple battery when he or she either: Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 25 of 33 4825-4325-6628.1 26 (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another. O.C.G.A. § 16-5-23 (2015). Plaintiffs do not allege facts sufficient to find that Defendant Xytex or its employees made any physical contact with Plaintiffs, much less that such contact was “intentionally…insulting or provoking.” Plaintiffs do not allege facts supporting an “intention” to harm at all. Plaintiffs, at most, allege that the Donor of the semen provided by Xytex was somehow different than they thought he would be, and at worst that this was due to some negligence by Xytex and its employees. This allegation does not rise to the level of an intentional, physical tort. Moreover, even taking Plaintiffs’ allegation that they would not have consented to Donor #BMG 9623’s sperm had they known certain information about it, the genetic makeup and background of the sperm donor is irrelevant to the manner in which she was physically “touched” by a third party. Plaintiff Jane Doe 1 consented to the insemination procedure itself, which is the touching that was performed, and has alleged no facts that indicate that the genetic makeup of the sperm changes the physical insemination procedure in any manner. Plaintiffs’ battery claim should be dismissed. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 26 of 33 4825-4325-6628.1 27 H. Plaintiffs’ unfair business practices claim fails as a matter of law. Like a claim for common-law fraud, a claim under the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390, et seq., requires a showing that a defendant committed a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780 (2012). As discussed in Section A, Fraud, and Section B, Negligent Misrepresentation, Plaintiffs have not alleged facts sufficient to establish that Xytex or its employees “committed a volitional act with culpable knowledge.” A claim for unfair business practices requires the same level of scienter as claims for fraud. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780 (2012). Plaintiffs do not assert facts sufficient to conclude that Defendants willfully or intentionally mislead the Plaintiffs. Because an unfair business act claim tracks Georgia’s common law prohibition on fraud, Plaintiffs’ claim fails for the same reasons their fraud claim fails. Failing to allege scienter, like fraud, is fatal and this claim fails. I. Plaintiff’s claims for specific performance fail as a matter of law. Plaintiffs argue that there was an enforceable contract between the anonymous Plaintiffs and Defendant Xytex that requires Xytex to “disseminate significant new Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 27 of 33 4825-4325-6628.1 28 information.” Complaint ¶72. However, Plaintiffs’ other allegations found in the Complaint clearly demonstrate why relief cannot be granted as to this claim. Primarily, in paragraph 18 of the Complaint, Plaintiffs allege that the contract between Plaintiffs and Xytex requires Xytex to disseminate information “deemed medically significant by the Medial Director, [and only then is] a notice sent.” Complaint ¶18(l). First, Plaintiffs fail to allege facts sufficient to find any contract was formed. Moreover, Plaintiffs fail to allege that the Medical Director, Todd Spradlin, M.D., deemed any information to be significant. Indeed Plaintiffs plead the exact opposite, stating Dr. Spradlin found plaintiffs’ claims “unsubstantiated” and had “no information to confirm” any of plaintiffs’ allegations. Complaint ¶38. Therefore, even assuming there was a contract, the Plaintiffs’ Complaint shows that the condition precedent to dissemination never occurred, therefore requiring dismissal of this claim. Georgia Life Ins. Co. v. King, 120 Ga. App. 682 (1969); Reese v. Fidelity Mut. Life Assn., 111 Ga. 482 (1900); Southwestern Life Ins. Co. v. Middle Ga. Neurological Specialists, 262 Ga. 273 (1992). Lastly, Plaintiffs want to be notified of purported information, even though the filing of the lawsuit proves they are already aware of the very information for which they are suing to be notified. Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 28 of 33 4825-4325-6628.1 29 J. Plaintiff’s claims for false advertising fail as a matter of law. This claim is governed by Georgia’s False Advertising Act found in O.C.G.A. §10-1-460 et seq. Like a claim for common-law fraud and unfair business practices, a claim under the False Advertising Act, requires a showing that a defendant committed a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. O.C.G.A. §§10-1-420, 10-1-421, and 10-1-426; McGregor v. Columbia Nat’l Ins. Co., 298 Ga. App. 491 (2009). As discussed in Section A, Fraud, Section B, Negligent Misrepresentation, and Section I, unfair business practices, Plaintiffs have not alleged facts sufficient to establish that Xytex or its employees “committed a volitional act with culpable knowledge.” Plaintiffs do not assert facts sufficient to conclude that Defendants willfully or intentionally misled the Plaintiffs. Additionally, there must be some sort of injury accompanying this claim. O.C.G.A. §10-1-420; Friedlander v. Hms-Pep Prods., 226 Ga. App. 123 (1997). No such injury to the children have been alleged and, therefore, this claim must fail. McGregor, 298 Ga. App. at 492. CONCLUSION Plaintiffs’ claims are barred by the applicable statutes of limitations, by Georgia’s broad public policy prohibition on “wrongful life” claims, and individually Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 29 of 33 4825-4325-6628.1 30 by Plaintiffs’ failure and inability to plead the elements of each of their claims, as discussed above. For each of these reasons individually, Plaintiffs’ Complaint should be dismissed. In the alternative, the individual claims should be dismissed as shown above. This 12th day of July, 2016. /s/ Thomas E. Lavender, III________ Thomas E. Lavender III Georgia Bar No. 439389 Alison L. Currie Georgia Bar No. 380782 Andrew J. King Georgia Bar No.: 926908 Attorneys for Defendants Xytex, Spradlin, and Hartley Lewis, Brisbois, Bisgaard & Smith, LLP 1180 Peachtree Street Suite 2900 Atlanta, Georgia 30309 (404) 348-8585 (404) 467-8845 (fax) Ted.Lavender@lewisbrisbois.com Alison.Currie@lewisbrisbois.com Andrew.Currie@lewisbrisbois.com Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 30 of 33 4825-4325-6628.1 31 CERTIFICATE OF COMPLIANCE I certify that the document to which this certificate is attached has been prepared with one of the font and point selections approved by the Court in Local Rule 5.1B for documents prepared by computer. /s/ Thomas E. Lavender, III_____ Thomas E. Lavender III Georgia Bar No. 439389 Attorney for Defendant Xytex, Spradlin, and Hartley Lewis, Brisbois, Bisgaard & Smith, LLP 1180 Peachtree Street Suite 2900 Atlanta, Georgia 30309 Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 31 of 33 4825-4325-6628.1 32 CERTIFICATE OF SERVICE This will certify that the undersigned has this day served a true and correct copy of the foregoing DEFENDANTS XYTEX CORPORATION, XYTEX CRYO INTERNATIONAL, LTD, J. TODD SPRADLIN, AND MARY HARTLEY’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, PARTIAL MOTION TO DISMISS, upon all counsel of record via the Court’s CM/ECF electronic filing system and via electronic mail addressed as follows: W. Lewis Garrison, Jr. Taylor C. Bartlett HENINGER GARRISON DAVIS, LLC 2224 First Avenue North Birmingham, AL 35203 Attorneys for Plaintiff Nancy Hersh Kate Hersh-Boyle Brendan Gannon HERSH & HERSH 601 Van Ness Avenue 2080 Opera Plaza San Francisco, CA 94102- 6388 Attorneys for Plaintiff James F. McDonough, III HENINGER GARRISON DAVIS, LLC 3621 Vinings Slope, Suite 4320 Atlanta, GA 30339 Attorney for Plaintiff This 12th day of July, 2016. /s/ Thomas E. Lavender, III_______ Thomas E. Lavender III Georgia Bar No. 439389 Attorney for Defendant Xytex, Spradlin, and Hartley Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 32 of 33 4825-4325-6628.1 33 Lewis, Brisbois, Bisgaard & Smith, LLP 1180 Peachtree Street Suite 2900 Atlanta, Georgia 30309 Case 1:16-cv-01453-TWT Document 12 Filed 07/12/16 Page 33 of 33 4845-6283-5496.1 EXHIBIT A Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 1 of 15 IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA ANGELA A COLLINS and * MARGARET ELIZABETH HANSON, * Plaintiffs * * vs. -)(- * XYTEX CORPORATION, a Georgia * Corporation; XYfEX CRYO * INTERNATIONAL LTD, a Georgia * Corporation; JAMES CHRISTIAN * AGGELES a/k/a CHRIS AGGELES; * MARY HARTLEY; DOES 1-20 inclusive; * Defendants * CIVIL ACTION 201SCV2S9033 JUDGE MCBURNEY FINAL ORDER GRANTING DEFENDANTS' MOTION TO DISMISS Plaintiffs Angela Collins and Margaret Hanson are the parents of AC.l AC. was conceived on 19 July 2007 when sperm purchased from Xytex Corporation- and procured from donor BGM 9623 was introduced into Angela Collins by intrauterine insemination. Upon unexpectedlya learning the identity of BGM 9623 in June 2014, Plaintiffs began a search for information about him and discovered that he was a college dropout with a felony conviction and diagnosed schizophrenia. This profile was in marked contrast to the information Xytex had provided before Plaintiffs made their purchase: a healthy male with an IQ of 160, a bachelor's of science in neuroscience, a master's degree in artificial 1 All "facts" recited herein are drawn from Plaintiffs' amended complaint, unless otherwise noted. Reliance on Plaintiffs' allegations for purposes of deciding Defendants' motion to dismiss is proper: "In making this analysis, we view all of the plaintiffs well-pleaded material allegations as true, and view all denials by the defendant as false, noting that we are under no obligation to adopt a party's legal conclusions based on these facts." Love v. Morehouse College, Inc., 287 Ga. App. 743, 743-44 (2007) (citations omitted). 2 Xytex Corporation is a subsidiary of Xytex Cryo International LTD. Xytex Cryo International LTD provided sperm through Xytex Corporation. Mary Hartley is an employee of Xytex Corporation. The two Xytex entities and Mary Hartley have jointly moved to dismiss the complaint in this case and are referred to throughout this Order collectively as Xytex. 3 Due to a breach of confidentiality, the identity of BGM 9623 was released by Xytex in June 2014. BGM 9623 is Defendant James Christian Aggeles. Fulton County Superior Court ***EFILED***RM Date: 10/20/2015 3:56:45 PM Cathelene Robinson, Clerk Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 2 of 15 intelligence, a Ph.D. in neuroscience engineering on the way, and no criminal history. As a result of their shocking discovery Plaintiffs brought this action against X ytex and Aggeles (and other parties to be named) alleging fraud, negligent misrepresentation, strict liability in products liability, negligence in products liability, breach of express warranty, breach of an implied warranty, battery, negligence, unfair business practices and third party fraud. The named Defendants timely answered and moved to dismiss+ The Xytex Defendants' arguments (and Plaintiffs' responses) are considered below. Wrongful Birth The primary argument Xytex advances is that Plaintiffs' ten counts are all derivative of a single underlying tort claim that has no legal basis in Georgia: wrongful birth. That is, Xytex casts Plaintiffs' claims as being variations on the single theme that, if Plaintiffs had known the true characteristics of BGM 9623, A.C. would not have been born. Plaintiffs strongly disagree: they assert that, had they known the true characteristics of BGM 9623 when they should have -- that is, at the time Xytex rendered its services -- A.C. would not have been conceived» Indeed, Plaintiffs make clear -- and Xytex does not challenge -- that if Plaintiffs had learned post-conception but pre-birth what they now know about BGM 9623 they would not have aborted the pregnancy. Plaintiffs are thus in effect arguing that it is a wrongful conception that they are challenging. Because the science that brought us the wonders (and attendant moral and legal challenges) of artificial insemination, in vitro fertilization, and embryo transplantation has developed much faster than the laws we rely on to regulate such procedures (and the business models that have sprung up around them), discussion of the issues raised by 4 While the Court had these motions to dismiss under review Defendant Aggeles withdrew his motion to dismiss. 5 "Defendants sold sperm of the donor which Plaintiff would have rejected and refused to have introduced into her body if she had known the truth about the donor .... " (Plaintiffs' 1 June 2015 Brief at 22). Page 2 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 3 of 15 this litigation is complicated and careful use of terminology is critical. Under current law in Georgia, an action for "wrongful conception" -- which is literally what Plaintiffs are pursuing -- arises when a sterilization procedure or abortion goes wrong and a live birth unintentionally results.s Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 442 (1984); 15A Ga. Jur. Personal Injury and Torts § 38:6. While wrongful conception actions, thusly defined, may be maintained in Georgia, this case does not present such a claim." An action for "wrongful birth" arises when parents make a claim that, had they been fully informed of the fetus's condition, the birth would not have occurred. Atlanta Obstetrics & Gynecology Grp. v. Abelson, 260 Ga. 711 (1990). Georgia law does not recognize wrongful birth claims.f Id. Plaintiffs insist their suit is not for wrongful birth but rather, as enumerated above, for products liability, fraud, misrepresentation, negligence, breach of warranty, etc. Superficially, Plaintiffs are correct, but simple nomenclature cannot transform one type of tort into another. Others have tried this approach in this context -- and failed. [T]he appellees' failure to inform resulted in the appellants' being deprived of the opportunity to make an informed decision concerning the course of Mrs. Gale's pregnancy which would have included the option of a therapeutic abortion. Though couched in terms of breach of contract, breach of confidential relationship, and negligence, the cause of action set forth in their complaint is, in reality, one for wrongful birth ... and wrongful birth claims explicitly [are] not ... recognized in Georgia. Gale v. Obstetrics & Gynecology of Atlanta, P.C., 213 Ga. App. 614, 615 (1994) (punctuation omitted, emphasis supplied). The Court finds the same here: despite their 6 These actions are also known as "wrongful pregnancies." 7 There is, at present, no recognized civil action for the type of wrongful conception Plaintiffs complain of: negligence on the part of defendants that resulted in a desired conception with undesirable results. 8 There is also a correlative "wrongful life" cause of action that is "brought on behalf of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant to its parents, the child would never have been born." Abelson, 260 Ga. at 713. Few States allow such claims; Georgia does not. Id.; but cf Turpin v. Sortini, 31 Cal. 3d 220 (1982). Page 3 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 4 of 15 alternative characterizations of Defendants' allegedly tortious actions, Plaintiffs at base are challenging the purported negligence that resulted in a wanted conception with unwanted results. This claim most closely (though by no means perfectly) fits a claim for wrongful birth -- and so is not allowed.v The reason for this is both simple and profound: courts are "unwilling to say that life, even life with severe impairments, may ever amount to a legal injury." Abelson, 260 Ga. at 715, quoting Azzolino v. Dingfelder, 315 N.C. 103, 111 (1985). "Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians." Becker v. Schwartz, 46 N.Y.2d 401,411 (1978). Plaintiffs additionally argue that their case should not be considered a suit for wrongful birth because abortion was never an option. A similar claim was advanced in Vance v. T.R.C,-, 229 Ga. App. 608 (1997), and rejected.> Baby Boy C.'s efforts to distinguish his claim from a "wrongful life" action fail. He claims that he is happy to be alive but simply unhappy with his societally-imposed illegitimate status. The act that gave him life concomitantly made him illegitimate. As conceded in the complaint, had Vance alerted authorities and had T.R.C. been removed from the Anderson home before Baby Boy C.'s conception, he would not have been born, illegitimate or otherwise. The jury would be required to compare his life as an illegitimate child to nonexistence. An action brought ... on the 9 The Court disagrees with Plaintiffs that the fact they are suing the service provider who provided the genetic material rather than the service provider who provided the medical care somehow removes their claim from the ambit of wrongful birth. The tort is defined not by the identity of the tortfeasor but by the nature of the duty, breach, and harm. io T.RC. was a young teen in foster care who sued her treating physician because he failed to report that he had diagnosed T.RC. with genital herpes. T.RC. argued on behalf of herself that if the doctor had reported the suspected abuse she would not have later become pregnant by her abuser and given birth to Baby Boy C. Baby Boy C. in turn sought recompense because he was illegitimate, conceived through the rape of a child (T.R.C.). The Court of Appeals held: There is no cause of action based on parentage or circumstances of conception. [A]n action brought on behalf of an impaired child alleging that, but for negligent treatment, the child would never have been born, is an action for "wrongful life" and does not state a claim. Vance, 229 Ga. App. at 614 (emphasis supplied). Page 4 Of14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 5 of 15 theory that ... he would have been better not born has found almost no support in the law. Id. at 614 (punctuation and citations omitted). The issue here is not whether Plaintiffs would have terminated the pregnancy had they been informed of the true identity of BGM 9623 -- there appears to be no dispute that they would not have. Rather, it is the requirement that Plaintiffs' claims pose on the fact-finder -- to determine the comparative value of life with disabilities versus no life at all (a calculation that Georgia law does not allow) -- that places this case outside the scope of Georgia's jurisprudence. Plaintiffs rightly highlight the public policy issues raised by this litigation and Xytex's argument that no claims should stand. Science has once again -- as it always does -- outstripped the law. Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider involved in pre-conception services. After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex. Perhaps the time has arrived for a solution like that discussed by Justice Benham in his dissent in Etkind v. Suarez, 271 Ga. 352 (1999): I have since come to agree with the damages approach taken by the State of Missouri in Shelton v. St. Anthony's Medical Center, 781 S.W.2d 48 (Mo. 1989). There, the Supreme Court of Missouri held that while there could be no claim based on an allegation that but for the negligent conduct of another a child would have been aborted, parents who allege negligence in that a physician failed to inform them sufficiently to enable them to make a judgment and give informed consent with respect to treatment could state a claim for damages such as "loss of consortium, the right to lead a normal life; ... emotional distress, anxiety and depression." This State should likewise recognize the viability of such a cause of action. Page 5 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 6 of 15 Etkind, 271 Ga. at 359-60 (1999) (Benham, J., dissenting). Allowing a claim that, but for the alleged negligence of Xytex, A.C. would not have been conceived seems appropriate under that reasoning -- if limited to those types of damages. 11 This Court, however, has "no authority to overrule or modify a decision of the Supreme Court of Georgia as the decisions of the Supreme Court of Georgia shall bind all other courts as precedents." Gale, 213 Ga. App. at 615 (punctuation and citations omitted). The direction from the higher courts and the Legislature is clear -- perhaps a half-step behind today's science, but clear -- and until it is changed, it controls the outcome of this case. Defendants' motion to dismiss is GRANTED as to all counts. Alternative Ground: Statute of Limitations/Timing of Action-s Xytex contends that Plaintiffs' claims are barred by the various applicable statutes of limitations, given that A.C. was conceived on 19 July 2007 and Plaintiffs' dealings with Xytex preceded that by nearly a year. Plaintiffs respond that they timely filed suit after discovering in June 2014 the true identity of BGM 9623. Two questions present themselves. First, has a claim even accrued yet and second, if one has, did the statute begin to run when Xytex and Plaintiffs consummated their transaction or only when Plaintiffs became aware of the alleged torts (i.e., at the time of the inadvertent disclosure)? Addressing the first question, the Court notes that Plaintiffs do not allege a present injury but rather an apprehension of a future injury to A.C. -- that he may in 11 See Johnson v. Superior Court, 101 Cal. App. 4th 869, 885 (2002); but see Paretta v. Med. Offices for Human Reprod., 760 N.Y.S-.2d 639, 645-46 (Sup. Ct. 2003) ("A conclusion ... permitting infants to recover against doctors for wrongs allegedly committed during in-vitro fertilization, would give children conceived with the help of modern medical technology more rights and expectations than children conceived without medical assistance. The law does not recognize such a distinction and neither will this Court.") 12 Because this case presents novel (or at least really, really complicated) issues and may well be returned to this Court for further proceedings, the Court is addressing Defendants' other arguments for dismissal. Page 6 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 7 of 15 time become schizophrenic. That is not sufficient to support an action for damages. Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 40 (1989) (fear of contracting disease in future not compensable without showing of reasonable medical certainty that such consequence will occur), overruled on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (1994); Parker v. Wellman, 230 F. App'x 878, 882 (nth Cir. 2007) (applying Boyd). This same principle applies to Plaintiffs' claims for economic damages: "until actual economic losses [are] incurred with certainty, and not merely as a matter of speculation, [Plaintiffs'] claim [does] not accrue, and the limitation period [does] not commence." Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426 (1997). Similarly, Plaintiffs' mental anguish over the possibility of future harm to A.C. and loss to Plaintiffs does not create a cause of action. See Russaw v. Martin, 221 Ga. App. 683, 684 (1996). All of this is consistent with the principle that a wrongdoer is "not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience." Dry Storage Corp. v. Piscopo, 249 Ga. App. 898, 900 (2001) (quotations and citation omitted). All claims premised on such speculative consequences are DISMISSED. For any injuries that have accrued, the Court finds that they are not time-barred. Plaintiffs acted timely in bringing this suit upon discovering the alleged malfeasance by Defendants, i.e., Aggeles' false statements and Xytex's failure to discern Aggeles' true identity. That Xytex and Plaintiffs consummated their transaction and A.C. was conceived in 2007 is of no moment, as the identity of 13GM 9623 was confidential and there is no evidence that Plaintiffs failed to exercise reasonable diligence by respecting Page 7of14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 8 of 15 that confidentiality (or that they could have pierced the veil of confidentiality if they had tried). A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct. Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 25 (2006). Given that Plaintiffs had no reason to pursue the truth about Aggeles, "discovery" in this case occurred at the time of the inadvertent disclosure. Defendants' motion is DENIED as to those claims for which the injury has already accrued. Alternative Ground: Fraud Claim Xytex urges that Plaintiffs' fraud count should be dismissed for failure to plead either (a) Xytex's knowledge of the falsity of Aggeles' biographical information or (b) any intention to induce Plaintiffs to rely on the information. Generally the remedy for such a motion is not to dismiss but to require a more definite statement. Bush v. Bank of New York Mellon, 313 Ga. App. 84, 89-90 (2011). Defendants again press the point, however, that Plaintiffs have not alleged any actual damages, only potential future damages. Plaintiffs assert they have incurred and will continue to incur additional expenses due to monitoring and evaluating AC. for signs of schizophrenia, though Plaintiffs do not suggest that AC. is in any way symptomatic at present. This claim is controlled by the principles discussed supra drawn from Boyd. Plaintiffs' inability to plead and prove actual, present damages is an alternative basis on which to grant the motion to dismiss Plaintiffs' claim of fraud. Defendants' motion to dismiss is GRANTED on this ground as well. Page 8 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 9 of 15 Alternative Ground: Negligent Misrepresentation Negligent misrepresentation is in many ways a lesser included claim of fraud, simply removing the requirement that Plaintiffs prove Defendants' knowledge of the falsity and intention to deceive.u .As with a claim of fraud, Plaintiffs must suffer actual economic loss to state a claim for negligent misrepresentation. See generally City of Cairo v. Hightower Consulting Engineers, Inc., 278 Ga. App. 721, 727 (2006); Newitt v. First Union Nat. Bank, 270 Ga. App. 538, 546 (2004). If Plaintiffs' damages are too speculative to support a claim for fraud they are equally too remote to support a claim of negligent misrepresentation. Defendants' motion to dismiss is also GRANTED on this ground. Alternative Ground: "Strict Liability" Products Liability Xytex argues that Plaintiffs' products liability claim asserting strict liability must fail because Xytex did not sell Plaintiffs a commodity, good, or product, but instead provided a medical service such that they are protected from strict liability by the provisions of O.C.G.A. § 51-1-28, Georgia's "blood shield" statute. See McAllister v. Am. Nat. Red Cross, 240 Ga. 246, 248 (1977); Jones v. Miles Labs., Inc., 705 F. Supp. 561, 562-63 (N.D. Ga. 1987). Whether semen and/or sperm should be covered by the protections of O.C.G.A. § 51-1-28 appears to be a question of first impression in Georgia. The statute provides: The injection, transfusion, or other transfer of human whole blood, blood plasma, blood products, or blood derivatives and the transplanting or other transfer of any tissue, bones, or organs into or onto the human body shall not be considered a sale of any commodity, goods, property, or product subject to sale or barter but, instead, shall be considered as the 13 "[N]egligent misrepresentation requires proof of (1) the defendant's negligent supply of false information to foreseeable persons, known or unknown; (2) such persons' reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance." Greenwald v. Odom, 314 Ga. App. 46, 52 (2012). Page 9 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 10 of 15 rendition of medical services. No implied warranties of any kind or description shall be applicable thereto and no person, firm, or corporation participating in such services shall be liable for damages unless negligence IS proven. O.C.G.A. § 51-1-28(a). The statute on its face explicitly exempts blood and "blood products" from strict liability -- but not any other bodily fluids. Xytex seeks refuge in the statute's term "tissue," arguing that that term should be read to encompass semen. For authority for that proposition Xytex offers up only a Federal District Court decision from Pennsylvania that asserts ipse dixit that "[sjemen is not a blood derivative; it is considered a human tissue." Donovan v. Idant Labs., 625 F.Supp.2d 256, 271 (E.D. Pa. 2009). Beyond that mere say-so, Donovan provides no statutory, medical, or biological underpinning to support such a claim. This Court respectfully disagrees with the court in Donovan. Tissue is generally defined as "an aggregate of cells usually of a particular kind together with their intercellular substance that form one of the structural materials of a plant or an animal." Merriam-Webster On-line Dictionanp» Tissue includes portions of the body such as skin, cartilage, and tendons -- masses of cells that, through their combination, form a more complex whole. Sperm, on the other hand, are individual cells that combine, if ever, with only one other cell: a human egg. And semen is medically defined as a "secretion," not a tissue. IS It is not a "structural material" like skin and bone out of which a human is built. The Court finds that Georgia's blood shield statute offers no 14 It is defined in Georgia's Uniform Anatomical Gift Act as "a portion of the human body other than an organ or an eye." O.C.G.A. § 44-5-141(30). 15 http://www .online-medical-dictionary.org/ definitions-sf semen.html Page 10 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 11 of 15 safe harbor to Xytex as an alternative basis to dismiss Plaintiffs' strict liability product liability claim.> Defendants' motion is DENIED on this ground. Alternative Ground: Product Liability Negligence Plaintiffs adequately pled claims of Defendants' potential negligence under products liability. There is no alternative basis to grant a motion to dismiss Plaintiffs' product liability negligence claims. Alternative Ground: Breach of Express Warranty In moving the Court to dismiss Plaintiffs' breach of express warranty claim, Xytex asks the Court to theorize what the evidence may show and then to act on this theory. In each case cited in Defendants' motion, the dispositive issue revolved around a party's knowledge of certain facts at the time the warranty was made. Evidence of this knowledge would ordinarily be developed during the discovery process and then presented in a motion for summary judgment. Xytex has not yet sufficiently established such knowledge on the part of Plaintiffs to support an alternative basis to dismiss their claim for breach of express warranty. Its motion is DENIED on this ground. Alternative Ground: Breach of Implied Warranty O.C.G.A. §§ 51-1-28 and 11-2-316(5) shelter providers of medical services from breach of an implied warranty in language that tracks the blood shield statute. For the reasons discussed supra concerning Defendants' motion to dismiss Plaintiffs' strict 16 The Court notes that the Legislature has, by separate statute, protected physicians from strict liability in this arena. "Any physician or surgeon who obtains written authorization signed by both the husband and the wife authorizing him or her to perform or administer artificial insemination shall be relieved of civil liability to "the husband and wife or to any child conceived 15y artificial-insemination for the resultor results of said artificial insemination, provided that the written authorization provided for in this Code section shall not relieve any physician or surgeon from any civil liability arising from his or her own negligent administration or performance of artificial insemination." O.C.G.A. § 43-34-37 (emphasis supplied). This Code Section says nothing about the commercial provider of the sperm or semen. Page 11 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 12 of 15 liability product liability claim, those statutory provisions do not provide an alternative basis to dismiss Plaintiffs' claims for breach of an implied warranty. Defendants' motion is DENIED on this ground. Alternative Ground: Battery Battery involves the unauthorized touching of another. Kohler v. Van Peteghem, 330 Ga. App. 230, 234 (2014). There is no allegation that any Defendant ever touched or threatened to touch either Plaintiff in a harmful, insulting or provoking manner. Xytex has set forth an alternative basis to dismiss Plaintiffs' battery claim and the Court GRANTS the motion. Alternative Ground: Negligence Xytex urges that Plaintiffs' simple negligence claim should be dismissed because Plaintiffs' claims actually are for professional malpractice and Plaintiffs failed to file an expert affidavit as required by O.C.G.A. § 9-11-9.1(a). Plaintiffs respond that Xytex does not operate in one of the specified professions set forth in O.C.G.A. § 9-11-9.1(g) and therefore the claim is properly one for simple negligence. Xytex replies that, pursuant to Baskette v Atlanta Ctr.for Reprod. Med., LLC, 285 Ga. App. 876 (2007), the provisions of O.C.G.A. § 9-11-9.1 should apply to them because the claim is against medical employees under the supervision of medical professionals at a medical center. Evidence not yet of record is required to establish the accuracy of this claim. Defendants' motion is DENIED on this ground. Alternative Ground: Fair Business Practices Act of 1975 An FBP A claim has three elements: a violation of the Act, causafion, and injury. Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 139 (2006) (quotations and citations omitted). As with Plaintiffs' claims for fraud and negligent misrepresentation, Page 12 of 14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 13 of 15 actual injury and damages are absent in this case, replaced by a speculative projection that sometime in the future damages may accrue.'? Xytex has established an alternative basis to dismiss Plaintiffs' claim under the Unfair Business Practices Act of 1975 and the motion as to that claim is GRANTED. Alternative Ground: Third Party Fraud Plaintiffs' third party fraud claim also fails for lack of damages as discussed in detail supra re: Plaintiffs' fraud claim. This failure establishes an alternative basis upon which to dismiss Plaintiffs' claims for third party fraud, and the Court therefore GRANTS Defendants' motion. Conclusion Plaintiffs' complaint sets forth ten claims, each with a genesis rooted in the concept of wrongful birth, a claim not recognized under Georgia law. The Xytex Defendants' motion to dismiss Plaintiffs' complaint and amended complaint is therefore GRANTED. Because the same legal issues infect Plaintiffs' claims brought against Defendant Aggeles -- who has withdrawn his motion to dismiss -- the claims against Aggeles are dismissed as well.w Additionally, several alternative bases for dismissal have been considered and ruled upon above. 17 "This court ... has consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of 'actual injury suffered.' [cits.]" Regency Nissan, Inc. u. Taylor, 194 Ga. App. 645, 649 (1990). 18 Perry Golf Course Deu., LLC u. Hous. Auth. of City of Atlanta, 294 Ga. App. 387, 392-93 (2008) (trial court has authority to dismiss claims sua sponte if it can determine from pleadings that claims cannot succeed as matter oflaw). Page 13 Of14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 14 of 15 The Court having GRANTED Defendant Xytex's motion to dismiss and applied that ruling to Plaintiffs' identical claims against Defendant Aggeles, there are no issues remaining for adjudication. The Clerk is directed to close the file. SO ORDERED this 20th day of October 2015. Robert C. I. McBurn ,Judge Fulton County Superior Court Atlanta Judicial Circuit Copies to: Lewis Garrison (Lewis@hgdlawfirm.com) Ted Lavender (Ted.Lavender@lewisbrisbois.com) James Johnson (jjohnson@knightjohnson.com) Nancy Hersh (nhersh@hershlaw.com) Page 14 Of14 Case 1:16-cv-01453-TWT Document 12-1 Filed 07/12/16 Page 15 of 15 4845-6283-5496.1 EXHIBIT B Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 1 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 2 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 3 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 4 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 5 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 6 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 7 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 8 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 9 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 10 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 11 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 12 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 13 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 14 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 15 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 16 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 17 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 18 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 19 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 20 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 21 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 22 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 23 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 24 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 25 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 26 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 27 of 28 Case 1:16-cv-01453-TWT Document 12-2 Filed 07/12/16 Page 28 of 28
