On April 26, 2019 a Jury Demand was filed involving a dispute between A., A., A., D., Ahlheim, Kimberly, A., S., B., B., C., A., C., B., C., C., Christ, Alexandra, C., M., D., B., D., D., Doe, Jane, E., E., F., B., F., C., F., F., F., J., Flaherty, Daniel, F., S., G., F., G., G., G., K., H., D., H., G., H., H., H., T., I., I., J., A., J., I., J., J., J., Q., J., R., K., K., L., A., L., B., L., C., L., E., Levin, Rachel, L., H. A., L., I., L., K., L., L., L., T., Luo, Michelle, M., A., M., Amanda, M., K., M., L., M., M., M., N., M., R., Nail, Katharine, Nail, Robert, N., N., N., S., O., J., O., N., O., S., O., X., P., J., Plaintiffs, P., M., P., O., P., R., P., S., Q., P., Q., Q., R., E., Rivera, Sylvia, R., J., Rosenbaum, Amy, R., Q., R., R., S., B., S., Lucas, S., S., T., G., T., M., T., S., T., T., V., U., Wallace, Paul, Walsh, Kelly, W., K., Wong, Lawrence, Wong, Sharlene, W., Q., Y., N., Y., Y., Z., A., Z., Z., and Chart Inc., Chart, Inc., Chart Industries, Inc., A Corporation, Chenette, Philip, Conaghan, Joseph, Does 1-100, Inclusive, Does One Through One Hundred, Does One Through One Hundred, Inclusive, Extron Co., Extron Company, A Corporation, Givens, Carolyn, Herbert, Dr. Carl M., Li, Liyun, Pacific Fertility Center, Pacific Fertility Center, An Unincorporated Entity, Pacific Mso, Llc, Praxair Distribution, Inc., Praxair, Inc., Prelude Fertility, Inc., A Corporation, Ryan, Isabelle, San Francisco Fertility Centers D B A Pacific, Schriock, Eldon, for COORDINATION in the District Court of San Francisco County.
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1 Elizabeth Cabraser (Cal. Bar No. 83151) Lexi J. Hazam (Cal. Bar No. 224457) 2 Sarah R. London (Cal. Bar No. 267083) ELECTRONICALLY Tiseme Zegeye (Cal. Bar No. 319927) 3 LIEFF CABRASER HEIMANN & BERNSTEIN F I L E D Superior Court of California, 4 275 Battery Street, 29th Fl. County of San Francisco San Francisco, CA 94111 10/22/2020 5 Telephone: (415) 956-1000 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 6 Attorneys for Plaintiff P.Q. 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN FRANCISCO 11 COORDINATION PROCEEDING Case No. CJC-19-005021 SPECIAL TITLE (RULE 3.550) 12 [Individual Case No. CGC-19-574307] PACIFIC FERTILITY CASES 13 SHORT FORM COMPLAINT FOR P.Q. DAMAGES AND DEMAND FOR JURY 14 TRIAL Plaintiff, 15 Dept: 613 vs. Judge: Hon. Andrew Y.S. Cheng 16 PRELUDE FERTILITY, INC.; 17 PACIFIC MSO, LLC; SAN FRANCISCO 18 FERTILITY CENTERS d/b/a/ PACIFIC FERTILITY CENTER; 19 CHART, INC.; PRAXAIR, INC.; PRAXAIR DISTRIBUTION, INC., and 20 DOES 1-100 inclusive. 21 Defendants. 22 23 24 25 26 27 28 SHORT FORM COMPLAINT AND JURY DEMAND 1 [check only one] 2 Plaintiff(s) ________________________ expressly disavow Plaintiffs’ Master 3 Complaint and Jury Demand filed in A.C. vs. Pacific Fertility Center, et al., Case. No. 18-CGC- 4 565215 in the Superior Court of the State of California, on June 5, 2019, and adopted by all 5 actions coordinated in this JCCP 5021 by the Court’s March 2, 2020 Order. Plaintiff(s)’ 6 Individual Complaint was filed on _________________________, in 7 _________________________ Court, Case No. ________________________, attached herewith 8 as Exhibit A, is Plaintiffs’ operative Complaint. The following paragraphs do not apply to 9 Plaintiffs. 10 Plaintiff(s) P.Q. incorporate(s) by reference Plaintiffs’ Master Complaint and Jury 11 Demand filed in A.C. vs. Pacific Fertility Center, et al., Case. No. 18-CGC-565215 in the 12 Superior Court of the State of California, on June 5, 2019, and adopted by all actions coordinated 13 in this JCCP 5021 by the Court’s March 2, 2020 Order. Plaintiff(s) select and indicate by 14 checking boxes where requested, parties and claims specific to this case. Plaintiff(s) include 15 supporting and additional facts which are alleged below or on an additional sheet attached to this 16 Complaint. Plaintiffs, by and through counsel, allege as follows: 17 I. VENUE 18 1. Venue is proper in this Court in accordance with §395(a) of the California Code 19 of Civil Procedure because the injury occurred in San Francisco County. 20 II. PLAINTIFF(S) 21 2. Plaintiff, P.Q., is a citizen and resident of San Francisco County, California. 22 3. Plaintiff, ________________________________, is a citizen and resident of 23 _____________________. 24 III. DEFENDANTS 25 4. Plaintiff(s) name the following Defendants in this action [check only those that 26 apply]: 27 Pacific Fertility Center 28 Prelude Fertility, Inc. -2- SHORT FORM COMPLAINT AND JURY DEMAND 1 Pacific MSO, LLC 2 Chart, Inc. 3 Praxair Distribution, Inc. 4 Praxair, Inc. 5 Does One through One Hundred 6 5. Plaintiff(s)’ action is: 7 a new case. 8 9 a case previously filed and ordered coordinated into JCCP No. 5021. 10 a case previously filed and pending coordination into JCCP No. 5021. 11 Plaintiff(s)’ add-on petition and supporting documents were filed on 12 ________________ [date]. 13 14 IV. ADDITIONAL PLAINTIFF(S) FACTS 15 5. Reproductive material belonging to Plaintiff(s) was frozen and stored in the 16 cryogenic freezer tank, “Tank 4” at Pacific Fertility Center on March 4, 2018, the date of its 17 failure, as follows: 18 22 (number) eggs 19 (number) embryos 20 6. Plaintiff(s)’ reproductive material in Tank 4 was created: 21 using only Plaintiff(s)’ genetic material. 22 using only donor genetic material. 23 using Plaintiff(s)’ and donor genetic material. 24 7. Plaintiff(s) assert(s) the following additional factual allegations regarding 25 Defendants’ communications, representations, and omissions related to egg or embryo storage at 26 Pacific Fertility Center: 27 Plaintiff entrusted Pacific Fertility Center (“PFC”) with her eggs, based on PFC’s representations and promotional materials stating that they were a state-of-the art facility, 28 that they took great care to preserve and protect the frozen eggs entrusted to them, and that -3- SHORT FORM COMPLAINT AND JURY DEMAND 1 PFC adhered to stringent protocols and standards in their lab. 2 On March 11, 2018, Plaintiff learned for the first time that her eggs were impacted by the failure in Tank 4. During a follow-up call with her doctor, she was told that Pacific Fertility 3 could not know for certain whether any of the eggs were viable until they were thawed. She was told that once the eggs were thawed, she would have to also be prepared to go through 4 with an IVF transfer at that that time, due to the additional risks added by thawing and 5 refreezing. Even if the eggs survived the thaw, however, there may still be additional risks to the eggs caused by the Incident, such as potential chromosomal abnormalities, that could not 6 be detected until later stages of fetal development. According to PFC, these potential additional risks are “uncertain.” Thus, to determine whether her eggs remained viable 7 despite having been exposed to unsafe conditions, she would have to try to get pregnant with those eggs or hire a surrogate to do so, options that pose significant additional risk and cost, 8 considerable emotional, ethical and moral implications, and likely heartache. 9 For Plaintiff, the eggs in Tank 4 were likely the best opportunity to grow her family as she had hoped and planned in the future. At her age, Plaintiff P.Q. understands that the 10 likelihood of success of future retrievals is significantly diminished. Indeed, after the 11 Incident, she underwent two additional rounds with disappointing results; she was unable to create any viable embryos. 12 V. INJURIES 13 8. Plaintiff(s) allege(s) the following injuries as a result of the tank failure on March 4, 14 2018: 15 Plaintiff incorporates all of the injuries and damages, including general and special 16 damages, set forth in the Master Complaint. In addition to the injuries and damages alleged in the Master Complaint, Plaintiff alleges as follows: 17 As a result of Defendants’ conduct, Plaintiff has suffered emotional trauma, including 18 anxiety, hopelessness, fear, depression, devastation, and grief. Plaintiff has been thrust into a state of limbo. She lost the very peace of mind she sought when availing herself of 19 Pacific Fertility’s services, and the time, energy, and cost associated with storing her twenty-two eggs have been lost as well. 20 As a victim of the freezer failure, Plaintiff faces much more daunting odds of having a 21 healthy child from the tissue that was in that tank, and greater uncertainty, less control, and increased pressure over her reproductive options. Plaintiff’s only remaining preserved eggs 22 were contained in the tank, and with them, security in her plans for building a family as she 23 planned. It is difficult to understate the magnitude of her grief and devastation over this Incident. 24 Plaintiff has also suffered economic damages including past and future expenses, including 25 fertility and reproductive expenses and costs, and past and future lost earnings and benefits. As a result of each Defendant’s gross misconduct in the freezer storage process, Plaintiff 26 had to undergo additional rounds of fertility treatments resulting in additional emotional 27 distress, pain, suffering, inconvenience, and economic damages. 28 -4- SHORT FORM COMPLAINT AND JURY DEMAND 1 VI. CLAIMS/COUNTS 2 9. The following claims asserted in the Master Complaint, and the allegations with 3 regard thereto in the Master Complaint, are adopted in this Short Form Complaint by reference 4 [check only those that apply]: 5 Count I - Negligent Failure to Recall; 6 Count II - Strict Products Liability – Failure to Warn; 7 Count III - Strict Products Liability – Manufacturing Defect; 8 Count IV - Strict Products Liability – Design Defect – Consumer Expectation; 9 Count V - Strict Products Liability – Design Defect – Risk-Benefit; 10 Count VI - Negligence and/or Gross Negligence; 11 Count VII - Negligence and/or Gross Negligence; 12 Count VIII - Conversion; 13 Count IX - Bailment; 14 Count X - Premises Liability; 15 Count XI - Violation of the Unfair Competition Law, Cal. Bus. & Prof. Code 16 § 17200 et seq.; 17 Count XII - Violations of the Consumers Legal Remedies Act, Cal. Civ. Code 18 § 1750 et seq.; 19 Count XIII - Fraudulent Concealment; and 20 Count XIV - Negligent Misrepresentation 21 22 10. In addition to the allegations and causes of action set forth in the Master 23 Complaint, Plaintiff(s) allege(s) the following additional facts and/or causes of action: 24 25 26 27 28 -5- SHORT FORM COMPLAINT AND JURY DEMAND 1 2 VII. PROCEDURAL REQUIREMENTS FOR CLRA CLAIMS 3 11. For Plaintiffs pursuing claims under the Consumer Legal Remedies Act 4 (“CLRA”), Cal. Civ. Code § 1750: 5 Pursuant to Cal. Civ. Code § 1782(a), Plaintiff(s) sent letters to Defendant(s) 6 notifying them of their CLRA violations and affording them the opportunity to correct their 7 business practices and rectify the harm they caused. Copies of the CLRA letters are filed 8 herewith. 9 In accordance with Cal. Civ. Code § 1780(d), Plaintiff(s)’ CLRA venue declarations 10 are filed herewith. 11 VIII. PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff(s) pray for relief as set forth in the Plaintiffs’ Master Complaint 13 in A.C. vs. Pacific Fertility Center, et al., Case. No. 18-CGC-565215 in the Superior Court of 14 California for the County of San Francisco. 15 IX. DEMAND FOR JURY TRIAL 16 Plaintiff(s) demand a trial by jury on all issues so triable. 17 18 Date: October 22, 2020 19 ____________________________ Elizabeth Cabraser (Cal. Bar No. 83151) 20 Lexi J. Hazam (Cal Bar No. 224457) 21 Sarah R. London (Cal. Bar No. 267083) Tiseme Zegeye (Cal. Bar No. 319927) 22 LIEFF CABRASER HEIMANN & BERNSTEIN 23 275 Battery Street, Fl. 29 San Francisco, CA 94111 24 Telephone: (415) 956-1000 25 26 Attorneys for Plaintiff P.Q. 27 2050477.1 28 -6- SHORT FORM COMPLAINT AND JURY DEMAND 5 5 5 5 5 5 EXHIBIT 2 1 2 3 4 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF SAN FRANCISCO 8 9 Case No. CJC-19-005021 COORDINATION PROCEEDING 10 SPECIAL TITLE [RULE 3.550] [Individual Case No. CGC-19-574307] 11 PACIFIC FERTILITY CASES, 12 DECLARATION OF TISEME G. P.Q. ZEGEYE IN SUPPORT OF CLRA 13 SECTION 1750 ET SEQ. CAUSE OF Plaintiff, ACTION IN THE MASTER 14 COMPLAINT vs. 15 Dept: 613 PRELUDE FERTILITY, INC.; Judge: Hon. Andrew Y.S. Cheng 16 PACIFIC MSO, LLC; SAN FRANCISCO FERTILITY CENTERS d/b/a/ PACIFIC 17 FERTILITY CENTER; CHART, INC.; PRAXAIR, INC.; 18 PRAXAIR DISTRIBUTION, INC., and DOES 19 1-100 inclusive. 20 Defendants. 21 22 23 I, Tiseme G. Zegeye, declare as follows: 24 1. I am a partner at Lieff Cabraser Heimann & Bernstein, LLP, counsel for Plaintiff 25 P.Q. 26 2. I am an attorney duly admitted to practice before this Court. I have personal 27 knowledge of the matters stated herein and, if called upon, I could and would competently testify 28 thereto. 2052751.1 DECLARATION OF TISEME G. ZEGEYE IN SUPPORT OF CLRA § 1750 ET SEQ. CAUSE OF ACTION IN THE MASTER COMPLAINT FOR DAMAGES 1 3. I submit this declaration in support of the Master Complaint, which is based in part 2 on violations of the Consumers Legal Remedies Act, California Civil Code section 1750 et seq. 3 4. The Master Complaint has been filed in the proper place for trial of this action. 4 Defendants are residents and/or do business in the County of San Francisco, and the injury 5 occurred in San Francisco County. 6 I declare under penalty of perjury pursuant to the laws of the State of California, that the 7 foregoing is true and correct to the best of my knowledge. 8 Executed on October 22, 2020 in San Rafael, Marin County, California. 9 10 By: Tiseme G. Zegeye 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2052751.1 -2- DECLARATION OF TISEME G. ZEGEYE IN SUPPORT OF CLRA § 1750 ET SEQ. CAUSE OF ACTION IN THE MASTER COMPLAINT FOR DAMAGES 1 CERTIFICATE OF ELECTRONIC SERVICE 2 On October 22, 2020, I, TISEME G. ZEGEYE, electronically served the Short Form 3 Complaint and Jury Demand, via File&ServeXpress, on the recipients designated on the 4 Transaction Receipt located on the File&ServeXpress website. 5 Dated: October 22, 2020 By: /s/ Tiseme G. Zegeye 6 TISEME G. ZEGEYE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHORT FORM COMPLAINT AND JURY DEMAND