NAILAH K.

BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

New Case Electronically Filed:

March 15, 2018 16:36

By: DANIEL P. GOETZ 0065549

Confirmation Nbr. 1328399

GINA LATCHERAN, ET AL CV 18 894626

vs.
Judge: PETER J. CORRIGAN
UNIVERSITY HOSPITALS OF CLEVELAND, ET AL

Pages Filed: 13

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 IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

GINA LATCHERAN
1238 W. 74th Street
Cleveland, Ohio 44102
CASE NO.
and
JUDGE:
GEORGE LATCHERAN
1238 W. 74th Street
Cleveland, Ohio 44102 COMPLAINT FOR DAMAGES

Plaintiffs, (Jury Trial Demand Endorsed Hereon)

vs.

UNIVERSITY HOSPITALS AHUJA

MEDICAL CENTER, INC.
c/o Janet Miller, Statutory Agent
3605 Warrensville Center Road
Shaker Heights, Ohio 44122

and

UNIVERSITY HOSPITALS HEALTH

SYSTEM, INC.
c/o Janet Miller, Statutory Agent
3605 Warrensville Center Road
Shaker Heights, Ohio 44122

and

UNIVERSITY HOSPITALS
CLEVELAND MEDICAL CENTER
c/o Janet Miller, Statutory Agent
3605 Warrensville Center Road
Shaker Heights, Ohio 44122

Defendants.

Now come Plaintiffs Gina Latcheran and George Latcheran (“Plaintiffs”), and for their

Complaint against Defendants, state the following:

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 JURISDICTION AND VENUE

1. Plaintiffs Gina Latcheran and George Latcheran are residents of Cuyahoga County, Ohio.

2. Defendant University Hospitals Ahuja Medical Center, Inc., is an Ohio corporation with

its principal place of business in Cuyahoga County, Ohio. The UH Fertility Center is at University

Hosptials Ahuja Medical Center, Inc.

3. Defendant University Hospitals Health System, Inc., is an Ohio corporation with its

principal place of business in Cuyahoga County, Ohio

4. Defendant University Hospitals Cleveland Medical Center, Inc., is an Ohio corporation

with its principal place of business in Cuyahoga County, Ohio.

5. At all times herein relevant, Defendants University Hospitals Health System, Inc. and/or

University Hospitals Cleveland Medical Center, Inc. was the owner and operator of Defendant

University Hospitals Ahuja Medical Center, Inc.

6. This Court has subject matter jurisdiction over all causes of action asserted herein because

they are Ohio common law claims and the damages being sought are in excess of $25,000.

7. Venue is proper in this County because Cuyahoga County is the principal place of business

of the Defendants and all or part of the claims for relief arose in Cuyahoga County.

FACTS

8. The UH Fertility Center features “an in-vitro fertilization program with IVF and andrology

laboratories that feature the most advanced technology available, and fertility experts with nearly

100 years of combined experience.”

9. Some of the services offered at UH Fertility Center include:

• Pre-implantation genetic screening (PGS)

• Pre-implantation genetic diagnosis (PGD)

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 • Embryo freezing
• Egg and sperm freezing
• Intracytoplasmic sperm injection
• Day three and day five embryo transfers
• Egg donation
• Gestational carriers (surrogates)
• Variety of stimulation protocols including minimal stimulation protocols

10. On or about March, 2016, Plaintiff Gina Latcheran had her eggs harvested.

11. On or about March 17, 2016, Plaintiff Gina Latcheran was scheduled to have an embryo

transfer at Defendants.

12. Before embryos can be implanted, they are developed in an incubator for three to five days.

13. In March of 2016, the Plaintiffs had twelve embryos being developed in the incubator at

the UH Fertility Center. (Hereinafter referred as “First Set of Embryos”).

14. On March 16, 2016, Plaintiff Gina Latcheran was notified by her physician that there was

an “incubator malfunction” and that of the twelve embryos, nine were lost for sure and he was

unsure about the viability of the other three.

15. Since Plaintiff was scheduled for the transfer the next day, March 17, 2016, the transfer

went forward with one of the three embryos that the physician had indicated he was unsure about

the viability.

16. The March 17,2016 transfer was not successful.

17. Shortly thereafter, during the next cycle, the Plaintiffs attempted to transfer the other two

embryos that the physician was unsure about the viability. Again, these transfers were not

successful.

18. None of the three embryos that were damaged as a result of the “incubator malfunction”

ended up being able to be successfully implanted.

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 19. The Plaintiffs were devastated by the failure caused by the UH Fertility Center and the

damage caused during the incubation period.

20. Nevertheless, in the Summer of 2016, Plaintiff Gina Latcheran again had her eggs

harvested.

21. The Summer of 2016 process ended with ten (10) embryos. (Hereinafter referred to as

“Second Set of Embryos”).

22. Two embryos from the Second Set of Embryos were transferred to Plaintiff Gina Latcheran

during the Summer of 2016 and this resulted in the birth of two beautiful girls.

23. The other eight (8) embryos from the Second Set of Embryos were preserved at the UH

Fertility Center.

24. Plaintiff was to undergo IVF in the late Summer of 2018 with the use of some of the

embryos from the Second Set of Embryos that were stored at the UH Fertility Center.

25. On or about March 3-4, 2018, Plaintiffs’ frozen embryos from the Second Set of Embryos

were damaged when the temperature rose in the liquid nitrogen storage tank at the UH Fertility

Center.

26. The nature of the property damaged on two separate occasions due to the conduct of the

Defendants is such that it is irreplaceable.

27. At all times relevant herein, Plaintiffs First Set of Embryos and Second Set of Embryos

were under the Defendants’ care, custody and control.

28. At all times relevant herein, Plaintiffs Second Set of Embryos were stored in a storage

tank at UH Fertility Center.

29. On or about March 3-4, 2018, the storage tank at the UH Fertility Center experienced a

temperature increase.

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 30. On or about March 3-4, 2018, the UH Fertility Center failed to recognize the temperature

increase in the storage tank until some or all of the eggs and embryos in the tank suffered damage.

31. Thomas Zenty, CEO of University Hospitals sent a letter about the situation as follows:

I wanted to inform you personally of an incident that occurred at our UH

Fertility Clinic over the past weekend. There was a temperature fluctuation with
the tissue storage bank where frozen eggs and embryos are stored. At this time,
we don’t yet know the viability of these eggs and embryos.

We have initiated an investigation to identify the cause of this event. We

are bringing in independent experts to ensure we understand all aspects of this
occurrence and do everything possible to address the situation.

Right now, our patients come first. We are incredibly sorry this
happened. We are committed to getting answers and working with patients
individually to address their concerns. We have already initiated contact with all
of our patients to inform them and respond to their questions, and set up a
designated call center to arrange personal meetings or calls with their physicians.
As always, we are guided by the principle that we are going to do the right thing
by our patients and their families.

32. Plaintiffs recently received confirmation from their physician that the Second Set Embryos

had been damaged due to a rise in temperature in the storage tank.

33. The damage to the First Set of Embryos and Second Set of Embryos that Plaintiffs suffered

is devastating. This property is irreplaceable.

34. Due to the special, unique and irreplaceable nature of the property, Defendants have a

special obligation to keep and store the property in a safe fashion.

35. The expense incurred by Plaintiffs in harvesting and freezing embryos is exorbitant.

36. The physical toll in preparation for harvest and transfer is enormous.

37. As a direct and proximate result of the loss of the First Set of Embryos and Second Set of

Embryos, Plaintiffs have suffered severe and lifelong injuries and damages.

38. Plaintiffs spent thousands of dollars to harvest the eggs and in storage fees for the embryos.

COUNT ONE (Negligence -First Set of Embryos)

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 39. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

40. Defendants owed to Plaintiffs a duty to exercise a reasonable standard of care with respect

to the storage and development of the First Set of Embryos.

41. Defendants were negligent in the development of the First Set of Embryos in allowing the

embryos to be destroyed and damaged during the development process.

42. Defendants were negligent in the development of the First Set of Embryos in allowing it to

occur and failing to detect the problem with the incubator

43. As a direct and proximate result of Defendants’ negligence, Plaintiffs have suffered and

continue to suffer severe personal and pecuniary injuries.

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT TWO (Negligence -Second Set of Embryos)

44. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

45. Defendants owed to Plaintiffs a duty to exercise a reasonable standard of care with respect

to the storage of the Second Set of Embryos.

46. Defendants were negligent with respect to the care of the Second Set of Embryos in failing

to prevent and/or detect the temperature rise in the storage tank

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 47. As a direct and proximate result of Defendants’ negligence, Plaintiffs have suffered and

continue to suffer severe personal and pecuniary injuries.

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT THREE (Breach of Contract - First Set of Embryos)

48. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

49. Defendants entered into a contract with Plaintiffs wherein Defendants agreed to store,

preserve, develop and maintain the First Set of Embryos in a safe condition.

50. Based upon information and belief, the contract agreed to by the Plaintiffs reads in part as

follows:

If embryos are frozen the embryos will be stored in the in vitro

fertilization laboratory in the frozen condition until such time as the
physician responsible for your care determines appropriate
conditions exist in a gestational carrier’s uterus for transfer of the
embryo to a gestational carrier’s uterus. At that time, some of all of
the embryos will be thawed.

51. Plaintiffs performed all of the obligations required of them under their contract including

the paying of the retrieval and storage fees.

52. Based on the conduct described herein, Defendants breached its contract with Plaintiffs.

53. Due to Defendants’ breach, Plaintiffs experienced loss of irreplaceable property and

suffered and continue to suffer severe personal and pecuniary injuries

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 THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT FOUR (Breach of Contract - Second Set of Embryos)

54. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

55. Defendants entered into a contract with Plaintiffs wherein Defendants agreed to store,

preserve, and maintain the Second Set of Embryos in a safe condition.

56. Based upon information and belief, the contract agreed to by the Plaintiffs reads in part as

follows:

If embryos are frozen the embryos will be stored in the in vitro

fertilization laboratory in the frozen condition until such time as the
physician responsible for your care determines appropriate
conditions exist in a gestational carrier’s uterus for transfer of the
embryo to a gestational carrier’s uterus. At that time, some of all of
the embryos will be thawed.

57. Plaintiffs performed all of the obligations required of them under their contract including

the paying of the retrieval and storage fees.

58. Based on the conduct described herein, Defendants breached its contract with Plaintiffs.

59. Due to Defendants’ breach, Plaintiffs experienced loss of irreplaceable property and

suffered and continue to suffer severe personal and pecuniary injuries

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

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 COUNT FIVE (Bailment - First Set of Embryos)

60. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

61. Plaintiffs delivered to Defendants property for safekeeping and to be redelivered to them

on demand.

62. Defendants received eggs and embryos from Plaintiffs based on this condition.

63. Plaintiffs paid fees in exchange for Defendants promise to keep their First Set of Embryos

in safekeeping.

64. Defendants invited the general public, including Plaintiffs in particular to entrust embryos

to the care of the UH Fertility Center by holding the Center out as a competent, capable and

established reproductive and storage facility able to handle and care for eggs and embryos in a

satisfactory manner.

65. Because of Defendants’ wrongful conduct described herein, Plaintiffs’ property was

irreplaceably damaged, which precludes redelivery of the property or any part of the property to

Plaintiffs.

66. Defendants breached their duty to exercise ordinary care in the safekeeping of Plaintiffs’

First Set of Embryos delivered to Defendants and to return the embryos, undamaged, to Plaintiffs.

67. As a result of Defendants’ wrongful conduct as described herein, Plaintiffs have been

deprived of the opportunity to use their embryos. Plaintiffs have suffered and continue to suffer

severe personal and pecuniary injuries.

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 THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT SIX (Bailment - Second Set of Embryos)

68. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

69. Plaintiffs delivered to Defendants property for safekeeping and to be redelivered to them

on demand.

70. Defendants received eggs and embryos from Plaintiffs based on this condition.

71. Plaintiffs paid fees in exchange for Defendants promise to keep their Second Set of

Embryos in safekeeping.

72. Defendants invited the general public, including Plaintiffs in particular to entrust embryos

to the care of the UH Fertility Center by holding the Center out as a competent, capable and

established reproductive and storage facility able to handle and care for eggs and embryos in a

satisfactory manner.

73. Because of Defendants’ wrongful conduct described herein, Plaintiffs’ property was

irreplaceably damaged, which precludes redelivery of the property or any part of the property to

Plaintiffs.

74. Defendants breached their duty to exercise ordinary care in the safekeeping of Plaintiffs’

Second Set of Embryos delivered to Defendants and to return the embryos, undamaged, to

Plaintiffs.

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 75. As a result of Defendants’ wrongful conduct as described herein, Plaintiffs have been

deprived of the opportunity to use their embryos. Plaintiffs have suffered and continue to suffer

severe personal and pecuniary injuries.

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT SEVEN (Breach of Fiduciary Duty -First Set of Embryos)

76. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

77. Due to the nature of the property, Defendants owe a fiduciary duty to Plaintiffs to safeguard

the property from damage.

78. Defendants owe the duty to implement any and all available precautions and actions to

safeguard the property of the Plaintiffs.

79. Defendants violated their fiduciary duties and the embryos were damaged as previously

described herein.

80. As a result of Defendants’ wrongful conduct as described herein, Plaintiffs have suffered

and continue to suffer severe personal and pecuniary injuries

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

COUNT EIGHT (Breach of Fiduciary Duty -Second Set of Embryos)

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 81. Plaintiffs hereby adopt and incorporate into this count by reference and as if fully re-written

all of the allegations set forth in each and every paragraph of this Complaint, whether appearing

before or after this count.

82. Due to the nature of the property, Defendants owe a fiduciary duty to Plaintiffs to safeguard

the property from damage.

83. Defendants owe the duty to implement any and all available precautions and actions to

safeguard the property of the Plaintiffs.

84. Defendants violated their fiduciary duties and the embryos were damaged as previously

described herein.

85. As a result of Defendants’ wrongful conduct as described herein, Plaintiffs have suffered

and continue to suffer severe personal and pecuniary injuries

THEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or severally,

in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other relief this

Court deems just and appropriate.

WHEREFORE, Plaintiffs demand damages against the Defendants, jointly and/or

severally, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) plus all other

relief this Court deems just and appropriate.

DEMAND FOR JURY TRIAL

Plaintiffs demand a jury trial on all claims so triable.

/s/R. Eric Kennedy_ _ _ _ _ _ _ _ _ _

R. Eric Kennedy, Esq. (#0006174)
Daniel P. Goetz, Esq. (#0065549)
WEISMAN, KENNEDY & BERRIS CO., L.P.A.
1600 Midland Building
101 Prospect Ave., W.
Cleveland, Ohio 44115
Tel:(216)781 -1111

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 Fax: (216)781-6747
Email: ekermedy@weismanlaw.com
Email: dgoetz@weismanlaw.com

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