Nearly 70 lawsuits filed against University Hospitals in response to a storage tank malfunction in the fertility clinic have been suspended indefinitely until a dispute over who the presiding judge will be can be resolved.
The March 3-4 event at UH’s Ahuja Medical Center in Beachwood left 4,000 eggs and embryos unviable and launched a flurry of lawsuits filed in Cuyahoga County Common Pleas Court from among the nearly 1,000 fertility patients affected by the incident.
Initially, the cases were consolidated on the docket of Judge Stuart Friedman, who has been holding pretrial hearings and deciding pretrial motions over the past seven months.
Friedman, however, is required to retire at the end of this year due to age restrictions. But he had sought permission from Ohio’s chief justice, Maureen O’Connor, to remain on the bench into 2019 and retain jurisdiction over the cases, which he has described as involving “extremely complex legal issues.”
O’Connor did not respond to Friedman’s letter, so Judge John Russo, the court’s presiding and administrative judge, contacted the chief justice. None of the conditions necessary for O’Connor to approve Friedman’s request existed, however, Russo said.
If Friedman was ill or his seat was vacant, the chief justice could have named a replacement.
If there had been a conflict of interest Russo could have assigned another judge to oversee the cases.
“She didn’t rule against him,” Russo said. “Judge Friedman is still on the case. But when he retires, the cases are going to be assigned to a new judge,” to be determined in the Nov. 6 election.
The race for Friedman’s seat pits Democrat Ashley Kilbane, 35, an assistant Cuyahoga County prosecutor, against Republican Bradley Hull IV, a private practice lawyer from Beachwood. The six-year term begins Jan. 2.
If a new judge does not want to launch a judicial career with such a difficult case and asks to be relieved, Russo said a replacement would be selected at random.
Friedman, who declined to comment, has begun scaling back his involvement in the case. On Monday, he cancelled a pretrial hearing scheduled for Nov. 16, and issued an order holding in abeyance any ruling on lawyers’ requests to pursue the lawsuits as class action cases.
Lawyers and officials at UH also declined to comment.
The debate over the presiding judge was the latest bump in what promises to be a long road to resolution. In July, Friedman issued a gag order sought by UH’s lawyers, who had complained that some of the plaintiffs’ attorneys had engaged in an ongoing public media campaign that threatened to prejudice the public against the hospital.
Browne Lewis, a professor at Cleveland-Marshall College of Law, said she doesn’t think the delay in litigating the case will cause problems. Of greater concern, she said, are the conflicting issues of law that likely will arise during the case.
“I don’t see resolution to this case without changing tort law in Ohio,” said Lewis, who specializes in biomedical ethics, and has written research papers on reproductive rights.
Friedman previously ruled that the cases do not involve medical malpractice, and that wrongful death is not an issue, she said. The frozen eggs will likely be considered property, but the frozen embryos could pose ethical and technical problems, she said.
“Embryos are not property, they’re too close to being people,” Lewis said. “Viability becomes earlier with improvements in technology. The distinction between a fetus and an embryo is closing, but the law hasn’t kept up.”
Lewis expects the case may eventually land in the U.S. Supreme Court, where a conservative majority could tip the scales in the plaintiffs’ favor, she said.
“I’d be surprised if Judge Russo leaves this in the hands of a new judge” who would tend to be more cautious and unwilling to write new case law, which could benefit UH, Lewis said. But that decision would rest with the new judge, not Russo.
“It’s going to keep being appealed, and eventually will come down to procreation and the status the law gives [embryo and fetus] viability in Rowe vs. Wade,” the landmark court decision that gave women the right to an abortion, she said.