Letter from PRW to Pacific Fertility Center on March 30 2018

Letter from PRW to Pacific Fertility Center on March 30, 2018

Carl M. Herbert, M.D.
Pacific Fertility Center
55 Francisco St., Suite 500
San Francisco, CA 94133

Sent via hand delivery

March 30, 2018

Re: Pacific Fertility’s response to catastrophic failure regarding Tank 4

Dear Dr. Herbert:

My law firm and I represent a substantial number of former and current clients of Pacific Fertility whose embryos and/or eggs were stored in Pacific’s Tank 4. We write concerning Pacific’s outreach to our clients and the next steps in their devastating fertility journey.

I write this letter with a heavy heart. This is a nightmare scenario for everyone involved. I have no doubt that Pacific and its staff are heartbroken over the failure in Tank 4. Please understand that my clients are not only heartbroken, but scared, confused, and angry.

As I am sure you know, we have filed a lawsuit against Pacific and Prelude. Having represented many individuals over the years who have suffered due to problems at their fertility centers—well before the issues at Pacific—we also represent individuals and a putative class of clients of Cleveland’s University Hospitals. As with our Pacific clients, our University Hospitals clients are devastated by the losses of their embryos and/or eggs.

Although the incidents at Pacific and University Hospitals took place within hours of each other, the responses by each entity have been quite different. University Hospitals, unlike Pacific thus far, has exhibited a degree of transparency that is lacking from Pacific. (I have enclosed a recent communication from University Hospitals.) We write with the hope that, after considering the response from University Hospitals, Pacific will take a similar path.

First, University Hospitals has advised its clients on an on-going basis as to what transpired with regard to their embryos. While Pacific maintains that its investigation is ongoing, surely it knows more than what it has told its clients. Additionally, our Pacific clients are getting vastly different information, some of it contradictory, depending on with whom they speak at Pacific. Because our clients are scared and confused by the lack of information and contradictory information coming from Pacific, we hope for more transparency and honesty immediately.

Relatedly, University Hospitals has taken responsibility for its tank failure. It would, we surmise, quell some anger of Pacific’s clients if Pacific were to do the same.

Second, University Hospitals has offered a more generous package of free services to its clients. In addition to agreeing to perform all future procedures free of charge, it has agreed to refund all storage fees paid by its clients and to waive all storage fees for the next seven years.

Third, University Hospitals has been clear that it will not ask its clients to release any legal claims related to its tank malfunction. Pacific, on the other hand, continues to include releases and arbitration clauses in the “consents” that it sends to its affected clients. While Pacific’s consents should not be interpreted to release any claims related to the Tank 4 failure or to alter the forum for bringing such claims, it would be appropriate for Pacific, like University Hospitals has done, to state this explicitly. Moreover, we have seen contractual provisions in the recent consent forms we have reviewed that our clients are legally obligated to pay for services they have been assured orally are being provided by Pacific free of charge. While we assume this is due to oversight, the lack of attention to detail in the wake of this tragedy is deeply troubling.

Finally, University Hospitals recently filed a pleading with the Ohio court, where the claims against University Hospitals were brought, that outlines its intent to commence a voluntary settlement process imminently.

When I was a young lawyer, a mentor offered me sage advice: if you make a mistake, own it, learn from it, and do what you can to make things right. While nothing can ever undo the tragedy at Pacific, we hope that Pacific will take responsibility, ensure that this never happens again, and immediately implement a plan to try to make things as right as possible for my—and your—clients.

I have addressed this letter to you because I do not know if Pacific has retained legal counsel. If so, please ask your counsel to reach out to us immediately. Otherwise, I look forward to hearing from you by Monday at 3 PM.

/s/ Adam Wolf
Adam B. Wolf, Esq.