Jane Doe v. Xytex Corporation et al
Filing
31
ORDER GRANTING 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Thomas W. Thrash, Jr. on 3/17/17. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JANE DOE
AN INDIVIDUAL,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:16-CV-1729-TWT
XYTEX CORPORATION
a Georgia Corporation, et al.,
Defendants.
OPINION AND ORDER
This is a wrongful birth case. It is before the Court on the Defendants Xytex
Corporation, Xytex Cryo International LTD, Mary Hartley, and Todd Spradlin’s
Motion to Dismiss [Doc. 12]. For the following reasons, the Defendants’ Motion to
Dismiss is GRANTED.
I. Background
The Plaintiff is a resident of Ohio. She has one child who was conceived by
means of artificial insemination with semen purchased from the Defendant Xytex
Corporation. The Defendant Xytex Corporation is a for-profit sperm bank with its
principal place of business in Georgia. It is owned by the Defendant Xytex Cryo
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International LTD. The individual Defendants were associated with the Atlanta office
of Xytex in various ways.1
On October 18, 2000, James Aggeles applied to be a sperm donor with Xytex.2
On his application, Aggeles claimed that he had a Bachelor’s Degree, a Master’s
Degree, and that he was working toward his Ph.D. in artificial intelligence.3 None of
this was true, however, as Aggeles had actually dropped out of school at that time.4
Prior to applying to be a sperm donor, Aggeles had also been hospitalized and
diagnosed with psychotic schizophrenia, narcissistic personality disorder, and
significant grandiose delusions.5 But during Aggeles’ first visit to Xytex, the
Defendant Hartley suggested to him that more educated donors did better selling their
sperm.6 As a result, Aggeles filled out his application falsely by inflating his
educational background and lying about his mental health history.7
1
Compl. ¶¶ 1-9.
2
Id. at ¶ 12.
3
Id. at ¶ 13.
4
Id. at ¶ 22.
5
Id. at ¶ 21.
6
Id. at ¶ 22.
7
Id.
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Despite Xytex’s claim that all applicants went through a rigorous qualification
procedure that takes months to complete, including a medical review and regular
updates to their medical and criminal histories, Aggeles was approved as a donor
within two weeks.8 The Complaint alleges that he was only given a ten minute
physical examination, during which no physical or mental health history was
discussed.9 After Aggeles was approved as a sperm donor, he was hospitalized
numerous times for mental health reasons, and was arrested on numerous occasions.10
Between 2000 and 2016, Aggeles became one of Xytex’s most popular
donors.11 Families often desired the sperm of highly educated and accomplished
people, and Xytex promoted Aggeles as such a donor based upon the information in
his application. During those years, Aggeles became the biological father of at least
thirty-six children through Xytex’s sale of his sperm, including the Plaintiff’s child.12
The Plaintiff, a single woman from Ohio, had first heard about Xytex through
an internet search, and after some research, decided that using sperm from Xytex
8
Id. at ¶¶ 18, 23.
9
Id. at ¶ 23.
10
Id. at ¶ 24.
11
Id. at ¶ 25.
12
Id.
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would be her best available option to have a child. The Plaintiff then called Xytex
directly and requested to view sperm donor profiles. A Xytex representative sent the
Plaintiff a variety of profiles, including that of Aggeles. When she came across
Aggeles’ donor profile, known as Donor #9623, she was intrigued because he was
represented to be educated and healthy. The Plaintiff then called Xytex again to ask
for more information. A Xytex representative responded that Aggeles’ sperm was
extremely popular and had been successful in achieving pregnancy. As a result of
Xytex’s representations, the Plaintiff purchased Aggeles’ sperm and gave birth to her
child, who is now approximately nine years old.13
In June of 2014, Xytex inadvertently disclosed Aggeles’ identity, and the
Plaintiff was then able to discover much of Aggeles’ educational and criminal history
through a simple internet search.14 As a result, the Plaintiff filed the Complaint on
May 27, 2016, alleging eleven different causes of action against the Defendants,
including fraud, negligence, and breach of warranty. The Defendants now move to
dismiss the Complaint for failure to state a claim.
13
Id. at ¶¶ 30-33.
14
Id. at ¶ 34.
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II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief.15 A complaint may survive
a motion to dismiss for failure to state a claim, however, even if it is “improbable” that
a plaintiff would be able to prove those facts; even if the possibility of recovery is
extremely “remote and unlikely.”16 In ruling on a motion to dismiss, the court must
accept the facts pleaded in the complaint as true and construe them in the light most
favorable to the plaintiff.17 Generally, notice pleading is all that is required for a valid
complaint.18 Under notice pleading, the plaintiff need only give the defendant fair
notice of the plaintiff’s claim and the grounds upon which it rests.19
15
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6).
16
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
17
See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.
1994) (noting that at the pleading stage, the plaintiff “receives the benefit of
imagination”).
18
See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.
1985), cert. denied, 474 U.S. 1082 (1986).
19
See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550
U.S. at 555).
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III. Discussion
The Defendants’ primary argument is that all of the Plaintiff’s claims are
derivative of a wrongful birth action, and because wrongful birth claims are not
recognized in Georgia, the Plaintiff’s claims must be dismissed. In other words, the
Defendants argue that all of the Plaintiff’s claims fundamentally stand on the assertion
that if the Plaintiff had known the truth about Aggeles, the Plaintiff’s child would not
have been born. The Plaintiff, for her part, argues that this case is not one for wrongful
birth, but rather for wrongful conception.
In Georgia, wrongful conception claims generally arise when a sterilization or
abortion procedure goes wrong and a live birth unintentionally results.20 In such a
case, the measure of damages allows “recovery of expenses for the unsuccessful
medical procedure which led to conception or pregnancy, for pain and suffering,
medical complications, costs of delivery, lost wages, and loss of consortium.”21 By
contrast, wrongful birth claims normally arise when the parents contend they would
have aborted the child if they had been fully aware of the child’s condition.22 While
wrongful conception claims have been allowed in Georgia, wrongful birth claims have
20
Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 442 (1984).
21
Id. at 443.
22
Atlanta Obstetrics & Gynecology Grp. v. Abelson, 260 Ga. 711, 713
(1990).
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not.23 The Plaintiff argues that the functional differences between these two torts are
(1) the timing of the tort (i.e., pre- or post-conception), and (2) whether a defendant’s
actions directly or indirectly caused the injury. According to the Plaintiff, when the
wrong occurs before conception and directly causes the harm, as in failed sterilization
cases, the tort is allowed. And when the wrong occurs after conception and indirectly
causes the harm, as in failure-to-diagnose cases, the tort is disallowed.
The Plaintiff is incorrect. The reason why Georgia courts have looked on
wrongful birth claims with disfavor is not because of the timing of the tort or the
causal link between the defendant and the harm. The true difference between the two
torts is the measure of damages. Wrongful birth claims are disfavored because they
require the court to decide between the value of a life with disabilities and the value
of no life at all. The Georgia courts are “unwilling to say that life, even life with
severe impairments, may ever amount to a legal injury.”24 In this case, the Plaintiff
essentially claims that had the Defendants been truthful with her about Aggeles’
history, she would not have used his sperm and her child would not have been born.
23
Id. at 714; Campbell v. United States, 962 F. 2d 1579, 1583 (11th Cir.
1992) (“In the instant case, while Georgia has a statute which permits injured parties
to recover for medical malpractice committed by private parties, this statute does not
permit recovery for the tort called wrongful birth.”).
24
Abelson, 260 Ga. at 715.
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The Plaintiff attempts to mask this truth by describing the Defendants as having
“exposed Plaintiff’s [sic] and her child to [Aggeles’] traits through their
misrepresentations.”25 But a genetic disease is not the same as a virus or a bacteria.
Avoiding “exposure” to Aggeles’ various mental health problems would not mean the
Plaintiff’s child would be healthier; it would mean her child would not exist. This is
a wrongful birth claim, and it is not allowed in a diversity case applying Georgia law.
IV. Conclusion
For the reasons stated above, the Defendants’ Motion to Dismiss [Doc. 12] is
GRANTED.
SO ORDERED, this 17 day of March, 2017.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
25
Pl.’s Resp. to Defs.’ Mot. to Dismiss, at 15 [Doc. 18]. While the Court
does not need to address them here, there are also numerous causation problems with
the Plaintiff’s argument.
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