The University of British Columbia has lost another round in a long-running lawsuit over the accidental destruction of frozen sperm belonging to hundreds of men.
Cancer survivor Howard Lam is the lead plaintiff in a class-action suit against the university and its off-site Andrology Lab over the 2002 incident when a power failure due to a tripped circuit breaker caused the sperm to thaw, rendering it useless.
An alarm that was supposed to alert someone if that happened also failed to go off and the freezer, which was supposed to keep the sperm at temperatures below -130 C, apparently had no backup power supply.
Lam, who along with more than 400 other men had sperm stored in the freezer before undergoing cancer treatment, launched the class action in 2003 against the university, as well as companies associated with the sperm bank. They accused the university of negligence and breach of contract.
The B.C. Supreme Court initially refused to certify the class action but that decision was overturned by the B.C. Court of Appeal in 2010. The university tried to appeal that unanimous ruling to the Supreme Court of Canada but the high court refused in 2011 to hear the case.
B.C. Supreme Court Justice Bruce Butler, back hearing the case after initially rejecting it four years ago, this week rejected the university's attempt to quash the part of the suit linked to contracts the men signed that absolved it of liability in case of a malfunction.
The university tried to argue liability provisions of the Warehouse Receipt Act, which would invalidate the contract, did not apply to sperm storage.
But in his ruling, Butler concluded the university and other defendants can't rely on that argument in their defence. Butler found the sperm bank was essentially a warehouse and therefore covered by the act's liability rules.
“It’s a big victory for the plaintiffs,” lawyer Sandy Kovacs, who represents the men, told the Vancouver Province. “The position of UBC all along was that these people unfortunately can’t sue. This decision essentially says the plaintiffs can.”
Kovacs told CBC News the case can now proceed to trial.
The men are seeking between $20,000 and $100,000 in damages from the university and the other plaintiffs.
"Oh, they are happy . . . because they didn't like the notion that UBC would get off scot-free," said Kovacs.
A similar lawsuit is working its way through U.S. courts. Some 40 men who'd stored sperm because of cancer and other illnesses are suing a Chicago hospital after a freezer malfunction may have rendered the sperm unusable, NBC News reported.
The freezer apparently lost power over a a weekend in April 2012 and the problem was not discovered until Monday morning, again because an alarm failed to go off.
The hospital said tests of the vials suggested many were still viable to use for in-vitro fertilization but the men's lawyer said attempts to use some of it were unsuccessful.
And in Britain, a Scottish man is suing a hospital for 50,000 pounds when a faulty freezer allowed his sperm to thaw, according to the Scotsman.
Like the Canadian and U.S. cases, the man stored the sperm in 1992 before undergoing cancer treatment and now argues he's lost his chance at fatherhood.
The Scotsman reported last year the case is seen as a test, since 20 other men had filed suits against the hospital.