The class action lawsuit alleging UBC’s negligence led to the destruction of over 400 men’s sperm when a circuit breaker tripped at a sperm bank in 2002 has won another victory towards proving UBC liable.
UBC placed an exclusion clause in most contracts that would have exempted them from liability in the loss of frozen sperm, but a recent court decision ruled that sperm count as property and a different set of rules applies, making exclusion clauses irrelevant.
“Because [sperm] was property, it fell within the Warehouse Receipt Act and therefore the exclusion clause was found to be invalid,” said Art Grant, one of the lawyers representing the class-action suit.
The act overrules any exclusion clauses by requiring the business storing property to be liable.
“You can put all sorts of clauses in your contracts but you can’t exclude your responsibility of a warehouser of the materials,” said Grant.
UBC had argued that they used the standard of care necessary and that all sperm donors signed agreements limiting liability. About 26 of the men said that they had never signed any agreement but the recent decision makes it irrelevant. The exclusion clause, signed or not, is no longer valid.
The class action is seeking damages between $20,000 to $100,000 for each of the donors.
The lawsuit has been progressing since 2002, when a circuit break tripped and cut off power to the freezer holding the sperm. The alarm system didn’t kick in, and the sperm were damaged.
The freezer that failed had been purchased in 1987 from Forma Scientific Inc.. A representative from the company recommended that freezers be replaced around every 10 years.
The class action must now attempt to prove UBC’s negligence -- the next court date is April 27.
“We’ll be making a number of arguments about UBC’s negligence,” said Grant, “the system they used was inappropriate, the backup system was non-existent, the checks and balances nonexistent.”
UBC spokesperson Susan Danard released the following statement when asked for comment.
"UBC recognizes this was an unfortunate situation and empathizes with those directly impacted. The university takes this matter very seriously and looks forward to an early resolution. As the matter is before the courts, we cannot comment any further at this time."