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Issue: Mar. 20 2023

Company liable for tainted eyewash

The 4th U.S. Circuit Court of Appeals has affirmed a products liability and warranty judgment obtained by a non-profit eye bank against two suppliers of eyewash that was later revealed to be contaminated, rendering any recovered tissue unusable.

The district court rejected the suppliers’ arguments — one said it was merely a “distributor” rather than a manufacturer, while the other claimed it was simply repeating the other’s warranty — and found them jointly and severally liable for more than $600,000.

Senior Circuit Judge Barbara Milano Keenan of the Fourth Circuit upheld the ruling, noting that the eyewash bottle and packaging listed only the supplier’s name and logo, and only it registered the product with the Food and Drug Administration.

“Although [one supplier] identified itself as a ‘distributor’ and not as a ‘manufacturer,’ a jury could not conclude on this record that purchasers of the eyewash reasonably would have known that [it] was not the eyewash manufacturer,” she wrote.

Keenan was joined by Judges Pamela A. Harris and A. Marvin Quattlebaum Jr. in KeraLink International Inc. v. Geri-Care Pharmaceuticals Corporation (VLW 023-2-045).

Contamination

KeraLink International is a non-profit corporation that operated a national network of “eye banks” in several states. Eye banks recover corneas and other eye tissue from recently deceased donors for future transplant.

While eye banks are prohibited from selling recovered tissue, they may collect certain fees for reimbursement of costs related to the removal, processing and transportation of such tissue. To facilitate the process, KeraLink bought medical supplies and equipment from various third-party vendors, including “surgical packs” that contained “eyewash” used for irrigating eye tissue.

Of relevance to this case are custom-designed surgical packs KeraLink bought from Stradis Healthcare. KeraLink didn’t specify any particular brand of eyewash; Stradis bought eyewash from a third-party wholesaler who got it from Geri-Care Pharmaceuticals Corporation.

Geri-Care got their eyewash from another company — Kareway Products Inc. — and requested a product similar to “Bausch & Lomb Advanced Eye Care.” Geri-Care asked that its logo be placed on the bottles.

Kareway got eyewash from another company that originally made the product in Korea. Rather than test the eyewash for pathogens, Geri-Care relied on the supplier’s certification that each bottle was sterile.

Geri-Care registered the eyewash with the Food and Drug Administration. The label showed Geri-Care’s logo, said the eyewash was “distributed by” Geri-Care and that it was a “Product of Korea.” No other company was identified on the eyewash bottles or on the FDA registration.

Stradis received individually sealed bottles at its facility. After checking that the plastic seal on each cap was secure, Stradis placed the bottles in the surgical packs with an insert listing the contents, including “sterile eye wash.” The insert also stated that Stradis manufactured and distributed the packs.

The Eye Bank Association of America notified KeraLink in 2017 that some Geri-Care eyewash was potentially contaminated and told them to pull it from their inventory.

When lab testing verified that contaminants were present, KeraLink identified certain lots of Stradis surgical packs with the potentially tainted eyewash. It was later reported that corneal transplant recipients had tested positive for the pathogens after using KeraLink’s surgical packs.

The lawsuit

KeraLink sued Stradis and Geri-Care in the Federal District of Maryland seeking joint and several liability for strict products liability and breach of express and implied warranty. They calculated damages of $606,415.19 based on their loss of service fees, unusable surgical packs and employee time wasted.

The district court granted summary judgment to KeraLink against both defendants for product liability and breach of implied warranty, while saying only Stradis was liable for breach of express warranty.

Both defendants relied on the “sealed container defense,” an affirmative defense available to sellers of defective products under certain conditions. Neither succeeded.

The court said Geri-Care “held itself out” as a manufacturer, not a seller. Stradis, meanwhile, had provided an express warranty that the product was sterile.

The court also rejected arguments that the economic source rule barred recovery, and found both defendants liable for the damages asserted by KeraLink.

This appeal followed.

Defenses rejected

Neither defendant challenged that KeraLink failed to satisfy the elements of its strict products liability claim, but instead relied on the sealed container defense and the economic source rule to bar liability.

Keenan explained that Maryland’s sealed container defense shields sellers from defective product liability with a showing that they acquired the sealed products without knowledge of defects and that they neither manufactured nor modified the product.

“A party qualifies as a ‘manufacturer’ of a product and may not invoke the sealed container defense under Maryland law when that party is … ‘an entity not otherwise a manufacturer that imports a product or otherwise holds itself out as a manufacturer,’” the judge continued.

Geri-Care said sophisticated purchasers like Stradis and KeraLink wouldn’t reasonably assume it was the manufacturer since it was listed only as a “distributor” on the bottles.

Keenan disagreed.

“Geri-Care named itself, and no other company, as the eyewash’s distributor on the label and as the registrant to the FDA,” she explained. “By placing its logo on the eyewash bottle and by registering the eyewash in Geri-Care’s name with the FDA, Geri-Care intended the public to think that Geri-Care manufactured the eyewash.”

Nor was the judge persuaded by Geri-Care’s appeals to case law that focused on whether a reasonable purchaser of a non-consumer product would identify its manufacturer.

“[T]here is no basis on which a purchaser, sophisticated or otherwise, could determine from the eyewash bottle and packaging that another entity was a manufacturer of the eyewash,” she said.

Keenan also rejected Stradis’ sealed container defense.

The descriptions Stradis included — “STERILE: Unless Open or damaged” on the packaging and “sterile eye wash” on the insert — were made separately from Geri-Care’s statements that the contents were sterile.

“Critically, Stradis has not cited, nor has this court identified, any authority holding that a party who ‘passes on’ another company’s warranty through its own, separate representation has not made an express warranty,” she explained.

Finally, Keenan agreed with the district court’s ruling that neither the economic loss rule nor the sealed container defense applied here, affirming summary judgment in favor KeraLink on its strict products liability claim against both defendants.

Federal protections for pregnant, nursing employees coming

Pregnant employee talking on phone in office

On Dec. 23, 2022, President Biden signed into law two measures that expand the rights of pregnant and breastfeeding workers: the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers, or PUMP Act.

Both measures were included in the 2023 Consolidated Appropriations Act and will impose new federal requirements on employers with respect to accommodations for pregnancy- and childbirth-related conditions and nursing mothers.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act, or PWFA, gives workers with conditions arising from pregnancy or childbirth the right to reasonable accommodations in the workplace. The act provides for broader protections than are available to pregnant employees under the Americans with Disabilities Act — it requires an employer to provide reasonable accommodation for a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions regardless of whether the condition meets the definition of disability under the ADA. It also provides for broader protection than the Pregnancy Discrimination Act.

The PWFA applies to employers with 15 or more employees and to “qualified employees,” meaning an employee or job applicant who can perform the essential functions of the position with or without reasonable accommodation.

The act leaves open the question of what accommodations are “reasonable” in the context of pregnancy. Employers should be mindful that a reasonable accommodation for a pregnancy-related condition may be different than a reasonable accommodation for a more permanent condition, as the likely temporary nature of a pregnancy accommodation may change the analysis of what is reasonable.

The act leaves open the question of what accommodations are “reasonable” in the context of pregnancy. Employers should be mindful that a reasonable accommodation for a pregnancy-related condition may be different than a reasonable accommodation for a more permanent condition, as the likely temporary nature of a pregnancy accommodation may change the analysis of what is reasonable.

Employers can eventually expect greater clarity on what the act requires, as the Equal Employment Opportunity Commission issues regulations per PWFA’s requirements — including examples of reasonable accommodations under the act — within two years of enactment. For now, we know the act requires employers and qualified employees to engage in the interactive process (much like what the ADA requires).

Employees who believe their rights under this Act have been violated can file a complaint with the EEOC.

PUMP Act

The PUMP Act amends the Fair Labor Standards Act and expands already existing federal law requiring employers with 50 or more employees to provide accommodations — including breaks and a private, non-bathroom space — for breastfeeding workers to express milk.

Under the act, many workers not previously entitled to lactation accommodations under federal law (such as salaried employees) are now covered.

The act requires employers to allow for reasonable breaks each time an employee needs to express milk for up to one year after the employee’s child is born. While employees are not entitled to compensation during these breaks if no work is being performed during the breaks, the breaks will be considered “hours worked” subject to compensation if the employee is not completely relieved from duty for the entirety of each break.

And, importantly for employers, employees must now notify their employers if they believe their employer is out of compliance with the act and must give their employer 10 days to come into compliance before making any claim of liability against their employer.

The Department of Labor is responsible for enforcing a number of federal labor laws, including this act. Employees who believe their rights have been violated pursuant to this act can file a complaint with the DOL’s Wage and Hour Division.

What this means to you

This new legislation expands the rights of pregnant and breastfeeding workers and may require employers to develop and/or amend workplace policies to remain compliant with the law.

Julianne Story is a partner and Eleanor Kittilstad is an associate in Husch Blackwell’s Kansas City office, and Ayissa Maldonado is an associate in the firm’s Austin office.

Man sustained injuries after 15-foot fall from lift — $2.6M settlement

Type of action: Personal injury

Injuries alleged: Spinal cord injury, incomplete quadriplegia, fractured vertebrae, a large scalp laceration, concussion, loss of consciousness and left fibular fracture

Tried before: Mediation

Name of judge or mediator: Judge Thomas Shadrick (Ret.)

Special damages: Medical expenses of $928,247.05; Lost earning capacity of $239,920; Life care plan costs of $8,548,257

Verdict or settlement: Settlement

Amount: $2,600,000

Attorney for plaintiff (and city): J. Michael Sharman, Culpeper

Description of case: While working as a contractor on a customer’s farm-office, the 55-year-old plaintiff was on a rented hydraulic construction lift operated by one of defendant supplier’s employees, when an abrupt and unexpected move of the lift threw the plaintiff off the lift and caused him to fall 15 feet onto concrete, resulting in loss of consciousness, fractured vertebrae, incomplete quadriplegia and multiple other injuries.

Air ambulance first took the plaintiff for emergency treatment and a few weeks of stabilization in a Virginia hospital. Air ambulance next flew the plaintiff to an out-of-state hospital specializing in spinal cord injuries, where he had monthslong treatment. Upon return to Virginia, the plaintiff received weeks of therapy in residence at Wilson Workforce and Rehabilitation Center.

The rented hydraulic construction lift was built to lift materials, not people, but the plaintiff and one of defendant supplier’s employees rode on the lift in order to help move the heavy and awkward material onto the second story area where it was to be installed. The lift had no handholds and no belts to secure anyone who did ride the lift. Defendant supplier’s employee was able to stay on the lift when the plaintiff fell.

Predictably, the defense was contributory negligence and assumption of risk, either one of which, under Virginia law, would be a complete barrier to any recovery by the plaintiff.

After balancing the law, the gravity and permanence of the plaintiff’s injuries, and the unpredictable nature of trial juries, the compromise settlement of $2.6 million was able to be reached.

J. Michael Sharman, counsel for plaintiff, provided case information.

[022-T-212]

Obituary: Judge Robert L. Harris Sr.

Retired Richmond Circuit Court Judge Robert L. Harris Sr. died March 2. He was 87.

Born in Spring Hope, North Carolina, Judge Harris attended high school in Portsmouth, graduating from Cradock High School in 1954. He used the money he earned as a door-to-door salesman and distributor for the Saladmaster Company to pay his tuition at the College of William & Mary, where he earned an economics degree in 1962.

Judge Harris went on to attend the Wake Forest School of Law, earning his law degree in 1964. Following law school, he served in the Army Judge Advocate General’s Corps until 1967, when he opened a law practice in Richmond with a former business colleague.

In 1982, Judge Harris was appointed to the Richmond General District Court and was elevated to the Richmond Circuit Court in 1984. In his decade on the circuit court bench, Judge Harris served a term as chief judge.

After retiring from the bench, Judge Harris became one of the original members of The McCammon Group, a provider of mediation and arbitration services, when it opened its doors in 1995. In 2007, Virginia Lawyers Weekly reported that Judge Harris had reached nearly $1 billion in the value of settlements he had helped bring about to that point, having taken on more than 1,700 cases in 12 years. Judge Harris retired from The McCammon Group in 2013.

Judge Harris was a member of several legal groups during his career as well as River Road Church, Baptist, in Richmond.

Judge Harris is survived by his wife, Audrey; his children, Robert and Laura; his grandchildren, James, Robert, Benjamin and Kathryn; and his siblings, Wilbur and Dorothy.

Patient fractured femur in hospital fall — $375,000 settlement

Type of action: Medical malpractice

Injuries alleged: Hospital fall resulting in femur fracture

Tried before: Mediation

Name of judge or mediator: Judge Diane Strickland (Ret.)

Date resolved: 9/12/2022

Verdict or settlement: Settlement

Hunt

Amount: $375,000

Attorney for plaintiff (and city): Brielle M. Hunt, Richmond

Description of case: The plaintiff presented to defendant facility complaining of bilateral worsening leg weakness and pain. The plaintiff was accompanied by her daughter. Her daughter allegedly explained that the plaintiff was a fall risk and requested a wheelchair on two occasions, though no such requests appeared in the medical records. There was a factual dispute as to whether a fall risk assessment was performed on the plaintiff in the emergency room. The plaintiff alleged that the hospital staff failed to perform an adequate fall risk assessment and that no wheelchair, walker or other assistive device was provided to her. The defendant alleged that a fall risk assessment was performed by the triage nurse who determined the plaintiff was not a fall risk.

X-ray of the lumbar spine was ordered. The plaintiff was escorted to the radiology department by the x-ray technician. Surveillance footage depicted the x-ray technician providing support to the plaintiff by holding her arm as they walked down the hallway. Following the study, the plaintiff returned to the emergency room. Surveillance footage depicted the x-ray technician walking in front of the plaintiff — not physically escorting her or supporting her — when the plaintiff fell to the floor in the entryway of her room. The plaintiff suffered a comminuted intertrochanteric femur fracture. She underwent ORIF the following day, and remained in the hospital for one week until she was transferred to an inpatient rehabilitation facility for six weeks. She also required in-home nursing care and outpatient physical and occupational therapy.

The plaintiff alleged that the hospital staff’s failure to perform an adequate fall risk assessment in the emergency room was a breach in the standard of care, and that doing so would have revealed that the plaintiff was a fall risk and prompted the staff to provide her with a wheelchair or other assistive device rather than to allow her to ambulate to and from radiology on her own. Notwithstanding the alleged failure to perform an adequate fall risk assessment, the plaintiff alleged that the staff’s failure to provide her with a wheelchair or other assistive device was in itself a breach in the standard of care in light of the symptoms that brought her to the emergency room — worsening of bilateral lower extremity weakness. Had the staff taken either of these necessary precautions, it was alleged that the plaintiff would not have fallen and suffered traumatic and painful injuries.

The matter resolved at mediation after the filing of the complaint but prior to service on the defendant.

Plaintiff’s attorney Brielle M. Hunt provided case information.

[022-T-190]

Physician not negligent in diagnosing man’s brain injury — Defense verdict

Type of action: Medical malpractice

Injuries alleged: Permanent and severe anoxic brain injury

Tried before: Jury

Name of judge or mediator: Judge Anne M. Reed

Date resolved: 11/17/2022

Olszewski
Olszewski

Special damages: More than $3,000,000

Demand: $2,200,000

Verdict or settlement: Verdict

Amount: $0 (defense)

Attorneys for defendant (and city): Michael E. Olszewski and D. Michael Faust, Fairfax; C.J. Steuart Thomas III and Noelle Quam, Staunton

Description of case: The patient, a 54-year-old man, crashed his mountain bike and sustained traumatic chest and spinal injuries. He was brought to the local emergency room by ambulance. The defendants were the emergency medicine doctor and the hospital nursing staff.

Faust

Upon presentation to the emergency room, the patient had no neurological injuries. The emergency medicine doctor placed a chest tube, then the patient decompensated and became minimally responsive.

The doctor replaced the initial chest tube catheter with a large bore chest tube, then intubated the patient because he had become hypoxic. After being flown to a trauma center, the patient was diagnosed with a severe, permanent anoxic brain injury.

The patient claimed that the defendants were negligent for allowing him to become hypoxic for a prolonged period which resulted in his severe and permanent anoxic brain injury. The patient claimed more than $3 million in economic damages in addition to pain and suffering. After the plaintiff rested his case, the hospital defendants were dismissed on a motion to strike. The case continued against the emergency medicine physician. After four and a half hours of deliberation, the jury returned a defense verdict.

Defense counsel D. Michael Faust provided case information.

[022-T-197]

The ever-evolving Fourth Circuit

Federal court of appeals building

In April 1865, as Ulysses S. Grant and the Union army made their way into the Confederate capital of Richmond, fleeing rebel soldiers set fire to bridges and warehouses. That fire quickly spread out of control and torched huge swaths of Richmond’s downtown business district. After the dust settled, only two buildings were left standing, including the U.S. Custom House, Post Office and Courthouse built in 1858. That building still stands today as the Lewis F. Powell Jr., U.S. Courthouse, where the 4th U.S. Circuit Court of Appeals hears matters arising from Maryland, Virginia, West Virginia, North Carolina and South Carolina.

The Powell Courthouse will soon welcome a new jurist to the bench. On Feb. 9, 2023, the Senate confirmed South Carolinian DeAndrea Gist Benjamin to join the Fourth Circuit. After serving for more than a decade as a state court trial judge, Judge Benjamin is the first African American from South Carolina to be appointed to the Fourth Circuit and only its second woman of color. She fills the vacancy created by Judge Henry Floyd’s assumption of senior status, bringing the court’s complement of active judges to 14 — one shy of its full 15-judge bench. (There currently remains a Maryland-based vacancy following Judge Diana G. Motz’s assumption of senior status in late 2022; the president has not yet nominated a replacement.)

Judge Benjamin’s confirmation to the Fourth Circuit illustrates the continued evolution of the court as she becomes its fifth new judge in as many years. During the Trump Administration, three judges took senior status (Judges Shedd, Traxler and Duncan), making way for three Trump-nominated replacements (Judges Richardson, Quattlebaum and Rushing, respectively). And in the first two years of the Biden Administration, two more judges took senior status (Judges Keenan and Floyd), making way for two Biden-nominated replacements (Judges Heytens and Benjamin, respectively). As a result, practitioners appearing for oral argument in Richmond may find themselves before a three-judge panel composed of “new” faces that weren’t on the court a few years ago.

What’s more, six more judges are eligible to take senior status (Chief Judge Gregory and Judges Wilkinson, Niemeyer, King, Agee and Wynn), leaving the court ripe for further personnel changes. Judge Albert Diaz will become eligible to take senior status in 2025, but it is unlikely he will take that step for several years. That’s because later this summer Judge Diaz will take over the leadership of the Fourth Circuit from Chief Judge Gregory for a term that will last until 2030.

The senior-status eligibility dates for the remainder of the Fourth Circuit highlight the relatively young age at which many of them were appointed, particularly among those most-recent additions to the court: Judge Stephanie D. Thacker (2030), Judge Pamela A. Harris (2028), Judge Julius N. Richardson (2041), Judge A. Marvin Quattlebaum (2031), Judge Allison J. Rushing (2047), Judge Toby J. Heytens (2040) and Judge DeAndrea G. Benjamin (2037).

The clearest example of the relative young age of recent appointees, Judge Rushing has close to 25 years until she becomes eligible to take senior status. That path mirrors Judge Wilkinson, who was appointed in 1984 at age 40, became eligible for senior status in 2009 and remains in active service. In fact, Judge Wilkinson is among the longest-tenured active service judges in the country; out of nearly 800 active judges in the United States, only three have served longer.

The relatively young age of judicial nominees has been highlighted by another recent trend: the resignation of federal judges to return to the practice of law. Last year, Judge Gregg Costa of the Fifth Circuit left the bench to go into private practice after 11 years on the bench, including two as a U.S. District judge in Houston. Judge Paul Watford, who joined the Ninth Circuit in 2012, recently announced his intent to resign for the same reason. The phenomenon is not limited to the courts of appeals; in February 2023, U.S. District Judge George Hazel left the bench in Maryland after nine years of service. All three judges were appointed by President Obama between the ages of 39 and 45.

The Fourth Circuit is no stranger to its members rejoining the bar. Former Chief Judge William W. Wilkins spent 27 years as a federal judge, including 22 years on the Fourth Circuit, before retiring in 2008, and entering private practice in South Carolina. Former Judge Andre M. Davis likewise spent 22 years of combined federal service as a trial judge in Baltimore and on the Fourth Circuit before his retirement in 2017 to become the City Solicitor for Baltimore. Both former judges have appeared multiple times as advocates before their former judicial colleagues.

The circumstances that go into whether and when a judge will step back from active are difficult, if not impossible, to predict. Although some presume that judges time their retirement or assumption of senior status based on which political party is in power, the factors influencing those decisions can be varied and personal. Former Fourth Circuit Judge J. Michael Luttig cited the unexpected opportunity to become general counsel to the Boeing Company when he abruptly resigned from the court in 2006 — though some have speculated Judge Luttig may have been open to a new career path after being twice passed over by President George W. Bush for a nomination to the U.S. Supreme Court. Of course, had Judge Luttig remained a member of the federal judiciary, he likely would not have been thrust into the spotlight for his legal analysis of the vice president’s obligations at the joint session of Congress on Jan. 6, 2021.

In the end, senior status remains the most common way vacancies arise on the Fourth Circuit. Indeed, 11 of the court’s 14 active judges filled a vacancy created by their predecessor’s assumption of senior status, and the remaining vacancy exists for the same reason. Senior judges tend to retain the same responsibilities as the rest of their colleagues by continuing to sit on three-judge panels, write opinions and decide cases. As a result, even if a senior judge reduces his or her workload, the court’s judicial resources increase when their successor is confirmed.

No matter the court’s composition, the Fourth Circuit has developed a well-earned reputation for collegiality. By tradition, after every argument at the Fourth Circuit, the judges leave the bench to shake hands with counsel before they confer on the cases and have lunch together. Although the pandemic put those familiar practices on hold, advocates before the Fourth Circuit should expect the court’s expressions of gratitude and well-wishes to continue in the future, whether the jurists are familiar or new.

Kevin Elliker is counsel in the Issues and Appeals practice at Hunton Andrews Kurth LLP in Richmond, Virginia. From 2019-2021, he was an Assistant U.S. Attorney for the Eastern District of Virginia, and between 2021-2022, he served as an investigative counsel for the House Select Committee to Investigate the January 6th Attack on the United States Capitol. He served as a law clerk on the Fourth Circuit to Judge Robert B. King from 2015-2016.

Two killed after tractor-trailer crashed into stopped vehicles — $1.237,500 settlement

Type of action: Wrongful death

Date resolved: 8/18/2022

Verdict or settlement: Settlement

Amount: $1,237,500

Attorneys for plaintiff (and city): Matthew W. Broughton, Andrew M. Bowman and Andrew D. Finnicum, Roanoke

Description of case: Plaintiff’s decedent was traveling home from work when he was confronted with stopped traffic in front of him. He safely stopped his vehicle, and the vehicle behind him safely stopped as well. The defendant, a tractor-trailer driver with a history of safety violations, failed to timely react to the stopped traffic, swerved, and lost control of the truck. The defendant crashed into two vehicles, killing both occupants.

The trucking company defendant was significantly underinsured. On initial intake of the case, the available liability insurance was insufficient to cover the plaintiff’s workers’ compensation lien and future offset of workers’ compensation benefits. During discovery, the plaintiff learned of a potential claim against the entity that loaded the freight onto defendant’s tractor-trailer. Through careful navigation of the multiple insurance and workers’ compensation issues, the plaintiff ultimately recovered more than double the amount that was initially available to the decedent’s estate.

Andrew Finnicum, plaintiff’s counsel, provided case information.

[022-T-222]

‘Go To Lawyers’ for business litigation announced

Virginia's Go To Lawyers for Business Litigation

Virginia Lawyers Weekly is pleased to announce the “Go To Lawyers” for business litigation.

Now in its fourth year, the “Go To Lawyers” program recognizes top lawyers in a particular practice area. Last year, we celebrated “Virginia’s Go To Lawyers” for medical malpractice, intellectual property, employment and business law.

Upcoming practice areas for 2023 include appellate law, commercial real estate and medical malpractice for both plaintiffs’ and defense side.

A “Go To Lawyer” is:

  • A lawyer who is an expert in his or her field, well-versed in the nuances of the case law, statutes and regulations clients will encounter.
  • A lawyer who is experienced and enjoys a record of success, with many cases and/or transactions that give testimony to the quality advice he or she can provide.
  • A lawyer to whom other lawyers make referrals because of his or her expertise and accomplishments.
  • A lawyer who can think creatively and identify all options for a client.
  • A lawyer you would name when a friend from another state calls and says she has a client who needs some legal help in a given part of the commonwealth.

Honorees will be profiled in a special section in April.

Please join us in congratulating these outstanding lawyers specializing in all aspects of business litigation:

  • Faith Alejandro, Sands Anderson
  • Kellie Budd, Vasseghi Budd
  • Eric Burns, NOVA Business Law Group
  • Stephen Caruso, Bean Kinney & Korman
  • Andrew Clark, Hirschler
  • Sheila Costin, Holmes Costin & Marcus
  • Broderick Dunn, Cook Craig & Francuzenko
  • Stephen M. Faraci Sr., Whiteford, Taylor & Preston
  • Kevin Funk, Durrette, Arkema, Gerson & Gill
  • Jonathan Harmon, McGuireWoods
  • Michael K. Kim, Blankingship & Keith
  • Faisal Moghul, Fox & Moghul
  • Brendan O’Toole, Williams Mullen
  • Arthur Schmalz, Hunton Andrews Kurth
  • Scott Sexton, Gentry Locke
  • John Patrick “JP” Sherry, JPS Law
  • Edgar “Ed” Spivey, Kaufman & Canoles
  • Ashley Taylor Jr., Troutman Pepper
  • Margeaux Thomas, Thomas Law
  • David Thomas, MichieHamlett
  • Stephanie Wilson, Berenzweig Leonard
  • Thomas Wolf, Miles & Stockbridge

‘Goods or Chattels’: Divorced couple’s frozen embryos can be partitioned

Embryo

A Virginia circuit court vacated its order that a divorced couple couldn’t partition their frozen embryos under Code § 8.01-93, analyzing more than 100 years of statutory history to reach its conclusion.

The couple’s separation agreement didn’t determine what to do with their two frozen embryos, so the ex-wife tried to partition the embryos. When the trial court sustained her ex-husband’s demurrer, she moved the court to reconsider.

In what he called a matter of first impression in Virginia, Fairfax Circuit Court Judge Richard E. Gardiner vacated the prior holding.

“Upon independent research, this court was unable to find any Virginia law prohibiting the purchase or sale of human embryo, nor has either party cited a federal law prohibiting the activity,” he wrote. “As there is no prohibition on the sale of human embryos, they may valued and sold, and thus may be considered ‘goods or chattels’ within the meaning of Code § 8.01-93.”

The opinion is Heidemann v. Heidemann (VLW 023-8-010).

Two embryos

Honeyhline Heidemann and Jason Heidemann divorced in November 2018 in Fairfax County. Prior to their divorce, the Heidemanns used in vitro fertilization, or IVF, to produce three cryopreserved embryos. They conceived a daughter with one of the embryos.

The Heidemanns completed a form from the IVF clinic titled “Legal Statement –  Embry (sic) Ownership.”

They elected to own any stored embryos jointly, but the form did not address what would happen with the embryos in the event of divorce or death.

The Heidemanns still had two frozen embryos when they separated in 2017. Their property settlement agreement said neither party would remove the embryos and they would share costs pending a court order or further agreement between them.

After the divorce, Ms. Heidemann asked Mr. Heidemann if she could use the embryos because cancer treatments had left her infertile. Mr. Heidemann refused and they weren’t able to reach a resolution.

Prior order

Ms. Heidemann reopened the case in July 2019, but the court said it had lost jurisdiction to rule on disposition of the embryos. In November 2021, she filed suit under Code § 8.01-93, asking the court to either give her the embryos or partition them in kind.

The court sustained Mr. Heidemann’s demurrer to the partition suit with prejudice in December 2022. Reading the statute in context, the court reasoned that Code § 8.01-93 only applied to goods or chattels found on real property being partitioned.

The court also credited Mr. Heidemann’s representation that federal law prohibited the sale of frozen embryos, meaning the embryos don’t have a market value and, therefore, can’t be considered “goods or chattels” under Code § 8.01-93.

After the court found that she hadn’t stated a cause of action, Ms. Heidemann moved for reconsideration.

No disposition

Gardiner noted this was a case of first impression in Virginia.

“Although there are two cases involving disposition of cryopreserved embryos, those cases arose in the context of equitable distribution of marital property,” he pointed out.

In his demurrer, Mr. Heidemann first argued that his ex-wife couldn’t bring suit to change the disposition of the embryos because their agreement determined and settled all questions of property rights between them.

But Gardiner said that argument lacked merit because the agreement didn’t provide for disposition of the embryos.

“Instead, the parties agreed that the embryos would remain in storage ‘pending a court order or further written agreement of the parties as to the disposition [of the embryos]’ and that they would remain in storage ‘pending their future disposition,’” he wrote. “It is clear from these statements that the disposition of the embryos was not settled, and in fact contemplated further negotiation or litigation.”

Finding that an order now would be consistent with the Heidemanns’ agreement, Gardiner pointed to Jessee v. Jessee, a 2021 Court of Appeals of Virginia case where similar language in a separation agreement didn’t determine the disposition of frozen embryos.

“Because the disposition of the embryos was not settled in the Agreement, the Agreement cannot be enforced as to the embryos and an order as to their disposition would be consistent with the Agreement,” the judge wrote.

Statutory history

Mr. Heidemann then claimed Code § 8.01-93 didn’t apply because embryos aren’t “goods or chattels” that can be partitioned or sold like parcels of land because “each embryo is distinct, unique, and not fungible[.]”

But Gardiner pointed out that the Heidemanns listed the embryos under the “Division of Personal Property” section of their agreement.

“Thus, by the parties’ own admission, the embryos are considered goods or chattels,” he said.

“While the court initially viewed this language as applying only to ‘goods or chattels’ on land being partitioned, upon extensive review of the origins and evolution of Code § 8.01-93, the court now concludes that partition of ‘goods or chattels’ pursuant to Code § 8.01-93 is not restricted to ‘goods or chattels’ on land being partitioned.”

— Fairfax Circuit Court Judge Richard E. Gardiner

The judge then reviewed the court’s earlier interpretation of Code § 8.01-93, which provides that “[w]hen an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.”

Gardiner said that “[w]hile the court initially viewed this language as applying only to ‘goods or chattels’ on land being partitioned, upon extensive review of the origins and evolution of Code § 8.01-93, the court now concludes that partition of ‘goods or chattels’ pursuant to Code § 8.01-93 is not restricted to ‘goods or chattels’ on land being partitioned.”

The judge noted that the language of Code § 8.01-93 has remained identical since 1887; since 1950, the language has been codified under the “Partition” provision of the “Civil Remedies and Procedure” section.

The 1849 version of the statute was almost identical; however, it referred to slaves as chattel subject to partition or sale.

“[B]y 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to the land,” Gardiner wrote. “Thus, ‘goods or chattels’ also would have been partitionable in kind as personal property not annexed to the land.”

In 1819, Virginia’s legislature declared that slaves were considered personal property.

“From that, it follows that the versions of the Code discussed, supra — resulting in today’s Code § 8.01-93 — equally contemplated that ‘goods or chattels’ are personal property not attached to the land,” the judge wrote.

Here, Gardiner recanted the court’s prior opinion that only goods or chattels found on real property could be partitioned.

“The court is now of the opinion, however, based on the origins and evolution of Code § 8.01-93, that Code § 8.01-93 permits the partition or, in the alternative, the sale, of ‘goods or chattels’ regardless of whether they are found on real property being partitioned,” he wrote.

No market value

Gardiner rejected Mr. Heidemann’s argument that embryos don’t have market value because it’s illegal to pay for an embryo in the United States.

“It is unclear whether Mr. Heidemann attempted to mislead the court intentionally, or whether Mr. Heidemann failed to research the issue fully, but Mr. Heidemann’s interpretation of the term ‘human fetal tissue’ is contrary to the statutory definition of the phrase,” Gardiner wrote.

In fact, federal law defined “human fetal tissue” to mean “‘tissue or cells obtained from dead human embryo or fetus after a spontaneous or induced abortion, or after a stillbirth,’” the judge noted.

“Thus, contrary to what Mr. Heidemann suggested to the court, the statutory definition of ‘human fetal tissue’ does not include cryopreserved human embryos.”