Defendant's Attorney: Mobile, Alabama insurance defense lawyers represented the Defendants.

Description: Mobile, Alabama personal injury lawyers represented the Plaintiffs who sued the Defendants on wrongful death theories.

James LePage and Emily LePage sued Mobile Infirmary Association d/b/a Mobile Infirmary Medical and The Center for Reproductive Medicine, P.C. on wrongful death theories claiming that they failed to maintain embryos in their possession.

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"The plaintiffs brought two lawsuits against the Center and the Association. The first suit was brought jointly by the LePages and the Fondes; the second was brought by the Aysennes. Each set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act, § 6-5-391. In the alternative, each set of plaintiffs asserted common-law claims of negligence (in the LePages and Fondes' case) or negligence and wantonness (in the Aysennes' case), for which they sought compensatory damages, including damages for mental anguish and emotional distress. The plaintiffs specified, however, that their common-law claims were pleaded “in the alternative, and only [apply] should the Courts of this State or the United States Supreme Court ultimately rule that [an extrauterine embryo] is not a minor child, but is instead property.” In addition to those claims, the Aysennes brought breach-of-contract and bailment claims against the Center.

The Center and the Association filed joint motions in each case asking the trial court to dismiss the plaintiffs' wrongful-death and negligence/wantonness claims against them in accordance with Rules 12(b)(1) and 12(b)(6), Ala. R. Civ. P. The trial court granted those motions. In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'” or “'child,'” and it therefore held that their loss could not give rise to a wrongful-death claim.

The trial court also concluded that the plaintiffs' negligence and wantonness claims could not proceed. Specifically, the court reasoned that, to the extent those claims sought recovery for the value of embryonic children, the claims were barred by Alabama's longstanding prohibition on the recovery of compensatory damages for loss of human life. And to the extent the claims sought emotional-distress damages, the trial court said that they were barred by the traditional limits to Alabama's “zone of danger test,” which “limits recovery for emotional injury only to plaintiffs who sustained a physical injury ․ or were placed in immediate risk of physical harm ․.”

The trial court's judgments disposed entirely of the LePages' and the Fondes' claims, and left the Aysennes with only their breach-of-contract and bailment claims. The Aysennes asked the trial court to certify its judgment as final under Rule 54(b), Ala. R. Civ. P., which the trial court did. Both sets of plaintiffs appealed."

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See: https://caselaw.findlaw.com/court/al-supreme-court/115829667.html

Outcome: We reverse the trial court's dismissal of the plaintiffs' wrongful-death claims in both appeal no. SC-2022-0515 and appeal no. SC-2022-0579. Because the plaintiffs' alternative negligence and wantonness claims are now moot, we affirm the trial court's dismissal of those claims on that basis.

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