E.M. v. Shady Grove Reprod. Sci. Ctr. P.C., Civil Action No. 19-657 (RC)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRUDOLPH CONTRERAS, United States District Judge
Citation496 F.Supp.3d 338
Decision Date07 October 2020
Docket NumberCivil Action No. 19-657 (RC)
Parties E.M., Plaintiff, v. SHADY GROVE REPRODUCTIVE SCIENCE CENTER P.C., Defendant.

496 F.Supp.3d 338

E.M., Plaintiff,

Civil Action No. 19-657 (RC)

United States District Court, District of Columbia.

Signed October 7, 2020
Filed October 21, 2020

496 F.Supp.3d 357

Jay M. McDannell, Lee E. Berlik, BerlikLaw LLC, Reston, VA, for Plaintiff.

Lori Vaughn Ebersohl, Apatoff Peters Ebersohl, Falls Church, VA, for Defendant.



RUDOLPH CONTRERAS, United States District Judge


Plaintiff E.M. filed this action, bringing a number of claims against her longtime fertility center, Shady Grove Fertility ("SGF") after she was dismissed as a patient in early 2019. E.M. claims that her dismissal violated the D.C. Human Rights Act ("DCHRA") because it was discriminatory and retaliatory, and that in dismissing her SGF breached their contractual or quasi-contractual agreements and committed several other torts. She also alleges that SGF has violated a D.C. consumer protection statute.

SGF responded by filing a motion to dismiss E.M.’s complaint in its entirety for failure to state a claim. Since then, the parties have conducted considerable discovery, SGF has filed a motion for summary judgment, and E.M. has filed a motion for partial summary judgment. SGF also filed a motion in limine. Here the Court addresses all four motions and, in so

496 F.Supp.3d 358

doing, pares down this case considerably for trial. The motion to dismiss is denied as moot and the motion in limine is denied.

A number of factual disputes remain to be considered at trial, but with the benefit of the parties’ discovery and summary judgment briefing, the Court can take several theories of liability off the table at this stage. SGF is entitled to summary judgment on certain theories of DCHRA liability, on contract and quasi-contract claims relating to E.M.’s egg-freezing procedures, and on all E.M.’s fraud-related claims. On E.M.’s claims under a D.C. consumer protection statute, on her unjust enrichment claims, and on her claim for intentional infliction of emotional distress, SGF is entitled to partial summary judgment narrowing down the scope of the claims for trial. Aspects of those three claims may go to trial, along with E.M.’s claims for source of income discrimination and retaliation under the DCHRA and her contract and quasi-contract claims relating to SGF's Patient Bill of Rights. Accordingly, SGF's motion for summary judgment is granted in part and denied in part, while E.M.’s motion for partial summary judgment is denied.


In 2012, at the age of thirty-nine, E.M. began looking for a fertility clinic that offered an egg freezing program, under which several of her eggs would be surgically removed and cryopreserved for future use in fertility treatments. Pl.’s Statement of Undisputed Material Facts ¶¶ 1–2 ("Pl.’s SMF"), ECF 53. During the search, she was drawn to SGF, a "medical practice specializing in the field of Assisted Reproductive Technology," Def.’s Statement of Undisputed Material Facts ¶ 1 ("Def.’s SMF"), ECF 50-1, which on its website and in other marketing materials claimed to have unparalleled experience in the field and highly skilled embryologists. Pl.’s SMF ¶ 135. E.M. ultimately decided to enroll as a patient that year, but, as is typically the case with these kinds of arrangements, she had to complete a fair amount of paperwork before she could undergo treatment. See Def.’s SMF ¶¶ 4, 7, 9, 18, 22. Among the forms she was provided was a "Patient Bill of Rights and Patient Responsibility Statement," ("PBOR") which, she says, "contained the material terms that SGF wanted to govern all interactions," and which, as E.M. saw it, "imposed obligations on each party." Compl. ¶ 28; see also Def.’s SMF ¶ 22; Ex. 20 ("PBOR"), ECF No. 50-22.2 Among other things, the PBOR stated that E.M. would provide accurate and complete information about matters relating to her health and would fulfill the financial obligations of her treatment promptly. See PBOR at 1. Meanwhile, it stated that she would have, among other benefits, "the opportunity to participate in decisions involving [her] healthcare," to "expect reasonable continuity of care," and the ability to "voice a complaint or grievance ... without fear of discrimination or reprisal." Id.

Before beginning treatment, E.M. was also given an eleven-page form titled "Consent for Oocyte (Egg) Retrieval, Cryopreservation and Storage," which provided an overview of the egg freezing program, took note of the program's risks, and outlined different options for egg disposal. Def.’s SMF Ex. 19 ("Egg Retrieval Consent"), ECF No. 50-21. The consent form further stated, in two different places, that SGF

496 F.Supp.3d 359

could choose "not to participate in the later thawing, fertilization, or transfer" of E.M.’s eggs "at its sole discretion." Id. at 8; see also id. at 9. These disclaimers were notable because they arguably conflicted with SGF's prior assurances in their various marketing materials that E.M. could return to use her frozen eggs whenever she was ready. See Pl.’s SMF ¶¶ 136–38. But the consent form's terms were non-negotiable, so E.M. signed it—along with all the other forms that SGF required—and in October 2012, she completed one egg freezing cycle, which produced six cryopreserved eggs. Def.’s SMF ¶ 20; see also Egg Retrieval Consent at 6–7, 10. E.M. paid roughly $7,500 for treatments and medications associated with that cycle, which included "approximately 20 medical procedures ... clinical consults, and the first year of storage of her frozen eggs." Pl.’s Resp. SMF ¶ 20.1. With those six eggs in storage, E.M. then spent the next few years trying to become pregnant through other means. See Pl.’s SMF ¶ 12. Her partner for these efforts was her "best friend," J.S. Compl. ¶ 35. E.M. and J.S. "are not married" and "do not share a household" but they "have maintained a long-term personal and sexually intimate relationship" for roughly a decade, and have been trying to have a child together since 2014. Pl.’s SMF ¶¶ 5–8. Between 2015 and 2018, they conceived naturally twice, but sadly neither pregnancy proceeded to viability. Id. ¶ 13. In the years in between those pregnancies, E.M. and J.S. together underwent multiple cycles of intra-uterine insemination ("IUI") and in vitro fertilization ("IVF") treatments at SGF. Def.’s SMF ¶ 30; Pl.’s SMF ¶¶ 3, 12. Though J.S. was "regularly and integrally involved" in the treatments, and often served as the point of contact with SGF, E.M. paid for all of her treatments herself—bills that eventually totaled around $48,936 in treatment costs, Pl.’s Resp. SMF ¶ 37.2, and another $33,402 for medications.3 Def.’s SMF ¶ 37. Unfortunately, the treatments were not successful. Pl.’s SMF ¶ 12.

By early 2019, E.M. was ready to try to become pregnant with the eggs she had frozen in 2012. Id. ¶ 39; Def's SMF ¶ 45. She returned to SGF for an appointment on January 15, during which she raised a few outstanding questions. See Def.’s SMF ¶ 46. Some of these questions were clinical in nature: E.M. sought the advice of her longtime doctor at SGF, Barbara Osborn, regarding what medications she should take during the egg thaw process, and if Osborn recommended the use of the "assisted hatching" medical technique. Pl.’s SMF ¶¶ 29, 32. E.M. raised these issues with her SGF nurse contact, Robin Peterson, but Peterson did not have immediate answers. See Pl.’s SMF ¶ 29.

E.M. had additional questions related to finances. She had long been aware of a "Shared Help Program" that SGF offered to patients whose household income was below a certain threshold and who met other criteria. Pl.’s SMF ¶ 48. Years earlier, E.M. had inquired about the program, but Osborn had told her that she was not eligible, because SGF's policy was to include J.S. and his income as part of E.M.’s household for purposes of calculating household income. See Def.’s SMF ¶¶ 49. E.M. had not previously challenged this determination, but as she began this new treatment stage she sought to have her potential eligibility reevaluated, given that her income taken alone "would qualify for

496 F.Supp.3d 360

[the] discounts" and she believed it was inappropriate to consider J.S.’s income as they "[were] not a financial unit." Id. ¶ 49.

E.M.’s final category of questions related to a new consent form that she had been provided. As E.M. understood it, this "Consent to Thaw" form would not allow her to thaw any of her frozen eggs without J.S.’s authorization, and it required J.S. to consent to procedures that involved only her body—such as the monitoring by SGF of E.M.’s endometrium lining in her uterus. Pl.’s SMF ¶¶ 51, 54. E.M. had no issue with J.S. "signing any consent items related to using his sperm to inseminate the eggs" or "making decisions regarding fertilized eggs and embryos," but she wanted to be the sole "individual responsible for making all decisions regarding treatment involving her...

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