Norman v. Xytex Corp., S19G1486

CourtSupreme Court of Georgia
Writing for the CourtPeterson, Justice.
Citation848 S.E.2d 835
Docket NumberS19G1486
Decision Date28 September 2020
Parties NORMAN et al. v. XYTEX CORP. et al.

848 S.E.2d 835

NORMAN et al.
XYTEX CORP. et al.


Supreme Court of Georgia.

Decided: September 28, 2020
Reconsideration Denied October 19, 2020

James Francis McDonough, III, General Counsel, Heninger Garrison & Davis, LLC, 3621 Vinings Street, Suite 4320, Atlanta, Georgia 30339, Nancy Hersh, Kate Hersh-Boyle, Hersh & Hersh, 601 Van Ness Avenue, Suite 2080, San Francisco, California 94102-6396, David Blake Newdorf, Newdorf Legal, 630 Thomas L. Berkley Way, Suite 103, Oakland, California 94612, William L. Garrison, Jr., Heninger Garrison Davis, 2224 First Avenue North, Birmingham, Alabama 35203, Attorneys for the Appellant.

Thomas Edward Lavender, III, Alison Lawrence Currie, Andrew John King, Fisherbroyles, LLP, 945 East Paces Ferry Rd, Ste 2000, Atlanta, Georgia 30326, Attorneys for the Appellee.

Timothy D. Lytton, Georgia State University College of Law, 85 Park Pl NE, Atlanta, Georgia 30303, Attorneys for the Amicus Appellant.

Peterson, Justice.

848 S.E.2d 837

"Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization." Fulton-DeKalb Hosp. Auth. v. Graves , 252 Ga. 441, 444 (3), 314 S.E.2d 653 (1984) (quoting Cockrum v. Baumgartner , 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, 389 (1983) ). For this reason, this Court has repeatedly refused to allow damages in tort that necessarily presume that life itself can ever be an injury. See, e.g., Etkind v. Suarez , 271 Ga. 352, 352-353 (1), 519 S.E.2d 210 (1999) ; Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990) ; Graves , 252 Ga. at 443-444 (3), 314 S.E.2d 653. We reaffirm that rule today. But that rule does not fully resolve this appeal, which is about what sort of damages the rule actually bars.

Wendy and Janet Norman allege that Xytex Corporation, a sperm bank, sold them human sperm under false pretenses about the characteristics of its donor, and that the child conceived with that sperm now suffers from a variety of impairments inherited from the sperm donor. The Court of Appeals affirmed the dismissal of all but one of the Normans’ claims on the basis of Etkind and Abelson. See Norman v. Xytex Corp. , 350 Ga. App. 731, 732-734, 830 S.E.2d 267 (2019). We granted certiorari and now hold that claims arising from the very existence of the child are barred, but claims arising from specific impairments caused or exacerbated by defendants’ alleged wrongs may proceed, as may other claims that essentially amount to ordinary consumer fraud. We affirm in part, reverse in part, and remand the case for further proceedings consistent with the principles we explain herein.

1. Relevant facts of the case.

Because we are reviewing an order on a motion to dismiss, we take the allegations in the complaint as true and resolve all doubts in favor of the Normans. See Williams v. DeKalb County , 308 Ga. 265, 270 (2), 840 S.E.2d 423 (2020). In that light, Xytex represented that it carefully screened the personal health, criminal history, and family history of all donors; that donors were put through rigorous physical exams and interviews to confirm the accuracy of the information donors provided; and that because of its thorough screening process, fewer than five percent of candidates became donors. Xytex also represented that it required sperm donors to update their medical history every six months; that the company would update the donors’ profiles with any new information; and that, if the company received "medically significant" information about a donor, it would notify patients who used that donor's sperm. Xytex promoted Donor #9623 as one of its "best" sperm donors on account of his profile in which he represented that he was a Ph.D. candidate with an IQ of 160 and had no history of mental health issues or criminal activity.

On his Xytex questionnaire, Donor #9623 lied about his mental health. Xytex never asked him to verify his answers, supply his medical records, or sign a release for such records. Xytex also never asked about his criminal history or asked him to provide any identification. At Donor #9623's initial visit, Xytex's employee Mary Hartley told him that intelligent donors with high levels of education were more popular sperm donors and encouraged Donor #9623 to exaggerate his IQ and education. Although he claimed he had advanced degrees, Donor #9623 had no degrees at all when he completed his questionnaire.

During the time Donor #9623 sold sperm to Xytex, from 2000 to 2016, he was arrested for burglary, trespassing, DUI, and disorderly conduct; he pleaded guilty to burglary in 2005.1 After a lawsuit was filed against Xytex in 2014 concerning Donor #9623, he provided Xytex with forged graduation diplomas that it accepted without question.

Based on the representations that Xytex made regarding its screening procedures and the representations made in Donor #9623's profile, the Normans purchased Donor #9623's sperm. Wendy was inseminated with

848 S.E.2d 838

the sperm, and she gave birth to a son, A.A., in June 2002. Xytex was not involved in the insemination process.

A.A. has been diagnosed with Attention Deficit Hyperactivity Disorder and Thalassemia Minor, an inheritable blood disorder for which Wendy is not a carrier. A.A. regularly has suicidal and homicidal ideations, requiring multiple periods of extended hospitalizations. A.A. regularly sees a therapist for his anger and depression, and he takes ADHD, anti-depressant, and anti-psychotic medications.

In March 2017, A.A. conducted an internet search on Donor #9623, and he and the Normans discovered in publically available documents that the representations Xytex made regarding Donor #9623 were false. In reviewing those documents and through interviewing Donor #9623, the Normans learned that, before Donor #9623 began selling his sperm to Xytex in 2000, he had been hospitalized for mental health treatment and diagnosed with psychotic schizophrenia, narcissistic personality disorder, and significant grandiose delusions.

Following their discoveries, the Normans brought suit against Xytex (Xytex International and Xytex Corporation, a subsidiary), Hartley, Xytex's Medical Director J. Todd Spradlin, and a number of John Does (collectively, the "Defendants"). The Normans raised claims for fraud, negligent misrepresentation, products liability and/or strict liability, products liability and/or negligence, breach of express warranty, breach of implied warranty, battery, negligence, unfair business practices, specific performance, false advertising, promissory estoppel, and unjust enrichment. The Defendants filed a motion to dismiss the complaint on various grounds, including on the basis that the Normans were asserting "wrongful birth" claims that are not legally recognized under Abelson . The trial court denied the Defendants’ motion to dismiss in part and granted it in part,2 concluding that all of the Normans’ claims for relief, with the exception of the specific performance claim,3 were claims for "wrongful birth camouflaged as some other tort."

The Normans appealed to the Court of Appeals. The Court of Appeals held that despite the Normans’ attempts to characterize their claims as some other cause of action, all of their claims "directly relate to the fact that, had they known the health, educational and criminal history of Donor #9623, they would not have purchased his sperm from the Appellees." Norman , 350 Ga. App. at 734, 830 S.E.2d 267 (punctuation omitted). Relying on this Court's statement in Abelson "that life, even life with severe impairments, may [not] ever amount to a legal injury[,]" the Court of Appeals affirmed the trial court's dismissal of the Normans’ claims. Id. (citation omitted).

2. Abelson does not bar every claim connected to the conception or birth of a child.

The Normans argue that the Court of Appeals erred in concluding that Abelson barred all of their claims for relief because Abelson ’s holding must be read narrowly in the light of the facts presented in that case. They also argue that the facts of this case more closely resemble the facts of Fulton-DeKalb Hosp. Auth. v. Graves , 252 Ga. 441, 314 S.E.2d 653 (1984), where this Court allowed a claim for damages arising from a

848 S.E.2d 839

negligent sterilization procedure. Although neither of these cases squarely address all of the claims raised by the Normans, some of the principles set forth in these cases apply to bar at least some of their claims. But the Court of Appeals erred in applying Abelson broadly to bar nearly all of their claims.

We review the grant of a motion to dismiss de novo. Northway v. Allen , 291 Ga. 227, 229, 728 S.E.2d 624 (2012). And the well-established test that must be satisfied before a motion to dismiss can be granted is a demanding one:

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.


To continue reading

Request your trial
1 cases
  • Norman v. Xytex Corp., S19G1486
    • United States
    • Supreme Court of Georgia
    • 28 d1 Setembro d1 2020
    ...Ga. 127848 S.E.2d 835NORMAN et al.v.XYTEX CORP. et al.S19G1486Supreme Court of Georgia.Decided: September 28, 2020Reconsideration Denied October 19, 2020James Francis McDonough, III, General Counsel, Heninger Garrison & Davis, LLC, 3621 Vinings Street, Suite 4320, Atlanta, Georgia 30339, Na......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT