Opinion
A20A0040
08-30-2021
CRUZ et al. v. XYTEX CORPORATION et al.
James Francis McDonough III, William Lewis Garrison Jr., David B. Newdorf, Brandy Lewis Robertson, Nancy Hersh, for Appellant. Alison Lee Currie, Atlanta, Thomas Edward Lavender III, Linda J. Jordan Jordan, for Appellee.
James Francis McDonough III, William Lewis Garrison Jr., David B. Newdorf, Brandy Lewis Robertson, Nancy Hersh, for Appellant.
Alison Lee Currie, Atlanta, Thomas Edward Lavender III, Linda J. Jordan Jordan, for Appellee.
Reese, Judge.
This case is before us on remand from the Supreme Court of Georgia. In the original case, Cruz v. Xytex Corporation , (" Cruz I "), Jennifer Cruz, C. F. J., J. T. S., M. S., and L. S. ("the Appellants") appealed from the trial court's order granting a motion to dismiss filed by Xytex Corporation, Xytex Cryo International, J. Todd Spradlin, and Mary Hartley (collectively, "Xytex") for damages based on sperm procured from Xytex that resulted in children with developmental issues. We affirmed in part and vacated in part.
No. A20A0040, ––– Ga ––––, 862 S.E.2d 733 (Ga. Ct. App., June 24, 2020).
In Norman v. Xytex Corporation , the Supreme Court of Georgia held that claims which would require recognizing a child's life as an injury could be dismissed because "Georgia law does not recognize claims for damages that depend on life as an injury." However, it also held that "[a]lthough Georgia law does not recognize life as an injury, there can be injuries that predate a child's birth and are not premised on the child's life as an injury."
310 Ga. 127, 133 (2) (b), 848 S.E.2d 835 (2020).
Id. at 134 (2) (c), 848 S.E.2d 835.
[I]n both pre- and post-conception cases, Georgia law has recognized that a cognizable claim may exist for pre-birth injuries to a child without deeming the child's existence an injury. Any such claims ... are not wrongful birth claims and should not [be] dismissed on that ground.
Id. at 135 (2) (d), 848 S.E.2d 835 (punctuation and footnote omitted).
As the Supreme Court further stated, "[t]o the extent that [the Appellants] have pled claims predicated on injuries that are not predicated on life as an injury, these claims are not barred[.]"
Id. at 138 (2) (e), 848 S.E.2d 835.
Therefore, in light of the Supreme Court's ruling, we vacate the trial court's ruling on the Appellants’ motion to dismiss, and remand to the trial court with instruction to determine, consistent with the Supreme Court's decision in Norman , whether and to what extent the Appellants have adequately pled claims that do not derive their injury from their children's lives.
Judgment vacated and case remanded with direction.
Rickman, C. J., and Miller, P. J., concur.