Norman v. Xytex Corporation

359 Ga.App. 666

859 S.E.2d 826 (Mem)

NORMAN et al.

v.XYTEX CORPORATION et al.

A19A0445

Court of Appeals of Georgia.

June 7, 2021

Heninger Garrison Davis, W. Lewis Garrison, Jr., James F. McDonough III, for Appellants.

FisherBroyles, Thomas E. Lavender III, Alison L. Currie, Andrew J. King, for Appellees.

Timothy D. Lytton, Liza S. Vertinsky, amici curiae.

Reese, Judge.

This case is before us on remand from the Supreme Court of Georgia. In the original case, Norman v. Xytex Corporation¹ (" Norman I "), Wendy and Janet Norman ("the Normans") appealed the trial court's ruling granting in part and denying in part the motion to dismiss filed by Xytex (Xytex Corporation and Xytex Cryo International, LTD), J. Todd Spradlin, and Mary Hartley ("the Defendants") for damages based on sperm provided by Xytex, which resulted in the birth of the Normans’ child. We affirmed the trial court's ruling.

In Norman v. Xytex Corporation² (" Norman II " ), the Supreme Court of Georgia granted certiorari to consider whether we erred in affirming the trial court's ruling on the Defendants’ motion to dismiss. The Supreme Court affirmed our holding that it was appropriate to dismiss the Normans’ claims that would require recognizing their child's life as an injury because "Georgia law does not recognize claims for damages that depend on life as an injury."³ However, the Supreme Court also held that, "[g]iven the allegations in the complaint, the Normans have asserted at least some damages that are not necessarily dependent on recognizing [the child's] life as an injury,"⁴ and that "claims arising from specific impairments caused or exacerbated by [the Defendants’] alleged wrongs may proceed, as may other claims that essentially amount to ordinary consumer fraud."⁵ The Supreme Court, therefore, reversed our judgement to the extent it held "that Abelson barred nearly all of the Normans’ claims," and remanded the case to determine which claims may proceed.⁶ The Supreme Court stated that we could make this determination, or remand the case and allow the trial court to determine which claims could proceed.

Now that the case is before us on remand, we vacate our opinion in Norman I , and adopt the Supreme Court's opinion in Norman II as our own. We therefore affirm in part and reverse in part the trial court's ruling on the Defendants’ motion to dismiss and remand to the trial court with instruction to determine, consistent with the Supreme Court's holding in Norman II , whether and to what extent the Normans have adequately pled claims for review that do not derive their injury from their child's life itself.

Judgment affirmed in part and reversed in part, and case remanded.

Miller, P. J., and Rickman, P. J., concur.

1 350 Ga. App. 731, 830 S.E.2d 267 (2019).

2 310 Ga. 127, 848 S.E.2d 835 (2020).

3 Id. at 133 (2) (b), 848 S.E.2d 835.

4 Id. at 138 (2) (e), 848 S.E.2d 835.

5 Id. at 128, 848 S.E.2d 835.

6 Id. at 138 (2) (e), 848 S.E.2d 835 (citing Atlanta Obstetrics &...