Wendy Norman v. Xytex Corporation ( 2021 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 7, 2021
In the Court of Appeals of Georgia
A19A0445. NORMAN et al. v. XYTEX CORPORATION et al.
REESE, Judge.
This case is before us on remand from the Supreme Court of Georgia. In the
original case, Norman v. Xytex Corporation,1 (“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.
1
350 Ga. App. 731 (830 SE2d 267) (2019).
In Norman v. Xytex Corporation,2 (“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
2
310 Ga. 127 (848 SE2d 835) (2020).
3
Id. at 133 (2) (b).
4
Id. at 138 (2) (e).
5
Id. at 128.
6
Id. at 138 (2) (e) (citing Atlanta Obstetrics & Gynecology Group v. Abelson,
260 Ga. 711 (398 SE2d 557) (1990)).
2
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.
3