No harm, no foul. And no case. That is the lesson of Klosowski v. FPG Labs, LLC, 2025 WL 2532500 (D. Del. Sept. 3, 2025). (Yes, the case is over a year old. But this bundle of joy just popped up on our Lexis doorstep this week.)
Klosowski was a putative class action against fertility clinics over genetic testing of embryos. The clinics offered preimplantation testing to screen embryos for chromosomal abnormalities. The defendants promised that the testing was “98% accurate, increases the chance of pregnancy, decreases the chance of miscarriage, leads to a higher chance of a healthy pregnancy, and reduces the time in pregnancy.” The nine plaintiffs in Klosowski cited studies they said put the lie to the defendants’ claims. That meant, according to the plaintiffs, that they had overpaid for the testing. To put a finer point on it, the plaintiffs claimed they had been deprived of the benefit of the bargain. That could conceivably be a viable harm, but not in this case.
The plaintiffs filed a class action complaint asserting 13 claims for violations of state consumer protection statutes, common law fraud, breach of warranty, and unjust enrichment. The complaint was brought on behalf of the nine named plaintiffs, a nationwide class, and five subclasses from California, Louisiana, Nevada, North Carolina, and Texas.
The defendants moved to dismiss the case for lack of standing and failure to state a claim. They were right to do so, because what we have in Klosowski is yet another economic loss (no personal injury) only claim.
The would-be class representatives could not show any actual injury to themselves and thus did not have standing. To have standing to sue, plaintiffs must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The plaintiffs bear the burden of showing all three components of standing, and they could not do so here. Third Circuit law is clear that allegations that a product is flawed as to others are not relevant to determining whether named plaintiffs have standing themselves. While attacking the scientific validity of the defendant’s tests in general, the Klosowski plaintiffs did not allege that anything bad actually happened to them. There were no allegations (because, of course, they would create individualized issues) that any of the putative class representatives failed to become pregnant, suffered a miscarriage, or experienced a medically compromised pregnancy. Indeed, the complaint contains no mention of harm to the plaintiffs at all. There were general references to possible harms, but the plaintiffs’ “conclusory assertions of harm are all the more implausible here given that some of these adverse outcomes are directly in conflict with and mutually exclusive of one another.”
Comsequently, the Klosowski court dismissed the class action complaint. The court did afford the opportunity to amend, except for the claims under the Louisiana Unfair Trade Practices Act, where even the plaintiffs recognized they were irretrievably sunk.
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