11/22/2013 10:06 EST | Updated 01/25/2014 04:01 EST

Who Is Responsible When A Sperm Freezer Defrosts?

A man who says his sperm was destroyed when power was cut to a freezer at University of B.C. is one step closer to his day in court.

Howard Lam is the lead plaintiff in a class action lawsuit against the university looking for damages.              

His lawyer Sandy Kovacs says when Lam was diagnosed with cancer in the late 1990s his oncologist advised him to freeze his sperm in case he wanted children in the future.

So Lam arranged to have a sample kept in a cryopreservation unit in the andrology lab at UBC in Vancouver. The special freezer preserved the sperm by keeping it at temperature of –130 C in liquid nitrogen.

But in the lawsuit Lam alleges that his sperm died, along with samples from 400 other people, when the power supply to the freezer was cut off and the liquid nitrogen levels dropped to low.

"In or about 2002 the sperm was irreversibly damaged. The sperm had been kept in a freezer that had simply been plugged into a wall. There was no back-up power supply," said Kovacs         

This week Justice J. Butler ruled that UBC can't rely on a clause in the contract that denied liability for negligence.

That means the class action lawsuit will go ahead, says Kovacs.             

"Oh they are happy... because they didn't like the notion that UBC would get off scot-free."

Lawyers from both sides are now trying to determine trial dates to settle this matter.             

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