Fertility Case Plaintiffs Agree on Settlements

Women and couples who sued the University of California over alleged misuse of their eggs by three former UC Irvine fertility doctors have agreed to cash settlements ranging from $5,000 to $500,000, according to court documents made public late Friday afternoon.

The 41 settlements, approved by Orange County Superior Court Judge Robert E. Thomas, total about $6 million. Thomas unsealed the settlements after the state Supreme Court agreed with his earlier ruling that they must be made public.

Thomas initially delayed unsealing the records to allow attorneys time to appeal the decision to the U.S. Supreme Court. However, no such appeal was filed.

The settlements, which average about $150,000, are part of the $14 million UC regents have agreed to pay so far in the scandal.

Court records released Friday do not detail specific complaints, but they grew out of allegations that the three UCI doctors--Ricardo H. Asch, Jose P. Balmaceda and Sergio C. Stone--stole eggs harvested from women undergoing fertility treatments at four Southern California medical facilities from the late 1980s through the early 1990s. The fertilized eggs then allegedly were implanted in other women or shipped off to medical research laboratories.

“It helps to be acknowledged and to win something, and it also helps that they will be monitoring this field of medicine more closely so other women don’t have to go through what we did,” said plaintiff Kathleen Linden of Santa Ana, who agreed to a $250,000 settlement.

Linden’s lawsuit alleged that five of her eggs were misappropriated, but investigators never determined if any led to a birth.

“If there are children,” she said, “I hope they are being well taken care of.”

Linden and her husband, Frederick, turned to the clinic after eight years of unsuccessfully trying to conceive. They later had a baby by natural means.

“I was able to have a child afterward, so I am not as bitter as the other women,” Linden said. “[But] what I’m really looking for is for those [doctors] to wind up in jail.”

Of 102 lawsuits initially filed, two were settled last year and one was dismissed. The records opened Friday bring to 43 the number of resolved cases; about 20 are pending; the remainder are in the process of being settled, said Melanie Blum, who represents 28 of the couples.

The first two cases settled, for $600,000 and $510,000, helped set the damage amounts for the later settlements, Blum said.

The settlements follow a 10-step ranking of each couple’s injury or grievance. The highest ranking involved women who never conceived a child but whose eggs were implanted in another woman who later bore a child. The second-highest category involved a woman whose eggs were given to another, but both she and the recipient had babies.

Other categories involved women whose eggs were used to impregnate a patient who received eggs from several donors, blurring the baby’s lineage.

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The lowest categories involved a woman whose eggs were given to a recipient who either did not conceive or who miscarried. Also, there were categories for allegations of medical malpractice, eggs that could not be accounted for and research misconduct.

The settlement amounts “were not achieved by throwing dice or with a Ouija board,” Blum said. “It was done through carefully analyzing each case and each fact situation.”

John and Deborah Challender of Corona, among the most high profile of the plaintiffs, whose story led to the 1996 docudrama “For the Future: The Irvine Fertility Scandal,” agreed to a $450,000 settlement. Eggs taken from Deborah resulted in the birth of twins.

“It doesn’t close the book until Dr. Asch is held accountable for what he did,” said John Challender, who with his wife filed one of the first lawsuits. “No dollar amount in the settlement will negate what happened. Until Dr. Asch faces the victims, then there is no justice.”

After a pause, he added: “I don’t even know if that would resolve anything.”

Challender described the experience as “devastating.”

“It saddens us a great deal. It’s a very difficult lesson in life,” he said, adding that he regrets other states have not followed California’s lead in adopting laws to more closely monitor the handling of eggs in fertility clinics. “I’m a little disheartened it did not have more of an impact across the country.”

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The records on 41 of the settlements were released Friday over the continued objections of Blum and other plaintiffs’ lawyers.

Blum argued that details of the settlements should not be made public until she and other lawyers could appeal to federal courts for a ruling on which carries more weight, the couples’ right to privacy or the public’s right to know.

She told Thomas on Friday that an appeal is being prepared, but that opening the records before she could file it would render the appeal moot.

“There is a desire for privacy among the people I represent,” Blum said. “There’s a real desire to not have any more publicity, with their name on it, with the amount of money on it, [and] what they went through.”

Thomas rejected her arguments, saying that he had left open sufficient time for an appeal to be filed with the federal courts, and no filing was made.

The scandal emerged in February 1994 when a whistle-blower accused Asch, Balmaceda and Stone, staff physicians at the UCI Center for Reproductive Health, of not fully reporting income at the clinic they operated at the hospital, and of prescribing a drug not approved by the U.S. Food and Drug Administration.

A second complaint followed in September 1994 accusing the doctors of implanting eggs without the donors’ consent. A subsequent UCI investigation led to a lawsuit by the hospital accusing the doctors of misconduct.

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The first of more than 100 civil suits by couples enrolled in the fertility programs was filed in June 1995.

Asch, Balmaceda and Stone have been indicted on mail and insurance fraud charges. Asch is in Mexico, and Balmaceda is in Chile. No extradition proceedings are underway. Stone goes on trial Sept. 15 in U.S. District Court. Each has denied intentional wrongdoing.

Although Asch emerged as the central figure in the scandal, his lawyer, Lloyd Charton, hailed the settlements released Friday because they free Asch from further liability.

“I’m glad to see the university live up to its responsibility,” Charton said. “It is appropriate for the university to step up to the plate and take responsibility. . . . You will never find any evidence that Dr. Asch did anything intentionally wrong to any woman.”

Blum disagreed.

“I don’t believe this vindicates Dr. Asch,” she said. “Dr. Asch was a tenured faculty member for the university. It’s difficult for the university to avoid having to take responsibility.”

Asch, she said, had to know what he was doing when the eggs were swapped and misappropriated.

“It is impossible for this to have occurred except in the operating room,” Blum said.

The clinic’s intricate record-keeping and coding of eggs in the petri dishes told doctors where the eggs were going, she said. Those records began in the operating room, when eggs were taken from the women, she said.

“This is not something that could happen accidentally, because records show a careful tracking of the eggs by the biologist,” Blum said. “This was actually planned and done in spite of the fact that the patients had marked ‘no’ [to donate eggs] on the consent form.

“An accident might happen once, or maybe a few times. An accident doesn’t happen 150 times, and that’s what we’ve seen.”

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Settlement Breakdown

The settlements made public Friday ranged from $5,000 to $500,000. One couple settled for undisclosed lawyers’ costs:

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Number of Dollar range settlements 400,000-500,000 4 300,000-399,999 3 200,000-299,999 7 100,000-199,999 4 50,000-99,999 8 5,000-49,999 14

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Source: Orange County Superior Court documents