Nine more couples sue IVF clinic, alleging staff implanted 'dead' embryos: Lawsuit

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(NEWPORT BEACH, Calif.) -- Nine more couples are suing an in vitro fertilization provider saying it destroyed their embryos, but still implanted the nonviable embryos despite knowing they were not viable.

In a joint lawsuit filed Tuesday, the couples allege that workers at Ovation Fertility in Newport Beach, California, exposed the embryos to lethal amounts of "poison." The couples underwent implantations of the nonviable embryos between Jan. 18, 2024, and Jan. 30. 2024, none of which were successful.

The suit alleges the couples blamed themselves and their bodies in the days and weeks after their failed pregnancies -- some even undergoing medical procedures to find out what went wrong -- until late February and early March when Ovation Fertility started to reveal to their physicians that something had gone wrong at the labs.

The suit alleged that Ovation Fertility only disclosed something had gone wrong when several fertility doctors questioned why there was a 0% success rate for the embryos that had been thawed over a two-week period, when the success rate is normally 75%.

Two other couples had announced a similar lawsuit last week saying their embryos were destroyed when a lab employee wrongly used hydrogen peroxide instead of a sterile solution in an incubator.

The nine couples who came forward Tuesday are suing on multiple grounds, including negligence; medical battery; concealment; intentional misrepresentation; negligent misrepresentation; negligent hiring, retention and supervision; and loss of consortium, and are seeking a jury trial.

Ovation Fertility did not respond to ABC News' request for a comment on Tuesday's suit but said last week that it has protocols in place to protect the "health and integrity of every embryo under our care."

"This was an isolated incident that impacted a very small number of patients, and we have been in close contact with those patients since this issue was discovered. We are grateful for the opportunity to help patients build a family and will continue to implement and enforce rigorous protocols to safeguard that process," Ovation Fertility said in a statement.

The suit alleges that Ovation Fertility gave physicians various reasons for the 0% success rate, including blaming temperature levels, pH levels, carbon dioxide and other gas levels and incubator equipment failure -- but the patients were told and believe that hydrogen peroxide was used instead of distilled water.

Plaintiffs were allegedly told that Ovation's operations were riddled with incompetence, including hiring inexperienced, cheap, unqualified and untrained employees to cut corners and maximize profits at the expense of patients, according to the suit.

The couples allege that one of Ovation's embryologists has previously frozen the wrong embryos on the wrong device, lost embryos during the biopsy process and conducted biopsies of embryos incorrectly, leading to the harm and/or degeneration of embryos -- and that Ovation was aware of mistakes that had led to the loss or destruction of embryos, the lawsuit alleges.

The couples also accuse Ovation of actively trying to conceal mistakes made from patients and fertility physicians, according to the lawsuit. The suit alleges Ovation tried to "trick" patients into signing waivers of their claims and non-disparagement agreements.

The plaintiffs are asking for an unspecified amount of damages.

'I was completely shocked'

Brooke Berger, 37, and her husband, Bennett Hardy, 33, are among the couples named in the new lawsuit. Berger told ABC News Monday that she and Hardy had struggled with fertility issues and began IVF in Colorado, where they were living at the time, in summer 2022.

The first transfer resulted in an ectopic pregnancy, according to Berger. She said she needed to have surgery and one of her fallopian tubes had to be removed, so the rest of their embryos were frozen.

When Hardy got a job in Orange County, he and Berger moved to Fullerton -- 25 miles southeast of Los Angeles -- where they currently reside, in July 2023. They moved their embryos to Ovation Fertility because it is the clinic their new doctor works with, in November 2023, Berger said.

"Our last provider, he was a small practice. They stored everything on site, but they took really good care of our embryos," Berger said. "And we just sort of assumed that when we went to the big corporation that had all these resources that they would be probably even safer there, and I've just now learned how sort of naïve that assumption was."

In the lawsuit, Berger and Bennett, along with the other couples, allege that Ovation Fertility "recklessly and wrongfully ... exposed these embryos to lethal amounts of hydrogen peroxide (or some other caustic agent), which killed them." The lawsuit alleges the clinic knew the embryos were nonviable but did not disclose this to the couples.

Berger said she and her husband did a transfer of their last two embryos in January and were allegedly told by their doctors there was a greater than 50% success rate. However, the implantation was unsuccessful.

The lawsuit alleges that Ovation Fertility did not reveal what happened to the patients' fertility physicians until late February and early March. Berger said her fertility doctor contacted the couple to tell them what happened about a month and a half after the failed implantation.

"I was just completely shocked,' she said. "I really couldn't believe it. ... Hearing what actually happened was just completely shocking. I mean, I don't understand how that kind of mistake could be made."

Robert Marcereau, the couple's attorney and the attorney of three other couples in the lawsuit, said he hopes the filing encourages other couples who may have been victims to come forward and share their stories.

"Families put their trust in Ovation, who bill themselves as a leader in the fertility industry," he told ABC News. "We have found out tragically, that that's not the case ... and it's important for us to bring this lawsuit not only to try to help these families and get recoveries for them, but also to shine a light on what Ovation is doing and hopefully get some changes made."

Berger said after the last transfer was unsuccessful -- before they learned what happened -- both she and her husband were devastated. She said she did not want her husband to see how upset she was.

"I went in the very back part of our house I thought was quiet and just cried and cried and cried, and pulled myself together and I came out to the kitchen and saw him sitting there with just a devastated look on his face like he felt he was the cause of all of this," she said. "He wasn't. This is on Ovation's head, and I just don't know if I could forgive them for making my husband look like that."

The couple is still planning to try to have children and are currently undergoing ovarian stimulation to try and retrieve more eggs and, subsequently, produce more embryos, according to Berger. They are also looking for a doctor who does not work with Ovation Fertility.

By sharing her and Hardy's story, Berger said she hopes this forces Ovation Fertility to make changes to its lab practices to prevent a similar situation from occurring.

"I really hope that this draws attention to Ovation's lab practices and that it forces them to make very concrete changes so that this does not happen again," she said. "These are entirely preventable errors, and there's really no excuse for it, and they need to fix this. And if we don't put pressure on them to do this, I don't think anyone else will."

Tuesday, April 23, 2024 at 3:21PM by Nadine El-Bawab and Mary Kekatos, ABC News Permalink