UCI Maintains Silence on Retaliation Inquiry : Scandal: Co-writer denies officials' claim that report on treatment of fertility clinic whistle-blowers is unfinished.

TIMES STAFF WRITERS

As allegations about human egg misuse by its famed fertility experts mount, UC Irvine is trying to keep secret the results of a probe into whistle-blowers' complaints that they were subjected to a "common scheme of retaliation" by top administrators.

University officials have repeatedly refused to release their findings, saying the inquiry is not finished. But Charles Wiggins, one of two University of San Diego professors who investigated the retaliation complaints, said the report has been done for some time.

State Sen. Tom Hayden (D-Santa Monica), who is among dozens of legislators, attorneys and journalists pushing for copies of the report, said he was told by university officials that this "vital" report is being withheld simply because it lacks the signature of UCI Chancellor Laurel L. Wilkening.

"The longer they hold the report, the more suspicion they generate," said Hayden, who sought the document in preparation for a hearing on the fertility clinic scandal next Wednesday before the Senate Select Committee on Higher Education, which he heads.

While that doesn't prove a cover-up, Hayden said, the university's actions raise questions. "People start to wonder why. . . . Are they taking things out? Does it have explosive conclusions?"

Sidney Golub, UCI's executive vice chancellor, would not discuss the contents of the management audit or whether it would be released.

"I believe the university has been very forthright with the public about all the information we're developing," Golub said. "We have not tried in any way to avoid the complex issues that are presented, but we . . . can't [release information] bit by bit."

The university, however, has taken pricey measures to ensure that the three whistle-blowers, all former UCI Medical Center employees, don't speak about their allegations of clinic misconduct and UCI retaliation against them for coming forward.

The university has agreed to pay the three whistle-blowers $919,370 in settlements that include confidentiality clauses.

The whistle-blowers' complaints, detailed in a September letter to UCI, led university officials to sue Drs. Ricardo H. Asch, Jose P. Balmaceda and Sergio Stone last month. The three fertility specialists deny knowingly engaging in any wrongdoing.

The lawsuit alleges that the doctors transplanted human eggs without consent, gave patients a fertility drug not approved by the government and took hundreds of thousands of dollars that should have been reported to the university.

But the university has yet to detail what became of the whistle-blowers' complaints that they were punished for coming forward. In the September letter, an attorney for the three women said they were "subjected to a common scheme of retaliation."

Daniel John Yakoubian, the San Diego attorney who wrote the letter, said the university's willingness to settle with the women increased the more officials investigated the retaliation complaints. The women were paid $495,000, $325,000 and $98,000.

"The extent to which they take your claims seriously is reflected in the amount of money they paid," Yakoubian said. "The settlements were based on how much they were retaliated against."

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In a written statement, UCI officials said the agreements were "reached to settle any liability the university had for claims of retaliation and to avoid litigation. . . ."

Each of the whistle-blowers faces a substantial financial penalty if she discloses details of the complaints. The university is not bound by the confidentiality agreement because it is subject to disclosure under the California Public Records Act, said John Lundberg, a UC regents attorney.

But terse and at times pointed correspondence between the university and others involved in the investigation documents the extent of the university's unwillingness to disclose the findings of its retaliation inquiry.

Irvine attorney Patrick Moore, who represents Balmaceda, reiterated his demand for the report Monday after learning that the report's author said the document was complete.

The next day Moore received a fax from Robert H. Rotstein, a private attorney hired by the university to handle litigation against the doctors. The two-page letter accused Moore of making a "knowing and unwarranted attempt to interfere with the University's attorney-client and work product privilege."

Rotstein wrote that the report is "part of pending investigation" and accused Moore of improperly communicating with report co-author Wiggins. Rotstein went on to say that if Moore received confidential information from Wiggins, "the University reserves . . . the right to make appropriate motions for your disqualification. . . ."

In his letter replying to Rotstein on Wednesday, Moore said he never contacted Wiggins but now plans to "take the deposition of Professor Wiggins to learn whether this report is in fact complete."

The university also issued a written warning May 31 to whistle-blower Debra Krahel, who is to receive $495,000, reminding her that her agreement bars her from talking. The letter accused her of talking to reporters and two former UCI employees about the fertility clinic.

Krahel, a senior administrator at UCI Medical Center, was the highest-level employee to bring allegations against the doctors.

In a July 18 letter addressed to a university auditor, Krahel charged that she was told to keep her "loose lips" closed by UCI Medical Center Executive Director Mary Piccione.

In the letter, obtained by The Times, Krahel said the admonishment came after she brought fellow whistle-blower Marilyn Killane's concerns to the attention of Piccione and her deputy, Herb Spiwak.

Piccione has repeatedly declined requests for interviews. Her staff referred questions about the letter to university spokeswoman Fran Tardiff, who declined to comment. "The contents of the letter relate to matters which we must keep confidential," Tardiff said.

Spiwak did not respond to requests for comment.

Krahel wrote that Killane, manager of the fertility center, came to her in January, 1994, to report the doctors' alleged distribution of a non-government approved drug imported from Argentina. University officials have since contended that Asch imported and distributed the drug, HMG Massone, to at least nine patients.

Krahel said that when she approached Spiwak about the drug issue, he asked her if she thought she should "get rid of" Killane.

"Herb said she sounded like trouble and I should just 'fire her,' " Krahel wrote. "This directive continued throughout subsequent discussions and I was told not to give Marilyn any reassurance of her continued employment."

The next week, she wrote, she approached Piccione, who had been on vacation.

"At this meeting Mary advised me that I had loose lips and should keep the facts about reproductive health to myself. Mary instructed me to let Herb handle everything and that I should defer everything to Herb. Mary advised me to 'forget about all of this.' "

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Krahel alleged that the administration's "hostility" toward Killane increased--and that Drs. Asch and Stone joined in. Krahel then temporarily removed Killane from her job and assigned her elsewhere, she wrote.

"On several occasions I was told to terminate Marilyn," she said. "Comments were made about, 'She's worthless, why do we keep her on,' etc. I continued to insist that I felt we were at risk to terminate her employment."

The situation worsened, she said, when allegations were "brought forth" that Asch and Stone had stolen eggs from one woman and implanted them in another.

"Marilyn and other staff members communicated that they had concern that everything was going to be covered up and that corrective measures would not be taken," she wrote.

Krahel said in the letter that Killane had received outstanding performance reviews before she reported the alleged misconduct.

Krahel declined to comment.

Yakoubian said that Krahel was placed on administrative leave after her complaints. She no longer works at the university.

In her letter, Krahel said that prior to the troubles at the center, Piccione told her that she was very pleased with her performance and that she was "a breath of fresh air."

Krahel and Killane are being called to testify next week at Hayden's committee's hearing. The senator said Wednesday that he hopes to obtain the university's management audit before then.

He said a university attorney told him that UCI had "due-process concerns" about protecting those mentioned in the report. But Hayden said that officials could simply delete names before releasing it.

"I just want the report," he said. "It contains very vital material. The access to that report is imperative and I don't see what would cause lengthy delays."

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