Attorneys Find Opportunity in Fertility Scandal

When the headline-grabbing allegations of possible human egg theft broke at UC Irvine in May, Newport Beach attorney Theodore S. Wentworth swung into action.

Within weeks he had signed on one local couple as clients, put them through a crash course in media relations and sat them in front of reporter after reporter to field intimate queries about allegations that the wife’s eggs may have been given to another woman.

Last week, Wentworth said, he paid to fly a second couple, Budge and Diane Porter, from Omaha, and then sent them through the same three-hour, $1,800 course. The lawyer stood by during a series of TV interviews at his office as the quiet couple relived the trauma of learning that their “genetic legacy” might have been stolen.

Praising Diane Porter’s promise as a media draw, Wentworth confided to a reporter: “She’s set up now so she can do satellite.”

Wentworth has positioned himself in the limelight as well. In response to the burgeoning fertility scandal, he and other attorneys have leaped into the fray, describing themselves as the defenders, protectors and promoters of vulnerable victims of egg-swapping.

It’s the biotech version of a train wreck, with UCI alleging that about 35 patients may have been involved in improper egg transfers at clinics in Orange and Garden Grove. And the controversy represents a chance for attorneys not just to make money but to make a name for themselves as the first experts in a brand new field of law.

“Know your legal rights regarding improper transplants/egg misuse,” reads Irvine attorney Lawrence Eisenberg’s advertisement in area newspapers, promising not to charge potential litigants if no money is won.

“It’s on the forefront of biotechnology and the law,” Eisenberg said in an interview. “There’s no precedent. That’s what makes it challenging. . . . This is a new area of tort law.”

After all, Eisenberg said, “You have the right to know what happened to your bio-materials.”

But ethicists and other attorneys worry that the patients’ best interests may fall by the wayside in the scramble for celebrity.

“It’s just a combustible mixture,” said Dr. Arthur Caplan, a University of Pennsylvania bioethicist. “You take people who are naive and mix them in with lawyers who are going to try to maneuver to get every advantage from a media audience which can’t wait for the next sad or pathetic tale. . . . It might burst into a conflagration not good for vulnerable people.”

In very public fashion, UCI administrators have accused Drs. Ricardo H. Asch, Jose P. Balmaceda and Sergio C. Stone of taking patient eggs without consent, then refusing to turn over the patient medical records that would help substantiate the misconduct. The doctors have repeatedly denied any wrongdoing and say they have attempted to cooperate with the university.

Balmaceda’s attorney, Patrick Moore, said he has responded in the media simply to refute the allegations against his client, but he said he was “sickened by the advertising, the apparent chasing of patients” by lawyers seeking clients.

“I don’t understand how exposure in the national media benefits the client,” Moore said. “It certainly benefits an attorney in the situation. It’s free advertising for other patients.”

But attorneys for former patients say they are helping to give their clients a voice in the escalating legal battle.

Going public is a way to put a human face on the complex, clinical allegations of biotech thievery, Wentworth said.

“It helps to establish a dialogue--that there is somebody there, a person who is breathing and injured, something real other than numbers on a page,” said Wentworth, who has seven clients and said he is “still signing them up,” mostly as a result of news reports that include his name.

Diane Porter and her husband Budge, a former University of Nebraska football player who was partially paralyzed in a gridiron accident, said Wentworth’s insistence on media training has been helpful in handling interviews.

“I think it helped us to formulate our thoughts and not ramble so much, because I tend to get wordy,” Diane Porter said.

Some attorneys involved in the cases warn of the dangers of going too public with their clients’ private anguish.

When the cases land in civil court, Santa Monica attorney Larry Feldman said, any smart defense attorney will seize on the idea of media training and use it to attack a former patient’s sincerity.

The defense could argue to a jury that the former patients “can’t be that upset if they need to go to media school to learn how to act,” said Feldman, who represents two couples who allege that eggs were taken from them without their permission. Feldman said he has had inquiries from about 20 more potential clients.

Nearly all of the attorneys involved in handling fertility cases said part of their allure is the potential to become a key figure in biomedical reform.

“I’m going to be working on some federal legislation . . . to prevent this from happening again,” said Santa Ana attorney Melanie Blum, who represents at least a dozen former patients. “I’ve already been in contact with the congressmen who are doing that. Hopefully we will be working together.”

Since the scandal became public in May, Blum said she has immersed herself in the crisis. She said she has developed “a passion” for her cases, working 18 hours a day, seven days a week and expressing outrage on local and national television.

She recently was accompanied by a television news crew as one of her sobbing clients retrieved frozen embryos from a fertility clinic in Laguna Hills run by the UCI doctors.

Unlike the other attorneys, however, Blum is also representing half a dozen key employees and former employees of the fertility clinics--some who may have witnessed the alleged wrongdoing.

Legal ethicists expressed concerns about mixing clients whose interests may someday conflict.

“Down the line you could have problems,” said Dennis Curtis, a legal ethicist at the University of Southern California. He said the information gained from one client early on could hurt another later.

Blum said she doesn’t believe that her representation of clinic employees and former patients is a conflict. She said it is an asset to all her clients that she has a range of information about the scandal, and that she has obtained waivers from her clients that allow her to represent them all.

Diane Geocaris, counsel to UCI Chancellor Laurel L. Wilkening, said she was not surprised at the level of legal interest.

“There’s a lot of attorneys out there and attorneys have to make a living too,” she said. “It is a new field and they are in on the ground floor.”

The attorneys say the financial rewards of taking on the fertility cases remain uncertain. Most say they are not taking on new cases unless the patients already have received medical records that indicate a problem.

Wentworth, however, doesn’t see any limits on the financial compensation a strong case could bring--especially given the vast UC liability pool of $94 million. He said he is not accepting clients unless “they show me a case that has a value of more than $100,000.” He said he is not looking at the cases purely as medical malpractice but as theft and fraud, comparing the potential damage awards to those obtained in sexual abuse cases.

Like his colleagues, Wentworth said he is thrilled to be in on one of the most intriguing and highly publicized legal disputes in biomedical history.

“Do I feel lucky?” he asked. “It’s wonderful. It’s wonderful to come in to work each day.”

Times staff writer Michael G. Wagner contributed to this report.