Asch May Try to Shift Blame to UCI Staff

At one of Tijuana’s finest hotels Friday, Dr. Ricardo H. Asch, the central figure in the UCI fertility scandal, is expected to admit to some negligence in the fiasco but to place most of the blame squarely on the university.

“His position will be that any errors on procedures were the direct result of university employees not performing their functions and that he, Dr. Asch, is responsible to the extent . . . that he should have been more careful in his oversight of them,” said Ronald G. Brower, Asch’s criminal attorney.

The once revered physician, set to testify under oath in a deposition to be attended by at least 20 attorneys in the banquet room of the Grand Hotel, is seeking to “clear his name” and to persuade those suing him that he never intentionally did anything wrong, Brower said.

Accused with his two partners of stealing eggs and embryos from scores of patients and implanting them in others, the fertility specialist hopes to pave the way for his eventual return to practice in the United States, his lawyer said. Asch sold his $1-million Newport Beach house and moved to Mexico shortly after the home was raided by criminal investigators in September.

The doctor insisted on a deposition in Mexico to avoid possible arrest in the United States, according to his civil attorneys. Authorities have refused to say whether he has been charged with a crime.

The deposition, scheduled to last four days, is intended to produce information for use in most of about 25 lawsuits filed against Asch and the university.

Asch’s strategy could spell trouble for the university, some plaintiffs’ attorneys say, if the doctor can come up with credible evidence that UCI employees were responsible for troubles at the famed fertility clinic he headed at UCI and at least two other affiliated clinics in Garden Grove and San Diego.

“His deposition will not benefit the university,” said Melanie Blum, the attorney who organized the deposition and will lead off questioning of the doctor. “I think it will only serve to bring the university further into this.”

If Asch can make the case that he was simply negligent and did not harm patients intentionally, the university could be forced to pay for his defense in the mounting number of civil suits against him, patients’ attorneys said.

“If he admits to negligence and denies intentional misconduct, then the university will have to make amends with the patients,” said attorney Theodore Wentworth, who has filed eight cases against Asch and the university. The university is “liable for his negligence.”

University attorneys said Wednesday, however, that they are not at all worried about the doctor’s anticipated finger-pointing.

“I expect Asch to say all kinds of self-serving things, but I don’t believe he will be credible,” said Byron Beam, an outside attorney for the university who will attend the deposition. “I’m certain he will be contradicted [later] by other witnesses.”

Until now, the university has taken the position that it will not defend Asch in the lawsuits because he acted outside the scope of his employment.

“That conduct was just beyond the pale,” deputy general counsel John Lundberg said Wednesday.

The attorney for former clinic biologist Teri Ord, who was singled out for blame by Asch and his lawyers, said the doctor’s position is a transparent, ill-fated effort to rehabilitate his image in the United States and abroad.

“For whatever reason, Asch thinks he can try to lay the groundwork to get back in the U.S. and reestablish his credibility in international circles,” attorney Marshall Silberberg said. “To do that, he’s going to have to say he was very busy and . . . for some reason, his biologist mishandled eggs and embryos and it’s her fault.”

In fact, both Asch and his attorneys already have specifically blamed Ord for “errors” involving eggs and embryos. Ord has supplied some of the most detailed evidence against Asch and his partner, Jose P. Balmaceda, to criminal investigators and the university--embryology logs listing hundreds of patients who UCI officials say might have been involved in improper egg-swapping.

Investigators also are exploring whether the doctor and his partners committed tax evasion, insurance fraud, mail fraud or fertility drug smuggling. All three have denied any intentional wrongdoing.

Asch’s “reputation has been wrecked internationally, and now he’s trying to find a scapegoat, and it just won’t fly,” Silberberg said.

Whatever Asch’s aims, the legal contingent headed for Tijuana plans to interrogate him all day every day, covering the nitty-gritty details of what went on over the last nine years at the clinics.

One of the lawyers’ concerns is that they will run out of time.

“The question is really going to be, how are we going to accomplish all this in four days?” said Larry Feldman, who represents two couples who are suing Asch and the university.

Silberberg, Beam and other attorneys said that if Asch leaves before they have had a chance to question him, they will seek to have him deposed again.

Many of the attorneys descending on the border-town hotel, though eager to take a crack at questioning Asch, fear they won’t be able to get a word in edgewise. Given that a group of vocal litigators with a stake in an international scandal will be crammed together into closed quarters, some lawyers worry that the session will dissolve into a yelling match.

“It’s going to be a mess,” Silberberg predicted.

“I don’t want this to become a circus,” Blum vowed.

Asch is appearing against Brower’s advice, Brower said.

The attorney said his client apparently will take questions relating to allegations that he stole eggs and embryos from patients, but might invoke constitutional protections against self-incrimination if asked about other matters such as alleged tax evasion. Brower will attend the deposition, as will Asch’s civil attorneys.

Asked what they wanted to know most, most patients’ attorneys said they were interested in how the clinics were run, who was responsible for what and what happened to their clients’ eggs or embryos. Some, though, admitted they were most curious about what makes the enigmatic doctor tick.

“There’s so much I want to know,” Blum said. “I guess the real question I want answered is, why? Why did he do this? . . . I don’t know if I’ll ever get that answer.”