Asch Owns Up to a Degree of Responsibility

Dr. Ricardo H. Asch concluded his fourth day of sworn testimony Monday, acknowledging the grief of those patients whose eggs and embryos apparently were taken without their consent and admitting, in retrospect, that he shared some responsibility.

However, the physician stuck fast to his position that UC Irvine was primarily to blame for “errors” at his formerly renowned clinics--a stance that drew fire from university attorneys but little argument from lawyers for the plaintiffs.

“They know the university is the deep pocket here,” said Karen Taillon, an attorney for Sergio C. Stone, one of Asch’s partners. “That’s the party you want to go after.”

Though they complained often during the grueling all-day sessions about Asch’s alleged evasiveness and what one called the “antics” of Asch’s attorney, patients’ lawyers--and some patients themselves--got what they came for.

“I can prove my cases, no doubt,” said patients’ attorney Larry Eisenberg, speaking confidently before television cameras after questioning Asch for three hours. “I see a total breakdown in the management of these [University of California] medical facilities.”

UC attorney Byron Beam said the university’s liability in the scandal should in no way be judged by the statements of Asch, who along with his two partners, is accused of stealing the eggs and embryos of scores of women at the UCI clinic and two affiliated clinics and giving them to other patients.

“This [deposition] gave me absolutely nothing,” Beam said. “It was a four-day press conference for Asch.”

“I feel I participated more in an event than a legal proceeding,” Beam said. “It looks to me like an orchestrated effort to give self-serving testimony.”

Asch stands to gain by admitting negligence, rather than intentional wrongdoing, because the university must pay for his defense if he is only negligent, attorneys said.

Beam said upcoming depositions of former clinic employees, some of whom Asch specifically blamed for “errors” at his clinics, will provide a very different perspective on the doctor’s practice.

Beam also accused plaintiffs’ attorneys of going soft on the doctor by failing to ask essential “pointed questions.” One of those, he said, is how Asch could claim to know nothing of patients’ wishes when the process of egg donation must be so carefully planned.

Beam explained that a variety of drugs and hormones must be administered to donors and recipients. A doctor would have to be closely involved in preparing each patient, he said.

“This can’t be by accident,” said Beam, who was not given time to cross-examine Asch but vowed to take 10 days to grill him in the future.

The deposition, intended for use in about two dozen lawsuits by patients, is not nearly complete. Many of the 20 or so attorneys attending the private proceeding said they did not have a chance to question Asch.

Asch’s attorney, Lloyd Charton, cut questions short by more than an hour Monday but agreed to make Asch available for questioning at another unspecified time.

Asch, who moved to Mexico in September, insisted on holding the deposition in Tijuana because he fears arrest in the United States. The doctor is under investigation for possible mail fraud, fertility drug smuggling and tax evasion in connection with his activities at university clinics, although no charges against him have been announced.

Some attorneys, including Beam, complained over the four days that the deposition had degenerated into a circus sideshow. Saturday, the stenographer’s notes were stolen when the deposition room was evacuated by a bomb threat.

Charton accused the plaintiffs’ lead attorney, Melanie Blum, of taking them, prompting her to threaten him with a slander suit. The notes were later found in a hotel lounge.

By Monday, the attorneys were visibly exhausted and the controversy had subsided somewhat.

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However, Asch himself created a small stir when he testified that he was tipped off, in the summer of 1994, by university officials to a whistle-blower’s charges that eggs and embryos were being misappropriated at his UCI clinic.

He testified that he learned of the allegations when he overheard a whispered conversation during a meeting with UCI officials in July 1994. Four weeks later, Asch testified, he was told by Tom Cesario, the medical school dean, that Debra Krahel had records indicating possible egg misappropriation and was about to take the matter to a newspaper. The conversation was arranged by Mary Piccione, the former executive director of the medical center, Asch said.

Krahel said Monday that the university, by informing Asch of her supposedly confidential complaint, violated the state whistle-blower law. “This is very serious and very disturbing, and the university will have to answer for this,” she said in a telephone interview.

Cesario recalled the incident entirely different, saying it was a face-to-face meeting to encourage Asch to cooperate with a UCI investigation into the fertility clinic. He denied that he revealed Krahel’s name to Asch and said he did not even learn of Krahel’s involvement until several months later.

In other testimony, Asch admitted for the first time Monday that he “share[s] the grief” of women whose eggs were misappropriated, attorneys said. He acknowledged that records show patients’ wishes were not followed in as many as 10 cases.

“I wouldn’t want anybody to take my sperm without my consent,” Asch said, according to the attorneys present at the proceeding.

The doctor also acknowledged, in retrospect, that he is partly to blame for the fiasco. “I share in the responsibility and I will not deny it,” he said, according to an attorney who kept notes of Asch’s statements.

The words were some consolation to former patients John and Debbie Challender, who came to Tijuana from Corona to hear the doctor’s explanations. The couple were the first to file a lawsuit against Asch for taking eggs without permission and giving them to other women. The recipients of the Challender’s eggs gave birth to twins.

“The one thing that pleased me was that Dr. Asch accepted a degree of responsibility for what happened,” said John Challender. “He has acknowledged, in retrospect, he would have paid more attention.”

The couple were far more critical of the university.

“It seems that the more [Asch] speaks, the more the university is involved,” John Challender said. “Everything points in that direction.”