UC Settles 2 Fertility Cases for $1.1 Million

The University of California has agreed to pay more than $1.1 million to settle two lawsuits in which women allege their eggs were stolen by UC Irvine fertility specialists and used to impregnate other patients.

In the first settlements in the UC fertility scandal, the UC Board of Regents has approved paying $600,000 to Barbara Moore and her husband, Darrell, both of Orange County. In addition they will pay about $510,000 to Susan and H. Wayne Clay of Bakersfield.

Because these are among the best-documented allegations of egg theft, the university hopes they represent “the ceiling” on settlements to flow from lawsuits in the egg-swapping scandal, sources familiar with the deliberations said.

More than 80 lawsuits have been filed against the university and three UCI fertility specialists--Dr. Ricardo H. Asch, Dr. Jose P. Balmaceda and Dr. Sergio C. Stone-- although only a fraction allege egg thefts that resulted in live births.

“I think it’s more than reasonable” said Larry Feldman, lawyer for the Moores and Clays, of the two settlements. “I think [the couples] received at least what they would have received had they gone to trial.”

UC attorney John Lundberg said, “Our rationale is to try and put behind the plaintiffs and the university the circumstances that led to these lawsuits.”

But the university also hopes the settlements send a message to other patients’ lawyers not to aim too high.

According to a confidential memorandum prepared for UC Regents in August by the UC attorneys, the cases were worthy of settlement in part because they were being handled by Feldman, “a very experienced and capable attorney” who is “looked to by the other plaintiff’s lawyers for leadership and direction.”

”. . . This is likely to provide great assistance in convincing other patients to abandon grandiose settlement claims and evaluate their cases in a realistic manner,” the memorandum stated.

Approved behind closed doors in August, the settlements end all legal claims by the Moores and the Clays against the university and the doctors.

UC also has settled a third case, alleging the university misinformed a patient about the status and whereabouts of her embryos, for $2,500.

The Moore and Clay cases were considered among the most “compelling” against the university, according to the August memorandum. Both involve unapproved egg transfers to other women who later gave birth.

Barbara Moore, 35, and her husband, Darrell, 36, are personal injury attorneys in Orange County. Barbara Moore did not become pregnant as a result of the fertility treatments at UCI’s Center for Reproductive Health, but her eggs were allegedly taken by Asch and given by Balmaceda to another woman who had a baby boy, according to the UC attorneys’ memo. Barbara Moore later sought fertility treatments elsewhere and became pregnant with twins.

The Clay case was less clear-cut. Susan Clay’s eggs allegedly were taken by Asch in August 1993 and given to another woman, who also received five other embryos from other patients at UC San Diego, the attorneys’ memo states. The woman gave birth, but it is not clear whether Susan Clay is the biological mother.

Susan Clay, 36, a computer programmer, did eventually become pregnant and give birth as a result of UC San Diego fertility procedures.

The settlements raised the ire of attorneys for the three doctors implicated in the scandal, who objected to being excluded from the settlement talks.

Asch “lost his day in court,” said his civil attorney, Lloyd Charton. “This doesn’t [allow him the chance to] clear his name.”

Asch has left the country and is living in Mexico.

Karen Taillon, attorney for Stone, said she is “thrilled” her client is released from the claims, but is distressed that she knew nothing of the mediation and can’t even determine from the university which claims were settled.

Balmaceda’s attorney, Edward Susolik, said, “I believe that the manner in which the settlements were conducted by the university is further evidence of the university’s bad faith toward Dr. Balmaceda.”

The settlements also drew fire from a member of the Board of Regents. Lt. Gov. Gray Davis, who has long been critical of the university’s handling of the fertility scandal, said he objects to the settlements releasing the doctors from any liability in the cases.

“The university needs to send a signal that it will not tolerate people who take the law into their own hands,” Davis said.