Behind Each Suit, a Poignant Story

Each of the 50 lawsuits had a unique story that might have moved a juror to tears.

Some couples who alleged their human eggs or embryos had been stolen at the famed UC Irvine fertility clinic later conceived and had children. Some adopted. Some remain childless. Others alleged various kinds of malpractice, but not egg-stealing.

So the announcement by plaintiffs’ attorneys Friday that the suits were being settled en masse for $10 million was not surprising.

It culminated complex negotiations between lawyers for the University of California and for 50 couples that began in April as the university sought to contain damage from an enormous medical scandal that has led to criminal charges and new regulation in the burgeoning field of reproductive health. More than two dozen lawsuits are still pending.

The scandal, first widely publicized in May 1995, centered on three UCI-affiliated doctors who allegedly profited from a scheme to steal eggs harvested from unsuspecting women in the late 1980s through the early 1990s. Some eggs were then implanted in other women who gave birth. UCI’s Center for Reproductive Health was shut down as a result.

Attorneys involved in dozens of the lawsuits stemming from the alleged misdeeds say that university officials would have faced a series of punishing disclosures in separate jury trials unless they settled out of court.

“We’d gotten their attention,” said Nancy Knight, whose Newport Beach law firm represented nine of the 50 couples. “They understood the magnitude of the problem. It was effective to present so many cases together.”

UC general counsel Jim Holst confirmed Saturday for the first time that the university has reached settlement agreements in 72 of the 100-plus lawsuits connected with the fertility scandal--including the 50 announced by plaintiffs’ attorneys Friday. He declined to reveal the financial magnitude of the settlements.

Holst and plaintiffs’ attorneys said the groundwork for a deal was laid last year when the first cases came up for review.

University attorneys approached plaintiffs’ attorneys in the second half of 1996 seeking to mediate each case one at a time. Late that year, a series of couples came to the Santa Ana law offices of Byron Beam, an attorney for UC, to tell their tales.

“It was an interesting proceeding. They [the plaintiffs] could talk without interruptions, without objections,” Knight said. “They could simply tell their stories.”

Walter Koontz, a Newport Beach plaintiffs’ attorney who hosted a similar meeting about the same time, said university representatives seized the chance to offer personal apologies, “which goes a long way,” Koontz said.

*

Among about 20 plaintiffs who settled their lawsuits in that round of talks were two couples Knight represented.

The first pair alleged that eggs had been stolen from the wife and implanted into another woman who gave birth to twins. Another case involved a couple whose allegedly stolen eggs did not produce a birth. But that couple, Diane and Budge Porter of Nebraska, had another compelling angle to their story: He is partially paralyzed and in a wheelchair.

At some point after the end of the year, the case-by-case procedure bogged down. Attorneys were unable to coordinate schedules.

So Lawrence S. Eisenberg of Irvine and Melanie R. Blum of Orange, attorneys for several plaintiffs, proposed in April that 50 cases be reviewed jointly. Talks were held in May, again at Beam’s office. But this time, there were no live statements from plaintiffs to university lawyers. Instead, plaintiffs put their stories down on paper.

The cases fell into three main categories:

First were those women whose eggs were allegedly stolen during a medical procedure and implanted into another woman, producing a live birth. They got what Blum and Eisenberg described only as “the maximum individual settlements under California law.”

It is impossible to know exactly what that means without reviewing court records. The state Supreme Court last week imposed an order blocking access to details of settlements reached in the case.

But Eisenberg suggested that the attorneys adhered to a rule laid down by a state statute limiting jury-awarded malpractice damages for emotional distress to $250,000 per plaintiff. So, each couple with evidence of egregious malpractice might have gotten somewhere near $500,000--with potential extra amounts for economic damages.

*

Another category, on the lowest end of the scale, involved couples who were victims of various kinds of alleged malpractice, or whose eggs were stolen and may have been used for research.

Falling in the middle of the pack, the attorneys said, were couples whose eggs were stolen and implanted into another woman but from which a live birth did not occur.

Typical of those in-between cases was Elizabeth Shaw Smith of Tustin. Smith, recounting her decision to settle, said she and her husband, Gary Smith, had endured the lawsuit as a nightmarish backdrop to their daily lives.

“You’ve got to go on with your life but, listen, it’s hard,” Shaw Smith said Saturday. “It was harder at the beginning, of course. I’m a lawyer myself, so I was pretty involved--more than I wanted to be. But you try to go on.”

Shaw Smith said their lawyer, Eisenberg, told the couple not to reveal the amount of their settlement because of the state Supreme Court order.

“Ours was not a real dramatic case since we had no real live birth,” Shaw Smith said.

Another plaintiff came away with mixed feelings.

“It’s not really what we wanted. We would have liked to know more what really went on instead of just taking the money,” said Sharon Starr, 34, of Beaumont in Riverside County, whose suit was part of Friday’s settlement announcement. “But I’m really glad that it’s gonna be over, so we can just go on with our lives. At least we can let go of our feelings about UCI.”

Starr and her husband, Ken, went to the UCI clinic in 1990. Using sperm that Ken Starr had preserved when he developed testicular cancer several years earlier, the doctors were to fertilize one of 10 embryos harvested from Sharon Starr. The couple alleged the clinic mishandled the sperm.

“We tried it once. It didn’t work. We’ll never know if they used his sperm or what, or what happened to the other two vials [of Ken Starr’s sperm],” Sharon Starr said. “It’s just so disappointing, because that’s all we had. That was our only chance.”

*

In the wake of the scandal, the Starrs lost their faith in reproductive technology, they said. In 1994 they adopted two children, a brother and sister now aged 6 and 8.

“For me, it helped a lot to adopt,” Sharon Starr said. “It’s been a better healing than the money could ever be.”

The UC Board of Regents reviewed the package of 50 proposed settlements and approved them at their June and July meetings, according to plaintiffs’ attorneys.

The settlement package also must be reviewed and approved by Orange County Superior Court Judge Robert E. Thomas.

Meanwhile, one member of the UC Board of Regents who participated in recent meetings discussing proposed settlements, Meredith Khachigian of San Clemente, declined to confirm any details of the deal described by plaintiffs’ attorneys.

“I can tell you there was quite a bit of discussion” about settlements during regent meetings, Khachigian said, “but I can’t go any further than that.”

But Clair W. Burgener, a former regent from Rancho Santa Fe, who voted when she was on the board to approve several previous settlements, said the university counsel’s efforts to consolidate the suits saved money.

“It’s probably a great deal less than it might have been; it could have been worse,” Burgener said. “The discussions went on for years.” Burgener added that the fertility clinic revelations had led to “a most unfortunate series of events, but I think the university has appropriately handled it.”

Drs. Ricardo H. Asch and Jose P. Balmaceda, the two principals in the affair, have left the country. Their colleague, Dr. Sergio C. Stone of Villa Park, is under house arrest on federal charges of mail fraud and tax evasion. All have denied intentional wrongdoing.

In another development Saturday, Christi Sulzbach, a senior vice president for the Tenet Healthcare Corp., said the Santa Barbara-based hospital ownership group had reached an agreement July 1 to compensate the university for some of the doctors’ alleged misdeeds.

Tenet is owner of Garden Grove Hospital and Medical Center, where some of the alleged egg-stealing incidents by the UCI doctors took place in the late 1980s. Sulzbach said the amount of compensation has not yet been determined, but will be greater than $1 million.