9 more couples file lawsuits against Newport Beach location of Ovation Fertility

Multiple Orange County couples added to the legal woes of a fertility clinic with offices in Newport Beach with another claim regarding failed attempts at pregnancy due to some sort of error in a laboratory.

Last week, two couples sued in Orange County Superior Court alleging that an Ovation Fertility clinic employee in the Newport Beach lab wrongly used toxic chemicals to clean an incubator housing frozen embryos. On Tuesday, nine more couples sued alleging something went wrong with their pregnancies.

Attorney Rob Marcereau said a 10th couple had contacted his office after a news conference announcing the lawsuit in Orange County Superior Court.

“The things that they all have in common is that they had embryos that were thought to be transferred during a two-week period at the end of January of this year, and during this two-week period they had a 100% fail rate,� Marcereau told City News Service. “No embryos resulted in pregnancies and normally there’s about a 75% success rate.�

Attorney Adam Wolf, who now represents four couples, alleged last week that an employee wrongly used hydrogen peroxide instead of a sterile solution when cleaning an incubator, killing the embryos.

Marcereau said that is one of the potential causes.

“Ovation has given different stories to different doctors who then explained to their patients what they were told,� Marcereau said. “We’ve heard it was an equipment malfunction. We’ve heard it was a PH-balance issue, and finally we heard hydrogen peroxide somehow had gotten into the incubator when the embryos were in there.�

Marcereau added: “The reason that has become more of the prevalent theory is that was the story that was told to doctors two or three times, and so it was the one version or explanation that has been repeated in the case, so that’s why we believe that may have happened.�

If the hydrogen peroxide mishap is the explanation, then “It’s a huge screw-up,� Marcereau said.

Marcereau has a “whistleblower� in Ovation who reported that the clinic “had a systemic problem. This is the tip of the iceberg,� the attorney said.

The company has “stopped documenting instances where there have been lab failures ... because they’re concerned about future litigation,� Marcereau added.

Last week, Ovation issued the following statement responding to Wolf’s lawsuit: “Ovation Fertility has protocols in place to protect the health and integrity of every embryo under our care. This was an isolated incident that impacted a very small number of patients, and we have been in close contact with those patients since this issue was discovered. We are grateful for the opportunity to help patients build a family and will continue to implement and enforce rigorous protocols to safeguard that process.�

But Marcereau said his clients were not notified for weeks and that some of them underwent “invasive testing ... to figure out and determine what was wrong ... all of which was completely unnecessary because it was a lab failure and these embryos were dead on arrival.�

Another claim in the lawsuit is that Ovation employees should have known the embryos were dead before implantation because they should check them under a microscope before the procedure, the attorney said.

The company was “super vague� and “super non-committal� about what happened when they contacted the couples, Marcereau said.

“This was a nuclear holocaust within that incubator,� he said. “They dumped the equivalent of battery acid and killed them all and wouldn’t own up to it.�

Then the company “tried to trick these couples into signing all their rights away and stay quiet about it� with an emailed offer to give them a $5,800 lab fee refund that was also a waiver of litigation and a nondisclosure agreement, Marcereau alleged.

Eight of the couples Marcereau’s firm represents are from Orange County with one from Catalina Island.