9 couples accuse California fertility clinic of implanting dead embryos into patients

Nine more couples have filed lawsuits against a Newport Beach fertility clinic, claiming their embryos were destroyed when an employee used hydrogen peroxide in an incubator instead of a sterile solution.

The couples join two others who filed lawsuits against Ovation Fertility last week, with one couple claiming they lost two embryos due to the company’s negligence while the second lost one, the lawsuits said.

The lawsuit, filed Tuesday in Orange County Superior Court on behalf of the nine couples, alleges Oviation Fertility of negligence, medical battery, concealment, intentional misrepresentation, negligent misrepresentation, negligent hiring, retention and supervision and loss of consortium. It seeks unspecified damages.

The lawsuit claims an employee with the clinic destroyed the embryos by using hydrogen peroxide instead of distilled water in an incubator during the thawing process. The embryos were then implanted into an unspecified number of patients between Jan. 18 and Jan. 30, all of whom failed to become pregnant.

“As a result, in the days and weeks after learning of their failed pregnancies, the couples blamed themselves and their bodies, some going as far as to endure risky and painful medical procedures, such as hysteroscopies and biopsies, to determine what went wrong,” the complaint says. “It was not until late February and early March that Ovation Fertility started to reveal to the patients’ fertility physicians that something had gone wrong in the Newport lab.”

Ovation Fertility operates 14 locations in 10 states. The Newport Beach lab is the only one in California operated by Ovation Fertility.

While eight of the couples were either not named, or identified by their initials, Brooke Berger and Bennett Hardy of Fullerton were speaking out against the company, claiming Ovation Fertility destroyed their last two embryos.

“It was devastating physically and emotionally to learn that after I had endured all the injections, medications, and painful and invasive procedures, it ultimately was for nothing,” Berger said Tuesday during a press conference announcing the lawsuit. “We want to ensure that Ovation is held accountable for these entirely preventable errors and that this doesn’t happen again to other couples who are trying to grow their families.”

Hardy and Berger have no children due to fertility issues and had two viable embryos under Ovation’s care, both of which were implanted on Jan. 25 after they had been destroyed in the lab, the lawsuit says. They have no remaining embryos at the clinic and are weighing their options whether to try the process again with a different clinic.

Berger said she and Hardy started their IVF journey in 2022 and the first one ended in an ectopic pregnancy and the loss of a fallopian tube.

“Your odds of success do not improve with age,” Berger, 37, said. “We don’t really know, this could really have been our last chance to have children.”

The IVF process takes months just to get to the point of implantation, she said.

The procedure has over a 75% chance of success, the lawsuit says.

Benjamin Ikuta, another attorney representing the plaintiffs, said it’s believed upwards of 80 couples could have been affected.

The company only disclosed the mishap after “several of the couples’ fertility doctors questioned why there was a 100% failure rate for the embryos that had been thawed over that two week period,” the lawsuit says.

Hardy and Berger said their primary physician heard numerous stories from Ovation, including temperature, pH issues and others.

“We still don’t know exactly what happened to our embryos,” Berger said, adding that the couple primarily wants answers. “We shouldn’t have to hire lawyers to find out what happened to them.”