Recorded Misuse of Eggs, Embryos Admitted by Asch

TIJUANA —  UC Irvine fertility specialist Dr. Ricardo H. Asch acknowledged Sunday that records show some of his patients’ eggs and embryos were misused at the university clinic, but he declined to say whether he had “failed in his responsibility as doctor” in overseeing patient consent.

In sworn testimony at a Tijuana hotel, the world-renowned physician admitted that patients’ wishes, as expressed in their records, were at odds with the procedure he performed in at least four instances, according to attorneys who attended his private deposition for use in more than two dozen lawsuits.

But the patients’ attorneys said the doctor’s admission did not go nearly far enough. He is accused, along with his two partners at UC Irvine, of stealing the eggs and embryos of scores of women and implanting them in others, resulting in an unknown number of live births.

“He said he didn’t know how it occurred, and whose decision it was,” said Joel N. Klevens, an attorney for a couple who alleged their eggs were stolen by Asch at a UC San Diego clinic in 1993 and given to a woman in Mexico who became pregnant. “He did not acknowledge . . . that it was his fault.”

“When I asked him whether he had failed in his responsibility as a doctor, his attorney, Mr. [Lloyd] Charton, instructed him not to answer,” Klevens said. “In fact, in my view, I was only asking him about a doctors’s basic responsibility to his patents.”

Charton said the doctor had performed thousands of such procedures and cannot be expected to have familiarized himself with every patient’s wishes--nor did every patient tell him what they wanted.

“It’s becoming more and more clear that Dr. Asch depended on the people under him to fill out consent forms,” Charton said. “If they didn’t do that, mistakes were made.”

Klevens said his clients had clearly indicated on a consent form that any extra eggs be frozen for future use. Instead, Klevens said Asch transferred all three eggs to the Mexican woman within two days of extracting them. Because the woman received donations from several sources, it is unclear whose eggs resulted in the pregnancy.

The testimony came on the third day of a four-day deposition that has been alternately described by the attorneys in attendance as a “circus” and a lesson in frustration.

Asch insisted on testifying in Tijuana because he fears arrest in the United States. Federal investigators are looking into possible charges of mail fraud, fertility drug smuggling and tax evasion, although no charges have been announced.

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Tempers flared once again Sunday when Charton announced that, according to at least two witnesses, one of the patient’s attorneys had stolen the deposition stenographer’s notes the previous day and stashed them inside a yellow envelope, behind a lounge chair, in a dark hotel lounge.

The accused attorney, Melanie Blum, responded by vowing to file a lawsuit against Charton for slander and possibly reporting the doctor’s attorney to the State Bar of California.

Blum pointed out, as several other lawyers around her nodded, that she had not even been in the vicinity of the deposition room when the theft occurred.

Charton said one witness, a hotel employee, reported seeing “a blond lady lawyer inside the secret passageway of the hotel around 11.30 a.m. with the envelope.”

Blum and her clearly annoyed husband, attorney Mark Roseman, countered that they were at that time lunching downstairs with three journalists and another attorney. Several of those present at the lunch confirmed her whereabouts. They had gone to lunch early because the hotel security guards, paid for by Asch, reported a bomb threat.

“This is a desperate move by a desperate man,” Blum said. The deposition is “not going his way so he’s trying to create a diversion.”

Charton retorted that he only named Blum because her husband had accused the defense team of having the greatest motive for stealing the notes and disrupting the proceedings.

Blum and several other attorneys Sunday dismissed Asch’s testimony as increasingly farfetched.

A private attorney hired by the University of California said he was bewildered by the doctor’s statement that it was a high school-educated staff biologist--not himself--who decided to send embryos off to Cornell University for use in research.

The issue arose under questioning by an attorney who is alleging his clients never approved use of their embryos in research.

“I’m a little surprised that . . . Teri Ord [the biologist] just happened to mail embryos to Cornell to people she didn’t even know,” said attorney Byron Beam. “It’s incredible that Dr. Asch would stoop to this kind of mudslinging against a member of his own staff.”

But the university itself came in for some criticism Sunday as patients’ attorneys accused Beam of stalling the deposition by objecting to questions about Asch’s understanding of his responsibilities under a university contract.

The contract shows “there is joint responsibility [for running the clinic] between the university and the reproductive physicians,” said Larry Eisenberg, a patient’s attorney. “There is no doubt that the university and the regents in my mind are jointly responsible.”

Asch’s testimony is expected to resume today, but attorneys predicted they will not have near enough time to complete their questioning. Several attorneys said they would seek to extend the depositions for as long as two weeks.