Another lawsuit filed against OC fertility clinic after embryos allegedly destroyed by lab error

NEWPORT BEACH, Calif. (KABC) -- Brooke Berger and Bennett Hardy turned to in vitro fertilization in May 2022 with the hopes of expanding their family.

In January, Berger was implanted with two embryos at Ovation Fertility in Newport Beach.

"Knowing that there was no possibility, that they put me through that, is kind of horrifying," she said.

"When it didn't work, I had a lot of self-doubt," Berger said. "Kind of wondered, 'Is there something wrong with me?' Even though our doctors said that they don't think there's anything wrong with me. I went through a lot of painful injections. This is a lot of time and effort, and then to find out that that was all for nothing was just devastating."

Berger and Hardy are one of nine couples suing the fertility clinic.

"We don't want this to happen again," Hardy said. "To have this happen is unacceptable."

The lawsuit states Ovation Fertility committed a catastrophic error in late January in their lab exposing embryos to hydrogen peroxide and killing them.

Benjamin Ikuta is one of the attorneys representing the families in the latest lawsuit.

"That was used instead of distilled water, and that was deadly for every single embryo that was implanted between January 18 and January 30," said Ikuta. "They had a zero percent success rate for dozens and dozens of couples."

Rob Marcereau with Marcereau Law Group said, "Ovation then implanted dead embryos inside these hopeful mothers for pregnancies that would never happen. Now, Ovation knew the errors that had been made but never told the couples about it."

Also, attorneys said the clinic tried to cover up their negligence by reaching out to those affected and offering refunds.

"These emails contained release agreements that had gag orders, basically saying take $5,000 or $6,000 for the death of your embryos and don't tell anyone about it," said Michelle Hemesath.

In a statement, Ovation Fertility says it has protocols in place to protect the health and integrity of every embryo under their care.

"This was an isolated incident related to an unintended laboratory technician error that impacted a very small number of patients. As soon as we recognized that pregnancy numbers were lower than our usually high success rates, we immediately initiated an investigation. We did not knowingly transfer nonviable embryos for implantation. We have been in close contact with these few impacted patients since the 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."

The lawsuit does not ask for specific damages but Marcereau said the clinic needs to be held accountable.

"For many of these couples, this was their last chance to have biological children. That chance was stolen from them by Ovation and what they did," he said.

Berger and Hardy said their current dreams of having a baby have been derailed but will consider continuing the IVF process with another company.