Judge: Couple’s Embryo Transfer Claims Against Pasadena Fertility Clinic Must be Arbitrated

A Whittier couple who sued a Pasadena fertility clinic, alleging the mistaken transfer of an embryo carrying a rare stomach-cancer gene, should address their claims in arbitration instead of before a jury, a judge ruled Tuesday.

Plaintiffs Jason and Melissa Diaz maintain in their Los Angeles Superior Court lawsuit that their son, born in September 2021, faces possible stomach cancer or surgery to avoid the infrequent cancer. 

They filed suit against Huntington Reproductive Center Medical Group, also called HRC Fertility, as well as Dr. Bradford Kolb and former HRC IVF coordinator Flor Parada.

On Tuesday, Judge Jon R. Takasugi agreed with defense attorneys that the plaintiffs and an HRC representative signed a two-page binding arbitration agreement in December 2018 in which the couple expressly acknowledged that they fully read and understood the arbitration agreement and accepted its terms.

“In sum, defendant has established by a preponderance of the evidence that an arbitration agreement exists and that plaintiffs’ claims are covered by that agreement and plaintiffs have not met their burden to establish that the arbitration clause should not be enforced,” according to Takasugi, who put the case on hold pending the outcome of the arbitration and scheduled a post-arbitration status conference for Aug. 9, 2024.

According to defense attorneys, days before filing suit on March 1, the couple had brought a demand with the American Arbitration Association alleging medical negligence, medical malpractice, battery and misuse of embryos.

Melissa Diaz carries the BRCA-1 mutation, which increases her risk of developing breast and ovarian cancer, and her husband has a rare mutation in the CDH1 gene, which increases his risk of developing stomach cancer. The two say they selected HRC and Kolb for IVF services and sought pre-implantation genetic testing to avoid passing their genetic mutations to their children.

The plaintiffs allege they learned in July 2022 that the embryo transferred in January 2021 had the CDH1 mutation and that the facility and Kolb fraudulently marketed and promoted the quality of the center’s fertility services by concealing that HRC allegedly had a history of misusing patients’ genetic material.

The defense lawyers dispute the couple’s allegations, saying the evidence will show that their clients did not fraudulently conceal any material information or violate California’s Unfair Competition Law.

Also see: Couple Sue Huntington Reproductive Center Fertility Clinic Over Embryo