A Whittier couple who sued a 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, according to new court papers filed by the facility’s attorneys.
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 in Los Angeles Superior Court against Huntington Reproductive Center Medical Group, also called HRC Fertility, as well as Dr. Bradford Kolb and former HRC IVF coordinator Flor Parada.
In court papers brought Wednesday with Judge Jon Takasugi, defense attorneys maintain that in December 2018 the plaintiffs signed and initialed a two-page binding arbitration agreement that also was signed by an HRC representative.
“Plaintiffs never revoked or attempted to revoke their agreement to arbitrate, so this agreement applies to all claims, regardless of whether those claims arise out of the rendering of professional service,” the defense attorneys argue in their court papers.
Days before filing suit, the couple brought a demand with the American Arbitration Association alleging medical negligence, medical malpractice, battery and misuse of embryos, then on March 1 filed their lawsuit, according to the defense lawyers’ court papers.
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 couple 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 that 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.
A hearing on the defense motion to compel arbitration is scheduled Oct. 10.