Couples Sue Fertility Clinic After Women Were Allegedly Implanted with Dead and Toxic Embryos (Exclusive)

In an exclusive interview, Brooke Berger and her husband Bennett Hardy, along with eight other couples, allege Ovation Fertility contaminated their embryos

Brooke Berger, 37, and her husband Bennett Hardy, 33, were excited to begin in vitro fertilization two years ago. They retrieved seven viable embryos from their doctor in Colorado and looked forward to starting a family with the help of modern medicine.

But IVF, an assisted reproductive technology that fertilizes eggs with sperm in the laboratory and places one or more embryos back into the womb, failed with their first five embryos. After the first of those inseminations, in the summer of 2022, Berger had an ectopic pregnancy and had her fallopian tube removed.

"It was devastating," she tells PEOPLE exclusively in a phone interview. "It means we were even more reliant on IVF, and it further reduced our odds of conceiving naturally."

But there will was still hope.

"We were happy we still had two more left, and thrilled to have the opportunity to keep going," she says.

After the couple moved to Orange County, Calif., in July last year, they had their remaining two frozen embryos shipped to their new doctor, who worked with Ovation Fertility, a national storage treatment and laboratory in Newport Beach, to begin the process again.

Berger, an ecologist currently in a Ph.D program, spent nearly a month injecting medications and taking others orally to help stimulate the production of eggs and later fertilize them, even though she says it gave her nerve pain that she still suffers from today.

Her husband, a research scientist at a university in Orange County, says they hadn't given up hope. They decided to implant both embryos simultaneously to increase their chances by more than 50%.

"You get your hopes up when you hear something like that from a doctor," says Berger. But after the embryos were thawed and implanted on Jan. 25, 2024, the couple learned a month later something horrific had happened to their only remaining embryos — and they are still seeking answers.

Berger and Hardy are one of the nine couples who filed a joint lawsuit on Tuesday, April 23, obtained by PEOPLE, against IVF provider Ovation Fertility in Newport Beach, alleging its clinic destroyed their embryos. The filing claims that a lab embryologist wrongly used hydrogen peroxide (or some other caustic agent) instead of a sterile solution like distilled water in an incubator, causing the embryos to be "killed instantly." The complaint further alleges that the facility recklessly and wrongfully exposed the embryos to poison, then knowingly implanted "these dead embryos into the would-be mothers."

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"It's been very difficult and has taken such a toll," says Berger, with her husband Hardy, and their attorneys Robert H. Marcereau and Michelle B. Hemesath, also on the line. "There was no chance at all. We found out that we went through all of this for nothing. It was really heartbreaking."

Hardy, her husband, adds, "We're going through this together, and we're trying to start a family together, but ultimately, it's Brooke who is sacrificing her body physically and mentally, and I can only do so much."

Hardy continues: "It's just so hard seeing her with these medications, and the pain, and the whole process, and then for it to be for nothing, in this case where it's not even our fault — it's devastating."

All nine couples claim the clinic used high-grade embryos that should have had a 75% or above chance of success from Jan. 18 to Jan. 30. But, in fact, the odds were 0% because the clinic knowingly used nonviable embryos, and none of the women got pregnant.

"Ovation Fertility and its providers then implanted these dead embryos into their patient," the complaint reads. "Then commencing with an attempted cover-up that intensified the suffering of the nine California couples."

In an interview with PEOPLE, Marcereau, the attorney for the couples, says, "The story that came up more often and more consistently — at least three or four times with our clients — getting it secondhand from their doctors, was this notion that somehow hydrogen peroxide had been accidentally introduced into the incubator while the embryos were there, which hydrogen peroxide, it's basically like battery acid to those embryos."

Related: Patients Recall 'Torturous' IVF Egg Retrieval After Nurse at Fertility Clinic Steals Fentanyl and Replaces It with Saline

"It's a very caustic substance, particularly if it's a higher percentage strength. And it was lethal to them. That's why there was a 100% mortality rate for these embryos during this period. But Ovation has never come out and said exactly what happened," he alleges.

Marcereau further alleges, "We've also received an anonymous whistleblower who mentioned their cover-ups of specifically not documenting all these lab failures with the embryos or even destroying documents to avoid liability. They don't have qualified personnel and protocols to ensure things like this don't happen."

When reached for comment, a spokesperson for Ovation Fertility wrote in an email to PEOPLE, "Ovation Fertility has protocols in place to protect the health and integrity of every embryo under our care. This was an isolated incident related to an unintended laboratory technician error that impacted a very small number of patients."

The spokesperson added, "As soon as we recognized that pregnancy numbers were lower than our usually high success rates, we immediately initiated an investigation. 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."

'We haven't gotten to the bottom of what happened'

In March and April, Conor Beardsley, the President of Ovation, sent the plaintiffs letters "to confirm the understanding we have reached to provide you with certain accommodations regarding your fertility care." However, the complaint claims no couples had ever spoken with the facility members about the alleged misconduct or even Beardsley about any "accommodations."

"There were no discussions regarding possible settlement or resolution and certainly no agreement or 'understanding,'" the complaint claims. "Rather, Ovation tried to trick these then-unrepresented couples into signing a release agreement in exchange for a refund of lab fees, which amounted to a little over $5,000." (A single IVF cycle — including genetic testing — is estimated at $25,000, according to FertilityIQ.)

According to the complaint, shortly after Beardsley sent the letter to the plaintiffs, a lab manager at Ovation allegedly reached out to them multiple times a day, trying to get them to sign a release and non-disparagement agreement. None of the couples signed the paperwork or received any money.

Beardsley could not be reached for comment ahead of publication.

Related: Fertility Doctor Accused of Using Own Sperm to Impregnate Patients Dies After Hand-Built Plane Crashes

The eight other unnamed couples in the complaint filed in California Superior Court also had similar experiences to those of Berger and Hardy, asserting multiple claims, including negligent and intentional misrepresentation, negligent hiring, retention and supervision, concealment, loss of consortium and medical battery. Two nearly identical lawsuits were also filed on Thursday, April 18, against Ovation Fertility, with two more unnamed couples alleging similar negligence. The couples are not revealing their names in the other lawsuits to protect their privacy, according to their complaints.

All lawsuits are seeking jury trials and asking for an unspecified amount of compensation and punitive damages.

"We can't speak to whether or not there may be some criminal action," says attorney Marcereau. "There may be. If there is widespread fraud and intentional conduct, it could be. We haven't gotten to the bottom of what happened with the embryos. But it can certainly be criminal. We have a lot of questions and no answers yet. That's what this litigation is going to be about. We want answers for these grieving couples and ensure nothing like this ever happens again."

"There's a process that's in place before the embryos are given to the physicians to implant," adds attorney Hemesath. "Part of that process, they're looking at the embryo — they look at it under a microscope. It's our belief that when they're looking at it during that process before it gets implanted, there would've been evidence that the embryo was not viable, and they should have informed the physician and the couples and then not proceeded forward with the implantation. It's that process prior to implantation that should have been identified. It's implied that it's viable because if it's not, the doctors wouldn't implant it. None of our clients were aware."

'I'm going to keep trying'

Berger and Hardy currently have no remaining embryos and will need to start IVF treatment all over again if they want to try to conceive.

"We do want to do this again," says Berger. "We're trying not to give up this fight, even with this setback. It's going to mean several months of medications and injections again and these procedures. But many doctors around here use Ovation, and we refuse to use them because we no longer trust them. We'll need to find a doctor we'd like to move forward with that won't be associated with that facility."

As Berger continues talking about her fertility journey, she sounds hopeful again. "If we want to have a family, we are going to have to try really, really hard. It means a lot more medical treatment for me," she says. "It means putting my body at risk again. Waiting for the pregnancy test is the hardest part. You are feeling every little twinge and trying to interpret it. It's the toughest time. But I continue to hype myself back up and try to convince myself it will be okay."

She adds, "Our marriage is really strong and continues to be. My husband is the right partner for me to go through something like this. I've missed a lot of work, and it's hard to get up and focus. My mental health has suffered. It isn't easy every time you go through it, especially when it doesn't work out."

"But you know," she adds, holding back tears. "I'm going to keep trying."

A press conference will be held on April 23 at 1 p.m. EST/10 a.m. PST. Berger, Hardy and their attorneys will be discussing the case.

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