URBANA — The plaintiffs in what could be the first suit brought under the new Illinois Fertility Fraud Act will have to wait a little longer to see if their claims against Christie Clinic will go to trial.
A hearing was held Tuesday afternoon in Champaign County Circuit Court on the clinic’s motion to be dismissed from the lawsuit brought by Paula Duvall and her daughter, Erin Culver, under a state law that went into effect Jan. 1.
Champaign County Judge Benjamin Dyer said he will “take the matter under advisem*nt” and issue a written ruling. He hopes to do so in about two weeks.
The plaintiffs’ complaint alleges that Christie employee Dr. Bradley D. Adams, who is now deceased, used his own sperm to artificially inseminate Duvall in 1973 — which resulted in the birth of Culver — but told her it came from an anonymous donor.
The two women are seeking a jury trial and damages in excess of $50,000.
The mother and daughter, who live in Wisconsin, attended Tuesday’s hearing in person, despite having the option to participate remotely.
“It’s a little overwhelming,” Duvall told The News-Gazette after the proceedings concluded. “Again, I feel that this was an egregious act on the doctor’s part, and it was unethical. And I feel betrayed. I also feel that Erin has especially suffered from this. It’s been very hard on her.”
Duvall and her lawyers have said they believe this is the first lawsuit filed under the new law.
She and Culver are represented by Amy Wheatley of Indiana-based Stein Law Office and local lawyer Ellyn Bullock.
Christie Clinic is represented by Renee Monfort and Mark Benfield of Champaign-based Heyl, Royster, Voelker & Allen.
Among other things, Benfield argued that Christie Clinic is not a valid defendant under the Illinois Fertility Fraud Act, since the statute does not include health care facilities or employers in the list of entities a victim can bring an action against.
“The General Assembly has determined the scope of this act, specifically defining the persons that may be sued,” he said. Therefore, he concluded that courts should not interpret the act in such a way that gives it “unintended breadth.”
Benfield also argued that the statute of limitations for the plaintiffs’ common law claims against Christie Clinic expired in 1980, unless the clinic had knowledge of Dr. Adams’ alleged actions.
“Plaintiffs’ unsupported position that fraudulent concealment applies to Christie Clinic based on a simple allegation of vicarious liability is directly contradicted by 130 years of precedent,” he said. “Since at least 1892, the Illinois Supreme Court has recognized that fraudulent concealment must have been that of the party sought to be charged, and a mere allegation or proof that it was the agent will not be sufficient.”
Dyer then inquired about the plaintiffs’ claims that the clinic “either knew or should have known” about Dr. Adams’ actions and that if it was ignorant of his behavior, “its lack of knowledge is because it did not have in place a proper protocol for the procedure.”
Benfield replied that this is an “alleged conclusion” by the plaintiffs. He added that the plaintiffs acknowledged that they have no information that points to the clinic having knowledge of the alleged misconduct but have said they want to conduct discovery to see what they can uncover on this front, which he claims is “not the standard in Illinois.”
“If they don’t have those facts, why would it be inappropriate to allow them to conduct some limited discovery?” Dyer asked. “In other words, how would they obtain that kind of information?”
Benfield argued that there are multiple ways under Illinois law “to investigate a claim before you file it,” and the state requires that facts “should be in hand before the cause of action is filed.”
As part of her argument for Christie’s liability, Wheatley said that Dr. Adams’ alleged misconduct occurred at the clinic and that he used the facilities both to procure his sperm samples and perform the inseminations.
Dyer, however, noted that the plaintiffs have alleged that Dr. Adams requested direct payment from Duvall for his insemination treatments.
“Doesn’t that sort of plead the un-involvement of Christie Clinic?” he said.
Dyer also noted that, as referenced by Benfield, the clinic would have to have some knowledge of Dr. Adams’ actions in order for the exception to the statute of limitations to apply.
Wheatley replied that Duvall had to call the clinic to make her artificial insemination appointments, rather than calling Dr. Adams directly.
“Other Christie employees were involved,” she said. “She had to call someone else. She had to come in and be seen by other people. And frankly, your honor, I think that it strains the bounds of credulity to think that no one else knew what was going on. ... I think that it’s clear that this is more than just Dr. Adams acting.”
Benfield, however, argued that the plaintiffs do not have factual evidence to infer that the clinic was aware of Dr. Adams’ alleged misconduct.
He also claimed that the new fertility fraud law is unconstitutional, as it imposes retroactive duties and punishments.
In addressing this, Bullock cited the law’s section on legislative intent, which states that fertility fraud “has never constituted or complied with the medical standard of care and violates doctor-patient trust.”
“If the legislature can just say what history is, isn’t that the end of ex post facto litigation?” Dyer asked.
Bullock replied that while the state’s legislature “cannot say what history is,” it can “describe the harms that it intends to address.”
“You have a basic fundamental human interest in identity,” she said. “That is our story. Identity is our personal story. It is our community story. It is our story. So every person has a right to know about fraud, what their identity is.”
In addition to claims made against the clinic, the complaint filed by Duvall and Culver named Alice P. Adams as a personal administrator for the deceased Dr. Adams.
At the start of the hearing, Dyer inquired about the status of service for Adams.
“Defendant Adams was served, and we filed, I believe on Monday, an affidavit of service by a process server,” Wheatley said.
She later clarified that Adams’ name had changed to Alice Thweatt, and service was delivered to her daughter’s home where she lives, with the daughter stating that she had power of attorney.
Lawyer Steve Beckett then spoke up, stating that he represents the daughter.
“Alice Adams is dead, has been dead for four years,” Beckett said. “... I can’t enter my appearance for a dead person.”
Dyer concluded that the “service issues and proper parties will have to be tabled for a later time.”
