04/03/2309 EEK-38 39th:! FEE 3104779504 1801 Century Park East, Suite: 1920 Lus Ange-.165 CA 90067 Telephone: (3 1 (1)477 -7 122 Facsunile: (310) 477-9604 Cyn?xia C. Lebuw, EESBN 57588] LEBOW LAW OFFI 10866 Wilshire B'lvdq'Suite 1400 LDS Angela-.5, Cahforma 90024 Telephone: (310) 47341133 Facsunile: (310) 475-7371 Email: ADEL SAID, in individual, and ABEER SAD), an individual, Plaintiffs, V5. PACIFIC REPRODUCTIVE 1 RIFAAT SALEEM, M.D., PHILLIP M.D., 1 MANISH MEI-ITA, M.D., ZI-IIHONG YANG, Mn, PACIFIC COAST SURGERY CENTER, and DOES 1 through 30, inclusiVE, DefendantsJ William H. Newkirk, Esq. (SEN 669 84) LAW OFFICES OF WILLIAM H. NEWKIRK and allege as follows: BY John A, Clark. JD"u&nna Hg. 35' Attorneys for Plaintiffs, ADEL SAID and ABEER SAID CASE N05 PC040905 Case Assigned to Hon. Melvin D. andvig,. Dept. SECOND COMPLAINT mud Distress Battery ?aw? JURY TRIAL DENIANDED Exec ??ve SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES Ne:in ant Misrepresentation Intentinal In?iction of Emotional Medical Malpractice Lack of Informed Consant Unfair Com etition CA Bus Code' 17200, 81. 5313., Plaintiffs ADBL SAID and ABEER SAID, by and through their attorneys, Angular. County Sup APR 0 2003 0W Court Clerk Diary WI VN SECOND COMPLAWT 3883 ,e?PEi GENERAL ALLEGATIONS Plaintiffs ADEL SAID and ABEER SAID (hereinafter at all times material hereto, were and are residents of the County of Los Angeles, State of California. At all times material hereto, PLAINTIFFS were and are legally married. (13) belief allege that Defendant RIFAAT SALEM, M.D., (hereinafter was and PLAINTIFFS are informed and believe, and based on such information and now is a physician duly licensed to practice medicine in the State of California, with a speciality in infertility. At all times material hereto, defendant SALEM maintained professional of?ces located at 3720 Lomita Boulevard, Suite 200, Torrance, CA 90505, in the County of Los Angeles, State of California, and provided medical care and treatment to the PLAINTIFFS at said facility. 3. PLAINTIFFS are informed and believe, and based on such information and belief allege that Defendant MANISH MEHTA, M.D., (hereinafter was and now is a physician duly licensed to practice medicine in the State of California, with a speciality in urology. At all times material hereto, defendant MEHTA maintained professional of?ces located at 3720 Lornita Boulevard, Suite 200, Torrance, CA 90505, in the County of Los Angeles, State of California, and provided medical care and treatment to the PLATNTIFFS at said facility. 4. PLAINTIFFS are informed and believe, and based on such information and belief allege that Defendant PHILLIP WERTHMAN, M.D., (hereinafter was and now is a physician duly licensed to practice medicine in the State of California, with a speciality in urology. At all times material hereto, defendant WERTHMAN maintained professional of?ces located at 2080 Century Park East, Los Angeles CA 90067, in the County of Los Angeles, State of California, and provided medical care and treatment to the PLAINTIFF Adel Said at said facility. 5. PLAINTIFFS are informed and believe, and based on such information and belief allege that Defendant ZHIHONG YANG, D.V.M., (hereinafter SECOND AMENDED COMPLAINT 2 - was and now is the Senior Laboratory Director of defendant PACIFIC REPRODUCTIVE CENTER, conducting biological research in the ?eld of human reproductive technologies. At all times material hereto, defendant YANG maintained professional of?ces located at 3720 Lomita Boulevard, Suite 200, Torrance, CA 90505, in the County of Los Angeles, State of California, and participated in the medical care and treatment provided to the PLAINTIFFS at said facility. 6. PLAINTIFFS are informed and believe, and based on such information and belief allege that at all times material hereto, Defendant PACIFIC REPRODUCTIVE CENTER or also known as PACIFIC REPRODUCTIVE MEDICAL CENTER, INC, was and now is a corporation duly organized and existing under the laws of the State of California, maintaining its principal place of business in Torrance, California, and engaged in and doing business in the County of Los Angeles. Among other things, defendant PACIFIC REPRODUCTIVE provides reproductive technologies, including assisted reproductive techniques, such as in vitro fertilization, and other infertility services, to patients for compensation, as well as related surgical, clinical, pathological, diagnostic, nursing, skilled nursing, and other custodial care and treatment. Defendant SALEM is the Medical Director and Founder of defendant PACIFIC REPRODUCTIVE. 7. PLAINTIFFS are informed and believe, and based on such information and belief allege that at all times material hereto, Defendant PACIFIC COAST SURGERY CENTER was and is a hospital, medical center, clinic, surgical center, and/or healthcare facility maintained pursuant to a license existing under and by virtue of the laws of the State of California and/or authorized to do business and is doing business in the County of Los Angeles, State of California. PLAINTIFFS are further informed and believe and based thereon allege, that defendant PACIFIC SURGERY is owned, operated, and managed by defendant PACIFIC REPRODUCTIVE. 8. Since the true names and capacities, whether individual, corporate, SECOND AMENDED COMPLAINT 3 associate, or otherwise, of the Defendants designated and sued herein as DOES 1-100, inclusive, are unknown to PLAINTIFFS, those defendants are designated by their ?ctitious names. PLAINTIFFS allege on information and belief that each of the Defendants designated and sued as a DOE is legally responsible in some manner for the events and happenings referred to herein, and legally caused the injury and damages to PLAINTIFFS as herein alleged. PLAINTIFFS will ask leave of this court to amend this pleading to insert the true names and capacities of these Defendants designated by their ?ctitious names when those facts become known to PLAINTIFFS. 9. At all times mentioned herein, Defendants DOES 1-20, inclusive were technicians, laboratory facilities, or the owners or operators of such facilities engaged in andi?or licensed to operate businesses maintaining and offering laboratory facilities to the general public and to the physicians and hospital herein and others involved in the rendition of ancillary services and facilities incidental to the operation of a hospital, clinic, or doctor?s of?ce and/or the provision of health services to the general public, and in particular, to the PLAINTIFFS herein. 10. At all times mentioned herein, the Defendants DOES 21-50, inclusive, were and now are physicians, surgeons, nurses, medical and paramedical personnel, or other health care professionals, duly licensed to practice their business or profession, or engaged in the practice of their profession, in the County of Los Angeles, State of California. 11. At all times mentioned herein, Defendants DOES 51-70, inclusive, were and now are corporations, partnerships, sole proprietorships, joint ventures, unincorporated associations, or some other business entities doing business in the State of California, and duly organized and existing under, and by virtue of the laws of the State of California, each of which, in some way, contracted to provide medical care and treatment or ancillary services to the general public, including the PLAINTIFFS. 12. Defendant PACIFIC REPRODUCTIVE at all times herein mentioned, owned, operated, managed, controlled, and administered a surgical center and healthcare SECOND AMENDED COMPLAINT 4 facility in Los Angeles County and held itself out to the public at large, and to PLAINTIFFS in particular, as a properly equipped, ?rlly accredited, competently staffed facility with quali?ed and prudent personnel, and operating in compliance with the standard of care maintained in other properly operated and administered, accredited healthcare facilities in the Southern California medical community, and offering full, competent and ef?cient, medical, surgical, laboratory, x-ray, anesthesia, pharmaceutical, paramedical and other services for the general public and to PLAINTIFFS. PACIFIC REPRODUCTIVE administered, governed, controlled, managed, and directed all the necessary functions, activities, and operations of said healthcare facility, including its nursing care, and the activities of physicians, surgeons, medical and paramedical personnel and technicians employed by, or acting within said facility. PACIFIC REPRODUCTIVE had a duty to select, review and periodically evaluate the competency of its employees, independent contractors, and staff physicians, including employees, independent contractors, and physicians involved in the care and treatment of PLAINTIFFS, herein. At all times material hereto, defendant PACIFIC REPRODUCTIVE negligently or in some other manner, breached said duty. 13. At all times mentioned herein, the Defendants, and each of them, were the agents, servants, and employees of the remaining Defendants, and at all times mentioned herein, were acting within the course, scope and authority of their agency, service, employment, contract, andlor joint venture with said principal or employer, and that each and every defendant, as aforesaid, when acting as a principal, was negligent and reckless in the selection and hiring of each and every other defendant as an agent, servant, employee, assistant, andfor consultant. Each Defendant had also given prior approval and subsequent rati?cation for the conduct, acts, and/or omissions of the other Defendants, and each of them. 14. At all times mentioned herein, Defendants, and DOES 1-100, inclusive, and each of them, agreed to perform and undertook to perform for the PLAINTIFFS all SECOND AMENDED COMPLAINT - 5 services necessary for their care, including both medical and non-medical services, which included, but were not limited to, observation, attention, examination, evaluation, diagnosis, care and treatment of the PLAINTIFFS herein, as well as related administrative and clerical management of their health care. In so doing, the Defendants, and each of them, established a relationship with the PLAINTIFFS, giving rise to each Defendant?s duty to provide skillful management of the health conditions and medical, custodial, clerical and administrative needs. 15. At all times mentioned herein, PLAINTIFFS were in the exclusive control of the defendants, and each of them, and at no time prior to the events, conduct, activity, care, and treatment as herein complained of did the defendants, or one or more of them, obtain knowledgeable, informed consent for the care, treatment, or conduct as herein alleged, and that prior to the initiation or of performance of said care, treatment, procedure, or conduct, no opportunity was afforded to the PLAINTIFFS herein to exercise voluntary, knowledgeable and informed consent to said care, treatment, procedure, or conduct. JURISDICTION AND VENUE 16. The amount in controversy herein, exclusive of attorneys fees, interest, and costs, exceeds the sum of $25,000.00. 17. All of the events and transactions hereinafter alleged occurred in the County of Los Angeles, State of California. 18. Venue is proper in this court pursuant to California Code of Civil Procedure Section 395(a), in that the injury to PLAINTIFFS occurred within Los Angeles County. FACTUAL ALLEGATIONS 19. In or about June, 1991, Plaintiff Adel Said consulted Cappy Miles Rothman, M.D., a nationally recognized Los Angeles urologist and specialist in male reproductive health and male infertility, because Mr. Said and his wife Abeer were having SECOND AMENDED COMPLAINT 6 macaw dif?culty conceiving a child naturally and becoming pregnant. Dr. Rothman had been a pioneer in the application of microsurgical techniques in the treatment of male infertility and was the founder and director of the Center for Male Reproductive Medicine at Century City Hospital. In the course of evaluating the Plaintiffs for conception, Dr. Rothman conducted a testicular biopsy, after which he informed Mr. Said that he had a biological and physical condition known as germinal cell aplasia, in which said condition the male partner does not produce the germinal cells which are the precursors of sperm necessary for fertilization of human eggs cells, and that this was likely causing the Saids? dif?culties with pregnancy. 20. From 1991 until 1993, Plaintiff Adel Said periodically consulted with Dr. Rothman and other physicians, at Century City Hospital regarding the diagnosis and treatment of his condition and to determine if new techniques might be available to assist the PLAINTIFFS in becoming pregnant. PLAINTIFF is informed and believes and based thereon alleges that some time prior to or during 1993, Defendant WERTHMAN became a physician at the Center for Male Reproductive Medicine. On one or more occasions, Mr. Said was examined by and consulted with Dr. Werthman, At the time of Mr. Said?s ?rst consultation with Dr. Dr. Rothman was present and explained in detail the earlier testing and the test results. Dr. Werthman indicated that the condition of germinal cell aplasia would prevent the PLAINTIFFS from ever becoming pregnant naturally and that other alternatives, such as adoption, should be considered if the couple hoped to have children. 21. In or about March, 1999, Plaintiff Adel Said saw an advertisement in an Arab-language magazine for Defendant PACIFIC REPRODUCTIVE, promoting the expertise with in vitro fertilization and male infertility. Mr. Said contacted PACIFIC REPRODUCTIVE to set up an appointment for consultation. 22. On or about March 12, 1999, the PLAINTIFFS had an appointment with defendant SALEM at PACIFIC REPRODUCTIVE. At that time, the PLAINTIFFS SECOND AMENDED COMPLAINT 7 presented Dr. Salem with a copy of Mr. Said?s medical records from Dr. Rothman?s of?ce. including the 1991 diagnosis of germinal cell aplasia, and the results of more recent testing performed in 1998 by Dr. Werthman. Dr. Salem discussed the process of IVF with the PLAINTIFFS, explaining how it offered hope to the PLAINTIFFS for successful fertilization and conception, despite the earlier diagnoses. 23. The consultation report prepared by Defendant SALEM following the March 12, 1999 consultation indicated that Mr. Said?s azoospermia, or absence of viable sperm cells, might be related to the patient?s history of Behcet?s Disease and treatment, that SALEM was ?very interested to explore the idea as to whether this is a case of non? obstructive azoospermia with presence of sperm in his testes, which might qualify him for in vitro fertilization and intracytoplasmic sperm injection,? that additional tests should be conducted, and that a biopsy of the left testis ?to explore the possibility of sperm? should be considered. However, such additional tests were not conducted by Dr. SALEM and he continued to recommend that the PLAINTIFFS proceed with IVF. 24. In vitro fertilization (IVF) is a procedure in which a woman?s ovaries are stimulated with fertility medications to produce multiple mature eggs, which are then removed from her body and are fertilized in the laboratory with her partner?s sperm. The resulting viable embryos are cultured for three to ?ve days and the best two or three are then transferred back into her uterus. A woman undergoing IVF is given injectable fertility drugs to enhance the growth of the ovarian follicles, the goal of which is to promote ovulation of several high-quality egg cells per treatment cycle. Several medications are administered at different stages of a woman?s menstrual cycle. A woman?s eggs are retrieved by needle aspiration with the guide of an ultrasound probe with the patient under light sedation. The egg retrieval process takes approximately 30-45 minutes. The eggs are observed under a microscope for maturity and quality, and are then transferred to a culture dish where they are incubated in a special culture medium. To complete the WP process, a semen sample from the husband is obtained while the wife is SECOND AMENDED COMPLAINT 3 undergoing the egg retrieval procedure. After being prepared, the semen is then introduced to the eggs in the culture medium. Many of these eggs will fertilize and develop into embryos. A number of embryos are placed back in the woman?s uterus using a catheter through a procedure known as embryo transfer. 25. At the time of the March, 1999 consultation, Defendant SALEM represented to the PLAINTIFFS that the CENTER had developed and re?ned techniques for producing viable embryos in circumstances where the male had poor sperm quality. He recommended that the PLAINTIFFS proceed with in vitro fertilization. As part of this discussion, Defendant SALEM showed the PLAINTIFFS many photographs of babies that were conceived with IVF in the manner he described to PLAINTIFFS. During the discussion, Defendant SALEM inquired whether donor sperm would present a possible option for the PLAINTIFFS, but the couple categorically refused this alternative on religious grounds. Defendant SALEM expressed con?dence nonetheless that IVF would still be possible by using round spermatids extracted from Mr. Said. 26. The process anticipated by defendant SALEM was a method of assisted fertilization known as intra-cytoplasmic sperm injection (ICSI) in which a single sperm cell or precursor cell is injected into a single oocyte (female egg) the resulting embryo(s) are implanted into the uterus. Developed in the 1990's, ICSI is considered, under some circumstances, an effective technique for the treatment of male factor infertility. A number of procedures were required as part of the process for PLAINTIFFS, including the harvesting of eggs from Plaintiff Abeer Said, multiple needle extractions of spermatids from the testes of Plaintiff Adel Said, and the implantation of the resulting embryos into the uterus of Mrs. Said. 27. On or about January 25, 2000, PLAINTIFF Adel Said and PLAINTIFF Abeer Said each executed a document presented to them by employees of PACIFIC REPRODUCTIVE entitled ?Informed Consent To Perform In?Vitro Fertilization and Embryo Transfer (Using Fresh andfor Frozen Embryos Derived From Partners? Gametes? SECOND AMENDED COMPLAINT 9 Female Partner?s Eggs Fertilized With Male Partner?s Sperm)? (hereinafter ?Informed Consent"). This document authorized Defendant SALEM, or other physicians employed at PACIFIC REPRODUCTIVE, to conduct all appropriate and necessary medical procedures attendant to the medical procedure described as ?In-Vitro Fertilization.? The Informed Consent document set forth, among other things, the following: a general description of the steps involved in the need to obtain comprehensive medical information from both the male and female partners to determine whether the patients are suitable candidates for the procedure; consent to the prescribing and taking of fertility drugs; consent to medical testing, including ultrasound examinations, blood sampling, and investigations of the quality of the male sperm; consent to aspiration of one or more mature eggs; consent to obtaining specimen of sperm from the male partner, including, if necessary, testicular biopsy; consent to implantation of fertilized embryos into the female partner?s uterus; disclosure of the risks and complications of conception and multiple pregnancies and births; disclosure of the risks and discomforts associated with and related procedures; procedures for the disposal of non-viable eggs, sperm and untransferred or non?viable embryos; a disclaimer that the physicians cannot guarantee or warrant that a successful pregnancy will be achieved; acknowledgment that any children born from the IVF process will be considered the partners? natural child and legal dependent; and SECOND AMENDED COMPLAINT 10 - agreement to pay in full to the CENTER all of the costs set forth in the accompanying fee schedule, and agreement to pay all costs in advance if insurance reimbursement is not obtained or available. 28. On or about January 25, 2000, PLAINTIFF and Defendant SALEM agreed to a payment plan regarding the IVF procedures that were to be undertaken. PLAINTIFFS and Defendant agreed to an ?Option 3? Plan that included three complete cycles of IVF and embryo transfer for a fee of $10,000. This plan was modi?ed by an agreement by Defendant SALEM to apply a 25 percent discount, known as ?Option available to qualifying couples with a combined gross income of less than $70,000. Additional costs for medical examinations, pro-cycle work ups, fertility drugs and additional pharmaceuticals, and ?cryOpreservation?, or freezing of embryos were excluded from the billing and services plan. 29. In or about January, 2000, Plaintiff Abeer Said commenced the first cycle of IVF treatment at PACIFIC REPRODUCTIVE under the care and supervision of Defendant SALEM. PLAINTIFFS were provided with written instructions regarding the IVF process and the use and administration of the required fertility drugs. The required treatment included injections of the fertility drugs Perganol, HMG and FSH, among others, at prescribed times during the menstrual cycle. Plaintiff Abeer Said was regularly monitored at PACIFIC REPRODUCTIVE for blood hormone levels and underwent periodic ultrasound measurements of her ovaries to determine how the eggs were maturing. On or about February 9, 2000, Plaintiff Abeer Said underwent the procedure to extract her mature eggs. This procedure, which lasted approximately one hour, was performed by Defendant SALEM, at PACIFIC REPRODUCTIVE. 30. Defendant SALEM claimed, among other things, that a technique of developing mature sperm from precursor germ cells known as ?round spermatids" would produce viable embryos for IVF. On or about February 9, 2000, at PACIFIC REPRODUCTIVE, Mr. Said underwent the ?rst needle aspiration procedure to extract SECOND AMENDED COMPLAINT - 11 spermatids. This procedure was performed by Defendant MEHTA, and involved multiple needle insertions, without anesthetic or sedation, into Mr. Said?s testes. At the time of the extractions, while Mr. Said was recovering, Dr. Mehta and Dr. Salem came into the room to inquire how the Plaintiff was doing and to report that ?something useful? in the form of round spermatids had been recovered, allowing the embryo transfer procedure to proceed three days later. Defendants SALEM and Defendant MEHTA, at the time of the extractions and at the time of the implantation of embryos into Plaintiff Abeer Said, both represented to the PLAINTIFFS that precursor spermatid cells had been extracted from Mr. Said that were of suf?cient quantity and quality so as to be able fertilize Mrs. Said?s eggs and produce viable embryos. At the initial consultation and at each subsequent meeting or treatment thereafter, Defendant SALEM represented to the PLAINTIFFS that the success rate at PACIFIC REPRODUCTIVE for successful fertilization using precursor round spermatids compared favorably with the rate of fertilization when viable mature sperm were used. 31. On February 12, 2000, three days after the extraction of egg cells from Mrs. Said, PLAINTIFFS returned to PACIFIC REPRODUCTIVE for the implantation of embryos into Mrs. Said?s uterus. Immediately before the implantation procedure began, Defendant YANG rolled into the treatment room a cart of petri dishes containing the viable embryos purportedly produced from Mr. Said?s round spermatids and Mrs. Said?s egg cells. Defendant SALEM introduced Defendant YANG as the technician who had worked on and produced the embryos. At that time, Defendants SALEM and YANG showed the PLAINTIFFS microscopic photographs of seven or eight purportedly viable embryos, claiming that the embryos were healthy and ready for implantation. With Plaintiff Adel Said present, Defendant SALEM performed the implantation of the embryos into Mrs. Said's uterus, with the assistance of Defendant YANG. At the conclusion of the embryo transfer procedure, Defendant SALEM told the PLAINTIFF that all of the embryos had been successfully surgically implanted into Mrs. Said. SECOND AMENDED COMPLAINT 12 - 32. Plaintiff Abeer Said was required to rest in bed for one week following the embryo transfer procedure. About one week following the procedure, Mrs. Said went to Northridge Hospital Medical Center for blood tests, the results of which were transmitted to Defendant SALEM. A few days later, Mrs. Said began her menstrual period. When she called PACIFIC REPRODUCTIVE to report that development, she was told that she was not pregnant and that the IVF procedure had not been successful. 33. Following the first unsuccessful attempt at IVF, the PLAINTIFF were extremely upset and disappointed that a pregnancy had not resulted, and took no action to initiate a second IVF cycle. Defendant SALEM had previously informed the PLAINTIFFS that he would not freeze unused embryos or eggs, necessitating a repetition of the entire IVF cycle if the PLAINTIFFS determined that they would like to attempt pregnancy again. 34. In the summer of 2001 Plaintiff Adel Said was contacted by a nurse named ?June? at PACIFIC REPRODUCTIVE to tell him about an expert urologist who was coming to the United States from Egypt and who had a reputation of being able to achieve male fertility when others had failed. The Egyptian doctor was purportedly going to be working for a limited time with the doctors at PACIFIC REPRODUCTIVE, and the nurse inquired as to whether the Saids might be interested in another attempt to become pregnant. Subsequent to this telephone call, Mr. Said spoke with Defendant SALEM about the credentials of the Egyptian doctor. Dr. Salem told him that the Egyptian doctor was a urology expert who had been highly success?il in extracting sperm from patients suffering from male infertility. 35. After discussing the matter between themselves and with Defendant SALEM, the PLAINTIFFS eventually determined that they would make a second attempt to become pregnant through IVF. 36. In or about August, 2001, Plaintiff Abeer Said commenced the second cycle of IVF treatment at PACIFIC REPRODUCTIVE, under the care and supervision of SECOND AMENDED COMPLAINT -13- Defendant SALEM. The required treatment again included injections of various fertility drugs, as well as monitoring and ultrasound examinations at the Center. On or about September 21, 2001, Plaintiff Abeer Said underwent a second procedure to retrieve her mature eggs. This procedure was performed by Defendant SALEM at PACIFIC REPRODUCTIVE. 37. On or about September 21, 2001, Mr. Said underwent a second needle aspiration procedure to extract round spermatids from his testicles. Although the extraction procedure was supposed to be performed by the visiting Egyptian urologist, for reasons unknown to the PLAINTIFFS, the Egyptian doctor did not come to Los Angeles to work with the doctors at PACIFIC REPRODUCTIVE. At the request of Defendant SALEM, the procedure was instead performed by Defendant WERTHMAN, at PACIFIC REPRODUCTIVE. Prior to or at the time of the aspiration procedure, Plaintiff Adel Said reminded Defendant WERTHMAN that he had treated with him previously, and of the earlier diagnosis of germinal cell aplasia. Dr. WERTI-IMAN assured Mr. Said that he was familiar with his reproductive history. Mr. Said told WERTHMAN that this was the second attempt at IVF, that the ?rst attempt had been very dif?cult on both him and his wife, and that he wanted to be sure that there was a real chance at a successful conception. Defendant WERTHMAN responded by telling Mr. Said that they were going to do whatever they could to successfully pursue IVF and that he should continue with the needle aspiration extractions. The procedure again involved multiple painful needle insertions and aspiration, into Mr. Said's testes. Following the procedure, when Mr. Said called Defendant WERTHMAN to ask him about the results of the procedure, WERTHMAN initially responded that he did not know the ?ndings because the samples had been left at PACIFIC REPRODUCTIVE. 38. On or about September 24, 2001, Plaintiff Abeer Said underwent a second embryo transfer procedure, performed by Defendant SALEM, with the assistance of Defendant YANG. Both Defendants SALEM and YANG represented to the SECOND AMENDED COMPLAINT - 14 - PLAINTIFFS that precursor spermatid cells had been extracted from Mr. Said and that said spermatids were of suf?cient quantity and quality so as to be able fertilize Mrs. Said?s eggs and produce viable embryos, that 5 or 6 viable embryos had been produced, and that all the embryos had been implanted into Mrs. Said. 39. Approximately two weeks following the embryo transfer procedure, Mrs. Said went to PACIFIC REPRODUCTIVE for the blood tests necessary to determine if she was pregnant. Shortly thereafter, she received a telephone call from a nurse at the Center informing her that she was not pregnant and that the second IVF procedure had been unsuccessful. 40. In June, 2006, PLAINTIFFS consulted another fertility expert, Paul J. Turek, M.D., at the University of California, San Francisco (UCSF) Medical Center. Dr. Turek performed an exhaustive series of attempts to harvest sperm cells or precursor cells from a total of 28 different sites on Mr. Said?s testes. These efforts, known as ?testicular mapping? were fruitless. There was no evidence of spermatozonia, spermatoctyes, or spermatids. Not only was Mr. Said not producing mature sperm, he was also not producing spermatids or any kind of precursor sperm cells, including germ cells. Upon being advised of these ?ndings, Mr. Said inquired as to how the defendants at PACIFIC REPRODUCTIVE could possibly have been successful in producing viable embryos from round spermatids harvested in 2000 and 2001. PLAINTIFF were advised at that time by Dr. Turek that it was highly unlikely that the techniques used at PACIFIC REPRODUCTIVE ever produced viable embryos from the round spermatids purportedly obtained from Mr. Said, or that round spermatids were even extracted. Dr. Turek explained to the PLAINTIFFS that this was true because, as far back as 1991, Mr. Said was not producing anything sperm cell or precursor sperm cell that was capable of fertilizing an ovum. Moreover, the remarkably high rate of success claimed by the defendants in utilizing spermatids to produce viable embryos was entirely incompatible with the ?ndings of every other researcher who had studied the use of round spermatids to FLA SECOND AMENDED COMPLAINT - 15 ~405Mbme fertilize human eggs. Even in those extremely rare instances where success was documented in the scienti?c literature, another, far more sophisticated technique was used to yield embryos than the technique employed by the defendants. 41. Based on the 1991 diagnosis rendered by Dr. Rothrnan, and the consultation with Dr. Turek in 2006, one of several things had to be true with respect to the care and treatment provided by the Defendants during 2000 and 2001: Contrary to the express representations of Defendants SALEM, MEHTA, YANG, and WERTHMAN, the material extracted from Mr. Said was not capable of fertilizing a human egg, and the photographs of embryos shown to the PLAINTIFFS by the Defendants SALEM and YANG were some one else?s embryos which were then surgically implanted into Mrs. Said; Contrary to the express representations of Defendants SALEM, MEHTA, YANG, and WERTHMAN, the material extracted from Mr. Said was not capable of fertilizing a human egg, the photographs of embryos shown to the PLAINTIFFS by the Defendants SALEM and YANG were some one else?s embryos and the surgical procedures that allegedly implanted these embryos into Mrs. Said were nothing other than a sham; or (6) Mrs. Said?s eggs were fertilized by the Defendants with some one else?s sperm and surgically implanted into Mrs. Said. 42. The PLAINTIFFS did not become aware of, nor did they have reasonable suspicion to believe that the representations of the Defendants regarding (1) the possibility of extracting round spermatids from Mr. Said and using them to fertilize Mrs. Said?s eggs; (2) the fertilization of Mrs. Said's eggs with spermatids from Mr. Said; and (3) the production of viable embryos from Mr. Said's spermatids and Mrs. Said's eggs were, in fact, false until they received a written report from Dr. Turek on or about June 27, 2006. SECOND AMENDED COMPLAINT 15 43. Defendant PACIFIC REPRODUCTIVE charged the PLAINTIFFS a fee of $6,604 for the cycle of IVF in 2000, and $7,550 for the cycle of in 2001. In addition, PLAINTIFF were required to purchase fertility drugs and related medications at a total cost of more than $16,000 for each IVF procedure. FIRST CAUSE OF ACTION Fraud (Against Defendants Rifaat Salem, M.D., Manish Mehta, M.D., Zhihong Yang, Paci?c Reproductive Center, and Phillip Werthman, MD.) 44. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 43 above as if ?rlly set forth herein at length. 45. From March 1999 through late 2001 Defendant SALEM, at various times throughout that period, made the following representations to the PLAINTIFFS: (C) Despite the fact that Mr. Said had previously been diagnosed with germinal cell aplasia, there was a realistic chance, through the sophisticated techniques employed by the Defendant, that in vitro fertilization would produce a pregnancy for the As a result of very costly and extremely painful procedures undertaken by Defendant SALEM to harvest eggs from Mrs. Said and by Defendant MEHTA, and later the Defendant WERTHMAN, to extract viable sperm cells from Mr. Said, Defendants SALEM, MEHTA, and YANG had been successful in fertilizing a relatively large number of eggs with precursor cells harvested from Mr. Said known as ?round spermatids?; Photographs of embryos shown to the PLAINTIFFS by Defendant SALEM and Defendant YANG before embryo transfer were, in fact, viable embryos produced from Mr. Said?s round spermatids and Mrs. Said?s oocytes through IVF techniques; Defendants SALEM, with assistance from Defendant YANG, surgically SECOND AMENDED COMPLAINT - 17 implanted these viable embryos into Mrs. Said, which thereafter failed to produce a pregnancy. 46. In reality, these representations of the defendants, and each of them were will?illy false and made to induce the PLAINTIFFS to incur, and to continue to incur great ?nancial expense paid to the Defendant PACIFIC REPRODUCTIVE with no realistic expectation of producing a successful pregnancy. 47. The representations made by Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and/or WERTHMAN to the PLAINTIFFS were, in fact, false. The true facts were as follows: (6) From the very outset, given the data already in the Defendants? possession from Dr. Rothman?s of?ce, and subsequently by Defendant Werthman while a part of Dr. Rothman?s of?ce, including the conclusive diagnoses of germinal cell aplasia, there was never any realistic chance of the PLAINTIFFS ever successfully becoming pregnant through From the very outset, the Defendants? representations regarding their relative rate of success in producing successful pregnancies in situations like that of the PLAINTIFFS were highly in?ated and untrue; Plaintiff Adel Said was not producing ?round spermatids? or any other precursor sperm cells; Contrary to their express representations, Defendants had not been success?il in harvesting ?round spermatids" from Mr. Said or any other precursor sperm cells 5 capable of producing viable embryos; Contrary to their express representations, Defendants had not successfully fertilized eggs surgically harvested from Mrs. Said with ?round spermatids" extracted from Mr. Said; SECOND AMENDED COMPLAINT -13- Contrary to their representations, the photographs of viable embryos allegedly produced by the IVF techniques employed by the Defendants and shown to the PLAINTIFFS prior to embryo transfer were, in fact either 1) not photographs of viable embryos at all, or (2) if they were viable embryos, they were not the embryos, or (3) If they were viable embryos produced from eggs harvested from Mrs. Said, they were fertilized with sperm ?'om someone else other than Mr, Said; Contrary to their express representations, Defendants SALEM and YANG did not implant viable embryos into Mrs. Said on any occasion but rather intentionally undertook sham surgeries and actually implanted nothing at all, or undertook surgeries and implanted embryos that were produced from sperm from some one other than Mr. Said; Contrary to their express representations, not only had the defendants not had the rate of success in fertilizing eggs with ?round spennatids? that they claimed, but, in fact, the rate of success represented by Defendant SALEM in successfully fertilizing eggs with ?round spermatids" had never been reported in medical literature. In making the above?alleged false representations, Defendants, and each of them, wrongfully and improperly, with conscious and ?agrant disregard for the rights of the PLAINTIFFS, intended to induce and did, in fact, induce the PLAINTIFFS, in reliance thereon, to undertake two cycles of IVF procedures which required the PLAINTIFFS to undergo numerous painful and invasive medical procedures, at considerable ?nancial When Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE and/or WERTHMAN made these representations, they knew them to SECOND AMENDED COMPLAINT 19 - be false, and made the representations with the intention of deceiving and defrauding the PLAINTIFFS, and for the purpose of causing the PLAINTIFFS to act in reliance on these representations, with the expectation that PLAINTIFFS would rely on such representations and undertake one or more cycles of treatment. 50. As a proximate result of the ?'audulent, false, and deceptive representations made by Defendants SALEM, MEHTA, YANG, and PACIFIC REPRODUCTIVE, as alleged herein, PLAINTIFFS, in reliance thereon, agreed to and executed the Informed Consent document, authorizing the Defendants to conduct all appropriate and necessary medical procedures attendant to the medical procedure described as ?In-Vino Fertilization," and also agreed to pay to the Defendants and to others substantial sums of money for the IVF procedures and related prescription drugs and medical testing. By reason of the events set forth above, PLAINTIFFS have been damaged in an amount in excess of the jurisdictional limit of this Court. 51. The conduct of Defendants SALEM, MEHTA, YANG andfor PACIFIC REPRODUCTIVE, as alleged herein, was an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendants with the intention on the part of the Defendants of depriving the PLAINTIFFS of money, property, or legal rights, causing personal injury, or otherwise causing injury, and was despicable conduct that subjected PLAINTIFFS to cruel and unjust hardship in conscious disregard of rights, so as to justify an award of exemplary and punitive damages. Defendants? conduct was particularly egregious and in ?agrant disregard of the fact that PLAINTIFFS had executed the Informed Consent for and subjected themselves to the painful and invasive medical procedures involved in the fervent hope that they would be able to have children of their own. if! SECOND AMENDED COMPLAINT -20- SECOND CAUSE OF ACTION A ma .lisi'llf?l??i? Mehta M.D. Zhihoiaggvang, Paci?c Reproductive Ceilter, ahd Phillip 52. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 51 above as if fully set forth herein at length. 53. Each of the representations alleged herein were deceitful and negligently made by Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and or WERTHMAN and each of them, during the course of their diagnosis, care and treatment of the PLAINTIFFS, for the purpose of inducing them to undertake in vitro fertilization treatments. 54. In making the alleged misrepresentations alleged herein, Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and/or WERTHMAN, and each of them, knew, or in the reasonable exercise of reasonable care, should have known that such representations were false, and that they would induce the PLAINTIFFS, in reliance thereon, to undertake one or more IVF procedures, which required the PLAINTIFFS to undergo numerous pain?il and invasive medical procedures, at considerable ?nancial expense. 55. As a proximate result of the fraudulent, false, and deceptive representations made by Defendants SALEM, MEHTA, YANG and/or PACIFIC REPRODUCTIVE, as alleged herein, PLAINTIFFS agreed to and executed the Informed Consent document, authorizing the Defendants to conduct all appropriate and necessary medical procedures attendant to the medical procedure described as ?In-Vitro Fertilization,? and also agreed to pay to the Defendants and to others substantial sums of money for the IVF procedures and related prescription drugs and medical testing. By reason of the events set forth above, PLAINTIFF have been damaged in an amount in excess of the jurisdictional limit of this Court. Hf SECOND AMENDED COMPLAINT 21 was Intentional In?iction of Emotional Distress (Against Defendants Rifaat Salem, M.D., Manish Mehta, M.D., Zhihong Yang, Paci?c Reproductive Center, and Phillip Werthman, MD.) 56. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 55 above as if fully set forth herein at length. 57. At all time mentioned herein, Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and WERTHMAN, and each of them, knew or should have known how badly the PLAINTIFFS wanted a child of their own and also knew that the false and fraudulent representations made to the PLAINTIFFS, as previously alleged herein, were likely to cause the severe emotional distress, most particularly if Plaintiff Abeer Said?s eggs were fertilized with sperm from someone other than her husband, if she was implanted with embryos that were not produced from fertilizing Plaintiff Abeer Said?s eggs with sperm from Plaintiff Adel Said, or if the embryo transfer surgery was a sham. 58. At all times material hereto, Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and WERTHMAN, and each of them, undertook the fraudulent, malicious conduct alleged herein with the intention of causing the PLAINTIFFS severe emotional harm or with reckless disregard of the likelihood that PLAINTIFFS would suffer such emotional harm as a result of such conduct. 59. The fraudulent and malicious conduct alleged herein constitutes extreme and outrageous conduct, in that any reasonable person would know and understand that the were particularly vulnerable and susceptible to severe emotional distress and that the Defendants? conduct would likely cause the PLAINTIFFS severe emotional distress, and was so extreme as to exceed all bounds of conduct usually tolerated in a civilized society. 60. As a proximate result of the outrageous conduct of the Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, andfor WERTHMAN, as alleged herein, SECOND AMENDED COMPLAINT -22- PLAINTIFFS suffered severe emotional distress. 61. The conduct of Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, andfor WERTI-IMAN, as alleged herein, was outrageous, intentional and fraudulent, with the intention on the part of the Defendants of depriving the PLAINTIFFS of money, property, or legal rights, causing personal injury, or otherwise causing injury, and was despicable conduct that subjected PLAINTIFFS to cruel and unjust hardship in conscious disregard of rights, so as to justify an award of exemplary and punitive damages. Defendants? conduct was particularly egregious and in ?agrant disregard of the fact that PLAINTIFFS had executed the Informed Consent for IVF and subjected themselves to the pain?il and invasive medical procedures involved in the fervent hope that they would be able to have children of their own. FOURTH CAUSE OF ACTION Medical Malpractice (Against Defendants Rifaat Salem, M.D., Manish Mehta, M.D., Zhihong Yang, Paci?c Reproductive Center, and Phillip Werthman, MD.) 62. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 61 above as if fully set forth herein at length. 63. At all times and places mentioned herein, Defendants SALEM, MEI-ITA, YANG, WERTHMAN, and PACIFIC REPRODUCTIVE carelessly and negligently instructed, examined, diagnosed, prescribed, cared for, and treated PLAINTIFFS, and each of them, for their medical conditions, including but not limited to, the diagnosis and treatment of their infertility, including the extraction of (or failure to extract) sperm or precursor sperm cells from Plaintiff Adel Said, retrieval of mature eggs from Plaintiff Abeer Said, fertilization of viable embryos resulting from the reproductive cells, and embryo transfer without the informed consent or knowledge, and provided hospital, medical, nursing, laboratory, x-ray, care and treatment in a careless and negligent manner resulting in injury to the PLAINTIFFS. SECOND AMENDED COMPLAINT -23- all times material hereto, Defendants SALEM, MEHTA, YANG, WERTHMAN, PACIFIC REPRODUCTIVE, and DOES 1~100, and each of them, negligently and carelessly cared for, treated, and rendered medical services upon the persons and the bodies of the PLAINTIFFS and negligently and carelessly operated, managed, controlled, and conducted their services, activities and supervision in connection with the care and treatment, and negligently and carelessly failed to properly ensure the character, quality, ability and competence of individuals treating patients in their facilities, laboratories, and other diagnostic facilities that as a proximate result thereof, PLAINTIFFS were caused to and did suffer the injuries alleged herein. 65. The negligence of the Defendants, and each of them, includes, but is not limited to, the following: (1) negligent failure to appropriately diagnose and assess conditions; (2) negligent failure to render appropriate and complete treatment of the conditions; (3) negligent failure to have adequate staf?ng to meet reasonably expected medical needs of their patients; (4) negligent failure to have adequate equipment to meet reasonably expected medical needs of their patients; (5) negligent failure to maintain an adequate level of medical care for patients; (8) negligent failure to protect patients from harm; and (8) negligent failure to evaluate the quality of medical and support care rendered on their premises. 66. Beginning on or about March, 1999, Defendants, and each of them, undertook the care and treatment of the PLAINTIFFS, and rendered professional services in the diagnosis, care, and treatment of them, and continuing thereafter, carelessly and negligently instructed, examined, diagnosed, prescribed, cared for, and treated PLAINTIFFS for their medical conditions, including but not limited to, male infertility and in vitro fertilization, and provided hospital, medical, nursing, laboratory, x-ray, diagnostic imaging and evaluation, care, and treatment in a careless and negligent manner resulting in injury to the PLAINTIFFS. 67. As a direct and legal result of the aforesaid negligence, carelessness, and SECOND AMENDED COMPLAINT -24- lack of them, PLAINTIFFS have suffered, and will in the future continue to suffer pain, loss of enjoyment of life and other forms of severe mental and emotional distress and anguish. 68. As a further direct and legal result of the aforesaid negligence, carelessness, and lack of skillfulness of Defendants, and each of them, Plaintiffs suffered physical injury, including but not limited to, the taking of fertility drugs, recurrent pain?il and unnecessary surgical harvesting and removal of eggs from Plaintiff Abeer Said, recurrent needle insertion and aspiration of seminal ?uid from the testes of Plaintiff Adel Said, and surgical implantations of allegedly viable embryos into Abeer Said. 69. As a ?lrther direct and proximate result of the acts, omissions, conduct, negligence and carelessness of defendants, and each of them, PLAINTIFFS were required to and did, pay to Defendant PACIFIC REPRODUCTIVE the amount of $16,472.60, as well as to employ physicians, hospitals, and other health care professionals to examine, treat, and care for them, and did incur, and will incur in the future, medical and other related expenses in connection therewith, the exact amount of which costs, fees, and expenses are unknown to PLAINTIFFS at this time, but will be shown according to proof at the time of trial. FIFTH CAUSE OF ACTION Lack of Informed Consent (Against Defendants Rifaat Salem, M.D., Manish Mehta, M.D., Zhihong Yang, Pacific Reproductive Center, and Phillip Werthman, MD.) 70. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 69 above as if fully set forth herein at length. 71. At all times relevant hereto, Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and WERTHMAN, and each of them, had a duty to disclose to PLAINTIFFS all material information necessary to enable the PLAINTIFFS to make an voluntary and informed decision regarding the proposed treatment and procedures. SECOND AMENDED COMPLAINT -25- 72. Defendants, and each of them, represented to PLAINTIFFS that Adel Said was physically capable of producing sperm or precursor germ cells known as ?round spermatids? that could be used to fertilize mature eggs retrieved from Abeer Said, and did not at any time pertinent hereto disclose or discuss with PLAINTIFF the following material information: (C) That Plaintiff Adel Said suffered from complete germinal cell aplasia and could not physically produce mature sperm or precursor cells so as to fertilize a human egg; That previous testicular biopsies had revealed that there was no therapy for Plaintiff Adel Said's condition; That the cell material extracted from Mr. Said by Defendant MEHTA in February, 2000 and by Defendant WERTHMAN in September, 2001, was not capable of fertilizing a human egg; That the embryos shown to PLAINTIFFS by Defendants SALEM and YANG prior to each embryo transfer were either not viable embryos, were embryos that belonged to partners other than the PLAINTIFFS, or were embryos created from the fertilization of Abeer Said?s eggs with sperm from some one other than her husband, Adel Said; That there was no realistic chance that in vitro fertilization would produce a pregnancy for the PLAINTIFFS, unless donor sperm were used to fertilize Abeer Said?s eggs; That Defendants had not been successful in harvesting ?round spennatids" from Adel Said or any other precursor sperm cells capable of producing viable embryos; That Defendants SALEM and YANG did not implant viable embryos into Abeer Said on any occasion, but undertook sham surgeries and actually implanted nothing at all, or implanted embryos that were SECOND AMENDED COMPLAINT - 26 Uthbproduced from sperm from some one other than Adel Said. 73. At no time prior to the events, conduct, activity, care, and treatment as herein complained of did Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, or WERTHMAN obtain voluntary, knowledgeable, informed consent for the care, treatment, or conduct as herein alleged, and prior to the initiation or performance of said care, treatment, procedure, or conduct, no opportunity was afforded to the PLAINTIFFS herein to exercise voluntary, knowledgeable and informed consent to said care, treatment, procedure, or conduct, including, without limitation, the taking of fertility drugs and undergoing in vitro fertilization procedures, including the attempted aspiration of sperm or spermatids from Plaintiff Adel Said, the harvesting of eggs from Plaintiff Abeer Said, or the implantation of embryos (or alleged embryos) in Abeer Said. 74. PLAINTIFFS would not have consented to the procedures in any respect, if they had been advised that. given Adel Said?s condition of germinal cell aplasia. that there was no realistic chance that in vitro fertilization would produce a pregnancy for the PLAINTIFFS. 75. As a direct, proximate and legal result of the failure of Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and WERTHMAN, and each of them, to obtain informed consent for in vitro fertilization and embryo transfer, PLAINTIFFS suffered injuries and damage as alleged herein. 76. PLAINTIFFS have been damaged in an amount that is not precisely known at this time, but which is in excess of the jurisdictional amount of this court and will be proven at trial. {If If! 2? SECOND AMENDED COMPLAINT -27- SIXTH CAUSE OF ACTION Battery (Against Defendants Rifaat Salem, M.D., Manish Mehta, M.D., Zhihong Yang, Paci?c Reproductive Center, and Phillip Werthman, MD.) 77. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 76 above as if fully set forth herein at length. 78. By failing to obtain voluntary and informed consent to undertake in vitro fertilization, including the taking of fertility drugs, the needle aspiration of cell material from the testes of Plaintiff Adel Said, the harvesting of mature eggs from Plaintiff Abeer Said, and the implantation of embryos into Abeer Said, by failing to disclose the true facts regarding Plaintiff Adel Said?s infertility, by failing to inform PLAINTIFFS that there was no realistic chance of producing a pregnancy through IVF without the use of donor sperm, by failing to disclose that the use of round spermatids in was experimental and that the fertilization rates were poor; and by failing to inform PLAINTIFFS that no viable embryos had been produced, Defendants SALEM, MEHTA, YANG, PACIFIC REPRODUCTIVE, and WERTHMAN, and each of them, committed battery upon PLAINTIFFS when they performed the above-described surgery or procedures. 7'9. As a direct, proximate and legal result of the foregoing, PLAINTIFFS suffered injuries and damage as alleged herein. 80. PLAINTIFFS have been damaged in an amount that is not precisely known at this time, but which is in excess of the jurisdictional amount of this court and will be proven at trial. SEVENTH CAUSE OF ACTION Unfair Competition - CA Bus Prof Code 17200 et. seq. (Against Defendants Salem and Paci?c Reproductive Center) 81. PLAINTIFFS hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 80 above as if fully set forth herein at length. SECOND AMENDED COMPLAWT -23- 43b82. This cause of action is brought on behalf of PLAINTIFFS pursuant to California Bus. Prof. Code 17200, et seq., which provides that "unfair competition shall mean and include any unlaw?il, unfair or deceptive business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) as Part 3 of Division 7 of the Business and Professions Code." 83. Based on information and belief, PLAINTIFF allege that defendant SALEM and PACIFIC REPRODUCTIVE committed the unlawful, unfair, and deceptive practices set forth in Paragraphs 45 through 51 of this Complaint. 84. The practices offend public policy, are unconscionable, are oppressive and unscrupulous, and cause substantial injury to consumers. 85. Defendants acts and concealment of material facts, as described in this Complaint, have a capacity, tendency or likelihood to deceive or confuse members of the general public regarding the safety and effectiveness of in vitro fertilization and the true success rate and outcome of such procedures. 86. Plaintiff is informed and believe, and based on such information and belief alleges, that Defendant SALEM and PACIFIC REPRODUCTIVE committed an unfair business act or practice. The utility of the misleading and/or deceptive advertising, promotion or marketing, as well as non-disclosure of certain consequences with respect to the same, for the purpose of marketing in vitro fertilization procedures is negligible, if any. when weighed against the extent of harm to the general public and PLAINTIFF S. The harmful impact upon members of the general public and PLAINTIFFS, who were and are misled and deceived with respect to the Defendants? advertising, promotion or marketing of IVF, far outweighs any reasons or justi?cations by the Defendants in not disclosing the truth about the safety and effectiveness of such procedures in its advertising, promotion or marketing. Defendants SALEM and PACIFIC REPRODUCTIVE had an improper motive in misrepresenting and/or omitting the truth about the safety and effectiveness of in SECOND AMENDED COMPLAINT -29- that Defendants are seeking to increase the number of procedures that performed and the number of patients treated at the CENTER, and the pro?ts to be garnered therefrom. The utilization of unlawful, unfair andfor deceptive practices was and is under the sole control of Defendants SALEM and PACIFIC REPRODUCTIVE, and was fraudulently and deceptively hidden from members of the general public in its advertising, promotion and marketing. 87. As purchasers and consumers of IVF procedures who have has been injured by Defendants? unlawful and/or unfair practices, PLAINTIFFS are entitled to and do bring this action seeking all available remedies under Califomia?s Unfair Competition Law, including declaratory and injunctive relief and restitution, as well as attorneys? fees and costs. 88. Defendants SALEM and PACIFIC REPRODUCTIVE committed an unlawful, unfair, or deceptive act or practice by making written andfor oral material representations (and material omissions) that have a capacity, tendency, or likelihood to deceive or confuse members of the general public regarding the actual or potential success of IVF, as referred to in this Second Amended Complaint. 89. The unlawful, unfair andfor deceptive acts and practices of Defendants SALEM and PACIFIC REPRODUCTIVE, as alleged in this Second Amended Complaint, present a threat to members of the general public in that Defendants are able to carry on this scheme of misrepresentation and omission without suffering the consequences of legal action and violations of law. 90. Plaintiffs are informed and believe and based thereon allege that Defendants SALEM and PACIFIC REPRODUCTIVE continue these unlawful, unfair and/or deceptive business practices alleged herein. Defendants? acts, misrepresentations, concealment of material facts, and failures to disclose as alleged in this Second Amended Complaint, constitute an unlawful, unfair or deceptive business practice within the meaning of the California Bus. Prof. SECOND AMENDED COMPLAINT -30- C_od? 17200, et seq. Plaintiffs and members of the general public were, and are likely to be deceived by Defendants? scheme to misrepresent and omit the presence of and/or the possibility of such health effects, as alleged in this Complaint. 92. Pursuant to California Bus.& Prof. Code ?17203, Plaintiffs, on behalf of themselves and members of the general public, seeks an order of this Court: Enjoining Defendants SALEM and PACIFIC REPRODUCTIVE from continuing to engage, use, or employ any unlaw?il, unfair and/or deceptive business act or practice and unfair, deceptive, untrue or misleading advertising, promotion or marketing and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code; and and PACIFIC REPRODUCTIVE as a result of such unlawful, unfair, or deceptive Restoring all monies that may have been acquired by Defendants SALEM act or practices. 93. Plaintiffs and members of the general public may be irreparany harmed and/or denied an effective and complete remedy if such an order is not granted. The unlawful, unfair and/or deceptive acts and practices of Defendants SALEM and PACIFIC REPRODUCTIVE, as described above, present a serious threat to PLAINTIFFS and members of the general public. 94. As a result of Defendants? violation of the California Unfair Competition Act, Plaintiffs are entitled to restitution for out of pocket expenses and economic harm suffered. 95. Pursuant to Civil Code section 3287(a), Plaintiffs are further entitled to pie-judgment interest as a direct and proximate result of Defendants? wrongful conduct. The amount of damages suffered by Plaintiffs as a result of said acts was a sum certain and capable of calculation and Plaintiffs are entitled to interest in an amount to be set forth according to proof. Hf SECOND AMENDED COMPLAINT 31 - WHEREFORE, PLAINTIFFS pray for judgment against the Defendants, and each of them, as follows: Hf 1. For general damages in an amount in excess of $2,000,000 to be proven at trial; For past and future medical expenses as proven at trial; That this Court ?nd and declare the acts and practices of Defendants SALEM and PACIFIC REPRODUCTIVE as described herein to be unlawful, unfair, and fraudulent; That Defendants SALEM and PACIFIC REPRODUCTIVE be permanently enjoined from engaging in the unlawful, unfair, and fraudulent acts and practices alleged herein; That Defendants SALEM and PACIFIC REPRODUCTIVE be ordered to make restitution to Plaintiffs of all out-of-pocket expenses and economic harm suffered as a consequence of Defendants? violation of the California Unfair Competition Act; That Defendants, and each of them, be ordered to disgorge all unjust enrichment obtained from the unlawful, unfair and fraudulent acts and practices alleged herein and make restitution to all affected members of the general public; That Plaintiffs be awarded attorneys' fees and expenses pursuant to California Civil Code and California Code of Civil Procedure 1021.5; For pre-judgment and post-judgment interest according to law; For costs of litigation incurred herein; SECOND AMENDED COMPLAINT -32- 42.14.1119 ~4010. DATED: April 7, 2008 For such other and further relief as the Court may deem just and proper. LAW OFFICES OF WILLIAM H. NEWKIRK By: W1 lam . ew1r Attome for Plaintiffs ADEL AID and ABEER SAID SECOND AMENDED COMPLAINT -33- LAW OFFICES OF WILLIAM H. NEWKIRK, L.L.P. PARK EAST. SUITE [920 LOS ANOELES, CA 90067 PHONE: [310) FAX: ?19604 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1801 Century Park East, Suite 1920, Los Angeles, California 90067. On April 9, 2008, I served a true copy an original of the foregoing documents described as SECOND AMENDED COMPLAINT and SUMMONS ON SECOND AMENDED COMPLAINT on interested parties/party in this action by placing in a sealed envelope addressed as follows: ATTACHED SERVICE BY FIRST CLASS MAIL as follows: [am "readily familiar" with the ?rm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the US. Postal Service on the same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing in af?davit. BY PERSONAL DELIVERY: Idirected a courier to personally deliver said document(s) to each addressee. BY FEDERAL EXPRESSIUPS OVERNIGHT DELIVERY SERVICE: I placed the document(s) in_an envelope, properly labeled, and caused it to be de osited into a Federal Express/UPS pick-up receptacle as per the regular practice of this 0 ice. EIEI F2 BY FACSIMILE: I caused said document(s) to be transmitted by facsimile machine to the number indicated a?er the address(es) noted herein. (State) I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal) [declare that I am employed in the of?ce of a member of the bar of this court at whose direction the service was made. Executed on April 9, 2008, at Los Angeles, California. Linda S. Taliaferro LAW OFFICES OF WILLIAM H. NEWKIRK, LLP. [801 CENTURY PARK EAST. SUITE I920 LOS ANGELES, CA 90067 PHONE: (SIG) 477-7122 FAX: (310] SERVICE LIST Said v. Pact it: Re reductive Center at at. Case Na: PC 040905 Thomas F. McAndrews, Esq. Tina B. Lee, Esq. REDBACK, MCANDREWS KJAR, LLP 1230 Rosecrans Avenue, Suite 450 Manhattan Beach, CA 90266 310-297-9900 Fax: 310-297-9800 Attorney for Rifaat Salem, M.D., Paci?c Coast Reproductive Center, Paci?c Re reductive Center, and Zhlhong Yang, MD. Michael Lamb, Esq. John Cayley, Esq. Schmid Vioiles 333 South Hope Street, Floor Los Angeles, CA 90071 213-473-8602 Fax: 213-473-8777 Attorney for Manish Mehta, MD. Don Fesler, Esq. Paul Green, Esq. LaFollette, Johnson, DeHaas, esler Ames 865 South Figueroa Street, #3100 Los Angeles, CA 90071 213-426-3600 Fax: 213-426-3650 Attorney for Phillip Werthman, MD. 00:23 FAX. 3104779504 nonnxm. an.? 3U MMONS SECOND may condemn-r SUM-100 (CITA CION UDICIAL) {a?omuggi?g?m NOTICE TO DEFENDANT: gamed AL commoner) I ACIFIC CENTER.- 5mm?: . . . . azure-15min YANG, . . PACIFIC com an '5 CONFORMED 12315 ORIGINAL FILED Les Angelou County Supermr Coon th 11 I we yo?ok?e e??r?e db 6'15? PLAINTIFF: APR 0 9 2006 ESTA EL DEMANDANTE): an 1ndiv;dual,' and MEIER SAID an John A. Clarke, barroquch Ul'?ceIICchk By p910 You have an CALENDAR [Ian alter this Harmon: and legal papers are served on you to file a wrlwen mo?secailttl?s court and have a copy unwed on the plaln?ff. A hotter or phone 133? will not protect you. Your "some must be In proper In?ll. form if you won: me oourl toheoryour can. There rnly be corn-t form met you can use for your moon". You can ?nd Me court forms and more infomwon at the Con-Is Unlin- Self-Help center your oeunnr law library. or the courdlouee nearest you. ?you canoe! pay the ?ling tee, ask the noun elm-k for a fee waiver form. "you do not ?le your response on time. you may lose the ease by drained. and your wanes. manor. and property may be taken without mm warnan from the com. There are other legal You may went to cell on attorney right away. If you do not know an attorney. you may want to call an attorney roierral mloe. If you cannot afford an attorney. you may he oliglble legal oervieoe 1mm nonpro?t legal SI!th gram. You ran locate linen nonprofit groups at the californlo Legal Services Web slte (mJar-(helpcallfomlaorm. the cellfemla Courts 0min: Self-Help Center or by oonteo?no your local court or county her moola?on. none as LIE CALENDARJO despues do one re comma use eiem'en ypapefes regains para presenter uni modest; per odor-fro en es myhanr qua or: emails! no: oepla aidemendanre. Una can: um {Ide More: no to proer Bu raop?osla por- eon-rim done on: Wall form-to logo! our-note sr' duo: deemed-en so can on In eerie. Es peddle due haye urr formuhrro ue dared peed: user-para eunnpueera. Poodle motor gems remarried do In code mats inrormaefdn on or center do Ayuda do he odes o?e Gi?'fernil en la ammo: do rages do so oondodo a on In oar-II on! ell-d9 mule cm 51 no pandemic! coon do pm. prob ?scal-erode do to due do an Innuendo do oar-Haiti" do page do condos. 5! no present: on modem :1 Hempo, puedo More! case per Moump?ndenao la oorre to poor! qur'orrsu sum, dream None: sin mes advertenda. Hay odes rog?sfm Miles. E: renewable qua Ham. 3 do obegodo lumor?ufamenru. Si no oonoee on drag-do, puede Earner: on smiol'o do uni?ed a loos-rodeo. Si no poede more rm iboyado. es poeibre durum can be requiem pare coroner servfdos legalme do on program- o'e serum?! less-In ?ned durum-J. Peed: meander sates grandam ?nes demon err Id owe me do Germ:- Leoal Sondoes, 8.0m). en at Centre de Ayudl do Ias Cortes do ma. wmmu?wmm Mord-nee en canoe-to con la eerie o! dongle do moulds locales. The name and address ofthe court is: arse modem (El hombre ydr'reccidn do Is oorte es}: Wm? M: PC040905 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9425 Penfield Ave. Same chatoworth. CA 51311 Chatowerth Courthouse The name. address. and telephone number of plaln?t'l's attorney. or plaintiff wittmut an attorney. is: {El nombre. to direction of n?mere do tel?fono do! abogedo do! demandente. a do! demendante que no Hen-e abagodo. es): William H- Newkirk, Esq. SBN66984 310-477-7122 310477-9604 LAW OFFICES OF WILLIAM H. 1801 Century Park East, Ste. 1920 Los Angeles, CA 50067 DATE: Clerk, by Deputy Faith! hi lung i PN- CLPR (Secretedo) .. Mung {Far proof of se ?af We summons. use roof or Service of Summone (farm [Pore pmebe do entrege do eat: er'ta?dn use at formuiedo Proof of Service at Summer. A NOTICE TO THE PERSON SERVED: You are served 1. as an defendant 2. [j a: the person sued under the ?ctitious name of (sped?z): 3. CI onbehau?ofrspeom: under: CCP 416.10 {commotion} CCP 413.60 [n'llnor] CUP 416.20 (deith corporation-?1) COP 416.713 (mn?emt??l CUP 415.40 (association or partnership) COP 416.90 (audrorized person] other {specify}: 4. by personal delivery on {date}: an?. 1 oh Formadeph?l lor may? ?mum-Use code 0? on" Procedure s: 112.10. 465 mm Eda-1m [?emery 1.21104] SUMMONS I I8 395d ?l gravaazsgea La.p1