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A dozen suits have been filed in four U.S. states and Canada against a Georgia sperm bank over a single donor who was allegedly described as a brilliant neuroscientist and musician, but who was actually a diagnosed schizophrenic who had served time for burglary and had no college degree.

All the Jane Doe suits, filed in courts in Georgia, Florida, Ohio, California and Canada, say Xytex misled them about the qualifications and accomplishments of donor James Aggeles who, according to court filings, is the biological father of the children of at least 36 women. The complaints say that, had the would-be parents known of Aggeles’ background, they never would have accepted him as a donor. They argue that they have and will continue to spend time and money monitoring their children for signs of schizophrenia and, if the disorder occurs, will have to pay for care and treatment.

All of the suits name as defendants Xytex, medical director Todd Spradlin, Xytex employee Mary Hartley and multiple “Doe” defendants.

None of the suits claimed that any of the children Aggeles sired have become schizophrenic or otherwise been harmed by his role thus far. According to the National Institute of Mental Health website, schizophrenia “occurs in 10 percent of people who have a first-degree relative with the disorder, such as a parent, brother or sister.”

The recent suits largely mirror the claims of the first, which was filed last year in Fulton County Superior Court by two Canadian women, birth mother Angela Collins and her partner, Margaret Hanson, who asserted claims including fraud, negligence, negligent misrepresentation, product liability, breach of warranty, unfair business practices and battery.

That suit was dismissed in October by Judge Robert McBurney, who ruled that, while the complaint asserted multiple claims, it was essentially a “wrongful birth” action, which is not permitted under Georgia law. The plaintiffs appealed, but the Georgia Court of Appeals dismissed the case after ruling they had waited too long to file their notice. A new suit has been filed in Canada on behalf of Collins and Hanson by the attorneys who filed last year’s Georgia case, led by Nancy Hersh of San Francisco’s Hersh & Hersh.

Hersh said that suit is one of five she has pending against Xytex in Canada, including three in Toronto and two in British Columbia. Hersh’s group also has filed three complaints since May in Georgia, as well as one in California, which was transferred to the state’s Northern District in June.

In June, Julia Zaic of Laguna Beach, California’s Heaviside Reed Zaic and Stephen “Buck” Daniel of Atlanta’s Nations Law Firm filed a similar complaint against Xytex in Fulton State Court. Zaic and Joseph R. Johnson of West Palm Beach’s Babbitt & Johnson filed another suit in Hillsborough County, Florida, that was transferred to federal court in Florida’s Middle District on July 21. In July, another Xytex case was filed by attorneys Eric Clark, Douglas Cole, Michelle Pfefferle and Sean Stiff of Columbus’ Organ Cole in Ohio.

New Allegations

Hersh said her recent complaints include new allegations based on deposition testimony from Aggeles indicating that Xytex staffer Hartley encouraged him to inflate his intellectual and educational accomplishments.

According to the complaints and other court filings in the Xytex cases, Aggeles first approached Xytex in late 2000 to become a sperm donor.

“After dropping out of school,” Hersh’s complaints said, “he saw it as fairly easy way to generate income between waiting tables and working as a janitor.”

He told Xytex staffer Hartley that he thought he had an IQ of about 130 but, the complaint alleged, Hartley suggested that “he was genius with an IQ of about 160,” that “more educated donors did well selling their sperm and that Xytex was used to donors with higher education.”

From that point, it said, Aggeles’ donor profile “showed that had an IQ of 160, multiple college degrees, a clean mental health history, and no criminal background.”

Aggeles’ name was revealed in a 2014 email exchange with one of the mothers, and two of the plaintiffs found information online revealing Aggeles’ criminal and psychiatric history, including that he had twice been hospitalized for mental health issues and had been prescribed anti-psychotic medications. The suits also noted that a photo of Aggeles “had been altered to remove a large facial mole.”

Hersh said she hopes the new information will result in a “more factual determination” of the mothers’ claims than was reached by McBurney in dismissing the first suit last year. “The judge elected to transpose our case into a wrongful conception case, although nowhere did we allege wrongful conception,” she said.

Hersh noted that the other complaints against Xytex apparently rely on her discovery findings and closely hew to her complaints.

Sperm banks have been sued for various alleged offenses, but damage claims arising from the birth of a child whose donor father did not match the description provided have a high threshold to overcome.

In Illinois last year, a DuPage County judge dismissed a suit brought by a white woman who gave birth to a mixed-race child, ruling that the action was a “wrongful birth” case.

The mother, Jennifer Cramblett, filed a new suit in U.S. District Court for the Northern District of Illinois in April; the case is still pending.

Defense Strategy

In the Georgia cases, Xytex is represented by Ted Lavender, Andrew King and Alison Currie of FisherBroyles’ new Atlanta office.

“There are no new, novel approaches” in the recent cases, said Lavender. “The new cases filed by Ms. Hersh have added a claim or two, but they all ultimately roll back into the notion that, had the mothers known about the donor’s alleged schizophrenia, they would not have had those particular children.”

A motion to dismiss the Fulton Superior case encapsulates several defense arguments, including that Xytex fully complied with its duties to look into its donor’s background and that there is no evidence that any of the children have been harmed.

The defense also takes aim at the suits’ assertions that the plaintiffs’ children are at greater risk of developing mental health issues.

Absent any actual finding of injury to the children, Georgia case law does not provide for damages “based on imagined possibilities,” the motion said.

“If these cases should survive the motion to dismiss stage,” said Lavender, “at the summary judgment stage, we’re going to show that these children don’t have any past or current injury.”

Hersh said Xytex’s reliance on the lack of mental illness in the children at this point is misplaced. The oldest is about 12 now, she said, and schizophrenia generally does not manifest until a subject is between 18 and 30, she said. Hersh said her clients’ children’s lives are “very complicated, because everybody’s scrutinizing them all the time” to see whether any early signs of mental illness are emerging. “The parents feel guilty, they feel like they did something wrong,” she said.

The plaintiffs, said Lavender, also are relying on information allegedly gleaned from Google and Facebook searches that Xytex still has no evidence for.

“They’re seeking to have Xytex notify them of the donor’s alleged mental health issues,” said Lavender. “From Xytex’ standpoint, they still don’t possess that information; the plaintiffs are asking Xytex to inform them about issues and information they allegedly already possess, as it is that very alleged information that forms the basis of the plaintiffs’ lawsuits.”

Absent from the recent suits is Aggeles himself; he was named in the complaint McBurney dismissed last year but has not been cited in the new ones.

James Johnson of Atlanta’s Knight Johnson, who represented Aggeles pro bono in that litigation, said his client is trying to move on with his life and blasted the new suits.

“This is a case about junk science,” said Johnson. “There’s no medical expert anywhere who will support any of their theories.”

“The case I handled was basically a money grab,” said Johnson. “The plaintiffs never wanted to work again, and they wanted a bunch of money for expenses to monitor their children for symptoms that might appear—it never made sense, factually or scientifically.”

Johnson said he found the cases distressing, “because it’s a parent telling their children they’re not as good as other kids because their dad’s not the man he claimed to be.”

Johnson said he had been contacted by one woman with a child by Aggeles, asking if there were any way to shut down the ongoing suits “because they didn’t want the notoriety; they were concerned that, at some point, the might have to tell their children about their heritage.”

 

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