In the latest false advertising lawsuit against the developer of a prenatal gender detection test, six New York women claim they suffered “devastating effects” -- including a broken marriage –- after learning their test results were inaccurate.

Acu-Gen Biolabs of Lowell, Mass., has marketed its Baby Gender Mentor test to women as a way of detecting their child's gender as early as five weeks into their pregnancy. The expectant mother takes a sample of her blood with a $25 kit and sends it to Acu-Gen, which tests it using DNA technology for another $250.

A diagnosis of gender using an ultrasound can now be made as early as 11 weeks into a pregnancy. Baby Gender Mentor appeals to mothers who can't wait that long –- or perhaps are considering sex selection.

“The Acu-Gender Test is infallibly accurate in foretelling the gender of a healthy baby in a normal pregnancy,” Acu-Gen has said on its website.

But the six New York plaintiffs have now joined hundreds of other women around the country in suing Acu-Gen and Mommy's Thinkin', Inc. of Rockton, Ill., the exclusive distributor of the test, for making false claims about it.

“The purpose of the Gender Test was to predict the gender of the unborn child with 99.99% accuracy,” the complaint says. “However, all six plaintiffs received an incorrect test result from the defendants.”

Keven Duffy's test predicted she would have a boy, the suit says, but she gave birth to a girl. The incorrect prediction had a “devastating effect” since Duffy and her husband were anticipating the arrival of a son, “which they hoped for in terms of family balancing.”

“Duffy's husband wanted a boy very badly and the purchase of the Gender Test and incorrect prediction was part of the reason Duffy's marriage ended,” she alleges.

As of Dec. 8, 2008, Acu-Gen had sold more than 6,500 test packages since the product was launched in June 2005. The first suit challenging the accuracy of test results -- Blumer v. Acu-Gen Biolabs -- was filed in Massachusetts federal court in February 2006 as a class action on behalf of 16 women.

Plaintiffs' attorney Barry J. Gainey (Gainey & McKenna, Midland Park, N.J.) estimates that 20 percent of tests are not accurate. According to Acu-Gen, it has paid refunds to 565 customers -– translating into an error rate of 8.6 percent.

“Acu-Gen does not concede that this number of tests were faulty,” it said in a court brief. “Acu-Gen paid all the claims because in its business judgment it was more cost effective to issue refunds to those who requested a refund than to incur the cost of attempting to verify every claim of an incorrect prediction.”

Blumer now consists of nearly 200 plaintiffs but has yet to proceed to discovery. Acu-Gen, which has repeatedly changed its defense team, backed out of a settlement last year.

Two other cases are now pending in state court -- Duffy v. Acu-Gen Biolabs in New York and Winograd v. Acu-Gen Biolabs in New Jersey. Gainey says those cases should proceed more quickly and he hopes they will nudge Acu-Gen President Dr. C. N. Wang toward “reconsidering his position” in the class action.

All the plaintiffs in Duffy say Acu-Gen incorrectly predicted they would have a boy. Among their alleged injuries are the emotional distress resulting from buying boy-specific clothes and nursery decorations and from filling out baby books about having a boy.

Lorelei Fitzgerald says she already had three boys and so “struggled, needlessly, with whether to keep the fourth after the defendants predicted another boy.”

Acu-Gen now makes more modest claims, saying on its website that the Baby Gender Mentor test is based on a technology that “when properly administered by a qualified laboratory, has been proven highly accurate in detecting targeted DNA markers.”

By Matthew Heller
8/10/09