Exploding Gender Test|Trial Wraps Up

SAN DIEGO (CN) — In closing arguments about exploding gender-prediction kits, a deputy city attorney for San Diego told the judge, "They blew up plain and simple."

City Attorney Jan Goldsmith sued Intelligender in 2012 after receiving complaints that Intelligender's home test kits exploded and burned women, and have a far lower accuracy rate than the company advertised.

Suing on behalf of the People of California, Goldsmith claims the tests included volatile ingredients contained in Drano and have left expectant mothers with permanent scars.

Intelligender attorneys insist the test is safe to use.

Superior Court Judge Joel Wohlfeil has presided over the bench trial for more than six weeks. Goldsmith seeks an injunction on sale of the kits, restitution and civil penalties.

In closing arguments Tuesday, Deputy City Attorney Michael Hudson said the high concentration of sodium hydroxide in the test and lack of warning on the label about violate the Hazardous Substances Act.

"They blew up plain and simple," Hudson told the judge.

He said Intelligender's false and misleading statements included that the test was more than 90 percent accurate in lab tests and 82 percent accurate in the "real world."

Hudson said the company's "advertising scheme" capitalized on what can be an "emotional time" for women who want to know the sex of their baby before they can find out through an ultrasound.

"She's emotional. She's anxious. She can't wait to find out the gender of her child," Hudson said.

Hudson told Wohlfeil he did not want to give Intelligender legitimacy by calling the gender prediction kits "tests," and said that until 2012 the company's website claimed the tests were 90 percent accurate.

Wohlfeil pressed Hudson on Intelligender's claim that it never represented the test to be 100 percent accurate.

Hudson replied, "It was convoluted enough.

"It either worked or it didn't work. It blew up or was ambiguous."

He said about 20 percent of the users contacted Intelligender with ambiguous results — meaning the test colors never changed to green for boy, or orange for girl.

When women got ambiguous or inaccurate results, or were injured from exploding tests, word spread online, including negative comments on Amazon.com, where the test received 2.8 out of 5 stars for its product review.

Hudson said the online backlash led Intelligender to contact Amazon to try to get the reviews taken down and said employees even tried to write fake positive reviews online.

Wohlfeil asked Hudson whether any of the injuries from exploding tests were "substantial."

Hudson cited trial testimony from women who said they were permanently scarred. He added that an exploding kit can cause blindness.

Among the controversies is that the Intelligender kits often were put next to pregnancy tests and other FDA-regulated family planning items on store shelves.

Intelligender attorney John Palter told Wohlfeil that the company is a small business built on the American Dream, calling its founders Rebecca Griffin and Teresa Garland "the moms of Intelligender."

He said Griffin and Garland wanted to do things the right way, by filing patents with the Patent and Trademark Office, and seeking out Swiss American Products to bring the test kits to market. He said they also welcomed research on the test, which they would not have done "if these people were criminals."

As for accuracy, Palter acknowledged, "Without a doubt there is a discrepancy in the numbers," but blamed it on women who did not follow the directions to use "first-morning urine" when taking the test. Failure to follow that direction reduced the test's accuracy to about 50 percent, Palter said.

Pressing Palter on safety, Wohlfeil noted that witnesses "described in graphic detail" what happened when the test exploded on them.

Palter retorted that none of the witnesses saw a doctor for their injuries.

Wohlfeil said placing the gender prediction test on shelves of pharmacy "family planning" sections next to items such as pregnancy tests, which are regulated by the FDA, "seems to suggest a much higher level of seriousness."

Palter blamed the stores themselves, saying retailers decide where to place the tests. Wohlfeil was skeptical, saying there is evidence that Intelligender influenced retailers' decisions when they marketed and sold the tests to stores.

"Either this product is regulated by the FDA or it's not, and if it's not, it's not fair to hold it to that standard," Palter said.

Wohlfeil mention ed that women may have used the test in deciding whether to continue with a pregnancy or have an abortion.

"Isn't one of the consequences they used the test to determine choice with whether to go forward with a pregnancy or not?" Wohlfeil asked.

Palter called that question speculation, but the judge responded by saying there is evidence in the record to indicate a woman could take the test in deciding whether to keep a child.

"If the product placement were not in family planning, we wouldn't be having this conversation," Wohlfeil said.

What about safety?, Wohlfeil asked Palter, noting testimony indicated that the tests had exploded as recently as 2015.

Palter replied that information spreads rapidly these days, online and on social media, and complaints about exploding tests could be false — from women who heard about the exploding tests and just wanted to get their money back.

His clients "certainly have not been reckless in their efforts to ensure a safe product," Palter said.

In Hudson's final comments, said it was never the city attorney's intention to hurt a "legitimate small business."

"We are here to protect the people of the State of California. That's why we're here; that's our job," Hudson said.

The city attorney has until Aug. 16 to file a brief on its closing arguments. Wohlfeil will rule after receiving briefs and responses from both parties.

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