Karen Kidd Mar. 7, 2016, 1:16pm


SAN DIEGO (Legal Newsline) – As the deadline to respond inches closer, the makers of a fetal gender identification kit aren't saying much about a $5 million class action lawsuit's claims that its product doesn't actually work.

"The company stands behind its product," Gateway Genomics replied in an unsigned email to Legal Newsline. "It is our company policy to not discuss pending litigation."

Gateway Genomics, a Delaware limited liability corporation that operates out of La Jolla, Calif., as SneakPeek and sells the SneakPeek Early Gender Test kit, has until March 11 to respond to the lawsuit, according to court documents.

There otherwise has been little movement in the case since the lawsuit was amended last month to, among other things, add a second plaintiff, according to documents filed with the U.S. District Court for the Southern District of California.

The named plaintiffs in the lawsuit, Kristine Main, formerly of Texas and now living in Ohio, and Jessica Azar of California, seek to represent a nationwide class of thousands they claim was defrauded by Gateway Genomics. Main filed the initial lawsuit in December. Azar was added as a plaintiff in the amended complaint.

Both women claim they purchased the SneakPeek Early Gender Test kit online in 2015 based on website claims that the product "has been designed to be taken in the stress free environment of your own home. Within 24 hours of receiving your sample we will identify the gender of your baby. Inside the kit you will find everything you need to collect your sample. Our state of the art lab will process your sample and detect the presence of fetal DNA and determine the gender of your baby with 99% accuracy."

"In other fora, Defendants contend the test is 98.8 percent accurate if the child is going to be a boy and 94.8 percent of the time if the unborn child is going to be a girl," the amended lawsuit said.

After submitting her kit, Main received a SneekPeek email saying "You are having a girl" while Azar, after submitting her own kit, received a SneekPeek email saying "You are having a boy." Screenshots of both emails are included in court documents.

Main gave birth to a boy while Azar gave birth to a girl.

"Consumers are fooled into believing that the Test scientifically adduces the gender of their unborn babies with 99 percent accuracy, when in fact the Test produces a result akin to the proverbial coin flip," the amended lawsuit said. "SneakPeek is aware of its Test’s inaccuracies."

The lawsuit also points to many online customer complaints about similar results and challenges claims Gateway Genomics makes about the accuracy of sonograms.

Plaintiffs in the case claim Gateway Genomics has violated the California's Unfair Competition Law, specifically Business and Professions Code §§ 17200, and the state's False Advertising Law, specifically Business and Professions Code §§ 17200.

The lawsuit also claims Gateway Genomics is in violation of California's Legal Remedies Act, specifically Civil Code §§ 1750, as well at Texas' Business and Commerce Code §§ 17.50.

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