Court Ponders If Man Has Rights to His Blood Cells in Medical Research Case
Apr. 10, 1990
LOS ANGELES (AP) _ California's Supreme Court heard arguments Tuesday on whether a leukemia survivor deserves to share profits from an anti-cancer drug made from his cells in a case pitting medical progress against a man's rights to his own body.
''Without my knowledge or consent, the doctors and the research institutions used a part of me for their own gain,'' John Moore, president of a Seattle soft-drink company, said as he entered the courtroom.
''They stole something from me,'' he said.
Moore, 45, said he sued the University of California, two researchers and two biotechnology and drug companies to defend ''the rights of the individual patient in the case where the physician-researcher is also a businessman- entrepreneur.''
Industrial Biotechnology Association lawyer Gary Ritchey, who filed a friend-of-the-court brief opposing Moore's lawsuit, said outside court that development of vital new medicines will be hindered if the court rules that Moore has a property interest in cells and tissues removed from his body.
''Research is conducted for the benefit of the public,'' Allen Wagner, attorney for the University of California regents, told the high court. ''If Mr. Moore succeeds, he will infuse a private interest that will restrain the course and direction of research.''
During a 70-minute hearing, the seven justices asked questions that suggested sympathy with Moore's claim. But their questions also betrayed a reluctance to extend personal property rights to cells taken from an organ after it is surgically removed.
Moore was an Alaska pipeline surveyor in 1976 when he sought treatment for hairy cell leukemia at UCLA. Dr. David Golde removed Moore's spleen, the standard treatment for the rare leukemia, and his disease went into remission. After the spleen was removed, Golde discovered it contained unique blood cells that produced a blood protein called GM-CSF, now in experimental use as a drug to stimulate the immune system to fight certain cancers and possibly AIDS.
Moore's attorney, Sanford Gage, said Moore never was told his cells had great potential value. Yet for nearly seven years, Golde and others brought Moore from Seattle to Los Angeles for blood and other tests while they developed Moore's cells into a self-perpetuating cell line to mass-produce GM- CSF.
In 1984, UCLA received a patent for the cell line, naming Golde and research assistant Shirley Quan as the inventors.
The same year, Moore sued University of California regents, Golde, Quan, Genetics Institute Inc. of Cambridge, Mass., and Sandoz Pharmaceuticals Corp. of East Hanover, N.J.
The lawsuit claimed the defendants wrongfully ''converted'' to their own use Moore's personal property, namely, blood cells taken from his spleen. He also alleged they failed to obtain his informed consent and breached their fiduciary responsibility to him.
A Los Angeles Superior Court dismissed the lawsuit in 1986, but a state appeals court reinstated it by a 2-1 vote in July 1988. If the Supreme Court rules for Moore, his lawsuit will be allowed to go to trial. The high court's ruling is expected within 90 days.
Gage said deals that led to GM-CSF's development and production resulted in Golde and others getting Genetics Institute stock now worth $3 million. UCLA and Golde also received research grants worth $440,000 from Genetics Institute and Sandoz, Gage said.
Golde's attorney, Anthony Murray, argued that Moore's diseased spleen was worthless, and that Golde and other defendants gave commercial value to the blood cells through their own efforts.
Gage replied that Moore's cells were vital to creating the drug. Moore is seeking only that share of drug proceeds that can be separated from the efforts of the researchers and manufacturers of the drug.
Gage has argued that the market for lymphokines, a family of drugs that includes GM-CSF, has been estimated at as much as $3 billion.
Justice Armand Arabian wondered why Golde and others failed for seven years to inform Moore of the financial implications of the research on his cells.
''The doctors were interested in commercial exploitation, yet they did not reveal that to him,'' Justice Stanley Mosk said.
But Justice David Eagleson said that if Moore's claim is upheld, any patient treated with drugs derived from his cells might be accused of illegally converting Moore's property.
Justices Edward Panelli and Joyce Kennard questioned whether a patient has any rights to body tissue once it is removed. Panelli said law now prevents people from selling their organs for use in transplants. Gage replied that laws limit many uses of personal property without challenging the ownership of the property.