Moore v. Regents of University of California

Decision Date21 July 1988
Docket NumberNo. B021195,B021195
Citation249 Cal.Rptr. 494,215 Cal.App.3d 709
CourtCalifornia Court of Appeals
PartiesPreviously published at 215 Cal.App.3d 709 215 Cal.App.3d 709, 57 USLW 2111, 47 Ed. Law Rep. 1031 John MOORE, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA; David W. Golde, M.D.; Shirley G. Quan; Genetics Institute, Inc.; Sandoz Ltd., Sandoz United States, Inc., Sandoz Pharmaceutical Corporation aka Sandoz, Inc., et al., Defendants and Respondents.

Hale and Dorr, John G. Fabiano, and Ian Crawford, Boston, Mass., and Richard M. Coleman, Los Angeles, for defendant and respondent Genetics Institute, Inc.

Horvitz, Levy & Amerian, Ellis J. Horvitz, and Peter Abrahams, Encino, for defendant and respondent Shirley G. Quan.

Covington & Crowe, and Robert E. Dougherty, Ontario, for defendant and respondent Sandoz Pharmaceuticals Corp.

Ball, Hunt, Hart, Brown and Baerwitz, Anthony Murray, and Donn Dimichele, Los Angeles, for defendant and respondent David W. Golde.

Gage, Mazursky, Schwartz, Angelo & Kussman, Sanford M. Gage, Christopher E. Angelo, and Jonathan T. Zackey, Beverly Hills, for plaintiff and appellant.

James E. Holst, and Allen B. Wagner, Berkeley, for defendant and respondent The Regents of the University of California.

ROTHMAN *, Associate Justice.

This appeal raises fundamental questions concerning a patient's right to the control of his or her own body, and whether the commercial exploitation of a patient's cells by medical care providers, without the patient's consent, gives rise to an action for damages. This appears to be a case of first impression.

I BACKGROUND 1

In 1976, plaintiff and appellant sought medical treatment at the Medical Center of the University of California, Los Angeles (UCLA), 2 for a condition known as hairy-cell leukemia. He was seen by Dr. David W. Golde, who confirmed the diagnosis. As a necessary part of the treatment for this disease, plaintiff's spleen was removed at UCLA in October of 1976.

Without plaintiff's knowledge or consent, Dr. Golde and Shirley G. Quan, a UCLA employee, determined that plaintiff's cells were unique. Through the science of genetic engineering, these defendants developed a cell-line from plaintiff's cells which is capable of producing pharmaceutical products of enormous therapeutic and commercial value. 3 The Regents, Golde and Quan patented the cell-line along with methods of producing many products therefrom. In addition, these defendants entered into a series of commercial agreements for rights to the cell-line and its products with Sandoz Pharmaceuticals Corporation (Sandoz) and Genetics Institute, Inc. (Genetics). The market potential of products from plaintiff's cell-line was predicted to be approximately three billion dollars by 1990. Hundreds of thousands of dollars have already been paid under these agreements to the developers. Without informing plaintiff, and in pursuit of their research efforts, Golde and UCLA continued to monitor him and take tissue samples from him for almost seven years following the removal of his spleen.

II THE THIRD AMENDED COMPLAINT

On September 11, 1984, plaintiff instituted a lawsuit based on these events. He eventually filed a third amended complaint for damages and declaratory relief which is the subject of this appeal. The complaint names Golde, Quan, the Regents, Sandoz, and Genetics, as defendants, alleging causes of action for: (1) conversion; (2) lack of informed consent; (3) breach of fiduciary duty; (4) fraud and deceit; (5) unjust enrichment; (6) quasi-contract; (7) breach of implied covenant of good faith and fair dealing; (8) intentional infliction of emotional distress; (9) negligent misrepresentation; (10) interference with prospective advantageous economic relationships; (11) slander of title; (12) accounting; and (13) declaratory relief.

A. ALLEGATIONS OF THE CONVERSION CAUSE OF ACTION

The first cause of action for conversion includes allegations which form the foundation for most of the other causes of action. Plaintiff alleges the following:

Plaintiff's blood and blood components are unique, possessing properties with a potential for significant breakthroughs in medical research and the treatment of disease. His "blood and bodily substances" (by which term plaintiff means all bodily tissue, including cells, spleen, blood and genetic material) have commercial value.

"8. Defendants, based upon their experience and familiarity with developments in scientific fields relevant to such matters, were aware that certain blood products and blood components were of great value in a number of commercial and scientific efforts, and that a steady and abundant natural source of these substances in a human being would be highly desirable.

"9. In addition, defendants, were aware that certain characteristics and properties of the blood and blood components of certain rare patients could prove to be highly useful in defendants' efforts to locate, isolate and cultivate large quantities of these valuable substances.

"10. Defendants were also aware that direct and exclusive access to such a patient would provide them with a steady and natural source of these unique living substances and properties, and would provide defendants with competitive, commercial, and scientific advantages."

In the course of treating plaintiff, defendants drew blood and bodily substances from him. Defendants confirmed that plaintiff had hairy-cell leukemia, and planned to remove his spleen as part of the treatment.

The complaint further alleges:

"14. Prior to the surgical removal of plaintiff's spleen, Defendant David W. Golde, M.D., Defendant Shirley G. Quan, and other defendants, without advising plaintiff or obtaining his consent, formed the intent and made arrangements to obtain portions of his spleen following its removal from plaintiff in connection with their desire to have regular and continuous access to, and possession of, plaintiff's unique and rare Blood and Bodily Substances.

"15. Plaintiff was never informed by the defendants of the research and commercial value of his Blood and Bodily Substances, including his spleen, prior to its surgical removal, nor was he ever informed of defendants' prior formed intent to obtain from the operating room or the Surgical Pathology Department immediately after said surgery a portion or portions of his spleen and to remove said portion or portions to an entirely separate research unit where defendants, without plaintiff's knowledge or consent, would store, study, culture, grow and otherwise use them to establish cell-lines, cultures, conditioned media and other by-products having the aforementioned valuable, unique and rare characteristics possessed by his Blood and Bodily Substances, all of which activities did not have, and were not intended to have, any relation to plaintiff's medical and health care."

Additionally, before the splenectomy on October 20, 1976:

"17. ... Defendant Golde provided written instructions to members of the research staff of Defendant, The Regents of the University of California, informing them of the unique characteristics of plaintiff's condition and Blood and Bodily Substances, and instructing them to study and characterize the nature of his unique cells, Blood and Bodily Substances, utilizing a portion of plaintiff's spleen. At no time did Defendant Golde, nor Defendant Quan, nor any of the other defendants or researchers involved in this action ever inform plaintiff of their intentions in this regard, nor did they request, nor did they ever receive any permission or consent from plaintiff to perform these activities on plaintiff's spleen tissue or the unique Blood and Bodily Substances contained therein." 4

After the splenectomy, a portion of plaintiff's spleen was taken to a separate research unit at UCLA where it was stored and used for research. In furtherance of the research and commercial activities of defendants, plaintiff's spleen tissue was used to establish cell-lines with unique characteristics, capable of producing valuable pharmaceutical products. These activities were unrelated to the treatment of plaintiff.

Plaintiff alleges that had he known what was taking place, he would not have consented to the splenectomy for these research and commercial activities; would have insisted on participating in control of the use of his blood and bodily substances; would not have permitted these materials to be used by defendants solely for their independent research, commercial activity, and economic benefit; would have considered treatment at another medical facility where his wishes would have been carried out; and would have sought participation in the economic benefit.

At defendants' direction, plaintiff returned from the State of Washington to UCLA many times from November of 1976 through September of 1983. Defendants represented that these visits were necessary for plaintiff's well-being, and at each visit, blood and bodily substances were withdrawn (including blood, blood serum, skin, bone marrow aspirate, and sperm). All of the blood and bodily substances removed from plaintiff on these visits furthered defendants' purpose of establishing a cell-line for commercial exploitation. Defendants did not inform plaintiff that these withdrawals served the purpose of defendants' independent research and commercial activity, rather than his medical treatment. Defendants misrepresented the nature of the research to plaintiff by advising plaintiff that there was no commercial or financial value in his tissues.

During the time plaintiff was under defendants' care, defendants engaged in a number of activities aimed at commercial exploitation of the cell-line, without disclosing these activities to plaintiff and without his knowledge. These activities included the following: Golde and Quan actively asserted the unique and valuable properties of plaintiff's cell-line...

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