Yao v. Chapman

• Decision Date: 31 August 2005
• Docket Number: No. 2004AP1971.,2004AP1971.
• Citation: 2005 WI App 200,705 N.W.2d 272
• Parties: Xuebiao YAO, Plaintiff-Respondent,<SMALL><SUP>†</SUP></SMALL> v. Edwin CHAPMAN and Richard Moss, Defendants-Appellants.
• Court: Wisconsin Supreme Court

705 N.W.2d 272

2005 WI App 200

Xuebiao YAO, Plaintiff-Respondent,^† v. Edwin CHAPMAN and Richard Moss, Defendants-Appellants.

No. 2004AP1971.

Court of Appeals of Wisconsin.

Submitted on Briefs June 8, 2005.

Opinion Filed August 31, 2005.

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On behalf of the defendants-appellants, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and James McCambridge, assistant attorney general.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James A. Olson, and Marsha M. Mansfield, of Lawton & Cates, S.C., of Madison.

Before ANDERSON, P.J., BROWN and NETTESHEIM, JJ.

¶ 1 NETTESHEIM, J

Professors Edwin Chapman and Richard Moss (the professors) of the University of Wisconsin-Madison (UW) Department of Physiology (Department) appeal from a monetary judgment in favor of Dr. Xuebiao Yao, a former researcher in the Department. The professors contend the trial court erred when it determined that they had a ministerial duty to safeguard Dr. Yao's cell lines due to a gratuitous bailment under an implied contract and when the court failed to dismiss a separate breach of contract claim.

¶ 2 We agree with the trial court that a gratuitous bailment was created, and that the professors were negligent under the bailment. We disagree, however, with the court's rulings that the bailment was created pursuant to an implied contract and that the professors' duties under the gratuitous bailment were ministerial in nature thus depriving them of their public officer immunity. Therefore, we reverse the judgment.

BACKGROUND

¶ 3 The facts, while lengthy, essentially are undisputed. Dr. Yao is from the People's Republic of China. He received his M.D. there in 1985 and came to the United States in 1990 to study at the University of California-Irvine. In 1995, he earned his Ph.D. in molecular and cellular biology from the University of California-Berkeley, after which he began doing postdoctoral work at the University of California-San Diego under Dr. Don Cleveland. While there, he developed a line of monoclonal antibody cells called "hybridoma cells." A hybridoma cell is a type of hybrid cancer cell that results from an immune reaction in mice exposed to proteins implicated in colon cancer. A part of the cell lines' value lies in the fact that they form the foundation for research that builds on itself year after year. Dr. Yao's unique cell lines held potential for use in the study of the causes and treatment of colon cancer.

¶ 4 Dr. Yao's research caught the attention of the UW, which began recruiting him in 1997. In 1998 he accepted the UW's offer of a tenure-track assistant professorship in the Department with a three-year contract. Dr. Cleveland permitted Dr. Yao to take the cell stock — over 600 vials — with him when he relocated to the UW-Madison.

¶ 5 Using start-up funds allocated to him by the UW, Dr. Yao purchased a liquid nitrogen tank to be used for long-term storage of his cell lines. The cells, kept in vials with a preservative, must be maintained at very cold temperatures, as the cells cannot survive more than a few hours at room temperature. Liquid nitrogen is a desirable refrigerant because it affords the cold temperatures essential to long-term preservation of valuable cell lines without the risk inherent in electric refrigeration. It must be replenished at least every 138 days, however, due to gradual evaporation. Only Dr. Yao and one of his students, Yun Zheng, had use of the liquid nitrogen tank and personally maintained the tank until December 10, 1998.

¶ 6 During Dr. Yao's first year at UW, his cell lines enabled him to secure several outside grants totaling over $1 million. At least two of the grants, one from the National Institutes of Health (NIH) and another from the American Cancer Society, depended upon the availability of his cell lines.

¶ 7 In December 1998, Chapman accused Dr. Yao of sabotaging his research efforts by destroying the work of one of Chapman's graduate students. After an investigation, Dr. Yao was suspended.¹ On December 10, 1998, Moss barred Dr. Yao from any further access to the lab unless accompanied by Moss or one of his designees. Dr. Yao's cell stock was still being maintained in the liquid nitrogen tank at the time of his suspension. Dr. Yao arranged to move the cell stock to another laboratory on campus, but a UW official refused to permit him to do so.

¶ 8 Dr. Yao also was barred from communicating with anyone at the University. Accordingly, Dr. Yao's attorney, Hal Harlowe, secured assurances from John Dowling, the UW's attorney, that Moss would protect and properly store Dr. Yao's cell lines. Harlowe testified at trial that he did not know who specifically would be responsible for replenishing the liquid nitrogen or whether the tank itself would be locked. He further testified that while he had only a "general" rather than a "detailed" understanding with Dowling of the procedure by which the materials would be maintained, he nonetheless believed there was a contractual relationship with the UW regarding the cells. The consideration for the contract, according to Harlowe, was an agreement — one not "ever explicitly discussed" with Dowling, however — that Dr. Yao would not seek an injunction to force the UW to allow him access to the cells.

¶ 9 Under the general arrangement for safeguarding the cell lines, Dr. Yao was permitted to have Zheng, his former student, replenish the liquid nitrogen. Both the lab and the storage tank were kept locked. Moss held the only key to the lab. To gain entrance to the lab, Zheng would have to contact either Moss or his designee who then would accompany Zheng to the lab and unlock the door for him. Zheng then would retrieve the tank key from a storage closet, unlock the tank, replenish the liquid nitrogen and relock the tank. This pattern worked smoothly for about two years.

¶ 10 On December 7, 2000, Moss accompanied Dr. Yao to the laboratory so that Dr. Yao could retrieve some of his research materials to take to the University of California-Berkeley, which had agreed to let him use laboratory space. The lab was locked as it always had been, but Dr. Yao noticed that the padlock on the cover of the storage tank was missing. Moss told Dr. Yao that the tank key had been lost, so he had had the lock cut off. He also told Dr. Yao that he would have the lock replaced. If the tank cover is properly placed, however, a lock is not required to prevent evaporation. After retrieving a portion of his stock, Dr. Yao replaced the cover on the tank, noting that it contained enough liquid nitrogen in it to last at least sixty more days.

¶ 11 Fifty days later, on January 26, 2001, Dr. Yao returned to collect the remainder of his stored research material from the liquid nitrogen tank. Upon opening the tank, he found that it contained no liquid nitrogen and was not refrigerating his samples. Instead, the vials containing hundreds of different cell lines were in an aqueous solution at room temperature. He also noticed the missing tank key at the bottom of the tank.

¶ 12 In addition, Dr. Yao noticed in the tank a container with three tubes of cells dated "12/20/2000." The container was marked "Chapman." Chapman was the Department professor who two years earlier had accused Dr. Yao of tampering with his experiments. Dr. Yao was "shocked" and "surprised" because he was unaware that anyone other than Moss had access to the laboratory. He later learned that sometime in the year 2000, Moss had given Chapman permission and a key to use Dr. Yao's former laboratory space. Chapman, in turn, gave a key to Cynthia Earles-Ochsner, a postdoctoral student working under Chapman's supervision. In late December 2000, Earles-Ochsner decided on her own to put some of her research materials in the same liquid nitrogen tank with Dr. Yao's cell stock because that tank was more conveniently located than one she had been told she could use in another lab.

¶ 13 At her deposition, Earles-Ochsner described verbally and through a sketch how she had secured the tank by turning the lid to the right. However, she testified at the trial that her deposition testimony had been incorrect and that in fact she had fastened the lid by securing it in a totally different manner. Also at trial, Earles-Ochsner testified about placing her cell samples in the liquid nitrogen tank. She said she remembered thinking that she "had not a lot of experience with liquid nitrogen tanks," and that, while it was not dry, "it probably needed more liquid nitrogen."

¶ 14 A UW publication entitled "Chemical Safety and Disposal Guide" (Guide) incorporates various Occupational Safety and Health Administration (OSHA) laws or standards. The law regulating exposure of laboratory personnel to hazardous chemicals, referred to as the "OSHA Laboratory Standard," covers UW laboratories and is enforced by Wisconsin's Department of Industry, Labor and Human Relations. At trial, the court took judicial notice that WIS. ADMIN. CODE § Comm. 32.50(2) (Mar.1999) incorporates by reference 29 C.F.R. pt.1910 (1999), the OSHA standards. WISCONSIN ADMIN. CODE § Comm. ch. 32 (Mar.1999) is entitled "Public Employee Safety and Health;" Title 29 C.F.R. § 1910.1450 (1999) is entitled "Occupational exposure to hazardous chemicals in laboratories." The Guide and the OSHA Laboratory Standard point out that "Lab Directors, Managers and Supervisors" have compliance responsibilities, one of which is to inform and train laboratory personnel at the time of their initial work assignment as to the hazards of chemicals, including cryogenic liquids, in the workplace. Neither Chapman, who was Earles-Ochsner's direct supervisor, nor Moss, the Department chair, ever instructed Earles-Ochsner how to use the liquid nitrogen container.

¶ 15 After discovering that the cells had thawed, attempts were made to salvage them, but none survived. Dr. Yao has...