Moore v Regents of the University of California
51 Cal.3d 120 (1990)
Supreme Court of California
Facts:
M was a patient at UCLA Medical Centre for cancer. Part of his treatment included removing his spleen. M signed a consent form agreeing to the operation.
When testing cells from M’s spleen, it became aware that M was the carrier of an unknown leukaemia virus. Because of this virus, M’s cells a rare (if not unique) ability to produce very high-quality proteins in great quantity. Researching this abnormality would be of great importance to the medical profession and could be used to generate extremely valuable pharmaceutical products.
After the operation, M’s spleen was sent to the laboratory for the cells to be extracted and processed to create a self-reproducing cell line culture.
UCLA applied for a patent on the cell line with their investors. After the patent was granted, agreements were negotiated with the Genetic Institute for Commercial Development. It was sold for $15m, with a potential value of $3b. One of the investors (G) became a paid consultant and acquired 75,000 shares of stock from the Genetic Institute.
Periodically, G would take blood, bone marrow and sperm samples from M to replenish and sustain the original cell line. M was not informed of this and had to pay for these trips.
M was asked to sign a new standard consent form that covered the commercialisation of cell lines. M became suspicious and asked doctors whether there was some profit-making enterprise from the use of his cells. G denied and M agreed to sign (but actually signed improperly). When M was called back to sign correctly, M refused.
Legal Facts / Procedural History:
First Instance (M lost).
California Court of Appeal (M won).
California Supreme Court
Legal Issues:
Question of whether the actual property is the naturally occurring cell or the technical artefact created (the patented cell line).
Action:
M’s cause of action was under the tort of conversion (type of civil theft) and UCLA’s breach of fiduciary duty in relation to the consent form.
Tort of Conversion:
Under US law, the tort of conversion is a strict liability offence. M need not show that he suffered damage from UCLA’s action.
The spleen which the cells came from belonged to M. In some sense, it had therefore been stolen from him by UCLA. While M did consent to the spleen being removed, he did not consent to UCLA profiting from the use of its cells.
However, natural cell and the cell line that could be patented are not the same thing. Doctors had laboured on the natural cell to make it an immortal cell line. Under Locke’s theory of possessive individualism, UCLA were the rightful owners.
Breach of Fiduciary Duty:
UCLA owed a duty of care and trust to M. M had not consented to his cells being used in this way, so the consent he did give was not informed.
Judgement (Panelli J, Kennard J, Broussard J, Mosk J, Arabian J and Eagleson J):
Tort of Conversion:
M did not own the property in himself, so could not be the victim of conversion.
It is wrongful to own a body as it is against human dignity to commodify the human body as a mere resource. Furthermore, as a matter of policy, medical research would be imperilled if the tort could be applied by M and in further cases.
Breach of Fiduciary Duty:
Doctors should have disclosed their commercial interests at all stages. By not doing so, they had breached their duty. This is an actionable claim due to a lack of informed consent.
M and UCLA came to a confidential legal settlement after the litigation.
Comments