IN THE UNITED STAES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE REGENTS OF THE UNIVERSITY §
OF WASHINGTON; SHIRLEY CHAN, M.D.; §
MARIA MARTA, M.D; and BIOMED §
INSTITUTE, INC., an Idaho Corporation. §
Appellants §
§
§
v. §
§
JOHN MALECK §
Appellee §
APPELLATE BRIEF
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Moore v Regents of the University of California, 51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P. 2d 479 5
ISSUE PRESENTED
The main issue for determination in the appeal is whether Washington State could recognize a property right in excised tissue.
STATEMENT OF THE CASE
The Appellant was diagnosed with prostate cancer on the 2nd of September 2012. He then travelled to Washington to seek medical help. The Respondent informed him of the severity of the condition and advised that medical surgery was required. The Respondent then operated on the Appellant and excised the infected tissues and blood. However, the Respondent failed to inform the Appellant that the same could later be used for research and commercial purposes. However, this is justified since upon excising the said samples, the Appellant gave up his property rights. The Appellant now seeks a share of the profits and a declaration of the infringement of his property rights.
The defendant later moved the Circuit court to dismiss the claim for being time barred which the court deed. The Appellant then appealed raising the issue of, among others, that the Washington State should recognize the property right in the excised tissue.
SUMMARY OF THE ARGUMENT
The main argument is that Washington State should not recognize a property interest in one’s own biological materials used in research. Because conversion of property is a strict liability tort, extending property rights to include organs could stifle medical research. Laboratories doing research receive a large volume of medical samples and cannot be expected to know or discover whether somewhere down the line their samples were illegally converted. Furthermore, the Appellant’s interest in his bodily integrity and privacy are protected by the requirement of informed consent, which must also inform about economic interests. The argument is based on the case of Moore v Regents of the University of California.
ARGUMENT
Washington State should or should not recognize a property interest in one’s own biological materials used in research.
THESIS
WASHINGTON STATE CURRENTLY RECOGNIZES A PERSON’S PROPERTY RIGHT TO DONATE AND SELL CERTAIN BIOLOGICAL MATERIALS.
In the current case, the Appellant did not donate and sell his biological materials to the Washington State. Rather, he had them removed with the intention to discard them since they were infected with cancer. Thus not entitled to the same since his initial intention was to have them disposed of.
In the case of Moore v Regents, Murray, while representing Dr. Golde stated that it was impossible to assess the potentila research value of the tissue after it was removed and that there was no proof of the hospital of physical misrepresented themselves to Moore. He stated that State statutes allow the scientific use of discarded tissue.
His precise words were:
“Absolutely nothing was concealed from this man, there was no intent to trick him. He instructed the hospital to take it out since it had cancer. Now here you are saying you can’t do any research unless you pay me.”
From the preceding, it is clear that one can not assert property rights over discarded tissue Hence the Appellant can not claim that the Respondent acquired profit using his tissues. He consented to the surgery hence ceded his property rights in relation to the excised tissue infected with cancer.
DISCARDED, EXCISED TISSUE SUBSEQUENTLY USED IN MEDICAL RESEARCH DOES NOT GIVE RISE TO A PERSONAL PROPERTY INTEREST.
Moore v. Regents of the University of California was a landmark Supreme Court of California decision. Filed on July 9, 1990, it dealt with the issue of property rights to one’s own cells taken in samples by doctors or researchers.
In 1976, John Moore was treated for hairy cell leukemia by physician David Golde, a cancer researcher at the UCLA Medical Center. Moore’s cancer cells were later developed into a cell line that was commercialized by Golde and UCLA.
The California Supreme Court ruled that a hospital patient’s discarded blood and tissue samples are not his personal property and that individuals do not have rights to a share in the profits earned from commercial products or research derived from their cells. Following this decision, most U.S. courts have ruled against family members who sue researchers and universities over the “improper commercialization” of their dead family member’s body parts.
Likewise, the Appellant’s tissues were contaminated or infected with cancer hence amounting to discarded blood and tissue samples.
IT IS GOOD SOCIAL POLICY TO RECOGNIZE A PROPERTY INTEREST IN ONE’S OWN BIOLOGICAL MATERIALS.
The court in Moore v Regents looked at the policy behind having Moore’s cells considered property. Because conversion of property is a strict liability tort, the court feared that extending property rights to include organs would have a chilling effect on medical research. Laboratories doing research receive a large volume of medical samples and cannot be expected to know or discover whether somewhere down the line their samples were illegally converted. Furthermore, Moore’s interest in his bodily integrity and privacy are protected by the requirement of informed consent, which must also inform about economic interests.
Therefore, in the current instance, the Respondent adhered by the social policy basis of respecting one’s biological interest by informing the Appellant of the extent of infection of his tissue before excising the same. The Appellant thus consented to the surgery hence giving up his rights over his tissue.
IT IS NOT GOOD SOCIAL POLICY TO ESTABLISH A NEW PROPERTY INTEREST IN DISCARDED, EXCISED TISSUE SUBSEQUENTLY USED AND NEEDED IN MEDICAL RESEARCH.
As was held in the case of Moore v Regents of the University of California, it would be unreasonable and bad social policy to establish a new property interest in discarded, excised tissue subsequently used and needed in medical research. Allowing the extension of such rights would stifle research and deny the state the chance to further research. This is based on the fact that once an organ is excised and discarded by the owner, he loses any property rights over it making recovery impracticable. Further, the state can not market the excised organs hence leaving them the sole option of utilizing them in conducting research.
THIS COURT SHOULD EXTEND A PERSON’S PROPERTY INTEREST TO THE BIOLOGICAL MATERIALS USED IN MEDICAL RESEARCH.
Justice Arabian wrote a concurring opinion in the case of Moore v Regents, stating that the deep philosophical, moral and religious issues presented by the case could not be decided by the court.
Justice Broussard concurred in part and dissented in part. Justice Mosk dissented, stating that Moore could have been denied some property rights and given others. At the very least, Moore had the “right to do with his own tissue what the defendants did with it”. That is, as soon as the tissue was removed, Moore had at least the right to choose to sell it to a laboratory or to have it destroyed. Thus, there would be no necessity to hold labs strictly liable for conversion when property rights could be broken up, to allow Moore to extract a significant portion of the economic value created by his tissue. Furthermore, to prove damages from informed consent, Moore would have to have proved that if he were properly informed, neither he, nor a reasonable person would have consented to the procedure. Thus, Moore’s chances of proving damages through informed consent were slim. Also, he could not consent to the procedure but reserve the right to sell his organs. Finally, Moore could sue only his doctor, nobody else, for failing to adequately inform him. Thus, he was unlikely to win, could not extract the economic value of his tissue even if he had refused consent, and could not sue the parties that might be exploiting him.
However, in the present instance, the Respondent had no intention of exploiting the Appellant. In as much as the Respondent could be extend the Appellant’s property rights over his tissues to the medical research, the Appellant gave up his rights when he consented to the surgery.
CREATING A NEW CAUSE OF ACTION IN A PROPERTY INTEREST IS BETTER LEFT TO THE LEGISLATURE.
Given the preceding arguments, it would be unreasonable to require the Respondent to extend property rights to medical research over tissues that were discarded, excised tissue subsequently used and needed in medical research. Hence the resort to leaving the creation of such cause of action in property interest to the legislature. Delving into it and allowing the courts to adjudicate the same would not only open a floodgate to litigation but also infringe on the legislature’s function of making the law.
CONCLUSION
From the preceding arguments, it is clear that the Appellee can not claim property rights over the excised infected tissue. REASONS WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests this Honorable Court to GRANT this Appeal and set aside the judgment of the U.S. District Court.
Dated this ____ day of April, 2022.
Respectfully Submitted,
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