None of the foregoing is true in the case at bar. 27. (Maj. (See maj. Indeed, I suggest the majority have already fallen into this very trap, since some of their explanations appear either mistaken, confused, or incomplete (e.g., maj. Health and Safety Code section 1606 declares that "[t]he procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same ... is declared to be, for all purposes whatsoever, the rendition of a service ... and shall not be construed to be, and is declared not to be, a sale ... for any purpose or purposes whatsoever. Accordingly, his attempt to apply the theory of conversion within this context must frankly be recognized as a request to extend that theory. (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. The complaint also alleges that defendant Regents of the University of California (hereafter Regents) actively assisted the individual defendants in applying for patent rights and in negotiating with bioengineering and pharmaceutical companies to exploit the commercial potential of Moore's tissue. 1984) § 15, p. (See generally OTA Rep., supra, at pp. These standards, promulgated as regulations by the Commissioner of Education (8 NYCRR 52.2), provide the necessary authority for the commissioner's determination to deny the registration of the English and history doctoral programs offered by the State University of New York at Albany. Moore V Regents Of The University Of California California Companies Educational Services. (See Matter of Levine v Whalen, 39 N.Y.2d 510, 515; Matter of Mooney v Cohen, 272 N.Y. 33, 37.) To alter this governing structure, the Legislature subsequently vested in the Board of Trustees of the State University the same power to administer the day-to-day operations of the State University as trustees of private institutions of higher education had been granted. 1 (hereafter Note, Source Compensation); see also OTA Rep., supra, at pp. If these allegations are true, defendants clearly improperly interfered with plaintiff's right in his body part at a time when he had the authority to determine the future use of such part, thereby misappropriating plaintiff's right of control for their own advantage. (35 U.S.C. Like the opinion in the case at bar, the dissent in Sindell objected that market share liability was "a wholly new theory" and an "unprecedented extension of liability" (Id. Rptr. On the other hand, a physician who does have a preexisting research interest might, consciously or unconsciously, take that into consideration in recommending the procedure. ), [16] Imposing liability for conversion is equivalent to the imposition of such a duty, since only through investigation would users of cells be able to avoid liability. (Danforth, supra, 6 Yale L. & Pol'y Rev. 694-700; Brown v. Superior Court, supra, 44 Cal.3d at pp. (8) (See fn. First, no reported judicial decision supports Moore's claim, either directly or by close analogy. In a unanimous opinion that I authored for the court, we considered inter alia whether pharmaceutical manufacturers should be held strictly liable for injuries caused by "defectively designed" prescription drugs. We declined to so hold for several policy reasons. Rptr. We acknowledge that there is a competing consideration. 716.). The superior court, however, expressly considered the validity of only the first cause of action, conversion. Other cell lines have been in wide use since as early as 1951. In identifying the interests of the patient that are implicated by the decision whether to recognize a conversion cause of action, the opinion speaks only of the "patient's right to make autonomous medical decisions" (maj. But the majority's rejection of plaintiff's conversion cause of action does not mean that body parts may not be bought or sold for research or commercial purposes or that no private individual or entity may benefit economically from the fortuitous value of plaintiff's diseased cells. Mosk J: "Neither is Instead, drawing no distinctions between the defendants, the court held simply that each defendant was primarily liable for conversion. It is true that read literally section 210 speaks only of the registration of domestic and foreign institutions and is silent as to the registration of particular programs offered by such institutions. [63] The majority's point wholly fails to meet Moore's claim that he is entitled to compensation for defendants' unauthorized use of his bodily tissues before defendants [168] patented the Mo cell line: defendants undertook such use immediately after the splenectomy on October 20, 1976, and continued to extract and use Moore's cells and tissue at least until September 20, 1983; the patent, however, did not issue until March 20, 1984, more than seven years after the unauthorized use began. We thus disagree with the superior court's ruling that Moore had not stated a cause of action because essential allegations were lacking. (Maj. In any event, in my view whatever merit the majority's single policy consideration may have is outweighed by two contrary considerations, i.e., policies that are promoted by recognizing that every individual has a legally protectible property interest in his own body and its products. But if being "boilerplate" were a valid objection, few pleadings would pass muster in this age of Judicial Council compulsory forms, widely used model form books, and drafting programs on law office computers. Cells, tis-sues, and body parts from live patients were either used for dissec-tion or simply discarded.2 But as the field of biotechnology has broadened, the components of the human body have begun to have We value too much our team and our customers and this way, we manage to be one of the most appreciated companies in the Warehousing & Storage (8A, West's U. Moore v. Regents of the University of California was a landmark Supreme Court of California decision. 1063-1065.) "[76], The second barrier to recovery is still higher, and is erected on the first: it is not even enough for the plaintiff to prove that he personally would have refused consent to the proposed treatment if he had been fully informed; he must also prove that in the same circumstances no reasonably prudent person would have given such consent. First, in support of their statement that the Mo cell line is "factually distinct" from Moore's cells, the majority assert that "Cells change while being developed into a cell line and continue to change over time," and in particular may acquire an abnormal number of chromosomes. [9] A related problem may arise with excessive disclosure of the risks of medical treatment. Yet as explained above (pt. However, the court did not reach that conclusion on the basis of secondary liability. opn., ante, p. 141, fn. Cooley, Godward, Castro, Huddleson & Tatum, Michael Traynor, Brian C. Cunningham, Lloyd R. Day, Louis M. Lupin and Gary H. Ritchey as Amici Curiae on behalf of Defendants and Respondents. ), The concepts of property and ownership in our law are extremely broad. Anatomical Gift Act (1987) § 10, p. 3d 425, 551 P.2d 334, 131 Cal. [18], (6) We have recognized that, when the proposed application of a very general theory of liability in a new context raises important policy concerns, it is especially important to face those concerns and address them openly. Rptr. Code, § 7153, subd. On October 8, 1976, Golde recommended that Moore's spleen be removed. Where then shall a complete resolution be found? opn., ante, p. 143) and fails even to mention the patient's interest in obtaining the economic value, if any, that may adhere in the subsequent use of his own body parts. Cobbs v. Grant, supra, permits a physician acting solely in the patient's best interests to consider whether excessive disclosure will harm the patient. 410.). ), While the genetic code for lymphokines does not vary from individual to individual, it can nevertheless be quite difficult to locate the gene responsible for a particular lymphokine. [78] And the [182] majority further note that the trial court has already ruled insufficient the allegations of agency as to the corporate defendants. opn., ante, p. (Id. We would agree that the recommendations contained in position paper 19 did not, upon publication, acquire the status of regulations promulgated by the Commissioner of Education. 936 (1991) [Background: In 1976 John Moore sought treatment for hairy-cell leukemia at the Medical Center of the University of California, Los Angeles. The act provides maximum damages of $1,000 for negligent violations, $5,000 for willful violations, and $10,000 for willful violations which "expose[] a subject to a known substantial risk of serious injury...." (Health & Saf. Essentially, he answers, because of these defendants' moral shortcomings, duplicity and greed. In my view the majority's three reasons, taken singly or together, are inadequate to the task. (Note, "She's Got Bette Davis['s] Eyes": Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses (1990) 90 Colum. The majority rely (maj. opn., ante, p. (1990 pocket pt.) (3) Our analysis begins with three well-established principles. Rptr. at pp. Thank you. (In published research papers, defendants and other researchers have shown that the overproduction was caused by a virus, and that normal T-lymphocytes infected by the virus will also overproduce. 89. This regulation provided, inter alia, that "[e]ach member of the academic staff shall have demonstrated by his training, earned degrees, scholarship, experience, and by classroom performance or other evidence of teaching potential, his competence to offer the courses and discharge the other academic responsibilities which are assigned to him." (See Matter of Levine v Whalen, 39 N.Y.2d 510, 515; Matter of Mooney v Cohen, 272 N.Y. 33, 37.) 20, ante). [34] A fully informed patient may always withhold consent to treatment by a physician whose research plans the patient does not approve. opn., ante, p. ), [23] See Health and Safety Code section 1601 et seq., which regulates the procurement, processing, and distribution of human blood. In these allegations, Moore plainly asserts that Golde concealed an economic interest in the postoperative procedures. The Regents Of The University Of California. Golde gave written instructions to this effect on October 18 and 19, 1976. Rptr. 11 Moore v Regents of the University of California (1990) 793 P. 2d at 482. 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. [11] The record shows that the splenectomy did have a therapeutic purpose. Click the citation to see the full text of the cited case. DISPOSITION: The decision of the Court of Appeal is affirmed in part and reversed in part. 3d 425, 551 P.2d 334, 131 Cal. In some cases, however, a physician's research interest might play such an insignificant role in the decision to recommend a medically indicated procedure that disclosure should not be required because the interest is not material. 141.) 242.) 628, 634. Rptr. (Id., at col. [69] Given the innocence and vulnerability of the typical plaintiff in such cases, sympathetic juries might well return substantial verdicts again and again, and the industry's total liability could reach intimidating proportions. (Ibid., italics added.) Because exclusive power to effect change in the law of patents lies with Congress and the federal courts (U.S. 41.) 72. In a footnote at this point (id. (Maj. The broad terms used in section 7054.4, a relatively recent addition to the 1939 division on dead bodies (added by Stats. (See Carmichael, New York Establishes a State University 2 [1955].). "Since property or title is a complex bundle of rights, duties, powers and immunities, the pruning away of some or a great many of these elements does not entirely destroy the title...." (People v. Walker (1939) 33 Cal. I disagree, however, with the suggestion in the dissenting opinion that defendants will be able to avoid all liability under the breach-of-fiduciary-duty theory simply by showing that plaintiff would have proceeded with the surgical removal of his diseased spleen even if defendants had disclosed their research and commercial interest in his cells. Although we cited certain psychological literature, the case is likewise distinguishable. (Cobbs v. Grant, supra, 8 Cal.3d at p. (BAJI No. Tissue was removed from Moore (Plaintiff) by several doctors who planned to conduct research with the hope of achieving financial gain. Start studying Property in One's Person: Moore v. Regents of UC. Nor does the status of patients as sole owners of a component part make them deserving of joint inventorship status. This is because in many cases the potential benefits of the treatment to the plaintiff clearly outweigh the undisclosed risk of harm. Fourth, much of the material that the majority rely on in this regard is written in highly technical scientific jargon by and for specialists in the field of contemporary molecular biology. Under the majority's holding, however, the patient would have no right to bring a conversion action, even against such a thief. (See generally In re Lundak (Fed. The superior court also held that the lack of essential allegations prevented Moore from stating a cause of action based on the splenectomy. ), [64] For example, it is hornbook law that "In patent [infringement] suits where equitable relief is sought, the defense of unclean hands may be interposed. Although that legislation, by its terms, applies only to a donation of all or part of a human body which is "to take effect upon or after [the] death [of the donor]" (§ 7150.1, subd. denied, 499 U.S. 936 (1991) (stating that '[s]ince Moore clearly did not expect to retain possession of his cells following their removal, to sue for their conversion he must have retained an ownership interest in them. Under our rules, as in appellate practice generally, the parties to an appeal are confined to the contentions raised in their briefs (see Cal. of Mosk, J., post, at pp. )[41] In our view, borrowing again from Brown, "[i]t is not unreasonable to conclude in these circumstances that the imposition of a harsher test for liability would not further the public interest in the development and availability of these important products." 1971, ch. This practice sometimes results in obvious errors, such as the allegation that "defendants saw and examined [Moore] on or about October 5, 1976 and then hospitalized [him]...." (Italics added.) While I agree with the majority that section 7054.4 should reasonably be interpreted to apply to body parts removed from a living patient as well as from dead bodies, the statute nonetheless provides absolutely no support for the majority's conclusion. "[A]n action based on the physician's failure to disclose material information sounds in negligence. [19] While it ordinarily suffices to allege ownership generally (5 Witkin, Cal. Third, the subject matters of the Regents' patent — the patented cell line and the products derived from it — cannot be Moore's property. LEXIS 297, 83 A.L.R.3d 1166 (Cal. In Brown, eliminating strict liability made it more difficult for plaintiffs to recover actual damages for serious physical injuries resulting from their mothers' prenatal use of the drug diethylstilbestrol (DES). In view, however, of the specific powers granted by the Legislature to the Regents previously discussed, we believe that, in the present case, section 207 operates as a means for the effectuation of independent powers, rather than as their source. of relevant scientific literature in setting forth the technological background of this case. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.' 1, ante), if a conversion cause of action is otherwise an appropriate remedy on these facts we should not refrain from recognizing it merely because the Legislature has not yet addressed the question. 1054-1055.) The act permits a competent adult to "give all or part of [his] body" for certain designated purposes, including "transplantation, therapy, medical or dental education, research, or advancement of medical or dental science." Rejected him in favor of recognizing plaintiff 's conversion cause of action against the Regents in... Section references are to the present Appeal Grant physicians unlimited discretion to what. Moderation decisions broad policy-making attributes National Institutes of Health and Safety Code section 7054.4 ( OTA! To treatment would not have an ownership interest in the body normal human Lymphocytes ( Nov. )..., 1976 of choice it relies on those allegations in the third amended complaint does Moore specifically allege that Moore... And reasonings online today the universities that support that industry ) at 143... Fundamentals ( 1959 ) p. 967 ; See fn a physician must disclose all material! That interest before the splenectomy consider next whether it is advisable to extend the conversion theory would utterly sacrifice other... Consideration adds notions of equity to recognize and enforce a right to one. Interesting to the Regents lower courts tens of thousands [ 145 ] of requests for samples.. Must not be made beyond that required within the medical Community.... '' ( Ibid ) 123 Cal our. Or for a nominal fee therapeutic purposes over time limit the benefits of that phrase and privileges vested in majority... 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