Opposition Brief — Moore v. Regents of the University of California

FILED

2

—S 1

No. 90-1037 MAR Wot

(gr THE CLERK |

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

JOHN MOORE,

Petitioner,

Vv.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Davip W. GOLDE, M.D., SHIRLEY G. QUAN,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of California

RESPONDENT REGENTS OF

THE UNIVERSITY OF CALIFORNIA

BRIEF IN OPPOSITION

JAMES E. HOLST

JOHN F.. LUNDBERG

GEORGE L. MARCHAND

ALLEN B. WAGNER *

University of California

300 Lakeside Drive, 7th Floor

Oakland, California 94612-3565

(415) 987-9800

Counsel for Respondent

Regents of the

University of California

March 1, 1991 * Counsel of Record

WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

—

QUESTION PRESENTED

Does a State Supreme Court decision denying a pa-

tient’s claim for common law conversion of therapeutically

excised human tissue constitute a taking of property re-

quiring just compensation under the Fifth and Four-

teenth Amendments?

(i)

ey

ii

LIST OF PARTIES

The petitioner in this Court and the appellee/plaintiff

below: John Moore. The respondents in this Court and

appellants/defendants below: The Regents of the Uni-

versity of California; David W. Golde, M.D.; and Shirley

G. Quan. Other appeilants/defendants below not served

the petition in this Court: Genetics Institute, Inc.; San-

doz, Ltd.; Sandoz United States, Inc.; and Sandoz Phar-

maceuticals Corporation.

TABLE OF CONTENTS

Page

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PRELIMINARY STATEMENT OF FACT AND

i sae nahinenimeenaciiniegnaanmene 1

REASON FOR DENYING THE WRIT ......................... 4

I. THERE IS NO “FEDERAL LAW QUESTION”

SUES UmaeItGe Sam WL ................................... 4

II. THE DECISION BELOW DOES NOT CON-

STITUTE A TAKING REQUIRING JUST

COMPENSATION UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS ...................... 6

III. PETITIONER’S TAKING CLAIM WAS

a SENS TE Ne Ca a 8

be Fe SEE ERT lt AA A 10

(iil)

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iv

TABLE OF AUTHORITIES

CASES Page

Bowen v. Agencies Opp. to Soc. Sec. Entrap., 477

a a eandnietenenoun 5

Cassettari v. Nevada County, 824 F.2d 735 (9th

i ID, iceashc i sicssiuciaeacnepsbcaladliatstaaea a iasielidedieehatieentotaiiesd 9

Demorest v. City Bank Farmers T. Co., 321 U.S.

i 6, 7,8

First Lutheran Church v. Los Angeles County, 482

I I tthe anita nate a eoesininintabsnishaghecenbadenian 9

Furey v. City of Sacramento, 5$2 F.Supp. 463

(E.D. Cal. 1984), affd., 780 F.2d 1448 (9th Cir.

UII =a castececsdeiladuaiinetsonthiete cha cibdeetshicess-bconeabibteienscereiieciéee 6

Moore v. Regents of the University of California,

OE Gl, BE Cae See CO a rersee ss... 4,5

Moore v. Regents of University of California, et

al., 202 Cal.App.3d 1230 (1988) ............................. 3

Peterson v. U.S. Department of Interior, 899 F.2d

799 (9th Cir. 1990), cert. denied, 111 S.Ct. 567

UII sits idldninnssoiccsaceeehinatiealinienisnsdigeiilisisediicida sehlgadipanlensacaniin 5

Pruneyard Shopping Center v. Robins, 447 U.S. 74

ah a has ace i a arama BES 6

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)... 6

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

I I is cai ccincitasanhenitese-cpkaseuchetbioradshtonsantinn 6, 7,8

Williamson Planning Comm’n v. Hamilton Bank,

BS Se 8 RN Te ON 9

IN THE

Siypreme Court of the United States

OCTOBER TERM, 1990

No. 90-1037

JOHN MOORE,

Petitioner,

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Davip W. GOLDE, M.D., SHIRLEY G. QUAN,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of California

RESPONDENT REGENTS OF

THE UNIVERSITY OF CALIFORNIA

BRIEF IN OPPOSITION

PRELIMINARY STATEMENT OF FACT AND CASE

The principal issue decided by the California Supreme

Court raised on Petition by John Moore (“Moore”) is

whether a patient’s unqualified consent to surgery for

medical purposes, at a teaching and research hospital, per-

mits the scientific study of the therapeutically removed

tissue, or whether such scientific study and disposition of

research results constitutes a common law tort ef conver-

sion.

2

Couched in traditional language of conversion, lack of

informed consent, breach of fiduciary duty, fraud and de-

ceit, Moore’s complaint sought to establish an unprece-

dented cause of action. While admitting consent to the

surgical removal of his spleen for therapeutic purposes,

Moore claimed additional consent was needed before The

Regents of the University of California (‘University’)

could conduct any scientific investigation involving the

removed tissue, or before any disposition could be made

of the University’s research results. Moore alleged he

came to the University’s UCLA Medical Center in Au-

gust, 1976 seeking confirmation and treatment for his

diagnosed hairy cell leukemia. The diagnoses was con-

firmed and Moore was advised that his malignant spleen

should be surgically removed. On or about October 19,

1976 Moore signed a written consent authorizing the

splenectomy based upon the representation that its re-

moval was “necessary for his care, treatment and diag-

noses.” The amended complaint does not challenge or

question the need for that medical treatment or the rep-

resentations about it.

Shortly before Moore’s splenectomy, respondent David

W. Golde, M.D., Professor of Medicine, instructed his re-

search associate, respondent Shirley G. Quan, to obtain a

specimen of the surgically removed spleen “to study and

characterize the nature” of its cells and substances before

its destruction. That study upon the splenic tissue re-

sulted in the development of a cell line (denominated “Mo

cell line’) and continued over several years. It was re-

ported to the University as a possible invention in Au-

gust, 1979, almost three years after the splenectomy. Sub-

sequently, the University applied for and received a pat-

ent on the invention.

The subject of Moore’s claim is the Mo cell line, its

related patent and the medical advancements of the Uni-

versity’s study involving it. While Moore’s complaint in-

fers an improper connection between the University’s

3

scientific study and his post-splenectomy medical treat-

ment, it simply does not allege anything occurred absent,

or in excess of, appropriate medical treatment for a

proper medical purpose. Moore’s action is not based upon

any alleged medical malpractice, nor upon any physical or

personal injury; rather, he seeks damages solely because

he had not expressly consented to the University’s post-

operative “research and commercial activities.”

The California Superior (trial) Court sustained the

University’s general demurrers through several versions

of the complaint, with leave to amend, essentially holding

that Moore’s admitted consent was unqualified, not viti-

ated, and by reference incorporated into each cause of

action. The court noted the complaint: did not deny

Moore knew (or had reason to know) therapeutically re-

moved tissue “might be used for medical and scientific

study”; did not allege the University knew or intended

(prior to the splenectomy) to exploit any commercial

utility; and, did not allege any inconsistency between

Moore’s consent and the University’s purpose in excising

the tissues. Moore declined to further amend his com-

plaint, and instead tendered a judgment dismissing the

case which the court entered. :

A divided California Court of Appeal reversed. (Moore

v. Regents of University of California, et al., 202 Cal.

App.3d 1230 (1988). The majority held: that surgically

removed human tissue was tangible private property of

the patient; and that, absent expressed consent, the Uni-

versity’s scientific study of such tissue constitutes a con-

version. The dissent argued against the application of

private proper‘y principles to surgical tissue, absent legis-

lative enactment. It also suggested the consent to surgery

constituted an abandonment of any patient property, since

there was no expectation of a continued possessory inter-

est.

A divided California Supreme Court affirmed in part,

reversed in part, and remanded the case with direction to

4

the California Court of Appeal (Moore v. Regents of the

University of California, et al., 51 Cal.3d 120, 148 (1990).

The majority held:~ that absent legislative enactment, the

court would not create new tort duties expanding the

strict liability of conversion for the scientific use of ther-

apeutic human cells; that physicians must disclose to pa-

tients, their research and economic interest that may af-

fect their judgment in rendering medical treatment, to

protect patients from any conflicts of interests; and, ac-

cordingly, that Moore’s third amended complaint stated a

cause of action for breach of fiduciary duty or lack of in-

jormed consent against Dr. Golde, but not the other de-

fendants, and did not state a cause of action for conver-

sion.

REASON FOR DENYING THE WRIT

I. THERE IS NO “FEDERAL LAW QUESTION” SUP-

PORTING THE WRIT

Rule 10 of the United States Supreme Court provides

that a writ of certiorari will be granted “only when there

are special and important reasons therefore.” The only

Rule 10 criteria possibly applicable to this case is stated

in 10.1(c) favoring writs where a “state court ... has

decided an important question of federal law... .” The

California Supreme Court decision below did net decide

a question of federal law.

In denying Moore’s asserted common law tort of con-

version, the California Supreme Court held:

“There are three reasons why it is inappropriate to

impose liability for conversion based upon the alle-

gations of Moore’s complaint. First, a fair balanc-

ing of the relevant policy considerations counsels

against extending the tort. Second, problems in this

area are better suited to legislative resolution. Third,

the tort of conversion is not necessary to protect pa-

tient’s rights. For these reasons, we conclude that

the use of excised human cells in medical research

does not amount to a conversion.” (51 Cal.3d at 142-

143.)

5

That analysis was predicated upon the Court’s conclusion

that, ‘““Moore’s novel claim to own the biological materials

at issue in this case is problematic, at best.” (Jbid.)

That conclusion was based upon the Court’s analysis of

existing California law to determine if Moore “retained

an ownership interest” in the cells following their surgi-

cal removal. The Court concluded:

“(There are several reasons to doubt that he did

retain any such interest. First, no reported judicial

decision supports Moore’s claim, either directly or by

close analogy. Second, California statutory law dras-

tically limits any continuing interest of a patient in

excised cells. Third, the subject matters of the Re-

gents’ patent—the patented cell line and the prod-

ucts derived from it—cannot be Moore’s property.”

(Ibid., at 137.)

Thus, the California Supreme Court decision below rests

upon its refusal to extend the principles of private prop-

erty ownership to therapeutically excised cells for pur-

poses of bringing a state law tort action of conversion.

The central misconception of Moore’s petition to this

Court is that the Constitutional mandate of “just com-

pensation” requires, or even allows, federal courts to

create a federal common law governing the ownership of

therapeutically excised cells. On the contrary, such a

property right must already exist under the appropriate

body of law before federai “takings” analysis can come

into play.

“The first step in both due process and takings aral-

ysis is to determine whether there is a property right

that is protected by the Constitution ”’ (Peterson v.

U.S. Department of Interior, 899 F.2d 799, 807 (9th

Cir. 1990), cert. den., 111 S.Ct. 567 (1990).

Without this first step, there is no “taking within the

meaning of the Fifth Amendment.” (Bowen v. Agencies

Opp. to Soc. Sec. Entrap., 477 U.S. 41, 55-56 (1986).

6

“Nor as a general proposition is the United States,

as opposed to the several States, possessed of residual

authority that enables it to define ‘property’ in the

first instance.” (Pruneyard Shopping Center v.

Robins, 447 U.S. 74, 84 (1980).

Using the takings clause to federalize property law

would contravene its constitutional context. As this Court

has repeatedly held, “the property rights protected by the

Takings Clause are those property rights created by state

law.” (Furey v. City of Sacramento, 592 F.Supp. 463,

469 (E.D. Cal. 1984) affd., 780 F.2d 1448 (9th Cir.

1986).

Creating property interests is not a federal constitu-

tional function:

“<'py]roperty interests... are not created by the

Constitution. Rather, they are created and their di-

mensions are defined by existing rules or understand-

ings that stem from an independent source such as

state law....’” (Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1001 (1984); Webb’s Fabulous Pharma-

cies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) ).

The California Surpeme Court decision in this case

does not raise an “important question of federal law” for

this Court to review and decide; rather, the decision below

is premised solely upon state ~ mon law of tort and

property.

II. THE DECISION BELOW DOES NOT CONSTITUTE

A TAKING REQUIRING JUST COMPENSATION

UNDER THE FIFTH AND FOURTEENTH AMEND-

MENTS

Moore’s petition attempts to justify its appeal to this

Court by arguing the decision below exceeds the consti-

tutional constraints on state courts:

1. First, referring to dictum in Demorest v. City Bank

Farmers T. Co., 321 U.S. 36, 42 (1944) (a due process

case decided on a non-federal ground), Moore notes “.. .

7

it is the providence of this Court to inquire whether the

decision of the state court rests upon a fair or substan-

tial basis,” to suggest the decision below is an arbitrary

change of state property law.

2. Second, referring to Webb’s Fabulous Pharmacies,

Inc. v. Beckwith, supra, 449 U.S. 155, 164, Moore offers

a torturous reading of the doctrine that a sovereign,

“. .. , by ipse dixit, may not transform private prop-

erty into public property without compensation, . . .” to

suggest the decision below is an “arbitrary use of gov-

ernment power.” (Jbid.)

However, the authorities cited in both arguments, are

premised upon the existence of a property interest that is

either arbitrarily changed or taken by the state. And, as

already noted, the California Supreme Court decision is

premised upon an analysis that a property ownership in-

terest does not exist under California state law.

In Demorest, this court found a substantial non-federal

basis existed for a new rule affecting trust beneficiaries,

despite a difference of opinion in New York’s Court of

Appeals as to the effect of earlier cases on the subject.

Emphasizing the novelty of the property claim facing

the state court, this Court observed:

“In thus rejecting appellants’ version of its previous

decisions the Court of Appeals disposed of their cases

on the ground that appellants have never possessed

under New York law such a property right as they

claim has been taken from them. If this is the case,

appellants have no question for us under the Due

Process Clause.” (Demorest, supra, 321 U.S. at 42.)

Similarly, the California Supreme Court conclusion that

petitioner Moore lacked sufficient indicia of property

ownership for an expanded application of common law

conversion presents, “no question” under the Due Process

Clause. In both its examination of Moore’s interest un-

der existing California law, and in its conclusion to

defer to the legislature any decision to expand the strict

8

liability of conversion, the California Supreme Court did

not evade a constitutional issue and fair support exists

for the state’s non-federal ground. Accordingly, as in

Demorest, “. . . this Court {[should] not inquire whether

the rule applied by the state court is right or wrong, or

substitute its own view of what should be deemed the

better rule, for that of the state court.” (Jbid.)

In Webb’s Fabulous Pharmacies, this Court found an

unconstitutional taking when the Florida county court

withheld the interest accruing on a private interpleader

fund deposited in the county court, where such deposit

is required and a separate clerk’s fee for “services ren-

dered” based upon the amount deposited is also charged.

Thus, the county’s services were compensated and the in-

terest represented an additional unrelated sum. How-

ever, that case lends no support to petitioner Moore. Un-

like the novel and unestablished claim presented in

Moore, the creditors in Webb’s had “. . . a state-created

property right to their respective portions of the fund.”

(Webb’s, supra, 449 U.S. at 161.) That is the very prem-

ise lacking in Moore.

The California Supreme Court conclusion that existing

state law does not provide a patient adequate ownership

interest over therapeutically removed human cells to

mandate a conversion cause of action, and the Court’s

deference to the legislature and refusal to extend the

strict liability theory of conversion, does not constitute

an arbitrary change or use of state law, or a taking

requiring just compensation under the Fifth and Four-

teenth Amendments.

II. PETITIONER’S TAKING CLAIM WAS WAIVED

Moore’s petition (p. 13, fn. 14) argues at length that

his taking claim was not ripe until his conversion cause

of action was denied by the California Supreme Court

decision below. However, the Fifth Amendment provides

in pertinent part that private property shall not be “.. .

#

si el

9

taken for public use, without just compensation.” It

“.. . does not prohibit the taking of private property,

but instead places a condition on the exercise of that

power.” (First Lutheran Church v. Los Angeles County

482 U.S. 304, 314 (1987).) A claim for the “wrongful”

taking of conversion is not identical to a “just compensa-

tion” claim for a proper exercise of public power. Un-

like tort claims, which seek damages for the breach of

a public duty, the aim of the takings doctrine is “not to

limit the governmental interference with property rights

per se, but rather to secure compensation in the event of

otherwise proper interference amounting to a taking.”

(Id. at p. 315, emphasis in original. )

As Moore’s petition notes, “|njo constitutional viola-

tion occurs until just compensation has been denied.”

(Williamson Planning Comm’n v. Hamilton Bank, 473

U.S. 172, 194 n.13 (1985).) However, where a Califor-

nia plaintiff has failed to follow the available state pro-

cedure for obtaining compensation, the claim must be

dismissed as waived. (See Cassettari v. Nevada County,

Cal., 824 F.2d 735, 737-738 (9th Cir. 1987).) If Moore

genuinely believed the University’s conduct constituted a

taking requiring just compensation, he fails to explain

why no claim was made for inverse condemnation.’ In-

stead, petitioner Moore sought to expand the common

law tort of conversion. There are notable distinctions

both as to the scope of possible defendants and the ex-

tent of possible damage claims between a claim of con-

version and one for inverse condemnation; distinctions

that were the subject of his election in seeking conver-

sion and not condemnation. Obviously, Moore was more

interested in claiming the results of the University’s re-

1 “Where property has been taken or damage for public use with-

out a condemnation proceeding, the owner may bring an action to

obtain the just compensation which he is guaranteed by the state

constitution .... An inverse condemnation action is an eminent

domain proceeding initiated by the property owner rather than the

condemnor.” (29 Cal.Jur.3d, Eminent Domain, § 302, pp. 450-451.)

10

search (by claiming a wrongful taking) than in just

compensation for the surgicaily removed diseased tissue.

That was the election he made.

Furthermore, as Moore’s petition admits, his taking

claim was not asserted until the California Supreme

Court rendered its decision. He did not address the issue

in the trial court, notwithstanding the University’s as-

sertion he had no property interest. He did not address

the issue in the California Appellate Cuurt, notwith-

standing the trial court’s dismissal of his complaint.

Clearly, it was not a matter of his interest until an un-

favorable final decision below. He admits as much by

suggesting it was “unripe” at any earlier stage. But he

is in error, having failed to follow the state procedure

for obtaining just compensation, he made an irrevocable

election waiving his takings claim.

CONCLUSION

Upon the reasons stated above, respondent The Re-

gents of the University of California respectfully submit

there is no important question of federal law raised in

the California Supreme Court decision denying Moore’s

claim for a state common law conversion cause of action.

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

JAMES E. HOLST

JOHN F.. LUNDBERG

GEORGE L. MARCHAND

ALLEN B. WAGNER *

University of California

300 Lakeside Drive, 7th Floor

Oakland, California 94612-3565

(415) 987-9800

Counsel for Respondent

Regents of the

University of California

March 1, 1991 * Counsel of Record