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Outrageous fortune: selling other people's cells.

Outrageous Fortune: Selling Other People's Cells

All men are mortal. John Moore is a man. Therefore John Moore is mortal. This is uncontroversial. However, a cell line developed from John Moore's body, the "Mo" cell line, is described as immortal, and the lawsuit regarding John Moore's right to share in the profits produced by the cell line, although not immortal, may seem to be. A lower court previously rejected any claim Moore might have in a cell line developed from his diseased spleen, and an appeals court reversed this decision, holding that physicians and researchers could be held liable for conversion for using a patient's cells without permission. [1] The Supreme Court of California has now partially reversed the appeals court ruling, and the litigation is likely to live on.

The Case of John Moore

In 1976 John Moore's physician, David W. Golde, recommended that Moore's spleen be removed as a treatment for hairy-cell leukemia. After surgeons removed the spleen, Golde and others took cells from it and cultured them into an "immortal" cell line that produced a variety of useful products. In 1984 this cell line was patented, and Golde and others will reap substantial profits from it. Moore alleges that he was never informed of any of this and never agreed to it. Assuming this is true, the questions presented are: (1) can Moore sue Golde for failure to disclose his pecuniary interest in producing a cell line from Moore's spleen as a breach of his fiduciary duty to the patient; and (2) can Moore sue the research companies and others who have used the cell line for a share in their profits from it? In a five-to-two opinion, Justice Panelli, writing for the California Supreme Court, answered the first question affirmatively, but refused to grant the patient any ownership interest in his cells after they had been removed from his body. [2]

The Doctor-Patient Relationship

and Conflicts of Interests

The California Supreme Court has been the nation's leader in the area of informed consent, deciding in 1972 that a physician had a "fiduciary" responsibility to the patient to disclose the nature of the proposed treatment, its alternatives, risks, and potential problems of recuperation. [3] Past cases have all concentrated on the patient's choice and enhancing that choice by providing "material" information to the patient that might cause him or her to accept or reject the proposed treatment. The California Supreme Court has now ruled that the doctrine of informed consent requires a full financial disclosure because failure to make a financial disclosure is a violation of trust that undermines patient autonomy.

The goal is to protect patients from physicians whose judgment might be influenced by profit, and who might thus be in a conflict of interest position with their own patients. In the Court's words:

a physician who treats a patient in whom he also has a research interest has potentially conflicting loyalties.... The possibility that an interest extraneous to the patient's health has affected the physician's judgment is something a reasonable patient would want to know in deciding whether to consent to a proposed course of treatment. It is material to the patient's decision and, thus, a prerequisite to informed consent.

This is not to say that physician-researchers are evil-minded, or intentionally advocate procedures not in their patients' best interests, only that "consciously or unconsciously...the physician's extraneous motivation may affect his judgment."

Selling Cells

The remaining defendants, the Regents of the University of California, a researcher, and two corporations, are not physicians and thus have no independent fiduciary duty to the patient. The appeals court had found them potentially liable for conversion of Moore's property interest in his cells. The California Supreme Court, however, reversed this holding. It gave three reasons: no case had ever decided that a patient had a continuing property interest in excised cells; California statutes drastically limit the patient's interest in excised cells; and the patented cell line is "both factually and legally distinct from the cells taken from Moore's body."

Probably because none of these reasons is terribly persuasive the court went on at length to discuss the public policy reasons that it believed supported the denial of Moore's property claim. Again there were three: a fair balancing of interests counsels against recognizing the claim; the legislature should solve this problem; and Moore's rights can be protected by a suit against the physician. Of these three, the centerpiece of the opinion is the first. The court essentially concluded that the biotechnology industry is both wonderful and fragile. Since it is wonderful, we must all do our part to foster it; and since it is fragile, we must protect it from harm.

Research on human cells plays a critical role in medical research.... Products developed through biotechnology that have already been approved for marketing in this country include treatments and tests for leukemia, cancer, diabetes, dwarfism, hepatitis-B, kidney transplant rejection, emphysema, osteoporosis, ulcers, anemia, infertility, and gynecological tumors, to name but a few.... The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials.

In the court's flowery words, conversion (a strict liability tort that does not depend upon knowledge or motive) would threaten "to destroy the economic incentive to conduct important medical research....with every cell sample a researcher would purchase a ticket in the litigation lottery." On the other hand, denying Moore's property claim "will only make it more difficult for Moore to recover a highly theoretical windfall."

Justice Arabian concurred because he thought a market in human flesh would "commingle the sacred with the profane." On the other hand, he favored a legislatively created licensing scheme which would establish a fixed rate of profit sharing between researcher and subject. [4] He seemed genuinely to regret the lack of compensation to Moore, but concluded his opinion with a quotation from Hamlet, noting that "courts cannot and should not fashion a remedy for every 'heartache and the thousand natural shocks that flesh is heir to.'"

The Dissenting Opinions

Justice Broussard argued that the majority confused the right to control one's body parts after removal with the right to control them prior to removal. More important Broussard also noted persuasively that the majority's conclusion cannot rest on the proposition that there is no ownership or right of possession in removed body parts, because if another drug company or medical center now stole the cells from UCLA, "there would be no question but that cause of action for conversion would properly lie against the thief." He here captures the irony of the conclusion that everyone except the patient can own the patient's removed cells and treat them as property. Finally, he argued that unlike traditional informed consent cases where the plaintiff must prove that a reasonable person would not have consented to the procedure if the required material information had been provided, in an economic damages case like this, the plaintiff should only have to prove that "the doctor's wrongful failure to disclose information proximately caused the plaintiff some type of compensable damage."

Justice Mosk's dissent made it painfully clear that the majority has virtually no rational basis for its opinion other than its view that upholding Moore's claim would be bad for business. For example, the majority relied on statutes that permit the "scientific" use of body parts after donation or autopsy. But Mosk argued that this does not extend to commerce. In his words, "the distinction I between a truly scientific use and the blatant commercial exploitation of Moore's tissue." Whatever the statutes on the disposition of human tissues, Mosk concludes, "at the time of its excision he [Moore] had at least the right to do with his own tissue whatever the defendants did with it."

But the core of the dissent, like the core of the opinion, is the public policy discussion of the nature and future of the biotechnology industry. The majority saw it as a congenial enterprise in which cell lines are freely shared for the good of scientific progress. Mosk is not so kind, noting that the "rush to patent for exclusive use has been rampant," and with it has come "a drastic reduction in the formerly free access of researchers to new cell lines and their products."

The biotechnology and pharmaceutical companies have also "demanded and received exclusive rights in the scientist's discoveries, and frequently placed those discoveries under trade secret protection.... Secrecy as a normal business practice is also taking hold in university research laboratories." As for the burdens of upholding Moore's strict liability conversion claim, Mosk is not persuaded. Researchers usually keep records in any event, and by such record keeping any researcher "can be assured that the source of the material has consented to his proposed use of it, and hence that such is not a conversion." Mosk argued that public policy actually requires accepting Moore's claim for two reasons: (1) the deep respect we accord to the human body "as the physical and temporal expression of the unique human persona" and (2) principles of equity and fairness.

According to Mosk our traditional respect for the individual's body has been demonstrated by laws against torture and slavery, and these laws are directly implicated "whenever scientists or industrialists claim...the right to appropriate and exploit a patient's tissue for their sole economic benefit--the right, in other words, to freely mine or harvest valuable physical properties of the patient's body." The second policy concern is simple fairness: "our society values fundamental fairness in dealings between its members, and condemns the unjust enrichment of any member at the expense of another." Justice Mosk terms such unjust enrichment both "inequitable and immoral," quoting Thomas Murray as saying, "If biotechnologists fail to make provision for a just sharing of profits with the person whose gift made it possible, the public's sense of justice will be offended and no one will be the winner."

The precise contours of the informed consent holding are unclear, but Mosk argued that it is a "paper tiger" because few patients would actually refuse consent solely on economic grounds. In his view such a course of action "would only give patients a veto over their own exploitation," whereas a recognition of their continuing property interest in their own tissue "would give patients an affirmative right of participation" in the role of equal partners in commercial biotechnology research.

Finally, in an unusual conclusion, Justice Mosk disassociated himself completely from the "amateur biology lecture that the majority imposes on us throughout their opinion." He did this because there is no evidence at all about molecular biology in the record before the court (all the scientific material was in an appendix in the Golde brief), the material is irrelevant to the law, it is written in technological jargon, and "no member of this court is trained as a molecular biologist or even as a physician." Thus, he concluded, it is not surprising that "some of their explanations appear either mistaken, confused, or incomplete."

Science, Commerce, and Public


There are many ways to look at this case. As is clear from its text, the majority simply accepts the "Chicken Little" argument that if John Moore's property interests in his cells is upheld, the biotechnology industry's sky will fall and medical progress will suffer a major setback. In this regard the justices seem to have been blinded by science, and are unable or unwilling to distinguish it from commerce. They are blinded in another way as well, as Justice Mosk notes, when they adopt complex molecular biology terms which they proceed to use in ways that are at the very least unclear, and can be termed either incorrect or irrelevant. Since the court will not permit these issues even to be tried in court, there will be no occasion for any fair presentation of the science actually involved in creating and maintaining cell lines. Even a "law and economics" approach would have required giving some value to Moore's cells, and would have insisted that it be taken into account as a cost of doing business in the biotechnology arena.

It is not necessarily wrong for courts to base their ultimate conclusions on their interpretation of public policy. On the other hand, courts have an obligation to analyze and struggle with novel questions of law as part of our common law tradition. It is thus very disappointing to see the majority simply ignore the insightful and powerful analysis of the appeals court on the issue of conversion. Instead of searching for possible analogies in the law that might illuminate the conflict, the court dismisses the conversion claim summarily with the statement that Moore is invoking "a tort theory originally used to determine whether the loser or the finder of a horse had the better title." This, and the fact that this is a case of first impression, seemed sufficient to the court to justify the conclusion that conversion should not apply.

This approach should be embarrassing to the court. Perhaps conversion is not the proper remedy; but the court makes no attempt to demonstrate why. Suppose Moore had a mare that was sick, and perhaps dying, and he asked his neighbor to take care of the horse so that it would not infect other animals on his farm. And suppose that the horse did not die, indeed, not only got better, but also had a prize colt. Instead of telling Moore about the recovery and the prize colt, assume the neighbor tells him that his mare had died, and then sells both the mare and the colt for $100,000. Should Moore be able to recover the $100,000 (less the cost of care) from the neighbor if he finds out that he has been lied to? The majority would probably say that because horss are involved, Moore should be able to recover; but if cells were involved, he should not. But without giving us a reason to distinguish cells from horses, we are left with a very unsatisfactory opinion.

Even though most of the commentators on this case have concentrated on the conversion/property aspects of it, and have correctly argued that it is a major victory for the biotechnology industry, the most important aspect of the opinion deals with the expansion of the informed consent requirements based on the fiduciary nature of the doctor-patient relationship. The court has no problem with a biotechnology industry that breathlessly pursues profits: this is the way American business operates. But physicians are another matter altogether; when physicians are in a position to personally profit from their own treatment recommendations, they must disclose this financial or research aspect to their patient as part of informed consent. Of course this applies to Dr. Golde and John Moore. But it would also apply to physicians who recommend a procedure or treatment that will pay them more than an alternative treatment or procedure. Incentives need not be just financial: any "interest extraneous to the patient's health" that might affect the recommendation must be disclosed. Should informed consent now concentrate as much on the financial motives of the physician as on the nature of the proposed procedure? Should the physician's tax returns and percentage of income derived from the recommended procedure be part of informed consent?

The expansion of the informed consent doctrine in this manner, however, requires much more analysis than the court presents, and will undoubtedly be the subject for many cases in the future. When, for example, does the physician's personal interest in the treatment recommendation become so overwhelming as to disqualify the physician altogether as a potential advisor to the patient, and under what circumstances might a second, neutral opinion be required? In the organ and tissue business we already have two examples where ethical standards, although not law, counsel that even the appearance of a conflict of interest should disqualify the physician from making certain decisions. The first is that transplant surgeons should not be involved in the determination of death of a potential donor; and the second is that physicians who perform abortions should not get any rewards, financial or academic, form fetal tissue research.

Legislative Solutions

To paraphrase Leona Helmsley, the majority opinion concludes that "only the little people can't sell cells." This result will seem unfair to almost everyone; legislation seems both reasonable and likely. What should such legislation contain? If we are to permit commerce in body tissues, it seems unconscionable not to permit the individuals from whom these tissues are obtained to participate in the commerce. My own preference remains to prohibit the purchase and sale of human tissue and cells for any purpose by anyone. [5] Alternatively, fairness and respect for persons require that we not only inform patients of the potential commercial applications of their organs, tissues, and cells, but also that we give them some opportunity to obtain reasonably compensation for this use. Since most tissues removed will not turn out to be valuable, and since paying even a small price for all of them may simply be a waste of money, perhaps the most reasonable thing to do is to provide that compensation shall be paid based on a standard fee schedule (e.g., 1 percent of gross sales), payment to be made either to the individual or to a nonprofit celel-line storage facility, the election to be made by the patient at the time of consent to the removal, and ratified at the time commercial value is determined.

This or some similar scheme will have to be adopted if we want to present physicians and researchers from being seen as simply opportunistic profit seekers. The law cannot remedy every "heartache and the thousand natural shocks that flesh is heir to," but it can serve quite adequately to craft reasonable commercial agreements that protect against "the slights and arrows of outrageous fortune" and are fair to all parties.


[1] The appeals court decision, which concentrated on the conversion question, was discussed in George J. Annas, "Whose Waste Is It Anyway? The Case of John Moore." Hastings Center Report 18:5 (1988), 37-39.

[2] Moore v. Regents of the University of California, 793 P.2d 479, 271 (Cal. Rptr. 146 (1990).

[3] Cobbs v. Grant, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

[4] Relying on Mary Taylor Danforth's recommendations in "Cells, Sales, and Royalties: The Patient's Right to a Portion of the Profits," Yale Law and Policy Review 6 (1988), 179-202.

[5] See Annas, "Whose Waste Is It Anyway?"

George J. Annas is Utley Professor of Health Law, and director of the Law, Medicine and Ethics Program, Boston University Schools of Medicine and Public Health.
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Title Annotation:analysis of the John Moore v. Regents of the University of California case
Author:Annas, George J.
Publication:The Hastings Center Report
Article Type:column
Date:Nov 1, 1990
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