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Guide to Moore v. Regents of University of California, 51 Cal. 3d 120, 793 P.2d 479, 271 Cal. Rptr. 146 (Cal. 1990)

This case is one of the first brought on the value of human research materials. The court and the attorneys were struggling to make sense of a unique question and the court's opinion reflects this.

What is the standard of review to a demurrer?

 What does the court assume about the complaint?

What does the court not assume?

Who is the plaintiff?

Who are the defendants and what do they do?

When does your time line start?

What did the defendants know at this point about cell lines?

What did they recommend?

What were they going to do with his spleen after removing it?

Did they inform him or ask his permission?

Would this have mattered if they had not made any money and had not done anything else to the plaintiff?

This was the standard for research when it involved spare parts.  I had a collection of placentas myself.

What did they do next that could be a technical battery?

Getting bone marrow is really nasty.  Imagine a big needle with teeth cutting through your bones.

Why were they doing this?

What was the product?

Who got the patent?

What financial goodies did Golde get?

What causes of action did plaintiff plead? (Contrary to what you learn on exams, shotgunning is not the way to sell your case to the judge.)

What killed plaintiff procedurally with the trial court?

Moral of this story?  Try to lead with something you can win!

What were the 3 principles they began with?

What conclusions did these lead to?

What are some of these economic factors?

What was the economic conflict in fee for service medicine?

What is the economic conflict in managed care?

What is the conflict in DRGs?

Did the court really mean?

How could this have been plead as a malpractice case?

What existing law did the court point to about physician's economic interests?

What must the doc do if he is an owner of a lab and wants to send the patient to it for a test?

What does a patient have to be told about medical experiments?

What are the potential conflicts for a physician who does research on patients he also treats?

When does a research use of the patient's tissues not raise a conflict of interests?

Should researchers have a say in patient treatment decisions?

That was the case for most of us organ snatchers - we had no input at all into treatment decisions.

What could be the downside of telling the patients?

Notice the obligatory therapeutic exception language:

How is this different for research situations?  (I.e., notice how they explain why it would not apply in these cases.)

What does the court rule that the physician must tell about research and other interests?

How does the court limit their use of the term fiduciary?

This comes back in Arato

Why does the physician have to disclose these personal interests?

1. Dr. Golde

What are the facts that support plaintiff's breach of fiduciary duty causation against Golde?

What about the postoperative taking of samples?

What did Moore admit that hurt his case on the post-op stuff?

Really stupid pleading.  It conflicts with the claim that they said it was for his own good.

When did the court say that Golde's representations about the financial interests become false?  Remember the timeline!

What did the trial court say was the standard Moore had to make to claim a breach of duty on the spleenectomy?

Why did the SC reject this?

This is the "sole purpose doctrine" it is very important in fraud cases where an illegal payment also have legitimate purposes.

2. The Remaining Defendants

What is the problem of the remaining defendants?

How can we bring them in?  When did they enter the picture?  What if we can show they are telling Golde to not clue in the patient because they do not want to lose the cells?  What if they are bribing Golde to not tell?  Would this be a crime?  A conspiracy?

Egregious boilerplate in N12 - pisses off the courts

B. Conversion

What is conversion?

How does conversion apply to Moore?

What does he claim as compensation?

HeLa -  All HeLa cells are derived from Henrietta Lacks, a 31 year old woman from Baltimore, USA, who died of cervical cancer in 1951.

What does the court claim would happen if he were allowed to claim conversion?

Remember that conversion is a strict liability tort in many jurisdictions

What was the origin of conversion?

1. Moore's Claim Under Existing Law

What is the key starting point for proving conversion?

What defeats his claim of title in his cells?

Did he expect to take them home in a jar?

What are the statutory problems?

The anatomical gift act bans selling them - why?

What is the blood law really trying to do?  Make sure blood is a service rather than a product.

What do you do with still births?

What about dead bodies?  Can the relatives sell you to science?

What about the funeral home case where they were throwing the bodies out in the woods.

What did the plaintiff point to as precedent?

Were these right to publicity cases really property cases?

What was the bedpan rule?

Why was the terms of the patent important?

Useless Scientific BS in the notes

Note the Bouvia case

How are excised body parts regulated? - Medical waste!

What did the appeals court say about rights in old tissue?

How are excised body parts regulated? - Medical waste!

How is the cell line different from Moore's spleen?

2. Should Conversion Liability Be Extended?

Why did the court finally reject conversion?

What did OTA say about the problem?

Why is conversion such a stinker?

What is the look back problem?  What about existing lines?

How did the concurrence by Arabian see the plaintiff's claim?

How does he characterize Mosk's reasons for creating this property right?

What he see as the proper solution?

Is he without remedy?

DISSENTBY: BROUSSARD (In Part); MOSK

What did the dissent by Broussard see as the unique facts of this case?

How did this dissent deal with the problem of maintaining an interest in body parts?

Why would the dissent allow plaintiff to keep the corporate defendants in?

How does the dissent say plaintiff can recover under a fiduciary duty theory even if he cannot say he would have not let them take out his spleen?

Where do you get the big money?

Why did the dissent think there was a conversion?

How does the dissent use the Anatomical Gift Act to support its case?

What is the problem with the anatomical gift act?

You cannot get any thing of value for the gift. That leaves plaintiff sol.

How does the dissent claim you could have a conversion without own your body parts?

Why does the dissent assume that a property right will not cause any problems for existing cell lines?

What would limit the plaintiff's damages as to the cell line?

Why not just require consent?

How does the dissent deal with Anatomical Gift Act's ban on payment?

 

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