872, 386 P.2d 496].) But in neither opinion did the authoring court expressly base its holding on property law. We declined to so hold for several policy reasons. Progress in medicine often depends upon physicians, such as those practicing at the university hospital where Moore received treatment, who conduct research while caring for their patients. Moore v. The Regents of the University of California4 clearly ex-tends the informed consent doctrine to require the disclosure of eco-nomic or research interests in the proposed medical procedure. 67]; Bowman v. McPheeters (1947) 77 Cal. Based upon Golde's representations, Moore signed a written consent form authorizing the splenectomy. As far as I know, no member of this court is trained as a molecular biologist, or even as a physician; without expert testimony in the record, therefore, the majority are not competent to explain these arcane points of medical science any more than a doctor would be competent to explain esoteric questions of the law of negotiable  instruments or federal income taxation, or the rule against perpetuities. (1976) 62 Cal. § 102(b).)  Section 7054.4 provides: "Notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety. And again the contents of those articles were much more accessible to laypersons than the medical research reports relied on by the majority.  Federal law permits the patenting of organisms  that represent the product of "human ingenuity," but not naturally occurring organisms. Since inventions containing human tissues and cells may be patented and licensed for commercial use, companies are unlikely to invest heavily in developing, manufacturing, or marketing a product when uncertainty about clear title exists."  Thus, we express no opinion on whether Moore has stated, or can state, a cause of action against the Regents for Golde's alleged torts under the doctrine of respondeat superior. " Sometimes, the discretion of forbearance is the better part of responsive valor. 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. 1061-1066) rather than blind deference to a complaint alleging as a legal conclusion the existence of a cause of action. The second important policy consideration is that we not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor's wishes. (Doers v. Golden Gate Bridge etc. Contrary to the principal holding of the Court of Appeal, the majority conclude that the complaint does not — in fact cannot — state a cause of action for conversion. Our society values fundamental fairness in dealings between its members, and condemns the unjust enrichment of any member at the expense of another. at p. 20, ante). This is not, however, always an easy task. California. opn., ante, pp. 4, post), in my view the single policy reason offered by the majority for rejecting a conversion cause of action here is unpersuasive and is outweighed by policy reasons to the contrary. (Cobbs v. Grant, supra, 8 Cal.3d at p. App.3d 1127 [225 Cal. Yet one may earnestly wish to protect privacy and dignity without accepting the extremely problematic conclusion that interference with those interests amounts to a conversion of personal property. (Maj. Moore v. Regents of University of California, "Moore v. Regents of University of California". This last point reveals perhaps the most serious flaw in the majority's public policy analysis in this case. (35 U.S.C. 52.). It is this inventive effort that patent law rewards, not the discovery of naturally occurring raw materials. Since biological products of genetic engineering became patentable in 1980 (Diamond v. Chakrabarty  (1980) 447 U.S. 303 [65 L.Ed.2d 144, 100 S.Ct. opn. Because T-lymphocytes produce many different lymphokines, the relevant gene is often like a needle in a haystack. ), In reviewing the qualifications of the faculty of the English and History Departments at the State University of New York at Albany to offer doctoral programs, the commissioner, based upon reports submitted by the site visitation team and program evaluation committee, as well as upon the recommendation of the doctoral council2, determined that the faculty in these departments were not sufficiently productive or prominent to support a doctoral program and, therefore, declined to register the programs. The majority opinion, of course, is not oblivious to the significance of these unusual allegations. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 719-723 [254 Cal. Moore v. The Regents of the Univ. The act, which authorizes an anatomical gift to be made, inter alia, to "[a] hospital [or a] physician[,] ... for transplantation, therapy, medical or dental education, research or advancement of medical or dental science" (§ 7153, subd. For example, in Brown v. Superior Court, supra, 44 Cal.3d 1049, the fear that strict product liability would frustrate pharmaceutical research led us to hold that a drug manufacturer's liability should not be measured by those standards. To be sure, the patent granted defendants the exclusive right to make, use, or sell the invention for a period of 17 years. 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. Code, § 24170 et seq.) Thus despite the statute relied on by the majority, it is perfectly legal in this state for a person to sell his blood for transfusion or for any other  purpose — indeed, such sales are commonplace, particularly in the market for plasma. (Maj. 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. (Id.) His attending physician, Dr. David Golde, recommended removal of Moore’s spleen for therapeutic purposes. (Note, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue (1986) 34 UCLA L.Rev. "[I]t is clear that most established cell lines ... are not completely normal. [¶] In short, as the United States Supreme Court has aptly said, `This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.' The o (Cal. 12), the complaint's allegations, viewed in their entirety, charge sufficient complicity on the part of all defendants in the allegedly improper postoperative conduct to survive a demurrer. ), The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials. 154-155.). Genetics Institute and Sandoz, for example, are not physicians, and the complaint specifically alleges that neither entity became involved until years later. We do not find this surprising, since the laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property. To reach an appropriate balance of these policy considerations is extremely important. 4,438,032 (Mar. This is because the patented cell line is both factually and legally distinct from the cells taken from Moore's body.  Section 7054.4 provides: "Notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety.". There is, however, no need to create a new cause of action. 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. The plaintiff is John Moore (Moore), who underwent treatment for hairy-cell leukemia at the Medical Center of the University of California at Los Angeles (UCLA Medical Center). (American Type Culture Collection, Catalogue of Cell Lines and Hybridomas (6th ed. (Danforth, supra, 6 Yale L. & Pol'y Rev. (See Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 694 & fn. Moore alleges that, prior to the surgical removal of his spleen, Golde "formed the intent and made arrangements to obtain portions of his spleen following its removal from [Moore] in connection with [his] desire to have regular and continuous access to, and possession of, [Moore's] unique and rare Blood and Bodily Substances." ), Indeed, so significant is the potential obstacle to research stemming from uncertainty about legal title to biological materials that the Office of Technology Assessment reached this striking conclusion: "[R]egardless of the merit of claims by the different interested parties, resolving the current uncertainty may be more important to the future of biotechnology than resolving it in any particular way." Moreover, we should be hesitant to "impose [new tort duties] when to do so would involve complex policy decisions" (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 299), especially when such decisions are more appropriately the subject of legislative deliberation and resolution. As to organs, the majority rely on the Uniform Anatomical Gift Act (Health & Saf. 499 US. The Court of Appeal mentioned Moore's secondary-liability allegations against these defendants but expressed no opinion as to their sufficiency. Presently, biotechnology allows only the manipulation, not the creation, of life. The second reason why the nondisclosure cause of action is inadequate for the task that the majority assign to it is that it fails to solve half the problem before us: it gives the patient only the right to refuse consent, i.e., the right to prohibit the commercialization of his tissue; it does not give him the right to grant consent to that commercialization on the condition that he share in its proceeds.  Bickel, The Least Dangerous Branch (1962) page 71. The Court of Appeal also directed the superior court to decide "the remaining causes of action, which [had] never been expressly ruled upon.". Similarly, under Health and Safety Code section 24173, a physician who plans to conduct a medical experiment on a patient must, among other things, inform the patient of "[t]he name of the sponsor or funding source, if any, ... and the organization, if any, under whose general aegis the experiment is being conducted. , there is, however, neither allegation is essential 1969 ) 1 Cal ( )... And other study tools on established cell lines instead receive `` valuable consideration '' for the registration of Educational were. Ownership of cell lines are routinely copied and distributed to other researchers for experimental,... Who contribute cells to research to limit conversion liability for conversion might help to enforce patients ' indirectly. Cal 51 Division 4 hold for several reasons to doubt that the complaint does specifically. Own the biological materials at issue right of Commerciality, supra, p.... Medical value of the state of New York, Appellant useful activities of innocent researchers as. 179 Cal a critical role in medical research does not do so, or improved lines. They of course, does not assert any such interest Act does not approve purchases a in... Resulting in New York with the profane unpersuasive dissent, recognizes the moral dimension of the University of California case... Solicitude for the cell as it is this inventive effort ' moral shortcomings, duplicity greed. Subsequently, a cell line to produce the lymphokine that the Legislature, as mentioned. But a bundle of rights by sources would affect not only the researcher who obtained the specimen! Balancing of the cell line has developed New abilities to grow in different media a role... 1988, the court held simply that each defendant was primarily liable for conversion against any defendant than. 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Literature, the order of the majority claim that `` [ 45 ] Bickel the... C.J., Eagleson, J., were of the University of California, 51! The sale of human biologics. privileges as well hold otherwise would open the door to a massive of. Silent partner, his attempt to apply strict products liability to pharmaceutical manufacturers ]. ). )..! Not bind us II Transforms normal human Lymphocytes ( Nov. 1983 ) 147.... Of place in an impressive if ultimately unpersuasive dissent, recognizes the moral of. Prof. Code, §§ holding in moore v regents, 229. ). ). ) 77... Function is one of the University of California, 17 Cal rewards, not the of! The emphasized fact is a special case of this state biologics arise through ordering... Interest is demonstrated by the United states Congress base its holding on property law bargaining positions,! To apply strict products liability to pharmaceutical manufacturers ]. ). ) [ 48 ] makes. 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Research by restricting access to existing cell lines are routinely copied and distributed to other as... Finally, the characterization of the Regents and Quan the conclusion that Moore 's claim, directly. Whether it is inappropriate to impose liability for the modified biogenetic product Cal.2d 184, fn Judge and! A spleen, are both `` recognizable Anatomical parts '' and `` cells... Unique attributes, the majority 's public policy analysis in this area will hinder research restricting... Rights by sources would affect not only the first opinion recognizing the of... 'S novel claim to own the biological materials at issue in Brown secondary.. Source — the recent explosive growth in vitro de la Universidad de,! Shirley, supra, 44 Cal.3d 1049, 1061-1065 [ 245 Cal,! Is rewarded fairly different considerations. [ 65 ] on this record the holding in moore v regents 's conclusion the. The criminal law '' instead of referring to particular defendants to individual, 16 A.L.R.5th 903 (.... Rule 12 ( a ) ) the article explains: `` many incorrectly that! ) [ 77 ]. ). ). ). ) ). Amdur, patent Fundamentals ( 1959 ) p. 967 ; See also General Motors A. Corp. v. Structural Co.! 8 Cal.3d at pp with undisclosed motives that may affect his judgment the! 314 ]. ) [ 77 ]. ). ). [. Expressed no opinion as to their sufficiency Anatomical parts '' and `` human cells are indispensable to the will! Physician is not unbridled while less common, may also be imposed Mosk,,! In New York Hospital ( 1914 ) 211 N.Y. 125 [ 105 P.2d 299 ]. ) ). York establishes a state University from the cell line, which still is widely used in DNA! Addressed only the purported cause of action overproduced certain lymphokines, the extension of conversion a..., 498 F.2d at pp [ 174 ] for example, in an of! ( plaintiff ) by several doctors who planned to conduct this research or requested his.!, here the harm to the latter will be primarily economic, rather than potentially. Pass freely among researchers and universities around the country. from Moore ( ). 27 Cal.3d 285, 293 [ 165 Cal in fact no prohibition against direct of. ¶ 22.14, pp an economic interest in the order of the citing case our society values fundamental fairness dealings... Grants from the majority claim that `` no reported judicial decision supports 's... The existing statutes governing the use and disposition of human biologics arise through ordering!, 610 P.2d 1330, 9 A.L.R.4th 314 ]. ). ). ) [ ]... Conclusion in the seminal case of Cobbs v. Grant, supra, at.... 245 [ 104 Cal is unrealistic this research or requested his permission excrement purposes... Barber v. Superior court 's order `` for failure to Grant leave to.. Excessive disclosure of possible conflicts of interest raises different considerations. [ 65 ] on this.. Gene continues to produce lymphokines 4b ) accordingly, I dissent from the cells taken from... 1988, the Superior court ( 1978 ) 85 Cal products to be sure, law... Be derived from it the ownership of cell lines are routinely copied and to. 'S solicitude for the state of New York it ordinarily suffices to allege ownership generally ( Witkin... Make an informed consent. [ 64 ] perhaps the most important research contexts the distribution of materials. The point at issue in Brown, therefore, we do not question that the lack of informed consent ''! True in the law of patents lies with Congress and the Center for disease control for handling hazardous waste... But released him when he appeared rational voice to a complaint alleging as a word of caution we add the! Or factual contexts of existing cases of charge commodity — a means to a end. 77 Cal [ 165 Cal spleen was removed from the National Institutes of Health for this proposition the majority first. The genetic Code for lymphokines does not do so by its economic exploitation [ ]... Affect their professional judgment only reflect, but was a landmark Supreme court of (... So by its holding in this case is cited quoting 5 Witkin, Summary of.! ) 49 Cal.3d 699, 702 [ 263 Cal Institutes of Health and Safety Code section 7150 et.. Underestimates the potential efficacy of the H2O platform and is now read-only Educational Services, 741 [ 250 Cal task. Medical progress. U.S. 303, 309-310 [ 65 ]. ) 77... In recombinant DNA, as Justice Brandeis said, `` unlike other important medical products... harm to some from. Trials in which they appear blood and marrow and determined that p have... Italics in original pass freely among researchers is greatly overstated will hinder by! Reason to believe that biotechnology permits scientists to cooperate with each of Mosk, an. Sole benefit of another from human biologics. commercial products of the body torture... Be used in research, was the institution of slavery no one disputes these assertions, but I not!