Federal Courts Exam No. _______

Professor Brant Spring 1997

Final Examination

GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer sheet.

DIRECTIONS

1. This examination is "open universe." You may use any supplemental materials you wish. There are, however, two caveats:

A. If you quote directly from any supplemental source, you must cite your source.

B. You may not discuss this examination with any other person, either while you are taking it or after you have handed it in. This prohibition will remain in effect until the end of the examination period, i.e. May 16, 1997.

2. Five hours will be allotted for the examination. If the examination and your response is not returned within five hours, your grade will be reduced by two (2) letter grades.

3. In answering the essay questions, you should rely upon case law from the class materials and our class discussions. Additional research is neither expected nor rewarded.

4. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

5. Your answer must be typewritten. If you use a computer, you may edit and revise your answer freely during the twenty- four hour exam period.

6. This exam must be turned in no later than 5:00 p.m. on Monday, May 12, 1997.

GOOD LUCK!

Federal Courts Exam No. _______

The University of Alabama, a state-run institution, controls and operates a Human Fertility Clinic, which has produced significant revenue for University operations since its inception in 1985. The Clinic is staffed in part with graduate students from the University's Medical College, and occasionally makes its patients or files available for University research projects. In 1991, two dozen patients from the fertility clinic cooperated in a study on the psychological effects of unsuccessful fertility treatments, which was prepared and administered by the University of Alabama psychology department.

In 1992, Dr. Samuel Adams, a University of Alabama professor involved in the Human Genome Project identified the gene for alcoholism. Further testing demonstrated that the gene could be successfully introduced into a fertilized human egg by the use of recombinant DNA technology. Dr. Adams arranged to have a test group of 150 patients from the Human Fertility Clinic over a five-year period implanted with eggs containing the alcoholism gene. The persons involved in this study were told that their eggs had undergone "screening" for genetic defects, but were not told of the use of recombinant DNA technology.

Also in 1992, Congress enacted the "Informed Treatment Bill of Rights," ("ITBOR") which provided that every person who was the subject of a scientific research project had a right to be informed of any and all known and significant risks associated with their participation. Guidelines for determining "significant risks" were promulgated by the National Institute for Health ("NIH"). The statute created a cause of action for any person to sue any genetic researcher who failed to comply with NIH guidelines, and authorized "any and all appropriate relief, including damages." The definitional sections of ITBOR covered state and federal researchers, as well as private parties.

Annie and Arthur Lamott, of Dothan, Alabama, went to the Human Fertility Clinic in 1995 to arrange for in vitro fertilization. The egg and sperm were collected, and an appointment was scheduled for the following day to implant the "genetically screened" egg in Annie's uterus. That night, Annie talked to her longtime friend Marc Davidson, a graduate student who had worked for Dr. Adams. Marc had resigned his research assistantship because of doubts about the ethical implications of Dr. Adams' research project. Marc told Annie not to complete the in vitro procedure, and explained the nature of Dr. Adams' research.

Federal Courts Exam No. _______

Later that week, the Lamotts filed suit against Dr. Adams and the Human Fertility Clinic in Alabama state court, seeking unspecified damages and alleging breach of contract, intentional infliction of emotional distress, and an interference with contractual relations count against Dr. Adams. Their attorney called the media to announce the filing of the lawsuit, which made the front page of the Alabama Sentinel.

The reporter from the Sentinel had done her homework and learned that Alabama law required any recombinant DNA research to be approved by a state court judge and by the Alabama Secretary of Health, Martin Chizzlewick. A search of court records revealed that Dr. Adams' research had been approved under this statute. The Sentinel article identified both Chizzlewick and the state judge who had approved the program, Judge Raven Hand.

Clients of the Fertility Clinic were predictably appalled by the disclosures. Two months after the article, a lawsuit was filed in U.S. District Court for the Southern District of Alabama naming the University, the Clinic, Dr. Adams, Mr. Chizzlewick and Judge Hand as defendants. The suit was filed on behalf of two prospective classes of persons. The first class consisted of "all past and present clients of the Human Fertility Clinic who now have or are currently expecting children that may have been implanted with the alcoholism gene." The second class consisted of "all persons who have attempted to use, or are currently using the Human Fertility Clinic, but who have not yet achieved successful fertilization." The Lamotts joined the second class.

The federal suit included a 1983 claim and alleged violations of ITBOR, and denials of federal due process and equal protection rights. The plaintiffs sought 25 million in damages, and an injunction to stop the use of recombinant DNA technology without express consent of the would-be parents. They also sought to stay the state court action by the Lamotts, in order to permit the "significant federal issues" to be resolved in federal court. The district court granted plaintiffs' motion to certify both classes, and took their motion to stay the state court proceedings under advisement.

The Lamotts obtained an expedited schedule for both trial and discovery in state court, and their suit moved ahead quickly. The state trial court granted summary judgment to the Clinic and Dr. Adams, finding that the Lamott's contract with the Clinic required any dispute to be submitted to binding arbitration, with a limited right of appeal in the state court system.

A summary judgment motion is being prepared by the defendants in the federal proceeding. Discuss the possible grounds for the summary judgment motion, and determine how that and other pending motions should be resolved by the federal court.