Dubont v. Cornell Univ. 4/11/02 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G026598

Case Date: 06/27/2002

Preview:Filed 4/11/02

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

KIMBERLY DUBONT et al., Plaintiffs and Appellants, v. CORNELL UNIVERSITY et al., Defendants and Respondents. G026598 (Super. Ct. No. 755021) OPINION

Appeal from an order of the Superior Court of Orange County, Robert E. Thomas, Judge. Reversed and remanded. Blum & Roseman, Law Offices of Melanie R. Blum, Melanie R. Blum; Robinson, Calcagnie & Robinson, Mark P. Robinson, Jr. and Sharon J. Arkin for Plaintiffs and Appellants. Musick, Peeler & Garrett, William McD. Miller, III, Cheryl A. Orr and Kevin D. Jeter for Defendants and Respondents. * * *

The defendants filed a motion for summary adjudication. The plaintiff indicated a need for a continuance because potentially crucial discovery was still ongoing. The court declined to grant a continuance and granted the motion for summary

adjudication instead. In so doing, the court abused its discretion. We reverse and remand. I FACTS Kimberly Dubont and her husband sued a number of defendants for various causes of action arising out of the alleged misuse of certain eggs that were taken from her during the course of infertility treatments at the University of California, Irvine (UCI). Cornell University, its medical school, and a related infertility center it operates (the Division of Reproductive Medicine and Infertility) were among the numerous defendants. The Cornell defendants were named in causes of action for conversion, fraud, negligence and civil conspiracy. The Cornell defendants moved for summary adjudication. Part of the Dubonts' opposition was to inform the court that the motion was premature because further discovery needed to be conducted. To support their argument the motion was premature, the Dubonts submitted a declaration from Attorney Melanie R. Blum which stated that a key witness to unresolved issues, Dr. Anna Viega,1 was on vacation, and that she did not know the date of the doctor's return. Attached to Attorney Blum's declaration was an unverified statement she said was signed by Dr. Viega before she left for her vacation. That declaration provided potentially crucial information concerning whether the Cornell defendants had obtained the Dubonts' embryos for experimentation purposes or for testing at the request of the treating physician, Dr. Ricardo H. Asch. Dr. Viega stated that certain embryos she had obtained for research purposes had been inadvertently destroyed and she had mentioned this to Dr. Asch. Dr. Asch purportedly obtained some replacement embryos for Dr. Viega, so she could continue her research project. In her
1

The record variously refers to the first name of the doctor as either "Ana" or "Anna" and to her last name as either "Viega" or "Veiga." We are unable to ascertain her correct name. 2

declaration concerning the Viega statement, Attorney Blum stated she needed to take Dr. Viega's deposition and the motion for summary adjudication was premature. During argument of the motion, Attorney Blum explained that she was "in the midst of discovery and [had] obtained some documents from the N.I.H. [National Institutes of Health] . . . which inquire[d] into Cornell about their use of embryos . . . ." She further stated she was trying to obtain information pertaining to the positions of various governmental agencies on the applicability of certain laws when human embryos are subjected to testing. When she was responding to the judge's question about whether the Cornell defendants had done experimentation, as opposed to testing at the request of the primary care physician, Blum said: "And all I can do is give you at this point in time the information that I have regarding what I've gotten from the N.I.H., and their correspondence with various parties that I still need to depose. Santiago Munne and Anna Viega, people who [sic] I have not deposed yet.[2] So once I take depositions of these individuals, I can say to this court, well, this is what he says he was doing." Later she stated: "But that's why I said this is premature. I don't have that information yet. All I have is information from a regulatory agency that says tell me." After hearing argument from counsel on August 20, 1999, the court took the motion under submission.

2

At a glance, one can see apparent discrepancies between the Viega statement and the Munne declaration attached to the moving papers. Dr. Munne's declaration said there was a planned research project between UCI and Cornell: "Dr. Viega had apparently described the test to Dr. Asch, who expressed interest in having some of his patient's preembryos tested to determine whether their failure to become pregnant was due to chromosomal abnormalities in their pre-embryos." But Dr. Viega's unsworn statement told a quite different tale: "When I designed and planned the research I performed at Cornell in 1994, I never had in mind to use any embryos from UCI or assist the Center for Reproductive Health . . . in any way. [

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