DNA testing argued in Vermont fertility doctor fraud lawsuit

ALAN KEYES
VT Digger

BURLINGTON — A federal judge is weighing whether a fertility doctor should be forced to submit to saliva DNA testing in a lawsuit brought by a couple who claim he used his own semen to impregnate the woman.

Attorneys for the doctor, John Boyd Coates III, argued during a hearing Monday in federal court in Burlington that their client should not have to submit to the DNA testing, contending that issues regarding parentage are best left to state courts to decide.

However, lawyers for Cheryl and Peter Rousseau countered that Coates is simply trying to stall the case, which they say is less about the issue of parentage and more about claims of fraud and misrepresentation.

Judge William K. Sessions III heard arguments from both sides, and said he intends to rule quickly on that dispute, as well as whether the case should continue to proceed at all.

Coates, who is now retired, lives in Shelburne. The Rousseaus at the time they went to Coates had lived in Central Vermont, and now reside in Florida.

Neither the Rousseaus nor Coates attended the hearing Monday.

Sessions, during the hearing, repeatedly pressed attorneys for Coates over a request from the Rousseaus’ lawyers seeking to compel the doctor to submit to saliva DNA testing.

The judge said DNA testing has proven “reliable” and could potentially exonerate Coates.

“Why not just have a swab done and make a determination based on that swab?” Sessions asked Curtis Carpenter, a lawyer for Coates.

Carpenter replied that compelling DNA testing in a civil case is rare.

“How far do you want to go down the road using this type of evidence in civil matters?” Carpenter said, adding that a great deal of private information is revealed through DNA.

Celeste Laramie, an attorney for the Rousseaus, said the DNA test, done through a cheek swab, is the easiest method to move the case forward.

“It is the swiftest most efficient way, certainly the most cost effective way, of answering this ultimate question,” Laramie told the judge. She said they are not seeking Coates’ medical history through the DNA testing, just trying to gain identification information

“Parentage is relevant, but this is not a parentage proceeding,” she added. “It’s not a case brought by their daughter. The relief sought here is the money damages for the fraud and breach of contract.”

The Rousseaus, in their lawsuit filed last year, say they went to Coates more than 40 years ago for artificial insemination treatment.

They say that prior to filing that action, their daughter, now in her 40s, used Ancestry.com and 23andme.com seeking information about her biological father.

However, according to the filing, the results showed that Coates was the semen donor, not a medical student as he had previously told the Rousseaus.

The Rousseaus’ lawsuit includes claims of fraud, medical negligence, battery, failure to obtain informed consent, breach of contract and inflicting emotional distress. They are seeking unspecified monetary damages of at least $75,000, according to the filing.

At the proceeding, Sessions questioned Laramie, the attorneys for the Rousseaus, about how Ancestry.com and 23andme.com were used in this case to link the couple’s daughter to Coates.

“How did you get Dr. Coates’ genetic profile to make the comparison,” the judge asked.

Laramie replied that both of the websites are “essentially crowd-sourced” and Coates was determined to be the genetic donor “through a process of elimination.”

She added of those websites, “There are enough family members out there who have supplied their genetic profile.”

Attorney Peter Joslin, another lawyer representing Coates, told the judge that the matter shouldn’t be before the federal court, at least not yet.

He reiterated that the issue of parentage is best left to the state system, which have family courts in place to best deal with that matter.

Sessions didn’t appear convinced that would be the best route to go.

“At the heart of this particular case, it’s not an issue of parentage, although clearly parentage is particularly relevant,” the judge said. “At the heart of the matter is a claim of fraud. That makes it somewhat distinguishable from a parentage case.”

The parentage issue only relates to identification, not establishing parental rights and responsibilities that a family court typical deals with, according to the judge.

Joslin told the judge he saw it differently.

“The primary issue is parentage, notwithstanding the fact there are causes of action that are alleged,” the attorney replied.

The lawsuit also names as a defendant Central Vermont Hospital, which is now called University of Vermont Health Network at Central Vermont Medical Center in Berlin, where the baby was born on Dec. 27, 1977.

Attorney Peter Berger, representing the hospital, argued Monday that the case against the medical center should be dismissed. He said Coates was not an employee of the hospital.

Sessions questioned Berger on that matter. The judge said the hospital had “apparently” given Coates “privileges” at the hospital, and with those privileges the question becomes if that brought along a duty on behalf of the hospital to supervise him.

“Doesn’t that really depend on the factual relationship between Dr. Coates and the hospital?” Sessions asked Berger, and the details of that relationship could be uncovered through depositions and the discovery process as the case moves forward.

“There’s no case law in the country,” the attorney responded, “that would recognize on these allegations a duty to supervise somebody who has admitting privileges at a hospital.”

“There must be some contractual relationship between Dr. Coates and the hospital?” Sessions pressed on.

“Doesn’t it seem wise that plaintiff should be afforded the opportunity to explore those particular contractual relationships to see if arising out of the contractual relationships there may be a duty,” the judge asked.

“This isn’t a garden variety negligent medical malpractice case.” Berger responded, adding that the allegations of fraud and deceit are leveled in the lawsuit against Coates, not the hospital.

Berger said that in the Rousseaus’ own lawsuit they claimed that Coates actions were “fraudulent,” “willful,” “intentional” and “outrageous,”

As the hearing drew to a close, Sessions asked Laramie, the Rousseaus’ attorney, whether it made sense to have the parentage determination made at the state court level and then refile the lawsuit in federal court once that question has been answered.

“It’s a tremendous waste of resources and time,” Laramie said of that idea. “That’s actually what the defendants are trying to do here. It’s a delay tactic.”

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