By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
By Angelica Leicht
For more than four years, Dr. Bonnie Dunbar has been waiting for her day in court, where she hopes to prove that her employer, Baylor College of Medicine, conspired with a private biotechnology company to steal the commercial rights to a contraceptive technique patented by the scientist in 1991.
During that time, not a single material fact related to the core issues in Dunbar's case -- intellectual property rights, legal malpractice and fraud --has ever been presented to a judge or jury for consideration. Indeed, precious little information about the lawsuit has been available to the public since October 1994, thanks to a court-approved protective order that allowed Baylor and codefendant Fulbright & Jaworski, the school's legal counsel, to classify as "confidential" every piece of paper turned over to Dunbar's attorneys during the evidence-gathering stage of her lawsuit.
While hiding behind a legal motion that prohibits public scrutiny of Dunbar's evidence, her legal opponents, including lawyers for Baylor College of Medicine, have subjected the scientist -- a tenured professor of cell biology at Baylor and an adviser to the National Institutes of Health --to repeated attacks on her character and scientific integrity.
Now, a recent court ruling threatens any chance that Bonnie Dunbar will ever tell her story at trial.
On September 9, Judge Richard Hall of Harris County's 270th District Court ruled that Dunbar had violated the protective order when the Houston Press published two memos on its web site, www.houstonpress. com, along with a story about Dunbar's ill-fated effort to commercialize the world's first contraceptive vaccine ["Biological Disaster," Houston Press, August 20, 1998].
Hall ordered Dunbar and her attorney, Mike Butler, to return all "confidential" documents obtained from Baylor and Fulbright & Jaworski. The judge's decision also prohibits Butler from attempting to introduce any of that evidence in the future. That puts Dunbar in the position of having no evidence with which to prove she was defrauded when Baylor and Fulbright engineered a technology-transfer agreement in December 1987 that gave all rights to her potentially lucrative research on contraceptive vaccines to Zonagen, Inc., a publicly traded biotechnology firm in The Woodlands.
The ruling on September 9 was the second time Dunbar has been stung by Hall, who threw her lawsuit out of court on a statute of limitations issue on December 20, 1995. (Hall has retained jurisdiction over the protective order while Dunbar appeals that ruling.) But the judge's latest decision is particularly egregious because Hall apparently ignored the fact that the two memos published by the Press were already a matter of public record, and have been since the December 1995 hearing, when they were unsealed in Hall's court and openly quoted from in oral arguments by both Butler and Baylor's attorney, Allan Van Fleet of Vinson & Elkins.
Moreover, far from being "confidential," the same information has been available for perusal at the U.S. Court of Appeals, First District of Texas, since mid-1996. All one has to do is go to 1307 San Jacinto, take the elevator to the tenth floor, give the clerk the case number -- 01-96-00958-cv --and ask to see Bonnie Dunbar's "Response to Motion for Summary Judgment." Among the 40 or so exhibits attached to the pleading are a couple of six-year-old memos written by Dunbar and Sam Crocker, who, at the time, was the in-house counsel for Baylor College of Medicine.
At first glance, it would be hard to understand what purpose they might serve in the case beyond making Sam Crocker look foolish. But when they're considered in the proper context, it soon becomes clear that Baylor College of Medicine and Fulbright & Jaworski have good reason for wanting to keep these particular documents out of the public realm.
On August 10, 1992, Dunbar wrote Crocker, asking for permission to seek funding from a company called Fort Dodge Animal Pharmaceutical. The memo makes clear that, at the time --eight months after a research agreement between Dunbar and Zonagen had expired -- the scientist assumed she was free to continue developing her patented technology.
Dunbar had been down this road before. In 1984, Baylor and American BioSystems, a subsidiary of 3M Corporation, agreed to jointly develop a contraceptive vaccine for use in household pets and cattle. The partnership soured, however, and when American BioSystems attempted to claim ownership of Dunbar's technology, Fulbright & Jaworski filed suit on Baylor's behalf. A favorable settlement was reached in 1988, at which time Dunbar was already working with Zonagen, Inc. to commercialize the vaccine technology.
Dunbar's memo strongly suggests she did not know that Baylor's agreement with Zonagen was quite different from the arrangement with American BioSystems, specifically, that any further research on the contraceptive vaccine would be performed in the service of Zonagen, or not at all. This is important because it cuts the heart out of Baylor and Fulbright's defense in the lawsuit-- that Dunbar knew all along that the contract between Baylor and Zonagen gave the company exclusive rights to 25 years of research on contraceptive vaccines, as well as any future advances in the technology.
If that were so, why would she bother to ask Baylor's legal counsel for permission to negotiate with another company for funding?
Another question is why Crocker, in his August 14 reply to Dunbar, didn't see fit to inform the scientist that Baylor's agreement with Zonagen barred her from doing business with Fort Dodge --advice that might be expected from the college's own attorney. Instead, Crocker's memo offers a stream of excuses why he hadn't been able to reach the scientist by phone, such as this classic: Her answering machine didn't pick up.