Crushing the Opposition
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.
Perhaps it didn't. But a copy of the same memo that was forwarded to another Baylor official suggests Crocker had flat-out lied to Bonnie Dunbar. Indeed, in a vulgar postscript to his colleague, Steve Banks, Crocker took enormous pride in having successfully dodged Dunbar's attempts to reach him: "Howz about dis horshit [sic]," he wrote.
Crocker, who was out of town last week and did not return calls seeking comment, has since left Baylor College of Medicine. He was not named in Dunbar's lawsuit, although the scientist did register a complaint with Baylor's Committee on the Prevention of Sexual Harassment. The complaint paints an unflattering portrait of Crocker as both a lawyer and as a representative of one of the nation's top medical schools.
Dunbar recounted the August 1992 memo she received from Crocker, which, she wrote, "ridicules me behind my back." Dunbar also recalled how Crocker began pushing her to give Zonagen all of her research right around the time the company was preparing to raise millions of dollars from investors with an initial public offering. In fact, toward that end, Crocker would stray off the ethical path more than once.
On January 21, 1993, for example, Crocker left a lengthy voice-mail message with Marty Weick, the senior administrator in Baylor's Department of Cell Biology. The message is insightful, if only because it contains the kind of legal analysis that Dunbar sought from Crocker just five months earlier.
"My thoughts are that Bonnie has got to produce those lab notebooks underlying her work for Zonagen," Crocker said. "They paid for the research. They own the technology."
Whether or not Crocker actually believed that -- Zonagen's contribution to Dunbar's work comprised about four years in a 25-year career -- it's clear from his message that his primary concern was that Zonagen, whose backers included Ross Perot, George Mitchell and the son of former treasury secretary Lloyd Bentsen, was going to sue Baylor. Moreover, Crocker was worried that a lawsuit "would screw" any attempts to commercialize future inventions of Baylor scientists.
"I have a feeling she wants to get out of this thing," Crocker said, "and if the company wants to get horsey, they're going to push Baylor pretty hard, and they can pull some legal stuff. They could go to court, and Baylor would be a defendant in such an action.... I have to think the worst."
Crocker told Weick he was prepared to go to Dunbar's boss, Bert O'Malley, the chair of the cell biology department, "to get this resolved." Following that not-so-subtle suggestion that Dunbar's future at Baylor could be used as leverage to bring her into line, Crocker offered another, more self-serving, solution.
"She's got a bunch of stock," he said. "Well, I think we can arrange it for me to buy it real cheaply just to get it off her hands if she wants to do that.... You need to help me."
Dunbar says she was eventually forced to withdraw her sexual-harassment complaint against Crocker. Why? Because the protective order that sealed all the evidence in her lawsuit prohibits her from documenting her allegations that Crocker had intimidated her and created a "hostile environment in the workplace."
"It is ironic that a Baylor-initiated gag order appears to bar me from providing to Baylor's sexual-harassment committee evidence of Mr. Crocker's blatant racism and sexism," Dunbar wrote in her complaint.
It's also ironic that Baylor's attorney, Allan Van Fleet, one of the small army of Vinson & Elkins attorneys working on the case, claims the two memos published by the Press were "attorney-client communications," and that their publication was therefore a violation of the October 1994 protective order.
"I don't really want to debate the niceties of the attorney-client privilege between an organization and its clients," Van Fleet said in an interview last week, "but the response to a corporate employee's request for advice of an attorney is privileged."
A valid point -- if Crocker had offered some actual advice.
There is something insanely appropriate about the fact that three of the city's most male-dominated institutions --Baylor, Fulbright & Jaworski and Vinson & Elkins --find themselves working on behalf of Zonagen, Inc. In 1994, just before Dunbar filed her lawsuit, the company abandoned the contraceptive-vaccine technology she has dedicated her professional life to and purchased the rights to an impotence treatment.
While Zonagen has made the leap from birth control to erection building, the testosterone-fueled worlds of law and medicine, employing equal parts vulgarity and sanctimony, have ganged up on a distinguished scientist. They have characterized her as a second-rate hack in the laboratory, a greedy opportunist and, as Allan Van Fleet described her to Judge Richard Hall, "a con artist of the first degree."
Perhaps the most disturbing abuse Dunbar has been forced to endure has come from Joe Podolski, the president of Zonagen. According to an affidavit filed by Balbir Bohgal, Zonagen's former director of immunology, after Dunbar filed her lawsuit, Podolski encouraged an atmosphere in his laboratory that was openly hostile, even vaguely threatening to Dunbar. In February 1995, for example, Bohgal says someone put a cat brain in a bottle, and labeled it "Bonnie's Brain." Podolski, according to Bohgal, posted his own label that read, "How about other parts of her anatomy?"
Bohgal, who is suing Podolski and Zonagen for breach of contract related to his dismissal from the company in 1995, says that Podolski remarked that he "would do anything to rip off" Dunbar's Zonagen stock. At one point, Podolski commented that he "wished someone would hire a hit man to run over the bitch."
Podolski tried to patent Zonagen's own contraceptive-vaccine method, but the U.S. Patent and Trade Office has rejected the applications, citing the prior art of Dunbar's 1991 patent.
Sticks and stones notwithstanding, Dunbar has been most hurt in the courtroom, particularly since Richard Hall took over the case in January 1995. An unknown who slapped an "R" next to his name and paid the $300 to put his name on the ticket, Hall was swept into office with the Republican landslide of 1994. In the Dunbar case, Hall -- a lame duck now, having lost a primary race earlier this year --established himself as someone inclined to accept whatever argument was put forth by the Vinson & Elkins attorneys representing Baylor and Fulbright & Jaworski.
On December 20, 1995, at least a half-dozen lawyers spent several hours making arguments for and against Baylor's motion to dismiss the case on a statute of limitations issue. Despite the importance of the motion before him --whether or not Bonnie Dunbar would have her day in court --and the complex legal arguments offered by both sides, including reference to case law dating back to 1938, Hall barely took a breath before ruling against Dunbar. A judge who likes to use the phrase "cool reflection" to describe his method of judicial contemplation didn't even move off the bench long enough to go to the bathroom before dismissing the case.
Compare that to the September 8 hearing on Dunbar's alleged violation of the protective order. Arguments lasted less than an hour. Hall's questioning of Butler and Van Fleet seemed to indicate the judge understood that, because the offending documents were unsealed and discussed in his courtroom in December 1995, there had been no breach of confidentiality. Yet, perhaps aware that a reporter had attended the hearing, Hall adjourned for the day, citing the need for "cool reflection."
The next morning, with Butler out of town on business, Vinson & Elkins attorneys submitted a written argument urging Hall to sanction Dunbar and her attorney. Before Butler even had a chance to respond to this 11th-hour pleading, Hall signed an order demanding that Dunbar turn back all the evidence she had collected from Baylor and Fulbright & Jaworski.
Hall declined to discuss his decision. Van Fleet says Butler violated a clause of the protective order that allows evidence to be discussed in court and then resealed. As for the fact that the documents had been available for viewing at the U.S. Court of Appeals since 1996, Van Fleet insists no one at Vinson & Elkins knew Butler had not filed Dunbar's appeal under seal until the Press published the two memos on August 20.
While Richard Hall was making his decision, Bonnie Dunbar was in Nairobi and Kenya, working with African postdoctoral students interested in reproductive biology. Dunbar travels frequently to Africa, where starvation and disease are the products of one of the highest population-growth rates in the world. Since losing her research to Zonagen, however, Dunbar has been unable to obtain enough funding to test the vaccine in Africa -- with elephants as subjects -- as much as she'd like.
Back home, though, Dunbar does have plenty of grant money available for research into male fertility. Given the mugging she's received since filing her lawsuit, one shouldn't be too surprised if her enthusiasm for that particular area of study is at a low point.
E-mail Brian Wallstin at email@example.com.
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