STEM CELL TRIAL “RIGGED”? Actions by Judge May Reveal Bias

By Don C. Reed

If I were a gambler, I would bet the house that Judge Royce C. Lamberth is going to declare federal funding of embryonic stem cell research to be against the law.

Far from being an objective and disinterested bastion of balance, I think the man has already made up his mind on the case: Sherley v. Sebelius.

There are several reasons for my opinion.

First, an organization called the Coalition for the Advancement of Medical Research (CAMR) applied to be part of the case. (Important: neither CAMR nor its attorneys has any connection to my opinions.)

CAMR is a group of nearly 100 organizations, large and small, made up of patients, advocates, scientists, doctors and educators. CAMR supports federal funding of embryonic stem cell research, and has unparalleled expertise in this area. For more than a decade, they have led efforts to defend scientific freedom and this research.

CAMR asked to be part of the case under the legal term amicus curiae (friend of the court), basically to be an expert witness.

Judge Lamberth refused. His reason for denying CAMR the right to participate?

“…plaintiffs did not have time to file a response to CAMR’s submitted brief.”


The plaintiffs, the people trying to shut down embryonic stem cell research funding, did not have time to respond? That is the reason Judge Lamberth denied CAMR participation, blocking out the views of such groups as the Christopher and Dana Reeve Foundation?

If the plaintiffs needed more time to read a document, give it to them. CAMR’s brief is 11 pages, how long do they need? One day, two?

Or was that just an excuse to deny our strongest ally?

For whatever reason, that decision blocked out the representatives of 100 million incurable ill Americans and their families—we who might benefit from cure research.

Feels like stacking the deck to me.

There are further indications the judge appears to have sided with those who want to shut down embryonic stem cell research.

For example, note his comments:

“The injunction (to shut down the research while the trial drags on-DR)…would not seriously harm ESC researchers (emphasis added) because the injunction would simply preserve the status quo….”

Shutting off someone’s paycheck is not serious harm?

“The status quo” (the situation which exists right now) allows federal funding; the Judge’s injunction would stop the money. Cutting off a research grant stops the research—does that not alter the status quo?

But no, the judge says, the researchers could still get money somewhere else because the injunction “….would not interfere with their ability to obtain private funding for their research…”

This does not make sense.

If a robber empties my wallet, it seems to me I have been harmed, and my status quo has been altered, even if I am free to go and earn more money.

Researchers are no different. If their funding is cut off, they are out of a job. Saying they can go apply for funding somewhere else does not alter the fact they have suffered “serious harm” and their status quo has very definitely not been “preserved”.

What would CAMR have said, if allowed to participate? We cannot know, of course, since their inclusion was denied. But here is one paragraph, taken from their formal request for inclusion, a public document.

“”Far from preserving the status quo, the preliminary injunction will, if not stayed, radically disrupt, and perhaps permanently cripple, ongoing and planned hESC research that has been funded through successive administrations of both political parties, with the acquiescence and endorsement of Congresses controlled by both political parties, in conformity with Guidelines designed to assure that the research is conducted ethically, in accordance with the highest standards of medical science.”

Unfortunately, CAMR was not welcomed in Judge Lamberth’s court.

But wait, there’s more. Listen to the judge expressing his (non-expert) opinion on the embryonic stem cell research itself.

“…(curing) diseases that one day may be treatable as a result of ESC research is speculative. It is not certain whether ESC research will result in new and successful treatments for diseases such as Alzheimer’s and Parkinson’s disease.”

By this logic we should cease to fund the research, because it is “speculative”?

Is there any research which is not speculative?

Nothing in science—or in life– is certain. Cure is not guaranteed by anyone except charlatans and frauds. The hope of cure is all we ever have, even with the most established traditional procedures. One of my relatives went into the hospital for a knee operation; a blood clot blocked an artery, shut off blood flow to the brain, and she died.

Any operation has risk, which is why you sign those forms beforehand, in case you die.

But what if the judge is wrong? If he shuts off funding for research which (years later) turns out to be valuable, he would be responsible for having perpetuated the suffering and premature loss of life of uncountable people, ruining their families’ happiness: and wreaking havoc with our economy, increasingly unable to deal with a growing mountain of medical debt. Do you know that last year America spent $1.65 trillion on incurable disease (exactly the kind of illness hESC research targets)—more than all federal income taxes ($1.2 trillion) combined?

What might CAMR have said, if allowed to testify? We cannot know, of course, because of Judge Lamberth’s decision.

However, again from their request, that 11 page document which took me half an hour to read but which according to the judge was too time-consuming for the plaintiffs:

“Research already has begun to demonstrate the types of treatments that could result from further hESC research. For example, researchers have been able to direct hESC differentiation to produce specific types of cells that could be used in the treatment of Parkinson’s disease and Type 1 diabetes. The first clinical trials using hESCs for spinal cord injuries and for blindness have been approved by the Food and Drug Administration and are set to begin soon. Other major, potentially groundbreaking and life-saving research is ongoing, as demonstrated by the many peer-reviewed articles that address hESC research published since 2002. The preliminary injunction, which will severely disrupt and, in the case of some ongoing experiments, destroy hESC research will have very real, large, and immediate consequences for both researchers and the millions of patients in urgent need of scientific advances in their medical treatment.”

–both this and the preceding CAMR quote are taken from the “Brief Amicus Curiae of Coalition for the Advancement of Medical Research in Support of Defendants Emergency Motion to Stay Preliminary Injunction Pending Appeal”, submitted by:

Andrew T. Karron, Samuel Witten, Elizabeth Leise, Benjamin Wallfisch, of Arnold & Porter LLP, 555 Twelfth Street, NW  Washington DC 20004-1206.

What does the judge express concern about?

Remember those two adult stem cell researchers who worried that allowing embryonic stem cell research funding might mean less money for them?  (That is their sole standing in the case.) The Judge says James L. Sherley and Theresa Deisher would suffer “immediate and irreparable” damage, if they had to compete for limited funding.

Their plight appears to have touched the judge’s heart—even though one of them already has two grants from the government, (Sherley) and the other (Deisher) has never applied for one. Listen to the judge’s words:

“Plaintiffs’ injury of increased competition… is actual and imminent. Indeed the Guidelines threaten the very livelihood of plaintiffs Sherley and Deisher…the irreparable harm that plaintiffs would suffer…. outweighs the harm to interested parties.”

See what is happening here?

By focusing on these two allegedly suffering scientists, the judge has narrowed the case– and the people most affected by it are left out.

My son Roman, paralyzed sixteen years? If CAMR was allowed in the case, he would be represented. My small group, Californians for Cures, is among the members of CAMR. Denying CAMR denies us. According to the judge’s opinion, we are apparently not “interested parties”— though hESC research may be our best hope for Roman’s cure.

This case is not a minor dispute between a governmental agency and two scientists; it is perhaps the most important decision in the history of American medicine:

Should science and government determine medical research policy, so that every American family can have access to the best medicine science can provide—or will that research be chilled, controlled, and limited by the religious right and its political allies?

Judge Lamberth appears to have taken a side. He seems to me to be what conservatives call an “activist judge”: someone who uses the law to advance a political cause. I have heard anecdotally that he personally opposes the research. By his actions, this would appear to be accurate.

Maybe I am wrong. Maybe this Texas Republican will judge the case on its merits and leave his party politics outside the door.

But if this were a card game, I would say we need a fresh deck– and a new dealer.

Below is an unofficial copy of the document rejecting CAMR’s involvement, followed by a listing of groups represented by that organization.

SHERLEY et al v. SEBELIUS et al           doc 54

Case 1:09-cv-01575-RCL  Document 54  filed 09/07/10  page 1 of 1


JAMES L. SHERLEY, et al, Plaintiffs. V. KATHLEEN SEBELIUS, in her official capacity as Secretary of the Department of Health and Human Services, et al., Defendants

Civil Action No. 09-1575 (RCL)    ORDER 

Upon consideration of the Coalition for the Advancement of Medical Research’s (CAMR) Motion for Leave to File Brief Amicus Curiae (ECF No. 52) and the record herein, it is hereby ORDERED that the motion for leave to file is DENIED.

Defendants requested expedited consideration of their motion to stay, asking the Court to rule by today. Because the Court accommodated defendants request, plaintiffs did not have time to file a response to CAMR’s submitted brief. (emphasis added) Accordingly, although the Court typically welcomes amicus briefs, the Court did not have the opportunity for full briefing on the issues raised by CAMR. The Court thus reluctantly denies CAMR’s motion.


Signed by Royce C. Lamberth, Chief Judge, on September 7, 2010

Finally, here is the group membership of the Coalition for the Advancement of Medical Research, which participation Judge Lamberth denied.

Albert Einstein College of Medicine of Yeshiva University

Alliance for Aging Research

Alpha-1 Foundation

ALS Association

American Academy of Neurology

American Association for Cancer Research

American Association for Dental Research

American Association of Neurological Surgeons/Congress of Neurological Surgeons

American Autoimmune Related Diseases Association

American Diabetes Association

American Gastroenterological Association

American Parkinson Disease Association – Arizona Chapter

American Society for Cell Biology

American Society for Microbiology

American Society for Neural Therapy and Repair

American Society for Reproductive Medicine

American Society of Hematology

Association of Public and Land-Grant Universities

Association of American Medical Colleges

Association of American Universities

Association of Independent Research Institutes

Axion Research Foundation

Biotechnology Industry Organization

B’nai B’rith International

Brown University

California Institute for Regenerative Medicine

California Institute of Technology

Californians for Cures

Cedars-Sinai Health System

Cerebral Palsy International Research Foundation

Children’s Hospital Boston

Children’s Neurobiological Solutions

Christopher and Dana Reeve Foundation

Coalition for Life Sciences

Columbia University Medical Center

Cornell University

C3: Colorectal Cancer Coalition

Davis Phinney Foundation

Duke University School of Medicine

Emory Univeristy

Familial Dysautonomia Hope Foundation (FD Hope)


Federation of American Societies for Experimental Biology (FASEB)

Foundation Fighting Blindness

Friends of Cancer Research

Genetics Policy Institute


Harvard University

Hereditary Disease Foundation

International Cancer Advocacy Network (ICAN)

International Society for Stem Cell Research

Johns Hopkins Institutions

Juvenile Diabetes Research Foundation International

The Leukemia & Lymphoma Society


The Methuselah Foundation

The Michael J. Fox Foundation for Parkinson’s Research

Michigan Citizens for Stem Cell Research and Cures

Mount Sinai School of Medicine

National Alliance for Eye and Vision Research

National Association for Biomedical Research

National Coalition for Cancer Research

National Health Council

National Multiple Sclerosis Society

National Parkinson Foundation

Nebraska Coalition for Lifesaving Cures

New York Stem Cell Foundation

New York University Langone Medical Center

Northwestern University

Packard Center for ALS Research at Johns Hopkins

Parkinson’s Action Network

The Parkinson Alliance

Parkinson’s Disease Foundation

Prevent Cancer Foundation


Resolve: The National Infertility Association

Rutgers, The State University of New Jersey

Sarcoma Foundation of America

Society for Women’s Health Research

Stanford University

Stony Brook University

Student Society for Stem Cell Research

Texans for Advancement of Medical Research

Tourette Syndrome Association, Inc.

Travis Roy Foundation

Unite 2 Fight Paralysis

United Spinal Association

University of California System

University of Michigan

University of Minnesota

University of Pittsburgh School of Medicine

University of Rochester Medical Center

University of Southern California

University of Wisconsin-Madison

Vanderbilt University and Medical Center

Washington University in St. Louis

Wisconsin Alumni Research Foundation

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