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Yesterday’s filings in stem cell case

Adult stem cell researchers James L. Sherley and Theresa A. Deisher filed their brief in opposition to the government’s appeal in the stem cell case before the District Court of Appeals for the District of Colombia yesterday afternoon.

The government is appealing the order barring federally funded stem cell research from continuing. That order is currently stayed, or on hold, during the appeal.

The government’s final reply brief is due on Thursday, Nov. 4, and the court is expected to schedule oral argument.

Sherley and Deisher offer arguments similar to those they have offered in the past: they believe they are “likely to prevail” in the case; they believe they are suffering “irreparable harm” without an injunction; they think the injunction would not harm the NIH and embryonic stem cell researchers; they think the public interest favors them; they think the University of California’s argument about standing is “baseless.”

The last argument is new, and is a response to a brief filed by the University last week. It said that NIH grants were not given to individuals, they are given to institutions, and since Sherley was only a principal investigator, not an institution, he should not have standing to file the lawsuit.

In response, Sherley and Deisher say that the seperation between scientists and instituion is fairly weak in their cases: Sherley receives no salary from the Boston Biomedical Research Institution, and Deisher is the sole executive officer of her company, AVM Biotechnology.

District Court brief also filed

At 7:40 p.m. last night, the NIH filed its brief before the lower court, a “reply memorandum in support of summary judgement.”

Both sides in the case had asked the district court for summary judgement, meaning they believe the case can be resolved based on undisputed facts. Yet the court has already issued a preliminary injunction in favor of Sherley and Deisher, though that is being considered by the appeals court in parallel.

The NIH’s filing last night asserts that Sherley and Deisher’s “speculative fears about competition” for funds from embryonic stem cell research “are not borne out by their practical experience”; that regardless, the Dickey-Wicker appropriations rider does permit research using human embryonic stem cells; that the NIH conducted its rulemaking process in a proper fashion; and that Sherley and Deisher are not entitled to an injunction — instead, the Court must remand the case to the NIH for reconsideration.

— John A. Hawkinson