The Rousseaus say their daughter, now in her 40s, used Ancestry.com and 23andme.com seeking information about her biological father. Creative Commons photo
A federal judge has ruled that a fertility doctor must submit to a saliva DNA test in a lawsuit brought by a couple who allege that the doctor used his own semen to impregnate the woman more than four decades ago.
Lawyers for the doctor, John Boyd Coates III, had fought against a bid by the couple to compel the DNA testing for their client. A hearing on the dispute took place Monday in federal court in Burlington, with Judge William K. Sessions III saying he would be ruling quickly in the matter.
And on Wednesday, he did just that, issuing a four-page decision in favor of Cheryl and Peter Rousseau’s request for a DNA test for the now-retired doctor. The test would be done through a cheek swab.
“At oral argument,” Sessions wrote in his ruling, “the Rousseaus’ counsel informed the court that initial DNA-related information was accessed by means of a service or services such as Ancestry.com or 23andMe.com.”
However, admitting such evidence from those online services may be subject to a “variety of attacks” in court, including issues of testing methods and error rates, the judge wrote.
“Legally conclusive evidence is therefore unavailable, and as Dr. Coates denies paternity, there is good cause for further testing,” Sessions wrote.
In granting the motion to “compel” the DNA testing, the judge asked attorneys for the Rousseaus to prepare an order setting up the process of carrying out the testing.
If the parties in the case cannot agree to that process within 14 days, Sessions wrote that each side will have an additional seven days to submit separate proposals for his consideration.
Celeste Laramie, an attorney representing the Rousseaus, said Wednesday that she was pleased with the judge’s ruling.
“We’ll be looking to collect his DNA shortly after the judge orders it,” she said.
Peter Joslin, Coates’ lawyer, could not be reached Wednesday for comment.
The Rousseaus filed their lawsuit last year in federal court in Vermont. They claim they went to Coates more than 40 years ago for artificial insemination treatment.
Coates had told the couple, according to the filing, that a medical student had been the semen donor.
But, according to the lawsuit, when the couple’s daughter, now in her 40s, used Ancestry.com and 23andme.com seeking information about her biological father, the results traced back to Coates as the donor.
The Rousseaus are suing Coates on claims for fraud, medical negligence, battery, failure to obtain informed consent, breach of contract and inflicting emotional distress.
The lawsuit also names as a defendant Central Vermont Hospital, now called University of Vermont Health Network at Central Vermont Medical Center in Berlin. That is where the baby was born in December 1977.
The Rousseaus lived in central Vermont at the time they went to Coates for treatment. They now reside in Florida. Coates lives in Shelburne.
In addition to the ruling Wednesday on the DNA testing, Judge Sessions issued a separate decision on filings by attorneys for Coates and the medical center seeking to dismiss the case against them.
Sessions declined to throw out the lawsuit against Coates, but did agree to dismiss the claims against the hospital, at least for now. The hospital, through its attorney, had argued that Coates was not an employee, though he did have “admitting privileges.”
Regarding Coates, the judge rejected the argument by the doctor’s attorneys that the matter was best left to state courts where family court matters are regularly decided in Vermont.
“The fundamental issue is whether, in 1977, Dr. Coates provided them the specific genetic material he promised. If he did not, he may be liable under the various causes of action alleged in the Complaint,” the judge wrote.
“This is not a domestic relations case,” Sessions wrote, “and the domestic relations exception does not deprive this Court of subject matter jurisdiction.”
In dismissing the lawsuit against the medical center, the judge granted the couple the ability to refile an “amended complaint” in 60 days, if warranted.
“Indeed,” Sessions wrote, “in the course of discovery the Rousseaus may obtain additional information about Dr. Coates’s relationship with Central Vermont Hospital/CVMC, the scope of his alleged employment or agency, and any legal duties the hospital may have owed to his patients.”
Ritchie Berger, an attorney for CVMC, said the judge’s ruling backed up what he argued in the case from the start.
“We stated from the outset that there is no factual or legal basis for including CVMC in this lawsuit,” he said in an email Wednesday.
“In fact,” Berger said, “plaintiffs’ lawyers know, contrary to the suggestions in their now-dismissed complaint, that Dr. Coates was never employed by the hospital and was always in private practice.”
Laramie, the lawyer for the Rousseaus, said Wednesday that she intends to keep pursuing information linking the medical center to the case.
“We’re continuing on with an eye toward filing an amended complaint against the hospital,” she said.
Read the story on VTDigger here: Judge orders DNA test for fertility doctor in fraud case.