A Texas state judge has dismissed with prejudice a lawsuit that claimed a cancer researcher conspired with Baylor College of Medicine and a research firm, Diakanos Research Ltd., to interfere with licenses the plaintiff held with the University of Texas MD Anderson Cancer Center.
The cancer researcher, Dr. William Decker, was previously employed with UT before he moved to Baylor. The plaintiff is Houston-based Gensetix, which is the exclusive licensee for a couple patents tied to immuno-cancer therapies owned by UT that Dr. Decker invented while working there.
Houston District Judge Michael Gomez dismissed Gensetix’s lawsuit last Tuesday with prejudice on grounds that the defendants brought under the Texas Citizens Participation Act. He ordered the defendants to submit evidence in support of their attorneys’ fees, which the anti-SLAPP statute allows to be recovered by the prevailing parties.
Gensetix’s lead lawyer, Sarah Spires of Dallas law firm Skiermont Derby, did not immediately respond to a request for comment.
Baker Botts partner Paul Morico, Baylor’s lead attorney, told The Texas Lawbook his client is “very pleased” with Judge Gonzalez’s decision to dismiss Gensetix’s lawsuit.
“Fundamentally we’re pleased with the outcome and we’re pleased with the way the litigation is going,” Morico said. “Baylor would prefer to spend its money trying to cure cancer than fighting these lawsuits.”
Gensetix filed the lawsuit a month after a Houston federal court dismissed a nearly identical lawsuit on Dec. 10, 2018. Gensetix had claimed in that lawsuit that the same parties infringed on its patents related to the immuno-cancer methods.
Gensetix had also named UT as an involuntary plaintiff in the federal suit, but the university refused to join the lawsuit and asserted its 11thAmendment sovereign immunity rights.
U.S. District Judge Andrew S. Hanen of the Southern District of Texas dismissed Gensetix’s case on grounds that Gensetix did not have standing to prosecute its claims. He also declined to exercise supplemental jurisdiction over particular state law that Gensetix brought.
Gensetix is currently appealing the dismissal of the federal lawsuit.
In the state case, Dr. Decker, Baylor and Diakonos argued that Gensetix’s suit should be dropped because the defendants were simply exercising their right to associate with each other “(and conversely, to disassociate with Gensetix),” court documents say.
The act of associating with one another, they argued, was an exercise of their right to free speech because the factual allegations in Gensetix’s lawsuit related to “a matter of critical public concern – making a potential treatment available to the public as soon as possible.”
Baylor said in its filings that it viewed Gensetix’s lawsuit as a “retaliation for its decision to grant Diakonos, rather than Gensetix, a license to commercialize” new technology related to immuno-cancer treatments that Dr. Decker developed once he moved to Baylor.
The effect of Gensetix’s litigation, Baylor argued, resulted in a waste of money that could have been spent on efforts far more worthwhile: saving lives.
“This money could have been used to pay full in-state tuition for approximately 53 medical students this year – nearly 30% of the first-year medical class at Baylor,” the university’s motion to dismiss states. “Or it could have greatly accelerated Dr. Decker’s life-saving cancer research – potentially shaving years off the request for a cure for certain aggressive forms of cancer – by nearly doubling the size of Dr. Decker’s research team for the next two years.”
Judge Gomez listened to the parties’ motions to dismiss at a hearing on April 1, during which he already indicated he was “convinced” that the very broad TCPA statute would apply to the case, Morico said.
He said Judge Gomez asked Gensetix to provide additional evidence by April 29 that supported the claims in its lawsuit, but all that was provided as a follow-up was a declaration of Gensetix’s founder that was mostly “conclusory statements that were unsupported.”
Morico said Dr. Decker’s attorneys presented an argument that ended up being beneficial to the entire defense: that there was no evidence of any harm or damages suffered by Gensetix since its license with UT is still in effect.
In addition to Morico, the Houston-based Baker Botts team representing Baylor includes partners Amy Hefley and Liz Flannery and associate Travis Gray.
Dr. Decker’s legal team includes Robin O’Neil and Murray Folger of Houston litigation boutique Folger, Brar, Ford O’Neil & Gray.
Diakonos’ lawyer is Gordon T. Arnold of Houston firm Arnold & Saunders.
Other Skiermont Derby attorneys representing Gensetix include Paul Skiermont and Christopher Hodge.