New twist in stem cell lawsuit

Sherley. employer at odds over federal stem cell funding

In the latest update in the stem cell lawsuit, Sherley v. Sebelius, James L. Sherley now has to contend with the opposition of his own employer, the Boston Biomedical Research Institution.

Sherley is the former MIT professor (who was denied tenure) suing the National Institutes of Health. The case is before the District Court for the District of Columbia, but an appeal is currently before the D.C. Circuit Court of Appeals. The district court had issued a preliminary injunction blocking human embryonic stem cell research, but the appeals court blocked it.

Boston Biomedical filed a motion yesterday indicating it opposes Sherley’s position. It asked the appeals court for permission to join the amicus brief that was previously filed by the State of Wisconsin on Oct. 19.

Wisconsin’s amicus brief argues against Sherley and another scientist, Theresa A. Deisher. Wisconsin says that the preliminary injunction barring research significantly injured many parties, and that the balance of harms and the public interest were not in favor of halting stem cell research.

Boston Biomedical’s board voted on Monday unanimously to join the case in support of the NIH and against Sherley.

“We have taken this step because of our belief that human embryonic stem cell research offers real promise in enhancing understanding of a wide variety of human diseases, and that it has the potential to facilitate development of new and better therapies and potential cures for some of mankind’s most devastating diseases,” wrote John R. Layton, President of Boston Biomedical’s Board of Trustees. “As a result, we believe that federal funding of human embryonic stem cell research should be allowed to resume.”

Sherley is not paid by Boston Biomedical; all of their investigators are expected to fund their own research programs and salary, said Charles P. Emerson, Jr., Director of Boston Biomedical.

Boston Biomedical’s opposition to Sherley’s lawsuit against the government is not new. In September, it issued a statement saying it “fully endorses the funding of research programs by the National Institutes of Health across the country, including those involving human embryonic stem cells. … Dr. Sherley’s position on this issue neither represents nor reflects that of BBRI.”

Appeals court sets argument schedule

Also yesterday afternoon, the appeals court announced the schedule for oral argument of the case, will take place on Dec. 6. The government has been allotted 15 minutes, and then Sherley and Deisher will have 15 minutes. These time limits are minimums, though. When both sides argued before the same judges to request a stay on the lower court’s preliminary injunction, the three-judge panel extended the time from 30 to 75 minutes.

While the appeals court considers the legitimacy of the lower court’s preliminary injunction, it is still possible the lower court may rule on the case itself. When or whether that happens is anyone’s guess.