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UPDATED: A recusal in Mayo case?

Update 10:06 a.m. December 7: Justice Breyer is participating in the case. The stock in question was owned by Mrs. Breyer and she arranged to sell it after learning of the conflict last night. Confirmation of the sale was received before oral argument began this morning.

A change in corporate ownership of a medical products company may result, at the last minute, in a Supreme Court Justice’s inability to take part in the Court’s review of a major medical patent case, due for hearing at 10 a.m. Wednesday.   The case is Mayo Collaborative Services, et al., v. Prometheus Laboratories Inc. (docket 10-1150), in which Mayo has been counting quite heavily on having Justice Stephen G. Breyer as a potentially sympathetic and perhaps influential vote on its side.  But now it is Breyer who may have to recuse. (A preview of the argument can be read here.)

The Court was notified on Tuesday evening by the lawyer for Prometheus that the company has been bought by a subsidiary of Nestle S.A.    As of his last financial disclosure statement, Justice Breyer indicated that he owned stock in the Nestle company.   If he still retains that investment, his recusal would appear to be almost certain.  It is up to him personally, however, to make that choice.

Five years ago, when the Court dismissed a case raising essentially the same legal issue about a medical process patent, Justice Breyer wrote a dissent (for himself and two of his colleagues at the time, Justices David H. Souter and John Paul Stevens, who have since retired).  The Breyer opinion argued in the case of Laboratory Corp. of America v. Metabolite Laboratories that allowing wide-open patents on medical knowledge would intrude upon doctors’ ability to make professional judgments in their diagnoses.  Those comments by Breyer were featured on the first page of Mayo’s brief on the merits in the new case.

In the Tuesday letter to the Court, Prometheus’s counsel noted that the information about the change in ownership may have a bearing “as individual Justices assess whether to consider recusing themselves.”   The company’s attorney, Richard P. Bress, offered his “apologies to the Court that we did not bring this change to its attention sooner.”  The letter said the change had just been brought to his attention.   The change came after the Court had granted review of Mayo’s petition.

The purchase of Prometheus, and its potential for causing Breyer to recuse, was first reported Tuesday evening on the Dow Jones News Wire by the service’s Supreme Court reporter, Brent Kendall.   The story said that the Court had no comment on whether the Justice would disqualify himself or whether he still owned the Nestle stock.

If the Mayo case is to be decided by an eight-member Court, that raises the possibility of a 4-4 split among the participating Justices.   If that occurs, the result is a simple order, without an opinion, upholding the lower court ruling at issue but without setting a precedent beyond the specific lawsuit.   In the Mayo case, the Federal Circuit Court upheld the patent on the medical diagnosis kit on which Prometheus holds the exclusive license.  That would end the Mayo group’s legal claim.

Mayo had recently gained something of an advantage in the case because the Justice Department entered the case and, while it supported the Federal Circuit’s decision that Prometheus’s medical diagnosis kit was eligible for a patent, the patent probably should be declared invalid because the invention may not have been anything beyond a mere adaptation of already-existing technology.

If Breyer is going to recuse, that would be apparent when the Justices go to the bench on Wednesday at 10 a.m.

Recommended Citation: Lyle Denniston, UPDATED: A recusal in Mayo case?, SCOTUSblog (Dec. 6, 2011, 9:43 PM),