BERLIN — There are no decisions yet on motions, but another filing has been made in a lawsuit involving a gynecologist accused of using his own sperm to get a woman pregnant in the 1970s.

Cheryl and Peter Rousseau, now of Florida, filed the lawsuit in U.S. District Court in Burlington on Dec. 4. The lawsuit states the couple decided to partake in artificial insemination in 1977 because they wanted to have a child after Peter Rousseau had a vasectomy.

The lawsuit said Dr. John Boyd Coates III was a practicing gynecologist and was working out of Central Vermont Hospital, the former name of Central Vermont Medical Center.

The Rousseaus allege Coates agreed to artificially inseminate Cheryl Rousseau using sperm from an unnamed medical student who resembled Peter Rousseau, but ended up using his own sperm.

The hospital is also a defendant in the lawsuit. Coates has denied he’s the woman’s father.

Barbara Rousseau worked with a geneticist to identify her biological father to learn about her family’s medical history, according to Jerome O’Neill, one of the attorneys representing the Rousseaus. Barbara Rousseau said she used publicly available information from genetic testing databases such as 23andMe.com and Ancestry.com when she discovered her father was Coates, the lawsuit says.

The Rousseaus are suing Coates and the hospital for medical negligence, failure to obtain informed consent, fraud, battery, negligent and intentional infliction of emotional distress, breach of contract, consumer protection act violation and negligent supervision. They are seeking over $75,000 in damages.

The latest motion in the case sees the Rousseaus asking for a DNA sample from Coates. The Rousseaus said in the motion the procedure, if approved by the court, could have been done on April 30 at Concentra Urgent Care in South Burlington. The sample would have then been sent to a lab in North Carolina, where it would have been checked against the daughter’s DNA to see if there is a match.

But that did not happen because it’s now May and Judge William K. Sessions III has not ruled on the motion. Sessions hasn’t yet ruled on any motions filed in the case, including motions from Coates and the hospital to dismiss the case.

Peter Joslin, the attorney representing Coates, wrote in his response the motions to dismiss need to be addressed first because a state court should be the one to deal with parentage, not a federal court.

“Further, to permit genetic testing to proceed, prior to resolution of the jurisdictional question, would deny Defendant access to the procedural safeguards that litigation in state family court would afford him,” Joslin wrote.

Joslin also wrote that the Rousseaus are incorrectly relying on a federal rule to compel Coates to provide his DNA. The rule says if there is a pending case where someone’s physical condition is “in controversy,” that person may be subject to physical examination by an expert. In this case, the Rousseaus said Coates is the person in question and the “controversy” is him being the father to their daughter.

Joslin wrote that when that rule was made, the authors had no idea DNA testing would come to be. He said no federal court has ruled that specific rule should be used to compel someone to give their DNA.

Celeste E. Laramie, another attorney representing the Rousseaus, wrote that the rule includes the phrase “blood group” along with physical and mental condition as things that can be examined by an expert. She said that’s specifically because there was a paternity case from 1940 where the husband asked for a blood test to see if he was the father of his wife’s child during a divorce proceeding.

She said the D.C. Circuit upheld a district court’s order to provide the blood sample, stating: “If the child is [the husband’s], the tests will prove nothing and harm no one. If the child is not his, it would be unjust to prevent him from proving the fact.”

eric.blaisdell

@timesargus.com

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