BERLIN — A gynecologist accused of using his own sperm to get a woman pregnant in the 1970s is asking a judge to reconsider ordering him to give a DNA sample.

Cheryl and Peter Rousseau, now of Florida, filed the lawsuit Dec. 4 in U.S. District Court in Burlington. 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 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.

Coates has denied he’s the daughter’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 for medical negligence, failure to obtain informed consent, fraud, battery, negligent and intentional infliction of emotional distress and breach of contract. They are seeking more than $75,000 in damages.

Coates, through his attorney Peter Joslin, had filed a motion to dismiss the lawsuit. He cited the state’s parentage law which said sperm donors cannot be genetically tested to find out if they are the father of a child. So the Rousseaus have to establish that Coates is the woman’s father, but they can’t do that because they claim he was a sperm donor, according to the motion.

Last month Judge William K. Sessions III denied Coates’ motion to dismiss saying the state’s parentage law doesn’t apply here because this case is primarily about alleged fraud.

At the same time, Judge Sessions granted a motion by the Rousseaus seeking a DNA sample from Coates to see if he is the father. He said the Rousseaus pointed out the services the daughter used for DNA matching are open to “a variety of attacks” on reliability, such as chain of custody and error rates. And because this suit focuses on whether Coates is the father of the daughter or not, Judge Sessions said there is good cause for more testing.

Joslin has since filed a motion asking the judge to reconsider. Joslin did not respond to a request for comment Tuesday.

In the motion, Joslin said the judge erred in granting the Rousseaus motion for a DNA sample because the federal rule that deals with examinations in civil procedures talks about someone’s mental or physical condition being “in controversy.” Joslin said in this case the Rousseaus are the ones who put Coates’ physical condition, or his DNA, in controversy, not Coates. And because the Rousseaus are basing their request for the DNA sample on the allegations they’ve made against Coates they haven’t given enough information for an “affirmative showing” as to why the sample is needed.

“It would seem clear that to (meet) their burden, Plaintiffs must, as it were, ‘put their cards on the table,’ and disclose the basis of their allegations against Dr. Coates so that the Court can fulfill its ‘function mandated by the Rule,” Joslin wrote.

Celeste Laramie, another attorney representing the Rousseaus, said Tuesday she doesn’t expect Joslin’s motion to be successful and the Rousseaus will be filing an opposition to it. Laramie said the motion was another delay tactic in the case.

eric.blaisdell @timesargus.com

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