Courts, Alternative Dispute Resolution, Due Process, and Ethics

Scenario I: Courts and Alternative Dispute Resolution

Alana Mendes suffered from Alzheimer’s, and was admitted to the Bay Pines Rehabilitation Center. Because of her mental condition, Alana’s daughter, Juanita, completed the admissions paperwork and signed the admissions agreement. The admissions documents included a clause that required parties to submit any disputes for arbitration. When Alana was released from the center four months later, she sued for negligent treatment and malpractice during her stay. Bay Pines moved to require arbitration.

This is a claim of negligent care, not a breach of a commercial contract. Is it ethical for medical facilities to impose mandatory arbitration? Is there really any bargaining over such terms?

Should a person with limited mental capacity be held to the arbitration clause agreed to by the next-of-kin who signed on behalf of that person?

In 2016, a report found extremely high rates of obvious plagiarism in the theses of graduate students in the MBA program in the College of Business at Western State University. Two full-time faculty members and three adjuncts were identified for ignoring their ethical responsibilities and contributing to negligence toward issues of academic misconduct. Assistant Professor Mark Day was one of the five professors identified in the report. The findings were published during a press conference in May 2016. The dean of the College of Business, Derrick Dawson, removed Day's responsibilities for advising graduate students and scheduled him for undergraduate courses for the next semester. Day filed suit in a federal district court against Dawson, the university, and others for violating his due process rights by publicizing accusations about his role in plagiarism without providing him with a meaningful opportunity to clear his name in public.

What does due process require in these circumstances?

Would the outcome be different if a mandatory arbitration clause was provided in Day’s contract and the university filed to dismiss the suit to require arbitration?

Jessica Smith is the vice president of new drug development at Generic Phama, Inc, a pharmaceutical research company in Boston, Massachusetts.  One year ago, she filed an application with the Food and Drug Administration (FDA) to obtain approval of a new drug for treating cancer.  Smith met Joe Spencer at a convention three months ago and invited him to her room at the hotel.  The two parted ways.  Spencer worked as the director for approval of new drugs at the FDA.  Two weeks later, Spencer wrote Smith a letter on FDA letterhead stating, “It was nice to see your name cross my desk on our company’s application for approval of the new cancer drug. I’d really like to see you again.  Why don’t you come visit me in Washington this weekend?”

Smith considered requesting that the petition be referred to another director at the FDA.  However, she is concerned that the transfer would delay the approval process for at least a year.  Smith’s chief scientist advised her that a key competitor plans to introduce a similar drug on the market in three months. 

Are there any legal or ethical barriers to relationships between corporate officers and members of administrative agencies involved in reviewing or regulating corporate activity?

What should she do?   

What would you advise her to do if you were head of human resources or legal counsel for Generic Pharma, Inc.