Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1994 as part of a special issue imagining what the legal world might look like in 2009.

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more likely to develop any other health problems, including the ones of which these plaintiffs complain.

“But even if you suspect there might be some association between OCD susceptibility and what the plaintiffs (not we) call the ‘smart genes,’ that’s not our responsibility. If some of these parents were so ambitious, so eager to have exceptional kids, that they ignored our disclaimers and misused our process to choose what somc magazine article said would be the ‘smartest’ embryos, how in good conscience can they say that we made them do it?

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“If these parents had never used our process, these children would either have been born with the same problems they have now, or they would not have been born at all, because other embryos would have been brought to term instead. That is what these parents’ claims inexorably boil down to: They are saying that their children should never have been born.”

The blame-the-moms defense got its punch from Coleman’s video-assisted cross-examination, especially of Michael Hays’s mother, Sharon, of Mill Valley, California. On direct-answering so discursively that Belli privately called her “Illy runaway witness” -she told of being beguiled by a slick-talking Sanlls salesman who promised that for $20,000, she would practically be guaranteed a nawless, tall, bright, athletic child.

On cross, Coleman was so gentle he almost seemed, at first, to be on her side. “I take it, Mrs. Hays,” he intoned, “that what brought you to Sanus was your desire to screen for birth defects, and your religious misgivings about abortion? Not that you had seen something in [he mass media about how you could have a supersmart kid genetically programmed to get ahead?”

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

The trap was set. Coleman turned to his video disc machine and searched the audio track for “Hays/abort!” Suddenly, with a click of the mouse, a younger and flashier Mrs. Hays loomed on the big courtroom monitor, swathed in cashmere and fIaunting a big diamond. The video was from the year 2000, and Mrs. Hays and her then-husband were undergoing the initial client screening session that had become part of their video contract with Sanus.

The Sanus counselor carefully explained that the company could guarantee nothing except that its embryo-screening technique had proven effective in tests in Poland, Hungary, and China in identifying embryos with (and without) detectable defects or disease-prone genes. Early results also suggested that the Sanus process could identify embryos that were relatively likely to have certain positive attributes, including height.

“The company makes no claim,” the Sanus counselor said, “that any of its test results have any bearing on intelligence. We are constrained to advise you to disregard media reports suggesting that the Sanus process can identify embryos likely to be exceptional in certain specific components of intellectual aptitude: The regulatory authorities have not found the process to be effective for that purpose. And in any event, intelligence is far too multifaceted a phenomenon to be gauged with precision by any gene test.”

The counselor also warned that while Sanus had no reason to believe that embryo selection would increase the risk of having a child with health problems – and considerable evidence that it would decrease that risk – this was not a sure thing; the process was too new for long-range test results to be available.

The on-screen Mrs. Hays evinced little interest in all this. “Look,” she said, “let’s get on with it. Save your disclaimers for the welfare mothers. I know what I’m doing. I went to Princeton and Stanford Law School, and I want a healthy kid with enough brains to do what l did. I’m paying you people to tell me which embryo has the best shot. I’d rather get an abortion than raise my child to be a waitress or a janitor or a nurse or something.”

The waitress and the nurse on the jury listened impassively as Tilton Coleman shut ofT the video image and mopped up. “Isn’t it true, Mrs. Hays,” he asked in a voice so soft that jurors had to strain to hear him, “that you were warned there were no guarantees? Isn’t it true that you went into this with your eyes open? Isn’t it true that you wanted an Ivy League baby so bad that you would have aborted any fetus that didn’t meet your standards?

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

Strong stuff. As Sanus chairman Kerney watched from a jetliner backed up above Rio de Janeiro, he appreciated Coleman’s foresight in insisting that all client meetings in the U.S. be scripted, videotaped, and incorporated into video contracts to provide unassailable evidence of informed consent.

And as Belli watched her witness self-destruct, she cursed herself (according to a source close to the plaintiffs team) for having assumed that a Stanford-trained lawyer like Sharon Hays would have had the sense to review her video contract in the on-line case file – as Belli had urged her to do – before taking the stand. “Even the space-cadet profs at Yale taught us not to get caught contradicting ourselves,” Belli later quipped to a colleague, “and they knew a whole lot more pop sociology than law.”

‘Smartkid’ and ‘Homemade Eugenics’

But most of the mothers were not so easily discredited as Sharon Hays. And some of the early Sanus advertisements had been less judicious than its counseling sessions. Belli had had a field day with one ad, which Coleman had first seen on CNN-Financial in March 2000, while channel surfing during a lunch break in a trek across the Kumbu Glacier, en route to the Everest Base Camp. “Want your child to be healthy?” the ad began. “Want her to be genetically ‘dressed for success’? At Sanus, we can’t guarantee you brilliance. But we can promise you the pick of your own litter. The Chinese are doing it, The Japanese are doing it. Shouldn’t you be doing it.?”

Cute. Too cute by half. Especially the coda: “Dial 1-800-SMARTKID.” Colelman dialed Kerney instead, reaching him via personal communicator at Michael Milken’s casino in Havana. The lawyer alternately cursed and gasped for breath – at 17,000 feet, cursing takes a toll – as he demanded that Kerney “pul…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtro…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more l…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more likely to develop any other health problems, including the ones of which these plaintiffs complain.

“But even if you suspect there might be some association between OCD susceptibility and what the plaintiffs (not we) call the ‘smart genes,’ that’s not our responsibility. If some of these parents were so ambitious, so eager to have exceptional kids, that they ignored our disclaimers and misused our process to choose what somc magazine article said would be the ‘smartest’ embryos, how in good conscience can they say that we made them do it?

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“If these parents had never used our process, these children would either have been born with the same problems they have now, or they would not have been born at all, because other embryos would have been brought to term instead. That is what these parents’ claims inexorably boil down to: They are saying that their children should never have been born.”

The blame-the-moms defense got its punch from Coleman’s video-assisted cross-examination, especially of Michael Hays’s mother, Sharon, of Mill Valley, California. On direct-answering so discursively that Belli privately called her “Illy runaway witness” -she told of being beguiled by a slick-talking Sanlls salesman who promised that for $20,000, she would practically be guaranteed a nawless, tall, bright, athletic child.

On cross, Coleman was so gentle he almost seemed, at first, to be on her side. “I take it, Mrs. Hays,” he intoned, “that what brought you to Sanus was your desire to screen for birth defects, and your religious misgivings about abortion? Not that you had seen something in [he mass media about how you could have a supersmart kid genetically programmed to get ahead?”

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

The trap was set. Coleman turned to his video disc machine and searched the audio track for “Hays/abort!” Suddenly, with a click of the mouse, a younger and flashier Mrs. Hays loomed on the big courtroom monitor, swathed in cashmere and fIaunting a big diamond. The video was from the year 2000, and Mrs. Hays and her then-husband were undergoing the initial client screening session that had become part of their video contract with Sanus.

The Sanus counselor carefully explained that the company could guarantee nothing except that its embryo-screening technique had proven effective in tests in Poland, Hungary, and China in identifying embryos with (and without) detectable defects or disease-prone genes. Early results also suggested that the Sanus process could identify embryos that were relatively likely to have certain positive attributes, including height.

“The company makes no claim,” the Sanus counselor said, “that any of its test results have any bearing on intelligence. We are constrained to advise you to disregard media reports suggesting that the Sanus process can identify embryos likely to be exceptional in certain specific components of intellectual aptitude: The regulatory authorities have not found the process to be effective for that purpose. And in any event, intelligence is far too multifaceted a phenomenon to be gauged with precision by any gene test.”

The counselor also warned that while Sanus had no reason to believe that embryo selection would increase the risk of having a child with health problems – and considerable evidence that it would decrease that risk – this was not a sure thing; the process was too new for long-range test results to be available.

The on-screen Mrs. Hays evinced little interest in all this. “Look,” she said, “let’s get on with it. Save your disclaimers for the welfare mothers. I know what I’m doing. I went to Princeton and Stanford Law School, and I want a healthy kid with enough brains to do what l did. I’m paying you people to tell me which embryo has the best shot. I’d rather get an abortion than raise my child to be a waitress or a janitor or a nurse or something.”

The waitress and the nurse on the jury listened impassively as Tilton Coleman shut ofT the video image and mopped up. “Isn’t it true, Mrs. Hays,” he asked in a voice so soft that jurors had to strain to hear him, “that you were warned there were no guarantees? Isn’t it true that you went into this with your eyes open? Isn’t it true that you wanted an Ivy League baby so bad that you would have aborted any fetus that didn’t meet your standards?

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

Strong stuff. As Sanus chairman Kerney watched from a jetliner backed up above Rio de Janeiro, he appreciated Coleman’s foresight in insisting that all client meetings in the U.S. be scripted, videotaped, and incorporated into video contracts to provide unassailable evidence of informed consent.

And as Belli watched her witness self-destruct, she cursed herself (according to a source close to the plaintiffs team) for having assumed that a Stanford-trained lawyer like Sharon Hays would have had the sense to review her video contract in the on-line case file – as Belli had urged her to do – before taking the stand. “Even the space-cadet profs at Yale taught us not to get caught contradicting ourselves,” Belli later quipped to a colleague, “and they knew a whole lot more pop sociology than law.”

‘Smartkid’ and ‘Homemade Eugenics’

But most of the mothers were not so easily discredited as Sharon Hays. And some of the early Sanus advertisements had been less judicious than its counseling sessions. Belli had had a field day with one ad, which Coleman had first seen on CNN-Financial in March 2000, while channel surfing during a lunch break in a trek across the Kumbu Glacier, en route to the Everest Base Camp. “Want your child to be healthy?” the ad began. “Want her to be genetically ‘dressed for success’? At Sanus, we can’t guarantee you brilliance. But we can promise you the pick of your own litter. The Chinese are doing it, The Japanese are doing it. Shouldn’t you be doing it.?”

Cute. Too cute by half. Especially the coda: “Dial 1-800-SMARTKID.” Colelman dialed Kerney instead, reaching him via personal communicator at Michael Milken’s casino in Havana. The lawyer alternately cursed and gasped for breath – at 17,000 feet, cursing takes a toll – as he demanded that Kerney “pul…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtro…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more likely to develop any other health problems, including the ones of which these plaintiffs complain.

“But even if you suspect there might be some association between OCD susceptibility and what the plaintiffs (not we) call the ‘smart genes,’ that’s not our responsibility. If some of these parents were so ambitious, so eager to have exceptional kids, that they ignored our disclaimers and misused our process to choose what somc magazine article said would be the ‘smartest’ embryos, how in good conscience can they say that we made them do it?

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“If these parents had never used our process, these children would either have been born with the same problems they have now, or they would not have been born at all, because other embryos would have been brought to term instead. That is what these parents’ claims inexorably boil down to: They are saying that their children should never have been born.”

The blame-the-moms defense got its punch from Coleman’s video-assisted cross-examination, especially of Michael Hays’s mother, Sharon, of Mill Valley, California. On direct-answering so discursively that Belli privately called her “Illy runaway witness” -she told of being beguiled by a slick-talking Sanlls salesman who promised that for $20,000, she would practically be guaranteed a nawless, tall, bright, athletic child.

On cross, Coleman was so gentle he almost seemed, at first, to be on her side. “I take it, Mrs. Hays,” he intoned, “that what brought you to Sanus was your desire to screen for birth defects, and your religious misgivings about abortion? Not that you had seen something in [he mass media about how you could have a supersmart kid genetically programmed to get ahead?”

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

The trap was set. Coleman turned to his video disc machine and searched the audio track for “Hays/abort!” Suddenly, with a click of the mouse, a younger and flashier Mrs. Hays loomed on the big courtroom monitor, swathed in cashmere and fIaunting a big diamond. The video was from the year 2000, and Mrs. Hays and her then-husband were undergoing the initial client screening session that had become part of their video contract with Sanus.

The Sanus counselor carefully explained that the company could guarantee nothing except that its embryo-screening technique had proven effective in tests in Poland, Hungary, and China in identifying embryos with (and without) detectable defects or disease-prone genes. Early results also suggested that the Sanus process could identify embryos that were relatively likely to have certain positive attributes, including height.

“The company makes no claim,” the Sanus counselor said, “that any of its test results have any bearing on intelligence. We are constrained to advise you to disregard media reports suggesting that the Sanus process can identify embryos likely to be exceptional in certain specific components of intellectual aptitude: The regulatory authorities have not found the process to be effective for that purpose. And in any event, intelligence is far too multifaceted a phenomenon to be gauged with precision by any gene test.”

The counselor also warned that while Sanus had no reason to believe that embryo selection would increase the risk of having a child with health problems – and considerable evidence that it would decrease that risk – this was not a sure thing; the process was too new for long-range test results to be available.

The on-screen Mrs. Hays evinced little interest in all this. “Look,” she said, “let’s get on with it. Save your disclaimers for the welfare mothers. I know what I’m doing. I went to Princeton and Stanford Law School, and I want a healthy kid with enough brains to do what l did. I’m paying you people to tell me which embryo has the best shot. I’d rather get an abortion than raise my child to be a waitress or a janitor or a nurse or something.”

The waitress and the nurse on the jury listened impassively as Tilton Coleman shut ofT the video image and mopped up. “Isn’t it true, Mrs. Hays,” he asked in a voice so soft that jurors had to strain to hear him, “that you were warned there were no guarantees? Isn’t it true that you went into this with your eyes open? Isn’t it true that you wanted an Ivy League baby so bad that you would have aborted any fetus that didn’t meet your standards?

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

Strong stuff. As Sanus chairman Kerney watched from a jetliner backed up above Rio de Janeiro, he appreciated Coleman’s foresight in insisting that all client meetings in the U.S. be scripted, videotaped, and incorporated into video contracts to provide unassailable evidence of informed consent.

And as Belli watched her witness self-destruct, she cursed herself (according to a source close to the plaintiffs team) for having assumed that a Stanford-trained lawyer like Sharon Hays would have had the sense to review her video contract in the on-line case file – as Belli had urged her to do – before taking the stand. “Even the space-cadet profs at Yale taught us not to get caught contradicting ourselves,” Belli later quipped to a colleague, “and they knew a whole lot more pop sociology than law.”

‘Smartkid’ and ‘Homemade Eugenics’

But most of the mothers were not so easily discredited as Sharon Hays. And some of the early Sanus advertisements had been less judicious than its counseling sessions. Belli had had a field day with one ad, which Coleman had first seen on CNN-Financial in March 2000, while channel surfing during a lunch break in a trek across the Kumbu Glacier, en route to the Everest Base Camp. “Want your child to be healthy?” the ad began. “Want her to be genetically ‘dressed for success’? At Sanus, we can’t guarantee you brilliance. But we can promise you the pick of your own litter. The Chinese are doing it, The Japanese are doing it. Shouldn’t you be doing it.?”

Cute. Too cute by half. Especially the coda: “Dial 1-800-SMARTKID.” Colelman dialed Kerney instead, reaching him via personal communicator at Michael Milken’s casino in Havana. The lawyer alternately cursed and gasped for breath – at 17,000 feet, cursing takes a toll – as he demanded that Kerney “pul…

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been “caused” by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more likely to develop any other health problems, including the ones of which these plaintiffs complain.

“But even if you suspect there might be some association between OCD susceptibility and what the plaintiffs (not we) call the ‘smart genes,’ that’s not our responsibility. If some of these parents were so ambitious, so eager to have exceptional kids, that they ignored our disclaimers and misused our process to choose what somc magazine article said would be the ‘smartest’ embryos, how in good conscience can they say that we made them do it?

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“If these parents had never used our process, these children would either have been born with the same problems they have now, or they would not have been born at all, because other embryos would have been brought to term instead. That is what these parents’ claims inexorably boil down to: They are saying that their children should never have been born.”

The blame-the-moms defense got its punch from Coleman’s video-assisted cross-examination, especially of Michael Hays’s mother, Sharon, of Mill Valley, California. On direct-answering so discursively that Belli privately called her “Illy runaway witness” -she told of being beguiled by a slick-talking Sanlls salesman who promised that for $20,000, she would practically be guaranteed a nawless, tall, bright, athletic child.

On cross, Coleman was so gentle he almost seemed, at first, to be on her side. “I take it, Mrs. Hays,” he intoned, “that what brought you to Sanus was your desire to screen for birth defects, and your religious misgivings about abortion? Not that you had seen something in [he mass media about how you could have a supersmart kid genetically programmed to get ahead?”

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

The trap was set. Coleman turned to his video disc machine and searched the audio track for “Hays/abort!” Suddenly, with a click of the mouse, a younger and flashier Mrs. Hays loomed on the big courtroom monitor, swathed in cashmere and fIaunting a big diamond. The video was from the year 2000, and Mrs. Hays and her then-husband were undergoing the initial client screening session that had become part of their video contract with Sanus.

The Sanus counselor carefully explained that the company could guarantee nothing except that its embryo-screening technique had proven effective in tests in Poland, Hungary, and China in identifying embryos with (and without) detectable defects or disease-prone genes. Early results also suggested that the Sanus process could identify embryos that were relatively likely to have certain positive attributes, including height.

“The company makes no claim,” the Sanus counselor said, “that any of its test results have any bearing on intelligence. We are constrained to advise you to disregard media reports suggesting that the Sanus process can identify embryos likely to be exceptional in certain specific components of intellectual aptitude: The regulatory authorities have not found the process to be effective for that purpose. And in any event, intelligence is far too multifaceted a phenomenon to be gauged with precision by any gene test.”

The counselor also warned that while Sanus had no reason to believe that embryo selection would increase the risk of having a child with health problems – and considerable evidence that it would decrease that risk – this was not a sure thing; the process was too new for long-range test results to be available.

The on-screen Mrs. Hays evinced little interest in all this. “Look,” she said, “let’s get on with it. Save your disclaimers for the welfare mothers. I know what I’m doing. I went to Princeton and Stanford Law School, and I want a healthy kid with enough brains to do what l did. I’m paying you people to tell me which embryo has the best shot. I’d rather get an abortion than raise my child to be a waitress or a janitor or a nurse or something.”

The waitress and the nurse on the jury listened impassively as Tilton Coleman shut ofT the video image and mopped up. “Isn’t it true, Mrs. Hays,” he asked in a voice so soft that jurors had to strain to hear him, “that you were warned there were no guarantees? Isn’t it true that you went into this with your eyes open? Isn’t it true that you wanted an Ivy League baby so bad that you would have aborted any fetus that didn’t meet your standards?

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

Strong stuff. As Sanus chairman Kerney watched from a jetliner backed up above Rio de Janeiro, he appreciated Coleman’s foresight in insisting that all client meetings in the U.S. be scripted, videotaped, and incorporated into video contracts to provide unassailable evidence of informed consent.

And as Belli watched her witness self-destruct, she cursed herself (according to a source close to the plaintiffs team) for having assumed that a Stanford-trained lawyer like Sharon Hays would have had the sense to review her video contract in the on-line case file – as Belli had urged her to do – before taking the stand. “Even the space-cadet profs at Yale taught us not to get caught contradicting ourselves,” Belli later quipped to a colleague, “and they knew a whole lot more pop sociology than law.”

‘Smartkid’ and ‘Homemade Eugenics’

But most of the mothers were not so easily discredited as Sharon Hays. And some of the early Sanus advertisements had been less judicious than its counseling sessions. Belli had had a field day with one ad, which Coleman had first seen on CNN-Financial in March 2000, while channel surfing during a lunch break in a trek across the Kumbu Glacier, en route to the Everest Base Camp. “Want your child to be healthy?” the ad began. “Want her to be genetically ‘dressed for success’? At Sanus, we can’t guarantee you brilliance. But we can promise you the pick of your own litter. The Chinese are doing it, The Japanese are doing it. Shouldn’t you be doing it.?”

Cute. Too cute by half. Especially the coda: “Dial 1-800-SMARTKID.” Colelman dialed Kerney instead, reaching him via personal communicator at Michael Milken’s casino in Havana. The lawyer alternately cursed and gasped for breath – at 17,000 feet, cursing takes a toll – as he demanded that Kerney “pull that B.S. ofT the air right now,” one party to thc conversation recalls with a chuckle. Kerney was almost as horrified by the ad (which he had not seen) as Coleman; he pulled it and fired the agency the next morning. Sanus – already besieged by ambitious parents like Mrs. Hays – did not need to oversell itself, let alone do it so tastelessly.

A lawyer’s work is never done. But in this case, it was done a bit too late. Despite its brier shelf life, the 1-800- SMARTKID ad had brought a quick slap from the Federal Trade Commission and made Sanus a lightning rod for the growing criticism of “homemade eugenics,” in the phrase coined by Robert Wright of the old New Republic.

It also served as a mortar shell in Marjorie Belli’s courtroom arsenal. Belli skillfully wove it together with the causation theories of her “junk science experts,” as Coleman called them, whose testimony was piped in from Sri Lanka and Miami. This evidence, and the testimony of Dr. Samuel Martin – the disgruntled former employee who accused Sanus of covering up evidence that embryos selected for the “smart gene” were unusually susceptible to OCD – got Belli’s case to the jury.

Belli had persuaded U.S. district judge Sally Lamar Ellis to try a sampling of nine cases, so as to resolve the threshold question of causation, and to set the stage for possible certification of a class action and facilitate settlements of the 300 other cases waiting in the wings.

DOING WELL BY DOING GOOD?

This sort of battle was hardly what Coleman had had in mind when he had agreed in 1997 to help his old friend and college roommate Regan Kerney launch his pioneering biotech venture. Kerney and Coleman had wanted to do well, but also to do good. And they have, as they see it – by enabling would-be parents, without the trauma of amniocentesis and abortion, to improve their chances of having babies without defects or serious disease genes, and maybe with a leg up in key components 01″ innate intelligence – although the company cannot make the latter claim publicly without gelling in trouble with the Food, Drug, and Biotechnology Administration (FDBA).

The concept was as simple as the science was sophisticated: Instead of making babies the old-fashioned way – and praying for a healthy fetus – parents could improve their odds by mating the man’s sperm with the woman’s eggs in vitro to create ten or (after egg-cloning had been perfected in 2004) 100 pre-embryos. Each embryo’s genetic materials would then be tested and analyzed, using a technique called ReproChoice that Kerney developed and patented soon after leaving the Human Genome Project. The tests wouId screen for detectable defects (such as Down’s syndrome) and serious disease genes, including cystic fibrosis, Alzheimer’s disease, Huntington’s disease, ataxia, Tay-Sachs disease, sickle-cell anemia, hemophilia, and various cancers; they would also identify embryos with genes that appeared to carry exceptional endowments of certain desirable traits, including height, motor skills, and freedom from undue shyness. Using the Sanus test results, couples choose which embryos to have implanted in the mother’s uterus and brought to term.

From the start, Sanus’s cachet, and its profits, have derived in significant part from the publicity suggesting that its process call identify “smart embryos.” While FDBA regulations prohibit Sanus 1″rom claiming that on its own behalf, the company says it cannot stop clients from using its raw test data about each embryo – which Sanus is contractually obliged to give to clients – to identify any embryos with the sequences of genetic code that media reports have associated with “smart embryos.”

That unfortunate phrase was coined by Kerney himself, in a controversial article he coauthored in 1997, shortly before leaving the Human Genome Project to found Sanus. The article posited correlations between key attributes of innate intelligence – notably memory capacity and spatial conceptualization – and·the presence of particular sequences of genetic code at specific locations on an embryo’s (or an adult’s) fourth and fourteenth chromosomes.

Initially dismissed by the scientific establishment as recklessly speculative, Kerney’s “smart embryo” hypothesis has gained some notable adherents over the years. And it became a media sensation a decade ago, when Newsweek put Kerney on its cover under the headline, “This Man Can Bring You a Healthier Baby. Can He Bring You a Smarter One Too?”

By then, Sanus was up and running, thanks largely to Kerney’s development and patenting of ReproChoice, the diagnostic technique that made embryo screening workable on a mass basis by leapfrogging the more primitive PCR gene-testing technique. ReproChoice enabled Sanus to zero in inexpensively on significant sequences of genetic code, including those present in disease-prone embryos and in so-called “smart embryos” alike.

Kerney knew, of course, that there was no way the FDBA would allow U.S. marketing of ReproChoice based on his still-speculative “smart embryo” claims. But Sanus did win interim FDBA approval to market it as a tool for identifying defective and disease-prone genes. That was in late 1999, after the short-range human test results had come in from Poland and Hungary. By then Sanus had a booming business overseas, including multimillion-dollar contracts with the Chinese government and a government-sponsored corporation in Singapore. And by 2001, more than 200,000 Chinese embryos selected through the Sanus process had been implanted and brought to term.

The breathless media reports about “smart embryos” have long been fanned by the claims of the governments of China and Singapore that embryos selected through the Sanus process were growing into gifted toddlers-almost all of them above average in IQ-with a remarkably high incidence or mathematical geniuses.

QUALMS AND ASSURANCES

Tilton Coleman was principal outside counsel for Sanus from the start. His friend Kerney wouldn’t have it any other way. Although Kerney could not persuade the lawyer to leave his career as a rising star at Munger, Tolles to help run the company full time, Coleman did agree to be vicc-chairman of the board. Kerney’s most trusted confidant, he handled the company’s major litigation, while farming out FDBA and patent work.

Coleman makes no secret of the fact that a part of him had misgivings at first about Kerney’s enterprise. It was the same part of him that had always been uneasy about abortion. Coleman had asked Kerney, “Aren’t you tampering with nature, or playing God, or interfering with the Darwinian process, or all three? And what about the nine [now 99] embryos that get discarded for each one that gets implanted – aren’t those potential human lives too?”

Kerney’s answers went something like this, he recalls:

“My process will improve on nature without perverting it, just like vaccinations to protect kids from disease and every other step in human progress since we started lighting fires. If God didn’t want us tampering with nature, he could have stopped us long before now.

“The embryos we help parents select will he no less natural than those produced through good, old-fashioned sex. All we’re doing is improving the odds of putting one of the healthier eggs together with one of the healthier sperm, so that the baby will have a better chance of fitness, survival, and, yes, success in life – the things every parent wants for her children. Why should couples have to take a shot in the dark on which of a zillion sperm, and which of a zillion eggs, will get to the front of the line?

“As for the discarded embryos, well, taking a morning-after pill is more like stopping a potential human life than my process is. The pill often comes in after an egg has been fertilized by stopping the natural process of implantation in the uterus. All I’m going to do is take some sperm and some eggs, put them together, and help people choose which ones to implant.”

Kerney’s last argument was more personal: “Look, Big T, I’m sure going to use embryo screening when I’m ready to have kids – and if you want your own kids to have the best shot you can give them at healthy, happy lives, you’Jj do the same. Think about it.”

Coleman thought about it, and signed on. He still broods about whether the company will be driven by the march of science and the pressure of competition down the slippery slope toward ushering in some Huxleyan brave new world of designer babies, by using genetic engineering to go inside embryos and alter them.

Sanus will soon have to make a major investment in genetic engineering of embryos, if the rapid progress of Stanford’s Small Mammal Open Genome Reconfiguration Initiative (SMOGRT), better known as the Supermouse project, is any guide. The alternative would be to concede the cutting edge of the technology to other companies that won’t be fastidious about the risks and ethics of doing so, like the rapidly growing Genome Enhanced Neurotransmission Improvement Enterprise (GENIE). Nobody who knows Kerney doubts his determination to move forward.

While Coleman appears troubled by that prospect, he is comfortable with what the company has done so far. Or so he says.

MAKING IT BIG, WITH A SOCIAL CONSCIENCE

Salius was so hot by 2003, when it went public that it was the year’s fourth-biggest IPO. Suddenly chairman Kerney, with 51 percent of the stock, was worth more than $200 million on paper; vice-chairman Coleman’s 5 percent was worth a cool $20 million.

Not bad for two guys who had been known as “the odd couple” when they had roomed together at UCLA in the late 1980s – Kerney, the pudgy science-nerd son of a Sillicon Valley software engineer, whose oddly timed, high pitched giggles made him seem a bit daft, and Coleman, the star-halfback from South Central Los Angeles, who graduated magna cum laude after infuriating his coaches by cutting practice to finish his senior thesis.

You don’t get rich by giving your product away. Sanus charges regular customers between $10,000 and $70,000, depending on the number of embryos tested. For this and other reasons the company has long been attacked not only by the right-to-life and natural-baby movements, but also by some liberal and populist critics, who envision a dark scheme to entrench a biosocial caste system by catering to rich people striving to give their embryos a prenatal jump on the poor and the middle classes.

On Coleman’s advice, Kerney blunted such criticism by launching the company’s pro bono publico and diversity programs, which brought Sanus a lot of goodwill and, it develops, a lot of the lawsuits now besieging it, like the one by Nancy and Mary Kendall. Under the pro bono program, Sanus provides its embryo screening service without charge to one indigent client for every three paying clients it serves. Under the diversity program, the company also gives 20-50 percent discounts to all “disadvantaged minority group” members – including people of color (defined to include African-Americans and Latinos, excepting those of Spanish or Cuban ancestry), people with disabilities, and gay women-regardless of financial need or hardship.

The support this policy won from civil rights leaders along with backing from free-market advocates and competitiveness mavens concerned about the “genetic challenge” from the Far East, was a significant factor in the November 1999 interim decision by the FOBA to find ReproChoice safe and effective for use in detecting certain defects and disease-prone genes.

The FOBA’s approval was contingent on adherence to the rigorous informed consent procedures that Coleman had devised for Sanus, and on the company’s agreemcnt to disclaim clearly and prominently any ability to test embryos for any aspect of native intelligence. The FDBA has credited the company with scrupulous adherence to these conditions, except for some episodes involving overly zealous salespeople who were later dismissed.

Sanus also won approving editorials from The New York Times and others by discouraging clients (not always successfully) from choosing embryos for genetically conveyed traits, including eye and skin tones and nasal breadth, that Kerney deemed frivolous, because irrelevant to health, well-being, and capacity for productive activity.

But critics, now led by plaintiffs attorney Marjorie Belli, have accused Kerney of not-so-subtly implying agreement with the extravagant “smart embryo” claims in media interviews and on-line discussion forums, and by failing to denounce such claims (including Kerney’s own 1997 article) clearly as false.

TILTON COLEMAN’S RISING STAR

As Sanus was taking off so was Tilton Coleman. Telecommuting most of the time from his home near Santa Fe, he developed an impressive stable of clients, becoming both the nation’s top biotech defense litigator and a leading exemplar of the new breed of old-fashioned generalist counselor. With his understated charm, his athletic bearing, his air of sincerity, and his flair for making complex scientific explanations understandable to juries, he racked up a string of big wins.

Coleman was making his mark just as the late, unlamented era of hardball litigation was drawing to a close. With the federal judiciary leading the way, the discovery process was radically streamlined. Sweeping obligations to make full disclosure of all relevant facts at the threshold of a lawsuit were imposed on lawyers and litigants, with tough penalties for noncompliance. And strict limits were placed on the number of depositions, which had previously been used largely to fish for information that the rules now required to be surrendered up front.

The courts had also shortened trials dramatically, especially by allowing (with mutual consent) “movie trials” in which witnesses’ testimony was filmed, together with opposing counsel’s objections and cross-examinations, long before the jury was impaneled. Each side would then submit the videotape of its case to the judge, who would rule on objections and delete evidence that the judge considered – with benefit of a video overview or the entire case-to be or marginal or cumulative value.

A jury would then be impaneled and shown the edited videotape, supplemented by any witnesses whom the lawyers preferred to present in person. Many cases that would once have taken more than a week to try could now be presented in a few hours, and witnesses from around the world could testify without ever leaving their hometowns.

(Belli declined to consent to a full movie trial in the Sanus case. She did agree to Coleman’s using videotaped depositions to present the testimony of Kerney and some other key San us witnesses. Coleman now admits that this may have been the wrong trial for that procedure: While his corporate witnesses appeared remote and rehearsed on the big courtroom monitors, Belli’s suffering parents shed their tears live and in three dimensions.)

One result of all this was a huge increase both in the number of speedy settlements and in the number of civil trials. So Coleman was able to try more than 60 big cases between. 1996 and 2006, a record that would have been impossible for the previous generation of litigators.

Coleman also handled his own appeals. He has argued three of them in the U.S. Supreme Court, winning two, including the landmark decision in Sanus v. FDBA, in 2004.

The case had its roots in the Republican National Convention or 2000, when presidential right-wing candidate Patrick Buchanan inflamed the delegates by launching into a passionate denunciation of Sanus, along with abortion clinics and others involved in embryo testing and reproductive choice. After President Cheney won that year’s election (thanks to his now-famous deals with Buchanan and H. Ross Perot), Cheney packed the FDBA with right-to-natural-lifers. The agency lost no time withdrawing its approval of ReproChoice, in an effort to force Sanus out of the U.S. market. Meanwhile, six states, led by Pennsylvania, outlawed use of embryo screening for any purpose other than detection of serious birth defects, and Louisiana outlawed it altogether.

Coleman kept ReproChoice on the market throughout the litigation. First he wielded the Administrative Procedure Act to stymie the Cheney FDBA for over a year. Then he fought the case through the D.C. Circuit, where Judge Theodore Olson tipped the scales in favor or Sanus. And ultimately Coleman beat solicitor general Paul Cappuccio in the Supreme Court, after an oral argument in which he was one of the first to take advantage of the new high court rule allowing advocates to display video testimony and other critical portions of the record on courtroom monitors.

SUPERBABIES MEET SUPREMES

The decision was immediately hailed as the Hoe v. Wade of biotechnology. Chief Justice Kathleen Sullivan’s opinion, joined by the three other Clinton appointees along with David Souter and 95-year-old Harry Blackmun, borrowed heavily from Coleman’s brief:

“If the liberty, dignity, and personal autonomy protected by due process, equal protection, and the Ninth Amendment mean anything,” Sullivan wrote, “surely they mean that a woman has ‘the right to define [her] own concept or existence, of meaning, of the universe, and of the mystery of human life [quoting the 1992 decision in Planned Parenthood v. Casey]. And surely that right is broad enough to encompass a woman’s right to choose which or her own embryos, or which or-a consenting donor’s embryos, she believes would have the best life prospects. It is not within the power of the state to tell a woman she cannot choose which embryo to have implanted in her body. Nor can the state seek to ban such choice indirectly, by outlawing commercial use of the technology that makes embryo screening possible at reasonable cost. We also reject, as a transparent pretext, the government’s claim that it is acting within the scope of its lawful power to ensure that medical devices be safe and effective.”

Justice Antonin Scalia (joined by Clarence Thomas) issued one or his patented poison-pen dissents, which columnist George Will reproduced almost verbatim in his regular “TRB” feature in The New Republic and American Spectator. Reading from the bench, Scalia growled: “The Imperial Judiciary truly reigns supreme when people are permitted promiscuously to play tricks with Mother Nature, am I to disregard the expert judgement or the federal agency tasked with evaluating safety and effectiveness, not because the body politic has chosen to enter this brave new world or genetic manipulation, but because six judges have decided that we must enter it – and by order of the framers or the Constitution! These six judges are, or course, unelected, unaccountable, and – one at least hopes – far past child-bearing age themselves.”

Scalia glowered down the bench at the eternal Blackmun.

Experts never could agree whether to score the votes 6-to-3 or 7-to-2, because Justice Sandra Day O’Connor’s convoluted opinion concurring and dissenting (which Scalia ridiculed as a “a new peak of irrationality”) left it unclear how she should be counted. Citing “our federalism,” O’Connor dissented separately in a 6-to-3 companion case, in which the majority swept aside all of the restrictive state laws.

TORT CLAIMS, RIGHT ON SCHEDULE

Whatever the count, Sanus was in the clear-until the tort litigation hit. It began in 2005 with three suits that Coleman says arrived “right on schedule,” just when he had predicted. By then, the Sanus process had been used to select 45,000 embryos in the U.S. alone, and large numbers of the resulting children were turning 5 years old. In any population that large, it was inevitable that hundreds would develop serious health problems. It was equally inevitable, in the U.S., that many parents would cast about for people to blame, and to sue, and that plaintiffs lawyers would use on-line bulletin boards to scour the globe for more “victims.”

All this was part of the price of admission to the marketplace. What Coleman had not foreseen was the power of pack journalism to turn a trickle of claims into a flood so large that it now threatens the company’s survival. The dam broke when Time published a cover story – head-lined “Sanus-or lnsanity? A Biller Nightmare for Parents Casts a Cloud Over Embryo Selection” – spiced with dark tales by unidentified “former executives” that Sanus had concealed known risks. Soon every on-line network this side of Shanghai was humming with members of the plaintiffs bar exchanging evidence and posting video testimony for others to use.

The most explosive charge by the “former executives” was that Kerney had suppressed data from China suggesting that a disproportionate percentage or embryos that had been selected for their “smart” genes had ended up with serious neurological problems, in particular OCD. A tidal wave of copycat pieces echoed through the mass media.

Kerney knew that Time had in fact talked only to one “former executive”: Dr. Samuel Marlin, the brilliant young physician-scientist who had gone off the reservation in 2003. A surprising number of the Chinese babies had been reported to have OCD, and Martin had theorized that the “smart”‘ genes that were identified by ReproChoice might somehow be paired with genes carrying a predisposition to OCD.

But Kerney, the company’s other top scientists, and the FDBA staff – from which nothing had been “suppressed” – had all studied Martin’s memos and concluded that the methodology underlying the Chinese data was unreliable and that Martin was engaging in speculation rather than scientific proof. Martin stuck to his guns, quitting in 2003 and accusing the company of covering up his findings. He joined the Biogenetic Defense Fund, where he has become a leading critic of the biotech industry and perennial expert witness.

The studies in the past five years have generally upheld Sanus’s claim of effectiveness in screening embryos for detectable defects and disease genes, and of having no known side effects. And Coleman presented an impressive battery or experts at the trial who testified that virtually all of the problems or the babies whose families had sued the company – the schizophrenias, the depressive episodes, the cancers – were no more prevalent among Sanus kids than in the population at large.

SMOKING GUN?

But one critical statistical anomaly has revived Martin’s charges and lent credence to the tort claims. An interim survey of 5,000 San us clients in the U.S. and Europe, completed in 2007, showed that 3.5 percent of the children whose embryos had been selected by parents after having been identified as having “smart” genes had symptoms of OCD by the time they were 6 years old. That was more than twice the incidence (1.6 percent) or OCD in the general population.

“Wow,” Marjorie Belli recalls saying to herself when got the study last July through the pre-trial disclosure process. “This is the smoking gun.”

Was it? At the trial, Coleman’s experts argued that the study proved only that the incidence of OCD in the general population had been grossly underreported, because most people whose children have relatively mild OCD never mention the symptoms or get them diagnosed. The parents in the Sanus survey, on the other hand, had been questioned so carefully about any problems their children might have that many or them had reported concerns that they had never mentioned to their own doctors.

Inside the jury room, an initial poll showed all four women favoring the plaintiffs, with the two men favoring the defense. Both Belli and Coleman had anticipated such a gender breakdown, and had used their peremptory challenges accordingly; neither had objected to the other’s apparent violation of the Supreme Court’s ban on gender based peremptories.

Lydia Woodward, the forewoman, used the trial discs with which the jurors had been provided to drive home her points, according to two other jurors. She showed dozens of clips in which San us witnesses seemed to repeat words like “disclaimer” and “statistical significance” like mantras, juxtaposed with Kerney’s suggestions, in two ill-advised television interviews, that he expected eventually to prove the effectiveness of the Samus process for choosing “smart embryos.”

But the 4-to-2 split held firm through three days of often angry deliberation; every time Woodward played her favorite clips, the male holdouts would reply the Sharon Hays video-cross or the high points of Coleman’s closing. Two of the women later accused these men of “a bullying altitude,” “inappropriately directed laughter,” “gestural harassment,” and hostility to all efforts to seek “empathetic consensual harmony.”

After Judge Ellis had declared the mistrial and the courtroom had emptied, Tilton Coleman’s wife and mother embraced him in the hallway. A little boy was with them, about 6 years old. The boy was rubbing his hands together, rubbing and rubbing – three times left over right, three times right over left. The hands were raw and red. Coleman watched for a moment, his face a knot or concern. Then he picked the boy up and Jollied him. The boy giggled. The hand-rubbing continued.

A reporter hovering nearby caught the lawyer’s eye. “I didn’t know you had a son,” he ventured lamely. The boy looked up, trying to muster a smile. Still rubbing.

“Now you know,” Coleman said slowly. “Now you know.”