Dahl v. HEM Pharmaceuticals Corp. – Case Brief
Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399 (9th Cir. 1999).
Facts: Dahl (P) was one of 18 sufferers of chronic fatigue syndrome enrolled in an experimental program to test a new medicine called Ampligen made by Hem (D). It was a double blind experiment designed to meet FDA requirements. All of the patients signed a consent form that disclosed possible side effects and the volunteers were free to withdraw at any time. Hem promised a full year’s supply of the drug to any patient who completed the experiment. After the experiment, the FDA determined that the drug was not safe for widespread use although it permitted clinical testing to continue. D refused to supply the patients with the full year’s supply of the drug. P sought a mandatory injunction to compel D to provide the drug. D argued that there was no such contract.
Issue: If a party seeks merely performance of an offer, does that create the obligation to fulfill the contract offer once performance has been rendered?
Holding and Rule: Yes. D sought to have Ps participate in its study in order to obtain approval from the FDA. D argued that there was no consideration and therefore no contract because Ps participated voluntarily and were free to withdraw at any time. The court held that the arrangement was a unilateral offer and not a bargain of a promise for a promise. The promise was that if the participants completed the experiment they would receive a free year’s supply of the drug. Because Ps completed the experiment D was required to fulfill its promise by supplying Ps with one year’s supply of the drug at no charge.
Disposition: For P.