BALTIMORE — A federal judge will decide whether the family of Henrietta Lacks has enough legal standing to continue its lawsuit against the biotech company Thermo Fisher Scientific after the two sides argued in court Tuesday about the use of cells taken from Lacks more than 70 years ago.
At question is whether Thermo Fisher — and other companies — ought to compensate Lacks’ living descendants for products derived from cervical cancer cells taken without her consent while she was receiving treatment at Johns Hopkins in 1951. Lacks, a Black woman from Baltimore County, died soon after the cells were taken due to complications from the cancer treatment she received.
Known as HeLa cells, they have been used since for a variety of scientific and medical breakthroughs and treatments. Researchers in the early 1950s used them to develop the polio vaccine, and they were instrumental in mapping the human genome.
The cells are considered the first “immortal” cell line, meaning they continue to reproduce in the laboratory instead of dying.
Lacks’ family is suing Thermo Fisher on the grounds of “unjust enrichment” for continuing to make and sell products derived from HeLa cells. Although it’s not the only company using the cells, Thermo Fisher Scientific is one of the largest biotech companies in the world, with a market cap of $215 billion.
Thermo Fisher attorney Andrew George said what happened to Lacks was morally reprehensible, but he asked the judge to dismiss the case on the grounds that the Lacks family had failed to file a claim in a timely manner. In Maryland, a person has to bring an unjust enrichment claim within three years of first learning about something that might be grounds for a lawsuit.
George pointed out that in 2010, Rebecca Skloot published the bestselling book “The Immortal Life of Henrietta Lacks,” which was later made into an HBO movie and detailed Lacks’ story so well it became one of the best-known examples of American racist medical mistreatment and experimentation.
In 2018, members of the Lacks family went on a media tour to announce they would be filing several lawsuits, George said, which suggests they family missed the three-year window.
Attorneys Ben Crump and Christopher Seeger argued in court that the lawsuit should be allowed to continue because of the continual harm being done against the Lacks family, comparing it to German families who held onto money taken from Holocaust victims.
“They stole pieces of her body; they shouldn’t be allowed to benefit, to copyright those cells, to create new cell lines without even one phone call (to the Lacks family),” Seeger said.
Thermo Fisher Scientific’s own website acknowledges that Lacks’ cells were improperly obtained, with a 2017 blog post calling the use of HeLa cells without Henrietta’s or the Lacks family’s permissions “unsanctioned.”
Judge Deborah Boardman seemed to sympathize with the Lacks family in her questions, calling the case “unprecedented” and saying George failed to convince her to grant his motion to dismiss the case.
Still, she pointed out holes in the lawsuit that Crump and Seeger filed and asked them whether an amended complaint might fix some of her concerns. They agreed. Rather than offer an immediate ruling, Boardman said she would take the matter under advisement, meaning she could issue a decision at her discretion.
“Denying this motion does not only put us on the right side of the law, we believe, but also on the right side of history,” Crump, a nationally acclaimed civil rights lawyer, told Boardman.
The family members have not asked for any specified monetary damages — Crump said they can’t ask for certain amounts until they know how much money has been made on Lacks’ biological material — but are asking for a jury trial and for Boardman to create a trust that would return ownership of the HeLa cells to the family.
Asked why they didn’t file a lawsuit 12 years ago when the book came out, or eight years ago when the movie came out, Crump argued the statute of limitations resets every time a HeLa cell is replicated or used in a new product.
Although that could create a legal headache — theoretically, a new lawsuit could be filed every time this happens so long as the family does not have a say in the use of HeLa cells — it also means there is no finality to the saga, Boardman said.
“Is the Lacks family entitled to any finality?” Boardman asked George.
He could not answer directly, instead saying he understood where the family was coming from.
George also questioned why Thermo Fisher Scientific is the only company being sued.
Seeger responded by noting several other attorneys in the courtroom audience who he said represented other drug companies.
“They’re not going to be alone that long at all,” said Seeger, adding that several other lawsuits, perhaps dozens, could be filed soon.
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