Lawsuit against Thermo Fisher by Henrietta Lacks’ family slowly moves forward

The federal lawsuit that family members of Henrietta Lacks filed against Thermo Fisher Scientific in 2021 — accusing the U.S. biotech giant of “unjust enrichment” for making and selling products that relied on cells taken from her more than 70 years ago — is moving forward slowly.

Ron Lacks, the grandson of Henrietta Lacks, who is representing her estate in the lawsuit, is expected to file a response in about two weeks to Thermo Fisher’s second attempt to dismiss the case.

In November, Ron Lacks and his legal team — which includes the well-known civil rights attorney Ben Crump — filed an amended version of the original complaint with the U.S. District Court in Baltimore after Judge Deborah Boardman pointed out holes in their case during a hearing in May.

During the hearing, lawyers representing Thermo Fisher asked Boardman to dismiss the suit because the Lacks family hadn’t filed the claim in a timely manner. Under Maryland law, a person has to sue for unjust enrichment within three years of first learning of something that might be grounds for a lawsuit.

Thermo Fisher’s lawyers argued that Henrietta Lacks’ story has been one of the most famous examples of racist medical mistreatment and experimentation in America since 2010, when Rebecca Skloot published the bestselling book, “The Immortal Life of Henrietta Lacks.” The book was later made into an HBO movie, starring Oprah Winfrey.

But in the edited complaint, Lacks and his legal team allege that Thermo Fisher’s unjust enrichment from the cells is ongoing, because the multibillion-dollar company continues “to receive a benefit from Henrietta Lacks every time it cultivates, sells, and receives payment for newly-replicated HeLa cells.”

“Thermo Fisher Scientific’s choice to continue selling HeLa cells in spite of the cell lines’ origin and the concrete harms it inflicts on the Lacks family can only be understood as a choice to embrace a legacy of racial injustice embedded in the US research and medical systems,” reads the updated complaint, filed Nov. 18. “Black people have the right to control their bodies. And yet Thermo Fisher Scientific treats Henrietta Lacks’ cells as chattel to be bought and sold.”

Last month, lawyers representing the biotech company again filed a motion to dismiss the lawsuit, arguing that the amended complaint didn’t fix the problems in the original complaint, and created new ones.

The question at the heart of Lacks’ amended lawsuit remains the same: Should Thermo Fisher, and other companies, pay Henrietta Lacks’ living descendants for products derived from cells taken from her by a Johns Hopkins doctor in 1951 without her knowledge or consent while she was receiving treatment for cervical cancer?

Lacks, a Black tobacco farmer and mother of five living in Turner Station, died months after her diagnosis, at 31 years old. Her cells, however, survived, becoming the first to live outside a body in a laboratory. Considered the first “immortal” cell line, HeLa cells — as they’ve come to be known — are replicating still in laboratories today, some seven decades after Lacks’ death.

The cells have been used in scores of medical advancements, from eradicating polio and mapping the human genome to developing HPV vaccines and in vitro fertilization. More recently, the cells helped scientists develop COVID-19 vaccines.

Apart from being some of the first cells to be grown, HeLa cells also were the first to be commercialized — creating the foundation for a multibillion dollar industry based on buying and selling tissues and cells and patenting genes, according to Skloot.

In July 2021, Lacks’ living family members hired Crump, who said he plans to sue as many as 100 defendants — mostly pharmaceutical companies that have made fortunes off medical research with the HeLa cell line, and potentially Johns Hopkins Hospital, which is where the cells were taken from Lacks, though it has never sold or profited from them.

Later that year, in October, the legal team filed its first suit against Thermo Fisher, which is based in Waltham, Massachusetts.

In an emailed statement provided by a spokesperson, Chris Seeger — another member of Lacks’ legal team — said Lacks and his family deserve justice for the “continued exploitation of their loved one.”

“Despite knowing the profoundly unethical and unlawful origins of the HeLa cell line,” Seeger said, “Thermo Fisher made the conscious choice to profit off of America’s legacy of medical racism, unjustly enriching itself by cultivating, mass-producing, and selling Mrs. Lacks’s genetic material without the consent of her surviving family.”

Members of Thermo Fisher’s legal team declined to talk about the case on the record. But in their motion to dismiss, filed Jan. 3, the lawyers argue that the amended complaint is based on an incorrect definition of unjust enrichment.

The proceeds from unjust enrichment aren’t themselves instances of unjust enrichment, the lawyers argue.

“Rather, unjust enrichment occurs at the time the original benefit is conferred by the plaintiff upon the defendant,” their motion reads. “So, if unjust enrichment ever occurred here, sales receipts and cultivated cells would be a result of that unjust enrichment, relevant only to potential damages. Thus, Plaintiff has not stated a claim for unjust enrichment.”

A footnote in their motion also disputes a central fact in Lacks’ complaint.

Although some companies — including the American Type Culture Collection — sell HeLa cells, Thermo Fisher does not, the lawyers say. Instead, all products that Lacks lists in the complaint are “genetically distinct from HeLa cells, and some are not cells at all.”

If the lawsuit proceeds past Thermo Fisher’s second motion to dismiss, both sides will have the chance to argue the facts of the case.

The lawyers also argue that the new complaint doesn’t provide any proof for its assertion that Thermo Fisher is not a “bona fide purchaser for value” — a phrase that describes someone who buys property without any reason to suspect irregularities in the transaction.

The due date for Lacks and his legal team to file a response to Thermo Fisher’s motion is Feb. 27, which is 45 business days after the company filed the brief, according to court documents.