Biotech company says Henrietta Lacks’ estate waited too long to sue

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It has been more than 70 years since doctors at Johns Hopkins Hospital took cancer cells from Henrietta Lacks, a Black woman from Baltimore County, without her knowledge or consent and found that the surviving cells could reproduce endlessly in a laboratory, a discovery that launched countless breakthroughs in medical research.

Lacks’ identity was not known publicly until 20 years later, and much of the broader public did not learn of her unknowing contribution to science until 2010, when a bestselling book revealed the history of the HeLa cell line named for Lacks.

The consequences of these revelations are still ongoing. Lacks’ family filed a lawsuit in October claiming that Thermo Fisher Scientific Inc., of Waltham, Massachusetts, knowingly mass-produced and sold HeLa cells and reaped millions of dollars in profits.

But the biotechnical company is now claiming in court that Lacks’ family waited too long to sue and has exceeded the statute of limitations for unjust enrichment claims.

“This case exemplifies the reasons why statutes of limitations exist,” the company’s lawyers wrote in a motion to dismiss. “The factual bases for the complaint … have been known to Plaintiff for decades. Yet Plaintiff failed to take timely action, instead waiting until October 4, 2021, to file the complaint in this case. As a result, Thermo Fisher is left in the untenable position of defending itself for the downstream effects of 70-year-old acts in which Thermo Fisher had no part.”

The motion filed Thursday asks a judge to dismiss the one-count complaint in which Lacks’ estate alleged unjust enrichment.

The company’s motion notes that members of the Lacks family have claimed they plan to sue over the use of HeLa cells twice in the last several years, but have not brought legal action.

“The long public discourse here — and Plaintiff’s participation in that discourse — makes clear that Plaintiff not only should have known but did in fact know of the facts and issues forming the basis of the Complaint for years, but failed to take action in a timely manner,” wrote Tonya Kelly Cronin, one of Thermo Fisher’s lawyers.

The company also argued that unjust enrichment claims cannot be brought against a “bona fide purchaser for value.” In other words, the company claims, the lawsuit must be thrown out because Thermo Fisher played no part in the original collection of Lacks’ cells. The complaint does not detail how Thermo Fisher acquired the cells.

Lacks’ family is being represented by Florida-based civil rights attorney Benjamin Crump, who has gained national prominence for his work in cases involving Black people killed by police.

Kim Parker, the Baltimore lawyer also working on the case with Crump, did not immediately respond to a phone message requesting comment on the motion to dismiss.

The complaint tied the continued use of Lacks’ cells to a long history of medical racism.

“The exploitation of Henrietta Lacks represented the unfortunately common struggle experienced by Black people throughout U.S. history,” Parker wrote in the complaint. “Indeed, Black suffering has fueled innumerable medical progress and profit, without just compensation or recognition.”