Judge weighing motion to dismiss lawsuit brought by Henrietta Lacks’ estate

Timing is critical to whether a lawsuit over the use of cells taken from Henrietta Lacks over 70 years ago will be able to continue in federal court.

The biotech company facing the lawsuit, Thermo Fisher Scientific Inc., argued before a judge Tuesday that Lacks’ family should have brought their claims years ago, when they first learned that pharmaceutical companies were profiting off the medical discoveries gleaned from Lacks’ cells, which were taken without her knowledge or consent in 1951.

Lacks’ family, however, claims that their lawsuit should survive because Thermo Fisher continues to use Lacks’ cells, which can reproduce endlessly in a lab, for medical research. The cells were taken from Lacks, a Black woman from Baltimore County, while she received treatment for cancer at Johns Hopkins Hospital.

The three-year statute of limitations restarts whenever Thermo Fisher benefits from the use of those cells, argued Christopher A. Seeger, a lawyer for Lacks’ estate.

“Every time they create a new cell line … they have to account for it,” Seeger said.

The statute of limitations question is the most challenging facing the Lacks family’s lawsuit, which was brought more than a decade after the publication of a bestselling book that revealed the history of the HeLa cell line named for Lacks.

The one-count lawsuit, filed in October, brings a claim of unjust enrichment against Thermo Fisher.

The case deals in an area of the law that is largely unprecedented.

“We are operating almost in the dark,” U.S. District Judge Deborah L. Boardman said. “We are working with principles of law that were given to us in the 1900s, the 1960s.”

Boardman reserved her ruling on Thermo Fisher’s pending motion to dismiss the lawsuit at the conclusion of Tuesday’s hearing.

The company’s lawyer, Andrew T. George, said the Lacks family’s argument would mean they have a nearly limitless right to sue the many companies that have used and continue to use Lacks’ cells for research.

“They have known that companies have the HeLa cell line, and use it commercially, for more than three years,” George said in court. “This is an open commercial practice.”

Seeger said after the hearing that the Lacks estate is likely to sue more companies over the use of the cells in the future. He also noted that defense lawyers for other pharmaceutical companies were present in the courtroom audience.

The suit asks for a permanent order that would block Thermo Fisher from using Lacks’ cells without permission from her estate, and for a constructive trust to benefit her family.

Lacks’ family is also 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.

“The theory of unjust enrichment entitles the family to their day in court,” Crump said. “Henrietta lives as long as her cells live, and each time there is a regeneration and selling for profit and commercialization of these cells, the statute of limitations starts all over again.”