The family of Henrietta Lacks will file an amended complaint this week against a biotech company accused of profiting off her “immortal” cell line, putting off a long-awaited decision over the fate of the lawsuit in federal court.
The amended complaint will make changes to the claims against the company, Thermo Fisher Scientific Inc., in an effort to bolster the family’s legal argument. Lacks’ estate, represented by her grandson, Ron L. Lacks, sued Thermo Fisher last year over its use of the “HeLa” cell line named for Henrietta Lacks.
The original cells were taken from Lacks, a Black woman from Baltimore County, without her knowledge while she received treatment for cancer at Johns Hopkins Hospital in 1951. Lacks’ cells, which can reproduce endlessly in a lab, have been used widely for medical research in the decades since.
Her family’s lawsuit claims that Thermo Fisher has been unjustly enriched through its use of the cells. But the estate faced an uphill battle as Thermo Fisher sought to have the complaint thrown out, citing the statute of limitations. The company also argued that it did not know about the cells’ unethical origin when it bought them.
U.S. District Judge Deborah L. Boardman has for months been weighing the company’s request to dismiss the lawsuit. Instead, the Lacks estate said Wednesday that it planned to file an amended complaint, which will delay Boardman’s decision.
The new complaint had not yet been filed as of Thursday morning. But at a phone conference Wednesday, the lawyer for the estate said the amended complaint would address “two limited issues” related to the unjust enrichment claim.
Boardman denied the motion to dismiss as moot after receiving notice the family would file an amended complaint. Thermo Fisher has 45 days to file a new response. The company consented to the amended complaint being filed.
The company has argued that it is protected from liability because Maryland’s three-year statute of limitations for unjust enrichment has long passed since Lacks’ cells were taken. Thermo Fisher also claims that it is a “bona fide purchaser for value,” meaning that it paid to use the cell line without knowledge of how the cells were collected.
“The factual bases for the complaint … have been known to Plaintiff for decades,” the company’s lawyers wrote in a motion to dismiss the lawsuit. “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.”
One of the Lacks family’s lawyers, Christopher L. Ayers, said Wednesday that the amended complaint will address the unjust enrichment claim and and bona fide purchaser argument.
In court, the family’s legal team has argued that the three-year statute of limitations restarts each time Thermo Fisher benefits from the use of the HeLa cell line.
The family is also represented by Ben Crump, a Florida-based civil rights attorney best known for representing the families of Black people killed by police, including Michael Brown, George Floyd and Breonna Taylor.
The lawsuit 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.
A lawyer for Thermo Fisher declined to comment. A spokesperson for the Lacks family’s legal team declined to provide additional details about the amended complaint.