BALTIMORE — Family members of Henrietta Lacks are asking a federal judge to reject Thermo Fisher Scientific’s second attempt to get the court to dismiss the family’s lawsuit against the multimillion-dollar biotech company.
In court documents filed Friday, Ron Lacks — Henrietta Lacks’ grandson, who is representing her estate in the lawsuit — requested a hearing on the motion to dismiss that Thermo Fisher filed in January.
At question in the unprecedented lawsuit is whether Thermo Fisher, and other companies, should 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.
Henrietta Lacks, a Black mother of five who lived in Turner Station, died a few months after her diagnosis, at 31 years old. But her cells survived, becoming the first to live outside a body in a laboratory.
HeLa cells — as they’ve come to be known — are considered the first “immortal” cell line and are still replicating in laboratories today. They’ve been used in countless medical and scientific advancements, from mapping the human genome to developing HPV vaccines.
They also were the first cells to be commercialized, becoming the building blocks of an industry that has made billions from buying and selling tissues and cells and patenting genes.
About a year and a half ago, Henrietta Lacks’ living descendants hired the famed civil rights attorney Ben Crump, who said he plans to sue as many as 100 defendants, including pharmaceutical companies that built their businesses off medical research using the HeLa cell line.
Thermo Fisher is the first company the family’s legal team is suing. The family’s lawyers are accusing the company of “unjust enrichment” for making and selling products that relied on Henrietta Lacks’ cells.
In the first motion to dismiss that Thermo Fisher’s lawyers filed in the case, they argued that the Lacks family hadn’t filed their 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.
The company’s lawyers argue that Henrietta Lacks’ story has been one of the most well-known examples of racist medical mistreatment in America since 2010, when journalist Rebecca Skloot published the bestselling book “The Immortal Life of Henrietta Lacks.” The book was later made into an HBO movie, starring Oprah Winfrey.
In November, the lawyers representing the Lacks family edited their original complaint against Thermo Fisher to allege the company’s unjust enrichment is ongoing, because — according to the amended complaint — Thermo Fisher continues “to receive a benefit from Henrietta Lacks every time it cultivates, sells, and receives payment for newly-replicated HeLa cells.”
But in Thermo Fisher’s second motion to dismiss, the company said the new complaint relies upon an incorrect definition of unjust enrichment, and doesn’t fix the suit’s statute of limitations problems.
The Lacks family disputes the company’s arguments in its most recent filing, asserting that the unjust enrichment claim is legitimate and was filed in a timely manner.
“What [Thermo Fisher] fails to grasp — but what the Court readily understood — is that the statute of limitations on Plaintiff’s unjust enrichment claim is based on [Thermo Fisher’s] ongoing ill-gotten gains today,” Friday’s filing reads, “not the initial assault at the hands of the physicians in whom Mrs. Lacks had placed her trust.”
“[Thermo Fisher] simply ignores its treatment of Henrietta Lacks’s genetic material as chattel to be bought and sold today, not 70 years ago,” the filing continues.
Lawyers representing Thermo Fisher declined to comment on the latest filing.
Under local rules for the U.S. District Court in Maryland, the company has 14 days — or until March 3 — to file an official response, unless an extension is granted.
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