Lawyers for Waltham-based Thermo Fisher Scientific are in court Tuesday, asking a judge to throw out a lawsuit filed by the family of Henrietta Lacks.
In 1951, doctors at Johns Hopkins University harvested cells from the 31-year-old African American Black cancer patient without her knowledge. Those became the first human cells to be cloned. While most cells die shortly after being removed from a person's body, Lacks' possessed a remarkable and infinite ability to reproduce in a laboratory setting. They became known as HeLa cells, and are now considered a crucial tool of biomedical research — used in the development of everything from in vitro fertilization to the COVID-19 vaccine.
Henrietta Lacks died of cervical cancer later in 1951. Decades later, her story became the subject of a best-selling nonfiction book, "The Immortal Life of Henrietta Lacks," and a movie starring Oprah Winfrey.
"It's a real honor to have a family member that's genetic makeup is that important to the world, you know?" Henrietta's grandson Ron Lacks told GBH News. "So, I mean, we're proud."
That pride is tempered, though, by a sense of injustice. Companies like Thermo Fisher Scientific have been selling his grandmother's cells for decades, without the family's consent.
"When people are profiting from from her, and some of my family members can't even afford proper medical [care], you know, it's like she's on the auction block," he said. "You know, as loving as my grandmother was, she would have definitely said, 'Well, what about her family?'"
The lawsuit the Lacks family has filed against Thermo Fisher alleges the company has made millions from mass producing her cells and selling a range of product lines derived from them to medical researchers and institutions. The legal claim against the company is one of unjust enrichment.
"It's an equitable concept that basically says that you can't be the beneficiary of some bad conduct and expect to profit from it," explained Chris Seeger, who is representing the family. Seeger has won huge settlements against defendants like Volkswagen and the NFL.
Case law is unclear when it comes to the validity of unjust enrichment claims, so it's difficult to predict how this case will play out, said Northeastern University law professor Daniel Medwed. But if the plaintiffs win, he said the case could have big implications.
"It could, in theory, create precedent for other claims of unjust enrichment dating back to slavery, or other times in which marginalized populations were exploited for the financial benefit of others," he said.
Thermo Fisher Scientific didn't respond to inquiries from GBH News and the company's attorneys wouldn't comment. In legal filings, the company argues under Maryland law — where the case has been filed — plaintiffs in unjust enrichment cases have to show they've been harmed in some way, which the company argues the Lacks family has not done. Also, they argue the plaintiffs have to show Thermo Fisher knew there was a lack of consent when they first started using the cells, which they haven't done. Lastly, they say, the statute of limitations is up.
The family argues the case is still valid because the statute of limitations is not tied to the havesting of cells in 1951.
"The legal answer is every time you generated a new product based on these cells and sold them, you started the clock running again on the statute of limitations," Seeger said. "And we have a lot of legal support for that."
The lawsuit puts the case in the much larger context of historic injustices against Black people in medical research and in America more broadly. It details several such abuses, including the Tuskegee syphilis study, in which hundreds of Black men were denied syphilis treatment beginning in the 1930s so the progression of their symptoms could be studied.
The Lacks family's other attorney is Ben Crump, who represented the families of Ahmaud Arbery, Breonna Taylor and George Floyd, and who was retained this week to represent the family of a victim of Saturday's racially motivated mass shooting in Buffalo. The case of Henrietta Lacks is a civil rights issue, Crump told GBH News.
"It’s really indicative of the Black struggle for equality and respect in America," Crump said. "Because it's a racial justice issue when you think about it in the purest form. The children of Henry Ford, they've been able to benefit from his contributions to the world."
But the family of Henrietta Lacks, he said, hasn't been able to benefit from the value of her contribution.
"If this were not a Black woman they did this to, what reparations, what recovery would her family be seeking, and what they would receive?" Crump asked. "So it's not lost on us, the racial elements of this tragedy."
University of Michigan professor Shobita Parthasarathy, who studies biotechnology and intellectual property, said the case raises a range of questions: what it means for a person to own their cells, how the contribution of research subjects should be recognized, and the responsibility of scientists to acknowledge past wrongs. She said scientists are often trying to change the world for the better, but they may be ignorant of the ethical concerns surrounding the material they use.
"They don't necessarily know that the work that they're doing is on a foundation of inequity and injustice," she said. "And I sometimes wonder how, if they were more aware of that, they might engage in different kinds of practices."
Thermo Fisher Scientific is not the only company currently selling Henrietta Lacks' cells, and biotech companies and labs around the world are using them in all kinds of research. The attorneys for the Lacks family say Thermo Fisher is just the first company they intend to sue.
How the judge rules in this case may indicate how those future lawsuits will fare.
