Colleagues not already familiar with it may be interested in a claim for unjust enrichment brought in US federal court by the family of Henrietta Lacks against a large biotech company, Thermo Fisher. I was not aware of the story of Henrietta Lacks until I recently read a powerful story by Jonathan Jarry on the site of McGill’s Office for Science and Society.

Henrietta Lacks in 1951 went to the Johns Hopkins Hospital for an examination and was found to have cervical cancer. Without her consent, a sample of her cancer cells was sent to a tissue lab. There it was found that unlike all other cells, which died in the lab, Lacks’ cells reproduced indefinitely. Lacks passed away later that year. During all the intervening years, cells descended from the original sample have been used in a wide range research. They are called HeLa cells and are sold commercially all over the world.

Johns Hopkins acknowledges the taking of the cells was without consent, but suggests that this was acceptable at the time; there is a suite of pages here, where the university also acknowledges that it should have worked more closely with Lacks’s family. The University indicates that it never sold or profited from the sale of the cells.

In 2010, Rebecca Skloot published a book entitled The Immortal Life of Henrietta Lacks. In 2012, Prof. Deleso A. Alford (now of Southern University Law Center) published an article arguing that an unjust enrichment claim should be available to Lacks’s descendants. An HBO film of the book, starring Oprah Winfrey, was released in 2017. In October 2021, a statue of Henrietta Lacks was unveiled at Bristol University.

That same month, the estate of Henrietta Lacks brought a lawsuit against Thermo Fisher based on unjust enrichment. The complaint states that the taking of the cancer tissue was not only without consent but was not done for the purpose of medical treatment; rather, it was part of a systematic harvesting of such cells from Black patients without consent. The complaint relies on the Restatement (3d) of Restitution and Unjust Enrichment §51(3), and argues that a plaintiff is entitled to restitution of profits acquired by a defendant who has conscious knowledge that they are derived from wrongdoing.

The defendant responded with an argument that the claim is time-barred; a motion to dismiss was heard in May, and so far as I can tell, judgment has not yet been given. In one discussion of the case, plaintiff’s counsel is reported as saying that even there is a three-year limitation period, new causes of action are arising every day, giving the estate an entitlement to at least three years of profits. This raises the interesting question whether the logic of §51(3) can apply where the underlying wrong has ceased to be actionable.

Lionel