Settling a lawsuit typically marks the end of a legal battle.
But relatives of Henrietta Lacks said Tuesday the historic agreement they just reached with a biotechnology company that used and profited off her cells without their permission is the start of a fight that could ensnare untold numbers of other firms that do the same.
Lawyers who represent Lacks’ descendants said any company using her cells, known as HeLa cells, for research or product development without consulting or compensating the family might be the next target they “see in court.”
“Stay tuned,” said Chris Ayers, an attorney who represents the Lacks family, after announcing the settlement with Thermo Fisher Scientific, a Massachusetts-based biotech giant. “The fight against those who profit and choose to profit off of the deeply unethical and unlawful history and origins of the HeLa cells will continue.”
The terms of the settlement between the Lacks family and the company were not disclosed. Thermo Fisher Scientific said in a statement, “The parties are pleased that they were able to find a way to resolve this matter outside of court and will have no further comment.”
How many other companies the Lacks family might file suit against and the likelihood of replicating their success wasn’t immediately clear given the expansive use of HeLa cells in science and medicine for decades.
The cells taken from Lacks, a 31-year-old African American cervical cancer patient at Johns Hopkins Hospital in 1951, were the first known to replicate outside the body. Her cell line has been used in countless pursuits since then. Scientists have published more than 110,000 research papers involving HeLa cells, according to the National Institutes of Health.
A spokesperson for Hopkins, which gave away the cells and did not directly profit, did not respond to a request for comment.
The cells have been used to develop the polio vaccine, find and treat cancer, and explain HIV and Ebola infections, among other uses. The Lacks family agreed to some of that research, providing whole genome data to scientists that could be used for more discoveries and treatments. But rarely have companies that use the cells sought or won the family’s permission.
The lawsuit the Lacks family brought against Thermo Fisher Scientific alleged something called unjust enrichment. The legal strategy was first proposed a decade ago by Southern University Law Center professor Deleso Alford, who specializes in teaching ethics to law and medical students. She got the idea after attending a conference on legal remedies.
To prove their case, Alford argued in a 2012 health law journal article that Lacks’ descendants would need to show she had conferred a benefit to a defendant, that the defendant was aware of the benefit and that the defendant had inequitably retained the benefit even after learning it was tainted. Alford believed the Lacks family had enough evidence to satisfy all three requirements.
Still, she never imagined that trial lawyers would read the journal article years later and file a federal lawsuit built around her ideas.
Reached by phone Tuesday, she called the notion that a settlement was reached and a roadmap for new complaints developed “surreal.”
“I am truly humbled to see the process work,” Alford said. “I wrote a law review article, and that article served as a catalyst, as a theory of the case.”
The case against Thermo Fisher Scientific is so unique and the settlement so groundbreaking, there may be no clear parallel, legal experts say. Opioid, tobacco and asbestos companies have all settled claims brought by classes of victims. In this case, a single family is seeking to bring claims against numerous defendants.
“This could be endless,” said Robyn Shapiro of the Wisconsin-based Health Sciences Law Group LLC. “The boundaries of what we’re talking about do seem far and wide.”
Shapiro said the settlement could have far-reaching implications for academic and corporate research, too.
Researchers routinely rely on what’s known as the common rule, which means data, tissue and other specimens taken from people is fair game if it’s unidentifiable — which Lacks’ cells initially were. But with modern technology, most everything taken from a human is now likely identifiable, she said.
There have been discussions about changing federal law to reflect this, and require consent from patients, but no movement. Shapiro said those talks are likely to accelerate now, which she sees as an ethically and legally appropriate advancement in patients’ rights.
Some other cases and legal theories involving human specimens were not successful. In a 1990 case, Moore v. Regents of the University of California, the Supreme Court of California ruled the patient did not have property rights to discarded cells taken by his doctor and turned into a commercialized product. But the court did rule the patient could sue the doctor for not adequately informing him about the use of the cells.
The Lacks’ settlement suggests if the patient leaned on the idea of unjust enrichment, and not a pure property claim, the outcome may have been different, Shapiro said.
However, Gregory Dolin, an associate professor of law at the University of Baltimore, said considering the Moore decision, he’s not so sure if Lacks family attorneys had gone to trial they would have won. He also was skeptical about how many more lawsuits the family could successfully pursue.
“This may be viewed as just an opportunity to seek publicity or get rich,” Dolin said.
”I’m not implying the attorneys would be doing anything improper, or that Henrietta Lacks or other Black people haven’t been mistreated,” he added. “They have been. But lawsuits against companies six, seven or eight might not hold up with this legal theory.”
