Several years ago, I read the Immortal Life of Henrietta Lacks.  The book by Rebecca Skloot, published in 2010, tells the interesting (but in many ways unfortunate) true story of Ms. Lacks, whose cancer cells were used to create the first “immortal” cell line (HeLa) that continues to be used in scientific research to this day, very shortly before her death in 1951.

I was surprised to read last week that the family of Ms. Lacks is still engaged in litigation against the biotechnology company that has profited from the use of her cell line, which has been used in ground-breaking research and developments, including the creation of the polo vaccine.  The Lacks family is suing Thermo Fisher Scientific on the basis of unjust enrichment, as Ms. Lacks received no compensation from the company that has used her cells that were collected without her consent while she was undergoing cancer treatment.

Our blog has previously covered the equitable doctrine of unjust enrichment, including the Supreme Court of Canada’s decision in Moore v Sweet, at length.  In Canada, in order to successfully plead unjust enrichment, the plaintiff must establish:

• Enrichment of the defendant;
• Corresponding detriment suffered by the plaintiff;
• Lack of a juristic reason for the enrichment of the defendant and detriment to the plaintiff.

Unjust enrichment claims are subject to general limitations guidelines in Ontario.  Specifically, subject to discoverability, the litigation must ordinarily be commenced within two years of the events giving rise to the claim pursuant to the Limitations Act, 2002.  In Maryland, where Ms. Lacks’ family commenced its lawsuit, an unjust enrichment claim must be made within three years of learning of the potential claim. 

The existence of the book itself, however, is giving rise to a possible limitations defence to the family’s claim.  The biography written by Skloot, published in 2010, made what had happened to Ms. Lacks and the use of her cell line public knowledge.  Furthermore, after the popularity of the biography and subsequent release of an HBO movie, Ms. Lacks’ family participated in a media tour during which they announced that they were considering a lawsuit against the biotechnology company, in 2018. 

As we saw in Moore v Sweet, unjust enrichment is a flexible tool allowing for equitable remedies and it is possible that the Lacks litigation will see its application in a unique matter that preserves the rights of the family and fashions a remedy for what has been referred to as “one of the best-known examples of American racist medical mistreatment and experimentation.”  Perhaps the unique circumstances of this case, which include allegedly morally reprehensible conduct of the defendant and ongoing damages and suffering of the plaintiff, will alter the outcome of what otherwise may appear to some to be a clear-cut issue of an expired limitation period.  One scholar has suggested that this particular case is about much more than unjust enrichment and limitation periods: “A Court’s recognition that Thermo Fisher was unjustly enriched will have the immediate and historic effect of humanizing Henrietta Lacks. This process starts with acknowledging the historical wrongs committed against Mrs. Lacks…but…the narrative [cannot] end there; not when Mrs. Lacks’ cells live on, profiting Thermo Fisher unjustly…Henrietta lived and died just like all people do, but unlike everyone else, what had taken her humanity has benefited everyone — but her family.”

Thank you for reading,

Nick Esterbauer