Saturday, September 21, 2019


Article Index

III. The Relief: Restatement (Third) of Restitution and Unjust Enrichment

Professor Andrew Kull, Reporter for the Restatement (Third) of Restitution and Unjust Enrichment (Restatement) states his proposition on the law of restitution as be[ing defined exclusively in terms of its core idea, the law of unjust enrichment. Professor Kull points out that, it would be axiomatic (i) that no liability could be asserted in restitution other than one referable to the unjust enrichment of the defendant, and (ii) that the measure of recovery in restitution must in every case be the extent of the defendant's unjust enrichment. Based upon the unique facts surrounding Ms. Lacks, I argue that the impossibility of measuring the defendant's unjust enrichment with mathematical exactness should not prevent restitution required under a notion of transformative justice.

Section 44 of the Restatement (Third) of Restitution and Unjust Enrichment states that:

(1). A person who obtains a benefit by conscious interference with a claimant's legally protected interests (or in consequence of such interference by another) is liable in restitution as necessary to prevent unjust enrichment, unless competing legal objectives make such liability inappropriate.

(2). For purposes of subsection (1), interference with legally protected interests includes conduct that is tortuous, or that violates another legal duty or prohibition (other than a duty imposed by contract), if the conduct constitutes an actionable wrong.

Johns Hopkins' practice of taking tissue cells without Ms. Lacks' knowledge or consent amounted to a conscious interference with her legally protected interests, thereby rendering the institution liable for restitution to prevent unjust enrichment. Johns Hopkins nonconsensual transfer of Ms. Lacks' tissue cells for research purposes led to the first immortal cell line referenced as HeLa cells. The HeLa cells' benefit to society, including helping advance in vitro fertilization, cloning, and gene mapping was made possible by Johns Hopkins' nonconsensual transfer in 1951. The viability of a claim for unjust enrichment involving the body parts at issue in Moore has been thoroughly addressed by Michael Traynor in the Restatement. Traynor correctly argues that [i]f Moore was wronged, a remedy is appropriate that is in tune with the principle that restitution should be available when a person is unjustly enriched at the expense of another. Further, he adds, [a]s between awarding damages for an unmeasurable and uncertain loss of the right to informed consent and awarding restitution of a reasonable portion of any net profit based on an evaluation of the relative values of the contributions, restitution may be the preferable remedy, at least in some cases. The Restatement, in section 44, seemingly adopted Traynor's view as to recognizing a claim for unjust enrichment in its useful illustration derived from the facts of Moore :

Patient consults Doctor for treatment of a rare blood disorder. Doctor recognizes that certain characteristics of Patient's blood cells make them unusually valuable for research purposes. Without request or disclosure to Patient, Doctor retains the blood samples taken from Patient on subsequent visits and sells them to interested researchers, realizing a total of $25,000. Doctor's decision to examine samples of Patient's blood is medically appropriate; the same amount of blood would have been drawn from Patient in any event; and Patient suffers no physical injury from Doctor's activities. By the law of the jurisdiction, Patient cannot maintain an action for conversion of blood or other tissue removed from his body for medical purposes. On the other hand, local law governing disclosure by physicians and informed consent by patients is violated when Doctor, without disclosure or consent, makes any use of Patient's blood for purposes unrelated to his care of Patient. Patient may recover $25,000 from Doctor by the rule of this section.

A similar case subsequent to Moore addressing unjust enrichment for the new tort of nondisclosure of research or economic interest is Greenberg v. Miami Children's Hospital Research Institute. Professor Mark A. Rothstein points out that in Greenberg, Judge Moreno paid particular attention to the fact that the plaintiffs' asserted that they would not have made their contributions to the research had they known of the defendant's intentions to commercialize their genetic material. This essay unearths the marginalized aspect of Ms. Lacks' assertion that she would not have agreed to the cancer treatment had the Johns Hopkins physicians informed her of the potential risk for infertility pursuant to their standard practice.

A. Prima Facie case for Unjust Enrichment

Ms. Lacks' descendant's claim for unjust enrichment must satisfy certain elements to prove a prima facie case. Generally, the elements include: a benefit conferred upon the defendant by the plaintiff; awareness, appreciation, or knowledge by the defendant of the benefit; and acceptance or retention of the benefit by the defendant under such circumstances as to make it inequitable for the defendant to retain the benefit to plaintiff. Pursuant to section 1 of the Restatement, [a] person who is unjustly enriched at the expense of another is subject to liability in restitution.

1. Benefit Conferred

The benefits conferred by Ms. Lacks' HeLa cell line can be summed up in this way, HeLa, the first human cells to grow outside the body, have been used in more than 60,000 experiments involving leukemia, Parkinson's disease and AIDS. They were instrumental in developing the polio vaccine, chemotherapy, cloning, gene mapping, [and] in vitro fertilization. Due to the unique nature of Ms. Lacks' cells, they continue to play a vital role in medical advances worldwide. However, a more telling narrative that fills the gap between Ms. Lacks' benefit conferred and value gained in return is as follows: [e]ven though Henrietta's cells launched a multimillion-dollar industry that sells human biological materials, the family never saw any of the profits, and for decades after her decade, many of her descendants struggled in Baltimore, often going years without health insurance.

2. Awareness, Appreciation, or Knowledge by the Defendant of the Benefit

a. Johns Hopkins, April 10, 1951

Dr. George Gey, head of Johns Hopkins' tissue culture research lab stood on national television holding a vial containing Ms. Lacks' cells as he explained that his lab was using [the] cells to find ways to stop cancer. He said, [i]t is quite possible that from fundamental studies such as these that we will be able to learn a way by which cancer cells can be damages or completely wiped out.

Robert Stevenson of the American Association of Tissue Banks put it this way, [t]he initial importance of the HeLa cells was clear very quickly . . . [and] by growing easily and abundantly, they became the model system to use for the isolation of poliovirus. When this became available, it meant immediately that you could culture patients in a routine and inexpensive way and determine if they were infected with polio.

b. Johns Hopkins - From its Official Statement About HeLa Cells and Their Use - February 1, 2010

The following statement issued by Johns Hopkins addresses some question raised surrounding the release of Skloot's book about the lack of informed consent from Ms. Lacks or her family to permit the use of her cells for scientific research, and about some financial issues related to their use:

Johns Hopkins Medicine sincerely acknowledges the contribution to advances in biomedical research made possible by Henrietta Lacks and HeLa cells. It's important to note that at the time the cells were taken from Mrs. Lacks' tissue, the practice of obtaining informed consent from cell or tissue donors was essentially unknown among academic medical centers. Sixty years ago, there was no established practice of seeking permission to take tissue for scientific research purposes. The laboratory that received Mrs. Lacks' cells had arranged many years earlier to obtain such cells from any patient diagnosed with cervical cancer as a way to learn more about a serious disease that took the lives of so many. Johns Hopkins never patented HeLa cells, nor did it sell them commercially or benefit in a direct financial way. Today, Johns Hopkins and other research-based medical centers consistently obtain consent from those asked to donate tissue or cells for scientific research.

This essay does not raise the unjust enrichment claim based on Johns Hopkins' lack of a duty to seek informed consent for research purposes in 1951, but for the institution's (through its physicians) breach of a fiduciary duty to the patient as to their failure to inform her of the attendant risks of infertility prior to gaining Ms. Lacks' written consent to cancer treatment as evidenced by the OPERATION PERMIT. The nonconsensual transfer of Ms. Lacks' tissue cells continues to benefit science and technology in a way that neither Ms. Lacks nor her descendants profited from.

3. Acceptance or Retention of an Inequitable Benefit

Ms. Lacks' tissue cells were taken and transferred at the hands of Johns Hopkins. The institution and its researchers accepted the notoriety of being the laboratory site of the first immortal human cell culture line. Ms. Lacks is a sum of her parts worthy of restitution for the interference of her protected interest. She received nothing in return for the nonconsensual transfer of her valuable cell line. Upon her death, Ms. Lacks' descendants have yet to profit from the benefit conferred.

Accordingly, [r]estitution as a measure of recovery matters precisely when defendant's gain exceeds plaintiff's provable loss, either because plaintiff's loss is small or because it is hard to prove. As to Ms. Lacks's multi-dimensional existence as a raced, gendered, and classed patient, the right to own one's power of decision making to date has not been adequately addressed. The application of unjust enrichment would acknowledge the failure of Johns Hopkins to see Ms. Lacks as worthy of explaining the attending risk of the loss of reproductive capacity before she signed the operation permit for cancer treatment.


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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law