The United States Court of Appeals for the Second Circuit recently reversed the dismissal of a lawsuit alleging that drug manufacturer Pfizer, Inc. violated the Federal Alien Tort Statute (“ATS”) and certain state statutes by conducting a medical experimentation on humans without their informed consent or knowledge. Abdullahi v. Pfizer, Inc., 2009 WL 214649 (2d Cir. 2009). The Second Circuit remanded the case to the United States District Court for the Southern District of New York for further proceedings.
The case involves 88 Nigerian families who allege that Pfizer tested a new antibiotic, Trovafloxacin Mesylate (“Trovan”), on children in a Nigerian hospital during an outbreak of bacterial meningitis in 1996 in an attempt to gain the approval of the United States Food and Drug Administration for the use of Trovan on children. Plaintiffs allege that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either the children or their guardians in that Pfizer failed to disclose or explain the experimental nature of the study or the serious risks involved. Plaintiffs assert that Pfizer violated the ATS by violating a customary law norm prohibiting involuntary medical experimentation on humans and further violated the Connecticut Unfair Trade Practices Act (“CUTPA”) and the Connecticut Products Liability Act (“CPLA”).
Pfizer moved to dismiss the complaints for lack of subject matter jurisdiction as to the ATS claim and on the basis of forum non conveniens. Pfizer also argued that the state law claims should be precluded because choice of law rules establish that Nigerian law applies. The District Court granted the dismissal of all claims.
The Second Circuit reversed the District Court’s dismissal. The Second Circuit held that the plaintiff's claim can be enforced under the ATS. More specifically, the Second Circuit found that the norm prohibiting nonconsensual medical experimentation on human subjects “has become firmly embedded and has secured universal acceptance in the community of nations” and therefore falls within the federal court jurisdiction created by the ATS. The Second Circuit also held that the plaintiffs adequately alleged the state action element of the ATS claim by factual assertions of concerted action between Pfizer and the Nigerian government in conducting the drug experiment.
The District Court’s analysis in regards to forum non conveniens was also overturned. The Second Circuit stated that the District Court erred in determining that Pfizer met its initial burden of establishing present availability and adequacy of a Nigerian forum. Therefore, the dismissal of the complaints on the basis of forum non conveniens was reversible error.
Finally, the Second Circuit stated that the District Court incorrectly applied Connecticut’s choice of law rules in dismissing the CUTPA and CPLA claims. The Second Circuit stated that the District Court did not evaluate several integral factors in applying the “most significant relationship” test. Therefore, the Second Circuit vacated the dismissal of the state law claims and remanded to the District Court for further consideration of the factors overlooked.
For a copy of the Second Circuit’s decision, please click here.
For a copy of the District Court’s decision, please click here.