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Supreme Court allows drug test case against Pfizer to proceed

WASHINGTON — The US Supreme Court on Tuesday declined to take up a case examining whether drug giant Pfizer could be sued in an American court for allegedly conducting nonconsensual drug tests on 200 Nigerian children in 1996.

WASHINGTON — The US Supreme Court on Tuesday declined to take up a case examining whether drug giant Pfizer could be sued in an American court for allegedly conducting nonconsensual drug tests on 200 Nigerian children in 1996. The action allows the case to move toward a trial.

Eleven of the children died, and many others were left blind, deaf, paralyzed, or brain-damaged, according to court documents.

At issue in the Supreme Court appeal was whether the surviving children and relatives of the children were entitled to file a lawsuit in New York seeking to hold Pfizer responsible.

Usually, such a suit would be filed in Nigeria. Lawyers for the children complained that Nigerian judges are corrupt and that the US court system holds the only promise of justice.

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Law allowing suits by non-US citizens
The suit was filed under the Alien Tort Statute (ATS), which empowers federal judges to hear civil lawsuits filed by non-US citizens for violations of the “law of nations.”

Lawyers for Pfizer denied that the Nigeria experiments were conducted without the consent and knowledge of the children and their guardians. In addition, the lawyers argued that the children’s case should be thrown out of court because the alleged drug experiments are not the precise type of international law violation covered under the ATS.

What made the high court appeal potentially significant is that the Supreme Court has declared that foreign plaintiffs may rely on the ATS to file lawsuits, but only in a few limited circumstances. The high court has not yet identified precisely which few cases may be brought and which may not.

Pfizer v. Abdullahi (09-34) offered an opportunity for the justices to offer guidance and clarification.

Multinational corporations increasingly targeted
The question is a major issue for multinational corporations, which have been increasingly targeted for ATS lawsuits by plaintiffs’ lawyers.

In one, corporations that conducted business in South Africa during the time of apartheid were sued for allegedly helping to perpetuate the abuses of the former South African government. In another, a US oil company was sued under the ATS for its foreign subsidiary’s alleged involvement with the Indonesian military in violations of international law.

“It is imperative that this court clarify that ATS suits cannot be brought against corporations based on mere vague allegations of involvement between the facilitating actor and the primary wrongdoer,” wrote Jack Goldsmith, in a friend of the court brief on behalf of the US Chamber of Commerce.

In the Nigeria drug experiment case, the Second US Circuit Court of Appeals in New York disagreed with Pfizer’s argument that the ATS does not apply. The appeals court voted 2 to 1 to allow the litigation to move forward.

It is that decision that Pfizer was urging the Supreme Court to reverse.

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Pfizer’s lawyer, Kathleen Sullivan, said in her brief that the Second Circuit “dramatically expanded” the potential range of cases that could be brought under the ATS.

“The ATS threatens to become an ever more expansive vehicle for burdensome litigation and crippling liability that imposes a kind of discriminatory tax on American companies doing business abroad,” Ms. Sullivan wrote.

In a brief on behalf of the Nigerian children, Arthur Miller said the Second Circuit engaged in a faithful application of Supreme Court guidance. He said the Pfizer case is different than other dismissed ATS lawsuits against American multinational corporations.

“Pfizer was not engaged in international commerce at all in this case,” he wrote. “Arguably, a primary reason Nigeria was involved in the process was because the Nigerian children were vulnerable to nonconsensual experimentation.”

Mr. Miller added: “It is highly unlikely that Pfizer would have conducted the [drug] study with the same disregard for subjects’ rights if those subjects were American children.”

Lawyers for the children allege in their lawsuit that Pfizer employees, working in concert with Nigerian officials, recruited 200 sick children during a severe virus outbreak in Kano, Nigeria. Half the children were allegedly given Trovan, an experimental drug never tested on children. The other half, the control group, was given a Food and Drug Administration-approved antibiotic.

Trovan had been shown in animal tests to feature life-threatening side effects. According to court documents, Pfizer officials sought to highlight the effectiveness of Trovan by giving the control group a deliberately low dose of the FDA-approved antibiotic.

Eleven children died
Five of the children given Trovan died. Six children in the control group given the lower dose of the approved antibiotic died.

In addition, it is alleged that Pfizer never advised the children or their parents of the potential side effects of Trovan. And they were allegedly never advised that the relief group Doctors Without Borders was providing “a conventional and effective treatment” for the virus, free of charge at the same hospital.

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After the children’s lawsuit was filed, Nigerian officials filed their own lawsuits against Pfizer. On July 31, 2009, Pfizer announced it would pay a $75 million settlement in exchange for the dismissal of civil and criminal charges filed in Nigeria. The settlement is said to include establishment of a fund to benefit the children.

Chief Justice John Roberts and Justice Sonia Sotomayor took no part in the consideration of the Pfizer appeal.