Academic journal article Harvard Law Review

Federal Statutes - Alien Tort Statute - Second Circuit Looks beyond Complaint to Find State Action Requirement Satisfied

Academic journal article Harvard Law Review

Federal Statutes - Alien Tort Statute - Second Circuit Looks beyond Complaint to Find State Action Requirement Satisfied

Article excerpt

FEDERAL STATUTES--ALIEN TORT STATUTE--SECOND CIRCUIT LOOKS BEYOND COMPLAINT TO FIND STATE ACTION REQUIREMENT SATISFIED.--Abdullahi vPfizer,Inc., 562 F.3d 163 (2d Cir. 2009)

In Sosa v. Alvarez-Machain, (1) the Supreme Court's first and only decision to interpret the Alien Tort Statute (2) (ATS), the Court urged the judiciary to exercise "great caution" in recognizing new causes of action under the ATS. (3 ) The Sosa Court thereby implied a general intent that ATS liability remain tightly constrained. One mechanism for circumscribing ATS liability is the "state action requirement," which establishes that private actors cannot be held liable under the ATS unless they have acted in close concert with a state. (4) Recently, in Abdullahi v. Pfizer, Inc., (5) the Second Circuit neglected Sosa's cautionary admonition by failing to show restraint in its treatment of the state action requirement. In order to reach its holding that a group of Nigerian plaintiffs adequately alleged the state action element of their ATS claim against Pfizer, the Abdullahi court disregarded circuit precedent by drawing upon facts that were elaborated in appellate briefs but absent from the original complaint. (6) Although courts--like the Abdullahi court in this case--may be tempted to procedurally evade the state action requirement in order to impose liability on unscrupulous private actors, such evasion effectively lowers the bar for ATS claim survival and engenders serious separation of powers concerns.

In 1996, an unprecedented epidemic of bacterial meningitis, measles, and cholera erupted in the Nigerian state of Kano. (7) Pfizer requested and received approval from the Nigerian government to enter the country and administer its new antibiotic Trovan to children suffering from bacterial meningitis. (8) Although Trovan had been tested on thousands of adult subjects, it had not yet received FDA approval. (9) After receiving permission from the Nigerian government, Pfizer established a treatment center at the Kano Infectious Disease Hospital, where it recruited two hundred sick children for treatment. (10) Pfizer gave half of the children Trovan, and half of the children a lowered dose of Ceftriaxone, a comparable FDA-approved antibiotic. (11) After receiving treatment, eleven of the children died: five who had received Trovan and six who had received the lowered dose of Ceftriaxone. (12) Others suffered paralysis, blindness, deafness, or brain damage. (13)

In August 2001, a group of the treated Nigerian children and their guardians (the Abdullahi plaintiffs) filed a class action suit under the ATS in the U.S. District Court for the Southern District of New York. (14) The plaintiffs alleged that Pfizer neglected to advise patients of the possible risks associated with Trovan and Ceftriaxone, and thus failed to secure informed consent for the treatment. (15) Pfizer also allegedly failed to inform patients that the nongovernmental organization Medecins Sans Frontieres (Doctors Without Borders) was providing an alternative, conventional treatment for free in a separate area of the same hospital.16 The plaintiffs further claimed that the Nigerian government was complicit in the project because it petitioned the FDA to authorize the export of Trovan, "arrang[ed] for Pfizer's accommodation in Kano," "assign[ed] Nigerian physicians to assist in the project," and "acted to silence Nigerian physicians critical of" the project. (17) Although the plaintiffs also initially alleged that the Nigerian government backdated a letter of approval for the test from an ethics committee at the Kano Infectious Disease Hospital, the plaintiffs later asserted in the same complaint that the letter was instead forged by a "Nigerian physician whom Pfizer says was its principal investigator." (18)

In September 2002, the district court granted Pfizer's motion to dismiss on forum non conveniens grounds, on the condition that Pfizer consent to litigate the claims in Nigeria. …

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