Earlier today, the District Court for the Southern District of New York entered an order dismissing, with prejudice, plaintiffs’ claims in Abdullahi v. Pfizer, 01-cv-8118 (S.D.N.Y.). The case involved allegations that Pfizer conducted nonconsensual testing of Trovan, an experimental drug, during a meningitis outbreak in Nigeria in 1996. Earlier this month, plaintiffs and Pfizer had filed a stipulation of dismissal after the parties reached an agreement to settle all claims.
The Nigerian plaintiffs had originally filed suit in 2001, bringing claims under the Alien Tort Statute ("ATS"), alleging that Pfizer’s testing was done on children without their parents’ informed consent. Eleven children died as a result of their participation in the drug trial.
In 2009, as discussed in an earlier post, the Second Circuit held that plaintiffs could properly bring claims against Pfizer under the ATS for “violation of the norm of customary international law prohibiting medical experimentation on human subjects without their consent.” Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009). In that decision, the Second Circuit found that the international law norm prohibiting nonconsensual medical testing is sufficiently “universal, specific, and obligatory” so as to meet the standard for subject matter jurisdiction under the ATS established in the Supreme Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
Plaintiffs’ case against Pfizer, however, was subject to potential dismissal in light of the Second Circuit’s more recent decision in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), in which the court held that corporations cannot be properly sued under the ATS for violations of customary international law.
Pfizer faced pressure as the result of a recent increase in the level of media attention to the case. The heightened scrutiny came about, at least in part, as the result of disclosures in certain diplomatic cables released by Wikileaks, which called into question the propriety of Pfizer’s efforts to settle two related cases brought in Nigeria. Those cases were settled in July 2009 for a total of $75 million and attorneys fees.
The most recent settlement, the specific terms of which are confidential, reportedly allows a maximum of $175,000 to be paid per child to people who can prove death or permanent disability due to the 1996 trial. Any payments would come from a $35 million trust fund set up as part of the earlier settlement of the Nigerian claims.