Abdullahi v. Pfizer: Second Circuit finds a nonconsensual medical experimentation claim actionable under Alien Tort Statute.

• Author: Alman, Anna

ABSTRACT

United States courts struggle to determine what international human rights violations and against what violators could be raised under the Alien Tort Statute by non-U.S, citizens. In 2009, the Second Circuit's majority in Abdullahi v. Pfizer, Inc. found that nonconsensual medical experimentation on humans violated a universally accepted norm of customary international law. The court found that the jurisdictional grounds under the Alien Tort Statute ("ATS") existed so that non-U.S. citizens could bring these claims to U.S. district courts. By integrating the principles outlined in Sosa, the court formulated clear criteria for determination of whether an alleged transgression of international law constitutes a norm of the law of nations and thus represents a triable issue under the ATS. The Abdullahi case also demonstrates a clear potential for international medical research to be exploitive in nature. If global medical research is to be safely accomplished, the international community will be forced to address the issue through application of international and comparative law. This case note provides in-depth analysis of the Abdullahi case and explores its implications on future ATS litigation.

INTRODUCTION

It is universally accepted that administering medical experiments on human subjects without their knowledge or consent is unethical and immoral. For most people, the subject of nonconsensual experimentation on humans brings up memory of the atrocious Nazi medical experiments conducted on concentration camp prisoners, (1) or of the Tuskegee experiments on poor African-American men. (2) Despite agreement that such experimentation is unacceptable and is prohibited within the United States, (3) the role of domestic courts in adjudicating these and other violations of international law remains uncertain and highly controversial. (4) Specifically, United States courts have struggled to determine what international human rights violations could be raised by non-U.S, citizens or aliens and what violators could be sued under the Alien Tort Statute ("ATS"). (5)

In January 2009, in Abdullahi v. Pfizer, Inc., the Second Circuit's majority found that nonconsensual medical experimentation on humans violated a universally accepted norm of customary international law. (6) The Abdullahi suit was brought by Nigerian children and their guardians alleging that Pfizer conducted medical experimentations of a new drug on the children without their informed consent during a bacterial meningitis outbreak in Nigeria in 1996. (7) Plaintiffs asserted that, as a result of the new drug trials on two hundred children, eleven children died, and many others were left with permanent blindness, brain damage, loss of hearing, or paralysis. (8) The Second Circuit found that jurisdiction existed under the ATS, allowing the foreign plaintiffs' claims of nonconsensual medical testing to proceed. (9) Significantly, the Abdullahi court allowed private causes of action to be brought under the ATS as long as "the violations occurred as the result of concerted action" by the private individuals or organizations working together with the state government. (10)

This case comment provides in-depth analysis of the Abdullahi case and explores the implications of the Abdullahi decision for future cases brought to U.S. federal courts under the ATS. First, Part I surveys formation and significant developments of the ATS. Second, Part II provides the factual background and the procedural history of the case. Third, Part III examines the majority's holding and reasoning as well as discusses the dissenting opinion. Finally, Part IV addresses implications of the Abdullahi decision on the ATS jurisprudence and post-Abdullahi developments.

The Alien Tort Statute

The First Congress originally passed the ATS in 1789 allowing non-U.S. citizens to sue "for a tort only, committed in violation of the law of nations or treaty of the United States." (11) The statute grants federal jurisdiction for suits alleging (1) torts committed anywhere in the world (2) against a non-U.S. citizen who brings the action (3) in violation of the law of nations. (12) Some courts and legal scholars consider the ATS as having a "strictly jurisdictional nature" in the sense that the statutory provision grants jurisdiction to federal courts without a substantive power to create new causes of action. (13) At the time of enactment the ATS had a practical application for a limited set of actions that asserted violations of the law of nations. (14) Specifically, the ATS has been traditionally limited to claims for crimes against ambassadors, violations of the right to safe passage, and crimes of piracy. (15) Because of the scarce legislative history and conflicting historical interpretations of the ATS, non-American citizens randomly invoked the statute to seek redress for violations of international law in U.S. federal courts until 1980. (16)

While the ATS is a simple statute on its face, courts have struggled to identify the requirements that a non-U.S. citizen must satisfy in order to bring an ATS claim in a U.S. federal court. (17) Starting in 1980 with Filartiga v. Pena-Irala, a number of cases attempted to clarify and expand its statutory application to allow for new causes of action. (18) In Filartiga, after comprehensive examinations of numerous sources of customary international law condemning the acts of torture, the Second Circuit concluded that the right to be free from torture was proscribed by the law of nations. (19) Because torture committed by state officials or under the color of official authority violated universally accepted norms of international law, the torture claim by non-U.S. citizens could be brought under the ATS. (20) Implicit in this finding is the notion that "a state's treatment of its own citizens is a matter of international concern." (21) The Filartiga court found that there was an international consensus against the use of torture supported by numerous international treaties and accords. (22) The issue of whether torture is a norm of customary international law actionable under the ATS was resolved. The ATS question after Filartiga became: What does it take for a well recognized norm of international law to qualify as the "law of nations" in order for a U.S. federal court to exercise federal jurisdiction? (23)

Fifteen years after the Filartiga decision, the Second Circuit addressed another ATS issue of who could be held liable under the ATS. (24) The court in Kadic v. Karadzic held that "certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals." (25) In Kadic, a group of victims of Bosnian war brought claims of crimes of genocide, war crimes, crimes against humanity, rape, forced prostitution, and forced pregnancy against the self proclaimed Bosnian-Serb leader. (26) The Kadic court emphasized that private persons might be found liable under the ATS for violations of international humanitarian law, genocide, and war crimes. (27) In addition, the court found the plaintiffs satisfied the state action requirement for other crimes by showing that the Bosnian-Serb leader acted under color of law because he acted in concert with the state officials of the former Yugoslavia. (28) Later, some courts also held that because the ATS contains no express exception for corporations, the statute grants jurisdiction over torture claims against corporate defendants. (29)

Finally, in 2004, the U.S. Supreme Court weighed in on the scope of the ATS. In the seminal opinion, Sosa v. Alvarez-Machain, Justice Souter outlined the framework for determining whether a claim properly asserts a violation of a norm of customary international law, thus supporting a cause of action under the ATS. (30) In order for a violation of the law of nations to be actionable under the ATS, the norm prohibiting such violation must be "defined with a specificity comparable to the features of the 18th-century paradigms" such as transgression of the rights of ambassadors, piracy crimes, and violations of safe conducts or passports. (31) The Supreme Court explained that torts in violation of the customary international law could be defined by common law because nothing has precluded federal courts from "recognizing a claim under the law of nations as an element of common law." (32) Nevertheless, because the understanding of federal common law drastically changed in 1938 when the watershed opinion in Erie R. Co. v. Tompkins rejected the concept of...