The Supreme Court gave a rare hit to private businesses when it declined to take up a case against pharmaceutical giant Pfizer. The suit alleges the drug company conducted nonconsensual drug testing on over 200 Nigerian children, some of whom died as a result of the tests. The suit was filed under the Alien Tort Statute (ATS) which grants federal judges the ability to hear civil lawsuits filed by non-US citizens for violations of the “law of nations”. By declining to hear Pfizer’s appeal and entertain its argument that it cannot be sued in an American court for these claims the Supreme Court has allowed the matter to move forward to trial.
According to the complaint, in 2006 Pfizer employees, working with Nigerian officials, recruited 200 sick children during a viral outbreak in Kano, Nigeria in order to test a new product. Half of the children recruited were given Trovan, an experimental drug never tested on children. The other half of the recruits received a Food and Drug Administration-approved antibiotic.
While Trovan had never before been tested on children, it had been tested on animals, and those clinical trials showed the drug had life-threatening side effects. But according to the complaint, Pfizer never advised the children or their guardians about those lethal side-effects, nor did Pfizer ever advise the recruits that the relief group Doctors Without Borders was providing a “conventional and effective treatment” for the virus, free of charge, at the very same hospital.
Plaintiffs of the suit are surviving children of the drug experiments and relatives of the children who died. The children who survived the experiments were left deaf, blind, paralyzed, or brain damaged. Normally such claims would be filed in Nigeria, the location of the drug experiments, but attorneys for the plaintiffs argue that Nigerian courts are too corrupt and only the American court system can adequately bring Pfizer to justice. Pfizer has denied that the Nigeria experiments were conducted without the consent and knowledge of the children and their guardians and want the case thrown out of court because, according to Pfizer, the drug experiments are not a specific violation of international law and thus not covered under the Alien Tort Statute.
And Pfizer is fighting this case hard, arguing that the Alien Tort Statute should not be read to allow these kinds of claims. Pfizer’s issued statement claims that suits like these are in reality a discriminatory tax on American companies who do business abroad.
But the lawyers for the Nigerian children see it a little differently, arguing that multinational corporations should not get to hide behind jurisdictional arguments if they prey on the vulnerable. Quite simply, Pfizer wasn’t engaged in any legitimate international commerce during these experiments, so to call ATS suits a “tax” on business is really something else.
Shortly after the US suit was filed Nigerian officials filed their own lawsuit which Pfizer agreed to settle last year. In that case Pfizer announced it would pay a $75 million settlement in exchange for the dismissal of all civil and criminal charges filed in Nigeria. The settlement purportedly also establishes a fund to benefit the children involved in the drug experiments.
It’s doubtful that Pfizer would have engaged in similar behavior in the United States, and the positioning by the Supreme Court means a settlement is just as likely as a trial as Pfizer will want to keep as much of these events out of the mainstream American press as possible. But it does serve as an important marker for those trying to protect the most vulnerable from what seems like never-ending abuses from the private sector.
photo courtesy of MikeBlyth via Flickr