In Which a Well-Meaning Reader Tip Is Punished with "ATCA for Dummies" (Sorry)

Alert reader / global health enthusiast Dominic Montagu drew our attention to the petition for cert before the Supreme Court in the Abdullahi v. Pfizer case.

For those who are not Alien Tort Claims Act groupies, this is the lawsuit arising out of Pfizer’s clinical trials of the antibiotic Trovan, tested on Nigerian children during a meningitis outbreak. Apparently, participants in the trial were not informed of the potential risks associated with the treatment, nor of the fact that MSF was offering non-experimental meningitis treatment for free. The claims allege that Pfizer therefore failed to follow informed consent guidelines. For a far more detailed rundown, see Tom Bollyky’s post at the Center for Global Development’s global health policy blog.

As Bollyky points out, the case raises a host of issues in the global health realm: Would a finding of legal liability discourage clinical trials, thereby retarding progress in treating serious illnesses? Would a more rigorous standard for informed consent prevent testing among certain populations? Fascinating questions, but I’m a lawyer, so instead you’re getting a discussion of civil procedure. Buckle up.

After a whole lot of litigation in exciting venues like the Nigerian Federal High Court and the Southern District of New York, the case made its way to the Second Circuit Court of Appeals, which considered whether the claims belong in U.S. federal court at all. This is an open question, because the Nigerian plaintiffs are suing under the Alien Tort Claims Act, which provides a narrow right for foreign citizens to sue in U.S. federal courts where they have suffered damages as a result of a “violation of the law of nations or a treaty of the United States.”

What does this mean, you ask? Well, no one’s really sure. When the statute was written in 1789, recognized violations of the law of nations were pretty much limited to piracy and poking an ambassador with a sharp stick. Then the law went into hibernation for roughly two centuries. When it reappeared on the scene in 1980 in a case involving state torture, the Second Circuit held that violations of contemporary customary international law, comparable in nature to the aforementioned old-timey violations of piracy and ambassador-baiting, could serve as the basis for ATCA suits.

It’s all gotten very complicated since then, with most of the fuss focused on two interrelated issues: (1) Who can be sued under ATCA? and (2) How do we tell if something’s a violation of the law of nations?

The first question gets tricky because traditionally, only states were subject to international law, so only states could be sued for failure to comply. But egregious violations of international law aren’t just for states anymore; these days, everyone from megalomaniacal rebel leaders to multi-national companies is in on the fun. The application of the ATCA to these actors is still unsettled, but some courts have been willing to extend liability to non-state actors like corporations where there was a sufficient nexus to state action, or in cases involving violations of jus cogens (rough translation: “omg, super-serious!”) norms of international law.

The second question is mostly only a problem because U.S. federal judges seem congenitally incapable of looking up the definition of “customary international law.” (Hint to Judge Wesley: Try the ICJ Statute next time you get stuck on that whole treaties vs. custom thing. Seriously, it worked for me.)

Which brings us back to the Second Circuit. Earlier this year, it ruled that the plaintiffs could bring their case against Pfizer under the ATCA. Let’s guess why, shall we?

Is it:
(a) Because drugs are bad!
(b) Because the customary norm of international law that prohibits nonconsensual medical experimentation on humans says that Pfizer’s failure to get its paperwork in order is EXACTLY THE SAME as Mengele’s attempts to create conjoined twins by sewing Holocaust victims together.
(c) Because the Nigerian government’s involvement in the trials was sketchy enough that there’s arguably state action.
(d) Because the Second Circuit is hellbent on expanding the scope of ATCA beyond all recognition.
(e) b and c (and maybe d).

If you guessed (e), strong work. The Second Circuit established the existence of “a norm forbidding nonconsensual human medical experimentation” that is “every bit as concrete—indeed even more so—than the norm prohibiting piracy that Story describes, or interference with the right of safe conducts and the rights of ambassadors.” -And, while they were at it, conducted what I consider to be a backasswards analysis of the state action requirement and found that the Nigerian government’s assistance with Pfizer’s bad acts was enough to allow the suit to proceed.

So, now it’s up to the Supreme Court, which has yet to rule on the availability of ATCA suits against corporate defendants. Roger Alford over at Opinio Juris points out that this may be the ideal test case for the corporate liability issue. Stay tuned…

Kate Cronin-Furman


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