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ABDULLAHI v. PFIZER

August 9, 2005.

RABI ABDULLAHI, individually and as the natural guardian and personal representative of the estate of her daughter Lubabatau Abdullahi, et al., Plaintiffs,
v.
PFIZER, INC., Defendant.



The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

This putative class action stems from Plaintiffs' allegations that they suffered grave injuries from an experimental antibiotic administered by defendant Pfizer, Inc. ("Pfizer" or "Defendant") in Nigeria. Plaintiffs bring their action under 28 U.S.C. § 1350, the Alien Tort Statute (the "ATS"),*fn1 because Pfizer purportedly violated the Nuremberg Code, the Declaration of Helsinki, article 7 of the International Covenant on Civil and Political Rights ("ICCPR"), FDA regulations and other customary international law. On September 16, 2002, this Court dismissed this action on forum non conveniens grounds. Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118 (WHP), 2002 WL 31082956 (S.D.N.Y. Sept. 17, 2002) ("Abdullahi I"). Thereafter, the Second Circuit remanded the action for consideration of the circumstances underlying dismissal of a related case in Nigeria, captioned Zango v. Pfizer International, Inc., Case No. FHC/K/CS/204/2001 (the "Zango proceedings"). Abdullahi v. Pfizer, Inc., No. 02-9223(L), 77 Fed. App'x 48, 53 (2d Cir. Oct. 8, 2003) ("Abdullahi II"). The parties submitted the record of the Zango proceedings for review in connection with the forum non conveniens analysis. In addition, Pfizer moves to dismiss for lack of subject matter jurisdiction under the ATS.

  As discussed below, this Court grants Pfizer's motion to dismiss. In addition, this Court finds that the Zango proceedings do not preclude dismissal of this action for forum non conveniens.

  BACKGROUND

  I. Brief Overview of the Alleged Facts

  The factual background of this action is set forth in this Court's prior Memorandum and Order. See Abdullahi I, 2002 WL 31082956, at *1-3. Briefly stated, Plaintiffs are Nigerian minors and their guardians, residing in Nigeria. Abdullahi I, 2002 WL 31082956, at *1. The central events at issue in this lawsuit occurred in 1996, soon after epidemics of bacterial meningitis, measles and cholera broke out in Kano, Nigeria. Abdullahi I, 2002 WL 31082956, at *1. Pfizer established a treatment center at the Infectious Disease Hospital ("IDH") in Kano to treat meningitis victims. Abdullahi I, 2002 WL 31082956, at *1. Plaintiffs allege that instead of using safe and effective treatments, Pfizer embarked on a medical experiment involving the "new, untested and unproven" antibiotic, trovaflozacin mesylate, better known by its brand name, Trovan® ("Trovan"). Abdullahi I, 2002 WL 31082956, at *1.

  "Plaintiffs further contend that Pfizer's sole purpose for traveling to Kano was to expedite the FDA's approval of Trovan to treat pediatric victims." Abdullahi I, 2002 WL 31082956, at *2. Nigerian officials allocated two IDH wards to Pfizer for the testing. Abdullahi I, 2002 WL 31082956, at *2. Pfizer treated children ranging in age from one to thirteen years who exhibited symptoms of neck stiffness, joint stiffness and high fevers with headaches and divided them into two groups. Abdullahi I, 2002 WL 31082956, at *2. One group was treated with Trovan, while the other was "purposefully `low-dosed'" with ceftriaxone, an FDA-approved drug shown to be effective in treating meningitis. Abdullahi I, 2002 WL 31082956, at *2. To enhance the comparative results of Trovan, Pfizer administered only a third of ceftriaxone's recommended dosage. Abdullahi I, 2002 WL 31082956, at *2.

  Plaintiffs contend that "Pfizer failed to explain to the children's parents that the proposed treatment was experimental, that they could refuse it, or that other organizations offered more conventional treatments at the same site free of charge." Abdullahi I, 2002 WL 31082956, at *2. After two weeks of testing, Pfizer's team left Kano and never returned for follow-up evaluations. Abdullahi I, 2002 WL 31082956, at *2. Five children who received Trovan and six children who were "low-dosed" with ceftriaxone died, while others suffered paralysis, deafness and blindness. Abdullahi I, 2002 WL 31082956, at *2. II. Procedural History

  On August 29, 2001, Plaintiffs, who are Nigerian residents, brought this action under the ATS to recover damages for Pfizer's alleged violations of international law, specifically, the Nuremberg Code, the Declaration of Helsinki, the guidelines authored by the Council for International Organizations of Medical Services ("CIOMS"), article 7 of the ICCPR, the Universal Declaration of Human Rights and FDA regulations. (Complaint, dated Aug. 28, 2001 ("Compl.") ¶¶ 10, 15, 134, 228-50.) Plaintiffs allege that despite knowing that Trovan could cause serious joint and liver damage, Pfizer failed to inform them of that risk or seek their informed consent, and neglected to evaluate the subjects subsequent to their treatment. (Compl. ¶¶ 135-40.) Pfizer moved to dismiss the Complaint for forum non conveniens and failure to state a claim. By Memorandum and Order dated September 16, 2002, this Court denied Pfizer's motion to dismiss for failure to state a claim but granted its motion to dismiss on forum non conveniens grounds. Abdullahi I, 2002 WL 31082956, at *6, 12. This Court found that the action should be litigated in Nigeria where the alleged incidents took place. Abdullahi I, 2002 WL 31082956, at *12. Plaintiffs appealed that ruling to the Court of Appeals.

  On appeal, Plaintiffs asked the Second Circuit to take judicial notice of the fact that a parallel action filed in Nigeria, involving different plaintiffs but the same course of conduct by Pfizer, was voluntarily dismissed on August 19, 2002.*fn2 Abdullahi II, 77 Fed. App'x at 52. In particular, "Plaintiffs request[ed] that [the Second Circuit] notice both the fact of the dismissal `and the reasons for it.'" Abdullahi II, 77 Fed. App'x at 52. Plaintiffs argued that the Zango plaintiffs' Notice of Discontinuance evidences their reasons for discontinuing the action: "The notice blames an indefinite adjournment and the fact that the judge hearing the case declined jurisdiction `for personal reasons.'" Abdullahi II, 77 Fed. App'x at 52.

  Pfizer objected to Plaintiffs' request, and asked that the Second Circuit take notice of "the entire Zango docket, minutes and rulings because, according to Pfizer, these entries, minutes and rulings show that the Zango plaintiffs' version of events (as outlined in the Notice of Discontinuance) is disingenuous." Abdullahi II, 77 Fed. App'x at 52.

  Because the parties' understanding of the Zango proceedings conflicted and the Zango record was not before this Court, the Second Circuit declined to take judicial notice of the matters requested by either side. The Court of Appeals noted that "[t]hese facts . . . would seem to be relevant to the forum non conveniens analysis — perhaps providing just the type of specific information that the District Court found lacking," and "remand[ed] the case to the District Court for proceedings to determine what precipitated the dismissal in Zango and to evaluate whether that impacts the District Court's forum non conveniens analysis." Abdullahi II, 77 Fed. App'x at 53.

  On September 8, 2004, this Court held oral argument on the issue framed by the Court of Appeals. At the oral argument, Pfizer sought permission to file a brief on the impact of the Supreme Court's ruling in Sosa v. Alvarez-Machain and the Second Circuit's ruling in Flores v. Southern Peru Copper Corporation in support of a new motion to dismiss for failure to state a claim under the ATS. (Transcript of Oral Argument, dated Sept. 8, 2004 ("Tr.") at 28-30.) To ensure "judicial economy," this Court agreed to consider the impact of Sosa and Flores on the instant action. (Tr. at 29.) III. Zango Proceedings

  The facts pertaining to the Zango proceedings are gleaned from the declarations of the parties' experts. (See Affidavit of Lukman O. Ishola, dated June 3, 2003 ("Ishola Aff. I"); Affidavit of Lukman O. Ishola, dated May 7, 2004 ("Ishola Aff. II"); Declaration of Adetunji Oyeyipo, dated Apr. 29, 2004 ("Oyeyipo Decl.").)

  On March 12, 2001, the Zango plaintiffs, represented by Lukman O. Ishola, brought their action in the Federal High Court in Kano, Nigeria, seeking "compensation for losses suffered and the death of some of the [Zango] [p]laintiffs as a result of the injuries sustained upon the administration of the drug Trovafloxacin (Trovan)." (Ishola Aff. I ¶ 1, 3; see Ishola Aff. II ¶ 1; Oyeyipo Decl. ¶ 10.) The Zango complaint alleged that there were 350 class members. (Oyeyipo Decl. ¶ 10; Ishola Aff. II ¶ 3.) In addition to Pfizer, the Zango plaintiffs named the Federal Ministry of Health, the Minister of Health, and the Attorney General and Minister of Justice of Nigeria (collectively, the "Government Defendants") as defendants. (Oyeyipo Decl. ¶ 10; Oyeyipo Decl. Ex. A at 97-99.)

  The parties dispute whether the Kano action progressed in a timely manner. For example, Plaintiffs contend that it "suffered 14 adjournments without appreciable progress" (Ishola Aff. I ¶ 5), while Pfizer contends that the Zango court "gave considerable attention to the matter, holding eight separate Court dates in the course of over a year, and more recently holding a ninth hearing approximately two months after a new judge was appointed." (Oyeyipo Decl. ¶ 5; Oyeyipo Decl. Ex. A: Record of the Zango Proceedings.) The Zango record indicates that some of the adjournments in that action resulted from failure of the Zango plaintiffs or their counsel to appear in court or from adjournments they requested. (See, e.g., Oyeyipo Decl. Ex. A at 175 (plaintiffs' counsel not present), 175-76 (plaintiffs' counsel seeks adjournment), 187 (plaintiffs' counsel seeks adjournment).)

  Additionally, the Zango plaintiffs appear to have pursued litigation strategies that further delayed the proceedings. For example, in their Answer, the Nigerian Government defendants argued that the Public Officers Protection Act Cap 379 Law of the Federation of Nigeria 1990 barred the suit against them. (Oyeyipo Decl. Ex. A at 95.) In response, the Zango plaintiffs requested "a short date to allow [its counsel] to react and argue the objection" of the Government Defendants. (Oyeyipo Decl. Ex. A at 176.) The case was adjourned to July 3, 2001. (Oyeyipo Decl. Ex. A at 176.) On July 3, 2001, instead of addressing the merits of the Government Defendants' opposition, the Zango plaintiffs objected that the Government Defendants had not filed "a memo of appearance in this matter" and urged that the defense be "struck out." (Oyeyipo Decl. Ex. A at 176.) Pfizer's counsel responded that "one would have expected [the Zango plaintiffs] to overlook any [technical] irregularity so as to give [their] suit a speedy trial," and "urge[d] the court to over rule the objection of [the Zango plaintiffs] and to allow parties to address the Court on the issue of preliminary objection filed by the [Government] Defendants." (Oyeyipo Decl. Ex. A at 180.) While the court declined the Zango plaintiffs' request to strike the defense, it adjourned the proceeding to allow the Government Defendants' counsel an opportunity to "apply formally to regularize his position in th[e] matter." (Oyeyipo Decl. Ex. A at 181-82.) On September 24, 2001, instead of responding to the Government Defendants' defense, the Zango plaintiffs asked the court to "strike out" their action against the Government Defendants. (Oyeyipo Decl. Ex. A at 183.) Because there was no objection, the court dismissed the action against the Government Defendants but ordered the Zango plaintiffs to pay N3,000 (three thousand naira) in costs. (Oyeyipo Decl. Ex. A at 184-85.)

  On November 5, 2001, the Zango plaintiffs sought leave to amend their statement of claim and the court granted the request. (Oyeyipo Decl. Ex. A at 186-87.) However, the Zango plaintiffs did not file an amended statement of claim. There is also evidence that the Zango plaintiffs repeatedly failed to adequately respond to Pfizer's requests for particulars. (Oyeyipo Decl. Ex. A at 112-13, 153-64, 187, 189-90.)

  Plaintiffs argue that Pfizer bears responsibility for delays in the Zango proceeding. (Ishola Aff. I ¶¶ 6-7.) In particular, Ishola contends that Pfizer "filed an application for the supply of further and better particulars on August 6, 2001 and I verily believe that learned Counsel deliberately left it in abeyance for argument until June 6, 2002." (Ishola Aff. I ¶ 6.) Ishola further states that he "verily believe[s] that [Pfizer's] Counsel, Messrs Rotimi Ogunesho and Tunji Oyeyipo who usually appeared in court were never ready to argue the motion filed on August 6, 2001 for 11 months after filing the application until the [Pfizer's] leading counsel learned Senior Advocate of Nigeria, Alhaji Abdullahi Ibrahim deemed it fit to appear for the first time since the commencement of the Suit on 12th March, 2001 and argue?" the motion. (Ishola Aff. I ¶ 7.) However, both assertions, admittedly Ishola's "beliefs," are unsupported by evidence.

  There is no dispute that some of the delay in the Zango proceedings resulted from the Nigerian judiciary. For example, on July 30, 2001, the case was adjourned until September 24, 2001 because Judge Nwaogwugwu, the assigned judge, was unavailable for personal reasons. (Oyeyipo Decl. ¶ 25 & Ex. A at 183.) Later, in November 2001, Judge Nwaoagwugwu was removed from the bench because he had "assumed jurisdiction over a[n unrelated] case that he did not have the authority to adjudicate over." (Oyeyipo Decl. ¶ 43; see also Letter to the Court from Elaine S. Kusel, dated May 7, 2004 ("Kusel Letter") at 4.) Subsequently, on April 22, 2002, Judge Hobon was assigned the Zango action. (Oyeyipo Decl. Ex. A at 188; see also Kusel Letter at 4.) Less than three months later, Judge Hobon declined ...


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