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ADAMU v. PFIZER

November 8, 2005.

AJUDU ISMAILA ADAMU et al., Plaintiffs,
v.
PFIZER, INC., Defendant.



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

MEMORANDUM AND ORDER

Plaintiffs bring this putative class action seeking redress for injuries arising from the experimental administration of an antibiotic in Nigeria by defendant Pfizer, Inc. ("Pfizer" or "Defendant").*fn1 Plaintiffs bring their action under 28 U.S.C. § 1350, the Alien Tort Statute (the "ATS"),*fn2 claiming that Pfizer violated the Nuremberg Code, the Declaration of Helsinki, the guidelines promulgated by the Council for International Organizations of Medical Services ("CIOMS"), article 7 of the International Covenant on Civil and Political Rights ("ICCPR"), Article 5 of the Universal Declaration of Human Rights and other customary international law as well as the FDA regulations. Plaintiffs also allege that Pfizer violated the Connecticut Unfair Trade Practices Act ("CUTPA") and the Connecticut Products Liability Act ("CPLA").

Defendants move to dismiss for failure to state a claim, lack of subject matter jurisdiction, and forum non conveniens. For the reasons discussed below, Pfizer's motion is granted.

BACKGROUND

I. Brief Overview of the Facts

The facts below are taken from Plaintiffs' one hundred and forty-five page complaint, initially filed in the District of Connecticut. Plaintiffs are Nigerian minors and their guardians, all of whom are residents of Nigeria. (Complaint, dated Nov. 27, 2002 ("Compl.") ¶ 7.) Pfizer is "one of the world's largest pharmaceutical companies and [a] world premier research-based multinational pharmaceutical and health care company." (Compl. ¶ 10.) Pfizer developed Trovaflozacin Mesylate, an antibiotic also known by the brand name "Trovan," at its Global Research and Development World Headquarters in Groton, Connecticut. (Compl. ¶¶ 10, 13, 21.)

In early 1996, soon after an outbreak of cholera, meningitis and gastroenteritis in Nigeria, Pfizer sent a team of executives, scientists and doctors to the Infectious Disease Hospital ("IDH") in Kano to test Trovan on child patients. (Compl. ¶¶ 7-8, 11.) See Abdullahi I, 2002 WL 31082956, at *1-2. Plaintiffs allege that Trovan was still "a new, untested and unproven drug." (Compl. ¶ 12; see Compl. ¶ 26.) Trovan was also known to have life-threatening side effects for children and adults. (Compl. ¶ 13.) Prior animal testing indicated that Trovan might cause children to develop joint disease, abnormal cartilage growth and Osteochondrosis which could further cause improper bone formation and liver damage. (Compl. ¶¶ 20, 24-25.) At the IDH, Pfizer selected "hundreds of Nigerian children" for participation in its experiments, but did not obtain the children's or their parents' informed consent. (Compl. ¶¶ 12, 26.) Indeed, Pfizer did not inform the children or their parents that because Trovan was experimental, patients could refuse it and instead receive "proven safe and effective treatment." (Compl. ¶ 12.)

At the treatment center, Pfizer divided the patients into two groups: half of the children were treated with Trovan while a control group was "intentionally low-dosed with an improperly administered control drug Ceftriaxone."*fn3 (Compl. ¶ 13.) That is, Pfizer administered the Ceftriaxone at one-third of its recommended dosage to enhance the comparative results of Trovan. (Compl. ¶¶ 13, 29.) Further, Pfizer deviated from its testing protocol by not regularly analyzing the patients' blood specimens. As a result, Pfizer failed to assess the patients' reaction to Trovan until they exhibited specific observable permanent injuries. (Compl. ¶ 30.) At the time of the test, one of Pfizer's employees repeatedly informed Pfizer's senior management that its actions in Kano were oppressive, inappropriate and illegal. (Compl. ¶ 23.)

Medecins Sans Frontieres ("MSF"), better known as Doctors Without Borders, was also treating IDH patients at this time. (Compl. ¶ 15.) See Abdullahi I, 2002 WL 31082956, at *1. However, because of Pfizer's experimentation, the participating patients were denied adequate medical care and treatment they otherwise would have received from MSF. (Compl. ¶ 15.) After two weeks of testing, Pfizer's team left Kano and never returned for follow-up evaluations. (Compl. ¶ 27.) Many of the children who were administered Trovan or inadequate doses of Ceftriaxone died. (Compl. ¶ 26.)

On November 27, 2002, Plaintiffs brought this action in the District of Connecticut, pursuant to the ATS and Connecticut statutes. Subsequently, the action was transferred to this Court as related to Abdullahi v. Pfizer, 01 Civ. 8118.

II. The Abdullahi Decisions

On August 29, 2001, the Abdullahi plaintiffs, who were Nigerian residents, brought an action under the ATS against Pfizer for its alleged violations of international law, relying on the same sources of international law that Plaintiffs invoke in this action. The Abdullahi plaintiffs alleged that despite knowing that Trovan had the potential to cause serious joint and liver damage, Pfizer failed to inform them of that risk or seek their informed consent and neglected to evaluate the patients following their treatment. Pfizer moved to dismiss the complaint on forum non conveniens grounds and for failure to state a claim. By Memorandum and Order dated September 17, 2002, this Court denied Pfizer's motion to dismiss for failure to state a claim under the ATS, but granted its motion to dismiss on forum non conveniens grounds. Abdullahi I, 2002 WL 31082956, at *6-12. This Court held that the action should be litigated in Nigeria where the alleged incidents took place. Abdullahi I, 2002 WL 31082956, at *12. The Abdullahi plaintiffs appealed that ruling.

On appeal, the Abdullahi plaintiffs asked the Second Circuit to take judicial notice of the fact that a parallel action filed in Nigeria, Zango v. Pfizer International, Inc., Case No. FHC/K/CS/204/2001 (Nigeria) (the "Zango proceedings"), involving different plaintiffs but the same course of conduct by Pfizer, was voluntarily dismissed on August 19, 2002.*fn4 Abdullahi II, 77 Fed. Appx. at 52. In particular, the Abdullahi "[p]laintiffs request[ed] that [the Second Circuit] notice both the fact of the dismissal `and the reasons for it."' Abdullahi II, 77 Fed. Appx. at 52. The Abdullahi plaintiffs argued that the Zango plaintiffs' Notice of Discontinuance evidenced 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. Appx. at 52. Pfizer objected to the Abdullahi plaintiffs' request, and asked the Second Circuit to take notice of "the entire Zango docket, minutes and rulings," arguing that the full record demonstrated "that the Zango plaintiffs' version of events (as outlined in the Notice of Discontinuance) [was] disingenuous." Abdullahi II, 77 Fed. Appx. at 52.

Because the parties offered conflicting understandings of the Zango proceedings and had not submitted the Zango record for the Court's review, the Second Circuit declined to take judicial notice of the matters requested by either side. The Court of Appeals noted that the facts of the Nigerian case "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 remanded the case to this Court "to determine what precipitated the ...


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