Pfizer Settles Medical Experimentation Case in Nigeria

The state of Kano in Nigeria agreed to settle a lawsuit against Pfizer over a meningitis drug study for $75 million. In the study, Pfizer treated 100 children with meningitis with the experimental antibiotic Trovan. A control group of 100 other children, was treated with an FDA-approved antibiotic, ceftriaxone. However, the families allege that the dose was lower than recommended in order to inflate the apparent effectiveness of Tovan. Eleven children in the study died and others were left with brain damage, paralysis and slurred speech. According to Pfizer, these effects are known to be after-effects of meningitis and the children who received Trovan had a better survival rate than those on ceftriaxone. The families were allegedly not told about the nature of the experiment or about the possible side effects of Trovan.

This case was recently before the Second Circuit Court of Appeals in the US. Eighty-eight Nigerian families brought suit under the Alien Tort Statute (ATS). The statute allows non-US citizens to bring lawsuits for certain violations of international law. It has been used to successfully bring lawsuits or in settlement against other corporations, including Chevron, Unocal and Yahoo! (A previous post discussed an Alien Tort Statute case against Royal Dutch Shell for alleged complicity in human rights abuses by the Nigerian military.)

The majority of the Second Circuit panel decided that claims for non-consensual medical experimentation can be brought under the ATS. However, the court did not review the lower courts decision to dismiss the case on the ground of "forum non conveniens," meaning that there is a more appropriate forum.

In 89 pages containing numerous barbed comments, the 2nd U.S. Circuit Court of Appeals majority and dissent differed over whether the families' claims that their children had been subjected to medical experimentation without their consent fell within the 18th-century law.

In concluding that the law embraces claims of unconsented medical experimentation, Judge Barrington D. Parker wrote for the majority that the dissent took an approach to "customary" international law that is "unselfconsciously reactionary and static."

In dissent, Judge Richard C. Wesley described the majority as creating a new norm "out of whole cloth" upon the basis of "materials inadequate to the task."