Supreme Court allows drug test case against Pfizer to proceed

“The ATS threatens to become an ever more expansive vehicle for burdensome litigation and crippling liability that imposes a kind of discriminatory tax on American companies doing business abroad,” Ms. Sullivan wrote.

In a brief on behalf of the Nigerian children, Arthur Miller said the Second Circuit engaged in a faithful application of Supreme Court guidance. He said the Pfizer case is different than other dismissed ATS lawsuits against American multinational corporations.

'Nigerian children were vulnerable'

“Pfizer was not engaged in international commerce at all in this case,” he wrote. “Arguably, a primary reason Nigeria was involved in the process was because the Nigerian children were vulnerable to nonconsensual experimentation.”

Mr. Miller added: “It is highly unlikely that Pfizer would have conducted the [drug] study with the same disregard for subjects’ rights if those subjects were American children.”

Lawyers for the children allege in their lawsuit that Pfizer employees, working in concert with Nigerian officials, recruited 200 sick children during a severe virus outbreak in Kano, Nigeria. Half the children were allegedly given Trovan, an experimental drug never tested on children. The other half, the control group, was given a Food and Drug Administration-approved antibiotic.

Trovan had been shown in animal tests to feature life-threatening side effects. According to court documents, Pfizer officials sought to highlight the effectiveness of Trovan by giving the control group a deliberately low dose of the FDA-approved antibiotic.

Eleven children died

Five of the children given Trovan died. Six children in the control group given the lower dose of the approved antibiotic died.

In addition, it is alleged that Pfizer never advised the children or their parents of the potential side effects of Trovan. And they were allegedly never advised that the relief group Doctors Without Borders was providing “a conventional and effective treatment” for the virus, free of charge at the same hospital.

After the children’s lawsuit was filed, Nigerian officials filed their own lawsuits against Pfizer. On July 31, 2009, Pfizer announced it would pay a $75 million settlement in exchange for the dismissal of civil and criminal charges filed in Nigeria. The settlement is said to include establishment of a fund to benefit the children.

Chief Justice John Roberts and Justice Sonia Sotomayor took no part in the consideration of the Pfizer appeal.

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