## Facts

- During a 1996 meningitis epidemic in Kano, Nigeria, Pfizer conducted a pediatric clinical trial of trovafloxacin (Trovan) at a government-run hospital.
- Plaintiffs (Nigerian children and their parents or estates) alleged Pfizer gave Trovan to roughly 100 children and gave others ceftriaxone at an intentionally sub-therapeutic dose to make Trovan appear more effective.
- Plaintiffs alleged Pfizer failed to obtain informed consent from children or parents and did not disclose that Trovan was experimental or that effective standard treatment was available.
- Plaintiffs alleged deaths and severe injuries (including paralysis, deafness, and blindness) resulted from the trial.
- Plaintiffs sued in federal court under the Alien Tort Statute (ATS), asserting that nonconsensual medical experimentation violates customary international law.
- The district court dismissed for lack of ATS subject-matter jurisdiction, concluding the alleged international law norms were not sufficiently “specific, universal, and obligatory” under Sosa.
- Plaintiffs appealed.

## Issues

1. Whether allegations of nonconsensual medical experimentation state a violation of a specific, universal, and obligatory norm of customary international law actionable under the ATS.
2. Whether the asserted norm requires state action and, if so, whether plaintiffs plausibly alleged conduct attributable to the Nigerian state.
3. Whether the court, in resolving ATS jurisdiction and state action, may consider materials beyond the face of the complaint.

## Decision

- The Second Circuit reversed the dismissal and remanded.
- The court held that the prohibition on nonconsensual medical experimentation on human beings is a sufficiently definite and widely accepted customary international law norm to satisfy Sosa and support ATS jurisdiction.
- The court held plaintiffs adequately alleged state action through alleged cooperation with, authorization by, or joint participation of Nigerian governmental actors and officials at the state-run hospital.
- The court concluded it could consider certain materials beyond the complaint in assessing jurisdictional facts related to state action, and those materials supported a reasonable inference of governmental involvement.

## Legal Principles

- ATS jurisdiction extends only to torts in violation of international law norms that are “specific, universal, and obligatory,” and comparable in definiteness to the paradigms recognized in Sosa.
- A norm prohibiting nonconsensual medical experimentation can qualify as customary international law when supported by widespread post-World War II condemnation and articulated standards requiring voluntary, informed consent.
- Some international law norms require state action; a private defendant may be subject to ATS claims when the alleged conduct is fairly attributable to a state through joint action, authorization, or other action under color of law.
- When subject-matter jurisdiction turns on jurisdictional facts (including state action), courts may consider appropriate materials beyond the pleadings to decide whether plaintiffs have plausibly alleged jurisdiction.

## Conclusion

The Second Circuit held that plaintiffs plausibly alleged an ATS claim based on nonconsensual medical experimentation and sufficiently alleged state action involving Nigerian officials, so the district court’s jurisdictional dismissal was reversed and the case was remanded for further proceedings.


Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009)