The Second Circuit reversed a lower court on Friday, bringing good news for ATS plaintiffs worldwide. See Abdullahi v. Pfizer, Inc., __ F.3d __, 2009 WL 214649 (2d Cir. 2009). Even though this case comes out of Africa, all ATS litigants (including those from South America) would do well to give it a read.
The New York-based appellate panel held that several Nigerian families have the right to sue drug giant Pfizer, Inc. in U.S. district court for allegedly testing antibiotics on children without their consent or knowledge. Proceeding under the ATS, the plaintiffs alleged that the experimentation–which supposedly killed 11–violated “customary international law” governing medical practices. The appellate court reversed the dismissal of the suit, finding, contrary to the district judge, that the legal norm (informed consent) was specific, universal, and of mutual concern, thereby meeting the test from Sosa v. Alvaraez-Machain, 542 U.S. 692 (2004). And in a sign of the increasing internationalizion of law, it looked to the Statute of the International Court of Justice to identify sources of authority speaking to informed consent (e.g., the non-binding Declaration of Helsinki).
The decision is sure to prove controversial. In fact, it already has. In a strongly-worded dissent, Judge Wesley said that
[t]he majority has undertaken to define a “firmly established” norm of international law, heretofore unrecognized by any American court or treaty obligation, on the basis of materials inadequate for the task. In deviating from our settled case law, the majority identifies no norm of customary international law, it creates a new norm out of whole cloth.
Id. at *22.
Well, perhaps that’s the battle cry for ATS defendants in the future. More likely, though, they’ll shy away from the Abdullahi case altogether; it’s a strong arrow in the ATS plaintiff’s quiver.
-N. Fromherz
