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| [1] | United States District Court, S.D. New York |
| [2] | 04Civ.1351(WHP). |
| [3] | 399 F.Supp.2d 495, 2005.SNY.0001488<http://www.versuslaw.com> |
| [4] | November 8, 2005. |
| [5] | AJUDU ISMAILA ADAMU et al., Plaintiffs, v. PFIZER, INC., Defendant. |
| [6] | The opinion of the court was delivered by: WILLIAM PAULEY III, District Judge |
| [7] | MEMORANDUM AND ORDER |
| [8] | 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"). |
| [9] | 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. |
| [10] | BACKGROUND |
| [11] | I. Brief Overview of the Facts |
| [12] | 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.) |
| [13] | 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.) |
| [14] | 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.) |
| [15] | 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.) |
| [16] | 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. |
| [17] | II. The Abdullahi Decisions |
| [18] | 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. |
| [19] | 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. |
| [20] | 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 dismissal in Zango and to
evaluate whether that impacts the District Court's forum non
conveniens analysis." Abdullahi II, 77 Fed. Appx. at 53. |
| [21] | In addition, the Court of Appeals noted that another panel of
the Second Circuit had recently decided Flores v. South Peru
Copper Corp., 414 F.3d 233 (2d Cir. 2003), which held that
claims of local, intranational environmental pollution were not
actionable under the ATS because such pollution does not violate
customary international law. However, because "Pfizer did not
address [the ATS' applicability] before the District Court" and
"[b]oth parties ha[d] glossed over the issue on appeal," the
Second Circuit did not address whether it had jurisdiction under
the ATS. Abdullahi II, 77 Fed. Appx. at 53. On September 8, 2004, this Court held oral argument on the
forum non conveniens issue framed by the Court of Appeals, and
granted Pfizer's request to file a new motion to dismiss for the
Abdullahi plaintiffs' failure to state a claim under the ATS.
By Memorandum and Order dated August 9, 2005, this Court granted
Pfizer's motion to dismiss because "none of the sources of
international law [Abdullahi] Plaintiffs rel[ied] upon
support[ed] jurisdiction under the ATS." Abdullahi III, 2005 WL
1870811, at *14. Further, this Court held that despite the record
of the Zango proceedings, Nigeria was an adequate alternative
forum for the litigation and dismissal on forum non conveniens
grounds was warranted. Abdullahi III, 2005 WL 1870811, at *18. |
| [22] | DISCUSSION |
| [23] | I. Motion to Dismiss Standard |
| [24] | A court presented with a motion to dismiss under both Rule
12(b)(1) and 12(b)(6) must decide the "jurisdictional question
first because a disposition of a Rule 12(b)(6) motion is a
decision on the merits, and therefore, an exercise of
jurisdiction." Magee v. Nassau County Med. Ctr.,
27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998); see also Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). A
motion to dismiss for subject matter jurisdiction under Rule
12(b)(1) is reviewed under the same standards as a motion to
dismiss for failure to state a claim under Rule 12(b)(6). Lerner
v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). On a
motion to dismiss, a court typically must accept the material
facts alleged in the complaint as true and construe all
reasonable inferences in a plaintiffs' favor. Grandon v. Merril
Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). Although on a
motion to dismiss a court is generally limited to examining the
sufficiency of the pleadings, where, as here, a challenge is directed at the court's subject matter jurisdiction, the court
may examine materials outside the complaint to resolve
jurisdictional issues. See Flores, 414 F.3d at 255 n. 30;
Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d
Cir. 1998); In re S. African Apartheid Litig.,
346 F. Supp. 2d 538, 546 (S.D.N.Y. 2004). |
| [25] | II. Claims Under the ATS |
| [26] | Plaintiffs rely on the Nuremberg Code, the Declaration of
Helsinki, the guidelines authored by the CIOMS, article 7 of the
ICCPR, Article 5 of the Universal Declaration of Human Rights and
the FDA regulations to frame their ATS claim. (Compl. ?? 321-52.)
Pfizer moves to dismiss for failure to state a claim and lack of
subject matter jurisdiction under the ATS. While this action
could be dismissed solely on forum non conveniens grounds,
see Monegasque De Reassurances S.A.M. v. Nak Naftogaz of
Ukraine, 311 F.3d 488, 497-98 (2d Cir. 2002), this Court also
considers the question of subject matter jurisdiction under the
ATS for the sake of judicial efficiency. |
| [27] | The ATS does not itself create a private right of action.
Rather, the statute provides district courts with "original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States." 28 U.S.C. ? 1350; see also Sosa v.
Alvarez-Machain, 542 U.S. 692, ___, 124 S. Ct. 2739, 2747
(2004); Flores, 414 F.3d at 237. "The [ATS] permits an alien to
assert a cause of action in tort for violations of a treaty of
the United States and for violations of the law of nations, which
. . . refers to the body of law known as customary international
law." Flores, 414 F.3d at 247 (internal quotation marks
omitted). Here, Plaintiffs are aliens who allege cognizable tort
causes of action. Thus, for federal subject matter jurisdiction
to exist under the ATS, the complaint must adequately plead a violation of international law. See Kadic v. Karadzic,
70 F.3d 232, 238 (2d Cir. 1995) ("Because the [ATS] requires that
plaintiffs plead a `violation of the law of nations' at the
jurisdictional threshold, this statute requires a more searching
review of the merits to establish jurisdiction than is required
under the more flexible `arising under' formula of section 1331
[federal question jurisdiction]." (quoting Filartiga v.
Pena-Irala, 630 F.2d 876, 887-88 (2d Cir. 1980))); see also
Bigio v. Coca-Cola Co., 239 F.3d 440, 447 (2d Cir. 2000) (under
the ATS, pleading a violation of the law of nations is a
jurisdictional prerequisite). |
| [28] | Plaintiffs contend that Pfizer's non-consensual medical
experimentation violated the law of nations, i.e., customary
international law. However, the law of nations does not itself
create a right of action because it does not prescribe a remedy.
Whether and how the United States reacts to violations of
international law are domestic questions that determine if a
cause of action exists. See In re Estate of Ferdinand Marcos,
Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994); see
also Sosa, 124 S. Ct. at 2754-55; Kadic, 70 F.3d at 246
("The law of nations generally does not create private causes of
action to remedy its violations, but leaves to each nation the
task of defining the remedies that are available for
international law violations."). While federal courts have the
authority to imply the existence of a private right of action for
violations of jus cogens norms of international law, see
Sosa, 124 S. Ct. at 2744, they must consider whether "special
factors counseling hesitation in the absence of affirmative
action by Congress" exist, Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971); see
Sosa, 124 S. Ct. at 2763. |
| [29] | Here, the key question is should this Court infer the existence
of a private right of action from the alleged violations of
international law. An implied private action lies under the ATS
"only for violations of treaties or customary international law."
Flores, 414 F.3d at 253; see Sosa, 124 S. Ct. at 2761-62. Thus, because Pfizer is not
alleged to have violated any treaty, to state a claim under the
ATS, Plaintiffs must demonstrate violation of a "clear and
unambiguous" rule of customary international law. Filartiga,
630 F.2d at 884 (holding that because the prohibition on official
torture is "clear and unambiguous," it can serve as a basis for
suit under the ATS). This Court has already discussed in
Abdullahi III, 2005 WL 1870811, at *11-14, why the sources of
international law on which Plaintiffs rely do not create
jurisdiction under the ATS. For the sake of brevity, this Court
incorporates Abdullahi III's analysis of the various sources of
international law, and concludes that none of the sources of
international law that Plaintiffs advance provide a proper
predicate for jurisdiction under the ATS.*fn5 |
| [30] | III. Claims Under the Connecticut Statutes |
| [31] | Plaintiffs also bring Connecticut statutory claims under the
CUTPA and the CLPA. (Compl. ?? 300-20.) Pfizer moves to dismiss
these claims, arguing that under Connecticut choice of law
principles, this action is governed by Nigerian law ? not
Connecticut statutes. Here, there is no dispute that Nigerian law
affords redress for Plaintiffs' claims. (Compl. ? 6(j).) See
Abdullahi III, 2005 WL 1870811, at *3-5. |
| [32] | Because this action originated in the District of Connecticut,
this Court as "the transferee district court [is] . . . obligated
to apply the state law that would have been applied if there had
been no change of venue." Van Dusen v. Barrack, 376 U.S. 612,
639 (1964); Chaiken v. VV Pub. Corp., No. 91 Civ. 2102 (JFK),
1991 WL 177269, at *2 (S.D.N.Y. Sept. 4, 1991); In re Union
Carbide Corp. Gas Plant Disaster at Bhopal, India in December,
1984, 634 F. Supp. 842, 866 (S.D.N.Y. 1986). Thus, Connecticut choice of law
principles apply to this action. |
| [33] | Connecticut adheres to the doctrine of lex loci delicti,
under which the "substantive rights and obligations arising out
of a tort controversy are determined by the law of the place of
injury." O'Connor v. O'Connor, 201 Conn. 632, 637, 519 A.2d 13,
15 (1986); accord Williams v. State Farm Mut. Auto. Ins. Co.,
229 Conn. 359, 370-71, 641 A.2d 783, 789 (1994). However, where
strict application of lex loci delicti would frustrate "the
legitimate expectations of the parties" or undermine "an
important policy of this state," Connecticut courts refuse to
apply the doctrine. O'Connor, 201 Conn. at 637. O'Connor
remains the leading case on this issue from the Connecticut
Supreme Court. O'Connor involved an action by an automobile
passenger against the driver for injuries arising from an
out-of-state automobile accident. As described in a more recent
decision, O'Connor's facts may be summarized as follows:
Both parties were Connecticut domiciliaries but the accident occurred in Quebec, Canada. The principal issue was whether to apply the law of Quebec, which barred the plaintiff's action, or the law of Connecticut, which permitted it. The trial court applied the doctrine of lex loci delicti and granted the defendant's motion to strike the plaintiff's complaint. On appeal, [the Connecticut Supreme Court] substituted the "most significant relationship" analysis of ?? 6 and 145 of the Restatement [(Second) of the Conflict of Laws] . . . for the doctrine of lex loci delicti. . . . After considering the Restatement factors, [the Connecticut Supreme Court] concluded that Connecticut had the closest relationship and the greatest interest in the disposition of the case. [It] therefore applied the law of Connecticut.Williams, 229 Conn. at 371-72, 641 A.2d at 789. |
| [34] | Section 145 of the Restatement (Second) of Conflict of Laws
provides that "[t]he rights and liabilities of the parties with
respect to an issue in tort are determined by the local law of
the state which, with respect to that issue, has the most
significant relationship to the occurrence and the parties under
the principles stated in ? 6." Restatement (Second), Conflict of
Laws ? 145(1). Section 6, in turn, provides: (1) A court, subject to constitutional restrictions,
will follow a statutory directive of its own state on
choice of law. |
| [35] | (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.Restatement (Second), Conflict of Laws ? 6. For assistance in evaluating the "policy choices set out in ?? 145(1) and 6(2) [of the Restatement]," a court should consider ? 145(2) "which establishes black-letter rules of priority to facilitate the application of the principles of ? 6 to tort cases." O'Connor, 201 Conn. at 652; accord Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 800-02, 830 A.2d 752, 760 (2003). That subsection provides: (2) Contacts to be taken into account in applying the principles of ? 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second), Conflict of Laws ? 145(2). |
| [36] | The alleged improper conduct is Pfizer's failure to inform the
children or their parents about the potential problems with
Trovan (Compl. ? 12), and the administration of Trovan and low
dosage of Ceftriaxone (Compl. ?? 13, 15, 26-27). Application of
the ? 145(2) factors suggests a strong case for applying Nigerian
law because the Nigerian contacts to this litigation are stronger
than Connecticut's. See Williams, 229 Conn. at 372,
641 A.2d at 789 (applying New York law where the accident happened in New
York); Norton v. Michonski, 368 F. Supp. 2d 175, 179 (D. Conn.
2005) (applying Massachusetts law where automobile accident
occurred in that state); N. Tankers (Cyprus) Ltd. v. Backstrom,
934 F. Supp. 33, 38-39 (D. Conn. 1996) (New York law applied
because "the place of the injury . . . [was] New York");
Icelandic Coast Guard v. United Techs. Corp., 722 F. Supp. 942,
949 (D. Conn. 1989) (noting that "a strong case [could] be made
for the application of Icelandic law," where the helicopter crash
occurred off the coast of Iceland). First, Plaintiffs' injuries
occurred in Nigeria. Second, Pfizer's alleged improper actions
occurred in Nigeria. Third, Plaintiffs are Nigerian nationals and
reside there; Pfizer, on the other hand, is a Delaware
corporation with its headquarters in New York. (Compl. ? 6.)
Finally, Nigeria is the place where the parties' relationship is
centered. Thus, factors (a), (b) and (d) point toward applying
Nigerian law, while factor (c) is in equipoise. |
| [37] | Plaintiffs' sole basis for arguing that Connecticut law should
govern is that Pfizer performed research and development with
respect to Trovan and planned the Nigerian experiment in
Connecticut. (Transcript of Oral Argument, dated Oct. 21, 2005,
at 17-21.) However, this sole contact with Connecticut is
insufficient to defeat the Nigerian interest in applying its own
laws. See Feldt v. Sturm, Ruger & Co., 721 F. Supp. 403,
404-05 (D. Conn. 1989) (holding that under lex loci delecti,
Georgia law applies because "plaintiffs live[d] in Georgia, the gun in question was kept in Georgia, and the injury
occurred in Georgia, even though the defendant's principal place
of business was Southport, Connecticut, and the "handgun in
question was manufactured by the defendant in Connecticut"); see
also N. Tankers Ltd., 934 F. Supp. at 39-40 ("[A]pplication of
New York law here would be neither irrational nor arbitrary," or
"produce an arbitrary or irrational result" because "[t]he place
of the injury . . . is New York," and "alleged damages . . . were
incurred in New York."); Icelandic Coast, 722 F. Supp. at 948. |
| [38] | Therefore, Nigerian ? not Connecticut ? substantive law
governs, and Plaintiffs' claims under the CUTPA and the CPLA are
dismissed. |
| [39] | IV. Forum Non Conveniens |
| [40] | "[F]orum non conveniens is a discretionary device permitting
a court in rare instances to `dismiss a claim even if the court
is a permissible venue with proper jurisdiction over the claim.'"
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir.
2000) (citing PT United Can Co. v. Crown Cork & Seal Co.,
138 F.3d 65, 73 (2d Cir. 1998)); see Iragorri v. United Techs.
Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc). Dismissal is
appropriate where "the balance of convenience tilts strongly in
favor of trial in the foreign forum." R. Maganlal & Co. v. M.G.
Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991). First, the
defendant must demonstrate the existence of an adequate
alternative forum. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41,
46 (2d Cir. 1996); see also Calavo Growers of Calif. v.
Generali Belgium, 632 F.2d 963, 968 (2d Cir. 1980) (forum non
conveniens "presupposes that an alternative forum is
available"). If an adequate forum is available, the court then
considers the public and private interest factors set forth in
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947), and its
progeny. See Bank of Credit & Commerce Int'l (OVERSEAS) Ltd. v. State Bank of
Pakistan, 273 F.3d 241, 246 (2d Cir. 2001); Wiwa,
226 F.3d at 100. Based on those factors, a court examines whether a trial in
the plaintiff's chosen forum would create "oppressiveness and
vexation to a defendant . . . out of all proportion to
plaintiff's convenience," or whether the "chosen forum [is]
inappropriate because of considerations affecting the court's own
administrative and legal problems." Piper Aircraft v. Reyno,
454 U.S. 235, 241 (1981) (internal quotation marks omitted).
After considering the "private interest factors" concerning the
convenience of the litigants and "public interest factors"
affecting the convenience of the forum, a "court may, in the
exercise of its sound discretion, dismiss the case." Piper
Aircraft, 454 U.S. at 241. |
| [41] | A. Adequate Alternative Forum |
| [42] | Here, the parties have agreed to be bound by this Court's
determination in Abdullahi III that an adequate alternate forum
exists in Nigeria. (See Stipulation and Order, dated Mar. 18,
2005 (Docket No. 8).) In Abdullahi I, this Court held "in light
of Pfizer's showing that it is `amenable to process' in Nigeria,
and the conclusory nature of plaintiffs' evidence regarding the
inadequacy of Nigeria's legal system, . . . this [was] not one of
those `rare circumstances' where the potential difficulties of
the foreign forum render the remedy offered by that forum
`clearly unsatisfactory.'" 2002 WL 31082956, at *10 (citing
Piper Aircraft, 454 U.S. at 255 n. 22). In Abdullahi III,
this Court concluded that the Zango dismissal did not impact
the forum non conveniens analysis and that "Nigeria is an
available alternative forum for this litigation." 2005 WL
1870811, at *18. Similarly, this Court finds that Nigeria is an
available adequate alternate forum for this litigation. B. Gilbert Factors |
| [43] | Because Nigeria provides an adequate alternative forum, this
Court must weigh the Gilbert public and private interest
factors to determine which forum "will be most convenient and
will best serve the ends of justice." Peregrine Myanmar,
89 F.3d at 46; accord Abdullahi I, 2002 WL 31082956, at *10. The
Gilbert public interest factors include (1) administrative
difficulties associated with court congestion; (2) the unfairness
of imposing jury duty on a community with no relation to the
litigation; (3) the local interest in having localized
controversies decided at home; and (4) avoiding problems in
conflict of laws and the application of foreign law. Gilbert,
330 U.S. at 508-09; Iragorri, 274 F.3d at 74. The Gilbert
private interest factors include (1) the ease of access to
evidence; (2) the cost for witnesses to attend trial; (3) the
availability of compulsory process; and (4) other factors that
might shorten trial or make it less expensive. Gilbert,
330 U.S. at 508; Piper Aircraft, 454 U.S. at 241 n. 6. |
| [44] | Plaintiffs have demonstrated no meaningful ties to this
district, the District of Connecticut or the United States.
Instead, Plaintiffs argue that this Court should defer to their
choice of forum because Pfizer performed research and development
with respect to Trovan and made plans for the Nigerian experiment
in Connecticut. However, such allegations do not affect
Plaintiffs' ties to the state.*fn6 Abdullahi I, 2002 WL
31082956, at *10. |
| [45] | Because Plaintiffs assert claims under international law, any
concerns regarding the difficulty in applying foreign law are not
present here. Moreover, it is undeniable that Nigeria has a very strong interest in this litigation. The Trovan
testing occurred in Nigeria and all the alleged victims are
Nigerian. Further, Plaintiffs allege that Pfizer's experiment was
made possible with the aid of several of Nigeria's own government
officials. (Compl. ? 6(h).) See Abdullahi I, 2002 WL
31082956, at *10-11; see Piper Aircarft, 454 U.S. at 260
(citing Gilbert, 330 U.S. at 509) (There is "a local interest
in having localized controversies decided at home."). On the
other hand, citizens of this district as well as the District of
Connecticut share an interest in this litigation because Pfizer
developed, produced and performed preliminary testing of Trovan
and designed the Kano treatment protocol within the United States
as part of its plan to obtain FDA approval to sell and distribute
Trovan domestically. See Carlenstolpe v. Merck & Co., Inc.,
819 F.2d 33, 35 (2d Cir. 1987) (affirming a finding that there
was a strong United States public interest in a products
liability action concerning a vaccine that was developed in the
United States but approved for distribution in Sweden). Thus, the
Gilbert public interest factors do not strongly support either
forum over the other. Abdullahi I, 2002 WL 31082956, at *11. |
| [46] | With regard to the Gilbert private interest factors, while
discovery related to Pfizer's alleged tortious conduct must occur
within the United States, Plaintiffs must establish proof of
causation, injury and damages. See Abdullahi I, 2002 WL
31082956, at *11. Witnesses crucial to those factual inquiries ?
including the local hospital personnel who communicated with the
Plaintiffs during the Trovan treatment, the Nigerian government
officials who approved the study, the Kano IDH Ethics Committee
and other Nigerian individuals with knowledge of the relevant
events ? are all located in Nigeria. Thus, evidence of numerous
elements essential to Plaintiffs' claims is beyond Plaintiffs'
control and, therefore, not amenable to discovery in this forum. |
| [47] | Further, most of the documents and witnesses located in the
United States are within Pfizer's control. Pfizer has stipulated that it will
facilitate any Nigerian action by providing Plaintiffs with
relevant records; making past or present Pfizer employees
available for depositions pursuant to 28 U.S.C. ? 1782; and using
its "best efforts" to make past and present employees of Pfizer
who would be subject to subpoena in the Southern District of New
York available to testify at trial in Kano at Pfizer's cost.
(Pfizer's Memorandum in Support of its Motion to Dismiss, dated
Sept. 19, 2005 at 15-16.) See Abdullahi I, 2002 WL 31082956,
at *12; Aguinda, 2002 WL 1880105, at *8 (defendant adequately
addressed plaintiffs' concern for U.S. discovery through a
stipulation). Thus, the balance of the Gilbert private interest
factors clearly weighs in favor of granting Pfizer's motion to
dismiss for forum non conveniens. Abdullahi I, 2002 WL
31082956, at *12. |
| [48] | CONCLUSION |
| [49] | For the foregoing reasons, this Court grants Pfizer's motion to
dismiss the Complaint for lack of subject matter jurisdiction
under the Alien Tort Statute, Connecticut Unfair Trade Practices
Act and the Connecticut Products Liability Act. Even if this
Court had subject matter jurisdiction, it would dismiss the
action on forum non conveniens grounds for the reasons stated
in Part IV. This Court would condition dismissal on forum non
conveniens grounds on the following grounds: |
| [50] | 1. Defendant Pfizer consents to suit and acceptance of process
in any suit Plaintiffs file in Nigeria on the claims that are the
subject of the instant suit; |
| [51] | 2. Defendant Pfizer waives any statute of limitations defense
that may be available to it in Nigeria; |
| [52] | 3. Defendant Pfizer makes available for discovery and for
trial, at its own expense, any documents, or witnesses, including retired
employees, within Pfizer's control that are needed for a fair
adjudication of Plaintiffs' claims; and |
| [53] | 4. Defendant Pfizer will not act to prevent Plaintiffs from
returning to this Court if the Federal High Court in Nigeria
declines to accept jurisdiction of this action, if it is filed in
Nigeria within 60 days of the entry of this Order. |
| [54] | The Clerk of the Court is directed to mark this case closed. |
| [55] | SO ORDERED. |
| Opinion Footnotes | |
| [56] | *fn1
In a related action involving the same underlying facts as those alleged here, this Court held
that the plaintiffs failed to establish subject matter jurisdiction and, in the alternative, that the
action should be dismissed on forum non conveniens grounds because Nigeria is an adequate
forum. This Court incorporates the facts and rationales of the decisions in that case. See
Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118 (WHP), 2002 WL 31082956 (S.D.N.Y. Sept. 17,
2002) (?Abdullahi I?), vacated and remanded, Abdullahi v. Pfizer, Inc., No. 02-9223(L), 77 Fed.
App'x 48, 53 (2d Cir. Oct. 8, 2003) (?Abdullahi II?); Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118
(WHP), 2005 WL 1870811 (S.D.N.Y. Aug. 9, 2005) (?Abdullahi III?). Familiarity with those
decisions (collectively, "Abdullahi") is presumed.
|
| [57] | *fn2
The Complaint refers to the ATS as the Alien Tort Claims Act ("ATCA"). However, because
the statute is purely jurisdictional in nature, and does not provide a private cause of action, this
Court refers to it as the Alien Tort Statute. Abdullahi III, 2005 WL 1870811, at *1 n.1.
|
| [58] | *fn3
Ceftriaxone is an FDA-approved drug that has been shown as effective in treating meningitis.
(Compl. ? 29.) See Abdullahi III, 2005 WL 1870811, at *1.
|
| [59] | *fn4
While "[t]he Zango plaintiffs' Notice of Discontinuance was dated August 19, 2002, . . . it was
not actually filed until October 17, 2002." Abdullahi II, 77 Fed. Appx. at 52 n.2.
|
| [60] | *fn5 Because this Court does not have jurisdiction under the ATS, it declines to consider Pfizer?s arguments regarding dismissal under Rule 12(b)(6) for failure to state a claim. 6 Plaintiffs? choice of forum is not entitled to a greater deference because they have alleged international law violations. See Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 553 (S.D.N.Y. 2001) (even if the court assumed that Texaco participated in a violation of international law that would support the claim brought under the ATS, "neither that assumption nor any of the other considerations special to these cases materially alters the balance of private and public interest factors that, as previously discussed, 'tilt[s] strongly in favor of trial in the foreign forum.'" (citing Wiwa, 226 F.3d at 106) (internal citation omitted)). |
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