Nigerians Tackle Pfizer At U.S Supreme Court
From Laolu Akande, New York
PARENTS and guardians of Nigerian children who died or were affected in the 1996 controversial Trovan drug trial in Kano State have restated their case to the United States (U.S) Supreme Court after drug maker Pfizer, filed an appeal to America's highest court, arguing that both the company and the government in Nigeria acted in concert to conduct the illegal clinical trials.
Last Monday, the American Supreme Court asked the Obama administration through its Solicitor-General, Elena Kagan to file an opinion in the case to enable it determine what to do with the case.
However, the Nigerian respondents in the case led by Rabi Abdullahi had earlier through their New York-based lawyer Arthur Miller recently submitted a brief to the Supreme Court, opposing Pfizer's appeal against the US Court of Appeal that ruled in favour of the Nigerians.
After the court of first instance, American District Court in New York, ruled in favor of Pfizer, the Appeal Court reversed the decision. According to the Second U.S. Circuit Court of Appeals in New York, "the norm prohibiting non-consensual medical experimentation on human subjects has become firmly embedded and has secured universal acceptance in the comity of nations."
The Nigerian respondents had sued Pfizer for the illegal testing of Trovan on children in Kano. The district court in New York presided over by Mr. J. Pauley dismissed the case for lack of jurisdiction, adding that international law didn't provide a basis for the Nigerians to sue the company in U.S. courts for the alleged clinical-trial violations.
But the Nigerians with the backing of some New York -based civil right lawyers proceeded to the Appeal Court, where in January this year, through a majority but divided 2-1 decision ruled that the Nigerians could indeed sue and set aside the decision of the lower court, rescinding it and remanding the case back to the lower court for continued hearing.
Dissatisfied, Pfizer took the matter to the American apex court in July. In the appeal, Pfizer got two additional amicus briefs, to support its case, arguing that the Appeal Court in its judgement was legislating, and usurping the powers of the U.S. Congress.
American district courts are the equivalent of Nigeria's state or federal high courts.
Therefore, the Nigerian respondents submitted that the Appeal Court decision does not conflict with other U.S. circuits regarding the questions Pfizer raised in its petition.
In their brief filed before the Supreme Court, the Nigerians said: "The highly unusual and discrete facts of this case make any decision rendered of limited precedential value, as it will turn on the assessment of factual allegations particular to this case and the pleading of a claim that presents circumstances not likely to be repeated."
They said Pfizer was not arguing that consent was not required, "but instead attempts to characterise its misconduct as mere technical failure in obtaining consent," adding that "such mischaracterisation obscures Pfizer's violations of basic human rights principles governing that conduct, with or without the presence of state action."
The respondents also alleged "that Pfizer, despite knowing that Trovan had the potential to cause serious side effects in children, rushed at the opportunity to test them on children struck ill by a sudden bacterial meningitis epidemic in Northern Nigeria in 1996."
They recalled that Pfizer occupied two wards of the Kano Infectious Diseases Hospital (IDH), a public hospital, to conduct the Trovan experiment and that these facilities were handed over to Pfizer by the Nigerian government.
The respondents added that at the time of the Trovan testing, the Nobel Prize winning body Medecins Sans Frontieres (MSF), also on location during the epidemic, deemed the same "facilities unfit for its own treatment efforts."
Describing Pfizer's lack of attention to appropriate consent as appalling, the Nigerians noted that the drug outfit "failed to inform families either that the treatment offered was experimental, or that MSF offered a non-experimental treatment recommended by the World Health Organisation. Moreover, no representative of Pfizer offered or read any informed consent document to respondents."
They, therefore, submitted to the US Supreme Court that, "Pfizer's misconduct represents a gross violation of international legal norms prohibiting nonconsensual medical experimentation. These norms have been universal and well-defined since, at the latest, the years following World War II."
Continuing, the respondents stated that "although arguably no specific treaty makes Pfizer's misconduct actionable, seminal international human rights documents as well as internationally accepted codes governing the practice of medicine and medical experimentation specifically make clear that the norm applies to private actors. Pfizer does not, and cannot, argue that it is not bound by the norm and is free to conduct nonconsensual medical experimentation anywhere at any time."
