Estate of Alvarez v. Johns Hopkins Univ.

205 F.Supp.3d 681

ESTATE OF Arturo Giron ALVAREZ by and through Maria Ana Giron Galindo as Administrator Plaintiff

v.The JOHNS HOPKINS UNIVERSITY et al. Defendants

CIVIL ACTION NO. MJG–15–950

United States District Court, D. Maryland.

Signed September 7, 2016

Paul D. Bekman, Elijah Dale Adkins, III, Emily Claire Malarkey, Gregory Gene Hopper, Ryan S. Perlin, Laurence A. Marder, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, Floyd Ronald Jenkins, Matthew Robert Caton, Meridian 361 International Law Group PLLC, Portland, ME, for Plaintiff.

Robert J. Mathias, DLA Piper US LLP, Lauren Schultz Colton, Hogan Lovells, Christopher M. Corchiarino, James A. Frederick, Linda S. Woolf, Goodell Devries Leech and Dann LLP, BALTIMORE, MD, Gregory L. Diskant, Robert P. Lobue, Patterson Belknap Webb and Tyler LLP, New York, NY, Joseph Sedwick Sollers, III, Ashley Parrish, Daniel C. Sale, Paul Alessio Mezzina, King and Spalding LLP, Washington, DC, for Defendants.

DECISION RE: SECOND AMENDED COMPLAINT

Marvin J. Garbis, United States District Judge

The Court has before it Defendants' Motion Under Federal Rules of Civil Procedure 12(b)(1) and (6) to Dismiss The Second Amended Complaint [ECF No. 107] and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.

This case arises out of what is referred to as "the Guatemala Study." From about 1946 to the early or mid–1950s, officials of the United States Public Health Service engaged in nonconsensual medical experimentation in Guatemala and managed to conceal their actions for some sixty years.

In 2010, when the Guatemala Study became known, President Obama called the President of Guatemala "offering profound apologies and asking pardon for the deeds of the 1940s." CNN Wire Staff, US Apologizes for Infecting Guatemalans with STDs in the 1940s , CNN (Oct. 1, 2010).¹ Secretary of State Hillary Clinton and Secretary of Health and Human Services Kathleen Sebelius jointly stated:

We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices.

The conduct exhibited during the study does not represent the values of the United States, or our commitment to human dignity and great respect for the people of Guatemala.

Id.

The United States Government officials' expressions of regret were not followed by any recognition of an obligation to compensate the victims of the Guatemala Study for the injuries they sustained. When a class of Guatemala Study victims sued the United States in federal court in Washington, the Government successfully claimed immunity, and the suit was dismissed in 2012.

In the instant case, a group of 842 plaintiffs, including subjects of the Guatemala Study, their spouses, and descendants, seek recovery from the Johns Hopkins University, the Rockefeller Foundation, and Bristol–Myers (as successor to the pharmaceutical company that supplied penicillin used in the study). Plaintiffs have, so far, filed three successive Complaints seeking to plead plausible claims against these defendants. As discussed herein, none of these three complaints were adequate to do so. However, there is no doubt that at least some of the Plaintiffs suffered injury from the Guatemala Study. Therefore, the Court will not dismiss the case without providing Plaintiffs' counsel—in light of the instant decision—another opportunity to plead legally adequate claims against the Defendants.

I. BACKGROUND

A. The Prior "Guatemala Study" Case (Garcia)

The instant case is the second filed by subjects of nonconsensual medical experimentation conducted in Guatemala from about 1946 to the early or mid–1950s (the "Guatemala Study").

In 2011, a class action was filed on behalf of victims of the Guatemala Study and their heirs, asserting claims against various federal office holders under the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"), and the United States Constitution. Garcia v. Sebelius , 867 F.Supp.2d 125 (D.D.C. 2012), vacated in part , 919 F.Supp.2d 43 (D.D.C. 2013).

As stated by the Garcia court:

From 1946 to 1953, officials from the United States Public Health Service and the Pan American Sanitary Bureau conducted medical studies in Guatemala that "involved deliberate infection of people with sexually transmitted diseases ("STDs") without their consent." (the "Guatemala Study"). "Subjects were exposed to syphilis, gonorrhea, and chancroid, and included prisoners, soldiers from several parts of the [Guatemalan] army, patients in a state-run psychiatric hospital, and commercial sex workers." None of the subjects of the Guatemala Study gave "their informed consent to participate," as they were not provided with "information about the procedures or their risks" prior to participating in the study. "Instead of consent from the subjects [housed in institutions], the medical team sought cooperation from the institution[s] in which their prospective subject pool resided" by providing those institutions with "essential supplies, such as epilepsy medication to the mental asylum, malaria medication to the orphanage, and refrigerators for medications."

One of the objectives of the Guatemala Study was "to determine whether penicillin, then a recently-discovered cure for syphilis, could also be used as a prophylaxis." "[A]nother goal was to find the most effective way to inoculate patients with [syphilis ]." The study was conducted in Guatemala for several reasons, including that it was "a location where [the medical team could] carry out more invasive methods of inoculation with venereal diseases without ethical scrutiny." "In total, the medical team intentionally exposed nearly 700 people to syphilis, nearly 600 to gonorrhea, and over 100 to chancroid—all serious venereal diseases."

The Guatemala Study "finally came to light in the [F]all of 2010." On November 24, 2010, President Barack Obama issued a letter to the Chair of the Presidential Commission for the Study of Bioethical Issues, noting the recent revelation "that the U.S. Public Health Service conducted research on sexually transmitted diseases in Guatemala from 1946 to 1948 involving the intentional infection of vulnerable human populations." Acknowledging that "[t]he research was clearly unethical," President Obama directed "the Presidential Commission for the Study of Bioethical Issues to .... oversee a thorough fact-finding investigation into the specifics of the U.S. Public Health Service Sexually Transmitted Diseases Inoculation Study."

Id. at 130 (internal citations omitted).

The Garcia court held that the individual defendants had absolute immunity from common-law tort claims arising out of acts they took in the course of their official duties, substituted the United States as the defendant, and converted the claims into Federal Tort Claims Act (28 U.S.C. § 1346 ) ("FTCA") claims. Id. at 136. However, since the plaintiffs' injuries were suffered in a foreign country, their claims were subject to an exception from the FTCA (28 U.S.C. § 2680(k) ) and were dismissed. Id. at 137.

The Garcia court further held that, because the individual defendants, federal government officials, had not been personally involved in any violation of the plaintiffs' constitutional rights, no action would lie against them under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Id.

The Garcia court, dismissing all claims, concluded by saying:

As the plaintiffs assert, and the defendants acknowledge, the Guatemala Study is a deeply troubling chapter in our Nation's history. Yet, for the various reasons identified [in the decision], this Court is powerless to provide any redress to the plaintiffs.

Id. at 144.

B. The Instant Case

On April 1, 2015, 774 of the 842 plaintiffs herein, including members of the Garcia class, filed the Complaint [ECF No. 2] in the Circuit Court for Baltimore City. The Complaint presented a "mass action" pursuant to 28 U.S.C. § 1332(d)(11)(b)(i) and was, on that day, removed to federal court. [ECF No. 1].

On June 30, 2015, all 842 plaintiffs herein (collectively referred to as "Plaintiffs"), filed the Amended Complaint [ECF No. 64]. The Amended Complaint presented claims in eleven Counts, nine presumably under Maryland Law,² an ATS claim, and a final Count asserting punitive damages on all other claims.

Following a hearing, the Court dismissed all but the ATS claim and the claim for punitive damages in the Amended Complaint and permitted Plaintiffs to file a Second Amended Complaint. See Order Re: Second Amended Complaint [ECF No. 89].

On November 30, 2015, Plaintiffs filed the pending Second Amended Complaint [ECF No. 100] asserting claims under Guatemala law, "conditional" claims under Maryland law, and ATS claims. In the Second Amended Complaint, Plaintiffs seek to impose liability upon The Johns Hopkins Hospital, The Johns Hopkins University, The Johns Hopkins University School of Medicine, The Johns Hopkins Bloomberg School of Public Health, The Johns Hopkins Health System Corporation (collectively referred to as "Hopkins"), The Rockefeller Foundation ("Rockefeller"), and Bristol–Myers Squibb Company ("Bristol–Myers") (collectively "Defendants") for harm caused by the Guatemala Study.

The Second Amended Complaint asserts claims in 20 Counts:

I—Guatemalan Civil Code

II—Lack of Consent and Lack of Informed Consent

III—Negligence

IV—Corporate Negligence

V—Battery

VI—Fraud or Deceit by Misrepresentation

VII—Fraudulent Concealment

VIII—Intentional Infliction of Emotional Distress

IX—Unjust Enrichment

X—Wrongful Death

XI–XIX—Violation of the Law of Nations³

XX—Punitive Damages

By the instant motion, Defendants seek dismissal of all claims against them.

II. DISMISSAL STANDARDS

A. Rule 12(b)(6)

A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6)⁴ tests the legal sufficiency of a complaint. A complaint need only contain "a short and plain statement of the claim showing...