Alvarez v. Johns Hopkins Univ.
| Decision Date | 18 April 2022 |
| Docket Number | Civil Action No. TDC-15-0950 |
| Parties | ESTATE OF Arturo Giron ALVAREZ, et al., Plaintiffs, v. The JOHNS HOPKINS UNIVERSITY, The Johns Hopkins University School of Medicine, The Johns Hopkins Hospital, The Johns Hopkins Bloomberg School of Public Health, The Johns Hopkins Health Systems Corporation and The Rockefeller Foundation, Defendants. |
| Court | U.S. District Court — District of Maryland |
Paul D. Bekman, Aryeh M. Rabinowitz, Emily Claire Malarkey, Ryan S. Perlin, Elijah Dale Adkins, III, Bekman Marder, Hopper, Malarkey & Perlin, L.L.C., Baltimore, MD, Gregory Gene Hopper, Laurence A. Marder, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, Floyd Ronald Jenkins, Pro Hac Vice, Matthew Robert Caton, Pro Hac Vice, Meridian 361 International Law Group PLLC, Portland, ME, for Plaintiffs Estate of Arturo Giron Alvarez, The 773 Individuals Identified on Exhibit 1 to this Complaint.
Floyd Ronald Jenkins, Pro Hac Vice, Matthew Robert Caton, Pro Hac Vice, Meridian 361 International Law Group PLLC, Portland, ME, Paul D. Bekman, Emily Claire Malarkey, Ryan S. Perlin, Elijah Dale Adkins, III, Bekman Marder, Hopper, Malarkey & Perlin, L.L.C., Baltimore, MD, Gregory Gene Hopper, Laurence A. Marder, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, for Plaintiff Unknown Use Plaintiffs.
Robert J. Mathias, DLA Piper US LLP, Baltimore, MD, Allison J. Caplis, Julie R. Schindel, Scott R. Haiber, Lauren Schultz Colton, Hogan Lovells US LLP, Baltimore, MD, Catherine Emily Stetson, Hogan Lovells US LLP, Washington, DC, for Defendants The Johns Hopkins University, The Johns Hopkins University School of Medicine, The Johns Hopkins Hospital, The Johns Hopkins Bloomberg School of Public Health, The Johns Hopkins Health Systems Corporation.
James A. Frederick, Faegre Drinker Biddle & Reath LLP, Washington, DC, Justin M. Romeo, Pro Hac Vice, Dechert LLP, Washington, DC, Danielle A. Gentin Stock, Pro Hac Vice, Sheila L. Birnbaum, Pro Hac Vice, Dechert LLP, New York, NY, Gregory L. Diskant, Pro Hac Vice, Robert P. LoBue, Pro Hac Vice, Patterson Belknap Webb and Tyler LLP, New York, NY, Lauren Schultz Colton, Hogan Lovells, Baltimore, MD, Robert J. Mathias, DLA Piper US LLP, Baltimore, MD, Michael H. McGinley, Pro Hac Vice, Dechert LLP, Philadelphia, PA, for Defendant The Rockefeller Foundation.
THEODORE D. CHUANG, United States District Judge Plaintiffs have filed this civil action against Defendants the Johns Hopkins University, the Johns Hopkins University School of Medicine, the Johns Hopkins Hospital, the Johns Hopkins Bloomberg School of Public Health, and the Johns Hopkins Health Systems Corporation (collectively, "Johns Hopkins"), as well as the Rockefeller Foundation ("Rockefeller"), alleging that Defendants aided and abetted or conspired to commit nonconsensual human medical experiments in Guatemala in the late 1940s and seeking to hold Defendants liable in tort pursuant to the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350 (2018). Pending before the Court are Defendants’ Motion for Summary Judgment and Plaintiffs’ Cross Motion for Summary Judgment. On January 10, 2022, the Court held a hearing on the Motions. For the reasons set forth below, Defendants’ Motion for Summary Judgment will be GRANTED, and Plaintiffs’ Cross Motion for Summary Judgment will be DENIED.
This case arises from nonconsensual human
medical experiments relating to sexually transmitted diseases
("STDs") that were primarily conducted in Guatemala from 1946 to 1948 ("the Guatemala Experiments" or "the Experiments"). The Guatemala Experiments were funded by grants from, and led by personnel of, the United States Public Health Service ("PHS"). This litigation has an extensive factual background and procedural history which is set forth in part in the following previous opinions of this Court, which are incorporated here by reference: Estate of Alvarez v. Johns Hopkins Univ. , 205 F. Supp. 3d 681 (D. Md. 2016) (" Alvarez I "); Estate of Alvarez v. Johns Hopkins Univ. , 275 F. Supp. 3d 670 (D. Md. 2017) (" Alvarez II "); Estate of Alvarez v. Johns Hopkins Univ. , 373 F. Supp. 3d 639 (D. Md. 2019) (" Alvarez III ").
In the 1940s, STDs such as gonorrhea
and syphilis were of significant concern to the United States government, in large part because of outbreaks of STDs in the armed forces during World War II. In 1943 and 1944, at the suggestion of university-based researchers including Dr. Joseph Earle Moore of Johns Hopkins University, PHS researchers conducted experiments at the United States Penitentiary in Terre Haute, Indiana ("the Terre Haute Experiments") in which human volunteer subjects were intentionally infected with gonorrhea in order to study the effectiveness of two types of prophylaxis for gonorrhea. As the project was designed, the volunteers were federal prisoners who were paid and who provided written, informed consent. Within PHS, primary responsibility for conducting the Terre Haute Experiments was given to the Venereal Disease Research Laboratory ("VDRL") at the United States Marine Hospital in Staten Island, New York. VDRL Director Dr. John F. Mahoney, an Assistant Surgeon in the PHS, oversaw the work on the Terre Haute Experiments from the VDRL, and Dr. John C. Cutler, a junior PHS officer, led the work at the prison. Although the PHS researchers attempted to artificially infect the prisoner volunteers by inoculating them with bacteria deposited into the end of the penis, and they used a variety of strains and methods, they were unable to reliably induce infection. As a result, the work was discontinued in July 1944, 10 months after it began. The difficulty of inducing infection left researchers unable to establish the effectiveness of a prophylaxis for gonorrhea
.
Similar questions were outstanding as to syphilis
. Though scientific developments had led the United States Army to adopt penicillin as a standard treatment for syphilis by 1944, much remained unknown, including whether penicillin prevented re-infection and whether the use of a prophylaxis after exposure to syphilis, such as an orvus-mapharsen solution, could prevent initial infection in the first place. Orvus-mapharsen was also considered a potential prophylaxis for gonorrhea.
In 1945, Dr. Juan Funes, a Guatemalan physician who worked with Dr. Mahoney and Dr. Cutler as a one-year fellow at the VDRL, proposed a research project in Guatemala relating to methods of prophylaxis for STDs. Dr. Funes was the Director of the Guatemalan Venereal Disease Control Department and also oversaw a major Guatemalan medical clinic at which commercial sex workers were required to undergo health inspections. Because commercial sex work was legal in Guatemala, the proposal was to identify inmate volunteers at the Penitenciaria Central ("the Penitentiary"), a Guatemalan prison, to expose them to STDs through sexual intercourse with infected sex workers, and then to test the effectiveness of the orvus-mapharsen prophylaxis on these volunteers. Prisoners were considered ideal subjects for the Experiments because they were a contained and restricted population whose progress could be readily followed over time.
In 1946, the Guatemala Experiments were formally funded through a PHS grant. The Public Health Service Act of 1944 ("PHSA") had created a grant system led by the Surgeon General of the PHS, the agency head, in support of a mandate to "conduct" and "encourage ... research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man[.]" Public Health Service Act § 301, Pub. L. No. 78-410, 58 Stat. 682, 691-92 (1944). The PHSA authorized the Surgeon General to "[m]ake grants in aid to universities, hospitals, laboratories, and other public or private institutions, and to individuals for such research projects as are recommended by the National Advisory Health Council," id. § 301(d), an advisory committee consisting of both government officials and nongovernmental persons "skilled in the sciences related to health," id. § 217(a). In turn, the National Advisory Health Council ("NAHC") received recommendations from "Special Study Groups" consisting of PHS scientists and outside consultants which were established to "review applications and prepare recommendations for [NAHC] consideration."
42 C.F.R. § 03.333 (1946 Supp.). The ultimate funding approval came from the Director of the National Institute of Health ("NIH") "under authority delegated by the Surgeon General." 42 C.F.R. § 03.334 (1946 Supp.). Under this structure, the Syphilis Study Section ("SSS") was the first such Special Study Group established. Dr. Moore was the Chair of the SSS, and other SSS members included Dr. Mahoney and three individuals affiliated with Johns Hopkins University: Dr. Thomas Turner, Dr. Harry Eagle, and Dr. Lowell Reed. At its first meeting on February 7-8, 1946, the SSS reviewed 30 proposals for syphilis
research, including the Guatemala Experiments. The SSS approved the project and recommended it to the NAHC for funding. At a March 8-9, 1946 meeting, the NAHC recommended funding the proposal, identified as "Research Grant No. 65" and consisting of $110,450 to be provided to the Pan American Sanitary Bureau ("PASB"), an international health organization, for "investigation into venereal disease to be held in Guatemala." Joint Record ("J.R.") 44, ECF Nos. 405-425, 461. Surgeon General Dr. Thomas Parran approved the grant, and the funds were transferred to the PASB. Unlike other PHS grants, which were paid out of funds held by the NIH Research Grants Office, the funding for the Guatemala Experiments came directly from funds held by the VDRL.
The work of the Guatemala Experiments began in April 1946, including the construction of a Venereal Disease Research Laboratory in...
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