Estate of Alvarez v. Johns Hopkins Univ., CIVIL ACTION NO. MJG–15–950

Citation275 F.Supp.3d 670
Decision Date30 August 2017
Docket NumberCIVIL ACTION NO. MJG–15–950
Parties ESTATE OF Arturo Giron ALVAREZ, et al., Plaintiffs v. The JOHNS HOPKINS UNIVERSITY, et al., Defendants
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)

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 Plaintiffs.

Robert J. Mathias, DLA Piper US LLP, Lauren Schultz Colton, Scott R. Haiber, Hogan Lovells US LLP, 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: THIRD 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 Third Amended Complaint [ECF No. 133] and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.

I. BACKGROUND 1

As set forth in the Decision Re: Second Amended Complaint [ECF No. 122], there is no doubt that, in or about 1946 to 1953, researchers in the United States Public Health Service, the Pan–American Sanitary Board, and the Guatemalan government engaged in nonconsensual human experimentation in Guatemala. The experimenters directly infected Guatemalan children, prisoners, soldiers, psychiatric patients, and commercial sex workers with syphilis

without their consent or knowledge as part of the "Guatemala Experiments," a Sexually Transmitted Disease research experiment. The experimentation was concealed by the perpetrators and came to light only in 2010.

The 842 Plaintiffs are Guatemalans who allege that they are direct victims of this nonconsensual human experimentation who were personally infected with syphilis

in the experimentation or indirect victims harmed as a consequence of the infection of a direct victim. In this action, Plaintiffs seek to impose liability on seven Defendants, the Johns Hopkins Defendants,2 the Rockefeller Foundation, and Bristol–Myers Squibb Company.

By the Decision Re: Second Amended Complaint, the Court dismissed the Second Amended Complaint [ECF No. 100] but permitted Plaintiffs to file the Third Amended Complaint to assert claims under the law of Guatemala and the Alien Tort Statute. Plaintiffs' Third Amended Complaint ("TAC") [ECF No. 127] asserts claims in two Counts:

Count I: Tortious Violation of Well Established and Customary Norms of International Law—The Prohibition Against Nonconsensual Human Experimentation and Crimes Against Humanity, pursuant to the Alien Tort Statute, 28 U.S.C. § 1350 ("the ATS claims").
Count II: Claim for Damages under Section 2277 of the 1933 Guatemalan Civil Code and Sections 1645–1646 of the 1963 Guatemalan Civil Code ("the Guatemalan law claims").

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

II. DISMISSAL STANDARDS
A. Rule 12(b)(6) (Adequacy of Pleading)

A motion to dismiss filed under Federal Rule 3

of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted).

When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or a "formulaic recitation of the elements of a cause of action" will not suffice." Id. A complaint must allege sufficient facts to "cross ‘the line between possibility and plausibility of entitlement to relief.’ " Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

Inquiry into whether a complaint states a plausible claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Thus, if the well-pleaded facts contained within a complaint "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

B. Rule 12(b)(1) (Subject Matter Jurisdiction)

A party may seek dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). It is well established that "[t]he burden of proving subject matter jurisdiction on a [ Rule 12(b)(1) ] motion to dismiss is on the plaintiff, the party asserting jurisdiction." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If a defendant contends "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based[,] ... all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id.

III. DISCUSSION
A. Procedural Background

The instant case, the second one filed by alleged victims of the Guatemala Experiments,4 was filed in the Circuit Court for Baltimore City on April 1, 2015, and properly removed to this federal court pursuant to 28 U.S.C. § 1332(d)(11)(B)(i). [ECF No. 1].

On June 30, 2015, Plaintiffs filed the eleven-Count Amended Complaint [ECF No. 64], which included claims under Maryland law, an ATS claim, and punitive damages on all other claims. Defendants moved to dismiss all claims as time-barred. [ECF No. 63]. The Court dismissed all of the Maryland law claims and allowed Plaintiffs to submit a Second Amended Complaint. See Order Re: Second Amended Compl. [ECF No. 89].

The Second Amended Complaint [ECF No. 100] asserted claims in twenty Counts, including claims under Guatemalan law, Maryland law, and Alien Tort Statute claims. Defendants moved to dismiss all claims in the Second Amended Complaint [ECF No. 107]. The Court dismissed the Second Amended Complaint, but permitted Plaintiffs to file a Third Amended Complaint. See Decision Re: Second Amended Compl. [ECF No. 122].

In the Decision Re: Second Amended Complaint, the Court stated that "[t]o plead their claims adequately, Plaintiffs must present sufficient factual allegations regarding (1) ‘foundationally,’5 their individual abilities to present the claims asserted, (2) the existence of claims that, if timely made and adequately pleaded against an appropriate defendant, could be legally cognizable, and (3) the liability of the Defendants." [ECF No. 122] at 10.

On December 9, 2016, Plaintiffs filed the TAC. Subsequently, Defendants filed the instant Motion to Dismiss the Third Amended Complaint [ECF No. 133] seeking dismissal of all claims against them.

B. The Third Amended Complaint 6
1. The Plaintiffs

The 842 Plaintiffs are all Guatemala citizens and residents, one of which has dual United States citizenship.7

In the Decision Re: Second Amended Complaint, the Court directed Plaintiffs "to provide such adequate foundational allegations for at least one Plaintiff in each of the following categories:

1. Living Direct Plaintiffs
2. Estates of Direct Plaintiffs
3. Spouses of Direct Plaintiffs
4. First Generation Descendants (children)
5. Subsequent Generation Descendants
6. Wrongful Death Claimants."

[ECF No. 122] at 15.

The TAC divides the Plaintiffs into the following categories:

Category 1 "Direct Plaintiffs":8 Guatemalans who were unknowingly, and without their consent, infected with syphilis

as part of the Guatemala Experiments.

Category 2 "Spouses":9 Guatemalans who did not have syphilis before he or she married or had sexual contact with a Direct Plaintiff, and who was infected with the disease through sexual contact with the Direct Plaintiff.

Category 3 "Children":10 the sons and daughters of a Direct Plaintiff or the spouse of the son or daughter of a Direct Plaintiff and Spouse.

Category 4 "Grandchildren":11 the grandchildren or great-grandchildren of a Direct Plaintiff.

Category 5 "Wrongful Death Plaintiffs":12 the Parent, Spouse or Child of a Deceased Plaintiff who died as a result of syphilis acquired as a result of the Guatemala Experiments.13

Category 6 "Estate Plaintiffs":14 Estates of Guatemalans who died as a result of syphilis acquired as a result of the Guatemala Experiments. The claims of all of these "Estate Plaintiffs" are being brought by their heirs, next of kin, or personal representatives.

The TAC identifies specific "Representative Plaintiffs" within each category, stating (1) the type of sexually transmitted disease

("STD") they each have, (2) their experience as subjects of the Guatemala Experiments or their relationship to a subject, (3) when they began to notice symptoms of syphilis, (4) when they were diagnosed with syphilis, (5) when they knew the cause of their disease, and (6) the dates of deaths of decedents, if relevant.

2. The Defendants
a. Johns Hopkins

The Hopkins Defendants are Maryland entities with their principal place of business in Baltimore, Maryland. Johns Hopkins employed various individuals who served on the Syphilis Study Section, an advisory panel to the United States Public Health Service ("PHS") that authorized and oversaw the Guatemala Experiments. The TAC alleges that five senior Hopkins physicians were involved in the Experiments; they are Dr. J. Earle Moore, Dr. Lowell Reed,15 Dr. Thomas Turner, Dr. Lewis Weed, and Dr. Harry Eagle.

b. Rockefeller Foundation

The Rockefeller Foundation ("Rockefeller")...

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