Estate of Alvarez v. Johns Hopkins University (275 F. Supp. 3d 670, 2017)

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.

1. BACKGROUND

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, 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 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 plaintiffs 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 ¿stablished 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 thé 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, 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)(ll)(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 fíle 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,’ 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

1.The Plaintiffs

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

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”: Guatemalans who were unknowingly, and without their consent, infected with syphilis as part of the Guatemala Experiments.

Category 2 “Spou'ses”: 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”: 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”: the grandchildren or great-grandchildren of a Direct Plaintiff.

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

Category 6 “Estate Plaintiffs”: 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, Dr. Thomas Turner, Dr. Lewis Weed, and Dr. Harry Eagle.

b. Rockefeller Foundation

The Rockefeller Foundation (“Rockefeller”) is a New York corporation whose stated mission has been to “promote national and international research in the area of public health.” ¶ 210. Throughout the 1940s, Rockefeller funded and carried out several public health projects throughout Central and. Latin America.

The TAC alleges that certain Rockefeller employees and board members were involved in the Guatemala Experiments, including Dr. Thomas Parran, Dr. Frederick Soper, and Dr. George Strode. Dr. Parran was also a member of the Public Health Service and was employed as the United States Surgeon General from the mid-1980s to 1949. Dr. Soper served as a Director of the Pan American Sanitary Board (“PASB”) and as the “Responsible Investigator” during the Experiments,

c. Bristol-Myers Squibb Company

Bristol-Myers Squibb Company (“Bristol-Meyers Squibb” or “Bristol”) is an entity incorporated under the laws of Delaware with its principal place of business in New York. It is the successor of Bristol Laboratories and . E.R. Squibb & Sons, Inc.’s Squibb - Institute for Medical Research, which provided penicillin for use in the Guatemala Experiments. The TAC alleges that four corporate officers of Bristol-Myers Squibb’s predecessors were involved in the Guatemala Experiments; they were Dr. Oskar Wintersteiner, Dr. Geoffrey Rake, Dr. Arthur Richardson, and Dr. Delmas Kitchen. There is no allegation that any of these men were serving in any Government position pertinent’ to the Experiments.

3. STD Research in the 1930s and 1940s

The TAC alleges that Johns Hopkins and Rockefeller were heavily involved in STD research from the 1910s through the 1950s. In 1914, Rockefeller helped establish “Department L,” a Hopkins clinic and research center focused on syphilis, which eventually came to be led by Dr. Moore, a Hopkins professor and also a member of the Rockefeller Foundation. By the 1930s, Hopkins controlled almost all syphilis research conducted in the United States. ¶¶ 269, 272, 274.

In the 1930s and 1940s, Dr, Parran, Dr. Moore, and others at Hopkins, with funding and personnel support from the PHS and its Subcommittee on Venereal Diseases, carried out two infamous human experiments—the Tuskegee and Terre Haute Studies. In the Tuskegee Study, the researchers found poor, African-American sharecroppers already infected with syphilis, and deceived those men about then-condition so that the researchers could test and observe the effects of untreated' syphilis in humans. ¶ 168. In the Terre Haute Study, researchers intentionally infected federal prisoners with gonorrhea, with the prisoners’ consent, in order to test various treatment options. ¶ 170. After these studies, Dr. Moore, Dr. Parran, and others wanted to continue studying STDs in humans, but the pertinent rules and conditions in the United States regarding scientific experiments on humans prevented them from easily doing so in this country.

4. The Guatemala Experiments

The TAC alleges that in 1946, Drs. Moore and Parran devised a plan to conduct syphilis research in Guatemala as a continuation of the Tuskegee- and Terre Haute Studies. These men developed a research protocol to test penicillin as a cure or prophylaxis for syphilis. ¶¶ 174, 362. The study required a large human test group with secret, nonconsensual testing. Guatemala was chosen as the location for the Experiments because Johns Hopkins and Rockefeller had established relationships with Guatemalan officials, the intended test subjects were poor and uneducated, and it would be possible to conceal the study from the American and Guatemalan public. ¶¶ 366-369. Several individuals, referred to in the TAC as the “control group,” were informed of the plan. ¶¶437, 441. The control group included, among others, Drs. Moore, Weed, Reed, Turner, and Eagle from Hopkins, Dr. Wintersteiner from Squibb, and Drs. Parran and Strode from Rockefeller. ¶¶ 360, 441.

The control group introduced the plan to the Syphilis Study Section, which was made up of the members of the former PHS Subcommittee on Venereal Diseases and the Penicillin Panel. ¶¶ 381-384. At the time, Drs. Reed, Turner, and Eagle from Hopkins, and Dr. Wintersteiner from Squibb were on the Board of the Syphilis Study Section, which was chaired by Dr. Moore of Hopkins. The Section met at Hopkins and acted as an ‘“autonomous body, to which the PHS provided liaison and administrative support, but not control.’ Only the academic and non-governmental researchers had voting privileges.” ¶361. The Board of the Syphilis Study Section agreed to fund and conduct the Experiments in Guatemala with Government money. ¶ 385. However, the people in the Study Section who were outside of the “control group” were not informed and did not know that the Experiments were designed to be nonconsensual. This fact was concealed from them.

Dr. Moore, Dr. Parran, and Dr. Winter-steiner selected Dr. John Cutler, a PHS researcher who was involved in the Tuskegee and Terre Haute Studies, to lead the Guatemala Experiments. Dr. Soper,' an Associate Director of Rockefeller’s International Health Division, was selected to be the “Responsible Investigator” for the Guatemala Experiments. ¶¶ 393-395. The Responsible Investigator position entailed overseeing the actions of Dr. Cutler and protecting the rights and well-being of the test subjects. Dr. Soper did not have any STD research experience, but was chosen because he would allow the tests to be nonconsensual and would conceal the true nature of the Experiments. ¶394. The Rockefeller Foundation assigned Dr. Sop-er to the PASB to carry but his duty as Responsible Investigator. ¶ 395,

From 1946 through the 1950s, Dr. Cutler and his staff intentionally infected prison inmates,1 psychiatric patients, orphans, school children, soldiers, and others with syphilis, either through contact with sex workers or through direct injection. ¶ 408. Available records establish that the perpetrators of the Guatemala Experiments intentionally infected at least 1,308 Guatemalans from 1946 to 1948. Id. Researchers misled the subjects, telling them that they were being injected with vitamins or were being treated for other conditions. ¶¶55, 410, 411. Only some subjects were given treatment, and some of those subjects were switched to placebos. ¶ 412.

The syphilis used to inject the subjects came from four sources. Three of those sources were rabbits sent from Dr. Turner’s Hopkins lab (T. cuniculi strain and Nichols strain) and rabbits sent from the PHS (Frew strain). ¶409. Besides being provided with the actual disease itself, Dr. Cutler received instructions and support from the researchers at Johns Hopkins, Rockefeller, and Bristol-Myers Squibb. Bristol-Myers Squibb provided penicillin G to test as a treatment and a prophylaxis. Near the end of the Experiments, Dr. Cutler left Guatemala and was employed by Johns Hopkins, where he continued to monitor patients from the Experiments. ¶¶ 444, 446.

The Guatemala Experiments ended in the early 1950s, but none of the subjects were told that they had been infected with syphilis. ¶ 447-448. Those involved in the Experiments, kept them secret for over sixty years; no articles Or studies were published about them. ¶ 449-451.

In 2010, a historian discovered information about the Guatemala Experiments. The discovery led to the creation of the United States Presidential Commission for the Study of Bioethical Issues to investigate the Guatemala Experiments ‘and' resulted in a formal apology to Guatemala in 2010 by President Obama.

C. Alien Tort Statute Claims (Count I)

The Alien Tort Statute, 28 U.S.C. § 1850 provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations Or á treaty of the United States.

28 U.S.C. § I860 (2012).

The ATS is “ ‘strictly jurisdictional’ ... [and] does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013)(quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 713, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)).

In the Decision Re: Second Amended Complaint, the Court held that it has jurisdiction under the ATS for a cause of action for “a violation of the norm of customary international law prohibiting medical experimentation on human subjects without their consent.” [ECF No. 122] at 18 (quoting Abdullahi v. Pfizer, Inc., 562 F.3d 163, 187 (2d Cir. 2009)).

Defendants contend that the TAC fails to plead viable ATS claims because:

1. The claims are barred by the ten-year statute of limitations;

2. The TAC .does not adequately state that Defendants are .directly liable or liable as accessories;

3. The TAC lacks adequate facts to infer that the Plaintiffs’ injuries were caused by the Guatemala Experiments; and

4. The ATS does not recognize preconception torts.

These contentions shall be addressed in turn.

1. Limitations

In the Decision Re: Second Amended Complaint, this Court held that a ten-yéar statute of limitations period applies to Plaintiffs’ ATS claims. [ECF No. 122] at 19. However, the Court did not in that decision determine when the limitations period commenced and whether the limitations period had been tolled by the alleged fraudulent concealment.

a. Commencement Date

The ATS is silent on accrual; therefore, federal common law governs the accrual of ATS claims. “Federal courts, to be sure, generally apply a discovery accrual rule when a statute is silent on the issue....” Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000).

Accrual is the date on which the statute of limitations begins to run. It is not the date on which the wrong that injures the plaintiff occurs, but the date—often the same, but sometimes later—on which the plaintiff discovers that he has been injured. The rule that postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured is the “discovery rule” of federal common law, which is read into statutes of limitations in federal-question cases (even when those statutes of limitations are borrowed from state law) in the absence of a contrary directive from Congress.

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990).

In Ellul v. Congregation of Christian Brothers, 774 F.3d 791 (2d Cir. 2014), the United States Court of Appeals for the Second Circuit applied the discovery rule to an ATS claim, stating, “plaintiffs must demonstrate that they did not discover their cause of action—and could not have discovered it with due diligence—until less than ten years before bringing suit.” Id. at 799 (emphasis added); see also Lampert v. Norfolk & W. Ry. Co., 966 F.2d 1442, 1992 WL 122294, at *2 (4th Cir. 1992)(unpub-lished table decision)(“While the statute of limitations is an affirmative defense, [Plaintiff] bears the burden of establishing any exception to the rule.”).

The parties dispute what information it is that a plaintiff must discover to trigger the commencement of the limitations period. The Court stated, in the Decision Re: Second Amended Complaint that the limitations period might be considered to commence on the date:

• The Plaintiff was infected either in the Guatemala Study or by a Direct Plaintiff,

• The disease manifested itself in that Plaintiff,

• The Plaintiff knew, or should have known, he/she had the disease, or

• The Plaintiff (or Estate) was on “Inquiry Notice” that there was a possible causal connection between that Plaintiffs disease and the Guatemala Study, either by virtue of the September 2011 release of the report of the United States Presidential Commission for the Study of Bioethical Issues or otherwise.

[ECF No. 122] at 21.

Defendants contend that the limitations period commenced for each individual when the Plaintiff discovered, or reasonably should have discovered, the “injury,” i.e., had signs or symptoms of syphilis. Plaintiffs contend that the ten-year period did not begin to run until a Plaintiff discovered the injury and its probable cause. Plaintiffs allege that they did not know the probable cause of their injuries until after there was public disclosure of the Guatemala Experiments, after the release of the Commission’s Report in 2011, and they were identified, contacted, and tested. ¶ 483.

In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the plaintiff began experiencing ear pain at a Veteran’s Administration hospital and was told that the pain may have been caused by a drug he was given there. Id. at 114, 100 S.Ct. 352. The plaintiff initiated a medical malpractice suit under the Federal Tort Claims Act, 28 U.S.C. § 1346, after the normal limitations period would have run. Id. at 115, 100 S.Ct. 352. The Kubrick Court held that the suit was untimely because, even though the plaintiff may not have known his injury was caused by negligent administering of a drug, he did know that he was injured, that the injury came from the drug, and who had given him that drug. The Court reasoned:

We are unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of Ms injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; ánd the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask.

Id. at 122 (emphasis added); see also Hughes v. United States, 263 F.3d 272, 276 (3d Cir. 2001); Drazan v. United States, 762 F.2d 56, 58-59 (7th Cir. 1985)(holding that knowledge of the actual cause of injury is necessary, for a medical malpractice claim to accrue).

In Heinrich v. Sweet, 44 F.Supp.2d 408 (D. Mass. 1999), family members of deceased cancer patients sued a hospital and the United States Government for conducting non-therapeutic radiation experiments on the patients during brain surgery without the patients’ consent or knowledge. The plaintiffs filed suit more than thirty years after the experiments took place. The Heinrich court, in addressing the limitations issue, stated “the precise issue for resolution is when each of the plaintiffs knew, or with reasonable diligence should have known, that the Commission’s experiment facilitated death or otherwise caused tortious injury.” Id. at 416 (emphasis added). The court clearly considered knowledge of an injury’s cause to be a “critical fact.” Id. at 418.

This rationale has been used in ATS eases. In Ellul, the plaintiffs. brought a human trafficking claim under -'the ATS. The Court found that the claim was untimely because “[b]y the time plaintiffs reached the age of majority, each of them knew that he or she had been abducted from his or her family, imprisoned, abused, forced to work for no pay, and not provided any education,” and that the “defendants effected [the plaintiffs’] transfer to Australia through some sort of deception or abusive tactic.” Ellul, 774 F.3d at 799-800. Athough the Ellul court said that it was “dubious” that the discovery rule required plaintiffs to know a defendant is liable under a certain cause of action, it stated that “the diligence-discovery rule delays the date of accrual where the plaintiff ‘is blamelessly ignorant of the existence or cause of his injury.’ ” Id. at 801 (emphasis added)(quoting Barrett v. United States, 689 F.2d 324, 327 (2d Cir. 1982)).

The Court holds that an ATS claim does not accrue and the limitations period does not commence when a plaintiff, through no fault of his or her own, is unaware of an injury’s existence or factual cause.

In the instant case, the TAC alleges that Plaintiffs knew only part of the critical facts surrounding their injuries. They knew that they were experiencing certain physical symptoms, but they did not know who had inflicted the injury, or even if the undiagnosed injury had been caused by another person, rather than a naturally-occurring illness. While Plaintiffs may have believed they received some form of vitamin or medical treatment, see, e.g., ¶¶ 55, 61, they did not know the critical fact that they had been injected with strains of syphilis.-

The relevant inquiry is whether a person in a plaintiffs shoes would have been able to discover the critical facts. The TAC adequately alleges a plausible contention that Plaintiffs could not have discovered the cause of their injuries if they had exercised due diligence.

The experimenters allegedly targeted the subjects of the Guatemala Experiments because of their inability to understand, discover, and control what was happening to them. Many of the subjects were young schoolchildren, patients in an asylum, or prisoners without access to proper medical care, education, or resources. These types of persons would have been unlikely to discover his or her exact injury and its cause. Of course, Defendants are free to assert in light' of evidence to be obtained, that any particular Plaintiff was on such notice as to commence the limitations period more than ten years prior to the filing of the lawsuit. However, there is no allegation in the TAC that any Plaintiff possessed any information that would have triggered a duty to investigate further. See Thompson v. United States, 642 F.Supp. 762, 768 (N.D. Ill. 1986)(“[W]here the plausible explanation is one. of purely natural causes (such as lupus), there is initially no reasonable basis for supposing the doctors did not provide adequate and proper medical care. It is not the purpose of the discovery rule to encourage or reward simple paranoia.”)- Even when a Plaintiff consulted a doctor about his/her condition, it is possible that he/she would not obtain information leading them to trace their infections back to the Guatemala Experiments.

As to Plaintiffs who are Spouses of the Direct'Plaintiffs, even if they would have known that their syphilis was contracted from a Direct Plaintiff, they would not know the critical fact of the cause of their spouses’ syphilis—the Experiments.

Thus, Defendants are not entitled to dismiss all ATS claims since Plaintiffs have alleged facts establishing a plausible claim that the limitations period did not commence until they discovered the cause of their injuries—the infection of syphilis by the researchers. The Representative Plaintiffs ¿liege that they did not discover this fact until' 2013 at the earliest. E.g., ¶¶ 56, 64, 70, 76, 83, 89, 94.

If, as alleged in the TAG, Plaintiffs can be held aware of the source of the pertinent syphilis in 2010 when the Guatemala Experiments were revealed,' the instant suit, filed in 2015, is timely under the ten-year limitations period.

b. Equitable Tolling

Even if the limitations period commenced running more than ten years prior to the commencement of the law suit, Plaintiffs might be entitled to the equitable tolling that is “grafted on to federal statutes of limitations.” Cada, 920 F.2d at 451.

[Equitable tolling] permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim.... the plaintiff is assumed to know that he has been injured, so that the statute of limitations has begun to run; but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant.

Id. “Additionally, in order to apply equitable tolling, courts usually require some affirmative misconduct, such as deliberate concealment.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005)(quoting Arce v. Garcia, 400 F.3d 1340, 1349 (11th Cir. 2005)).

“Under federal common law, a statute of limitations may be tolled due to the defendant’s fraudulent concealment if the plaintiff establishes that: (1) the defendant Wrongfully concealed material facts relating to defendant’s wrongdoing; (2) the concealment prevented plaintiffs discovery of the nature of the claim within the limitations period; and (3) plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.” Equitable tolling is “applicable only in rare and exceptional circumstances,” where it is necessary “as a matter of fairness.”

Ellul, 774 F.3d at 801 (citations omitted).

There are certainly serious issues presented regarding the applicability of equitable tolling in the instant case. For example, whether the Defendants can be held responsible for the concealment on which the equitable tolling is based. However, because the' Court has determined that the ATS limitations period did not commence until 2010 at the earliest for the Plaintiffs, Defendants’ equitable tolling contentions are moot and need not be addressed.

2. Corporate Liability

The allegedly tortious actions on which Plaintiffs’- claims are based were committed by certain individuals, such as Dr. Cutler, who can be'referred to .as the “primary perpetrators.” Plaintiffs seek to have the Court hold the Defendant entities liable for the' torts committed by these primary perpetrators. Therefore, the Court must determine whether the TAC has alleged facts adequate to allow a plausible inference that

• the Defendant entities can be held vicariously liable for the acts taken by the primary perpetrators, or

• the- Defendant entities (or their agents within the scope of their agency) aided; and abetted or conspired with the primary perpetrators in committing the tortious acts.

To decide the issue , of Defendants’ liability, the Court must address two sub-issues: (l) .the correct standard for corporate liability under the ATS, and (2) whether the TAC adequately alleges that the individuals involved in the ' Experiments were acting within their scope of employment or were otherwise agents of the entity Defendants at the time.

a. The Standard for Corporate ATS Liability

As the Court recognized in its Decision re: Second Amended Complaint, “there is an issue whether the extent of corporate liability under the ATS is esséntially equivalent to respondeat superior, applying only to corporate action at the entity’s decision-making level, or is subject to some different test.” [ECF No. 122] at 30. Defendants assert that a test similar to the Monell standard used in § 1983 cases should be the standard for ATS corporate liability, whereas Plaintiffs contend that a “respon-deat superior plus knowledge” standard is the appropriate test.

The issue presented -is neither resolved by binding' authority nor addressed by a consensus of judicial decisions.

The initial question is whether, for an ATS law of nations claim, international or domestic law governs the topic of corporate liability. The Court finds the Ninth Circuit’s analysis of this point persuasive:

Although international law controls the threshold question of whether an international legal norm provides the basis for an ATS claim against a corporation, there remain several issues about corporate liability which must be governed by domestic law. This division of labor is dictated by international legal principles, because international law defines norms and determines their scope, but delegates to domestic law the task of determining the civil consequences of any given violation of these norms. Thus, when questions endemic to tort litigation or civil liability arise in ATS litigation— such as damages computation, joint and several liability, and proximate causation—these issues must be governed by domestic law. Many questions that surround corporate liability fall into this category, including, most importantly, the issue of when the actions of an individual can be attributed to a corporation for purposes of tort liability. Determining when a corporation can be held liable therefore requires a court to apply customary international law to determine the nature and scope of the norm underlying the plaintiffs’ claim, and domestic tort law to determine whether recovery from the corporation is permissible.

Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014) (citations omitted); see also Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1020 (7th Cir. 2011)(“International law imposes substantive obligations and the individual nations decide how to enforce them.”). Thus, the Court will look to federal common law and domestic tort law for guidance.

“[E]ven within our federal system, there are a variety of approaches to determining how the courts are to impute to a corporation the conduct and intent of its employees or agents.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 147 n.51 (2d Cir. 2010), aff'd 569 U.S. 108, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). According to Defendants, the doctrine of respondeat superior does not apply to ATS cases. Defendants’ recommended standard mirrors that of Monell; Defendants contend that Plaintiffs must allege that their' rights were violated pursuant to a policy or practice of the Defendant entities;

Defendants’ argument stems from a reference to Monell in a single sentence of Judge Posner’s opinion in Flomo:

[T]he plaintiffs concede that corporate liability for such violations is limited to cases in which the violations are directed, encouraged, or condoned at the corporate defendant’s decisionmaking level. That is analogous to the liability of municipalities under the Monell doctrine, where as we noted recently “a person who wants to impose liability on a municipality for a constitutional tort must show that the tort was committed (that is, authorized or directed) at the policy-making level of government—by the city ■council, for example, rather than by the police officer who made an illegal arrest.” Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir. 2011); We needn’t decide how far corporate vicarious liability for violations of customary' international law extends; it’s enough that we see no objection to corporate civil liability as circumscribed as the plaintiffs concede.

Flomo, 643 F.3d at 1020-21 (emphasis added). Clearly, Flomo did not hold that a Monell standard of corporate liability applied to ATS cases. Judge Posner simply pointed out the similarity between the standard conceded-to by the Flomo plaintiffs and that recognized in Monell.

Plaintiffs maintain that the TAC allegations would meet a Monell-type liability standard. Plaintiffs contend, however that the Court should apply respondeat superi- or, or a “respondeat superior plus knowledge” standard to hold Defendants liable. Specifically, Plaintiffs contend that a corporation should be liable for acts taken by its employees in the scope of their employment, as long as mid-level management (or higher) has knowledge of those acts. This is not greatly different from the Flomo decision’s “directed, encouraged, or condoned at the corporate defendant’s deci-sionmaking level” standard.

It is not inappropriate for federal courts to fill in the gaps of the ATS by analogy to other areas of federal common law. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995)(borrowing from § 1983 precedent to determine whether the acts of a private person or corporation constituted state action for ATS purposes). Additionally, the Fourth Circuit has held that the Monell standard, and not respondeat superior, applies to private corporations sued under 28 U.S.C. § 1983. See Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982).

However, the Powell holding, like Monell, was based upon the specific text of § 1983, which imposes liability.on a person who subjects or “causes to be subjected” a person “to the deprivation of any rights.” 42 U.S.C. § 1983 (2012). “For a third party to be liable the [§ 1983] statute demands of the plaintiff proof that the former ‘caused’ the deprivation of his Federal rights.” Powell, 678 F.2d at 506 (footnote omitted). The Powell court also noted that the “[Monell] Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute.” Id.

The Fourth Circuit’s reasons for rejecting respondeat superior in § 1983 suits against private corporations are not applicable to suits pursuant to the ATS. The text of the ATS, 28 U.S.C. § 1350, contains no language regarding causation or who is subject to suit. Additionally, the Monell Court focused on the legislative history of the Sherman Amendment, which did not pass because Congress feared that it would be unconstitutional to impose liability on municipalities if they failed to prevent mobs in their towns from causing harm. Monell v. Dep’t of Soc. Servs. of City of NewYork, 436 U.S. 658, 679-80, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Applying respondeat superior to private entities raises no such constitutional or federalism concerns.

Additionally, the application of Monell to private corporations, even in § 1983 suits, has been called into doubt. In Shields v. Illinois Dep’t of Corr., 746 F.3d 782 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit pointed out the practical difficulties of applying Monell to private entities, asking, “How does a court identify the relevant ‘final policymaker’ in a corporation? Is it the CEO, the board of directors, the shareholders?” Shields, 746 F.3d at 795 n.4. The Monell standard is cumbersome when applied to private entities. The Shields court’s rationale lends support to the notion that the Monell standard was not intended to, nor is it well-equipped to, apply to private corporations.

When faced with ATS claims against corporate defendants, federal courts have considered general agency principles, elements of control, and knowledge by a corporation’s executives or managers. See Doe v. Exxon Mobil Corp., 654 F.3d at 47-48 (“[A]geney law determines whether a principal will pay damages for the battery committed by the principal’s agent. Here the court may assume that individuals acting as agents of a corporation violated substantive international law norms.”); Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202-03 (9th Cir. 2007), (“Courts applying the [Alien Tort Statute] draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.”), on reh’g en banc, 550 F.3d 822 (9th Cir. 2008); Bowoto v. Chevron Texaco Corp., 312 F.Supp.2d 1229, 1241-46 (N.D. Cal. 2004)(applying agency principles to consider whether parent corporation was liable for acts of its subsidiary in an ATS case).

In Doe v. Exxon Mobil Corp., the United States District Court for the District of Columbia concluded that the plaintiffs sufficiently stated a claim of aiding and abetting a violation of the law of nations under the ATS when plaintiffs alleged that

• the Indonesian military unit providing security for [Defendant] Exxon’s facilities “used Exxon facilities, supplies, and vehicles to commit various human rights abuses”;

• Exxon executives received reports that “Exxon security personnel were committing human -rights violations on Exxon property, using Exxon ■equipment”;

• Exxon executives “caused the provision of supplies and vehicles to Exxon security personnel”; and

• Exxon executives “planned and approved the deployments of security personnel.”

Doe v. Exxon Mobil Corp., No. CV 01-1357(RCL), 2015 WL 5042118, at *13-*15 (D.D.C. July 6, 2015). Additionally, thé Doe court stated that “[although it is a matter of considerable disagreement among the parties, plaintiffs allege, and the Court accepts as true for purposes of this motion, that Exxon exercised substantial control over the activities of these soldiers, including approving and planning specific operations and deployment locations.” Id. at *1. The alleged knowledge and involvement of executives were enough to state a claim.

Other factors weigh in favor of applying respondeat superior or a “respondeat superior plus” standard. For example, re-spondeat superior was a' feature of the common law at the time the ATS was written. Additionally, the remedial intent behind the ATS weighs in favor of applying some formulation of respondeat superior. As stated in Shields, “[w]e should not insulate employers from respondeat superior liability ... without powerful reasons to do so” because “[i]nsulating private corporations from respondeat superior liability significantly reduces their incentives to control their employees’ tortious behavior and to ensure respect for [other’s] rights.” Shields, 746 F.3d at 792, 794. Last, applying respondeat superior could better fulfill federal common law objectives of uniformity. Cf. Barbara Kritchevsky, Civil Rights Liability of Private Entities, 26 Cardozo L. Rev. 35, 70-71 (2004)(noting inconsistency and incoherency in § 1983 cases involving private entities due to application of the Monell standard).

The Court finds it unnecessary herein to resolve the legal issue regarding the Monell standard because the TAC contains factual allegations adequate to present a plausible claim that would satisfy a Flomo/Monell-type standard requiring a custom, policy, or practice of rights violations. Monell liability can be based upon:

(1) Formally approved policies;

(2) Decisions of a final decisionmaker; or

(3) A custom that is so persistent, widespread, permanent and well settled as to constitute a custom or usage with the force of the law.

See Monell, 436 U.S. at 690-92, 98 S.Ct. 2018; Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

The TAC alleges that the acts of the primary perpetrators were known, directed, and encouraged by high-ranking individuals with decisionmaking authority within each entity Defendant. The TAC also alleges that the Guatemala Experiments were the continuation of a pattern of human experimentation, beginning with the Tuskegee Study, conducted in part by individuals at Hopkins and Rockefeller.

At Hopkins, Dr. Moore and Dr. Eagle were directors of departments, Dr. Turner was the Chair of the Department of Bacteriology and then Dean of the School of Medicine, Dr. Weed was Dean and Director of the Hopkins School of Medicine, and Dr. Reed was Dean of the School of Public Health, Vice President of Johns Hopkins, and then President of Johns Hopkins University in 1950. The TAC states that these men were delegated deci-sionmaking authority and were not under the control of an Institutional Review Board. ¶ 159. For example, Dr. Turner frequently entered contracts committing Hopkins doctors and researchers to work on projects with governmental entities. ¶ 186.

Likewise, Drs. Wintersteiner, Rake, Richardson, and Kitchen, who are alleged to have known about and contributed to the Guatemala Experiments, were Directors of various divisions at Bristol Laboratories and the Squibb Institute during the time of the Guatemala Studies, and similarly are alleged to have had decision-making authority at their various entities.

Last, as to Rockefeller, the TAC alleges knowledge and involvement on behalf of Dr. Parran, who was a Chairman of. Rockefeller’s Board of Directors and a Scientific Director of Rockefeller’s International Health Division, and Dr.- Strode, who was also a Director, of Rockefeller’s International Health Division. Allegedly, these individuals were some of the “key men” given independent policymaking authority within Rockefeller. ¶¶ 213-214.

The facts alleged make plausible an inference that these individuals acted as de-cisionmakers within each of their respective entities. Ultimately, determining the actual authority of each of these individuals will involve questions of fact that .need to be resolved at a later stage of the case. However, at the instant stage, with the “facts” viewed in a light most favorable to Plaintiffs, the TAC adequately alleges a plausible contention that the Defendants’ named doctors/officers were decisionmak-ers who engaged in a multi-year practice of wrongdoing. Therefore, actions taken by or directed by these individuals, if acting as servants/agents for the Defendants, could plausibly form the basis for corporate liability.

b. Agency and Scope of Employment

The Court must determine whether the TAC has adequately alleged facts presenting a plausible claim that, at the critical times, the Doctors, or the primary perpetrators, were acting as agents or- servants of Hopkins, Rockefeller, or Bristol-Meyers Squibb, rather than agents of the Government.

Agency arises when a principal' manifests assent that an' agent “shall act on his behalf and subject'to his control, and consent by the [agent] so to act.” Restatement (First) of Agency § 1 (1933). “A servant is a person employed by' a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.” Id. § 2. A person may simultaneously be the servant of two masters “at one time as to one act, provided that the service to one does not involve abandonment of the service to the other.” Id. § 226.-A master may also lend a servant to another such that the servant may become the agent of another as to some acts. Id. § 227.

“To be within the scope of the employment, conduct must be of the. same general nature as that authorized, or incidental to the conduct authorized.” Id, § 229. A court should consider the following matters of fact to determine whether an act is within the scope of employment:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the servant;

(d) the- extent to which the business of the master is apportioned between different servants; ,

(e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to . expect that such an act will be done; .:

(g) • the'similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

Id.

Therefore, an employee may be acting within the scope of employment even if the employee engages in acts “specifically forbidden” by the employer and uses “forbidden means of accomplishing results.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 543, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); see also Restatement (First) of Agency § 230.

i. Hopkins Doctors

Defendants do not dispute Plaintiffs allegations that Drs. Moore, Eagle, Turner, Weed, and Reed were employed by Hopkins at the- time óf the Experiments. However, Defendants argue that in regard to the Experiments these Doctors were acting as agents of the United States Government.

Taking only the facts as alleged in the TAC with all inferences in favor of Plaintiffs, Plaintiffs present a plausible claim that the Hopkins‘doctors were- acting within the scope of their employment with Hopkins. According to the TAG allegations, they were performing -medical research of the type 'they were employed by Hopkins to do, were motivated, at least in part by a purpose to serve Hopkins as an institution, their involvement occurred at least in part on Hopkins’ premises, and aiding nonconsensual human experimentation could not be unexpected by Hopkins because Hopkins decisionmakers knew and planned the Experiments and Hopkins doctors had in the,past participated in ethically unsound human experiments (Tuskegee and Terre Haute).

As Comment (b) to § 227 of the Restatement (First) of Agency (Servant Lent to Another Master) notes:'

In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service, rendered another, he is performing the business en: trusted to him by the general employer. There is no inference that because the general employer has permitted,a division of control, he has surrendered it.

Comment b to Restatement (First) of Agency § 227.

Nothing in the TAC destroys this inference. Plaintiffs allege that the Doctors did not become federal employees as a result of serving on the Syphilis Study Section, and Hopkins continued to pay all of their costs, expenses, and benefits. ¶ 312. Allegedly, Hopkins retained control over the Doctors and could give or withhold permission to attend Syphilis Study Section meetings. Id. The Government did not control the Study Section, which was an “autonomous body” with “full authority” to review applications and authorize projects. ¶¶ 317, 361. Hopkins doctors were encouraged and expected to serve on Government panels because involvement in these types of public studies benefited Hopkins as an institution' by lending prestige in the medical field,-especially the field of STD research, and by placing Hopkins in a position to receive research grants. ¶¶276, 313, 314, 315. Tenure at Hopkins was linked to participation in the panels. ¶313. Plaintiffs assert- that Hopkins, through Dr, Moore, packed the Syphilis Study Section with doctors from Hopkins so that Hopkins could-control STD studies and funding. ¶ 311.

The TAC also alleges that the plan for the Guatemala Experiments was devised apart from the Study Section and was presented by the control group to the Study Section for funding purposes. Additionally, Drs. Moore, Reed, Turner, and Eagle used Hopkins staff, supplies, and resources to aid the Experiments and train the PHS doctors to carry out the Experiments. ¶ 300. For example, Dr. Reed, who became Johns Hopkins President in 1950, used his Department of Biostatistics staff and departmental resources to collect and analyze data and provide logistical support for the Experiments. ¶ 182. He did this to advance Hopkins’ position in the medical field. ¶ 183.

Therefore, the Court concludes, based on the TAC, that Plaintiffs have successfully alleged that Drs. Moore, Reed, Turner, and Eagle were acting as servants of Hopkins during the Guatemala Experiments.

ii. Rockefeller Directors

Plaintiffs contend that Rockefeller is responsible for the actions of Drs. Par-ran, Strode, and Soper. The TAC alleges, as background, that Rockefeller selected research partners and projects to further its mission to promote national and international public health research, used contacts to get Government support, and then directed and controlled the research itself. ¶¶ 210-211. “The Rockefeller Foundation’s philosophy has always been that it is a partner, not' a patron, and it works through governments, not for them.” ¶ 212 (footnote omitted). Specifically, the TAC alleges that Rockefeller established an outpost in Guatemala, and sent employees to staff it.

Plaintiffs contend that Dr. Parran was a co-agent of the Government, as Surgeon General, and Rockefeller, as a trustee, Board Chairman, and Director of the International Health Division. The TAC alleges that he worked for the PHS and Rockefeller “simultaneously” and acted for the benefit of both organizations because he saw their missions as “coextensive” and research into venereal diseases benefited both. ¶226. He used his staff from both PHS and Rockefeller to provide logistical support. ¶229. In 1949, Dr. Parran resigned as Surgeon General, but. continued his involvement with the Experiments and with Rockefeller. ¶ 443. Although Plaintiffs do not allege that Rockefeller had the right to, or did, control Parran’s actions, there is a plausible claim that Dr. Parran was acting for the benefit of Rockefeller and that his positions within the entity lead to a reasonable inference of agency. Therefore, the TAC plausibly claims that Dr. Parran was acting as an agent of Rockefeller in regard to the Experiments.

Dr. Strode was a Rockefeller employee and a Director of Rockefeller’s International .Health Division. ¶ 242. The TAC alleges that he helped plan and oversee the Experiments “to further the policies and interests of the Rockefeller Foundation.” ¶247. Dr. Strode received reports from Dr. Soper on what was happening in Guatemala, and he informed Rockefeller’s Executive Committee. ¶239. Therefore, the TAC adequately supports a reasonable inference that Dr. Strode acted within the scope of his employment as an agent of Rockefeller.

Plaintiffs have alleged adequate facts to support a plausible claim that Dr. Soper was a servant of Rockefeller whose actions were taken in the scope of his employment, even though he was a director of the PASB during the Guatemala Study. The TAC alleges:

• “In January 1947, The Rockefeller Foundation assigned Dr. Soper to the Pan American Sanitary Board (PASB) where he was immediately designated as the ‘Responsible Investigator’ for the Guatemala Experiments.” ¶ 395.

• Rockefeller “had institutional control over the PASB and periodically used it to implement its policies.” ¶ 396.

• “Throughout the Guatemala Experiments, Dr. Soper remained an employee and Associate Director of The Rockefeller Foundation. It paid his entire salary, expenses, and costs. It paid his health insurance.... He retained free access to Rockefeller Foundation offices.... ” ¶ 400.

• “[Dr. Soper] continued to report directly to the Director of Rockefeller’s International Health Division, Dr. George Strode, both in person and through written reports and updates. He wrote reports to The Rockefeller Foundation’s Executive Committee detailing the work performed. He wrote multiple letters and reports to Dr. Parran. He received agendas and comments from meetings of The Rockefeller Board of Scientific Directors, even though non-board members had never received them before. He leaked details of PASB policies to Dr. Strode before they became public so the Foundation could adapt its policies. And, he worked behind the scenes with Rockefeller to coordinate their policies with the PASB’s policies.” ¶ 400.

• “Dr. Soper later wrote that his move was not of ‘abandonment of The Rockefeller Foundation but rather of fulfilling its program.’ ” ¶ 397.

• “Chester Barnard, President of The Rockefeller Foundation, correctly wrote that Dr. Soper’s move to the PASB ‘was designed to cover most of the purposes which the [Rockefeller’s International Health Division] pursued in Latin America.’” ¶238 (alteration in original).

These factual allegations are adequate to present a plausible claim that Dr. Soper was acting as a servant of the Rockefeller Foundation within the scope of his employment even while serving as “Responsible Investigator” and PASB director. He was acting to fulfill Rockefeller’s mission and goals, and was under the direction of, and reporting to, the Rockefeller Board of Directors.

iii. Bristol-Meyers Squibb Doctors

The TAC alleges that Bristol-Meyers Squibb, through Drs. Wintersteiner, Rake, Richardson, and Kitchen, provided the penicillin G that was used in the Experiments and additional support and direction to the researchers on the ground. E.g., ¶458. It is plausibly claimed that these officers were acting within the scope of their employment because they were acting to improve Bristol-Meyers Squibb’s predecessors’ product and further the employers’ business interests.

c. Direct Violation Through Primary Perpetrators

Plaintiffs allege that Defendants are liable as primary perpetrators—not just as aiders and abettors or conspirators. That is, Plaintiffs contend that Defendants controlled and directed Dr, Cutler (a PHS employee), Dr. Soper, Dr. Funes (a Guatemalan doctor with a PHS. fellowship), and the U.S. Government researchers on the ground, and are thus vicariously liable for the actions of the primary perpetrators.

To show that the primary perpetrators were the Defendants’ agents, Plaintiffs rely on the following allegations:

• Defendants “purposefully selected the team of researchers that would implement the Experiments on the ground.” ¶ 495.

• Defendants and their servants or agents “direct[ed] and oversfew] the implementation of the Experiments, including' frequent communications with each other, Dr. Soper, Dr. Cutler, and the researchers on the ground.” ¶ 492.

• “Drs. Moore, Turner, Reed, and Eagle committed Johns Hopkins ... with full knowledge of and control over how the Experiments would be conducted.” ¶ 386.

• “Dr. Parran, Dr. Moore, Dr. Winter-steiner, and their colleagues selected Dr. Cutler....” ¶ 391.

• Dr. Cutler “[fjollow[ed] the directions given to him by Dr. Moore and others in the control group.... ” ¶ 319.

• “Dr. Moore, like he had done in both of the prior studies, continued to monitor, supervise, support, aide, encourage, participate in, direct and control the Guatemala Experiments throughout. He regularly corresponded with Dr. Cutler, actively directing the work of the researchers in Guatemala.... ” ¶ 416.

• “Dr. Turner instructed Dr. Cutler to conduct experiments” with T. cunicu-li. ¶ 418.

• Various allegations that certain individual doctors “oversaw” what was happening on the ground in Guatemala, See, e.g„ ¶¶497, 513, 519, 543.

These allegations are either con-clusory or do not present a plausible claim that any Defendant established an agency relationship with Dr. Cutler and the other researchers or had the right to control their actions. Simply stating that various doctors employed by Defendants “oversaw,” “controlled,” or “directed” Dr. Cutler and his team, without more, is not adequate to present a plausible claim that Defendants were their principals and are vicariously liable, for their actions. The TAC has no factual allegations that the Defendants paid those researchers, had an employment relationship, or the right to hire or fire them.

However, as discussed above, the TAC does adequately state that Dr. Soper did act within the scope of his employment at Rockefeller. According to the TAC, Dr. Soper’s diary confirms that “for brief periods of time, [he] engaged in the experiments with Dr. Cutler and the researchers on the ground in Guatemala.” ¶ 426. Therefore, the Plaintiffs have adequately presented a plausible claim that Rockefeller, via its employee Dr. Soper, who was acting under the direction of Rockefeller executives, can be liable as a perpetrator of crimes against humanity.

d. Accessory Liability

Plaintiffs do not adequately allege that Hopkins or Bristol directly committed non-consensual human experimentation. However, Plaintiffs allege that all Defendants were co-conspirators with, and aided and abetted, the perpetrators of these crim