Like every one of the Australian women who took thalidomide, Wendy Rowe ingested a German-made product. The thalidomide in Wendy’s tablets was manufactured at the Grünenthal factory in Stolberg and transported as powder to the UK, where it was pressed into tablets by Distillers. The tablets were packaged into bottles and sample packets and shipped to Sydney, then trucked to Melbourne. So despite being at the far end of the world, Wendy and Lyn Rowe were, quite directly, Grünenthal victims. And like every other Grünenthal victim across the globe, Wendy and Lyn Rowe had to wait fifty years for an apology. And when the apology came…well, it was a very mixed blessing.
In August 2012 Grünenthal’s chief executive Harald Stock spoke at the unveiling of the statue of an anonymous thalidomide victim in the Stolberg library, just around the corner from the old Grünenthal factory. Stock expressed sincere regret at the harm caused by thalidomide, and apologised for the company’s fifty-year silence on the issue. So far, so good. The apology was less than Olympian, but it was something. Stock, though, wasn’t finished. ‘We ask that you regard our long silence as a sign of the silent shock that your fate has caused us.’
Silent shock? Thalidomiders were predictably outraged: they believed Grünenthal was claiming their suffering as a justification for the decades-long inability to apologise. Presumably Grünenthal had not anticipated that response. But how could anyone have so misread the moment? From a company that had taken fifty years to choose its words, it was an outstandingly poorly judged public relations exercise.
The ‘silent shock’ explanation for Grünenthal’s long failure to apologise was laughable. Grünenthal’s drug had been sold in at least forty-six different countries, causing untold suffering. There were about five thousand recognised survivors across the world, and at least that many more who had died or had never been recognised. Some estimates put the global death and injury toll at fifteen thousand or even more, since many thousands died in utero or were never counted. It was these victims and their parents who were entitled to shock, not Grünenthal. One UK activist called the apology an insult. ‘We feel that a sincere and genuine apology is one which actually admits wrongdoing. The company has not done that.’ Another activist called for compensation rather than weasel words. ‘If they are serious about admitting they are at fault and regret what happened, they need to start [financially] helping those of us who were affected.’
When Stock made his speech many of the three thousand or so recognised German thalidomiders were surviving on meagre pensions doled out annually by an underfunded compensation fund. They were among Germany’s most disadvantaged citizens. By contrast, Grünenthal’s owners and senior executives were members of Germany’s wealthy elite: in 2012 Grünenthal declared a pre-tax income of 228 million euros.
Grünenthal, which translates into English as ‘green valley’, was established in 1946. It was a spin-off from the Wirtz family’s long-established perfume and soap business, Mäurer & Wirtz. The first Grünenthal factory was in Stolberg, a quaint little town just outside Aachen near the border with Belgium. The post-war era was not an especially auspicious time for some of the luminaries of the German pharmaceutical industry. In 1947, the year after Grünenthal’s founding, war-crimes trials started for twenty-four directors and senior employees of IG Farben, a conglomerate of German chemical, dye and pharmaceutical companies.
Created in 1925 by the merger of six German industrial giants, including Bayer, BASF and Hoechst, IG Farben was intimately and heavily involved in the German war effort and complicit in a series of war crimes. It profited massively from its contracts with the military, and boasted active Nazis in its senior ranks. Many of these industrialists, even those convicted of war crimes, went on to shining post-war careers in Germany. Quite incredibly, one of the worst, the convicted mass murderer Otto Ambros, ended up as the chair of Grünenthal’s supervisory board.
Ambros was a chemist who rose quickly through IG Farben and during the late 1930s oversaw the production of chemical weapons and nerve agents. In 1940–41, Ambros was involved in IG Farben’s search for a site for new synthetic rubber and liquid fuel plants in the territory Germany had conquered to its east. IG Farben settled on a Polish town named Oswiecim. Or, in German, Auschwitz.
Auschwitz was already the site of a concentration camp, and would evolve into one of history’s blackest holes: a group of extermination and concentration camps, replete with gas chambers and crematoria, the venue for more than one million murders. Auschwitz’s appeal for IG Farben increased when the SS promised to supply labour. Suitably motivated, IG Farben, a prominent financial supporter of the Nazi Party in the pre-war years, started work on its gigantic Auschwitz plants in early 1941. Throughout the war years, IG Farben and its Auschwitz managers, including Otto Ambros, were locked in a mutually beneficial embrace with the SS. The Nazi war machine deported and murdered the local Jewish population, brought in slave labour and allowed IG Farben to rent a workforce at the flat rate of three marks per day for an unskilled worker, or four marks for a skilled worker. In 1941 Ambros famously wrote to Fritz ter Meer, an IG Farben board member and later also a convicted war criminal: ‘Our new friendship with the SS is proving very beneficial.’
IG Farben and the SS soon took their collaboration further, agreeing to the construction of the Monowitz concentration camp on the grounds of the IG Farben complex. Monowitz would house the enslaved workforce and avoid the time wasted in marching the prisoners back and forth from the other Auschwitz camps. Emaciated prisoners died in droves at the IG Farben site, exhaustion, disease and starvation cutting through their ranks. Others were beaten to death or shot by the SS. Yet others were hanged for trying to escape. Regular ‘selections’ sent the weak to the extermination camp for gassing. Prisoners were told that the only way they were leaving Auschwitz was via the chimney. Senior IG Farben employees bought—at bargain prices—the clothing of people who had been gassed. ‘As I am an expert on textiles,’ a survivor testified, ‘I quite often had to select clothing for the foremen.’
The IG Farben plants ultimately produced almost nothing and were abandoned by the Germans in January 1945 after heavy US bombing and in the face of the advancing Russian army. Thousands more prisoners died as the Germans forced them to march west from Auschwitz through mid-winter. The acclaimed writer Primo Levi was one of the survivors of the Monowitz camp. As a chemist, Levi was transferred from brutal physical labour to a job as a laboratory assistant in the IG Farben plant during the last months of 1944, sparing him the vicious conditions and abuse that claimed so many lives. Ill at the end of the war with scarlet fever, Levi was left behind to die by the retreating Germans, thus avoiding the death march forced on most prisoners. Levi survived and his first and best-known book, If This Is a Man, powerfully records his year at Auschwitz.
IG Farben’s war record was appalling in every respect. It financed some of Dr Josef Mengele’s infamous medical experiments at Auschwitz and an IG Farben subsidiary supplied the SS with the Zyklon B pesticide used in the gas chambers. All of this led to war-crimes prosecutions, and in 1948, after a trial of IG Farben executives, Otto Ambros was sentenced to eight years in prison for mass murder and slavery. He was one of thirteen IG Farben men convicted. Yet by early 1951 Ambros and all of the others had been released from prison, beneficiaries of a grant of clemency. Almost all were welcomed back into the bosom of German business.
Ambros found no shortage of employers. He was chairman of pharmaceutical firm Knoll AG’s board during the 1960s and ’70s (it was part-owned by Grünenthal) and later the chairman of Grünenthal’s supervisory board. He also found lucrative consultancies with US firms.
Ambros was not the only man with a dark history to gain employment at Grünenthal. Dr Heinz Baumkötter was a notorious SS doctor at the Sachsenhausen concentration camp outside Berlin. In addition to overseeing executions and selecting prisoners for the gas chamber, he conducted experiments with injections, explosives and chemicals. One such experiment saw prisoners strapped down and burned with phosphorus so that Baumkötter could test an experimental salve.
Baumkötter was arrested after the war, charged with murder and tried by the Soviets in Berlin in 1947. He was convicted after a short trial, not a surprising outcome given his appalling record and the efficient Soviet approach to war-crimes justice. Baumkötter was sentenced to life imprisonment but served only eight years before the Soviets returned him to Germany. The exact point at which Grünenthal employed him is unclear, but Baumkötter was certainly working as a salesman in Grünenthal’s Münster office in 1960 and 1961. By this time he was facing another round of war-crimes charges—in a German court. In 1962, after a trial in Münster, Baumkötter was convicted of being an accessory to murder and of depraved indifference and sentenced once more to eight years’ jail. The time he had already served in the Soviet Union was taken into account and Baumkötter remained a free man. One wonders what his erstwhile colleagues at Grünenthal made of their twice-convicted war-criminal colleague.
There were others too. Dr Ernst-Günther Schenck, another SS doctor, tested an experimental protein sausage intended for German soldiers on concentration camp prisoners, with deadly effects. He was a Russian prisoner of war for almost ten years and later found a job with Grünenthal. Martin Staemmler, an ardent Nazi who wrote widely on the racial superiority of the German people, headed Grünenthal’s pathology department from 1960 until shortly before his death in 1974.
So far as is known, the most notorious of Grünenthal’s Nazis, Ambros and Baumkötter, had little or nothing to do with thalidomide. Ambros appears to have been at Grünenthal after the disaster, and Baumkötter merely helped to sell the drug. Heinrich Mückter, though, was a different matter.
Born in 1914, Mückter studied medicine and chemistry at university. He joined the army in 1940, and as a captain in the medical corps found his way to occupied Poland as deputy head of the Institute for Virus and Typhus Research in Krakow.
The search for an effective typhus vaccine was an obsession among the Nazi leadership. The typhus work and other vaccine ‘research’ led to much depraved experimentation and, later, war-crimes charges for thirteen doctors and administrators. Inmates at the Buchenwald concentration camp were the main experimental guinea pigs and the vicious experiments claimed hundreds of lives. Most experiments were carried out in the infamous Block 46 where, in addition to typhus experiments, tests with yellow fever, smallpox, cholera and diphtheria were also conducted. One witness at Nuremberg described the ‘dreadful horror’ inspired by Block 46. Everyone ‘who went to Block 46 as an experimental person did not only have to expect death, and under certain circumstances a very long drawn out and frightful death, but also torture and the complete removal of the last remnants of personal freedom’.
The typhus experiments varied but in general prisoners were infected with a virulent form of the disease. Some were then given a test vaccine and others, a control group, were not. ‘There were cases of raving madness, delirium, people would refuse to eat, and a large percentage of them would die. Those who experienced the disease in a milder form, perhaps because their constitutions were stronger or because the vaccine was effective, were forced continuously to observe the death struggles of others,’ a witness related. To maintain a ready source of fresh diseased blood for experiments, about five inmates a month were infected with typhus. These ‘passage persons’, as they were known, died regularly, requiring new passage persons to be infected.
So far as is known Mückter was not at Buchenwald, nor at Auschwitz, which is close to Krakow, and where there were also deadly typhus experiments. Precisely what Mückter did at Krakow is not known and Mückter did not talk about it afterwards, not unusual behaviour for Germans of his generation. The Krakow Institute conducted its own experiments and, certainly, the German military’s medical researchers had a reputation for callousness and indifference to the suffering of their human guinea pigs. However Mückter’s boss at Krakow, Dr Hermann Eyer, was investigated after the war by the US army and exonerated of war crimes. And curiously, when the Polish authorities charged Mückter at the end of the war, it was only with mistreating prisoners and stealing scientific equipment. In any event, the charges were academic. Mückter had fled to Germany and on 1 July 1946 was employed by Grünenthal.
Mückter quickly found success at his new home, helping his employer win a lucrative contract to produce penicillin. Soon he was Grünenthal’s director of research and development, with a generous bonus deal: in addition to his salary, Mückter was promised a percentage of sales, a deal that would make him a very wealthy man, in no small part thanks to thalidomide.
The relevance of Grünenthal’s war-criminal connections was the subject of much discussion among Lyn Rowe’s legal team. For sure, there was no shortage of men with appalling records in post-war Germany and not all of them were going to disappear into obscurity. On the other hand, there is a clear difference between a run-of-the-mill ex-Nazi or ex-soldier and Otto Ambros, a man convicted of mass murder and slavery, who bore the shame of Auschwitz. Or Heinrich Baumkötter, a doctor convicted of war crimes in both Russian and German courts. What sort of company would allow a convicted mass murderer to hold a senior position? Or any position at all?
Ultimately we felt that while the war-criminal material was only marginally relevant to Lyn’s legal claim, it was crucial to understanding the Grünenthal of that era. The fact that Grünenthal would employ an enthusiastic participant in mass murder must say something about the culture of the company at that time, a culture which proved incapable of responding adequately to reports of damage caused by thalidomide.
The details of Heinrich Mückter’s sales bonuses are also illuminating. Between 1952 and 1961 Mückter’s salary was constant: 14,400 marks per annum. But Mückter was also paid one per cent of the turnover of certain drugs, including thalidomide. In 1957, the year thalidomide sales began, Mückter’s bonus was 160,000 marks. By 1959 it had climbed to 200,000 marks and in 1961, the final year of thalidomide sales, Mückter’s bonus was 325,000 German marks, a vast sum: about twenty-two times his salary.
The bonus system and Mückter’s background seemed to us part of the explanation for Grünenthal’s conduct. It almost sounds like a quiz question. Let’s say you take a doctor with a forceful personality and a wartime history of medical experiments and then give him a medical laboratory. Dangle generous bonuses in front of him for the drugs he can get to market. Then assume his team invents a drug which is stunningly popular—but has appalling side effects. Assume further that the company which employs him is not, let’s say, rigorous about character issues. Throw in a general culture among employees of respect for authority.
What would happen if the company started getting reports that its favourite drug was doing unpleasant things to some of the people taking it? Would our doctor suspend sales and investigate? Or would it be surprising if he dismissed and trivialised complaints, and focused on selling more and more of the drug?
By comparison with Grünenthal, Distillers resembled a slightly genteel stooge led gullibly into the medical fiasco of the century. Like Grünenthal, Distillers was a recent entrant into the pharmaceutical field. But its roots went back to the 1870s in Scotland, and for decades it had dominated the international trade in Scotch whisky, while profiting from lucrative lines in other beverages.
During World War II, at the UK Government’s request, the company diversified into penicillin, churning out the vital antibiotic at a government factory in Speke, Liverpool. After the war the government offered Distillers the factory at a reduced price, so Distillers stayed in the pharmaceutical business via its offshoot, Distillers Biochemicals, which kept producing penicillin while hunting around for further products. Distillers was not especially interested in developing its own drugs; it was more enthusiastic about finding a foreign partner whose drugs it could license for sale in the UK.*
Unfortunately for Distillers its gaze alighted on Grünenthal, which by 1956 had developed a new drug it labelled K17 for internal purposes. The drug was thalidomide, and Distillers was soon clamouring for the British rights. Various Distillers executives made the trek to Germany, practically beseeching Grünenthal to grant them a licence. Eventually, the gentlemen at Distillers would be brought undone by their desperation for a bestselling drug, lack of nous, and willingness to believe Grünenthal’s assurances. The hard men at Grünenthal found the well-mannered British executives an easy target. And Distillers would spend many years regretting the folly of ever getting into bed with Grünenthal.
The disaster scarred some of the key figures at Distillers. Pharmacologist George Somers confided to a friend that he felt as though he had driven a bus into a group of schoolchildren when he learned what thalidomide had done to babies. ‘I was completely shattered, emotionally and professionally.’ Walter Kennedy, the company’s medical adviser, spent much of his retirement in Scotland trying to compile an exhaustive list of material on teratology, the study of birth malformations.
That is not to say that Distillers is without blame. Nor is it due sympathy. It behaved incompetently while the drug was on the market, explicitly promoting a damaging and untested drug as safe in pregnancy. In the immediate aftermath of the disaster it issued hopelessly inadequate warnings about the millions of pills still in circulation, and it kept selling a limited amount of thalidomide for months after its official withdrawal. It even stooped to the low of encouraging doctors to write to medical journals praising the deadly drug and calling for its return to the marketplace. An enormously profitable company, Distillers also heartlessly dragged its heels for years on compensating its victims. But, relative to Grünenthal’s outrageous and colossally negligent behaviour, Distillers appeared a somewhat lesser villain.
Grünenthal and Distillers headed in separate directions shortly after the disaster. Appalled and shocked, Distillers raced for the exit, selling off its pharmaceutical business almost immediately. But it could not get rid of its legal responsibility for thalidomide. In the 1980s Distillers was taken over by Guinness, and after another merger in 1997 Diageo plc came into existence. Diageo is one of the world’s biggest drinks companies, boasting iconic labels including Smirnoff, Johnnie Walker, Baileys and Guinness. The Distillers companies, and their legal liability for thalidomide, travelled through the chain of takeovers and mergers and are today subsidiaries of Diageo, which for all practical purposes assumes legal liability for the drug.
Grünenthal, by contrast, was and remains a pharmaceutical business. It spent about a decade fighting off thalidomide legal threats and is now a successful moderately sized company. It does business all over the world and focuses on pain medication. To this day, Grünenthal remains largely in the hands of its founders, the Wirtz family.
When Lyn Rowe’s legal claim was formally issued on 8 July 2011, the writ named as defendants Grünenthal and two Distillers companies: the former parent whisky company and its pharmaceutical subsidiary. Almost exactly fifty-five years after Distillers first started courting Grünenthal, the two companies were still being called to account for their thalidomide conduct, forced yet again to defend the dealings of executives and doctors long dead.
That Grünenthal and Distillers found themselves dragged back into thalidomide litigation in Australia in the twenty-first century was the result of a series of remarkable coincidences.
Peter Gordon grew up in West Footscray, a blue-collar suburb in Melbourne’s inner west. His father worked as a clerk at a nearby airforce base for almost thirty years, before a heart attack left him on a disability pension. Gordon’s mother sold bedding at a department store. It was, says Gordon, ‘a working-class, churchgoing’ childhood. Gordon and his sister Karen went to local Catholic schools and the family attended mass every Sunday at Christ the King Church in Braybrook. When he was thirteen Gordon shocked his parents by announcing he was an atheist. ‘It was at about 9.15 one Sunday morning and we were on our way out to mass. I said that consonant with my new status, I wouldn’t be going to church anymore. That caused massive trauma. It says something about my sister’s diplomacy that about six weeks later she quietly made the same announcement without any consequences whatsoever.’
Gordon was dux of his school and went to Melbourne University to study law. As a self-described ‘pathologically shy’ teenager, Gordon found it an isolating experience. ‘The place was full of confident kids from expensive schools. I had no social skills and no idea at all how to talk to them. I was the nerdiest kid around and I went through law school as a complete loner.’ Gordon doubted whether he could find a job in the law after graduating. ‘I just assumed that law firms were after people not at all like me.’ He sent out about fifty applications, was invited to three interviews, and received one job offer—from Slater & Gordon. It was the only break he needed.
Gordon’s workaholic tendencies, combined with a lateral legal mind and a love of bare-knuckle litigation, saw him quickly climb the ladder to partner and then senior partner. Along the way he racked up victories for asbestos victims, women with leaking breast implants, and people who had developed HIV through infected blood transfusions. There were also losses—most notably in tobacco litigation—but even these were high-profile, hard-fought affairs.
By 2009 Gordon had spent several decades engaged in frenetic around-the-clock legal activity. At fifty-one, at the top of his game, he wanted a break. He also had the financial freedom to do something different, to strike out on his own. Just two years earlier Slater & Gordon had floated on the stock market, making instant multimillionaires out of a handful of the firm’s owners.
So in August 2009 Gordon left Slater & Gordon, bringing to an end a twenty-nine-and-a-half-year relationship. He wondered whether he should hang on until the thirty-year mark, ‘but then I thought those sort of milestones are just bullshit anyway’. Gordon had plans for some part-time work but also ‘to get fit, play golf’ and spend more time with his wife Kerri and twin daughters.
A couple of years earlier, Gordon had bought a holiday house on the Mornington Peninsula from an ‘official’ thalidomider named Tony Specchio who, despite his malformed arms, had established a successful career in the building industry. The two men got on well, and Gordon was impressed by Specchio’s grit and drive. Then, not long before Gordon left Slater & Gordon, Specchio got in touch to talk about thalidomide.
He explained that he had been compensated in the 1970s, one of a group of about fifty Australians and New Zealanders accepted as thalidomiders by Distillers. Their compensation was paltry by modern standards and, it would become apparent, in many cases nowhere near enough to ensure proper care and assistance. While Specchio had made a career for himself, many of the thalidomiders were now in difficult circumstances. Their compensation was gone and they were reliant on welfare, coping with ageing bodies, deteriorating health and escalating care needs.
Specchio told Gordon about Ken Youdale, a Sydney businessman and the father of a thalidomider, who was trying to prise top-up compensation out of Diageo, the multibillion-dollar global drinks company that had absorbed the Distillers companies responsible for thalidomide. Youdale, then in his mid-eighties, had sent every known Australian and New Zealand thalidomider a power of attorney that purported to give Youdale authority to negotiate with Diageo on their behalf. Specchio wanted to know whether he should sign.
At first blush Gordon was dubious. Youdale’s campaign was unusual to say the least. And what to make of an octogenarian who had not practised as a lawyer for decades running such a quixotic international campaign? But then Gordon telephoned Youdale and as they spoke his doubts started to disappear. ‘I told him that it all sounded quite bizarre, but I was impressed by what he was doing and I’d be happy to do anything I could to help.’ Youdale was equally impressed. ‘Peter was direct and he got straight to the point.’
As many have remarked, they made an unlikely couple. Gordon is rumpled, an aggressive advocate for the underdog. He has a fast, sharp mind, and a broad Australian accent in which an engaging vernacular bumps up against expensive words like pellucid, bifurcate and enure. Youdale, who has lived a long and extraordinary life, is hyper-establishment and impeccably dressed. He speaks in modulated tones, and remained dapper and suave after passing his ninetieth birthday in 2014. As a teenager he was a navigator on bombing raids over Europe. His first flight was the night before the Normandy landing, bombing German gun positions in preparation for the invasion. The day he completed his first tour of thirty-four missions he signed up for a second tour. He felt invincible. ‘I didn’t think the Jerries would ever get me.’ Youdale was awarded a Distinguished Flying Cross. ‘King George pinned it on me at Buckingham Palace.’ By war’s end dozens of his friends and acquaintances had died, leaving him with a deep appreciation of life and a determination to seize hold of it.
In Sydney after the war he studied law, worked briefly as a barrister and then took his competitive drive to the business world. He also proposed to Janet Hayes on their third date, ‘hopelessly smitten’ by a woman he describes as ‘extraordinary’.
In 1961 Janet fell pregnant and, after she complained of morning sickness, Youdale drove her to a local pharmacy. ‘The pharmacist gave her some pills he guaranteed would help.’ Janet took only two of them. Still, when Niki Youdale was born in May 1962 those thalidomide pills had exacted a heavy toll. ‘Niki had a shortened arm and missing thumbs and we didn’t even know about the hole in her heart at that stage,’ Youdale remembered. ‘She was also completely gorgeous.’
Niki Youdale was in and out of hospital for her first year, including Chicago’s Mayo Clinic, where her parents took her after being told it offered the best available care. The Mayo doctors discovered Niki’s undiagnosed heart condition and told her parents that Niki’s continued survival was precarious and that she would eventually require a heart-lung transplant. But Niki’s condition stabilised and Ken and Janet Youdale had two more daughters. Niki lived courageously and cheerfully. She found employment as a television and theatre make-up artist and did volunteer work, including as a Lifeline counsellor.
Ken Youdale pursued a successful business career, working for British Tobacco’s beverages arm for sixteen years and then running his own management consultancy. During the 1970s and ’80s he offered advice on the investment of the compensation Distillers paid Australian thalidomiders, which was held in trust until the children reached the age of twenty-five.
But in 2003 Niki Youdale’s life ended in a way no one had expected. With her heart and lungs failing, she was awaiting a transplant when doctors found a tumour in her brain. ‘The last time I spoke with Niki they were wheeling her away on a trolley, taking her off for brain surgery,’ remembered Youdale. ‘Niki said, “Stop a minute,” jumped off and ran back to me and told me she loved me. I remember it clearly. “I love you so much,” was what she said. Then she ran back, got on the trolley and that was it. She never regained consciousness after surgery.’
Five years later, Youdale was asked to speak at a conference of thalidomide survivors. Preparing for his speech, Youdale did his homework and discovered that UK thalidomide activists had persuaded Diageo to make extra payments to a trust which provides a yearly pension to UK thalidomiders.
Youdale thought Diageo should do the same for Australians, though he knew the company had no legal obligation to do so. After all, the Australian survivors had accepted once-and-for-all compensation in the 1970s. Diageo could correctly argue that the issue was legally dead. But Youdale knew that Diageo was a drinks empire with a clear appreciation of the value of a good corporate reputation. He decided to put his charm, guile and commercial savvy to work persuading Diageo to voluntarily provide extra compensation to recognised Australian thalidomiders.
Shortly afterwards, in late 2008, Youdale flew to London armed with letters of support he had obtained from Australian government ministers. He spent four weeks at the East India Club and met with Diageo executives twice, starting a dialogue that led to two Diageo executives coming to Australia in August 2009.
By this time, Youdale had befriended Peter Gordon. So the two of them—and Lance Fletcher, an influential Australian thalidomider born without ears—met with the Diageo executives over three days at the Blue Hotel on Sydney’s spectacular harbour. The talks went well. The Diageo team displayed an appreciation for the suffering of the drug’s victims and a willingness to explore what more they could do. That, it must be said, was an unusual and laudable stance. And despite the absence of any legal obligation, and after another lengthy negotiation, Diageo announced in July 2010 what was effectively a fifty-million-dollar voluntary payment. It would provide the official Australian and New Zealand survivors with an annual pension equivalent to that paid to UK survivors.
It is remarkable, then, that this commendable act of corporate goodwill led, at least indirectly, to Diageo getting dragged into exactly the sort of bitter litigation the company wanted to avoid.
In the course of negotiating the compensation deal, Gordon was asked by Diageo and by Youdale if he would have a chat to seven other people who had long claimed to be thalidomiders but had never been recognised as such. Gordon agreed, with the stipulation that if he thought they had been unfairly treated he would say so. The first of the seven Gordon met was Gary Fludder, who still had the empty bottle of thalidomide his mother had been given in 1961. Further, his mother was alive and adamant she had been given thalidomide. Yet Fludder, who was born with severely malformed hands, a truncated left leg that required amputation and a host of other problems, was told as a child that his injuries did not fit a thalidomide pattern and that he was not eligible for compensation.
Disturbed by this and other stories, Gordon embarked on a careful examination of thalidomide medicine, and the curious reasoning that excluded some people from compensation on the basis that their injuries did not fit the so-called thalidomide pattern. At the same time, prompted by publicity given to the fifty-million-dollar deal, calls started coming into Gordon Legal, the new firm Gordon had set up, from people who believed they were the victims of thalidomide. Some stories were flimsy, but many were compelling and cogent.
By October 2010 Gordon had seen enough. He had realised that the 1970s settlement had left many thalidomiders behind. The experts at the time had reached an exclusionary view about what injuries could be caused by thalidomide, a view based on the most obvious and visible injuries rather than the full breadth of damage caused by the drug. Others had been turned away because they lacked evidence that their mothers had taken thalidomide. Many others had never come forward. In late October 2010, Gordon filed a class action for uncompensated Australian survivors of the drug.
So when Gordon spoke at the thalidomide conference in Sydney at the end of 2010, he had been deeply immersed in the issue for a year. He had studied the medicine, researched the history of the not-outstandingly-successful legal actions in Australia and England in the 1960s and ’70s, and launched legal proceedings. ‘Plain and simple there had been a miscarriage of justice. A lot of deserving people had missed out. And I was appalled that Grünenthal had never paid a cent to a single Australian victim.’
When Peter Gordon is excited and enthused, he is a sight to behold. That day at the thalidomiders’ conference he was in full pugnacious flight, brimming with enthusiasm for the fight ahead. However, the trajectory of that fight was changed by Gordon’s conversation with Mary Henley-Collopy; and for the better. Once Gordon met Lyn Rowe it quickly became clear that the litigation had to be reconfigured to place her at the front of the queue: to make Lyn the lead plaintiff. There were compelling reasons for this.
First and foremost, Lyn’s situation was perilous. She was utterly and completely reliant on her parents for round-the-clock care. Wendy and Ian Rowe were then in their mid- and late seventies. The physically demanding care Lyn required was a growing struggle for her parents. Very soon it would become impossible. None of the Rowe family had any idea what would happen when that day arrived. That looming crisis gave Lyn’s claim a real degree of urgency. It had to be resolved before her parents became unable to care for her. If Lyn’s claim succeeded, the damages ordered by the Court would eliminate the uncertainty over her future by paying for top-flight care.
Lyn’s situation was also a strong argument for an accelerated legal process. This was important. Legal battles with well-resourced companies can become wars of attrition. Defendants often produce a blizzard of applications and legal manoeuvres, which have the effect of miring the litigation in a procedural bog. Time can be the defendant’s friend, and the injured party’s enemy. We wanted a speedy trial, not an incremental slog towards a receding finish line.
Importantly, Lyn’s claim was also relatively strong. In a class action, the lead plaintiff’s claim settles some of the disputed issues for the other members of the group. A win by the lead plaintiff makes it easier for the others to prove their claim. But lose the lead plaintiff’s claim and the game is effectively over for everyone else. So we needed a strong claim up front. Every thalidomide claim would be hard to win. The big stumbling block was that we were litigating fifty years after the event. But all things considered, we thought Lyn had a real chance of success.
First, it seemed likely that we could gather good evidence that her mother Wendy had taken the drug. Though that sounds easy, it is definitely not. Almost fifty years after the consumption of the drug, memories were certain to have faded, and medical records would very probably have been destroyed. In the case of many of our thalidomide clients, potential witnesses (mothers, fathers, doctors, pharmacists, drug salesmen and so on) had died or could not be found.
Further, in the 1960s patients were often given or prescribed pills and not told what they were. Bottles of pills obtained from a pharmacy were sometimes just labelled ‘the medication’, with no brand or chemical name on the container.
But proving Lyn’s exposure to the drug looked promising. Her parents were alive and well. We had found both the doctor who delivered her and a pharmacist who, in the 1960s, often filled the Rowe family’s prescriptions. Various members of Lyn’s extended family had valuable memories to share.
Lyn’s physical condition was also a factor in proving her exposure to thalidomide. There is much debate over exactly what damage thalidomide can cause. But there is no doubt it can cause what Lyn had: a complete absence of limbs. This was important. If we could show Wendy Rowe took thalidomide, then we could almost certainly prove the thalidomide caused Lyn’s injury. If Lyn had suffered from a birth malformation rarely (or never) seen in recognised thalidomide cases, we would have faced a real fight to establish that the drug was even capable of causing that particular malformation.
We also knew the family’s personal qualities. Lyn and her parents were open, transparently honest people who had been dealt an awful hand and adapted with grace. Those qualities would be evident during the unavoidably public battle to come, both inside and outside court, and would only benefit Lyn’s claim.
Gordon Legal and Slater & Gordon, which agreed to work together, would not charge the Rowes upfront for the millions of dollars of legal work it would require to get the case to trial. It would all be done on a no-win no-fee basis. Only if the case was successful would the Rowes pay legal fees, and any payment they made would be capped. If the case was not successful the two law firms would have to write off the massive investment as a good try for a worthy cause. Looked at commercially, thalidomide litigation was a high-stakes gamble, even for aggressive plaintiff law firms. The litigation didn’t make sense without a strong belief in the righteousness of the cause. Fortunately Slater & Gordon’s managing director Andrew Grech, a long-time friend of Peter Gordon’s, never wavered in his commitment to the case.
By the time we had settled on Lyn Rowe as the lead plaintiff in April 2011, her legal team had been largely assembled. It was a small group and the lawyers had worked together in some combination in the past. Of course, given a surplus of people with forcefully held views, there were occasional disputes and spats. One period of elevated office angst coincided with the Christmas party, leading to a somewhat strained evening. There was, however, little deference to hierarchy in Lyn’s team. Everyone—lawyer and non-lawyer—gave valuably and volubly at the regular meetings.
Initially the areas of responsibility among the lawyers were only loosely defined but eventually, by agreement and understanding, we all gravitated to different areas suiting our strengths and inclinations. While everyone frequently veered into everyone else’s area, there were few border disputes.
Peter Gordon, Sarah Roache and Brett Spiegel did most of the work on the complex medical issues, including understanding the precise biological mechanisms by which thalidomide is thought to damage embryos. They also dealt with potential competing genetic causes of foetal damage, historic journal articles about what was and was not considered to be a thalidomide injury and the detailed and often lengthy medical records for each of our clients and often their mothers, all of which had to be trawled through, understood and sifted for relevance. The lawyers were assisted by Dr Sally Cockburn, an accomplished Melbourne GP, well known to generations of Melburnians as Dr Feelgood, the dispenser of health and relationship advice on a weekly radio show.
Importantly, the medical team also needed to find and work with experts who would be able to explain to the judge how thalidomide worked and how the thalidomide taken by Wendy Rowe caused the complete absence of Lyn’s limbs.
Over the three years of the litigation I had irregular involvement with the medicine. My focus was the Rowe family, retired thalidomide salesmen, doctors and pharmacists from the era, and Distillers and Grünenthal documents. In all of these areas, I worked with the other lawyers, most frequently Grace Wilson and Patrick Gordon.
The non-lawyers kept the rest of us on track. Peter’s wife Kerri O’Toole ran the office efficiently and with a diplomat’s skill, and our extraordinary administrative manager Dael Pressnell stayed for the life of the project, with time out after the birth of her daughter.
We guessed Lyn’s trial might last three months. It would be exhausting and nerve-racking for everyone—especially for the Rowe family, but also for our other thalidomide clients. Everything rode on Lyn’s trial. If Lyn won, she’d be well compensated. And her win would make a good result more likely for the rest of the group. But if Lyn lost, it would probably be all over for everyone. There would be no more thalidomide litigation in Australia.
Yet while our focus was on Lyn, we also had to attend to the people whose claims would follow if Lyn won. By mid-2011 we had been contacted by well over one hundred people. This later swelled to more than four hundred, with each bout of publicity for the case prompting more telephone calls and emails from potential clients. Ultimately, after detailed sifting and checking, we turned everyone away who had no prospect of proving a claim and were left with just over one hundred people who had never been compensated.
There was nothing we could do for this group until Lyn’s claim was resolved, but, like all thalidomiders, they were now about fifty years old. Their parents, if alive, were mostly in their late seventies or eighties. These parents would give us the best available evidence of thalidomide consumption and their evidence had to be preserved. We couldn’t just put those claims on the shelf until Lyn’s was resolved. The mothers and fathers and other relatives with a story to tell might well have passed away by then. So a decision was made: Grace Wilson and Patrick Gordon would also work on these claims. This was a mammoth job, and a major (but vital) diversion from Lyn’s claim. So in addition to the Lyn-specific litigation, sworn affidavits were taken from hundreds of people: the clients whose claims would follow and their mothers, fathers, aunts, uncles and so on. All of this safeguarded us against the likelihood that some of the witnesses would not be around to give their evidence when the time came.
One of our obvious priorities was to learn whatever we could about Distillers and Grünenthal, the tragedy their drug caused and the litigation that followed in the 1960s and ’70s, absorbing every available lesson along the way. Considering it’s the most notorious drug disaster in history, thalidomide has generated a surprisingly slim general literature. There are a number of moving personal memoirs by survivors, but in terms of understanding the political, legal and medical history of the drug, only a few useful accounts exist.
One was a result of the campaign for thalidomide victims run by the Sunday Times in London during the late 1960s and ’70s. After much legal wrangling, a book written by the paper’s investigative team—Suffer the Children—was published in 1979. The chief author was the distinguished journalist Phillip Knightley who, despite his advancing years, was exceptionally supportive. He spoke with me on the telephone, met with me at his home in London and lent me documents from his personal collection.
More recently Professor Trent Stephens and Rock Brynner (a writer and the son of the actor and anti-smoking activist Yul Brynner) wrote Dark Remedy, a history of thalidomide that gave prominence to the ongoing scientific quest to understand the precise mechanism by which thalidomide wreaks its damage. When we contacted Stephens he was generous and helpful with his time and expertise. Even better, he was so good at explaining complex science in plain English that we engaged him as an expert, repeatedly flying him to Australia from his home in Pocatello, Idaho.
But these books were secondary documents. Obviously we needed source material. Happily we were able to locate various stores of original documents in Europe and elsewhere.
In 1962, in the wake of the withdrawal of the drug, and the news that thousands of babies had been maimed or killed by thalidomide, the public prosecutor’s office in Aachen, Germany began an investigation into Grünenthal’s handling of thalidomide. The five-year probe which followed resulted in the March 1967 indictment of nine Grünenthal executives on charges of negligent manslaughter and assault-related offences.
The prosecutors prepared for the trial with German thoroughness. They produced an indictment of more than 550 pages, plus a massive footnote volume. These volumes referenced thousands of other documents collected by the prosecutor, some of them through police raids on Grünenthal. The documents included embarrassing admissions by Grünenthal’s own legal department and correspondence between Grünenthal and its thalidomide licence partners.
As we’ll see, the criminal trial of the Grünenthal executives was ultimately a crushing failure for the prosecution. But fortunately for us, after the trial collapsed in 1971 the prosecution deposited all of its material, including about one hundred boxes of documents, into a government archive. Many of these documents never saw the light of day in court: the trial was terminated before the prosecution was able to lead much of its best evidence.
For forty years these documents had gathered dust. Examining them would be a critical step in revealing Grünenthal’s culpability for thalidomide’s damage, and dispelling some of the myths about the drug.
Another important store of documents was held by the Sunday Times in London. In 1967, the paper was approached by Montague Phillips, a pharmacologist who was advising the lawyers representing the UK thalidomide children. Phillips had an offer for the paper.
In civil litigation there is a procedure called discovery, in which each side turns over its relevant documents to the other. Starting in 1964, Distillers had given thousands of its internal documents to the children’s lawyers. Those lawyers, acting slowly and in a fashion that would eventually attract great criticism, had in 1966 given copies of them to their scientific adviser, Phillips. The lawyers wanted Phillips to interpret the documents and advise them on Distillers’ failures and possible negligence.
Phillips was horrified by Distillers’ internal documents, appalled at what he saw as the company’s scientific shoddiness and its blind acceptance of Grünenthal’s assurances. But he was also growing disenchanted with the glacial pace of the litigation. So, setting aside his obligations as an expert witness (one of which is to keep confidential material confidential), Phillips marched off to the Sunday Times and, after some discussion, offered to sell his documents.
In 1968 the newspaper paid Phillips £8000. The documents were copied and returned to Phillips and the paper’s investigative team set to work.
Not long afterwards, another mother lode of thalidomide documents was dropped on the Sunday Times by Henning Sjöström, the lawyer representing Swedish thalidomide victims. Sjöström had got hold of some of Grünenthal’s internal documents and, in a very unusual move for a lawyer, his agent was offering them to various newspapers in London. The Sunday Times bought them for £2500.
The Sunday Times and Distillers would later fight a long court battle over the material Phillips sold. But the fight was worth it—the documents gave the paper an incredible insight into the bumbling way in which Distillers had first embraced Grünenthal, and then exported the thalidomide disaster to Australia and other chunks of what was still the British Empire.
We knew that if the Sunday Times still held any of those internal Grünenthal or Distillers documents, they would be a vital resource for Lyn Rowe’s claim. They would help us articulate (in formal court documents) what the drug companies had done, how they had ignored warning signs and failed to act prudently. Later in the litigation, under the discovery process, we would be entitled to see the drug companies’ own collection of documents. But a preview, via the Sunday Times, would be very helpful.
After some negotiation, the Sunday Times generously agreed to give us access to its archives, though it could not guarantee how much had been retained. When we finally inspected the archive, we found that most of Sjöström’s Grünenthal documents had disappeared, but a valuable portion (a fraction really) of the Distillers material was still there.
Eventually we would also access a cache of material generated by the Swedish thalidomide litigation, and thousands of pages of thalidomide material held by the Food and Drug Administration in the United States. All of this information helped us build Lyn Rowe’s legal claim.
*For clarity: the UK whisky company was Distillers Company Ltd. Its UK pharmaceutical subsidiary was Distillers Company (Biochemicals) Ltd. And the Australian pharmaceutical arm was Distillers Company (Biochemicals) Australia Ltd. The term Distillers is most commonly used in this book, though the parent company was not directly involved in the pharmaceutical business.