As 1961 gave way to 1962, the executives at Grünenthal and Distillers had little to cheer. Their drug was a disaster, a killer. More victims were emerging daily. Some women who had taken just a single tablet during the sensitive window—generally reckoned to be between the end of the second and start of the sixth week of pregnancy post-conception—gave birth to grievously damaged babies. Yet some babies—exposed to far greater doses—appeared intact. The drug was terrifying and mysterious. But, astonishingly, neither Grünenthal nor Distillers had given up on it.
Within a few days of withdrawing thalidomide in late November 1961, Distillers considered resuming sales. On 7 December 1961 a senior staff member flew to Germany and told Grünenthal that Distillers would soon ‘re-examine the question of whether sales of Distaval could be recommenced through clinics’. Distillers believed that if sales could reach even twenty-five per cent of the previous level it would be ‘a product worth fighting for’. Distillers also optimistically reported to Grünenthal that a big maternity hospital in London had seen no surge in births like those reported by Lenz, and that no further malformation cases had been published in the UK. This optimism was wildly misplaced. Distillers already knew about four of its own employees whose wives had used Distaval and given birth to malformed babies. Soon reports of malformations stretching back to 1958 emerged in great numbers as parents and doctors realised they had an explanation for the previously inexplicable. Eventually the number of surviving thalidomiders in the UK would total about five hundred. This excludes those who were never recognised, and the many miscarriages, stillbirths and deaths soon after birth also caused by thalidomide.
While the tragedy locked Grünenthal and Distillers together, there were stresses on the relationship. Distillers, which controversially resumed limited thalidomide sales to hospitals, was being flooded with vast quantities of returned tablets. It also had piles of raw thalidomide powder sitting in storage. Distillers wanted to return the powder to Grünenthal and get its money back but Grünenthal refused to accept the drug or offer a refund.
Another more serious issue also threatened to split the partners. Distillers, to its credit, very quickly accepted that thalidomide had caused the deaths and malformations. Grünenthal, by contrast, and despite overwhelming evidence, refused for years to accept the link. And of course that stance meant Grünenthal bitterly resented some of Distillers’ public concessions about thalidomide’s dangers.
Yet while Distillers admitted the obvious, it was also effecting some canny PR to protect its reputation and legal position. On 1 August 1962 both The Times and the Guardian carried stories about thalidomide: this was eight months after the withdrawal but the mainstream media everywhere had been slow to catch on. Distillers’ staff had thoroughly briefed both newspapers and both declared the British company completely innocent of blame in the matter, swallowing the glib line that all relevant and necessary tests had been performed prior to sale. This assessment—that Distillers had acted responsibly and was blameless—was taken at face value by much of the media and was effective in providing Distillers with cover.
That same month, August 1962, Distillers’ chairman Sir Graham Hayman declared that doctors still considered the drug very valuable. ‘No one could possibly foresee the effect the drug would have on the unborn babies of mothers who took it.’ The British Government fell into line. Health Minister Enoch Powell treated a delegation of parents of thalidomide children with little evident sympathy and refused to establish an inquiry into the affair.
Grünenthal was every bit as determined as Distillers to present itself as a model of virtue and caution. It sent a letter to its overseas agents on 30 November 1961, claiming it had acted as a ‘responsible pharmaceutical manufacturer’ by suspending sales even though ‘the allegations [against thalidomide] lack scientific foundation’. It asked the overseas companies to cease sales, while suggesting that thalidomide might yet return to the market if future tests exonerated the drug.
The German company’s business partners adopted a varied approach to the withdrawal. Some responses were outrageous. A company in Panama wrote to Grünenthal on 9 December 1961 suggesting it would do nothing about the thalidomide already in pharmacies and hospitals, and that fresh orders would be met with the response that stocks had run out.
A Jordanian company intended a similar subterfuge. On 27 Dec 1961 it wrote to Grünenthal advising that it intended to ‘sneak out of this problem…without even being noticed’. It would not tell local doctors about the danger of the drug, nor would it issue a warning or retrieve stocks from its customers. Instead it would claim it had run out of thalidomide products. Later, when demand had disappeared, it would collect any remaining products from dealers’ shelves. ‘Although this measure may [be] unethical and against scientific rules, we believe that we should take it,’ the Jordanian company advised.
A Grünenthal partner in Argentina wrote on 4 Jan 1962 saying it understood Grünenthal’s desire to ‘appear ethical, but you must also see the other point of view’. To cancel the product would be ‘suicide’. Advertising and production had been stopped, but orders were still being filled from existing stocks. ‘In case you insist on some kind of action we may, though most unwillingly, produce a new printed matter clearly stating the contraindications of [thalidomide] in pregnant women.’
The Atlas Trading Company in Khartoum (Sudan) advised Grünenthal that it would keep selling a couple of thalidomide drugs as it did not want to waste the work done by its salesmen. Grünenthal wrote back and advised the company to ‘kindly stop sales’. But it was not always so prudent. In late 1961 Grünenthal’s Spanish licensee advised it was not going to tell doctors the reason thalidomide sales had been stopped. On 21 December 1961 Grünenthal gave the subterfuge the green light. ‘If you think such a measure is unnecessary given the relatively small distribution of [thalidomide] in Spain, we will go with your opinion.’
Some Grünenthal partners resented the company’s approach. Its Mexican partner sent a strongly worded letter demanding a refund for unused thalidomide stock and accusing Grünenthal of encouraging it to keep selling the drug when it should have been withdrawn.
In Japan thalidomide was sold by about ten firms under fifteen brand names, though the Dainippon Pharmaceutical Company dominated the market. Its Isomin and Proban-M drugs were extensively advertised, very popular and accounted for about ninety-five per cent of all thalidomide drugs sold in Japan. To make matters worse, Dainippon explicitly promoted thalidomide as safe in pregnancy. Japan probably ranks third behind Germany and the UK as having suffered the greatest thalidomide disaster. The number of Japanese victims has often been assessed as about one thousand, though only about three hundred survived much past birth. The reasons for this low survival rate are unclear, but Japanese thalidomiders have previously suggested there was a significant rate of euthanasia in Japan, particularly in more remote areas.
There was also a tragic lost opportunity in Japan to cut the tragedy short. An extensive trial of thalidomide at a Tokyo maternity hospital involved 110 women at various stages of pregnancy. Some were given the drug for nausea and vomiting. Dr N—whose full name does not appear in the available documents—was the most prolific user of thalidomide. Three of his patients gave birth to severely malformed babies: two in 1960 and the third in May 1961. Dr N immediately ceased use of thalidomide at that point, as did other doctors at the hospital. Later he told investigators he could not recall why he had stopped using the drug, an obvious evasion which did not convince his interrogators. Yet while it appears clear that a number of doctors at the hospital suspected the link between thalidomide and birth malformations, it is unclear whether they passed this information to anybody outside the hospital. It seems, from the available information, more likely that Dr N and a small number of his colleagues kept their suspicion secret and did nothing while the death and injury toll continued to rise, not just in Japan but around the world.
Later events suggest that even if Dr N had alerted thalidomide’s manufacturer Dainippon to his patients’ malformed births, the pharmaceutical company would have been very reluctant to abandon its drug. Grünenthal notified Dainippon of thalidomide’s withdrawal at the end of November 1961, and on 22 December 1961 Grünenthal offered an ill-advised update. It told Dainippon that Widukind Lenz was operating on unconfirmed assumptions.
In summary we would like to say that the assumption of Dr Lenz is in no way scientifically proven through documents. It would be totally sufficient if an appropriate warning was added to the package insert until this question has been cleared. At the moment nobody can say if Dr Lenz’s assumption will prove to be correct after extensive tests.
To what extent this reckless advice from Grünenthal contributed to the drug remaining on the market in Japan is impossible to judge. Certainly Dainippon kept selling thalidomide, a decision which later attracted fierce criticism. On 28 April 1962, having known about the malformations for almost five months, Dainippon advised Grünenthal it was still selling Isomin but in a less aggressive manner than earlier. It had not added a warning about pregnancy because a warning would effectively end sales, Dainippon wrote. Thalidomide sales in Japan finally halted in May 1962, but the retrieval of the drugs from chemists and doctors’ surgeries did not begin until September 1962 and the process dribbled on for another year after that.
The long delay in removing thalidomide from Japanese shelves, for which the Japanese Government shared responsibility, added considerably to the death and injury toll in that country. Lenz described the six-month lag in suspending sales as ‘if not deliberate mutilation of unborn infants’ then at least ‘a large scale experiment’ very likely to end in deaths and malformations.
Canada was another thalidomide black spot. Frances Kelsey’s sparring partner Merrell had started selling thalidomide in Canada in April 1961 because, unlike the US FDA, the Canadian Food and Drug Directorate (FDD) had swiftly approved its sale (under the Kevadon brand). Subsequently a Canadian firm, Frank W. Horner Ltd, was allowed to begin selling another thalidomide product, Talimol.
While on the market in Canada for less than a year, about four million pills were sold according to most estimates. As many as a million more were given away as samples. In fact Canada was among the countries worst hit by thalidomide—there were more than 120 official thalidomiders and doubtless others unrecognised.
In countries including Germany, the United Kingdom and Australia, thalidomide sales were (largely) halted in December 1961. But in Canada neither Horner nor Merrell saw fit to withdraw thalidomide products from sale until March 1962. Instead, in early December 1961 both sent equivocal letters to doctors, breaking the news as gently as possible. Horner’s letter dated 7 December 1961 (a full week after the news from Germany had arrived) said it had ‘just received sketchy information [about the malformations] from abroad’ although ‘whether or not thalidomide is responsible [is] unknown to us at this time’. As a ‘precautionary step’ doctors were advised not to give the drug to pregnant women or to ‘women who may become pregnant’. The Canadian FDD approved this step and for months afterwards believed enough had been done to protect Canadians, despite having no idea whether the weak letters had even been read by doctors. The FDD’s position was, at least, very unwise. Just as in the US, there was little coverage of thalidomide in the Canadian media, and many doctors did not know of the deadly impact of the thalidomide samples in their desk drawers. This is illustrated by the fact that in March 1962 a Canadian expert in birth malformations, contacted by Horner for advice, said he was completely unaware of the thalidomide disaster.
The role of the Canadian FDD was embarrassing. Defending his decision not to force the drug’s withdrawal, the FDD director, Dr C. A. Morrell, later said that in December 1961 ‘it was all unconfirmed reports: Lenz hadn’t published yet. It seemed pretty vague. It didn’t occur to us to withdraw the drug’. The pressure on the FDD ratcheted up in late February 1962 when Time magazine pointed out that the drug was still being sold in Canada. More media attention raised the temperature further and, finally, on 2 March 1962, Morrell wrote to the companies politely asking them to withdraw their thalidomide drugs from sale. Despite being charged with protecting the health of Canadians, Dr Morrell was anxious not to cause offence to the peddlers of thalidomide. He was only asking for the withdrawal because of ‘increasing demands from Canadian physicians, as well as certain other pressure’. He finished with a grovel: ‘I regret very much having to take this course of action and can only hope for an early resolution of the problem.’
A few days later, in early March 1962, the drug companies wrote to Canadian doctors noting that the sale of thalidomide medications would cease. But these letters were far from effective. A month later, in April 1962, the news magazine Maclean’s found thalidomide available at many pharmacies. On 10 April 1962, the FDD finally took direct action, writing to doctors directly and ordering inspectors to recover thalidomide from pharmacies.
The delay in getting the drug off the market in Canada had a human cost. About thirty Canadian thalidomiders were exposed to the drug after 1 December 1961, the day Merrell and Horner doctors flew to Germany to investigate the malformation question. These survivors and their families had every right to be outraged that it took another four months to raise the alarm and get thalidomide off the shelves in Canada.
Once the disaster was public, Grünenthal had no trouble seeing the future. Thalidomide was a complete and unmitigated catastrophe, shaping as the most notorious pharmaceutical disaster ever. There were thousands of victims in Germany and thousands more elsewhere. The company suspected its executives would be hit with a criminal prosecution and that victims of nerve damage and malformations would besiege it with lawsuits. Its licence partners were deeply unhappy. Grünenthal knew it had behaved shoddily in many respects—its own legal department had said so repeatedly. The company’s reputation was going to take a fearful beating. Grünenthal was in a fight for survival.
Naturally it was up for the fight. Within a few days of the withdrawal, Grünenthal had efficiently switched focus from selling the drug to avoiding legal blame for having done so. One of the first orders of business was to prepare for the inevitable law suits and prosecutions. On 27 December 1961 an internal memo resolved to ‘do everything we can today to not only secure expert witnesses for a legal dispute, but above and beyond this the support of all serious pharmacologists, doctors of internal medicine and neurologists’. Winning support among the medical profession included a further bout of disinformation. In February 1962 Grünenthal advised a professor at Bonn’s Institute of Forensic Medicine that at the end of 1960 it had ‘practically not heard any reports’ about nerve damage following thalidomide use. This was a ridiculous lie.
In February 1962 Grünenthal was sounding a tougher note. It decided that all doctors who make ‘negative statements have to be worked on emphatically in order to change their opinion or at least make them neutral’. Consistent with this approach, Grünenthal waged legal war against one of its key critics, the neurologist Horst Frenkel, obtaining a court order to stop him making claims about Grünenthal’s negligence.
Widukind Lenz, of course, had not escaped Grünenthal’s attention. In June 1962 Grünenthal thanked Distillers for refusing to provide information to Lenz. ‘I am sorry to say that Dr Lenz has been making a number of false allegations at the various congresses and conventions which have been held. We do not intend to take any action in the matter at the moment, but there will certainly come a favourable opportunity for putting a stop to it.’
Many at Grünenthal saw Lenz as the enemy, rather than as a man who stopped Grünenthal’s drug maiming babies. The same attitude applied to the neurologist Frenkel. One Grünenthal employee wrote:
When considering how many countless psychic traumas have been produced by the contributions made to the discussion by Dr Lenz, and still more by the sensational reports of the irresponsible gutter press, I cannot regard Dr Lenz’s behaviour as responsible. What Goethe once said applies to him as it does to Dr Frenkel. Fools and wise-folk are both harmless. Those halfwits and half-educated people who recognise only half-truths alone are dangerous.
The feeling was somewhat mutual. In mid-1962 Lenz rebuffed an attempt by Grünenthal to examine his medical reports. ‘The whole material is available to interested doctors for serious scientific analysis. If you can demonstrate that you belong to this group, you are welcome to examine my collection.’
Some of Grünenthal’s communications during this period were not quite as headquarters might have intended. A Grünenthal sales representative reported to her bosses that she had shocked one doctor by revealing one of the popular uses of Contergan. ‘Prof. W. was initially aghast when I informed him that [Contergan] was known in Bonn as an abortive drug.’ What possessed the sales rep is not known, but the claim is mind-boggling.
On 27 March 1962, Grünenthal’s legal department weighed in again. It questioned the company’s past enthusiasm for calling the drug non-toxic given the ‘general experience that side effects of a drug often remain hidden for a long time and do not emerge until it has seen broad application, particularly since thalidomide was a new substance which was not even subject to [prescription]’. The Grünenthal lawyers gave their colleagues another lashing in relation to nerve damage but argued, hopefully, that Grünenthal was not guilty in relation to the malformations.
But there was a caution. ‘This does not mean, however, that trials on account of malformations or deformities are without any risk.’ If experts were to find that Grünenthal should have tested thalidomide for an effect on the foetus before putting the drug on sale, the lawyers warned, then ‘it might only be a small step to being found guilty in a civil trial. Therefore, it is very important for us to prove that testing of Contergan for teratogenic properties, according to scientific knowledge at the time, was not necessary’.
By 4 April 1962 a new topic was concerning Grünenthal’s lawyers: how to prepare for the likelihood of losing civil trials. The answer was to improve Grünenthal’s reputation through ‘intensive but very carefully and tactfully managed public-relations efforts’. Heinrich Mückter, set to face criminal charges over the drug, had another bright idea. In April 1962, he suggested the company drop the use of the trademark Contergan in all ‘publications, discussions, etc.’. Instead, Mückter wrote, the ‘scientific term thalidomide’ should be used, thereby distancing Grünenthal from its drug.
Grünenthal’s ideas for damage containment were flowing thick and fast. On 19 April 1962, it gave close consideration to the potential financial cost of the disaster, which it figured to be massive. There were some small bright spots. Some ‘unsophisticated’ victims who had an ‘innate fear of courts’ would settle for ‘relatively small sums’. Other victims might be deterred by a legal argument that they had waited too long and had now lost the right to sue. But Grünenthal’s lawyers recognised that this last manoeuvre would be a public-relations blunder. ‘As far as the press is concerned, this would be to our detriment in a way that we would not recover from.’
Probably the most determined Grünenthal tactic of all was to keep maintaining for many years—and right through the criminal trial in 1968–70—that there was no conclusive proof that thalidomide caused malformations or nerve damage. Perhaps this was excusable amid the trauma of early 1962. But the longer it went on the more difficult it was to see it as anything other than a legal tactic. Widukind Lenz put it best (and mildly) when he wrote: ‘Grünenthal continued to deny the teratogenic effect of thalidomide for years, but there was a growing suspicion that this was not due to honest ignorance but to the purpose of weakening the accusations against the firm.’
The lengths Grünenthal went to were remarkable. In the lead-up to the criminal trial it tried to promote a theory that thalidomide might actually have been foetus-saving, rather than foetus-maiming. The theory asserted that thalidomide did not damage the foetus, but on the contrary somehow allowed otherwise badly damaged foetuses to survive until birth rather than being spontaneously aborted.
If the idea of being sued by thousands of victims was a nightmare for Grünenthal, then so too was the prospect of criminal charges for its executives. The wait was brief. State prosecutors started investigating Grünenthal almost immediately after thalidomide was withdrawn from the market, and soon assembled a mountain of evidence. Some of the documents were seized during police raids on Grünenthal.
In 1967 the prosecution confirmed it would pursue serious criminal charges—including negligent manslaughter—against nine Grünenthal executives, and produced an indictment of nearly one thousand pages. Forty-five years later the indictment and supporting material was a valuable resource for Lyn Rowe’s legal team.
The trial started in May 1968, but not before charges were dropped against the Grünenthal founder and managing director, Hermann Wirtz, who was deemed too ill to stand trial. The remaining defendants hotly contested the allegations. Heinrich Mückter, the man who wanted to keep selling thalidomide even after Lenz’s bombshell, declared the charges against him a ‘gross injustice’.
Within days the trial descended into farce. Proving that thalidomide caused nerve damage and malformations should have been a formality, but instead proved a cesspit into which the trial sank and never fully emerged. Witnesses failed to show up, the lawyers argued bitterly over everything, experts were dragged through days of irrelevant testimony, and long hours passed as dull pieces of transcript were re-read to the court.
Amazingly, Grünenthal managed to find witnesses to assert that thalidomide did not cause nerve damage or malformations. Professor Erich Blechschmidt, a prominent embryologist, dismissed as ‘pure speculation’ any suggestion that thalidomide was to blame. ‘From an embryological point of view one can certainly assume that thalidomide is not the cause of malformations.’ This was bizarre. Serious scientists the world over were utterly convinced of thalidomide’s danger. The drug had been banned everywhere. Numerous countries had changed their pharmaceutical laws because of the disaster. Grünenthal’s licensee companies in Sweden and the UK were busy agreeing to pay compensation. Frances Kelsey was a hero in the US for saving the country from a massive death and injury toll. And even some of Grünenthal’s own staff had admitted internally that the drug caused nerve damage and malformations. Yet Grünenthal produced a string of scientists to parade before the court denying the obvious.
How could this be? A parallel is the tobacco industry, which for years managed to find apparently reputable doctors to deny the link had been proven between cigarettes and cancer. There is an expert for just about any belief and Grünenthal found doctors prepared to argue the ridiculous.
The prosecution also underestimated Grünenthal’s ruthless approach. One example illustrates the lopsided battle. Lenz, the man who exposed the drug as a killer, was in the witness stand for weeks, gave devastating evidence for the prosecution, and withstood twelve days of fierce cross-examination by Grünenthal’s lawyers. At one point, Lenz was asked if a virus, rather than thalidomide, might have been the cause of the malformations. Pointing to the absence of malformations in East Germany, where the drug was banned, Lenz declared that a virus would not have stopped at the border and dismissed the theory as absurd.
But Grünenthal had the last laugh. It applied to have Lenz’s evidence excluded, claiming that he was biased towards the victims, ‘obsessed with his position’ and demonstrated an ‘almost religious conviction’ in his anti-Grünenthal mission. Incredibly, the judges accepted Grünenthal had a basis for fearing Lenz might be biased, though the Court was careful not to find actual bias. Lenz’s evidence was excluded, a terrible blow for the prosecution.
Characteristically, Lenz refused to be upset by the Court’s decision, admitting that ‘my sympathy has not been equally shared between the company and thalidomide victims’. But, Lenz said, he had been careful to give clear and unbiased evidence. ‘Though the decision by the Court not to admit my testimony came to me as a surprise, I decided to take it as a compliment to my moral engagement rather than as an offence to my scientific honesty.’
In Germany in 2012 I met with one of the lawyers who worked as a junior member of the prosecution team during the 1960s. The lawyer, who asked not to be named, cited the failure to secure convictions as one of the low points of his very long career. Even forty years on, the man could recite a litany of regrets. ‘It was a shame. There was a strong case against Grünenthal, but it all went wrong quickly. The public supported the prosecution because there was such horror about what thalidomide had done. But we got stuck and made little progress. And soon the goodwill evaporated.’
The elderly lawyer was right. The criminal trial was a debacle for the prosecution. All of its careful, painstaking and incredibly thorough preparation was essentially for naught. Grünenthal’s numerous high-powered (and expensive) lawyers overwhelmed the government team.
The former prosecutor said one key error was spending so much effort on proving thalidomide’s dangerousness. The tedious battle had been exhausting and irritated everyone including the judges. Instead, he thought, the prosecution should have trusted the judges to make the obvious finding, and quickly moved on to Grünenthal’s outrageous behaviour: the lack of proper testing, promoting thalidomide as safe in pregnancy, the disgraceful response to the surge of nerve-damage reports and the mishandled malformation reports. That, the lawyer thought, would have further exposed Grünenthal, stiffened the resolve of the judges and done something to prevent the trial descending into the unedifying slog it became.
For its part, Grünenthal was leaving as little to chance as possible. Archive documents show that in July 1969 it met with the government—no victims present, though Hermann Wirtz, the Grünenthal boss excused as too sick to stand trial, apparently managed to attend. By September 1969, several government departments were discussing a solution that would end the trial: again no victims involved. By this time, quite bizarrely, the Justice Minister for the state which was prosecuting Grünenthal was Dr Joseph Neuberger: his law firm had worked for Grünenthal and he had personally represented Hermann Wirtz.
But in January 1970, with the trial in its second year and stuck deep in the mire, Grünenthal was ready to play its trump card: an offer to pay 100 million marks as compensation to the children, provided that all civil suits against it were abandoned. In April 1970 the organisation representing the increasingly desperate thalidomide parents accepted the offer, and the German Government came to the party with another 100 million marks. The money went into a foundation to make a one-off payment to victims followed by an annual pension for life.
The emotional impetus had now gone out of the trial and there was increasing pressure for it to be abandoned. The hearings dragged on, but in December 1970, with the agreement of all parties, the trial was suspended. Even Karl Schulte-Hillen, the lawyer representing the children’s interests, agreed to the suspension. ‘We can’t afford to spend any more time on legalistic problems,’ he said. ‘We have other problems of education and health.’ The court delivered a judgment in 1971, dismissing the proceedings and heavily criticising Grünenthal and its executives. For Grünenthal this amounted to nothing more than a light slap. The criminal prosecution was now at an end and soon it would be business as usual at Stolberg, but with a gleaming silver lining: Grünenthal was gifted protection from further prosecution or lawsuits in Germany thanks to a special law passed by the German Government.
For the drug’s victims, it was a less happy story. The compensation fund proved vastly inadequate: as recently as 2012 a German victim with severely shortened arms and legs received about 15,000 euros a year from the fund—at the time about US$20,000. Poverty, depression and ill-health were rife among German thalidomiders, in part as a result of their woeful financial support. In 2013, finally, the German Government stepped in, increasing pensions by up to five hundred per cent, recognition of just how pathetic the pre-existing compensation had been. Grünenthal did not assist the German Government with this 2013 initiative, a failure bitterly criticised by some thalidomiders. Notably, Grünenthal’s failure to contribute came not long after the so-called apology speech during which Grünenthal’s CEO had emphasised the company’s deep sympathy for thalidomide survivors.
UK thalidomiders who have met with Grünenthal in recent years seeking compensation payments are dismissive of the company’s attitude. ‘I don’t sense they feel their responsibility even today,’ one UK activist has said. ‘I think they’re waiting for us to die.’
No doubt Grünenthal’s owners and executives—who had nothing to do with the original disaster—wish they were not haunted by thalidomide. Yet the company’s ham-fisted public relations ventures do nothing to ease attacks on it. Sometimes Grünenthal’s clumsy behaviour is simply astonishing. Thomas Quasthoff, who was born with dramatically shortened arms and legs as a result of his mother’s consumption of thalidomide, carved out a stellar international career as a bass-baritone and also studied law and worked as a university professor. In 2012 the German newspaper Der Spiegel asked him if he felt anger towards Grünenthal. ‘There was certainly some anger there,’ Quasthoff responded. ‘I remember getting a call from Grünenthal once. They asked me to sing at their Christmas party. I said: “You must be out of your minds!”’
For fifty years Grünenthal has clung to the notion that it did absolutely nothing wrong in relation to the death and damage to babies wrought by its drug. Sometimes Grünenthal has appeared desperate to exonerate itself. In 2007, Grünenthal executive Sebastian Wirtz, a member of the founding family and grandson of one of the men charged with criminal offences, told a journalist:
It’s extremely difficult with our perspective to look back to this time when the events happened. The court said there was no way Grünenthal could have known that the sedative could have these dramatic effects. According to everything I have read and heard, there was no way the tragedy could have been avoided. The tragedy for the Wirtz family is that we cannot undo it.
Wirtz’s comments prompt the question: what exactly had he ‘read and heard’? For example, had he read the documents which detail the red-flag queries to Grünenthal about thalidomide-related malformations by Dr K (1959), pharmacist Koch (1960) and Dr Brandt (1961)? Or perhaps Wirtz was relying on Grünenthal’s sanitised version of history, ‘The Thalidomide Tragedy’ which read like the product of an in-house public relations team, and was full of errors and misrepresentations. For example, it claimed that it took more than two years after the tragedy to find proof of the malforming effect of thalidomide in animal experiments. The truth is that Distillers found hints within weeks and proof in just a few months.
Wirtz’s claim that the tragedy was unavoidable is a fallacy. So too was any claim that the court hearing the criminal charges against Grünenthal executives had exonerated Grünenthal. First, the criminal trial was abandoned before the responsibility for malformations was properly considered. ‘No actual taking of evidence has occurred,’ the judgment said. Second, the court said that, had the trial continued, it ‘is possible that further taking of evidence would confirm the predictability of malformations’.
Perhaps Grünenthal’s most treasured claim is that it tested thalidomide properly by the standards of the time. In 2012, during his ‘apology’ speech, Grünenthal CEO Harald Stock issued Grünenthal’s standard defence. ‘Grünenthal acted in accordance with the state of scientific knowledge and all industry standards for testing new drugs that were relevant and acknowledged in the 1950s and ’60s. We regret that the teratogenic potential of thalidomide could not be detected by the tests that we and others carried out before it was marketed.’
These comments might be interpreted as suggesting a diligent Grünenthal tried to check whether the drug could damage babies before putting it on the market, but, sadly, the tests were not up to the job. That interpretation would be flat wrong. Grünenthal did not bother to attempt to check thalidomide’s effect on the foetus. Instead it just put the drug on the market and vouched for its safety.
Likewise, the German criminal court did not approve Grünenthal’s testing. The 1971 judgment did not examine in detail what tests could have been undertaken, and said that had the trial continued it was possible the prosecution would have established that Grünenthal had grounds to suspect the teratogenic effect of thalidomide. If that were the case, the court said, Grünenthal should have conducted tests on pregnant animals and should have pointed out the lack of information about pregnancy safety to doctors and consumers. Grünenthal did neither.
Still, even the most trenchant Grünenthal critic has to admit that the company and its lawyers did a masterful job in defeating the criminal prosecution. Through a tough and determined battle, Grünenthal built the pressure which saw the trial collapse. Its executives escaped without penalty and a finding of only minor guilt. All things considered, the outcome was an unlikely triumph for Grünenthal and a glorious victory for its fleet of lawyers.
As the Australian litigation wore on I eventually came to believe that Grünenthal’s success in the criminal trial had given the company a deluded sense of righteousness. The defeat of the prosecution, it seemed, had wormed its way into the company’s DNA and found enduring expression in Grünenthal’s absolute conviction that it had no case to answer in relation to thalidomide malformations. This ‘innocence’ remains a Grünenthal bedrock, a foundation stone for the modern company. And I was certain that this belief would translate into its approach to Lyn Rowe’s claim. Grünenthal would concede nothing. Ever. Grünenthal believed it had done nothing wrong. A criminal court had said so. Well, it hadn’t actually, but Grünenthal didn’t seem to know or care.