In March 1972 the parents of six thalidomide-damaged British children were told by a London judge that they no longer had the right to make key legal decisions for their children. This low point in thalidomide legal history did not arise because the parents were guilty of mistreatment or neglect, or indeed of any failing of any sort. The parents’ common sin was that they wanted to reject an utterly miserable compensation package offered to them by Distillers.
To call the offer miserable is to praise it highly. The Distillers offer amounted to less than £10,000 to cover a lifetime of care for a catastrophically injured child. Yet those parents with the nerve to reject the offer were first pressured by their own lawyers to change their minds, and then taken to court so that a substitute guardian could accept the deal in their place. The reason for all this pressure on a few holdout families? Distillers had insisted that every last set of parents had to accept the deal or it would be withdrawn.
This was the sad state of play in the UK in March 1972, more than ten years after thalidomide had been exposed as a deadly drug. The legal battle between Distillers and the children had been a no-contest. The children’s lawyers were overwhelmed and underprepared. The mismatch had limped along for years, effectively going nowhere, largely in secret and protected from comment and publicity by the English contempt-of-court laws, which banned publication of any material that might influence a legal proceeding.
For Lyn’s legal team the history of the vexed UK litigation was something of a touchstone. We were determined to learn its lessons and avoid its pitfalls. One of the keys, obviously, was to avoid the apparent passivity of the UK lawyers. Their job was to force Distillers to pay compensation, either through a settlement or by winning at trial. Yet, partly through the force of circumstance, they seemed to adopt a reactive approach that translated into years of delays and little progress. Meanwhile the traumatised families became increasingly frustrated and desperate. In the finish, it was only the decisive and wholehearted intervention of the Sunday Times newspaper, and the political and public campaign that followed, that led to a half-decent settlement.
The UK thalidomide litigation had its start in mid-1962 when a small group of the parents met and formed the Society for the Aid of Thalidomide Children. The parents agreed to apply for legal aid so that they could find lawyers and start a legal action. But from the outset they were beset by problems. The Law Society, which administered legal aid, believed the children’s claim had no hope. It agreed to dribble out funding for just one test case. A child was selected, and after years of snail-like progress the trial was scheduled for early 1968. But the lawyers were not even close to being ready. In fact, by the eve of the trial they had become deeply pessimistic they could defeat Distillers.
Years later the Sunday Times journalists exposed some of what appears to have gone wrong. The law firm representing the children, Kimber Bull, had stumbled into thalidomide litigation through its commercial work for one of the thalidomide parents. It was not a leader in the field of personal injuries. Legal aid funding for the claim was inadequate and it was doled out stingily, preventing the sort of major investigation necessary to produce convincing evidence of Distillers’ negligence and incompetence. For example, no concerted effort was made to gather evidence that other drug companies tested drugs in pregnant animals, tests which Distillers failed to undertake. Such evidence existed but Kimber Bull did not find it. Kimber Bull’s efforts to recruit appropriate experts to back the children’s claim were also inadequate. It often seemed satisfied with merely sending polite letters to scientists and doctors seeking assistance, and all too willing to abandon the effort at the first sign of a witness’s reluctance or non-responsiveness. And the wrong test case had been selected, a birth too early in the thalidomide era. Because Distillers’ awareness of the risks associated with its drug grew over time, thus increasing its culpability, a better test case would have been a child exposed late in the period, ideally after Bill McBride’s first warning to Distillers.
Not all of these failings can be laid at the lawyers’ door. The inadequate legal aid funding was a real hindrance. Certainly many doctors and scientists were unwilling to get involved in a controversial legal case, and some feared the consequences of giving evidence against the pharmaceutical industry. But, as the Sunday Times journalists would later argue in private, a lack of urgency and a sense of defeatism seemed to pervade the trial preparation. For a very long time the children’s lawyers and barristers appear to have been too readily convinced of the strength of Distillers’ case. One of the surprising grounds for the lawyers’ pessimism was their belief that Distillers could always argue that no matter what its failings had been, the drug had been on sale in Germany prior to its UK launch, and thus had effectively been tested on humans without malformations being discovered. This was a bizarre belief for the Distillers lawyers to hold—‘a remarkable piece of idiocy’, according to one Sunday Times journalist. Grünenthal’s uncontrolled and irresponsible selling of thalidomide did not amount to any sort of test and provided no basis for comfort. In any event, by late 1967, with the test-case trial only a few months away, the lawyers and the families were in a deep hole.
At that point Distillers offered to settle the claims for forty per cent of their value. The children’s lawyers leapt at the derisory offer, intent on salvaging something from the mess. A long analysis by the barristers engaged to act for the children, led by Desmond Ackner, set out the multiple weaknesses of the victims’ claims and justified acceptance of the heavily discounted offer. Some of the pessimism in the memorandum was based on flawed reasoning, though perhaps some was understandable given the lack of a thorough investigation. But the conclusion was clear. ‘We are firmly of the opinion that if the claim proceeds to trial its prospects of succeeding are substantially below forty per cent.’
Distillers had insisted that every single family had to agree or the deal was off, and the lawyers set about persuading their clients to sign. Most families were worn down by the pessimism about their prospects, or were in deep financial need, or were simply desperate for the whole thing to be over. Ultimately all sixty-two families accepted the miserly offer. Some felt they had been unreasonably pressured to do so. Announcing the settlement, Ackner, the children’s barrister, said that had the case gone to trial the children might ‘have failed to recover a penny piece’. The judge overseeing the case trumpeted his approval. It would have been ‘folly’ for the children to refuse such a ‘fair and just’ settlement, he declared.
Matters worsened for the families when their lawyers and Distillers could not agree on the full value of the claims, and hence what the forty per cent figures should have been. So to provide guidance for the negotiations a court hearing was held to assess two of the victims: David, born without limbs, and Richard, who had no arms. The hearing was a legalistic farce. John Prevett, the distinguished actuary who gave evidence for the boys, later said that he thought Justice Hinchcliffe had slept through parts of his evidence. Distillers’ barrister John Wilmers pressed the judge to ignore the effect of inflation when calculating compensation, in part because the government had announced it would control inflation.
The insanity did not stop there. Distillers speculated that even had the boys been born undamaged they might have decided to abandon ‘the chore of earning a living’ and opted out of the workforce entirely. Prevett had cited averages in his calculations of the boys’ life expectancies and this provoked Distillers’ barrister. ‘You would agree, would you not, that no one ever is the precise average?’ Prevett replied that the reasoning behind the question was unhelpful. ‘Never mind whether it’s a helpful line of reasoning,’ came the retort. ‘I want the facts.’
The result of Justice Hinchcliffe’s calculations was even more parsimonious than Distillers might have hoped, or the children may have feared. Hinchcliffe rejected the evidence offered by Prevett that David (born without limbs) needed £106,766 for a lifetime of care needs and lost earnings. Instead, the judge decided, £24,000 for future care was adequate plus £28,000 for the ‘pain and suffering’ of a life without limbs. Applying the forty per cent calculation, David was offered a total one-off payment of £20,800. Hinchcliffe assessed Richard (born without arms) as being due total compensation of £32,000, reduced to £12,800 under the forty per cent rule.
Shortly afterwards an eight-year-old girl named Heather, who like David was born without arms and legs, was also awarded £20,800. During the hearing her barrister, Ackner, compared her circumstances with David’s, mounting an argument in step with the values of the era. ‘It can always be said that a girl may be likely to earn less during her working life than a boy. But it can also be said that to be deprived of the pleasures of marriage and having a family is a greater deprivation for a girl than it necessarily is for a boy.’
Negotiations over the forty per cent sums dragged on for years, during which time almost another four hundred thalidomide-afflicted families joined the fight. During 1971 Distillers made a bulk offer to this further group of £3.25 million. On an individual basis the offer amounted to about half the scrooge-like sums to be paid to the first group of children. Nevertheless at a series of meetings all around the country, the families’ lawyers urged the parents to accept. Many families were bitter and many resisted, yet all but six eventually signed up. At that point their own lawyers made an application to the High Court to remove the six dissenting sets of parents as their children’s legal decision makers and instead allow a government solicitor to stand in their place. The application in March 1972 was successful, and the parents were sidelined. But an appeal heard the following month forcefully reversed the decision. ‘Being in a minority,’ one of the judges declared, ‘is no evidence of unreasonableness.’ Art gallery owner David Mason, the father who had led the minority, afterwards expressed disgust at the conduct of his own lawyers. ‘I had to fight [his lawyers Kimber Bull] and prove I was acting in my daughter’s best interests. It was an incredible situation.’ Mason went on to play a crucial leadership role in the public brawl with Distillers and he remained a vociferous critic of Kimber Bull.
For the moment, though, the settlement was stalled: Distillers would not proceed without unanimous approval, and the hold-out parents would not agree.
Soon afterwards came the crucial intervention. The Sunday Times had been looking for a way to enter the thalidomide fray since 1968, when it had secretly bought caches of Distillers and Grünenthal documents. It had put an investigative team on the case, and had assembled vastly better material about the drug companies’ negligence than had the children’s lawyers. In fact the Sunday Times investigation became something of an inspiration for our own legal effort. I spent days in London studying the Sunday Times files of the period, and was astounded by the scale of the newspaper’s ambition. Its journalists had travelled to Germany, the US and Australia in search of material, interviewing doctors, scientists, pharmaceutical company employees and thalidomide salesmen. Thousands of documents were collated and translated. The newspaper kept at it for years, never stinting on resources or expense. It was an expensive and deeply impressive forensic investigation, marked by the newspaper’s refusal to accept glib assertion as fact and a profound scepticism that the UK legal process would ever achieve anything resembling justice for the children.
But the dynamite assembled by the Sunday Times could not be printed. English laws about contempt of court essentially banned any publication of material that might influence the ongoing legal cases. And the cases were dragging on much longer than any observers, including the Sunday Times, had expected. This had largely prevented the increasingly frustrated Sunday Times editor Harold Evans from printing anything but human-interest stories about victims, straight reportage of announcements and court hearings, and news about thalidomide developments overseas.
The turning point came in 1972. Outraged by a combination of the paltry assessments of the children’s forty per cent entitlements, Distillers’ apparent determination to pay the children as little as it could get away with, and a conviction that the children’s lawyers were not likely to force a better deal, the Sunday Times could wait no longer. On 24 September 1972, the newspaper burst into campaigning mode under the banner ‘Our Thalidomide Children: A Cause for National Shame’. Claiming it was seeking ‘moral justice’ to provide cover against the charge that it was seeking to interfere in ‘legal justice’, the paper savaged the amounts being offered to the children, and called on Distillers to do more. The newspaper drew heavily on the assistance of John Prevett, the actuary whose evidence for the children had been rejected. Prevett’s calculations demonstrated that the amounts allocated for the children’s care were a fraction of what was required and in many cases would run out before the children reached the age of twenty. To the newspaper’s frustration, it was still not able to print anything about Distillers’ flawed behaviour in testing and selling the drug, and had to stick to moral arguments about the level of compensation.
The ongoing Sunday Times campaign kicked off a groundswell of public interest and support for the victims. With the veil of secrecy stripped away, Distillers, for the first time in the decade since thalidomide was pulled from the market, began to feel the force of public odium. Parliament debated the issue; a dogged (and deaf) Labour MP Jack Ashley, led the political fight for the children; a campaign began among Distillers shareholders to force the company to pay decent compensation; a supermarket chain announced a boycott of Distillers products; and the young American consumer activist Ralph Nader threatened to orchestrate another boycott in the United States. Some of the Distillers bosses began to hear mutterings when they went out in polite society. Meanwhile the Sunday Times and other media poured on the pressure, highlighting the plight of the families and their afflicted children, and the wholly inadequate nature of the Distillers offer.
There was also help from an unexpected quarter. Posters were suddenly plastered all over London one night, including over Distillers’ St James Square head office. ‘They said it was safe for pregnant women,’ one read. ‘Like hell it was.’ There were variations on the theme—‘Have a thalidomide old boy. Don’t mind if I do.’ Distillers was predictably enraged and the police hunted for the perpetrator. They never found him. Rupert Murdoch had been much too careful. Not yet the owner of The Times, Murdoch had bankrolled the exercise, appointed one of his tabloid editors to organise it and insisted on strict secrecy. Though the police tore the posters down, the incident caused a memorable fuss and the posters are collectors’ items today.
While the Sunday Times was loudly and publicly orchestrating the campaign, in private it did even more. The children now had a new barrister in charge. Ackner, who had urged the acceptance of the forty per cent offer, had become a judge and was replaced by John Stocker. The Sunday Times had been trying to meet with the children’s lawyers for months, determined to share the fruits of its investigation. The lawyers had maintained a frosty distance, and had urged the families to have nothing to do with the media. Finally, with Stocker in charge, a meeting was arranged. Bruce Page, one of the journalists leading the paper’s investigation, met Stocker. ‘I gave him detailed notes about drug-testing prior to the launch of thalidomide,’ Page wrote in 1998. ‘We could not say reproductive testing had been universal. But we could nail the old myth about its being unknown or ineffective, and show that it had been thought necessary by good companies with comparable products.’ This information hardened the negotiating stance of the children’s lawyers, who wrote to the parents advising that the Sunday Times’ work had improved their prospects at trial.
The newspaper was generous with its information. When Distillers sued its insurer to force it to contribute to the compensation, the insurer made a smart decision. It sent its lawyers to meet with the Sunday Times journalists. Thanks to that meeting, the insurer was able to produce detailed information articulating Distillers’ negligence (and incompetence) in the handling of thalidomide. The approach proved effective. Ultimately Distillers settled for a far smaller payment from its insurer than it had initially demanded.
Over the ten years between 1962 and 1972 the British children’s lawyers had made little impact on Distillers: so little impact that the lawyers had been enthusiastic about settling for heavily discounted sums. Yet within weeks of the start of the campaign by the Sunday Times and its allies, Distillers began to yield to the pressure. Distillers, which had declared a profit of £62 million in 1971 and boasted £247 million worth of whisky maturing in oak barrels, first offered an ungenerous £5 million to its victims. That was met by a chorus of jeers, and a £12 million offer followed. Then in January 1973, Distillers offered to stump up what was effectively £16 million. Finally, in April 1973, Distillers scuttled up to £20 million, six times the £3.25 million that had been on the table only a year earlier. The children’s families and even the Sunday Times pronounced themselves satisfied and the legal battle was over. It was sobering to realise that if the lawyers had had their way a year earlier, and had they been able to force the renegade parents into line, Distillers would have got away with its £3.25 million offer.
Even so, £20 million, when carved up, ultimately proved far too little to provide a decent life for the victims. In recent years Diageo, the company that now owns the Distillers group, has made large voluntary contributions to the UK trust which pays an annual pension to the official survivors. The UK Government has also contributed. The survivors now number about five hundred, though inevitably there are others who have never come forward, or whose evidence is deemed insufficient to prove their claim.
The Sunday Times kept fighting even after the thalidomide children settled. After a series of legal battles over the contempt law, in 1976 the paper published a six-page report trumpeting the result of its lengthy investigation into the development, sale and marketing of thalidomide. This exposé was later expanded into a book written by Phillip Knightley and other members of the newspaper’s investigative team.
For Lyn’s legal team there was much to learn from the UK events of the 1960s and ’70s: the failure of the children’s lawyers, the need for the Sunday Times intervention, the involvement of politicians and pressure groups. That battle underlined the fact that while the courtroom is the main forum in which legal fights play out, it’s not the only venue. Far more so than forty years ago, companies today are sensitive to negative publicity and many place high value on their reputation. And few groups are more worthy of sympathy than people grossly damaged before even taking their first breath. This is not to say that we intended to engage the media to ratchet up the pressure on Diageo and on Grünenthal. We did not. But clearly the companies were aware of the reputational issues at stake. Before one of the early court hearings we heard that Diageo was holding briefings for Melbourne journalists and offering interviews with a London executive, putting its own spin on events. A multibillion-dollar drinks empire, Diageo was obviously going to be more sensitive to public perception than Grünenthal. More importantly, Diageo was a company that wanted to do the right thing, and to be seen doing the right thing, in relation to thalidomiders. Grünenthal was altogether different. As a private family-owned company, Grünenthal lacked the sensitivity that comes with having a large number of shareholders. It also appeared to possess a tin ear for criticism and a passionate determination to fight to the end.
Distillers’ hardline approach to the early thalidomide claims meant that the surviving children were reaching their teens before they were compensated. For the devastated families, the shock and trauma of having severely injured babies had been compounded by the agony of the years-long legal imbroglio.
Distillers was consistent, though. It applied that same hard-hearted approach to its own employees with thalidomide-damaged children: there were at least six such families in the UK and another three Distillers men in New Zealand and one in Australia whose wives had given birth to damaged babies. All of them had to join the legal actions to receive any compensation from their employers. Distillers gave them no special treatment whatsoever.
John Gordon worked as a salesman for Distillers’ New Zealand branch in 1961 and 1962. Eighty-two years old when he talked to us in 2011, he died not long afterwards. The passage of many years had not diminished Gordon’s anger with his former employer. He told us that when he joined Distillers in New Zealand he was given the usual ‘super-safe’ sales pitch for thalidomide and explicitly told to promote the drug for use in pregnancy. He was not told about nerve damage. Gordon worked hard and he remembered the drug as a bestseller.
In about early June 1961 my wife became pregnant with our second child. She had suffered from morning sickness while pregnant with [our first child] and suffered from morning sickness again during her second pregnancy. After she had been sick for a little while I gave her a few Distaval pills to take. I was confident there was no problem with Distaval because of its extreme safety.
Life went on as normal until late in 1961 when John Gordon received a terrifying phone call from his boss: there was a possible link between birth malformations and thalidomide. Sales were suspended. Gordon, of course, became increasingly concerned about his wife and unborn child. ‘Initially we both felt reasonably confident that things would be OK. After all, Patsy had taken only a few of the pills, and the link between thalidomide and the birth injuries was only suspected, not proven.’ But then Gordon started reading reports in medical journals and his optimism faded. ‘Patsy and I were very worried. We were, and are, both devout Catholics and we prayed daily that our unborn baby would be healthy.’
During this period John Gordon’s relationship with his employer deteriorated. He started requesting more information from his head office in Auckland and even wrote to Distillers in London. ‘I wanted to know how they could have told us it was safe to use during pregnancy, when it turned out to have these terrible properties.’
On 15 March 1962 Patsy Gordon went into labour. As was the custom then, John Gordon did not attend the birth.
Later that evening one of the doctors told me that Patsy had given birth to a baby boy, but that the boy had malformed arms and hands. I was devastated even though I had been preparing myself for this possibility for several months. Patsy had been sedated and I didn’t get to see her until the next morning. When I went to see her all she had to do was look at my face to see that something had gone wrong.
The baby boy, Gerard, was in and out of hospital for several years and endured a long series of operations. ‘He has had some very difficult times,’ John Gordon said in 2011. ‘But Gerard was, and is, a very determined person. He has made a success of his life and has a wife and a young son. Both Patsy and I are very proud of him.’
Shortly after Gerard’s birth, Gordon’s attitude to Distillers reached the point of no return. ‘I took [Gerard’s injuries] very badly and was furious with Distillers for having done this to us and other families… At some point I started talking about asking Distillers for compensation, or taking legal action to get some compensation for us and other families who had had babies injured by thalidomide.’
Towards the end of 1962 Gordon was sacked without explanation. He found a job in the medical supplies industry and threw himself into a legal action against Distillers, acting as the de-facto leader for a group of affected New Zealand families. The proceeding dragged on and on for years before, in the mid-1970s, Distillers offered to pay compensation. Gordon was cornered. He felt the money was nowhere near adequate. But the other families were anxious to settle and he wanted to make sure that Gerard had some compensation. He ended up agreeing to the deal, but his bitterness about Distillers never left him.
Distillers took a similarly combative approach to Australian claimants in the 1960s and ’70s. The first writ in Australia was issued for Laura Thompson, a girl born without arms. Thompson sought damages from both the Distillers parent company in the UK and its Australian subsidiary. Distillers argued that its UK arm could not be sued in Australia because it had done nothing in Australia which could constitute negligence. Distillers fought on that legal issue for years, forcing Thompson’s legal team all the way to London’s Privy Council, where in January 1971 the Law Lords finally dismissed Distillers’ argument and gave Thompson the go-ahead to sue the UK company in Australia. Not long afterwards, Distillers settled with the Australian children they accepted as having thalidomide injuries. As in the UK, the Australian settlements proved inadequate.
Grünenthal was every bit as recalcitrant when it came to compensating its German victims. It dragged its heels until 1970 before offering, in the midst of the criminal trial of its executives, to make a contribution to a trust that would pay a pension to German victims. The pensions paid proved so insufficient that in 2013 the German Government (belatedly) stepped in and radically raised them, by up to five hundred per cent in some cases.
In dozens of the almost fifty countries where thalidomide was sold there has been no specific compensation scheme for thalidomiders. They have had to rely on their own endeavours, welfare or charity. Where there has been compensation, either through a dedicated scheme or through legal action, it was, as in the UK and Germany, slow in coming and far from adequate.
In Ireland, Grünenthal’s products were sold by a local distributor. An early assessment found that eighty-seven damaged babies had been born in Ireland, though only thirty-four were accepted as thalidomide survivors by an Irish review board which applied ‘typical’ injury notions.
The official Irish thalidomide survivors had to negotiate with Grünenthal and accepted a pittance in compensation: a lump sum of between 1250 and 4200 Irish pounds and a tiny monthly allowance. The government subsequently added to the compensation, but Irish thalidomiders have long campaigned for further compensation from both Grünenthal and their government.
In Japan, where thalidomide sales were not halted until May 1962, six months after Lenz’s warning, the Japanese company Dainippon and the government refused to offer compensation for a decade. In 1963 the Japanese families initiated legal action and eleven years later, in 1974, a settlement was announced, including a compensation fund, which like everywhere else eventually proved inadequate. But unlike elsewhere, the Japanese thalidomide manufacturer at least offered an appropriately grovelling apology for its appalling conduct, acknowledging the ‘miserable calamity’ inflicted on the children who had suffered ‘unspeakable pain and humiliations’.
Dainippon’s president made his regret even more explicit. ‘We have not been able to extend a helping hand up to now,’ he told a meeting of thalidomide survivors and their families. ‘You probably hate me. That is only natural, and I apologise from the bottom of my heart.’ He then bowed deeply to his audience, before working his way around the room, personally apologising to each of the children.
The Swedish victims of the drug found a legal team that pushed their claims with unusual aggression and confidence. Lawyer Henning Sjöström was a charismatic character who wrote novels and, during a long career, acted for high-profile clients including tennis star Björn Borg. Sjöström took on the Swedish thalidomide cases, and engaged an energetic scientific adviser, Robert Nilsson from the Royal University of Stockholm. In 1965 a writ was filed against Astra, Grünenthal’s Swedish licence partner. The legal battle raged for several years, as much of the Swedish pharmaceutical and medical establishment lined up behind Astra, pushing the orthodox line about the whole thing being an unavoidable tragedy. Sjöström and Nilsson were having none of it. They researched widely and recruited the help of many leading specialists in birth malformations in Europe and the United States, including two of the greats of teratology, Walter Landauer and John Thiersch. The work of the Swedish legal team was well ahead of that of the English lawyers, and Sjöström and Nilsson always appeared confident and aggressive.
In 1969, faced with an increasingly strong case for the children, Astra agreed to a settlement in the form of an inflation-proof annual pension. The arrangement was soon extended to the Danish and Norwegian victims, a total of almost 150 children in the three countries. The pension was far from generous, but it did take in about twenty children in whose cases thalidomide consumption was a matter of apparent doubt.
The United States remains the only country where a thalidomide case has gone to a jury verdict. David Diamond was the first child in the US whose case reached the courtroom. He was born with shortened arms, a damaged spine and a host of other medical problems. David’s mother Joanne had been given pills at a hospital where thalidomide was being used as part of Merrell’s tricked-up clinical trial program. The drug had not been approved for sale by the US FDA, yet Merrell had supplied the Cleveland Clinic with 1500 pills. Merrell’s 1969 defence of David Diamond’s claim did not go well. The lowlights included evidence from Ray Nulsen about his ridiculous pregnancy trial for Merrell, and a former Merrell scientist’s revelation that inconvenient test results for thalidomide had been withheld from the FDA. Reading the increasingly stark writing on the wall, Merrell settled with the Diamonds before the jury was given a chance to come up with a result and a figure.
Merrell then made a decision it later regretted: in 1971 it chose to fight Peggy McCarrick’s thalidomide claim all the way to jury verdict. Peggy had been born with malformed legs and hips. Her right leg was amputated during infancy, and her left leg and hips required extensive surgery. Merrell had assembled what seemed a powerful case, even recruiting Widukind Lenz to give his opinion that Peggy’s malformations were not caused by thalidomide. But if Lenz’s opinion gave Merrell hope, the tide swiftly turned in favour of Peggy. Merrell was forced to admit it had done reproductive testing on other drugs but not for thalidomide. Then a leading expert in birth malformations giving evidence for Merrell admitted that Merrell was paying him an annual retainer and consultancy fees. Frances Kelsey gave important evidence for Peggy, but that was a just a prelude to the appearance of John Thiersch, the scientist who had procured abortions in women with aminopterin. Thiersch gave the court a compelling master class on Merrell’s multiple failings, complete with slideshow.
All of this was orchestrated by Peggy McCarrick’s lawyer James Butler, a charismatic former air force pilot, who told the jury that Merrell had ‘greedy hearts’ and urged them to ignore Merrell’s medical experts and their technical arguments. Instead, he told the jury to remember that Merrell had spread a dangerous, inadequately tested drug around the United States ‘like popcorn’ and had to be held responsible for the consequences. ‘I don’t want sympathy for Peggy,’ Butler told the jury, though of course that’s exactly what he wanted. What he demanded instead was a ‘cool and calculated judgment’. Butler asked the jury for $1.5 million in compensatory damages for Peggy and an extra award to punish the company. ‘Stick it to them to the tune of another million dollars because I think that they deserve it,’ he said in closing. ‘I urge you to do it so that this corporation and other corporations will learn that they can’t play with human life as they did in this case. They can’t take a risk on generations to come. You can do it.’
The jury did as Butler asked. It found for the McCarricks, awarding Peggy a total of $2.5 million and her mother Shirley $250,000. The following month the judge reduced the damages award to $775,000. He told Shirley McCarrick she could accept the reduced amount or face a new trial. That sum was then further reduced in negotiations, to avoid an appeal by Merrell. But even the reduced figure ultimately arrived at was still more than the UK, Swedish and other victims received. Notwithstanding the judge’s interference with the jury award, the case had a sobering effect on Merrell and it settled the remaining US cases. In Canada, after a bitter legal fight, Merrell paid many of its hundred-plus victims widely varying settlements of between $10,000 and $999,000. A million dollars may sound like a lot of money, but it had to last the lifetime of a person with escalating care needs and often without paid employment. Many of the Canadian survivors eventually found themselves in a desperate financial situation, reliant on welfare. In March 2015 the Canadian Government announced a one-off $125,000 payment to each survivor, plus a multimillion-dollar medical fund.
From the outset the thalidomide legal battle was everywhere a mismatch. It pitted wealthy and determined businesses backed by self-interested allies against struggling families anxious for a settlement. In the UK that imbalance almost led to a catastrophe for the children. But in the US, aggressive plaintiff lawyers were able to get the cases in front of a jury and either win a stunning verdict or force Merrell into settlements. Plaintiff lawyers in the United States are frequently denigrated. But it was the US system that delivered the best initial results for thalidomide victims.
The US cases were encouraging even forty years on. Certainly, thalidomide claims were legally difficult. Certainly, litigating fifty years after the event raised the degree of difficulty even further. But the only time a jury had passed judgment on a thalidomide claim, in 1971, it resulted in a US$2.75 million verdict. That was equivalent to about $15 million in 2012. Approached the right way, thalidomide cases were winnable.