By the end of 2011 it looked as if Lyn and her parents would get what they wanted: a trial in 2012. On 21 December 2011 Victorian Supreme Court justice David Beach gave a clear preview of his intention. ‘I don’t think you’re going to get any resistance to the notion that this case should move as expeditiously as reasonably possible to a trial date,’ he told the assembled lawyers at a court hearing.
But soon we had to weather an attempt by both Grünenthal and Distillers to send us back to square one and start formulating Lyn Rowe’s claim over again. At a hearing on 26 June 2012, our opponents tried to persuade the judge that Lyn’s statement of claim should be struck out on the basis that it was confused and did not clearly set out the case that Lyn was making against the defendants. We had laboured over the statement of claim, a twenty-six-page document which accused Grünenthal and Distillers of negligently causing Lyn’s birth injuries and laid out the legal basis for the fight ahead. Naturally we thought it was cogent and precise, but Grünenthal and Distillers (equally naturally) disagreed.
The Grünenthal barrister made a detailed argument to the judge for ditching the statement of claim and having us start again. We felt that the arguments were weak and that Grünenthal was overplaying its hand. But if Grünenthal was successful it would cause real delay and probably end the prospect of a trial in 2012.
So we were relieved when Justice Beach delivered a strongly worded decision on the spot, allowing Lyn’s statement of claim to stand, and declaring that he was disinclined to be dragged into expensive and legalistic time-wasting. ‘The resources of this court are too scarce to engage in what might prove to be lengthy and entirely sterile debates,’ the judge ruled. ‘The impression I have in this case is that the parties broadly know the cases each other seeks to bring…I suspect at trial many of the shadows that are currently being boxed at will disappear.’
Another dispute to be resolved was the trial date. The judge had floated October 2012 as a possibility, which had not pleased Grünenthal and Distillers. It was much too soon for them, a position viewed in our office as somewhat amusing. More than fifty years after their drug had wreaked havoc, Grünenthal and Distillers did not want to be rushed to trial. As Justice Beach himself remarked when Distillers’ barrister suggested October 2012 was an unrealistic start date for the trial, ‘This proceeding’s been on foot for a couple of years. It relates to matters that occurred fifty-plus years ago.’
The proposal for an October 2012 trial delighted us. Wendy and Ian would soon be unable to care for Lyn, and the whole Rowe family wanted a result quickly. A win would secure her future. In the event of a loss, other plans would have to be made. And as Lyn’s lawyers we had our own reasons for wanting a speedy trial. Nothing forces reason and sanity on lawyers and litigants like a looming trial date. We believed that the pressure of a trial might force the defendants (and us for that matter) to resolve some of the issues in dispute and hence limit the scope of the trial, making it a much less unwieldy beast.
Of course getting Lyn’s case ready for a trial date a few months away was a tall order. There were tens of thousands of documents to be examined, expert witness statements to be prepared, medical evidence to be mastered. But a heavy burden would also fall on the defendants, who knew by now they were facing a strong claim, aggressively prosecuted.
At another hearing in June 2012, Grünenthal’s barrister pushed again for a trial in 2013 rather than 2012, in part because of the difficulty caused by the fact that the men involved in thalidomide’s development and sale are ‘essentially all dead’.
Distillers’ barrister agreed. The claim, he said, was forty years out of date.
All lay witnesses are dead. Relevant experts are very hard to procure. Experts who would really know what evidence to give are dead. Discovery is enormous. If the defendants were to be successful…they’re unlikely to have their costs paid by the plaintiff. How many cases present those kinds of features?
One major hurdle in the case was discovery, the process by which each side in a legal dispute gives the others their relevant documents. This exchange of documents often surprises non-lawyers. But litigation is not supposed to be an ambush, during which opponents try to spring new material on each other. Parties to litigation are supposed to lay their (documentary) cards on the table and conduct an open fight with access to the same material.
In Lyn’s case the discovery problems arose largely because most of Grünenthal’s relevant documents were in German and, being about fifty years old, reportedly in a somewhat fragile condition. Distillers’ documents were similarly long in the tooth, but at least they were in English. By May 2012 Distillers had already discovered fourteen thousand documents to us, and its barrister told the court there were ‘three hundred and fifty boxes of documents in the United Kingdom which have not yet been gone through’.
Grünenthal’s discovery was even bigger. It said it would not complete analysing and handing over an estimated 620,000 German documents until March or April 2013. Distillers, which as well as defending Lyn’s claim was (as a fallback position) trying to push any responsibility for compensating Lyn onto Grünenthal, had done some work on the problems posed by the German discovery. ‘They’re virtually all in a foreign language,’ the Distillers barrister complained to the judge in June 2012. ‘They’re not very legible…if you just assume that only ten per cent of the documents discovered so far have to be translated from German to English, then that would require ten translators working more than ninety working days, that is eighteen working weeks to translate those documents.’ That, the Distillers barrister argued, was a good reason for a later trial. He then turned to the Rowe family.
Now one cannot but be moved, Your Honour, by the position of the plaintiff and the injuries she lives with. However, there isn’t in truth the kind of urgency that demands a trial in October [2012] versus a trial in mid next year. Her parents have been looking after her for many years, but although they’re ageing, there isn’t a suggestion there’s an immediate medical issue concerning her parents.
We had been dealing with the problems presented by the size of the discovery for months at that point. It was clearly a very unusual case, in that so much would turn on tens of thousands of old documents, many of them in German. Almost every single Distillers and Grünenthal manager and scientist from the thalidomide era was dead, so those documents were crucial.
The English-language Distillers documents were sent over in regular bundles by Distillers’ lawyers. Our whole office—lawyers and non-lawyers—worked together on them as they arrived, keeping pace with the steady in-flow. Every single document was read and then coded as to subject matter, where it fitted into our case theory and for importance. Many were irrelevant, but our ‘critical’ category soon filled up. Reading the Distillers discovery was fascinating and horrifying, a chance to peer back into history and watch the developing catastrophe. An informal competition developed in the office over who could identify the ‘document of the day’—the document best for Lyn’s claim and most damaging for Distillers.
Grünenthal’s documents were a different story. Using the criminal indictment drawn up by the German prosecution team in the 1960s—and thanks to the arduous work of Nina Stähle and our other consultants in Germany—we had already found many of the critical documents we needed. These were sent to our ever-growing team of German–English translators. Soon we became convinced of our ability to win a trial against Grünenthal on the basis of the damning documents we ourselves had obtained from the archive and other places. We were checking the Grünenthal discovery but it was yielding little of real importance given what we already knew. We already had most of what we needed.
Another strong argument for a speedy trial was that we had ageing witnesses, most crucially (but not only) Wendy Rowe. Wendy was in good health but there was no point taking any risks. If she were to become seriously ill or worse, then the loss of her evidence would be a severe blow. Self-evidently Wendy would be the most important witness in terms of establishing that Lyn had been exposed to thalidomide. In short we wanted a trial, and we wanted it quickly.
To our relief, and despite the opposition of Grünenthal and Distillers, Justice Beach listened to the various arguments and ruled that the trial would start, as proposed, in October 2012. ‘As all sides have said on a number of occasions, many of the witnesses are, by virtue of the relevant facts having occurred long ago, old. They will not survive forever.’
The judge said that much of the defendants’ objection to a 2012 trial focused on the size of the discovery and the difficulty in identifying relevant documents which had to be turned over to Lyn Rowe’s legal team. ‘It is difficult to believe that more than fifty years after the events that give rise to this proceeding, the defendants have not previously already identified the most relevant documents.’
The trial date was now set for less than four months away, and we redoubled our efforts.
By the middle of 2012 we felt we were in a strong position. For months we had worked to strengthen our weak points and to refine and test our case theory, including at a two-day retreat at which all members of the team presented papers on various aspects of the case, exposing themselves to rigorous cross-examination.
Some issues that had plagued previous thalidomide claims would not be an issue for us. In the 1960s the lawyers for the UK children worried that the fact that their clients were exposed to thalidomide as four-to-eight-week-old embryos might prove fatal to the claims. Did an embryo or foetus even have a legal personality? Could it be owed a duty of care? In a paper addressing these issues they predicted that the complex and somewhat undecided questions would ultimately be decided in the children’s favour. More than forty years later these issues had been long settled and were of no concern to us: children now are clearly capable of suing over injuries received prior to birth.
Other issues would be hard fought. We were confident we could establish Grünenthal and Distillers had behaved negligently and should have foreseen a risk to Lyn. Their failure to test thalidomide in pregnant animals was just a part of our argument. More basically, both companies had pushed a drug they knew had a severe side effect (nerve damage) as extraordinarily safe and suitable for use in pregnancy, without ever trying to check its effect on the unborn baby. Both companies knew about the vulnerability of the foetus, and both knew that some drugs should not be given in pregnancy. In the US the FDA’s Frances Kelsey, with a fraction of the information available to Distillers and particularly to Grünenthal, had worried about thalidomide’s effect on the foetus. Neither Grünenthal nor Distillers ever even tried to follow up women who had taken the drug during early pregnancy to check whether their babies had been harmed.
More damaging for both Grünenthal and Distillers were the reports they had received of birth malformations. We knew Grünenthal had been asked by suspicious doctors and a pharmacist whether thalidomide might be responsible for birth malformations. But the German company’s staff had appeared astonishingly uninterested in the issue—they denied any possible connection and made no investigation or inquiry. As for Distillers, its Australian office had been warned by Dr Bill McBride in June 1961 that he believed thalidomide had maimed and killed several babies. But the Distillers team had kept promoting the drug. Of course we’d face a fight from both defendants: there would be vigorous assertions that drug companies in the 1950s could not have been expected to test drugs in pregnant animals, and that even had such tests been conducted no problems would have been detected. The defendants would argue that the fact of nerve damage in adults implied nothing about any possible risk to the foetus. And Grünenthal and Distillers would also seek to minimise the legal relevance of birth malformations reported in Germany and Australia. We knew there would be lots of heat and noise around these issues, but we believed we had a much stronger hand than our opponents.
The other key issue we felt confident about was proving Wendy Rowe had indeed taken thalidomide. We had a compelling, if circumstantial, case. Half a century later we did not have the bottle or the pills, but Wendy was very clear that she had taken Distaval, and her sister-in-law Margaret remembered Wendy taking the medication. Plus, there was the evidence of other family members, and Dr Ron Dickinson, who had delivered Lyn, had told us that free Distaval samples had been delivered to the medical practice where he and Dr Indian worked. Our team of medical experts would give evidence as to how thalidomide worked in the body and the way in which it caused Lyn’s total absence of arms and legs. The doctors would also rule out a known competing genetic cause for Lyn’s condition.
That left one major legal issue hanging. In some ways, it was the gateway issue. Had Lyn simply left it too long to bring a claim? A probable interpretation of the Victorian law was that her time to bring a claim had long expired. She had simply taken too long. This was Lyn’s statute of limitations issue. But under the relevant law, the judge had the power to give Lyn an extension if he thought it ‘just and reasonable to do so’. In making that decision, the judge could consider a range of factors. These included the length of, and reasons for, Lyn’s delay in bringing her claim, the prejudice or difficulty the long delay would cause Grünenthal and Distillers at trial, whether a fair trial was possible so long after the relevant events, the extent of Lyn’s injury, and the ‘nature’ of Grünenthal’s and Distillers’ past conduct.
So we had to mount a persuasive argument that it would be ‘just and reasonable’ to allow Lyn to bring her claim years late. Constructing the argument was, in the end, straightforward. The compelling facts of Lyn’s case spoke for themselves. Lyn was terribly injured by the drug and she and her family had lived in difficult circumstances ever since her birth. The family was flat out coping with Lyn’s care needs and finding the money to survive. Wendy had been told by her own doctor that it was a virus rather than thalidomide that had been to blame, an inexplicably misplaced piece of advice, but one that nevertheless ended any prospect that Lyn would bring a legal claim as a child. Grünenthal and Distillers would not suffer unreasonable prejudice if Lyn was allowed to bring her claim late. Both companies had defended thalidomide claims in the past and had vast archives of material recording the thoughts and positions and actions of their former thalidomide executives and scientists. They could rely on this material in court. A fair trial clearly was possible. Finally, the ‘nature’ of the companies’ past conduct was a factor. Given that their drug had deprived Lyn of arms and legs, could Lyn really be penalised for not having brought her claim earlier?
Still, despite our confidence, the defendants knew that the long delay in bringing the claim was a potential weakness, and they homed in on it. Grünenthal’s barrister told the court at one hearing that Lyn Rowe might not be entitled to a trial ‘because of the operation of the limitation statutes’. By the end of June 2012 the companies were urging the judge to hold a separate hearing—quickly—to decide whether or not Lyn would be granted an extension. If there was to be no extension her claim was over. There would be no trial and no compensation. Lyn’s future would remain clouded and uncertain.
As it turned out Lyn’s claim never went to trial. On 18 July 2012, Peter Gordon told the Supreme Court that a settlement had been reached in which Distillers (Diageo) had agreed to pay Lyn a multimillion-dollar sum. Grünenthal was not contributing a cent. After leaving court we held a press conference and soon the settlement was making news around the world.
How had it happened? Only days earlier the parties had been frantically preparing and brawling in court over trial dates.
Much of what led to the settlement is subject to strict confidentiality agreements. And in any case there were some matters that we, as Lyn’s lawyers, could only guess at. It is giving away no secrets, however, to say that at some point in 2012 informal talks began between Diageo and its lawyers and Lyn Rowe and her lawyers. The talks were conducted on a confidential basis. The talks progressed and ultimately a deal was reached. In early July 2012 Peter Gordon told Lyn, Wendy and Ian that the battle was over, and that Lyn would soon receive enough money to provide her with first-class care for the rest of her life. (The exact sum remains confidential, ‘multimillion’ being the agreed term.)
The news was given to the Rowes at Gordon’s home and was followed by pizza, beer and wine. It was a happy evening. Lyn, Wendy and Ian were delighted by the result, but not surprised. They had been continuously consulted during negotiations and knew a conclusion was near. Still, the finality and certainty of the settlement drew tears from Wendy Rowe, a departure from her perennial calm. ‘I never allowed myself to hope. There was too much at stake for optimism!’ Wendy said later. Lyn had taken a similar stance throughout the litigation. ‘Right from the start I was in a numb state really and I was very conscious not to think too far ahead.’ On the other hand Ian, despite his family role as a pessimist and worrier, had felt increasingly optimistic. ‘Every time one of the lawyers came out and spoke with us, or we went into the office, the news was positive and I felt a little bit better. I never did anticipate the amount, though. That was a shock.’
Grünenthal was never involved in the discussions and always appeared determined to fight to the bitter end. Why did Diageo take a different approach? In the aftermath Diageo said it was because of its ongoing commitment to properly compensate thalidomiders, and as a result of its genuine empathy for Lyn. It is true that over the years Diageo had demonstrated a willingness to front up to its responsibilities over thalidomide, a stark counterpoint to Grünenthal’s unrelieved stinginess. Good citizenship was clearly part of the explanation for Diageo’s decision to settle with Lyn.
But some of us suspected there was more to it. For one, Diageo is in the business of selling alcohol. It’s an area fraught with legal issues, heightening the value of a good corporate reputation. And sensibly, for a company making its money from a potentially harmful product, Diageo zealously guards its reputation. Diageo’s sustainability and responsibility report for 2013 featured a ‘drink responsibly’ warning on the cover alongside a photograph of its iconic brands, including Johnnie Walker whisky, Smirnoff vodka, Baileys Irish Cream and Guinness stout. The report talks about alcohol abuse, states that some people should not drink at all—including pregnant women—and commits the company to a program to ‘reduce harmful drinking’. In a 2012 disclosure, Diageo said it was ‘subject to litigation directed at the beverage alcohol industry and other litigation. Companies in the beverage alcohol industry are, from time to time, exposed to class action or other litigation relating to alcohol advertising, product liability, alcohol abuse problems or health consequences from the misuse of alcohol’.
Obviously alcohol contributes to and causes harm. Road injuries and deaths, alcoholism, family breakdown, violence, depression, obesity, cancer, diabetes. The list is long. And prominent on that list is foetal alcohol syndrome, where maternal drinking during pregnancy damages the foetus. For Diageo, having the spotlight focused on its history (or, more accurately, its subsidiary’s history) with a notorious product that damaged foetuses could not have been a pleasing prospect.
It’s also reasonable to speculate that PR-conscious Diageo was not thrilled by the thought of going through a very public three-month trial and having Lyn Rowe and her parents give heartbreaking evidence about the plight they’d endured for fifty years. Nor would Diageo have been attracted by the prospect of days of embarrassing evidence about the behaviour of former Distillers employees, or keen to have its relationship with Grünenthal cemented in the public mind. On top of all that, Diageo must have realised that Lyn had a strong claim, including persuasive evidence of Distillers’ negligence. So if Diageo had opted to go through what promised to be an embarrassing, damaging and expensive trial, the likely reward was an order that it pay Lyn Rowe a huge chunk of compensation. And it might well have been even worse than that. We were also asking the court to order extra punitive damages to punish Grünenthal and Distillers for what we said was their unusually appalling past behaviour.
Taken together—the prospect of losing, the issue of reputation, Diageo’s historic commitment to taking a decent approach to thalidomiders—it all made a strong argument for settling. By the eve of the trial the company decided there was little sense in going on.
There must also have been one further factor at play in the decision. Put simply, Diageo could afford it. In August 2012 it announced an operating profit of almost £3.2 billion. The multimillion-dollar sum it agreed to pay Lyn Rowe was not going to break the bank.
Which is not to demean the company’s motives. Peter Gordon publicly described Diageo’s conduct as ‘compassionate and understanding’ and offered deserved praise to the company at a press conference. On the other hand he described Grünenthal’s refusal to consider compensating Lyn Rowe as miserable but unsurprising.
The star of the press conference, however, was Ian Rowe. ‘You don’t need arms and legs,’ he said, ‘to change the world.’ Lyn, who had told us firmly that there was no way she was going to say anything in front of ‘all those cameras’, sat beside her parents during the press conference. ‘Lyn was always prepared to go to trial to get the right result and Wendy and I are incredibly proud of her determination and persistence,’ Ian said. ‘Those pills that Wendy and thousands of other women took fifty years ago have caused so much heartache and suffering, but at least something positive is now being done to put some things right.’ Best of all the compensation would allow Lyn some independence. ‘Most children get away from their parents at some point but Lyn has been stuck with us for more than fifty years now!’
As part of the settlement, Diageo agreed not just to settle Lyn’s claim but also to consider the claims of every other group member. That process turned into a year’s work for Lyn’s team, who moved from working on that one claim to gathering information and evidence on more than one hundred others.
Grace Wilson and Patrick Gordon had already done much of the work, preparing statements and affidavits for many of the clients and their mothers or fathers, but there were many more to do. We needed to assemble the evidence that each of the mothers had taken the drug—and in every single instance this was a difficult, time-consuming case of following very old, very cold leads. We also had to assemble medical records, X-rays, photographs and a pile of other documentation for each and every client. Ultimately, there were 107 cases strong enough to pursue. Many other injured people with whom we were dealing had to be told there was no possibility of bringing a claim, and naturally some of them were unhappy, even angry. People who had believed for fifty years that they were thalidomide survivors were understandably upset to be told either that they were not (if, for example, the drug had not been available at the time of their mother’s pregnancy) or that there was simply no evidence to prove it.
To bolster our eligible clients’ claims we had Professor Trent Stephens fly out from the United States for two tours of Australia, during which he examined about seventy clients and gave his expert opinion about the likely role thalidomide played in causing their malformations. Professor Ravi Savarirayan provided similar reports, and we ordered genetic testing to rule out competing causes in a handful of cases.
We took on extra staff to deal with the workload, including the administrative burden of chasing X-rays and medical records from multiple hospitals dating back to our clients’ childhoods, and by the middle of 2013 the process was complete. Packages on just over one hundred claimants had been delivered to Diageo’s lawyers, Herbert Smith Freehills.
Our clients’ malformations and injuries ranged across a very wide spectrum. At one end were people with, for example, relatively minor hand and finger malformations, or partial deafness. At the other were those with severe injuries to two, three or all four limbs, sometimes in combination with internal injuries. The most severely affected of all of the claimants was Monica McGhie who, like Lyn Rowe, had been born without limbs. Monica’s mother burned herself with hot gravy early in her pregnancy. Unable to sleep because of the pain, she tragically took some leftover sleeping pills that she had been given during an earlier pregnancy. Monica got to know Lyn as teenagers when they were both at the Royal Children’s Hospital in Melbourne for the same operation: the insertion of a rod into their back to treat scoliosis. Monica says her reaction to first seeing Lyn was, ‘Shit, no wonder I freak people out if that’s what I look like.’ She and Lyn became friends, a relationship that made a big difference to Monica’s life many years later.
In 2011, as her own legal case progressed, Lyn and her parents told us about Monica. They knew she had never received any compensation and suggested we contact her to see if she was interested in bringing a claim. We did, but Monica was suspicious, and rightly so. She had looked out for herself for decades and was not about to be taken in by a bunch of lawyers swooping in from the other side of the country. Again, the Rowes played a decisive role. Lyn and Wendy vouched for us, and that eased Monica’s concerns. She then worked closely with us for many months assembling material to help her claim.
As with Lyn’s claim there was much confidential discussion between Peter Gordon (negotiating for our office) and Diageo and its lawyers over the 107 claims we had submitted. Finally, on 2 December 2013, we were able to tell the court, and subsequently a press conference, that the claims (ninety-five Australians and twelve New Zealanders) had been settled for a lump sum of $89 million. The result was a great relief to many of our clients, who greeted the news with tears and disbelief. The compensation was distributed among them according to a complex formula, guided by medical and legal experts, that factored in both the severity of the claimant’s injury and the strength of their legal case. Some clients with less severe injuries received sums in the tens of thousands of dollars. There were others, with catastrophic injuries, who received a multimillion-dollar sum.
One client who received a large payment asked us to send him a cheque, rather than transfer the money electronically.
Two reasons why I prefer a cheque, he wrote to us. 1. I want to take a photo of it. 2. I want to go to the bank and see the look on the teller’s face when I present the cheque—priceless.
Another assured us by email that his money would be well spent. Please thank all and sundry for winning the un-winnable. I plan on living my life the same as before but with just a little bit more luxury around me. Out go the 3 minute noodles and in comes seafood marinara. Thanks Guys xx.
Monica McGhie flew to Melbourne from Perth for the announcement of the settlement. She told reporters that doctors had set her aside after her birth to allow her to die. ‘Then Mum heard me cry, and said “That sounds like a healthy set of lungs there. I want my daughter”.’ Monica said the compensation would provide her with first-rate care and a future she could now face with greater confidence. And she planned a modest gift for her mother. ‘I want to take my mum on a cruise before her time’s up.’
In January 2014, only a few weeks after the settlement, I had lunch with Mary Henley-Collopy in one of Melbourne’s laneway cafes. It was hot and Henley-Collopy was wearing a sleeveless dress. It was an emotional day for her: ‘It’s the first time I’ve ever exposed my shoulders and hands in public in Melbourne.’
I always enjoyed lunch or coffee with Mary, who is funny and interesting and good company. A recognised thalidomider, she had introduced us to the Rowe family in 2010. But on this day, just a few weeks after the $89-million settlement of the thalidomide class action, she was unhappy. Delighted, of course, by the compensation paid to more than one hundred people, some of whom she knew well, and generous with her praise of the legal effort. But she told me she had been feeling depressed and miserable ever since the settlement. ‘I understand all the legal reasons for settling with Diageo,’ she assured me. ‘But part of me screams out that it’s not fair. I want justice and that means getting Grünenthal.’
The sentiment was familiar. Our clients were mostly thrilled with the outcome of the litigation, but Grünenthal getting off scot-free had irritated some. And it had irritated Lyn’s legal team as much as anyone. Our only real regret after more than three years of litigation was that we did not hold Grünenthal to account in Australia. The media picked up on it too. During the publicity surrounding the settlement, there were a number of journalists who seemed to become professionally irate over this, demanding we explain how Grünenthal had squirmed off the hook again.
But you can’t eat revenge. And as much as we wanted to defeat Grünenthal and correct what we saw as a deep historic injustice, our first and deepest obligation was to our clients, almost all of whom had desperate material needs. So when Diageo stumped up an acceptable sum of money we had no sensible—or ethical—option but to accept it and end the proceeding. Our clients were properly compensated, and the case was over. Grünenthal was fortunate, in a sense, that its co-defendant was a company prepared to do the right thing. In this case, doing the right thing meant Diageo paid the whole compensation sum, allowing Grünenthal to pay nothing. After the settlement, Diageo had the option of pursuing its own action against Grünenthal to force it to contribute to the settlement, but that always seemed unlikely. Diageo wanted to put the litigation behind it, and if the cost of that was allowing Grünenthal to escape, then so be it.
Just a few days before the settlement was announced in late November 2013 there had been news reports that Grünenthal had been ordered by a Spanish court to compensate twenty-two local thalidomiders. We had given the Spanish lawyers some assistance and were delighted by the result. But the initial report was sketchy and it took a few weeks to get a copy of the court’s decision and have it translated. When we read the comments by the Spanish judge, Gemma Díaz, we could not have been more pleased.
Distillers was not involved in the case, as it did not distribute thalidomide in Spain, so Grünenthal had to fight it out alone in front of a very decisive member of the Spanish judiciary. Judge Díaz gave Grünenthal’s arguments short shrift, ruling that the German company’s claim it acted with ‘due care’ was false. ‘It is entirely obvious that if a drug which caused [malformations and nerve damage] was put on the market, this was because not all the preventative measures required in order to avoid them were adopted, or because those that were adopted proved manifestly inadequate and insufficient.’
The judge noted that thalidomide had been promoted in Spain as ‘safe, bland and innocuous’ and this resulted in false ‘expectations of safety’ and ‘a situation of permanent risk’. Judge Díaz was also scathing of the decision by Grünenthal’s Spanish agent not to properly inform doctors of the reason for halting sales of thalidomide in late 1961, which ‘without doubt’ played a part in worsening the scale of the disaster in Spain.
The amount of compensation Grünenthal was ordered to pay was not enormous, but it was still a terrific result. It was also an example of a judge cutting through all of Grünenthal’s multiple excuses and justifications and going straight to the heart of the matter. Judge Díaz decided that Grünenthal had marketed an insufficiently tested and unsafe drug as perfectly safe, and had to accept the legal consequences. Grünenthal, naturally, announced an appeal. Sadly, Grünenthal succeeded. In late 2014 a superior Spanish court overturned Judge Díaz’s decision for a series of technical legal reasons, including that too much time had passed since the events in question. The ruling caused much grief among Spanish survivors—‘a hard and low blow’, one said—and relief at Grünenthal.
A growing concern for Grünenthal is litigation in the United States. The case, in which it is being sued by about fifty people, has spent most of the last few years bogged down in a fight about procedural issues. But Grünenthal would be well aware that the only thalidomide case that has ever gone to jury verdict was in the US in 1971. As we’ve seen, it resulted in a verdict of about $15 million in 2012 dollars. The worst-case US scenarios must be giving some Grünenthal executives nightmares.
Or perhaps not. The question of what exactly the Grünenthal elite say to each other around their boardroom table when the subject of thalidomide rears its head has always been imponderable. The executives and controlling family are all wealthy—in the case of the Wirtz family, incredibly wealthy. The family’s net wealth has been estimated at between two and three billion euros. Being a little more generous towards thalidomide survivors would not cast Grünenthal’s Wirtz family owners into poverty.
Thanks to the passage of time, the number of German thalidomiders is dwindling. All but a few are over fifty, with many closing in on sixty. In twenty years the number will have shrunk dramatically. In thirty there will be very few left. When there are no more than one hundred survivors will Grünenthal roll out the red carpet and pay each of them a generous pension? Or when there are only fifty? Ten? Or will even the last surviving German thalidomider have to rely on the German state to provide a pension carrying a measure of dignity?
One of the Wirtz family, Sebastian, the grandson of Hermann Wirtz, who was charged with thalidomide crimes, is said some years ago to have raised privately the possibility of Grünenthal making a radical shift in its financial support of thalidomiders. The details of Wirtz’s plan are not known. And who knows what prompted it. Genuine empathy, one assumes. Whispers found their way to German thalidomiders, whose hopes were raised. And then dashed. In 2009 Grünenthal made a one-off fifty-million-euro contribution to the German compensation fund—its first since the 1970s. That amounted to a grand average of about 18,000 euros for each beneficiary, every one of them a victim of the company’s poorly tested and recklessly marketed drug.
Viewed another way, and putting aside Grünenthal’s profit for a moment, the one-off fifty-million-euro contribution amounts to perhaps two per cent of the Wirtz family’s wealth. In 2013 the German Government stepped in to markedly lift pensions—no contribution from Grünenthal or from the controlling Wirtz family.
And so there has been no dramatic shift on thalidomide from Grünenthal. Instead, the company remains huddled behind its ramparts, defences bristling, clutching hard at its self-serving view of history. When a noted German director made a television drama about the thalidomide scandal—called A Single Tablet—Grünenthal whipped into action, tying up the production in litigation. ‘We resent the insinuation in the film that we behaved with infamy and without moral scruples,’ thundered an insulted Grünenthal chief. Certainly the film had taken liberties with history in the name of storytelling. But while Grünenthal’s heavy-handed attack forced the director into multiple changes before the screening in 2007, it won the company another round of bad publicity and increased the focus on its inglorious history.
Exactly why Grünenthal remains in such a defensive crouch is hard to fathom. Money? Pride? Inertia? Sheer bloody-mindedness? Or more likely at the roof of Grünenthal’s stance is its deluded belief that it never bore legal responsibility for the deaths and malformations. And as Grünenthal reminds everyone, it paid compensation in the 1970s and was given legal immunity in Germany by that country’s government. Grünenthal’s view of its past behaviour is nonsense. But even if it were not, what about a moral obligation? The indisputable fact is that Grünenthal’s drug, massively promoted as ultra-safe, killed and maimed at least ten thousand babies, and probably vastly more.
The men who held the reins at Grünenthal circa 1958–62 and in the years immediately afterwards are long gone, almost all of them dead. They behaved appallingly within a corporate culture that tolerated—even encouraged—their dishonesty, obsession with profit and cavalier approach to safety. None of that disgraceful record need reflect on the Grünenthal of today, which is an entirely different beast. But the Grünenthal of today won’t face up to a fair view of its history. Instead it serves up a battery of highly paid lawyers and a ruthless litigation policy. Not to mention such clueless initiatives as the ‘apology’ which took Grünenthal fifty years to deliver and then served to insult and enrage many thalidomiders.
How will Grünenthal respond to the account of the thalidomide saga in these pages? Perhaps with legal manoeuvres. Certainly it will be dismissed as a demented smear cooked up by a professed enemy. But for every document mentioned here detailing Grünenthal’s poor behaviour in the years thalidomide was on sale, another twenty or thirty lurk in the German prosecutor’s archive and at other sites around the world. For every survivor of Grünenthal’s drug whose story has been told here, there are thousands more whose stories remain anonymous. What if raw material detailing Grünenthal’s activities during the thalidomide era was put on a website for the world to see? Would Grünenthal face reality then? Who knows, but history gives little reason for optimism.
And the point is, it still matters. Grünenthal’s culpability is not just a question of abstract historical justice. Even now it gnaws daily at many survivors, a piling of infuriating insult upon their grievous injuries. When, in 2014, Michael Wirtz, another of the Grünenthal Wirtzes, was granted an honour by the Catholic church for his long-time involvement in charitable works, it sent some thalidomide activists into a fury. There was talk of contacting the Pope. Aside from complaints about Grünenthal’s treatment of thalidomiders, the activists also armed themselves with a 1980 Grünenthal letterhead on which members of the Wirtz family shared top billing with Otto Ambros, the chairman of Grünenthal’s supervisory board. Ambros was, as we have seen, a notorious war criminal, convicted of mass murder and slavery at Auschwitz. Despite Ambros’s shameful criminal background, the activists pointed out, the Wirtz family had afforded him a privileged and influential position at the family company. What might the Pope make of that, the activists wondered.
All these years later it is, it must be said, pathetic that Grünenthal is still so dogged by the actions of men long dead. But the responsibility for that lies solely with Grünenthal. There is nobody else to blame. Not the media, not bad luck, certainly not the survivors. So as long as Grünenthal won’t face up to its past—and as long as it won’t do more to support survivors—it’s only fair that the spotlight shines brightly on its historically shameful conduct.