Documents raise fresh questions about thalidomide criminal trial
The dark shadow of the drug thalidomide is still with us. The original catastrophe maimed thousands of babies and killed far more: it remains one of the greatest man-made global disasters.
Documents recently unearthed by the UK’s Thalidomide Trust will surely stoke fresh controversy about how and why the criminal trial against the drug’s makers ended without a verdict in December 1970.
The Trust, which is tasked with looking after the wellbeing of the British victims maimed in the womb by the drug, hired an investigator through the law firm Ince & Co. to look through state records in North Rhine-Westphalia, Germany, where the case was tried. The goal was to discover any malfeasance behind the decision to discontinue the trial.
A summary of Ince’s findings, dated Aug. 29, 2014, raises questions about whether Germany’s federal government reached a backroom deal with both the drug company, Chemie Grünenthal, and the state prosecutor in charge of the criminal case, that led to a both an inadequate civil settlement and the discontinuance of the criminal trial.
Thalidomide, developed by the West German drug company Chemie Grünenthal was released on to the market on Oct. 1, 1957. It was prescribed for pregnant women to help them sleep and to fight morning sickness. Horrifically, it killed an estimated 80,000 children around the world before they were born, and 20,000 more who survived were born without limbs, with severe nerve damage and an array of other ailments. It was withdrawn from the West German market on Nov. 27, 1961. A government investigation followed, eventually leading to a criminal trial against nine men, including the company’s founder and owner, Hermann Wirtz Sr, and the company’s chief scientist, Dr. Heinrich Mückter, that began May 27, 1968.
The bill of indictment against the Grünenthal employees ran to 972 pages. In support, the prosecution had lined up 351 witnesses, 29 technical experts and 70,000 pages of evidence.
But while the witnesses testified and endured cross-examination in noisy, angry scenes in the courthouse in Alsford, West Germany, the documents suggest that the real action was elsewhere.
A secret meeting between the drug company and the federal government was held more than a year before the criminal trial was discontinued, according to the document summary. A settlement was discussed, despite the fact that no one in the room represented the victims. Wirtz, the company’s 71-year-old founder, had not been attending the criminal trial for reasons of health, but appears here.
“Federal Health Ministry file note dated 21 July 1969 records a secret (confidentiality was sought by Grünenthal) meeting between Grünenthal directors, including Wirtz a principal Defendant in the criminal trial, their lawyers and the Health Ministry at which settlement of the claims was discussed.”
Two other documents, both from the Federal Health Ministry files, discuss the need for “political level discussion,” on the issue of a settlement between victims, the government and Grünenthal.
Only a month before a settlement was reached between the German victims, a conversation took place between the federal and state legal authorities about whether the state could be counted on to discontinue the criminal trial. The document apparently makes no mention of the impending civil settlement.
“Note by Federal Secretary of State for the Federal Justice Ministry Bahlmann of telephone call dated 11 March 1970 with Secretary of State von Munchhausen (who worked with the Minister of Justice Josef Neuberger for the State of North Rhine–Westphalia) which states the Federal Government wished to know if it could assume that the criminal trial would be discontinued in due course. It also records the Federal Government’s view that the criminal trial needed to be finalised. This appears to be an attempt by the Federal Government to influence the course of the trial. The note also states that von Munchhausen assured Bahlmann that the prosecution would agree to the criminal case against Grünenthal being dismissed. The State Ministry of Justice had the power to direct the prosecutor to consent to discontinue the criminal trial.”
Further, the documents, according to Ince, raise questions about whether Neuberger, who had ultimate control of the prosecution, had a serious conflict of interest in the case.
“What must be noted, however, is that the State Minister of Justice, [Josef] Neuberger, who had been appointed on 8 December 1966, was before that actually a partner in the law firm defending Grünenthal. Neuberger had personally taken over the defence of Wirtz in November 1966. Come 1970 Neuberger had the power to direct the prosecution. The conflict of interest is obvious.”
It is stunning that Germany’s government followed this path, considering there is a note dated Sept. 18, 1969 — more than a year before the trial was discontinued — shows that at least one ministry was itself concerned that what was going on was problematic, to say the very least.
“The Health Ministry was aware that such negotiations could be interpreted as an attempt to interfere with the ongoing criminal trial and should be postponed to after the trial. Nevertheless the German settlement and legislative process continued and was announced publicly in April 1970 despite the fact that the trial was continuing and was not terminated until December 1970.”
Further, there is reason to believe that because the criminal trial was discontinued, further evidence of what Grünenthal knew about the dangers of the drug and when they became aware of them was never heard.
Papers discovered in the archives include an incriminating letter by Dr. Günter von Waldeyer-Hartz. In October 1961, weeks before the drug was withdrawn, he’d been a chemistry graduate trainee for scientific sales. During the trial, he sent a letter, dated Jan. 26, 1969, by registered post to the minister responsible for the liaison between state and federal authorities involved in the case. Contergan is the name thalidomide was sold under in West Germany.
“We were shown a packaging unit for Contergan-Thalidomide with the sticker NOT FOR PREGNANT WOMEN. The management knew about the intrauterine effect of the preparation at the latest by mid-October. The decision to carry on selling the preparation was without any doubt motivated by profit making and criminal in my view”.
He named four witnesses. A note by the state’s chief prosecutor in the trial, Josef Havertz says he recalled sending the great criminal chamber testimony from Dr. Waldeyer-Hartz in “the spring or summer of 1968.” It was never found.
The primary interest of the UK’s Thalidomide Trust is whether the results of the trial led to what the law firm they hired, Ince, calls “the inadequate out of court settlement in the United Kingdom.”
Government and law mostly abandoned the child victims of thalidomide to decades of David and Goliath legal suits; parents with limited resources but limitless new obligations of care versus powerful and immortal corporations.
A hundred victims in Australia and New Zealand were left to struggle unaided for 40 years until Ken Youdale of the Australian Thalidomide Trust and lawyer Peter Gordon won a class action suit against Grünenthal in December 2013.
British multinational Diageo, which inherited thalidomide as licensee, voluntarily put $88 million into a fund for 100 victims. Grünenthal was not a contributor.
A hundred Canadian victims today live miserable lives because their disabilities have aged them beyond their years and they have outrun the small provisions from Grünenthal’s distributor Richardson-Merrell and the government.
In Spain, where thalidomide was available until 1965, Grünenthal keeps fighting a case mounted for 180 people by the Spanish Association of Thalidomide Victims (AVITE). Victims arrived at the courtroom in their wheelchairs on November 21, 2013, to cheer Grünenthal’s conviction. It was ordered to compensate each one of the plaintiffs according to the severity of their injuries. But then Grünenthal got the judgment reversed in November 2014 on the grounds that the statute of limitation had passed. Now AVITE has to raise more money to take the case to Spain’s highest court, while one of Grünenthal’s undoubted victims, Juan Carlos Velez, 44, sits on the pavement in a smart part of Madrid with a hat upturned for coins. He can’t hold out a hand because he has hasn’t any.
In Germany, the results of an independent investigation into the conduct of North Rhine-Westphalia’s government at the time of the 1968 to 1970 trial is due to be completed in 2015. The probe, being conducted by Westphälische Wilhelm University, does not include any examination of the federal government’s role.
— Additional reporting by Madeline Chambers in Reuters Berlin bureau
FILE PHOTO: Thalidomide victim Tony Melendez is shown in an undated file photo at age four while attending a therapy program at the University of California.