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    Thalidomide – not the drug but the government is maldito

    Posted by Ivo Cerckel on September 4th, 2017

    In his Press Release dated 10 July 2017 the Registrar to the European Court for Human Rights (ECHR) in Strasbourg informed the public that on 27 June 2017 a Chamber of three judges had declared the appeal by the “Asociación de Víctimas de la Talidomida de España” (Avite) inadmissible. Avite had commenced a compensation action in the Spanish courts against the maker of thalidomide, the company called Grünenthal. After the case had been rejected by the lower courts and finally by the tribunal supremo, Avite lodged its appeal to the ECHR. Following this ECHR rejection, Avite is organising on 8 and 9 September 2017 a series of activities in support of thalidomide victims in Legorreta (Guipúzcoa).

    This is perhaps an opportunity to ask whether Avite should not have commenced its original action against another defendant. I am speaking of the government of Franco and of that of the King of Spain which assumed the former’s debts and obligations.

    It is well known that U.S.A. president John F. Kennedy gave Dr. Frances Oldham Kelsey the highest federal civilian service award in 1962. As a bureaucrat at the U.S.A. Food and Drug Administration (F.D.A.), the woman would have prevented thalidomide being marketed in the U.S.A.

    Wikipedia says however that she only joined the F.D.A. in 1960 (thalidomide had been marketed since 1957). Once there, she further delayed thalidomide’s approval. Wikipedia also says that Kelsey is credited SINCE NINETEEN THIRTY-EIGHT with her interest in teratogens – i.e. drugs that cause congenital malformations, that 1938 was the date of the creation of the F.D.A., and that Kelsey managed to be appointed there in 1960.
    Should we not conclude that Kennedy gave an award to the inventor of thalidomide?

    How this can be reconciled with what The Sunday Times of London wrote on 8 February 2009 (reprinted by The Australian under the title “Thalidomide ‘created by Nazis’”) is another question, which somebody should investigate.

    The weekly newspaper wrote that thalidomide was probably one of a number of products developed at Dyhernfurth (a chemical laboratory) or Auschwitz-Monowitz under the leadership of Otto Ambros in the course of nerve gas research, thalidomide actually having been produced as a possible antidote to nerve toxins such as sarin. Grünenthal apparently purchased the trade name of the drug – Contergan – and therefore probably the substance itself, from a French firm, Rhône-Poulenc, which was under Nazi control during the war years.

    Like East-Germany, France banned thalidomide, and in neither of those countries are there any thalidomide victims.


    Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary”, denoting any proposition that is argued to be correct because it is not disproved by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC dated 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

    Dr. Herman Cousy, Emeritus Professor of Law at the Catholic University of Leuven, demonstrated in 1996 that the thalidomide scandal cannot be considered to be an example of the development-risk defence by saying, on page 163 in note 28 of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’ “Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, now at link.springer.com, that:
    “One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was placed on the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were met?”

    This can easily be reconciled with the fact that thalidomide was developed by Rhône-Poulenc. How Dr Kelsey enters the story, or rather entered it in 1938, must still be investigated. (Thalidomide would have been known in the year 1938 as a cure for Hansen’s Disease. It would have been made by Richardson-Merrill Co. in Cincinnati, Ohio (U.S.A.). Its defects would have been noted in Phoenix, Arizona, (U.S.A.), in a medical journal that year. Kelsey would in those days have recognised these defects.)


    West Germany – and the entire European medical profession – knew what it was doing when it did not oppose thalidomide after France had banned it. (The iron curtain had its use. There are no
    thalidomide victims in East Germany.)

    This means that the primary cause of the thalidomide scandal is the fact that after the French government had banned thalidomide, other European governments did not prevent the product being placed on “their” markets, and they did not immediately order the withdrawal of thalidomide from “their” markets once the product appeared there after the French ban.

    The primary cause is opposed to the (Aristotelian) efficient cause of the thalidomide scandal, the tablet. For Aristotle, 25 centuries ago, the efficient cause was the agent who brings about the change. And Aristotle went on to give the example of the sculptor who makes the … statue. Was this example devised 25 centuries ago with thalidomide victims in mind?

    As to the comeback of thalidomide: human nature is such that some individuals who have inside knowledge about the effects of thalidomide will always deliberately and unnoticeably (i.e., without being noticed) cause the serious harm thalidomide can ‘so easily’ cause. They do that precisely because the damage to the mother and to the child is so serious and because they can do that so easily and without being noticed. It may be that ‘in clinical trials’, thalidomide is shown to be effective against many things. But ‘in real life’, it is given to unsuspecting girls – unsuspecting that they are pregnant and/or unsuspecting that thalidomide could harm their foetus.

    I posted my message to the librarian at the philosophy department of the Universidad de Navarra in Pamplona (perhaps he will grant me access to the library) at the end of my review of this book
    “The Knowledge of the First Principles in Saint Thomas Aquinas”
    Paperback – 24 February 2015
    by Mary Christine Ugobi-Onyemere (Author)
    on 9 August 2017 on Amazon UK,


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