Posted by Ivo Cerckel on October 23rd, 2014
The update details the procedural aspects of the Spanish and USofA court cases and draws attention to the fact that “tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.
Updated on 25 October 2014 at 13h25 GMT+8
The truth about the thalidomide scandal is still being hidden from the public eye.
The veil on the truth has not yet been lifted – for the public eye.
Thalidomide is not case of product liability but of (tortuous) government liability for not guaranteeing public health, the tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.
Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.
“Historical Criticism”, also known as the “historical-critical method” or “higher criticism”, is a branch of literary criticism that investigates the origins of ancient texts in order to understand “the world behind the text”, says Wikipedia.
“Tort” liability of public authorities requires the proof of a … tort (or negligence) – committed by the Enemy.
More research will have to be conducted, like that of Professor Cousy which I will mention in this post, before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.
A Spanish and a USofA judgment, this month, denied thalidomide claims against the maker of thalidomide, not against the culprits for or of the thalidomide scandal (1), because the claims would not have been brought (in-)to court within the time allotted to bring them which would result in the claims being prescribed (in Spain), barred by a statute of limitations (in the USofA) or extinguished and thus barred from being instituted. Under Spanish law, the claims are then deemed “inadmissible”.
On 20 November 2013, the Judge of First Instance number 90 of Madrid ordered the manufacturer of thalidomide, Chemie Grünenthal GmbH, now known as Grünenthal GmbH, hereafter Grünenthal, to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.
The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
What tort? No reply.
In its 20 December 2013 appeal against this decision to Madrid’s Provincial Court, Grünenthal had three main arguments. One, the original plaintiffs do not prove that their malformations are due to thalidomide. Two, their claims are so old that “a valid judgment is impossible”. Three, the plaintiffs can obtain allowances from the German Thalidomide Foundation, Conterganstiftung. (2)
On Wednesday 22 October 2014, Madrid’s Provincial Court ruled that the claims of the original plaintiffs were prescribed, thereby overturning the condemnation of Grünenthal by the Judge of First Instance. (3)
On Thursday 16 October 2014 a Pennsylvania federal judge, Paul S. Diamond of the United States of A. District Court for the Eastern District of Pennsylvania, dismissed a suit by Edmund Andre who claimed that his birth defects were caused by thalidomide, which in the USofA is a product of GlaxoSmithKline LLC, hereafter GSK, finding that Andre’s suit against GSK is barred by the state’s two-year statute of limitations on personal injury suits. (4)
The plaintiff was among roughly a dozen plaintiffs who filed a personal injury suit in Philadelphia state court in October 2011. The defendants subsequently moved the case to federal court. The thalidomide cases were then consolidated in Diamond’s federal court. At least 10 of those plaintiffs have so far voluntarily dismissed their claim. (4 again)
GSK contended the claim was barred by a statute of limitations because the plaintiff’s birth defects occurred 50 years ago.
Andre countered that a statute of limitations shouldn’t apply to the suit, because he didn’t discover his injuries until recently, when new scientific and historical evidence pointed to thalidomide as the possible cause.
He claimed Grünenthal and companies that sold the drug in the USofA hid evidence of its distribution in the late 1950s and lied to the USofA Congress, all the while they knew or should have known about its potential risks. Companies that developed, manufactured, tested and distributed thalidomide were responsible for any babies born with defects as a result of exposure to thalidomide, according to the suit. (5)
Diamond said in his judgment that the time for Edmund Andre to bring a suit against the maker of thalidomide had long since passed, thereby rejecting Andre’s argument that the company’s initial cover-up of the drug’s effect on babies born to women who took it would extend the statute of limitations. (6)
As to the issue of the statute of limitations, Diamond applied Pennsylvania law, which has a two-year limit from the infliction of harm. The clock would have started running in 1957 for Andre, the judge said.
“The gravamen of plaintiff’s complaint is that defendants’ fraudulent concealment of both thalidomide’s extensive distribution in the United States and the drug’s dangerousness tolled the running of the two-year limitations clock, but the plaintiff failed to prove that claim.
“Andre knew as early as 1969 that his mother had taken thalidomide while she was pregnant with him and he made no significant effort until recently to investigate and bring a case”, Diamond said. (6 again)
Andrew was born in 1957. The judge says that when he had reached the ripe old age of 12, in 1969, he had to file the suit – without knowing whether anybody had committed a tort.
Yes, Andre was left with damage in 1957. But could Andre demonstrate in 1969 that this damage is due to a tort (or negligence) committed by anybody – say guv’mint?
We, thalidomide monsters, were not present before our birth. We don’t know what “really” happened then.
We were born.
Again, we were not present at our births nor could we ascertain the truth about what cover-up or denial occurred during our childhood.
“How come I am missing limbs? ”
“Ah, this happens just like that – for no reason at all!”
Even though it is (also) a democracy, my understanding is that in a “Rechtsstaat”, where something like the “Rule of Law” exists, the Enemy, a.k.a (also known as) guv’mint, does what it has to do.
As good citizens of democracies, we supposed that the Enemy did what it had to do.
I was born in February 1962. It was only in the fall of 1982, that’s 20 years later, that I first heard of thalidomide, n’est-ce pas Jacques H. Herbots?
In the second half of the first decade of the 21st century, I found that on 30 April – 1 May 1960 at a Düsseldorf congress of neurologists, neurologist Dr. Ralf Voss warned that thalidomide attacked the nervous system of the mother. (7)
It is only in the last 12 or 18 months that I found the 1996 paper by Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven, “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,
which started lifting the veil on the truth about the thalidomide scandal
by saying on p. 163, in note 28, that:
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto 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 fulfilled?”(8)
“Historical criticism” only investigates the origins of “ancient” texts in order to understand “the world behind the text”, said Wikipedia?
The Enemy knew – after the war – like his French colleague who therefore banned the product that there was a “slight” “problem” with thalidomide.
It is the Enemy, not Grünenthal, the maker of thalidomide, who “concealed” – to use Diamond’s words which he probably borrowed from the plaintiff – the dangerousness of the drug by not ordering the immediate withdrawal of the product from “its” territory.
This blogger therefore submits that the cover-up or denial, by all thalidomide “stories” of the past, except by the 1996 scholarly paper of Professor Cousy, of the sole liability of the Enemy for the scandal made it impossible for the (future – as of today) plaintiffs to bring their actions or claims earlier against the real culprit for the scandal.
“Statutes of limitations” are written laws passed by a legislative body in common-law systems – but the Spanish legal system is a civil-law system – to restrict the maximum time after an event that legal proceedings may be initiated, says Wikipedia.
In Québec which, says Wikipedia, continues to apply civil law toward civil private law matters, while the other [Canadian] provinces operate under common law, “prescription” is a way to gain or lose a right through the passage of time, the period of time varying according to the situation, says educaloi.qc.ca.
Similarly in Spain, “en el Derecho, la “prescripción” es un instituto jurídico por el cual el transcurso del tiempo produce el efecto de consolidar las situaciones de hecho, y permite por consiguiente la extinción de los derechos o la adquisición de las cosas ajenas”, says Wikipedia.
Prescription is a legal institution which results in the extinction or acquisition of rights after the passing of time.
Or is your Spanish not better than mine?
The title of the article in El Diario, a newspaper, concerning the Spanish judgment of 22 October 2014 quoted above therefore says:
“Anulada la indemnización para los afectados de la talidomida por haber … “prescrito”.” (9)
How can the claims against the Enemy who covered the truth up, or who covered up the truth, or denied the truth, have been prescribed?
How can the statute of limitations have started running before the veil, which still has not totally been lifted, although Professor Cousy gave a good starting-shot, will be lifted on the truth about the Enemy’s sole liability for the thalidomide scandal?
Or was thalidomide really created by the USofA Food and Drug Administration (FDA) director, Dr Frances Oldham Kelsey, to whom USofA president John F. Kennedy gave a Presidential award for having saved the USofA from thalidomide? (10)
And is that real cover-up?
Wait a moment, didn’t I mention a 16 October 2014 judgment of a Pennsylvania, which is a state of the … USofA, federal court in a case Andre vs. GSK?
How can there be a thalidomide victim in the USofA if Kelsey saved the country from thalidomide?
Oops, I also said that Professor Cousy gave a good starting- … shot? Sorry, that was not intended.
Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.
That is why that method or “Historical Criticism” still has or rather already has its role to play in ascertaining the truth about the thalidomide scandal and “a fortiori” in assessing whether the actions or claims for thalidomide compensation – against the culprit, guv’mint, the Enemy – have been brought within the time allotted to bring them.
“Da mihi facta, dabo tibi ius”, gimme the facts, I’ll give you the law?
How can we give the facts to the judge, if we don’t know those facts – yet,
or rather if we cannot convince the courts of them – yet?
“Tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.
As layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth, more research like that of Professor Cousy will have to be conducted before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.
The tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.
How can we give the facts before the veil on those facts with have been lifted – for the public eye?
Historical Criticism, said you?
For the Spanish case, see, concerning the judgment of the Judge of First Instance of 20 November 2013, which was overturned by the Provincial Court on 22 October 2014, my:
Spanish Thalidomide Victims obtain Judgment against Innocent Party
Posted by Ivo Cerckel on November 22nd, 2013
Grünenthal recurre la indemnización a los afectados por la talidomida en España
20 de diciembre, 2013 10:41 AM
Grünenthal apeló el fallo judicial, emitido el 20 de noviembre, por considerar que AVITE no aportó “las pruebas imprescindibles” para justificar sus reclamaciones y no probó que las malformaciones estuvieran causadas por el producto distribuido por el esta farmacéutica.
El laboratorio alemán invocó el principio de prescripción de las acciones legales, al entender que, después de cincuenta años, “un juicio válido resulta imposible”.
El laboratorio resaltó que los afectados españoles con malformaciones atribuibles a un producto de talidomida distribuido por× Grünenthal pueden solicitar ayudas a la Fundación Contergan.
German Firm Wins Appeal in Spain Thalidomide Case
MADRID — Oct 22, 2014, 10:54 AM ET
Madrid’s provincial court said the statute of limitations for the plaintiffs’ case had expired.
Gruenenthal said in a statement the “the court confirms that the plaintiffs weren’t able to prove their claims and that fair proceedings aren’t possible after more than 50 years. ” It added that there existed “effective and established options for people harmed by products containing thalidomide to get financial support from Gruenenthal or its distributors. ”
Ivo: the article is from Associated Press (AP), an American news agency, and is thus intended for an American audience and thus speaks of a “statute of limitations” instead of “prescription”.
GSK Dodges Claims Over Thalidomide Birth Defects:
By Sindhu Sundar
October 16, 2014
Pa. Judge Denies GSK’s Attempts To Nix Thalidomide Suits
Share us on: By Kurt Orzeck
Law360, Los Angeles (September 27, 2013, 8:56 PM ET)
Eastern District Judge Tosses Thalidomide Case Against GSK
Saranac Hale Spencer, The Legal Intelligencer
October 17, 2014
Chronik des Contergan-Falls: Tragödie – Katastrophe – Skandal?
30. April/1. Mai 1960 (ik werd geboren in februari 1962) :
Auf einem Neurologen-Kongress in Düsseldorf berichtet der Neurologe Ralf Voss über die Nervenschädigungen, die seinen Beobachtungen zufolge durch Thalidomid verursacht werden. Die Forschungsabteilung von Grünenthal versucht daraufhin, die Nervenschädigungen an Ratten zu reproduzieren – ohne Erfolg. Grünenthal-Forschungsleiter Mückter schließt daraus, dass es sich um besondere Situationen handelt, für die Contergan nur selten als Ursache infrage kommt.
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
p. 163, footnote 28
Anulada la indemnización para los afectados de la talidomida por haber prescrito
22/10/2014 – 12:12h
Thalidomide – Dishonest Drug
Posted by Ivo Cerckel on April 6th, 2008
Thalidomide was definitely known in the year 1938 and [its] defects were noted in Phoenix, AZ (USA) in a medical journal that year. It was known as a cure for Hanson’s Disease and made by [Richardson]-Merrill Co. in [Cincinnati], OH (USA). I don’t know what action was taken, but a young female doctor named Frances Oldham Kersey (or Kelsey) recognized its dangers. Theodore, Princeton, WV/USA
(reaction under From The Times April 4, 2008 Thalidomide: 50 years on victims unite to seek more compensation Nigel Hawkes, Health Editor
Kelsey was the lady who in 1960 only joined the US of A Food and Drugs Administration (FDA).
Once there, she further delayed thalidomide’s approval (thalidomide was marketed – in West Germany – since 1957)
and was given a Presidential award by US of A president Kennedy for that delay.
that Kelsey is credited SINCE NINETEEN THIRTY-EIGHT with her interest in teratogens – that is, drugs that cause congenital malformations,
that 1938 was the date of the creation of the FDA,
and that Kelsey managed to be appointed there in 1960
Thalidomide was marketed since 1957.
Kelsey was only appointed in the FDA in 1960.
How can she get (all) the credit for having “saved” the US of A from it?