PRESS REVIEW LAWSUIT MEYER VS SCHUCHT
Dear friends, companions and combatants,
Please find attached the English translation of the press release dated April 12th, 2018 from the Higher Regional Court in Cologne on the decisions concerning statements to a parliamentary committee.
This is the first in a series of texts to follow as soon as they are translated.
However, since I need to pay for all these translations myself, you will understand that I cannot have all newspaper articles translated. I will choose the articles that are most informative.
Kind regards and thank you for your support
Cologne Higher Regional Court
– Press Department –
Cologne Higher Regional Court decides on statements made to a parliamentary committee.
In the legal dispute between two functionaries of the Contergan Foundation, the 15th Civil Senate of the Cologne Higher Regional Court under the chairmanship of Higher Regional Court Judge Margarete Reske has today announced a judgement. In this, the defendant is no longer permitted to describe the following statements of the plaintiff as untrue:
“For 30 years, Grünenthal has been looking into the medical files of the affected persons at the Contergan Foundation” and “For 30 years, Grünenthal has been paying for the experts of the Medical Commission of the Contergan Foundation”
The background to the legal dispute is a public hearing of the Committee for Family Affairs, Senior Citizens, Women and Youth of the German Federal Parliament in the 17th Legislative Period on 01.02.2013 concerning the results of a long-term study about the living situation of persons damaged by Contergan (thalidomide). The plaintiff was invited to this hearing as an expert witness in his capacity as a member of the Council of the Foundation and Chairman of the Bund der Contergangeschädigten und Grünenthalopfer e.V. There he made the above-cited statements among others. Following the committee hearing, the defendant, who was Chairman of the Medical Commission of the Contergan Foundation until the end of 2009 and a member of the Board of the Foundation from the end of 2009, wrote a letter on the letterhead of the Management Board of the Contergan Foundation to all members of the parliamentary committee, in which among other things he described the statements in question made by the plaintiff as untrue.
It is undisputed between the parties that in the period from 1972 until 2003 the Head of the Legal Department of Grünenthal GmbH, who after his departure also continued to represent the company as attorney, combined this role with that of Chairman of the Medical Commission of the Contergan Foundation and in this capacity had access to the medical files of the affected persons before these were sent to the medical experts. A further member of the staff of the Grünenthal company carried out preparatory work for the attorney in this connection. It is also undisputed that the funding of the work of the Medical Commission of the Contergan Foundation was at least partially secured through a lump sum that the Grünenthal company paid to the Contergan Foundation.
The defendant had argued that there had been comprehensive precautions in the form of a “Chinese wall” to prevent a flow of information to the Grünenthal company in spite of the dual roles of the Head of the Legal Department and the staff member. He argued that the experts of the Medical Commission were always paid out of the funds of the Contergan Foundation, and in this connection the letter to the members of the parliamentary committee was a permissible expression of opinion.
The 15th Civil Senate has decided that the defendant must in future desist from the statements that he made to the parliamentary committee. It decided that the statements by the plaintiff were true on the basis of the undisputed facts that were submitted. The committee members must have understood the statements as meaning that employees of Grünenthal had had the possibility to examine the medical files and that the work of the Medical Commission was funded – directly or indirectly – by the Grünenthal company. But these statements were indisputably true, and therefore the opposing statements by the defendant were untrue. The statements of the defendant were also not to be evaluated as expressions of opinion. The core of the statement by the defendant was the question, the truth of which was capable of being tested, of whether the plaintiff had asserted something untrue in the committee hearing.
The Senate rejected a claim, which was also pursued by the plaintiff, for rectification towards the members of the parliamentary committee. The plaintiff had waited for more than three years before filing the suit, beyond the end of the 17th Legislative Period of the German Federal Parliament. On account of the principle of discontinuity, the committee members of the 17th German Federal Parliament could no longer concern themselves with corresponding legislative proposals in this capacity, and therefore a rectification towards them would no longer be appropriate.
With its decision, the 15th Civil Senate partly confirmed a judgement of the Bonn Regional Court. The Regional Court had only ordered the defendant to desist from the statement concerning the medical files, and further accepted a claim for rectification.
The Senate has not admitted the appeal, because the legal matter has no fundamental significance and no other reason for admission exists. The judgement will shortly be available for download in anonymised full text at www.nrwe.de.
Judgement of the Cologne Higher Regional Court dated 12.04.2018 – Az. 15 U 85/17
Judgement of the Bonn Regional Court dated 10.05.2017 – Az. 13 O 136/16
Dr. Ingo Werner
Head of Press and Public Relations
Court sees collusion between Grünenthal and the Contergan Foundation
By: Elke Silberer, dpa
Latest update: 12 April 2018, 16:55 hrs
Cologne/Aachen. For the victims it is a scandal. According to a judgement by the Cologne Higher Regional Court, there was collusion between the Contergan manufacturer Grünenthal and the Contergan Foundation. The manufacturer of the sedative, through which some 5,000 children were born with severe malformations in their arms and legs, had had access to the medical files of the victims, the court determined on Thursday.
A dispute on this question between those involved has been smouldering for years. The Contergan victim Andreas Meyer, who is wheelchair-bound and dependent on assistance due to his short arms and legs, had said this over and over again – also in 2013 as an expert witness to the Family Affairs Committee of the German Federal Parliament.
A then member of the Managing Board of the Foundation fought back and wrote a letter to all the members of the committee, claiming that Meyer’s assertions were not true. The Cologne Higher Regional Court has now decided in a civil case that Meyer had spoken the truth. The former board member is no longer permitted to say the opposite on pain of a severe fine.
According to the judges’ decision, there was collusion between the company and the foundation responsible for paying pensions to the victims from the public purse. From 1972 to 2003, the then Grünenthal corporate lawyer was also head of the Medical Commission of the Foundation and had access to the files. Another Grünenthal staff member performed preparatory work for him in his post for the Foundation, the court found.
According to the court, the company also paid an annual lump sum to the Foundation for the work of the Medical Commission. This Commission played an important role in the recognition of individuals as Contergan victims, says Meyer, who represents the victims’ associations on the Council of the Foundation. Appeal against the decision has not been admitted.
In his defence, the former board member had argued that there were comprehensive precautions to ensure that no information reached Grünenthal – in spite of the dual role of the Grünenthal lawyer and preparatory work of the Grünenthal employee. He also argued that the experts were paid by the Contergan Foundation and not by Grünenthal.
The Contergan Foundation pays pensions from the public purse to those whom it recognises as Contergan victims. The Foundation is subject to legal supervision by the Federal Ministry of Family Affairs.
Following the judgement, Andreas Meyer now sees the ball in the politicians’ court. “The Federal Government must explain to us why Grünenthal played such a prominent role in the Foundation.” With the Contergan Foundation Act of 1972, German victims no longer had any possibility of suing Grünenthal.
Even today, many victims speak of a denial of their rights, a situation that they see as perpetuated in the make-up of the Foundation. The victims’ representatives are in the minority on the Foundation’s Council and the interests of Contergan victims cannot be asserted against the majority of ministry representatives, complained Meyer.
According to its currently applicable corporate guidelines, a dual role such as that of the Grünenthal lawyer would no longer be possible today, the company declared on Thursday. “Based on this awareness”, all the files from the work of the corporate lawyer that had been placed in the company’s archive were handed over to the Contergan Foundation in 2014.
The Contergan victim Andreas Meyer on Thursday at the Cologne Higher Regional Court. Photo: Oliver Berg/dpa
Commentary on the Contergan judgement Scandalous
By Hilke Lorenz, 12 April 2018 – 18:03 hrs
The fact that for decades the pharmaceutical company Grünenthal sat at the table when decisions were taken about the pensions of Contergan victims is scandalous. This must be changed urgently, demands StZ author Hilke Lorenz.
Cologne – For the victims, the scandal around the sedative Contergan is far from over. In the early 1960s, 5,000 children were born with very severe malformations in their arms and legs. And as if that was not enough, in all these years the manufacturing company Grünenthal has exercised influence over the financial provision for the victims through the Contergan Foundation. Also the way the scandal has been dealt with was scandalous. What else can one call it when, through the power of his office, the pharmaceutical company’s corporate lawyer sits as one of the decision-makers in the Medical Commission? This body gives its thumbs-up or thumbs-down to the affected persons regarding the recognition of their status as victims, and it determines the amount of their pensions. Now, in its judgement, the Cologne Higher Regional Court has confirmed this more than unfortunate collusion.
More say for the victims
Victims’ representative Andreas Meyer has thus been proved right. For his accusations, he had been sued by the corporate lawyer. But the day of his triumph must also be the day for a change of direction. The composition of the Foundation must be reconsidered. Furthermore, the Federal Government, which had tolerated this situation through the Family Affairs Ministry, must repair its mistakes. At its heart, this can only mean more say for the victims. Other countries have shown the way.
Andreas Meyer won his case at the Cologne Higher Regional Court. Photo: dpa
Nr. 60 | Tuesday, 13 March 2018
Tagesthema (Topic of the day)
How independently does the Foundation work?
The Cologne Higher Regional Court will decide whether the pharmaceutical company Grünenthal through its corporate lawyer may have exercised influence over the work of the Contergan Foundation and compensation payments to the victims.
By Hilke Lorenz
The victims of the Contergan (thalidomide) scandal are now around 60 years old. But it appears that one of the greatest medical scandals in post-war history has not yet come to an end. On Thursday, a court will again concern itself with the reappraisal of the case, and its judgement may possibly open a new chapter in the issue of compensation payments.
The background: In October 1957, the pharmaceutical company Grünenthal launched the sedative Contergan with the active ingredient thalidomide on the market. The company did not withdraw it from the market until four years later, despite growing numbers of alarming reports that the non-prescription medicament, recommended explicitly for pregnant women, could have been the cause of the birth of many handicapped children. In Germany during this time, some 5,000 children were born with severe malformations in their arms and legs. In a study published in 2017, the historian Niklas Lenhard-Schramm showed that the responsible official control authorities had not fulfilled their function and had completely failed.
After bitter struggles about the form of financial compensation, an agreement was reached between the affected persons, the Grünenthal company and the official supervisory authorities. The lawsuit against the responsible executives of the Aachen-based pharmaceutical company was discontinued in 1970. In return, Grünenthal paid 100 million deutschmarks to a foundation which continued the payment of compensation to the victims. A further 100 million deutschmarks was paid from the public purse. In return, the victims agreed to give up their right to make further claims. The money was quickly used up; Grünenthal paid a further 50 million euros. From 1972 onwards, the point of contact for the affected persons became the state – specifically the Federal Ministry of Family Affairs.
Foundation council member rejects collusion
In 2013, in the third amendment to the Contergan Foundation Act, the victims’ pensions were again substantially increased. But with every year of advancing age, their expenses become greater.
Now a judgement by the Cologne Higher Regional Court could shed new light on the work of the Contergan Foundation. Because, unless impressions are highly deceptive, the 15th Civil Senate will announce a judgement on Thursday that could cause a sensation. The case centres on what influence the Grünenthal company exercises over the work of the Contergan Foundation and the compensation of the victims. The dispute which is now being fought out in court was sparked off by statements made by Andreas Meyer, Chairman of the “Bund Contergangeschädigter und Grünenthal-Opfer”, at a hearing of the Federal Committee for Family Affairs, Senior Citizens, Women and Youth in the context of the planned amendment of the legislation on 1 February 2013.
Among other things, Meyer told the Committee and the then Family Affairs Minister Kristina Schröder (CDU) that Grünenthal had had access to the medical files of the Contergan Foundation and that the firm had also paid the experts of the Medical Commission. These experts determine, on the basis of a points system, the extent of the victims’ damage – and thus the size of their pension. For Meyer, the legal case is about the question, “whether the Contergan Foundation was, or perhaps still is, secretly a branch office of Grünenthal under the eyes of the Federal Government.”
Meyer, who was born without arms or legs, has also been a member of the Council of the Contergan Foundation since 2009 as a representative of the victims – and, as shown by his perseverance in the legal dispute, is of a combative nature. His opponent in court is Karl Schucht. Attorney Schucht was Chairman of the Medical Commission of the Contergan Foundation from 2004 until 2009, and subsequently until 2014 a member of the Foundation’s Management Board. In a letter to the Federal Committee, Schucht rejected Meyer’s assertions as untrue. The Federal Government then declared that it shared Schucht’s opinion. In the Contergan Foundation, Schucht is the successor to the medical lawyer Herbert Wartensleben, who from 1972 until the end of 2003 was both the Chairman of the Medical Commission and also Grünenthal’s corporate lawyer. It is his role in particular that concerns Meyer.
Parliamentary question from Die Linke supports Meyer’s statement
Meyer went to court and was vindicated to a large degree. In a judgement on 10 May 2017, the Bonn Regional Court forbade Schucht on pain of a fine of 250,000 euros from asserting that Meyer had spoken untruth. Schucht was also ordered to issue a rectification towards the members of the parliamentary committee, declaring that Meyer’s statements were not untrue and that “Grünenthal GmbH in the person of the Head of its Legal Department, Attorney Herbert Wartensleben, (…) had had access to the medical files of the Contergan Foundation.” Both Meyer and Schucht went to appeal. The Cologne Higher Regional Court opened the oral proceedings on 15 February.
In a press release before the proceedings began, the Senate explicitly drew attention to the Federal Government’s response to a Minor Interpellation by the Parliamentary Group Die Linke (Left Party) on 23 April 2013. The answers confirm large parts of Meyer’s case. On the first day of the proceedings, the presiding judge also noted that it could not be disputed that the head of the Commission in the Foundation was also an employee of Grünenthal. Sensitivity in Germany towards such a dual function had only increased strongly in subsequent years. “The perception has sharpened, and rightly so,” she is quoted as saying. The Senate will announce its judgement next Thursday.
In 2008, Contergan victims demonstrate in Hamburg, where the regional court was deciding about the broadcast of the ARD production “Eine einzige Tablette” (One Single Tablet).
SUPPORT FOR THE VICTIMS
Payments The Contergan Foundation for People with Disabilities, which according to information from Grünenthal is a foundation set up by the German Federal Government and independent of the company, supports those affected by the Contergan tragedy in 38 countries with monthly payments ranging from 662 to 7,620 euros, as stated on the company’s internet site. According to this, the company has paid over 100 million euros to the Foundation. There was no interference by the German authorities in the conduct and the end of the legal case, it is stated in the same place.
Affected persons According to information from Andreas Meyer of the Bund der Contergangeschädigten, some 2,700 persons are currently living in Germany who are suffering from the consequences of Contergan usage by their mothers during pregnancy. The degree of malformation is dependent on the time of the pregnancy at which the sedative was taken.
“FOR ME IT IS CORRUPTION”
Andreas Meyer, the representative of the Contergan victims, demands a commission of enquiry and a new Medical Commission.
Mr Meyer, what would it mean if the Cologne Higher Regional Court now decided in your favour?
The judgement would give us the confirmation by a German court that this collusion between the Grünenthal company and the Contergan Foundation had existed.
How do you interpret the fact that the Grünenthal lawyer had insight into the victims’ medical data?
The politicians favoured Grünenthal over the Contergan victims. The Contergan Foundation Act of 1972 prevents us, even to this day, from suing the company for damages. The aim was to avoid creating a precedent for the whole of the chemical industry. Now a German court will attest to us that for 30 years a Grünenthal lawyer was able to look into our medical files in the Medical Commission of the Foundation. And in precisely this Commission, he was able to influence who was recognised as a Contergan victim. The Contergan scandal – as it has developed – cannot be explained without the exercise of political influence in favour of Grünenthal. For me it is corruption. Corruption does not only mean bribery but also degeneration and depravity. In the Contergan case, this degeneration affected our democracy.
What are you demanding concretely?
Already in 2017, as a lesson from the Contergan scandal, we called for an anti-corruption law. Now we need a commission of enquiry. The Federal Government must explain why, in its reply to a Minor Interpellation from the Parliamentary Group Die Linke (Left Party) through its Ministry of Family Affairs, it lied to the German Federal Parliament. Because it gave its backing to assertions of fact by Mr Schucht that were demonstrably false.
For 30 years the company also reimbursed the costs of the Medical Commission which took decisions about compensation. What does this mean?
He who pays the piper calls the tune. And they were all playing Grünenthal’s tune together. Grünenthal and the Federal Government have a shared interest. They both want to pay as little as possible. Therefore they set up an assessment monopoly in which they pretended that the Foundation’s experts were the only people in the world who were competent to answer the question of whether somebody was damaged by Contergan or not. We have proof of at least one case where Grünenthal’s corporate lawyer amended an assessment contrary to the expert opinion of the human geneticist Lenz.
How are assessments produced?
Assessments are often produced without the expert ever having seen the affected person. In these cases the assessments are based on medical findings submitted by the victims. As the reason for rejection, an alleged genetic condition is often diagnosed without a blood test or DNA test. And the affected persons fight in vain for their rights in the courts.
Must new assessments be made now?
Not only that. The whole Medical Commission must be dismissed. The responsibility for the Contergan Foundation must be transferred to another ministry, preferably the Ministry of Finance. At least they can do their sums. It is just a question of examining whether the funds of the Contergan Foundation flow to where they are intended. The Foundation itself, as in Great Britain, must be in the hands of the Contergan victims. We are all competent people. We don’t need any ministry representatives, possibly steered by Grünenthal, who go over our heads and determine what is right or wrong for us.
The interview was conducted by Hilke Lorenz.
FIGHTER FOR JUSTICE
Person: Andreas Meyer (57) founded the Bund Contergangeschädigter und Grünenthal-Opfer, of which he is Chairman, in 2004. The organisation split off from the Bundesverband Contergangeschädigter (National Association of Contergan Victims) in order to be able to act independently. Since 2004, Meyer has been a member of the Council of the Contergan Foundation. He has contested numerous successful court battles against Grünenthal.
Note: This English translation is unofficial. Only the original German text carries legal authority.