Part of a chapter in a book I’m reading, Corporate Crime in the Pharmaceutical Industry, by John Braithwaite, deals with the Thalidomide disaster. While it is exceptionally difficult for me to work my way through the descriptions of birth defects, I feel that I owe it to the victims of that horror to steel myself and endure the details of it all. In so doing, I was impressed strongly that this sort of corporate crime should be every bit as infamous as that of the Nazis. That it is not so, I find gravely troubling.
Sane people of this day excoriate the Nazis, and rightly so. They were a political force that devastated the lives of millions with aggressive wars, political purges, and, ultimately, genocides. But they did so not as a unified body of believers, but as a set of individuals making seemingly normal decisions, the sum of which produced the monstrous barbarity of the regime. At the sharp end of Nazism, there was extreme brutality and violence, but almost immediately, there were administrative layers to separate those actors from other persons within the regime. Consider the lot of a train station operator: was he able to approve shipments of food or resources while denying transport of victims to murder camps? Is he complicit in the crimes of his regime? Is he innocent? Perhaps he’s stuck in an awkward, greyish middle, where he condemns the crimes, but feels powerless to halt them because of fear or because he knows that he cannot alone overcome the bureaucratic inertia that put the process into motion. He can rationalize that his role in the crime is small, or that he has no choice but to participate in the crime. Those thoughts can get him through the night without pondering his fate overly much.
I find myself, and, really, anyone else in Western Civilization, to be like that train operator. We may know or we may not know, but we all participate in the crimes of our civilization at least to the extent that he does. If we drive a car, use things made of plastic, or eat food we have not grown ourselves, somewhere in that chain of production, there is the shedding of innocent blood or the pollution of a remote village where petrochemicals are exploited. Can I stop using gas? Can I produce my own food, all on my own with no aid from outside? Perhaps so, but, even then, am I still somehow complicit in the crimes of the world if I do not actively oppose them?
Most people shrink away from that precipice of judgment. Perhaps that is necessary in order to keep on living, to try to do what is right in other areas to overcome our shortcomings in being unable to destroy or convert a system too large for us to fathom completely. But, in so doing, how far does one go before one is adding layers of rationalizations to make a more active role in evil seem palatable?
This brings me to the Thalidomide disaster. A certain drug company, Chemie Grünenthal, produced the drug with the hopes that it would be a huge seller – a sleeping pill that was completely safe, that was the marketing line. Given the normal dangers of sleeping pills, such a thing would be a massive hit. However, Grünenthal’s marketing was a Göbbels-like “big lie”, in that it did not mention the horrific side effects it would have on people and unborn babies, in particular. Even though doctors doing trial tests noted those issues, Grünenthal chose to cherry-pick test results that showed favorable conclusions for Thalidomide. After all, they wanted the authorities in various nations to approve the drug for sale as an over-the-counter pill. All data is subject to researcher conclusions, isn’t it? So why not focus on the positives?
When Thalidomide went on sale in various countries, it received multiple brand names. While the drug under one brand name would be recalled in, say, Germany, the same drug would continue to be sold under a different brand name in, say, Sweden or Brazil. Now, the question facing us is this: is it wrong to use different brand names for the same thing? In this case, it resulted in additional, avoidable deaths.
There were pharmaceutical salesmen in Australia whose wives used the product while pregnant, only to deliver babies with the outrageous birth defects associated with Thalidomide. They reported these tragedies up the line, but nobody within Grünenthal moved decisively to halt the distribution and sale of the drug. Worse, when an Australian study was submitted to the British medical journal, The Lancet, the editors of that journal rejected it, citing pressure to publish other papers. A German physician published a paper about the dangers of Thalidomide, but Grünenthal attacked both the physician and the journal that published the paper as being sensationalist. Grünenthal did withdraw the drug from sale in Germany, not out of safety concerns, but due to the negative publicity the drug had received. Grünenthal admitted no wrongdoing in that case.
Even though the FDA did not approve Thalidomide for use in the USA, Grünenthal worked with a US firm, Richardson-Merrill (itself guilty of a major pharmaceutical fraud with the drug MER/29), to distribute the drug as part of a test trial. Richardson-Merrill salesmen told US doctors that they had been specially selected to participate in the trial, but supplied no placebos and told those same doctors that they didn’t need to keep accurate records. Just prescribe it and be part of a money-making enterprise, that’s what the salesmen told the doctors. Did the salesmen themselves invent those lies and deceits? Were marketers culpable? Were executives that wanted to increase profits ultimately to blame for creating a system that wanted to sell a drug without regard to the horrors it would inflict upon those that took it?
The pharmacologists at Richardson-Merrill knew the drug could cross the placental barrier and become a threat to fetuses. But was it a crime to say the drug might be a threat instead of it will be a threat? It’s hard to condemn a person for choosing a conditional term instead of an absolute term, but given how that conditional term then enabled another deviation from an ethical line down the road, which itself led to another and another, it should be just as hard to shrug and say that there wasn’t anything wrong with using a conditional term.
Richardson-Merrill also committed outright frauds. Their own employees created trial information and put the names of fictional doctors on the covers of those reports, then submitted them to the FDA as part of the approval process. But could a director or other executive claim to not know what was going on and, thereby, be innocent of that wrongdoing? Of course. Also of course, that same executive wouldn’t hesitate to approve the dismissal of an employee that wasn’t producing positive results to boost revenue. That same executive would also not hesitate to give more work to clinical testing labs that produced consistently positive and helpful findings for his firm. As long as he never officially knows of any wrongdoing, he can feel insulated from whatever crimes are being committed.
And that brings us back to the Nazis. Hitler did not personally stand at the controls for the showers in Auschwitz to deploy the nerve gas instead of water. Göring did not personally receive victims to burn alive in ovens. Himmler did not personally load Russians into an Einsatzgruppen van, where they would receive the carbon monoxide from the engine exhaust for half an hour, killing them. Himmler did witness executions, but it was always someone of a lesser rank that pulled a trigger or flipped a switch or buried a body. Himmler produced innovations in processes that made exterminations more efficient, but he left it to others to carry out those exact details. If he had had access to enough paper shredders and a corporate legal team, he could have claimed no involvement at all in the Holocaust.
And that, then, brings us back to the corporate world. Grünenthal executives in Germany had broken the law, a prosecutor determined, and would stand trial. In their defense, the Grünenthal executives claimed that unborn children did not enjoy legal protection under German law, except in the matter of a deliberate, criminal abortion. The Grünenthal executives then brought forward a parade of experts to say that they had no conclusive knowledge of fatal and worse birth defects being linked to Thalidomide. Two years into the trial, Grünenthal employees were still at work, threatening anyone that was being publicly critical of the firm and its drug. Grünenthal executives made a public plea that they would continue the trial, even if it meant using all the resources of the firm, but would consider an out-of-court settlement to end the affair. Of course, they would not admit guilt in such an event, but would merely be making the settlement so as to get on with its business and to give some measure of comfort to those that believed they were wronged in some way by Grünenthal or its products. Grünenthal paid an amount equal to $31 million, and that was that.
Grünenthal continued to make settlements, often with a condition of non-disclosure and non-discussion to go along with the money. Given that it makes roughly a billion dollars per year of late, such payments would be a noticeable, but not devastating hit on profits. Grünenthal has since had multiple citations from regulators, so they are by no means a group of choir boys as a result of the Thalidomide disaster. They paid their blood money, but spent no time in jail. Such is the lot of a corporate executive that has not been deprived of his access to corporate resources.
It is also the lot of a person who has done some very bad things, but whose knowledge or position is such that he is too big to fail for, if he should fail, then he takes down much of the structure of society that supports him. There were Nazis that had important scientific knowledge: they escaped trial. There were Nazis that acted as informants against the Soviet Union: they escaped trial. There were Nazis that were willing to fight against Communists in Latin America: they escaped trial. Today, we see bankers that sat atop massive frauds that also escaped trial.
And, by keeping the settlements secret, Grünenthal also prevented the formation of a class-action lawsuit. Only one Thalidomide case ever went to trial, and Richardson-Merrill (the defendant in that case) arrived at an out-of-court settlement during the appeal process.
Thalidomide resulted in more stringent laws around the world to control pharmaceutical safety, but access to money and power means there is always the opportunity for a pharmaceutical company to circumvent those laws. Just as the Nazis’ access to money and power provided legitimization for the regime – witness all the global firms that did business with the regime in spite of their connections to criminal activities – so it is for corporate actors.
So what if the Nazis never got involved in the Second World War? They would have been brutally murderous, yes, but their infamy would be no greater than that of the Ottoman Empire during World War One, or one of many US-sponsored Latin American military dictatorships. Consider even the reputation of Mao Zedong and Joseph Stalin: those men headed up regimes more murderous than the Nazis, but they never lost their access to power and money, so they are frequently viewed as more benign than their German counterparts. American slave owners, the British East India Company’s opium trade, right-wing death squads acting against Communist rebels… the list goes on of persons and collections of persons that retained access to power and money and thereby avoided facing full accountability for their crimes. The Nazis simply present an unusual chapter in history as a corporate group that lost its access to power and money and, therefore, had to face some sort of responsibility for its actions.
Thalidomide the drug is itself infamous. But the manufacturers of the drug, Grünenthal, continue to do business. They released an apology in 2011, but did not move to retroactively offer additional compensation or admit wrongdoing, even though a mass of documents points to not only a large number of breaches, but a large variety of breaches, as well. Grünenthal does business and there is no immediate name recognition for that company name to connect it to Thalidomide, much in the same way as a black swastika in a white circle on a red field is instantly recognizable as a symbol intimately connected with evil. Grünenthal is representative and typical of the powerful: the Nazis are the exception, the group that abused absolute power and faced punishment for it.