A $30 million lawsuit was filed in U.S. District Court Monday against the one-time manufacturer of thalidomide, the drug blamed for the birth world-wide in the early 1960s of an estimated 8,000 children without limbs or with malformed arms and legs, and assorted other severe defects.
The plaintiffs are a Falls Church couple, retired Air Force Col. Donald Swenholt and his wife, Frances, and their daughter Jamie, 19, who was born with malformations of all four limbs, mental retardation and other handicaps.
They claim Jamie's defects were "a direct result" of thalidomide and accuse the manufacturer, Richardson-Merrell Inc., of "negligent conduct," such as failing to test the drug properly. But Merrell says there is not even any evidence Mrs. Swenholt ever took thalidomide.
The suit is unusual, partly because so few thalidomide children were born in this country -- perhaps a dozen. Also unusual is that the family let nearly 20 years pass before going to court.
The Swenholts have been negotiating with Richardson-Merrell intermittentlly, and unsuccessfully, for 11 years. By going to court, the family preserved a legal right to sue, otherwise due to expire in 1984. Swenholt says he is confident a settlement ultimately will be reached.
Merrell was licensed by thalidomide's West German inventor, Chemie Grunenthal, to make and sell it -- for the relief of nausea and vomiting in early pregnancy -- in the United States and Canada. The U.S. company distributed 2.5 million thalidomide pills, purportedly for testing purposes, but never sold the drug in this country.
In 1960, when Swenholt was stationed at Maxwell Air Force Base in Alabama, his wife had morning sickness. Swenholt, told he could get "some new pills they were giving out," says he picked up a prescription from a nurse and had it, and a refill, filled at the base pharmacy. Thalidomide was not yet a suspected birth-deforming agent.
In 1962, Swenholt saw magazine articles on the thalidomide tragedy in West Germany, the hardest-hit of the 50 nations in which it was sold. Of the 22 symptoms described, he found, Jamie had 19. He became convinced that the pills Frances had taken were thalidomide.
In Cincinnati, Merrell attorney Frederic D. Lamb, who has known of the case since he was told of it in 1969 by the Swenholts' lawyer, Arthur G. Raynes, said that no thalidomide was in any Alabama pharmacy when Mrs. Swenholt was in her critical first trimester. In Philadelphia, however, Raynes told a reporter that "I have documents to prove" the drug was in Alabama, that Merrell was the source, and that it was at Air Force and other military bases all over the country even before Mrs. Swenholt took it. "In addition," he said, "it had been given to doctors who later went into the military and took their clinical samples with them."
Merrell attorney Lamb said he has seen no record showing that thalidomide was either prescribed for or taken by Mrs. Swenholt and added that a medical consultant disputes that Jamie's deformities match those in the recognized thalidomide cluster. Raynes replied," We know that Jamie is a thalidomide child," that her anomalies "are typically thalidomide anomalies," that Swenholt was given a prescription for a "new" morning sickness drug and that the only such drug at the time was thalidomide.
The idea of suing Merrell occurred to Swenholt early on, but he says he put it aside because of the urgency of caring for Jamie. Yet he candidly acknowledges other considerations. One was that there was no economic hardship because he was making "a reasonable salary." Moreover, being "very ambitious" and seeing "a great future" in the Air Force, he says, he had a fear -- later found to be groundless -- "that rocking the boat [with a lawsuit] would have brought my career to a screeching halt."
His hesitancy ended in March 1969, when he read a Washington Post story on the trial in Philadelphia of a suit against Merrell on behalf of thalidomide child Thomas D. Diamond. "The article made me decide it was time to get off the dime," he said. The trial ended the next day with a Merrell offer to settle for an undisclosed sum. Swenholt then contacted the Diamonds' lawyer, Raynes.
Jamie was born at Maxwell AFB in April 1961. Her head was abnormally small and misshapen. Her arms were deformed and shortened. Her fingers and thumbs were also deformed and limited in function, so she cannot properly grip objects. One leg was very short, with a club foot, and extra and webbed toes. The other, also very short, was permanently bent behind and to the left of her thigh; later, the lower portion of the leg was amputated, in one of a series of operations.
There were anomalies of the eyes, ears, nose, hips, wrists, elbows, knees, and bone structure. In childhood exams, she was found to be hard of hearing, to have a vision problem, to have no tear ducts, and her father says, to have a potential mental development that "will never go beyond age 9."
But Jamie turned out to have a spirit independent a stark I.Q. "As soon as you get to know her, and that takes five minutes, she's a very close friend, her father says. "Everybody's nuts about her."
Jamie gets about, precariously, with the aid of a crutch. She falls a lot, but recovers unaided. She can tie her shoes, hold a pencil and knit potholders, even if unable to pick things up between a thumb and forefinger. "She doesn't want you to do anything for her," Swenholt says. She has been in the Fairfax special education program for 12 years and goes to a summer camp for handicapped children.
The Swenholts raised Jamie at home with three older children and a younger daughter and have seen her become a first-place winner in Special Olympics swimming and other events for the handicapped in Fairfax County and statewide. "Jamie has made our family extremely close," Swenholt says.