April 12, 2011
Heynemann Attorneys / Medical law firm
Annual Stockholders Meeting on April 29, 2011
Ladies and gentlemen,
We hereby submit the following countermotions to items 2 and 3 of the Agenda for and on behalf of the following stockholders:
Countermotion to Item 2: The actions of the members of the Board of Management will not be ratified until the company has met the claim for the right to information concerning the drug product Duogynon® in accordance with § 84a of the German Medicines Act (AMG) that is currently pending before the High Court of Berlin Kammergericht Berlin.
Reason: The drug product Duogynon® from the legal predecessor Schering AG was an early pregnancy test. Women took two of these hormone-containing tablets. If they did not start menstruating within a few days, they were pregnant. This drug product is suspected of causing harm to the embryo in pregnant women, leading to children being born with malformations. The stockholders Andre Sommer and Wolf-Dietrich Mozow are affected by such malformations. Andre Sommer had originally submitted an out-of-court request for appropriate information from Bayer AG, which was not met. Litigation was then commenced to obtain the requested information about all side effects of the drug product that have become known to Bayer. This legal dispute is currently being conducted before the High Court of Berlin. The companys behavior in this legal dispute was incomprehensible. The press officer continually insisted that there was indeed evidence of an embryotoxic effect in the late 1960s but that it was later proven that Duogynon® does not cause harm to the embryo.
If this is the case, the question arises of why Bayer does not simply provide the requested information in order to counter the suspicion. This behavior is contradictory. There have been reports on it in numerous media and the public has not been comprehensibly explained why the information is not simply provided. What does Bayer have to hide?
The companys behavior in this information suit to date has caused not inconsiderable damage to Bayer. Furthermore, it contradicts the companys publically proclaimed values such as Integrity, Flexibility and Efficiency.
Indeed, advertising for the company states that others are to be treated fairly and with respect, that they must receive clear, honest and rapid feedback and that conflicts should be resolved constructively. In this case, however, the company has refused to issue the requested information without factual justification and has solely invoked the statute of limitation in the lawsuit. An objection on the basis of limitation is surely unethical. Not even in the cases of abuse in the Catholic Church has there been any appeal to the statute of limitation. Bayer is attempting to avoid responsibility by invoking the statute of limitation as a formal, procedural measure. This contradicts the companys own values that it constantly promotes.
Animal studies in 1980s had already proved that Duogynon® has an embryotoxic effect. According to information from former employees, Schering carried out such animal studies itself. The results of these animal studies were however apparently kept under wraps. The existence of these studies has not been denied by Bayer – or at least not so far.
The companys press officer has always insisted that a connection between fetal malformation and use of Duogynon® by the mothers could not be positively determined. Given this background, it cannot be plausibly explained to the affected parties or indeed the public at large why the company then does not disclose the files. It is known that the question of whether to disclose the files on Duogynon® has been the subject of contraversial debate within the company as well.
The fates of Andre Sommer and Wolf-Dietrich Molzow have been made accessible to a broad public audience by means of corresponding press reports. It has become clear that the approximately 300 individuals affected are interested solely in the truth; in other words, they only want to find out whether use of the pregnancy test led to the damage or not. Andre Sommer has even offered a settlement in which he would waive any claims to compensation if the requested information is provided to him. This proposed settlement was rejected by the company.
The lawsuit is now pending before the High Court of Berlin Kammergericht Berlin. It is certainly possible that the High Court, the Federal Court or the European Court of Human Rights will decide that the requested information should be provided. It is therefore likely that this will lead to the company suffering further serious damage to its image. As such, the actions of the Board of Management cannot be ratified until the requested information has been provided to those affected, especially as no plausible reason for the refusal has been presented to date and the press officer has made an extremely embarrassing impression in this regard.
Countermotion to Item 3: The actions of the members of the Supervisory Board will not be ratified until the requested information in accordance with § 84a of the German Medicines Act (AMG) has been provided to the affected Duogynon® victims.
The Supervisory Board should likewise have acted in the interest of the company to move the Board of Management or to have the Board of Management take the necessary steps to issue the requested information. At the latest, it should have acted when the company spokeman made a number of embarrassing appearances and thus caused the company perceptible damage in public.
In view of this inadequate exercising of its supervisory duties, the actions of the Supervisory Board can likewise not be ratified. It should be stressed that both countermotions are submitted in the interest of the injured parties as well as because of concerns about the company.
Heynemann Attorney Specialist for Medical Law