Recognition without compensation: Balinese bereaved families fight for what is rightfully theirs

On July 17, 2014, flight MH17 crashed over Ukraine. All 298 occupants were killed. Among them were 196 Dutch nationals. For the bereaved families, a period of loss, uncertainty and years of struggle for truth, recognition and justice began. What happened and the impact on people and society Investigation by the Dutch Safety Board and the international Joint Investigation Team revealed that flight MH17 was brought down by a BUK missile. According to that investigation, the installation had been transferred to the area from which the plane was fired shortly before the disaster. To date, Russia denies any involvement. For the bereaved families, the impact of the disaster is enormous. Some lost their entire family in one fell swoop. For many families, not only was a loved one taken away, but also a foundation of daily life. That Russia continues to deny any involvement and does not share truthful information makes the loss for bereaved families even heavier. Questions remain. Was it a mistake? Did they think they were shooting at a military aircraft? Precisely because answers are not forthcoming, many bereaved families find it difficult to conclude their grieving process. The disaster also left deep scars in the Netherlands. Because of the large number of Dutch victims, MH17 became an event that not only affected individual families, but the disaster is also part of Dutch history. The interests at stake In this case, the interests of the relatives are paramount. They want recognition for what happened to them, clarity about the facts and accountability of the responsible parties. In addition, the case touches on broader questions about international legal order and legal protection. For surviving relatives it is of great importance that not only nationally, but also internationally is pronounced what has been established and what responsibility this entails. For whom Beer advocaten stands up We represent the interests of nearly 300 surviving relatives of more than 100 victims of flight MH17. We do so in various proceedings, nationally and internationally. Our commitment from the beginning has been to use all possible legal routes that could contribute to recognition, truth-telling and justice for our clients. The legal approach and challenges The legal approach had three tracks, in the order in which they played out: negotiations with the Malaysia Airlines insurer, a complaint to the European Court of Human Rights, and criminal proceedings. First, negotiations were conducted with the Malaysia Airlines insurer on behalf of next of kin. As a carrier, the airline bears its own liability under aviation law. On the basis of those negotiations, compensation amounts were paid for our clients. A complaint was then filed with the European Court of Human Rights against Russia on behalf of relatives. That was not an obvious step. There were also noises that this route would have little chance of success. Nevertheless, we filed that complaint because we felt that this route should be taken. The criminal proceedings had exceptional challenges. It involved a very large group of relatives, with different nationalities and different needs. In a regular criminal case, there is often direct and individual contact with clients.

Around the year 2000, pharmaceutical company Merck launched the drug Vioxx. A painkiller that quickly became popular and just as quickly proved dangerous. The company knew even before Vioxx was produced for patients that using this drug significantly increased the risk of heart and brain attacks. But it didn't warn about that. Not in the package insert and not to the authorities who had to approve Vioxx. In 2004, Merck took Vioxx off the market worldwide. It was one of the largest recalls in pharmaceutical history. By then, our clients had already suffered a stroke. Victims in the Netherlands, settlements in America We acted for a large group of Dutch victims. People who had taken Vioxx and then suffered an infarction. Some suffered permanent damage to their health. In America, Merck reached settlements with victims. In the Netherlands, the company did not want to come to the table. Merck made it public that it would not settle because of Vioxx. Outside America, they did so in few countries. We continued. Thousands of files, one decisive piece of evidence There were two crucial things to prove. First: that the infarction had been caused by Vioxx, and not some other cause. Second: that Merck knew about the increased risk before the market launch. Through the courts, we demanded Merck's internal research documents. In a room, we searched through thousands of binders for what was not in the package insert. Finally, we found the reports from the research phase, prepared before Vioxx came on the market. These showed that Merck knew the drug worryingly increased the risk of infarction. The company had not shared that information with regulators. The road to the negotiating table To establish Merck's liability judicially as the basis for a settlement, we selected several clients in the group as litigators. Their cases were a model for the rest. The decisive step toward Merck was taken by a lawyer from our international network. Without that opening, the negotiations would not have got off the ground. This shows the importance of international contacts in cases with a foreign counterparty. Retrospective “The fact that perseverance wins certainly applies to this case,” says Christa Wijnakker. “Merck had made it public that they would not settle because of Vioxx, and have done so in few countries outside America. It hit me that Vioxx was taken off the market in 2004 because of the risk of infarction, and the failure to warn about it. And that Merck did not want to take responsibility towards Dutch victims for a long time after that.” Do you have questions about this case? Please contact Christa Wijnakker.

Between February 19 and 28, 1999, thousands of people visited the Westfriese Flora in Bovenkarspel, then the largest flower exhibition in the world. What was supposed to be a day out turned into a disaster. Some 318 visitors became infected with the legionella bacteria. At least 32 of them did not survive. What happened Part of the Flora was a consumer trade show, which included hot tubs on display. Legionella bacteria had developed in one or more of those baths. The exhibitor had not added chlorine to the water. The reasoning: no one would sit in the bath anyway. That reasoning turned out fatally. Legionella bacteria spread through water droplets in the air. Walking along the bath was enough to become infected. Legionella-induced Legionnaires' disease was diagnosed in about 318 visitors. The disease caused permanent lung problems. At least 32 people died from the effects. Many of those affected were from the West Friesland region. The community as a whole felt affected. Enforcing recognition At the request of the Consumers' Association, Beer advocaten took up the case for all victims and surviving relatives. The exhibitors who owned the contaminated hot tub were held liable. The Westfriese Flora itself and the Dutch State were also sued, arguing that not enough had been done to identify the danger of legionella and take measures. The Alkmaar District Court rejected the claims against the Flora and the State in 2002. It found that only the exhibitors had acted unlawfully. All parties appealed. Three problems of proof The case had a number of intractable obstacles. The first was medical: was it possible to become infected simply by walking past the hot tub? That had to be substantiated. The second was factual: How do you prove that visitors had actually been at the Flora? Many victims had bought their tickets in cash and had not kept them. Smartphones did not exist in 1999; there were hardly any photographs. The third problem was financial and unexpected. A defunct foundation The insurer of the liable exhibitor had paid out the full sum insured. Just not to the victims. The money, nearly 600,000 euros, had been placed in the Talpa Foundation, based in the eastern part of the country. The foundation had been set up by the stand holder and his insurer, ostensibly for the benefit of the victims. Its existence had been kept secret for years. When the Consumers' Association discovered the existence of Stichting Talpa, it initiated summary proceedings. The Zutphen District Court ordered the foundation to enter into consultation with the Consumers' Association within three months and determine a compensation scheme. An independent administrator was appointed. That administrator determined that the money in the foundation could no longer be found. Insurer pays again After talks with the insurer, Nationale-Nederlanden decided on a second payment, this time directly for the benefit of the victims, plus interest. An independent board reviewed the individual claims. Victims who could prove that they had been infected on the Flora and had suffered damages that had not already been compensated in other ways were eligible for payment. In the case of personal injury claims,