In re Nazi Era Cases against German Defendants, Civ. 03-3413(WGB).

• Decision Date: 10 September 2004
• Docket Number: No. Civ. 03-3413(WGB).,Civ. 03-3413(WGB).
• Parties: In re NAZI ERA CASES AGAINST GERMAN DEFENDANTS LITIGATION. Simon Rozenkier, Plaintiff v. Schering AG & Bayer AG, Defendants.
• Court: U.S. District Court — District of New Jersey

334 F.Supp.2d 690

In re NAZI ERA CASES AGAINST GERMAN DEFENDANTS LITIGATION Simon Rozenkier, Plaintiff v. Schering AG & Bayer AG, Defendants.

No. Civ. 03-3413(WGB).

United States District Court, D. New Jersey.

September 10, 2004.

Stephen A. Whinston, Esq., Berger & Montague, P.C., Philadelphia, PA, for Plaintiff.

John J. Gibbons, Esq., Gibbons, Del Deo, Dolan, Griffinger & Veccione, PC, One Riverfront Plaza, Newark, NJ, Roger M. Witten, Esq., Wilmer Cutler Pickering LLP, New York City, for Defendants.

OPINION

BASSLER, District Judge.

Simon Rosenkier is now 78 and lives in Staten Island, New York. During World War II, however, Rozenkier was a prisoner in the Auschwitz-Birkenau concentration camps. Among the told and untold cruelties Rozenkier endured as a Nazi prisoner, in 1944, were numerous hypodermic injections into his testicles, causing the swelling and bleeding of his genitalia. See Pl.'s Memo. in Opp., Ex. 6(A); Compl. ¶¶ 21-23. After his liberation from Auschwitz-Birkenau, Rozenkier emigrated from Poland to the United States where, within a few years, he was drafted into the U.S. army and deployed to Korea. Following the Korean War, in 1952, Rozenkier married. He was unable to have children, however. In 1956, the cause of his sterility was yet unresolved as a medical diagnosis served inconclusive; it was not until 1999 that Rozenkier learned definitively that his "infertility was the result of a Nazi `medical experiment.'" See Pl.'s Memo. in Opp., Ex. 6(A) at 6-7; id., Ex. 6, ¶ 9.

On March 25, 2003, Rozenkier filed a complaint (the "Complaint") in the Eastern District of New York. He claims, in part, that Schering AG's and Bayer AG's (the "Defendants") complicity with the Nazi regime violated international law.¹ Specifically, Rozenkier alleges that Defendants participated in secret experiments, such as the one performed on him in 1944, in order to evaluate the efficacy of "mass sterilization" drugs manufactured by Defendants. He "seeks full disclosure of the chemical substance used to sterilize him, as well as compensatory and punitive damages...." Compl. ¶ 3.

Shortly after the filing of the Complaint, the Judicial Panel on Multidistrict Litigation (the "MDL Panel"), recognizing that the Complaint "involves questions of fact which are common to the actions previously transferred" to this Court, ordered a conditional transfer of the action from the Eastern District of New York. See MDL Conditional Transfer Order (June 24, 2004). The transfer was effected in August 2003 and consolidated with MDL Docket No. 1337: In re Holocaust Era German Industry, Bank & Insurance Litigation. On March 12, 2004, Defendants moved to dismiss the complaint. They argue principally that Rozenkier's claims are nonjusticiable. The Court agrees and offers the following rationale.

Introduction

The Court's intimacy with Holocaust-related cases, particularly those lawsuits filed by American plaintiffs against German corporations, began formally on August 4, 2000. It was then that the MDL Panel consolidated approximately 50 Nazi-era cases before this Court following a "motion for centralization" pursuant to 28 U.S.C. § 1407. The consolidation occurred in light of "an important international agreement which promise[d] to present significant common pretrial issues pertaining to the settlement or dismissal of the actions." MDL Transfer Order, Docket No. 1337.

On July 17, 2000 an agreement (the "Joint Statement") was signed between interested federal governments including those of Germany and the United States, German corporations ("German Industry") and attorneys of various plaintiffs, who agreed to dismiss their lawsuits against German Industry in exchange for the creation of the German Foundation "Remembrance, Responsibility and the Future" (the "Foundation"). Concurrently, the Governments of the Germany and United States signed an executive agreement (the "Executive Agreement") that reflected the commitments of the two governments to the Foundation. The Foundation's funding was to be shared equally by the German Government and German Industry in the amount of DM 10 billion.

As the Court noted in In re Nazi Era Cases Against German Defendants Litigation, 320 F.Supp.2d 235, 238 (D.N.J.2004), the Foundation has recently "[paid] out over DM 5.5 billion to more than 1.5 million victims of Nazi persecution during its two and one-half years of existence." These victims include "forced or slave laborers and those who suffered at the hands of German [Industry] during the National Socialist era[.]" Pl.'s Memo. in Opp., Ex. 1, Annex A, ¶ 1 (the Executive Agreement). In return for the Foundation's principal funding, the parties to the Joint Statement "[a]ccept[ed] the common objective that German [Industry] receive all embracing and enduring legal peace." Id., Ex. 2 at 3. The United States recognized the importance of such "all-embracing and enduring legal peace[.]" Id., Ex. 1, Art. 2(2). To that end, the Executive Agreement states:

[T]he United States will timely file a Statement of Interest and accompanying formal foreign policy statement of the Secretary of State and Declaration of Deputy Treasury Secretary Stuart E. Eizenstat in all pending and future cases, regardless of whether the plaintiff(s) consent(s) to dismissal, in which the United States is notified that a claim has been asserted against German companies arising from the National Socialist era and World War II.

Id., Ex. 1, Annex B at 1 (emphasis added). The Complaint is such a "future case[ ]" anticipated by the Executive Agreement.

Statement of Interest

In accordance with the terms of the Executive Agreement, the United States filed a statement of interest (the "Statement of Interest") in this action. The Statement of Interest recognizes that "[t]hose who suffered ... non-labor-related personal injuries, such as being subject to medical experimentation ..., are eligible to apply for payments" from a designated pool of Foundation money. See Statement of Interest at 7 (Mar. 15, 2004). Because "all victims who suffered injury — including medical experimentation — at the hands of German [Industry] are eligible to apply for [Foundation] benefits ... includ[ing], by definition, the plaintiff in this litigation [Rozenkier] [,]" the United States concludes that the Foundation provides a fair remedy for all victims of the Nazi regime and German Industry, including Rozenkier. Id. at 8, 11. As such, the Statement of Interest recommends that the action should be dismissed because "all asserted claims should be pursued through the Foundation instead of the courts" in accordance with United States foreign policy interests. Id. at 11; see id. at 11 n. 5 ("The United States maintains this policy in the current administration.")

Rozenkier's Foundation Claims

After the execution of the Joint Statement and the Executive Agreement, the German Bundestag accordingly enacted the Law on the Creation of a Foundation "Remembrance, Responsibility and Future" (hereinafter, the "Foundation Law"), which was entered into force on August 12, 2000. See Valen Decl., Ex. 3 at 1. The Foundation Law "set aside DM 50 million for cases of `other personal injury,' including cases of `medical experiments,' such as those alleged in the Complaint." Defs.' Memo. in Supp. at 2-3; see Valen Decl., Ex. 3, § 9(3). Consequently, Rozenkier applied for his tranche from the DM 50 million reserve.² Notwithstanding that application, Rozenkier also filed the Complaint seeking additional relief.

The Foundation Law provides explicitly that "partner organizations ... shall determine the merits and amount of the damage claimed." Valen Decl., Ex. 3, § 9(3) (emphasis added). The "amount of compensation," however, "shall be determined by the [Commission] in accordance with the ratio between the totality of damages recognized by the partner organizations" and in consideration of the DM 50 million allotment. Id.

The Foundation Law grants the authority to "establish supplemental principles concerning the content and procedure of [the Commission's] determinations, insofar as these are not already established under [the Foundation] Law or the by-laws." Id., Ex. 3, § 9(6). Pursuant to that authority, the partner organizations and the Foundation's Board of Directors approved certain guidelines, which were then unanimously approved by the Foundation's Board of Trustees on June 21, 2001. The guidelines categorized "other personal injuries" into three groups and assigned respective compensation ceilings available for each category of injury. Victims of medical experimentation "[are] to be given priority under the [Foundation] Law in providing compensation ... up to DM 15,000." Pl.'s Memo. in Opp., Ex. 9 at 6. However, if the DM 50 million earmarked for victims of "other personal injuries" is not sufficient, each victim would receive a reduced pro rata amount. See id. In the end, the pro rata approach was followed.

Rozenkier's application to one of the Foundation's "partner organization" — in this case, the Conference on Jewish Material Claims Against Germany, Inc. — was approved by letter dated February 6, 2004. See Pl.'s Memo. in Opp., Ex. 7 at 1. That letter stated, in part:

On the basis of the information you provided and the evidence you submitted, your eligibility has been established as a "victim of medical experiments."

. . . . .

Under the Foundation Law, the total amount of the payment to each person depends on the total number of persons who are eligible to receive a payment. Now that all of the applications have been processed, it has been established that every person eligible in connection with other personal injuries shall receive a payment of 4243.72(EUR).

The same amount is being paid to each eligible person and therefore it is not possible to file an appeal with the Independent Appeals Authority regarding the amount of payment.

Id., Ex. 7 at 1. A check made payable to Rozenkier in the amount of U.S....