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Mel Mermelstein (born September 25, 1926, Örösveg (or Oroszvég, Ukrainian: Rosvyhove, German: Rosswegau), near Munkacs) is a Hungarian-born Jew, sole-survivor of his family's extermination at Auschwitz concentration camp who defeated the Institute for Historical Review in an American court and in 1981 had the occurrence of gassings in Auschwitz during the Holocaust declared a legally incontestable fact.
Before World War II broke out, Mermelstein lived in Munkacs, then part of Czechoslovakia (occupied by Hungary in 1938). On May 19, 1944 he was deported to the Auschwitz concentration camp.
In 1980, the Institute for Historical Review (IHR) promised a $50,000 reward to anyone who could prove that Jews were gassed at Auschwitz.
Mermelstein wrote a letter to the editors of the LA Times and others including The Jerusalem Post. The Institute for Historical Review wrote back, offering him $50,000 for proof that Jews were, in fact, gassed in the gas chambers at Auschwitz. Mermelstein, in turn, submitted a notarized account of his internment at Auschwitz and how he witnessed Nazi guards ushering his mother and two sisters and others towards (as he learned later) gas chamber number five.
The IHR refused to pay the reward, stating that Mermelstein's notarized account was "not sufficient proof". Represented by public interest attorney William John Cox, Mermelstein subsequently sued the IHR in the Superior Court of Los Angeles County for breach of contract, anticipatory repudiation, libel, injurious denial of established fact, intentional infliction of emotional distress, and declaratory relief (see case no. C 356 542). On October 9, 1981, both parties in the Mermelstein case filed motions for summary judgment in consideration of which Judge Thomas T. Johnson of the Superior Court of Los Angeles County took "judicial notice of the fact that Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944," judicial notice meaning that the court treated the gas chambers as common knowledge, and therefore did not require evidence that the gas chambers existed. On August 5, 1985, Judge Robert A. Wenke entered a judgment based upon the Stipulation for Entry of Judgment agreed upon by the parties on July 22, 1985. The judgment required IHR and other defendants to pay $90,000 to Mermelstein and to issue a letter of apology to "Mr. Mel Mermelstein, a survivor of Auschwitz-Birkenau and Buchenwald, and all other survivors of Auschwitz" for "pain, anguish and suffering" caused to them.
In a pre-trial determination, Judge Thomas T. Johnson declared:
"This court does take judicial notice of the fact that Jews were gassed to death at Auschwitz Concentration Camp in Poland during the summer of 1944. It is not reasonably subject to dispute. And it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact."
In California, the Evidence Code permits the Court to take judicial notice of "facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute."
In 1986, the IHR, along with its founder Willis Carto, sued Mermelstein for allegedly libelling them during an interview with a New York City radio station, but dropped the charges in 1988. Mermelstein also sued the IHR in 1988 for an article in the IHR Newsletter that examined what it considered to be flaws and inconsistencies in his 1981 lawsuit testimony.
Mermelstein was portrayed by Leonard Nimoy and Cox was played by Dabney Coleman in a 1991 TV film, Never Forget, about the 1981 lawsuit. He wrote of the court battle in his autobiography, entitled By Bread Alone.
"About these so-called deniers of The Holocaust, and who they really are, see my letter to the editors dated August 1980 in my book By Bread Alone, The Story of A-4685."- Mel Mermelstein