Carl-Herman Schulte-Hillen, a young lawyer in Hamburg,Germany in 1961 did not accept that his newborn son’s deformity resulted from natural mutation. He teamed up with Dr. Widukind Lenz, a physician at the Children’s Clinic at Hamburg University and together they discovered that the Thalidomide pill taken by his wife as a sedative when she was pregnant was the real cause of his son’s deformity. And furthermore, they discovered that thousands of other babies in Germany and around the world were also victims in what turned out to be the worst drug scandal in history. Carl-Herman was instrumental in a monumental court case that finally brought some justice and compensations for the victims of Thalidomide. Carl-Herman recently passed away January 14, 2017. Jan and his siblings have written a heart-felt eulogy to their father below.
Carl was a man with a very deep and crystal clear understanding of the terms “right” and “wrong”. For him, “having right” and “fighting for getting your rights” went hand in hand. Being a lawyer was not only his profession but his vocation.
Therefore it was impossible for him to accept Jan’s handicap as simply “bad luck”. He knew that our cousin was born with identical short arms a couple of weeks earlier. Instead of accepting the explanation “it must be genetic, it runs in your family” – as many told him and as everybody else would probably have done-, he instinctively assumed an external agent to be responsible for the malformations.
His immediate goals were:
1. Find out what or who was responsible for the handicap.
2. Find a way to financially compensate the victims.
Carl assumed the proper legal definition of what had happened was a “bodily injury by negligence” (and not “with intent”). However, such an action against an embryo would not have been punishable under law in those days. It would have otherwise criminalized every mother having an accident or smoking during pregnancy. Furthermore, as the unborn was not considered a person carrying rights and since no injury had been caused to the mother, the damage caused could not be indemnified under the legal frame applicable at the time.
With his assumption of negligent doing (or omission), revenge and punishment were never on his agenda, particularly because both would interfere with his goal no. 2 to finding a way to financially compensate the victims. The hurdles of German procedural law were (and continue to be) very high. Thus, the predominant goals of Carl could only be reached in a civil settlement agreement, meaning only in ‘cooperation’ with whoever was to be held responsible.
After he teamed up with Prof. Widukind Lenz, who was not only a pediatrician but had also worked many years in pathology, it became obvious very fast that the malformations were not caused by a genetic disorder. Lenz had never seen any malformation of the kind before, neither as a pediatrician nor in his years in pathology. He rapidly concluded an external agent to be most likely the cause.
The story of the two gentlemen traveling all around in Germany in Carl’s old Volkswagen (Lenz never had a driving-license) and literally dragging babies with short arms or short legs to the light of day is notorious.
We understand and deeply cherish Carl’s motives for never giving up, although we do have difficulties to fathom how our family survived through the years 1961 through 1971. There was our mother Linde, of cause, who kept the household going and us three wildlings under control. But Carl had put all his energy into the pursuit of his thalidomide goals and did not get any support from the outside.
Friends and families had turned away in dismay, over Jan’s handicap and over Carl’s and Linde’s stubborn pursuit securing the future support for Jan and the other handicapped children, at the detriment of economic security and a lawyer’s career. Carl had quit working in his father’s law firm and opened his own small boutique law office in Siegen, a town completely new to him. But since he constantly attended the court hearings in Aachen there was little time left for his clients in Siegen.
Meanwhile, we three children grew up in a home that was a cozy nest made from second hand furniture in which shipping boxes for oranges played a central role as shelves, storage and table. We played with what was there, and toys that Linde made. There was no money and no fancy things. We recall this time as a wonderful and happy childhood but it must have been very challenging for our parents.
Carl never gave up even though everybody told him there is no way for a solution for the thalidomide children. He built the solution himself. He represented more than 700 thalidomide-disabled victims and provoked the largest criminal lawsuit in Germany since the Nuremberg trials, achieving the largest compensation paid until that date in German legal history.
He fought against big players and against foul play…
Carl pushed the public prosecutor to start investigations after a large orchestrated press coverage exposed the evidence on thalidomide to the public and made any further ignoring of the truth impossible.
In Germany, we do not have any pre-trial discovery procedures. The victims and suitors must demonstrate all proof of causation without having access to the originator of damage’s material, writings and observations. Using the public prosecutor’s investigation of a criminal offense was the only way to trigger an official investigation; the only way to access the material of proof.
When Carl found out that justice minister Josef Neuberger had delayed his authorization of the lawsuit against the defendants for nine months, he contacted him indirectly. (Josef Neuberger represented Grünenthal company owner Hermann Wirtz prior to becoming the justice minister in the state of North Rhine Westphalia where the trail was being held.)
Carl left no doubt about his intentions to have the prosecution against the representatives of Grünenthal continue, at whatever costs, thus forcing a way to have his claims accepted after all.
Carl desperately needed the criminal lawsuit, in spite of assuming that this would not lead to a criminal conviction. In Germany, the costs for criminal proceedings are covered by the state. In a civil lawsuit, the plaintiffs have to cover all the costs themselves. Neither Carl nor the other victims’ families had the means to so do.
As Carl had feared, the criminal lawsuit was doomed to fail and was ultimately abandoned – however only under the condition of a settlement between Grünenthal and the victims. The settlement agreement later involved the German government. In 1972 a public trust fund was established. Grünenthal provided 100 million marks. The German government matched that amount and provided another 50 million.
The trust served multiple purposes. A public trust is created under a specific law, which allows to anticipate certain risks and protect the funds against undue usage. For example: Under German law, all health care expenditures are ultimately borne by the public health insurance. In case a third party caused damage, the right to seek indemnification for the cost of healing and treatment passes by law to the health insurer, thus, ultimately giving the public health insurer access to the funds held in trust.
Furthermore, any social welfare or other governmental or municipality sourced support system will consider any right to payments as income and, in most cases, exclude the right to further public support.
The law, under which the thalidomide trust was set up, explicitly excludes the access of public health insurance to the fund and the consideration of money received from the trust while determining the level of need in public support.
Such a public trust may further serve as a platform for public donation and as the beneficiary of public and administrative fines. For many years judges and public administration in Germany ruled public fines be paid to the benefit of the thalidomide trust. The trust seemed the best possible solution at that time and the idea was adopted by other countries such as Japan.
Carl considered monthly allowances instead of a single payment as an intelligent way to prevent any potentially unwise use of the money by the families of the minor victims. Knowing that the money of the trust would never last a lifelong period, Carl had the German government itself contribute to the trust (as a ‘compensation’ for poor oversight of the pharmaceutical production process in Germany), thus giving them responsibility for the victims and making sure that the monthly allowances were guaranteed even if the trust itself ran out of funds. (This actually happened in the late eighties).
The money was declared as compensation for personal injury and not as indemnity thus giving way to the payments being tax-free.
Carl achieved his goals: He found out what had gone wrong and who was responsible for the catastrophic event. He also established a way that allowed the victims to at least be compensated financially to the maximum extent possible at that time, considering the financial capacity of Grünenthal (87 million marks turnover/year versus 100 million marks indemnification payment, grossed up by the government with another 50 million marks).
As highlighted above, punishment and revenge were never his focus. He knew this would only be at the expense of the victims.
We, his children, admire him for his crystal clear conception of ‘right’ and ‘wrong’, for keeping a clear mind in spite of the pain he must have experienced and for his unwavering determination in building a path when it looked like there was none.
When Hannibal learned from his generals that there was no way he could possibly ride his elephants across the Alps to go to Rome, he is said to have responded: “Viam inveniam aut faciam”. It is very likely that Hannibal spoke Punic and not Latin. But this does not change the deeper meaning of what he said: “I will find a path – and if not, I shall build it”.
We are sure that Carl never knew that proverb but we do see him living up to it every day of his life. His work for the victims (and many others in similar situations) did not end after the settlement agreement was reached, but continued in a lifelong battle against many obstacles arising later as the victims grew up. He has been a member of the trust until he turned 75.
It has been extraordinarily painful for us to see this sharp and clear mind being more and more clouded during the past ten years by his Alzheimer dementia, only letting pass an occasional smile or tear when he saw us – emotions of a loving father and grandfather.
Sadly, our father, who was an ardent sailor, set his sails to shores unknown to us and passed away on January 14th of this year.
He shall always be with us.
Catrin, Sven and Jan Schulte-Hillen