Pulling for an Early Paycheck · 2007-09-18 07:45

On August 2, 2007, U.S. Court of Federal Claims Judge Bohdan Futey repealed an award of over $300,000 granted to the Boston vaccine-injury firm Conway Homer & Chin-Caplan for work related to development of “general causation” arguments pending review in the Omnibus Autism Proceeding (OAP).

Judge Futey’s order in Iannuzzi v. Secretary of Health and Human Services (HHS) (No. 02-780V) offers a revealing glimpse of the compensation anticipated by OAP petitioners’ attorneys, regardless of whether their clients’ claims have merit.

The Claim

Iannuzzi v. HHS pertained to a boy born in March 1998 and diagnosed with autism in September 2000. In October 2001, his mother retained Conway Homer & Chin-Caplan, which at the time represented thirteen other families who alleged that their children’s autism was a consequence of vaccine injury.

On July 3, 2002, the Omnibus Autism Proceeding was established; nine days later, Iannuzzi v. HHS was added to the autism docket. The extensive discovery process in the OAP significantly delayed case processing while the number of autism petitions soared.

In November 2005, the boy’s medical records were submitted to the court. Shortly thereafter, the petitioner filed a motion requesting that Iannuzzi v. HHS be heard separately from the other autism cases, and requesting that Special Master George Hastings promptly consider the case record and issue a ruling.

The Special Master dismissed the petition that December, observing that:

…[T]he records do not contain a medical expert’s opinion or any other evidence indicating that Peter’s autism was vaccine-caused…. Here, because the medical records do not seem to support the petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion… [I]t is clear from the record in this case that petitioner has failed to demonstrate either that [the child] suffered a “Table Injury” or that his autism was “actually caused” by a vaccination.

(A “table injury” is an injury recognized by statute as a scientifically documented adverse effect of a vaccine. The Vaccine Act authorizes compensation for medically documented table injuries without requiring petitioners to prove that a particular substance is capable of causing the injury.)

The Compensation

In Vaccine Court, a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful. Accordingly, in July 2006, the petitioner’s attorneys submitted their account of expenses to the court.

The bill included $7,024.71 for work performed by Conway, Homer and Chin-Caplan specific to Iannuzzi v. HHS, and $384,813.43 for work related to the general issue of autism causation. $71,566.63 pertained to work performed before Iannuzzi v. HHS was filed; $48,706.87 of that amount represented fees and costs incurred before the petitioner contacted the firm. Approximately $60,000 applied to work performed after the petitioner’s counsel filed a motion for a ruling on the record. $27,492.37 of the “general causation” tally covered attorneys’ attendance at Institute of Medicine and advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs. $21,848.67 represented fees and costs of preparing and defending the request for fees and costs.

HHS counsel protested, calling attention to the fact that no hearing had ever been conducted in Iannuzzi v. HHS, and that the petitioner had presented no “general causation” evidence. They argued that the portion of the award pertaining to the pending Omnibus Autism Proceeding constituted an impermissible interim fee award — that is, “a preliminary award… at an earlier stage of the case, so that a party will not have to wait until proceedings ‘on the merits’ are concluded.” Although general funds had previously been established for compensation of numerous petitioners with similar claims, reimbursement only occurred after the conclusion of omnibus proceedings, and was only awarded to petitioners with a viable stake in the proceedings, which did not apply in this case.

They further argued that, since numerous firms had been working on the “general causation” issue, it would be appropriate for the Special Master to wait until the end of the OAP so that he would be better able to judge the reasonableness of total fees and costs submitted by Petitioners’ Steering Committee members.

On March 30, 2007, Special Master Hastings awarded the petitioner $317,347.18 for legal expenses incurred between September 8, 2000, and November 14, 2005, stating that “the petition was brought in good faith, and… there existed a reasonable basis for the claim.” He indicated that he was intimately familiar with the complexity of the “general causation” issue, having spent many hours reviewing the relevant scientific studies. Hastings averred that this complexity justified the number of hours spent by the firm, that the time they had spent on the matter was reasonable under the circumstances, and that there was “no good reason to wait” to compensate them for their work. He described several previous omnibus proceedings in which compensation for “general causation” work was awarded in the context of a single case.

The Special Master further observed that Conway, Homer & Chin-Caplan had “a history of achieving solid results for its clients while, at the same time, expending a number of hours per case that has usually seemed quite reasonable, in comparison to other Vaccine Act attorneys.” (These “other attorneys” were not identified.) Although Iannuzzi v. HHS was dismissed for lack of evidence, Hastings stated that fair compensation would ensure future Vaccine Act petitioners access to competent legal counsel and was essential to the viability of the Vaccine Program.

The Challenge

HHS counsel promptly appealed. They argued that the Special Master had exceeded his authority by granting the award for attorneys’ fees while the OAP causation litigation was pending. (Hearings in the first “test case,” Cedillo v. HHS, began in June 2007.) They contended that even if it were appropriate to award fees and costs for “general causation” work, the amount awarded was unreasonable for a single vaccine-injury claim in which the “general causation” question had not been raised, and for which no hearing had occurred. They pointed out that it would be unreasonable for an attorney to bill a client for fees and expenses incurred prior to being retained; so too was it unreasonable for the court to award reimbursement of fees and expenses incurred by a firm prior to being retained by a petitioner.

The petitioner’s attorneys countered that their fees were reasonable because their client had a basis to file her claim, and because “general causation” was relevant to her case. Medical records indicated that her son developed autistic symptoms after receiving vaccines containing thimerosal, and her son’s physicians had identified no alternate cause for his autism. (Curiously, the case docket indicates that Iannuzzi v. HHS originally alleged damage from the measles-mumps-rubella vaccine (MMR).)

They argued that it was extraordinarily expensive to pursue the multitude of autism cases, and that all of these petitioners were required to file their claims in Vaccine Court. After admitting that the fees “might be unreasonable” if that claim were the Vaccine Program’s only autism case, they maintained that it would have been appropriate and reasonable to expend the same monies developing the “general causation issue” even if she were their only autism client.

Conclusion

In his ruling on the appeal, Judge Futey differed with Special Master Hastings’ legal conclusions. He agreed with HHS counsel that Hastings had overstepped his jurisdiction in granting the award. Since the petitioner’s medical records established no connection between her child’s autism and his vaccinations, and since she had failed to address how “general causation” was relevant to her case, he determined that “general causation” was therefore irrelevant, and that the award was therefore unjustified. He ruled that the Vaccine Act does not permit interim fee awards, and that even if it did, the amount requested would be excessive since most of the general causation work was developed for the firm’s other clients.

Reversing Special Master Hastings’ decision, Judge Futey approved an award of $7,024.71 in costs specific to Iannuzzi v. HHS, and denied the request for expenses related to the OAP.

Commentary

Thanks to Judge Futey’s decision, U.S. taxpayers are not yet obliged to pay Conway, Homer and Chin-Caplan for development of their “general causation theory” of vaccine-induced autism — a theory that relies largely on speculation, inference, and conclusory science, much of it commissioned by plaintiffs’ advocacy groups after initiation of thimerosal litigation. The general public is not yet required to finance their fraternization with clients, potential clients and allies at advocacy group conferences; to bankroll their participation in public commissions on vaccine policy; and to compensate them for the time and expense of networking, strategizing and honing their professional skills at meetings with colleagues in the vaccine plaintiffs’ bar.

Review of judicial decisions confirms that the firm has successfully represented numerous clients with meritorious claims. However, the testimony in Cedillo v. HHS — the first Omnibus Autism Proceeding test case, in which the firm served as counsel to plaintiffs — reveals a pattern of speculation by petitioners’ expert witnesses, and occasional instances of outright misrepresentation. Witness Dr. Arthur Krigsman’s testimony regarding a penalty levied against him by the Texas Medical Licensing Board, from which he had withheld information about a disciplinary action by Lenox Hill Hospital; the hospital’s Institutional Review Board and administration put a stop to his habit of subjecting autistic children to invasive endoscopies with no apparent medical necessity. Witness, too, the spectacle of Dr. Vera Byers, caught red-handed padding her resume; whereas she had claimed an academic affiliation with the University of California at San Francisco, she admitted under oath that her involvement consisted of little more than “using their libraries and going to their parties.”

Review of the post-hearing Cedillo v. HHS docket reveals the firm’s determination to suppress evidence offered by Prof. Stephen Bustin, who documented significant problems with the Irish laboratory that consistently reported readings of measles in autistic children’s spinal fluid and intestines. Open-minded consideration of such evidence could relieve many parents of an undeserved burden of guilt over conscientiously immunizing children later diagnosed with autism, then dubiously diagnosed with “persistent measles virus.” It could also redirect parents’ misplaced outrage as they comprehend that they have been misled by individuals with an economic interest in promoting the idea that their autistic children have been damaged by vaccines.

The Vaccine Court’s no-fault compensation system enables petitioners to press claims in good faith without prohibitive expense, and to obtain fair monetary damages for legitimate injury. That system also has created an incentive for attorneys to flood the U.S. Court of Federal Claims with evidence-poor petitions such as Iannuzzi v. HHS, initiated by parents retrospectively persuaded that their children’s disabilities are vaccine-related. A handful of firms are responsible for the majority of filings; by the end of 2006, over 600 autism petitioners were represented by Conway Homer & Chin-Caplan alone. Dozens of other families have filed civil suits alleging negligence and willful misconduct on the part of vaccine manufacturers, government agencies and individual physicians; many of these have been dismissed for legal insufficiency, lack of evidence, rejection of expert witnesses, or plaintiffs’ failure to first pursue their claims in Vaccine Court.

Plaintiffs’ “good faith” is, in great part, the product of assiduous proselytizing. Vaccine injury lawyers, plaintiffs’ expert witnesses and their allies occupy podiums at autism conferences around the country, propagate the concept of autism as a consequence of legally actionable harm, and encourage the adulation of “heroes of the cause.” Newspapers and magazines regularly publish human interest stories based on information provided by vaccine-injury plaintiffs, inspiring deserved sympathy for the challenges faced by autistic children and their families, and perpetuating litigation-friendly scienciness about autism and vaccines. Online newsgroups create communities of “true believers” and offer a venue for mutual reinforcement of parental convictions about autism causation, treatment and culpability.

Vaccine-injury firms broadcast certitudinous pronouncements about medical matters, such as the assertion by Waters & Kraus that chelation-provoked testing provides a means of “definitively establishing” that a child is autistic due to thimerosal poisoning, and Clifford Shoemaker’s assertion that “[m]any children also improve when mercury is removed through chelation.” Such statements have helped to fuel an economic boom for mail-order laboratories whose colorful reports facilitate the movement of capital from families to entrepreneurs promoting various off-label pharmaceuticals and nutritional products — substances that inevitably find their way into the bodies of autistic children.

Petitioners’ need to manufacture “evidence of harm” has resulted in thousands of autistic children being administered drugs that disrupt their mineral metabolism, often after commencement of litigation. According to a 2001 newsgroup post by Jo Pike, vaccine-injury petitioner and founder of the National Autism Association, parents have been explicitly encouraged to do so by attorneys:

“I’ve been talking to several lawyers and get the feeling in the end that they’re all going to want clients who are doing chelation with lots of tests to show what’s coming out. The lawyer I talked to today said I should test after every single round…”

Autistic children subjected to prolonged chelation during litigation include the boy at the center of Iannuzzi v. HHS, who underwent provoked testing to diagnose “metal toxicity” after his mother retained counsel, who began treatment after she filed her vaccine-injury claim, and who was administered sixty rounds of dimercaptosuccinic acid (DMSA) over the course of the next two years.

The litigation-fueled panic over autism and vaccines continues to play out at autism conferences, in the popular media, in the courts, in doctors’ offices, in families’ emotional and economic lives, and in autistic children’s bodies. Eventually, someone will have to foot the bill for the production costs.

Comments


  1. Just brilliant. I hope the Special Masters are reading this.

    It makes me queasy to think that my tax money is funding these liars.

    — isles    2007-09-18 14:37    #

  2. Good job Kathleen, gotta keep the truth from getting out.

    — George Bush    2007-09-18 22:43    #

  3. You’re a good little soldier, Kathleen. Keep it up! Check’s in the mail.

    — Eli LIlly    2007-09-19 11:20    #

  4. John, you’re just mad because this delays the check you’re hoping for. Ignore details like dose-response curves and the non-response to chelation of actual victims of mercury-induced neuropathy (Iraq and Japan).

    — Ruth    2007-09-19 12:46    #

  5. Amazing. No one ever finds an actual fault in your investigative articles. All they can do is insult you for imaginary wrongs.

    I wish the media would figure out what was behind the “autism epidemic as caused by vaccines” or rather who was behind it, namely low life ambulance chasers.

    — Ms. Clark    2007-09-19 16:50    #

  6. This explains why the Cedillo’s lawyers presented such a lame and sloppy case. They know there’s no evidence but if they just show up and go through the motions, they’ll get paid.

    — Tom    2007-09-20 08:44    #