Gaming the System · 2008-08-31 14:45

Two recent opinions published by the U.S. Court of Federal Claims Office of Special Masters add to the growing collection of decisions sharply criticizing the litigative and billing practices of vaccine-injury attorney Mr. Clifford Shoemaker, a vocal proponent of speculative hypotheses positing vaccine causation of autism, diabetes, chronic fatigue syndrome, hearing loss, and numerous other conditions. Mr. Shoemaker is a founding member of the Petitioners’ Steering Committee of the Omnibus Autism Proceeding, treasurer of the National Vaccine Information Center, co-founder of the Institute for Chronic Illnesses and founding member of its Institutional Review Board, which provides ethical oversight of medical research on autistic children conducted by his long-time colleague Dr. Mark Geier.

Lamar v. HHS (Case No. 99-584V; hereinafter referred to as Lamar 1) and Lamar v. HHS (Case 99-583V; hereinafter referred to as Lamar 2) involved brothers born in 1994 and 1997, each of whom received a routine series of childhood vaccinations, and each of whom developed a seizure disorder in infancy. In August 1999, their mother, represented by Mr. Shoemaker, filed two petitions for compensation under the Vaccine Act alleging that hepatitis B vaccines and other, unspecified vaccinations caused both boys to develop unspecified “adverse reactions.” Neither petition specified when the vaccines were administered; neither was accompanied by medical records. Both claims joined scores of others filed by Mr. Shoemaker shortly before the deadline for petitions alleging injury from hepatitis B vaccine administered prior to its inclusion on the list of vaccines covered by the National Vaccine Injury Compensation Program (VICP).

In December 1999, the court issued the first of numerous orders requesting production of the children’s medical records. The following six and a half years were peppered with missed deadlines, deadline extensions, requests for stays and subpoenas, and status reports reassuring the court that records were being sought. However, no medical records were filed in either case until June 2006, after both were reassigned to Special Master Denise Vowell. The records finally submitted established the children’s dates of birth, their immunization history, and the eventual development of a seizure disorder. Although the younger child’s medical histories include the mother’s claim that seizures occurred immediately after various vaccinations, her claims were not documented in or substantiated by his treatment records. Both child’s treating physicians had noted the occurrence of seizures in a sibling as well as in a maternal cousin; they had subsequently concluded that the boys were suffering from an x-linked recessive genetic disorder.

Seeking to move the cases to a close, Special Master Vowell issued numerous orders requesting the remainder of the children’s medical records, affidavits from their mother, and medical expert reports supporting her allegations. In March 2007 the mother finally filed her affidavits. In one, she claimed that her child’s seizures began the day of his second hepatitis B vaccination; however, no confirmation of this assertion could be found in his medical records. Although in February 2007 Mr. Shoemaker claimed that he had located an expert who would support his client’s claims, no expert reports were ever filed.

In two decisions issued on July 26, 2007, Special Master Vowell ruled that the petitioner had “completely failed to establish” that either child’s seizures were vaccine-induced, or that either child qualified for compensation under the Vaccine Act.

Good Faith & Easy Money

On February 27, 2008 — just as he was reframing his clients’ demands in the now-abandoned $20,000,000 civil lawsuit, Sykes v. Bayer, and launching a fervent campaign to publicize the Department of Vaccine Injury Compensation’s decision to award compensation to his clients in Poling v. HHS — Mr. Shoemaker submitted applications for fees and costs in the two Lamar cases. The fee petitions requested $23,343.42 for Lamar 1 and $17,596.20 for Lamar 2 — a grand total of $40,939.62 for two virtually identical, medically unsupported claims filed by a single petitioner.

Special Master Vowell’s twin rulings on the Lamar fee petitions were issued on July 30, 2008; they are substantially similar to each other, and are similar in many respects to her recent ruling in Carrington v. HHS (reproduced in its entirety on this weblog under the title, Inspecting the Outstretched Palm). As in Carrington, the Special Master rejected many of the government’s objections to the petitioner’s fee and cost requests in the Lamar cases, but nonetheless refused to authorize compensation for many claimed hours and expenses. (The quotes that follow are drawn from the Lamar 1 fee and cost decision.)

After an introductory discussion of the laws that apply to the award of fees and costs in VICP cases, and after considering medical records documenting the petitioner’s vaccine-causation suspicions prior to filing petitions on her sons’ behalf, the Special Master determined that the petitioner filed in good faith, and that there was a reasonable basis for filing the petition given the impending expiration of the statute of limitations. She nonetheless questioned whether it was reasonable for Mr. Shoemaker to continue prosecuting the claims in the absence of medical evidence or expert opinion supporting vaccine causation of the children’s seizure disorders.

In a lengthy footnote, the Special Master offered three scenarios that illustrate ethical issues faced by vaccine-injury attorneys and the unintended economic consequences of the VICP’s policy of encouraging all petitioners to seek legal representation while frequently excusing petitioners and their attorneys from their obligation to produce supporting evidence at the early stages of a proceeding.

To some extent, our cases interpreting the good faith and reasonable basis requirements leniently encourage “gaming the system” by failing to require counsel to adequately investigate and substantiate the petition at the outset. To illustrate, consider the following hypothetical examples involving a petitioner consulting an attorney about what she believes to be a vaccine-caused injury:
Example 1. The attorney conducts an adequate review of the facts and circumstances, including seeking advice from a medical professional on the likelihood of vaccine causation. The medical professional indicates that causation is unlikely. As a matter of professional ethics, the attorney refuses to file the petition. Under these circumstances, the attorney could not file for the fees and costs incurred in investigating the claim, because no petition was filed.
Example 2. The attorney examines the medical records, noting that a covered vaccine was received and that petitioner thereafter suffered an injury lasting for more than six months. The Act’s statute of limitations is rapidly approaching. The attorney does not seek advice from a medical professional before filing the petition. After filing, petitioner is ordered to file the report of a medical expert and fails to do so because no medical expert will opine that the vaccine caused the injury. The attorney thereafter files for fees and costs. Under these circumstances, our case law will support payment of reasonable fees and costs, to include the costs of obtaining the “no causation” opinion.
Example 3. Assume the facts and circumstances of Example 2, except that the statute of limitations is not rapidly approaching and there is adequate time to obtain advice from a medical expert. The attorney does not do so. When the attorney thereafter files for fees and costs, should they be paid? To do so encourages the failure to adequately investigate cases before filing. However, an attorney’s willingness to take such cases may mean that the petition is not filed pro se. Does encouraging attorneys to take vaccine cases sufficiently advance the Congressional purposes behind the Vaccine Act such that the filing of unsubstantiated petitions is deemed reasonable? [Lamar 1, pp. 8-9, fn. 15; emphasis added]

The Billable Hours in One Man’s Day

Specific line items, many previously discussed in Carrington v. HHS, were then placed under the microscope.

There are issues with some of the hours billed. In addition to the issues raised by respondent, my review of the billing records disclosed claims for repetitive and unnecessary hours… I do not find that all the hours claimed in this case are reasonable.
Over the last 28 months, I have had the opportunity to review at least eleven applications for attorney fees and costs involving hepatitis B cases filed by this firm, plus one additional case transferred to another firm in which this firm’s fees request was incorporated. In my review of these fees applications, a pattern of billing has emerged that gives rise to questions about several entries in this fees application. These entries involve small amounts of time that are mirrored in most of the other hepatitis B cases in which fees applications have been submitted by this firm. Standing alone, the hours claimed are minor. However, when multiplied by the number of cases in which the same hours have already been claimed, and the potential that more will be claimed in the 136 hepatitis B cases originally filed by this firm, a careful review of their reasonableness is necessary. [Lamar 1, p. 10]

As in Carrington, Special Master Vowell pointed out how each of these items had been billed to multiple cases, including but not necessarily limited to:

Savin v. HHS (Case 99-537V)
Lamar 1 v. HHS (Case 99-584V)
Lamar 2 v. HHS (Case 99-583V)
Szekeres v. HHS (Case 99-649V)
Wheatley v. HHS (Case 99-569V)
Pearl v. HHS (Case 99-209V)
Pearl 2 v. HHS (Case 99-210V)
Helzner v. HHS (Case 01-263V)
Carrington v. HHS (Case 99-495V)
Radecky v. HHS (Case 02-1666V)
Duncan v. HHS (Case 99-455V)
Hamrick v. HHS (Case 98-683-V)

As in Carrington, Special Master Vowell explained her rationale for denying reimbursement for a bill for preparation of a mass mailing:

[C]harging 0.4 of an hour (or some portion thereof) to each individual case for mailing out the same documents is not appropriate. Having already authorized compensation for this mass mailing in other cases, I decline to do so again. [Lamar 1, p. 11]

The Special Master looked askance at a $250 charge for an hour-long case review meeting submitted to eight different hepatitis B cases.

At least eight hours of meetings on the same date, lasting for an identical one hour per case, appear to be examples of improper billing. [Lamar 1, p. 11]

Similar duplicative entries, described as fees for Mr. Shoemaker’s status meetings with an associate, also inspired suspicion.

These [status discussion] entries total over two hours of discussion in eleven of the twelve cases I reviewed. The identical nature of these bills suggests that the time claimed cannot be attributed specifically to this case. [Lamar 1, p. 12]

As in Carrington, Special Master Vowell called attention to a $30 charge for reviewing a single order listing 26 cases that had been reassigned to her. Although she acknowledged the need for attorneys to read even routine orders,

billing for six minutes of time to re-read the same order in each case listed on the order borders on the ridiculous. [Lamar 1, p. 15]

A charge for a half-hour of attorney time for “chart review” and status conference preparation, filed to each of ten cases, provided another opportunity for the Special Master to calculate the improbable product of Mr. Shoemaker’s collected statements.

It is reasonable for counsel to review a file (or a chart) in order to prepare for an upcoming status conference. However, it is unlikely that counsel spent an identical amount of time reviewing a case in which voluminous records were filed (99-495V) and this one, in which no records were yet filed. These duplicate entries are problematic, as they total three and one half hours of time on one day for reviewing seven of the twelve cases I examined and an additional hour on a separate day for two more of those twelve cases. Additionally, another half hour was billed to Hamrick v. HHS, assigned to Special Master Moran, reflecting that this billing practice extended beyond those cases assigned to me. These cases alone total five hours of preparation time. If similar entries were made in a similar proportion of the other cases discussed at the joint status conference for which counsel was preparing, then serious questions about this firm’s billing practices arise. The hours billed for preparation for this status conference could easily exceed the hours available in a day.
…Additionally, the aggregate time frame billed in the cases examined suggests that the total hours that may potentially be billed for status conference preparation, if billed in all or a substantial portion of this firm’s hepatitis B cases, would exceed the hours available on the two days used for preparation. Having no confidence that this entry reflects work expended on this particular case, and having previously compensated for the identical entries in other cases, I decline to compensate for it here. [Lamar 1, pp. 15-16; emphasis added]
At the time of the joint recorded status conference that began moving this firm’s stayed hepatitis B cases toward resolution, I was assigned 26 cases. Special Master Moran’s opinion in Duncan indicates that he had 27 such cases. Based on my recollection of the reassignment orders and that status conference, Special Master Campbell-Smith was assigned to a similar number of these cases. With five hours billed out of 13 cases (the twelve I examined and one of Special Master Moran’s), the potential for over-billing the preparation time is clear. [Lamar 1, p. 16, fn. 22]

Special Master Vowell expressed her doubts about Mr. Shoemaker’s bill, submitted to both Lamar cases, for a half-hour he claimed to have spent leaving a telephone message with his client’s roommate.

An identical bill was submitted in D[…]‘s brother’s case. I authorized payment for the entire amount claimed for this entry in that case. Therefore, I will not authorize payment for it here, finding it extremely unlikely that counsel spent an hour on the telephone with petitioner’s roommate, a non-party to this litigation, discussing petitioner’s confidential legal matters. [Lamar 1, p. 16]

The fee petitions for the Lamar cases included substantial bills ($1,700.00 and $2,190.00) for Mr. Shoemaker’s unsuccessful attempts to transfer the cases to another firm, due to his admitted inability to competently and effectively handle his escalating caseload. While acknowledging problematic aspects of this effort — most notably the fact that the petitioner was out of communication with Mr. Shoemaker during that period and was therefore unlikely to have given her consent to the transfer — the Special Master reasoned that the transfer attempt ultimately served the interests of both the petitioner and the Vaccine Program, and agreed to pay for all the time billed for this purpose.

An Expert At Delay

Although the Special Master determined that the petitioner’s fees and costs should be paid up to the point that an expert determined that there was no support for vaccine causation of either child’s seizure disorder, she also observed that her job was made more difficult due to the fact that no expert reports were ever filed with the court, even though over the course of the proceeding Mr. Shoemaker claimed to have enlisted the services of at least five different doctors to evaluate both cases. Certain claims regarding the roles and intentions of these consultants, however, were later undermined by his own time records.

• In June 2006, during discussions about transferring the cases to another attorney, Mr. Shoemaker claimed to have exchanged emails with immunologist Dr. Yehuda Shoenfeld regarding an upcoming meeting to discuss causation in both cases. His subsequent bills, however, did not reflect that such a meeting ever took place.
• In February 2007, he stated in a status report to the court that neurologist Dr. Marcel Kinsbourne had agreed to serve as the petitioner’s expert in both cases. However, billing records did not reflect that Dr. Kinsbourne was ever contacted or agreed to offer an opinion in either case.
• Also in February 2007, Dr. Mark Greenspan, a retired surgeon turned forensic consultant, reviewed each child’s medical records and constructed a chronology of treatment; for this task, he billed 7.5 hours to one case ($2,625.00) and 4.25 to the other ($1,487.50). Preparation of an email to Mr. Shoemaker and an opinion letter for each case was billed at an additional 7.25 hours for one case ($2,537.50) and 5.25 hours for the other ($1,837.50). Although Dr. Greenspan billed nearly $8,500.00 for his services in the two Lamar cases, and although Mr. Shoemaker’s bills to the court included charges for two attorneys to review each of Dr. Greenspan’s “expert reviews,” none of Dr. Greenspan’s work product in either case was submitted to the court.
• In March 2007, Dr. Mark Geier was enlisted to review both children’s medical records, analyze “potential genetics and causation issues,” recommend possible experts, conduct a literature search, and discuss his results with Mr. Shoemaker. Although Dr. Geier submitted a bill for $1,000 for four hours spent in this fashion, no medical literature or opinion letter documenting this work was ever submitted to the court. Mr. Shoemaker’s bills included several charges for his consultations with Dr. Geier, including one in which the subject was “whether the case should be dropped.”
• During a status conference held on May 30, 2007, Mr. Shoemaker claimed to have spoken to Georgetown University immunologist Dr. Joseph Bellanti, and claimed that Dr. Bellanti had been unable to complete his expert reports due to the press of business and the complexity of the genetic issues supposedly presented by the Lamar cases. Although Mr. Shoemaker assured the court that Dr. Bellanti would be able to produce these reports by June 30, 2007, his billing records reflected that his first substantial case-related communication with Dr. Bellanti was made on June 27 — a scant three days before the newly-extended deadline, and four weeks after Mr. Shoemaker originally indicated that he had been retained as an expert. No bill from Dr. Bellanti was ever submitted to the court, nor any proof that he had ever agreed to render an opinion in either case.

Pricing Undocumented Labor

After chronicling the parade of doctors whose names were either dropped at the bench by Mr. Shoemaker or who were actually retained to review his client’s cases, the Special Master discussed the role of expert consultants in general, and the dilemma created by Mr. Shoemaker’s failure to produce any of their work product for her review.

Expert consultants play an important role in aiding counsel to understand complex scientific and medical questions. In Vaccine Act litigation, expert consultants research medical literature and assist in reviewing and assessing the merits of a petition. See Ray v. Sec’y, HHS, No. 04-184V, 2006 U.S. Claims LEXIS 97 (Fed. Cl. Spec. Mstr. Mar. 29, 2006). Expert witnesses often perform similar reviews of records and medical literature. In addition, their opinion letters, if favorable, are generally filed as exhibits.
When an expert is retained and files an expert report, the complexity of the medical issues and records in the case, the nature of research conducted and filed, the expert’s qualifications, the quality of the report, and many other factors can be used to assess the reasonableness of the fee claimed. An expert opinion filed as an exhibit permits respondent’s counsel and the court to review the nature of the work performed. An opinion exhaustively summarizing the medical records and literature reflects the expenditure of more hours and effort on the part of the expert, and helps in justifying the fees paid to that expert.
The issue of determining payment for consultants, particularly since their work product is rarely submitted, is a more difficult one. If the consultant’s work product is not provided to the court, assessment of the reasonableness of the hours and fees claimed cannot be made on the same basis as that of expert witnesses. In such cases, counsel, and ultimately the consultant, would benefit by providing more detail in the costs application about the nature of the services performed. The Guidelines for Practice state that petitioner should explain costs “sufficiently to demonstrate their relation to the prosecution of the petition.” See Section XIV.A.4. See also Kuperus v. Sec’y, HHS, No. 01-0060V, 2006 U.S. Claims LEXIS 377, *13 (Fed. Cl. Spec. Mstr. Nov. 17, 2006) (“an award may be reduced where numerous hours were claimed but where little or no work product was filed with the Court.”). [Lamar 1, pp. 19-20]

Reining in the Fees

Responding to Mr. Shoemaker’s argument that he was the best judge of his client’s needs, and should therefore be entitled to retain whomever he felt might help to advance her claims, the Special Master noted the court’s responsibility to ascertain the reasonableness of expenses to be paid from the public fisc.

Petitioner’s counsel is quite correct in asserting that he is in the best position to gauge what assistance he needs in a case. However, in traditional civil litigation, the client paying consultant costs (or expert fees) provides a necessary check on the costs an attorney might wish to incur. In a fee-shifting program such as the Vaccine Act, the petitioners only rarely incur personal costs for expert or consultant reviews, although nothing in the statute or our rules prohibits petitioners’ counsel from requiring their clients to advance these costs.
When, in traditional civil litigation, a client is billed for an expert consultation, the client is entitled to know what the consultant did, what hourly fee or flat rate of compensation was charged, and why the consultant was required. Under fee-shifting statutes, the general rule is that an attorney may not bill the government (or the opposing party) for fees that would not be billed to a private client. Petitioners have an obligation to monitor expert fees. See Perreira, 1992 U.S. Claims LEXIS 289, aff’d 33 F.3d 1375 (Fed. Cir. 1994). [Lamar 1, p. 20]
(When there are indications that the arrangement between consultant and attorney is not entirely at arms length, the issue of consultant fees becomes even more problematic. Public records reflect that petitioner’s counsel is an officer or director of the Institute for Chronic Illnesses, Inc., a nonprofit corporation. One of Dr. Geier’s many published articles identifies his organizational affiliation as the Institute for Chronic Illnesses, Inc. See A meta-analysis epidemiological assessment of neurodevelopmental disorders following vaccines administered from 1994 through 2000 in the United States, Neuro Endocrinol Lett, 2006 Aug: 27(4):401-13. As nonprofit corporations may pay their employees and officers, the nonprofit status of the corporation does not resolve the issue of whether this particular consultant-attorney relationship requires a careful and objective review of consultant fees billed to the Vaccine Program by this firm for this consultant.) [Lamar 1, p. 20, fn. 31]
Without the check on consultant fees imposed by a private client’s concern for his or her bank balance, oversight of counsel’s professional obligation to keep consultant fees reasonable is provided by both respondent and the court. See, e.g., Kuperus, 2006 US Claims LEXIS 377, *4 (special master has discretion to review costs charged for experts). Understandably, this oversight may generate claims that such scrutiny unduly interferes with counsel’s right to litigate the case as he sees fit. However, the statute authorizing payment of fees and costs requires such expenditures to be reasonable. Ultimately, the special master is charged with determining what fees and costs are reasonable. See Wasson [v. Sec’y, HHS], 24 Cl. Ct. at 483. [Lamar 1, p. 20]

Although the Special Master ultimately determined that Dr. Greenspan’s contributions were reasonable and appropriate, she came to a different conclusion about his hefty price tag.

It is appropriate for an attorney to hire someone to prepare a chronologic record of medical care in a Vaccine Act case. Determining what happened and when it happened can be time consuming, as creating a chronologic record of care frequently involves examining the records of several providers. This can be even more complicated when a child has been hospitalized repeatedly and sees specialists in addition to primary care providers. Having thoroughly reviewed these medical records myself, I am satisfied that the hours Dr. Greenspan claims for preparing a chronologic record of care are entirely reasonable. However, that does not mean that they are compensable at his claimed hourly rate of $350.00.
Paralegals and nurse consultants are frequently employed in vaccine cases to prepare a chronologic record of care. Fees approved for nurse consultants and paralegals are less than half the rate charged by Dr. Greenspan for such services. See Duncan, 2008 U.S. Claims LEXIS 176, *7-8 and Kantor v. Sec’y, HHS, No. 01-679V, 2007 U.S. Claims LEXIS 100, *14-15 (Fed. Cl. Spec. Mstr. Mar. 21, 2007). Just as an attorney should not bill at an attorney’s rate for tasks that a paralegal should perform, nor should he bill for paralegal time when the tasks involved are of a secretarial nature, a doctor-lawyer should not bill at a medical consultant’s rate for tasks that a nurse consultant or paralegal should perform. See, e.g., Plott, 1997 U.S. Claims LEXIS 313. Therefore, I approve the hours expended for preparing the chronological record of care, but substitute $165.00 for the hourly rate claimed. This is higher than the paralegal or nurse consultant rates customarily awarded in Vaccine Act cases, but reflects that a medical doctor and attorney performing such services would be more efficient than those with a lesser degree of training.
The issue of Dr. Greenspan’s hourly fee for preparing the opinion letter and for discussing the case with doctors with more expertise is complicated, because it is not entirely clear what Dr. Greenspan’s role was. Based on the information supplied in the [Petitioner’s] Reply and its attachments, I have no difficulty in concluding that Dr. Greenspan warrants a fee of $350.00 per hour in his review of medical malpractice cases involving surgical issues, based on his specific qualifications as a surgeon-lawyer. However, his experience as a surgeon is not particularly relevant in a Vaccine Act case without surgical implications, although his general medical background would be of some assistance in identifying issues and relevant records. Courts have often considered an expert’s area of expertise in determining whether the fee requested is reasonable. See Kantor, 2007 U.S. Claims LEXIS 100. The role the expert plays in the litigation is another factor to be considered, as the fee charged for serving as an expert witness is often more than that charged for reviewing a case. Consultants are not compensated at the same rate as experts. See, Kantor, 2007 U.S. Claims LEXIS 100, *14-15 and Simon v. Sec’y, HHS, No.05-941V, 2008 U.S. Claims LEXIS 67 (Fed. Cl. Spec. Mstr. Feb. 21, 2008). I note that in this case, Dr. Geier, a doctor with a genetics background more relevant to the issues raised by the medical records than Dr. Greenspan’s surgical background, charged $250.00 per hour for his efforts in this case and in No. 99-583V. To the extent that Dr. Greenspan’s legal expertise was used, I note that petitioner’s counsel, an attorney with considerably more years in practice in general and in Vaccine Act litigation in particular, billed at an hourly rate below that charged by Dr. Greenspan. Based on all the evidence available to me, I conclude that compensating Dr. Greenspan for the remainder of the hours claimed at a rate of $275.00 per hour is reasonable. [Lamar 1, pp. 21-22]

Discussion then turned to the question of compensation for the ubiquitous Dr. Geier.

In the case of Dr. Geier, the bill submitted indicates that he played a variety of roles. Notwithstanding the frequent criticism of Dr. Geier’s testimony in Vaccine Act and other civil cases, this case presents facts where his training as a geneticist is highly relevant. To the extent that his work on the case involved reviewing the genetics issues, I have no difficulty in concluding that the hourly fee is warranted. Unfortunately, his bill does not break down the time he spent on a number of distinct tasks.
An evaluation of the reasonableness of the hours Dr. Geier expended and the fee charged for his services is complicated by the failure to explain clearly what he actually did. Doctor Geier has been paid for “literature searches” in other cases at the rates paid an associate attorney. See, e.g., Paul v. Sec’y, HHS, No. 05-886V, 2007 U.S. Claims LEXIS 408, (Fed. Cl. Spec. Mstr. Dec. 13, 2007) and Densmore v. Sec’y, HHS, No. 99-588V (unpublished). Without seeing the literature or research results, it is difficult to determine if the court is paying repeatedly for the same searches or research in individual cases that are also billed as “Hep B panel” expenses. [Lamar 1, pp. 22-23]
(The application for “Hep B Panel” costs for this firm is currently pending before Chief Special Master Golkiewicz in Riggins v. Sec’y, HHS, No. 99-382V. Distinguishing a “Hep B Panel” cost from those costs associated with an individual case can be difficult. The practice of billing panel costs separately from costs in each individual case is eminently reasonable. However, when the same expert/consultant bills both panel costs and individual case costs for research and discovery, there is the potential, inadvertently or otherwise, for duplicate billing for the same work. Petitioner’s counsel has an application for over $100,000.00 in attorney fees for matters related to the hepatitis B proceedings billed in Riggins. Additionally, he has filed a request for nearly $100,000.00 in fees for his consultant, Dr. Mark Geier, in that case.) [Lamar 1, p. 12, fn. 19; emphasis added]
I will extend Dr. Geier the benefit of any doubt in this particular case, as the hours expended are modest and included consultation with firm attorneys on several occasions. Furthermore, the issues raised pertained to his expertise in genetics. I authorize compensation for the two hours claimed in this case at the claimed rate of $250.00 per hour and for the two hours at $250.00 per hour expended on Case No. 99-583V. See, Ray, 2006 U.S. Claims LEXIS 97, *42 (awarding Dr. Geier $250.00 per hour for his consultant work). [Lamar 1, p. 23]

A Substantial Sum & A Simple Proposal

The Lamar opinions conclude with a restrained reminder to counsel.

[F]ees and costs are paid from a trust fund, not from private pocketbooks. In granting special masters the authority to order payment of fees and costs, Congress limited their authority to pay only those fees and costs deemed reasonable… [I]t is incumbent upon counsel, not the special master, to ensure that the entries are adequately explained in the matters initially submitted. In this case, some of the documentation is inadequate. [Lamar 1, pp. 23-24]

Although Mr. Shoemaker’s fee request was trimmed by approximately 20%, his final compensation for prosecuting the two Lamar claims totaled a respectable $34,747.67. However,

[i]f the petitioner had been required to comply with §300aa-11(c) at the outset, it is doubtful that this claim would have been pursued, if filed at all, because no expert would opine in favor of vaccine causation. And, even if the petition was hurriedly filed to preserve the claim, timely enforcement of the requirement to substantiate the petition may have obviated at least some of the fees and costs claimed here. [Lamar 1, pp. 8-9]

As Special Master Vowell observed, the Vaccine Act’s generous standards for evaluating petitioners’ good faith and reasonableness and the court’s willingness to grant lengthy stays and extensions of time to file necessary documents, create unintended incentives to ethically-challenged attorneys to “game the system” — to indiscriminately agree to represent all comers, to make little effort to prospectively assess the merit of claims, to prosecute cases in an inefficient albeit assembly-line fashion, to take on so many clients that it eventually becomes impossible to competently represent them all, to involve as many high-priced cronies as possible regardless of the relevance of their qualifications, and to prolong proceedings for as long as the court will tolerate with a stream of dilatory motions, irrelevant arguments, and empty promises to produce evidence and experts that never materialize.

All of this comes at a price to taxpayers of $300/hour and up, plus similar fees to each consultant invited along for the ride, and an unquantifiable emotional price to petitioners led to believe that they have a viable claim when in fact they do not.

As of August 1, 2008, 568 VICP petitions have alleged injury from the hepatitis B vaccine; most were filed in 1999, and approximately 150 name Mr. Clifford Shoemaker as petitioners’ counsel. Since 2001, over 5,000 VICP petitions have been filed alleging that children were made autistic by their vaccinations. As in the Lamar cases, most were filed without documentation or supporting records. Hundreds of these autism claims name Mr. Shoemaker as petitioners’ counsel.

Considering the value of the Special Masters’ time and expertise, the massive number of fee petitions that will be submitted to the court as thousands of Omnibus Autism Proceeding cases are adjudicated, the potential for overbilling ten times greater than that already demonstrated in the hepatitis B cases, and the simple reality that old habits die hard, the Vaccine Program would do well to create a new staff position — an analyst whose sole responsibility is to aggregate and audit each VICP attorney’s and consultant’s statements, and to calculate and limit the number of billable hours in anyone’s taxpayer-financed day.

Comments


  1. A cynic may wonder if their legal and clinical submissions are of the same qualitiy as their pecuniary ones.

    — Socrates    2008-08-31 16:21    #

  2. That Cost Analyst idea is a good one, and they should do it, but I’d also like to see them put an attorney/Fed agent into Shoemaker’s office, working undercover, to “get the goods” on him! The man is a crook, (imho).

    — Clay    2008-08-31 17:25    #

  3. Another tour de force. I sometimes wonder why your posts don’t usually attract that many comments – I’ve just now realized it’s because you explain everything that needs to be explained on the subject of your post, and make your point so indisputable that no one feels the need to try to argue or elaborate on it.

    Clay, I was just about to note that the Dept. of Justice should go after Shoemaker and cronies for fraud, and on preview, noticed that you beat me to it!

    — isles    2008-08-31 17:35    #

  4. Come on, Kathleen, please try and be more thorough <G>.

    — Anonymous    2008-08-31 20:02    #

  5. I’m shocked that Cliff Shoemaker hasn’t been called on the carpet for all this gaming of the system. What the SM’s need to say is, “This case was not brought in good faith. You get nothing.”

    — Schocked    2008-08-31 20:26    #

  6. LOL! Here’s another good reason why my posts don’t attract that many comments — they tend to be long and wonkish, and I tend to publish them as soon as I’m done writing them — including on weekends, when blog traffic tends to take a nosedive.

    — Kathleen Seidel    2008-09-01 08:27    #

  7. AH, Schocked, but you don’t understand. What she did was even better. If you say that the case was filed in bad faith, you don’t get to rifle through the costs and point out precisely how they are unreasonable. Yes, some of the costs will be paid here. But this special master was extremely careful as the law requires her to be. But she laid a basis for not paying Shoechewer’s bills in future, and she documented that he filed padded bills — in detail. Remember that, for a plaintiffs’ attorney, filing a frivolous case is almost a badge of courage among some. Nobody is proud of padding their bills, and this should — SHOULD — hurt him.

    Note, however, that what probably happened is that they didn’t really keep track of what they did on what case. That requires a lot of time and attention that he and his staff almost certainly did not want to incur. Instead, they filed the exact same bill for every case, and just changed the names in it. That’s my guess.

    — Ex approprio    2008-09-01 09:23    #

  8. As usual sis – you have skimmed the cream for us and provided context. Good read. Hope you are well.

    All government contracts have very strict billing requirements and federal laws designed to prosecute for mischarging – and double-dipping is fraud. I am surprised they were not charged with a felony rather than having a special master reduce the compensation on review. Just the idea that ‘having previously compensated for the identical entries in other cases’ would be allowed tells me that the previous case was double dipped as the charges should have been shared across cases.

    I hope your recommendation is taken.
    Ciao,

    — Jenn    2008-09-01 15:05    #

  9. “..ethically challenged..”

    I hope this is putting him on notice that his actions are being scrutinized to a higher level.

    — Sullivan    2008-09-01 23:20    #

  10. ok – I have resisted this one for too long:

    A 45 year old lawyer suddenly dies and goes to heaven. At the gate, St Peter greets him and welcomes him to heaven after a long and fulfilled life. The lawyer bitterly complains, why he had to die so young. St. Peter scratches his head, opens his book and says: “but my dear man, according to the hours you billed your clients, you are 108!”.

    — Catherina    2008-09-02 15:28    #

  11. Whatever happened to the subpoena this Shoemaker filed against Dr. Marie McCormick? Has he filed for compensation in the Sykes case? If so, did he charge the taxpayer for his subpoenas against you and her?

    — LW    2008-09-03 05:05    #

  12. Mr. Shoemaker's opposition to Dr. McCormick’s Motion to Quash was formally withdrawn shortly after Sykes v. Bayer was dismissed. (The main difference between the two of us at that time was that Dr. McCormick had a three-man team from Akin Gump backing her, and I was still officially pro se and presumably easier to keep picking on.) There’s no compensation to file for in Sykes v. Bayer; per the judgment entered on July 28, “plaintiffs take nothing.” If Mr. Shoemaker’s collected bills to VICP are ever audited, the auditors will need to take into consideration the fact that he also represents plaintiffs in civil litigation. Either his private clients should be expected to pick up the tab for their share of his work time, or he should be expected to take a loss on it.

    — Kathleen Seidel    2008-09-03 06:43    #

  13. My tax dollars at work. Makes me want to puke.

    — Phil Schwarz    2008-09-06 20:25    #

  14. Was that a legal system you were describing or a money-tree?

    — TheProbe    2008-09-11 08:08    #