A Motion to Conceal · 2008-10-22 14:00

A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.

— James Madison to J.T. Barry, August 1822

The U.S. Court of Federal Claims Office of Special Masters has published an extraordinary Order affirming the public’s right of access to the non-privileged content of Vaccine Injury Compensation Program (VICP) decisions, and, by extension, the public’s general right of access to judicial records and to information about the operations and expenditures of publicly-sponsored programs.

Special Master Christian J. Moran’s September 23, 2008 ruling in Sabella v. Secretary of Health and Human Services (HHS) (Case 02-1627V) denies a motion by petitioner’s counsel Clifford J. Shoemaker, Esq. to redact the names of attorneys and experts from a highly critical fee and cost decision issued in that case on August 29.

Sabella v. HHS alleged that a series of hepatitis B shots caused a young man with pre-existing learning disabilities to experience an encephalopathy, which contributed to the emergence of new learning disabilities. The case was filed in 2002 by attorney Joel Korin, Esq.; Mr. Shoemaker became involved in mid-2003, and was named counsel of record in December 2005, after Mr. Korin began employment with a new law firm. After five years of documentation and debate, HHS agreed to pay $103,000.00 in compensation to the petitioner; the court’s decision adopting the agreement was issued on May 21, 2007.

Six months later, Mr. Shoemaker filed a motion requesting payment of $211,663.37 in fees and costs for Sabella v. HHS. These included:

• $148,922.50 in professional fees for himself, his associates, Mr. Korin, and Mr. Korin’s associate.

• $33,394.50 in professional fees for eight named experts, and for one or two experts who were not identified.

• $28,406.37 in additional costs, including travel expenses, seminar registration fees, and fees for a forensic consultant.

According to Special Master Moran’s 55-page ruling, the Sabella fee petition represents the largest sum ever requested for legal services and expenses for a single VICP case. The decision discusses in detail the hourly rates requested by the attorneys, the participation of three attorneys, the time spent prosecuting the case, the costs sought for the petitioner’s experts, and a plethora of other expenses.

Mr. Shoemaker sought compensation at a rate of $440 to $645 per hour, and his associates between $255 and $536 per hour, arguing that each should be entitled to be paid at rates prevailing in the District of Columbia because the U.S. Court of Federal Claims is located there. The special master observed, however, that most if not all of his business was conducted outside of D.C., much of it telephonically. He also pointed to Mr. Shoemaker’s previous agreement with HHS fixing his rate at $300 per hour, and stated that a decision to suddenly increase that rate by nearly 50%

…merely because he filed a petition in the Court of Federal Claims, which happens to be located in Washington, D.C. would constitute “a form of economic relief to improve the financial lot of attorneys” or a “windfall inconsistent with congressional intent.” (Order, August 29, 2008, p. 7)

Although neither HHS nor the court took issue with Mr. Korin’s initial rate of $200/hour, the court held that there was no reasonable basis for subsequent hourly rate increases that he charged after relocating to a new firm.

HHS argued that the involvement of more than one attorney constituted overstaffing, and resulted in inefficiency and unreasonable cost. Although the case was more complicated than other VICP cases, the court observed that it “also became more complicated needlessly.” Sabella v. HHS was not a case of first impression, required no particularly specialized knowledge, and could have been competently litigated by either an experienced attorney like Mr. Shoemaker or a relatively inexperienced associate, without exceptional assistance. Nonetheless, three different attorneys had extensively occupied themselves with the case. Although they contended that each served “specific, separate functions” and were operating in an efficient manner, time sheets revealed substantial overlap and duplication of efforts (such as review of medical records and expert reports and participation in status conferences). Given the demonstrated competence of the petitioner’s original attorney, the point of such an extravagant staffing arrangement remained unclear.

It appears that Mr. Korin, with the assistance of Ms. [Jane] Kenney, was representing Mr. Sabella reasonably well… How Mr. Shoemaker contributed to the advancement of Mr. Sabella’s case is not clear at all. If Mr. Shoemaker did not assist Mr. Korin during this time, would Mr. Sabella’s case turned out differently? The answer is probably not… Mr. Shoemaker chose not to provide any specific examples of how he assisted in a way that Mr. Korin could not… (Order, August 29, 2008, pp. 23-24)

The special master likewise questioned the need for Mr. Korin’s participation once Mr. Shoemaker had been designated the petitioner’s new counsel of record. All but one of the witnesses who testified in a two-day hearing were openly supportive of the petitioner; the remaining witness was neutral and cooperative.

The special master disallowed claims for excessive time spent on document preparation, for professional time spent performing paraprofessional or secretarial duties (such as scheduling appointments and conference calls and mailing payments to consultants), for time spent investigating the feasibility of initiating a malpractice suit against the doctor who administered the vaccine, and for the time and cost of attending the Vaccine Litigation Conference at which Mr. Korin and Mr. Shoemaker first met in March 2003. An hour was also subtracted from time spent by an associate preparing a brief that:

…contains attacks against respondent’s counsel, personally. Personal attacks reduce the civility in litigation… Personal attacks will not be ratified by an award compensating them. (Order, August 29, 2008, p. 30)

The special master authorized payment of $62,207.50 in attorneys’ fees, rather than the nearly $148,922.50 requested, and compared the exceptional character of the fee petition to the unexceptional character of the case.

Despite arguing that the amount requested in attorneys’ fees is reasonable, [petitioner’s attorney] provided no examples of cases in which a single petitioner has been awarded a comparable amount of money…. [and] did not demonstrate that the amount of hours spent or the dollars requested are reasonable by comparing Mr. Sabella’s case to other cases from the Vaccine Program. This lack of comparison strongly suggests that [petitioner’s attorney] ‘s request is aberrational and unreasonable. The undersigned’s own research reveals that [petitioner’s attorney]‘s requested amount of attorneys’ fees far exceeds previous awards in the Vaccine Program.

The awarded amount of attorneys’ fees is within the top amounts the undersigned has awarded in attorneys’ fees to a single petitioner. Other cases are roughly comparable… Mr. Sabella’s case is not significantly more complicated than these other cases.

The invoices and other billing records submitted to support [the] petition for attorneys’ fees and costs appear to lack “billing judgment”… Billing more than $1,000 in fees for a single 15 minute status conference is excessive. Numerous entries of several attorneys duplicating work is another example. When all these factors are taken into consideration, the resulting reduction in fees was necessary. (Order, August 29, 2008, pp. 30-31) *

Turning to litigation costs, the special master noted that the $61,800.87 requested was approximately three times greater than any previous award of costs he had considered during his tenure with the VICP. Most of this amount represented expenses for retaining the services of doctors and consultants.

Geneticist Dr. Mark Geier billed $5,375.00 for his work in Sabella. Citing the irrelevance of his credentials to the medical issues raised in the case, his failure to document specifics of the work he claimed to have performed, and the well-worn trail of VICP decisions documenting the limitations of his expertise, the special master concluded that “a reasonable person would not want to pay for Dr. Geier’s work,” and limited his compensation to $1,000.00.

Neurologist Dr. Charles Poser requested $2,600.00, or $350 per hour for 7.6 hours spent preparing two reports. The court determined that $200 per hour was reasonable, and authorized payment of $1,520.00.

Immunologist Dr. Yehuda Shoenfeld billed $7,750.00, charging $500 per hour for 15.5 hours of work. The special master determined that $300 per hour was a reasonable rate for his “useful and relevant” participation, disallowed unnecessary travel expenses, and authorized a fee of $3,750.00.

$1,200.00 was requested for the services of Ohio medical imaging specialist Dr. Harold Pretorius, who had performed a SPECT scan and prepared a report. The entire amount was disallowed, since the scan was not medically justified, provided no useful information, and could not have advanced the petitioner’s case in any way.

A charge for $1,250.00 for the unnecessary preparation of an economic analysis by vocational economist Robert P. Wolf was also entirely disallowed.

Over $10,000.00 in claims were submitted for the services of neuropsychologist Jerome F. Knast, Ph.D., psychiatric neurologist Dr. Allen Rubin and infectious disease specialist Dr. David Condoluci. The court authorized payment of approximately $7,200.00, in spite of petitioner’s counsel’s failure to submit invoices or to provide any information to explain the basis of the fees, even after being asked to do so by the court.

Forensic consultant Dr. Mark Greenspan sought payment of $13,000.00 at a rate of $250 per hour. The special master disallowed work that was duplicative or unnecessary, reduced the hourly rate for work that required fewer specialized skills, and ultimately determined that $2,950.00 constituted reasonable compensation for his services.

Two separate entries on the fee petition sought $1,500.00 and $1,600.00 for work by an unidentified expert. Both charges were rejected. The court also rejected nearly $4,000.00 in unsubstantiated expenses — including the cost of luxury hotel accommodations, five-star restaurant meals, and unexplained purchases from Amazon.com — and nearly $5,000.00 in professional fees and travel expenses incurred when Mr. Korin’s paralegal accompanied the petitioner on a multi-day, out-of-state trip for a doctor’s appointment.

Of the $61,800.87 in costs requested, the special master concluded that only $17,742.28 were reasonably incurred, and observed that the amount would have been considerably less had he not opted to compensate for the petitioner’s counsel’s failure to substantiate his claims.

In many respects, the fee petition was not presented well. Because a large amount of money was requested, a comprehensive amount of evidence should have supported it. However, there are gaps in the evidence. [Petitioner’s attorney] presented almost no evidence about the reasonable hourly rates for different people whom he or his attorneys retained. [Petitioner’s attorney] did not provide invoices for some of the doctors. Respondent specifically challenged the reasonable hourly rate for the attorneys, and respondent requested information about some doctor’s hourly rates. Even after these items were placed in dispute, [petitioner’s attorney] did not provide the requested information.

This lack of information created a challenge to adjudicate the fee petition. On one hand, special masters possess the discretion to reject requested awards when the documentation is not adequate to evaluate the request. A categorical rejection may be appropriate in cases, such as this one, in which petitioners were placed on notice about the missing information and still did not provide it. On the other hand, eliminating some requested items in the entirety may not be appropriate when some reasonable, if conservative, determination can be made. For the most part, this ruling adopts the latter practice… However, petitioners are placed on notice that future fee petitions may not be adjudicated so leniently. (Order, August 29, 2008, pp. 54-55) *

In the end, the special master authorized payment of $79,949.78 — $62,207.50 in attorney fees and $17,742.28 in costs, representing a reduction of nearly 60% in the bill submitted by Mr. Shoemaker to the court.

The first business day after the fee and cost order was issued, Mr. Shoemaker filed a motion invoking the Vaccine Rules’ provision for redaction of privileged or confidential information from published decisions, including petitioners’ names, trade secrets, and financial and medical information.

In its entirety, this motion states: “Comes now the Petitioner and pursuant to Vaccine Rule 18(b) files this Motion to Redact the Attorney Fees and Costs Decision of the Special Master filed on August 29, 2008.” (Order, September 23, 2008, p. 2)

At the special master’s request, Mr. Shoemaker soon explained the intended scope and purpose of the censorship he desired.

Because [petitioner’s counsel] did not identify the information he wanted redacted or why he wanted the information redacted, the undersigned scheduled a status conference. During this status conference, [petitioner]’s counsel stated that he essentially wanted all proper names (the name of his client, the name of the experts retained by [petitioner], and the name of [petitioner]’s attorneys) redacted. [Petitioner’s] counsel gave two reasons for this request. First, [petitioner]‘s counsel stated that he did not want these names posted to the internet. [Petitioner]’s counsel, apparently, is concerned about being criticized. Second, [petitioner]’s counsel also maintained that respondent has argued in another case that the names of attorneys representing respondent should not be disclosed to the public, and he believes that he is entitled to the same treatment. (Order, September 23, 2008, p. 2) *

In response, the special master reminded petitioners’ counsel that the Vaccine Act calls for public disclosure of all National Vaccine Injury Compensation Program decisions, save for specific categories of information, and that the burden rested on the petitioner to justify preventing disclosure. No petitioner had ever sought, nor did the statute permit, the concealment of information about professionals involved in a VICP claim.

[Petitioner’s counsel] requests the redaction of the names of professionals, such as his attorneys and experts whom he retained. This request appears to be unprecedented… (Order, September 23, 2008, p. 3) *

The special master dismissed Mr. Shoemaker’s argument that the financial information discussed in the fee and cost order, such as information about bills submitted and reasonable hourly rates, should be shielded from public scrutiny, and reminded him of the intended beneficiaries of statutory redaction provisions.

It is not sufficient that the information is “financial”; the statute also requires that the information be “privileged or confidential.” …In light of the long history of special master’s decisions publicizing hourly rates for attorneys and experts, it is difficult to see how [petitioner]’s counsel could argue that his hourly rate is “privileged or confidential.” …[T]he provisions permitting the non-disclosure of information protect, primarily, the parties, especially the petitioner. (Order, September 23, 2008, p. 3)

The special master observed that it would be inefficient and inequitable to permit selective redaction of petitioners’ attorneys’ and experts’ names from critical decisions, and noted that the petitioner had just benefited from reference to prior decisions discussing their rates of compensation.

Decisions of special masters can be roughly divided into two groups. In the first, the special master generally awards the petitioner the requested hourly rate. One assumes that the petitioner’s attorney would not object to this decision because it is a trend the attorney wishes to encourage… The second broad category of decisions includes decisions in which the special master generally disagreed with the proposed hourly rate and set a lower rate. Petitioner’s attorneys would have an incentive to seek the redaction of this decision to minimize its persuasive value. Such a system would wrongfully give too much control over the public dissemination of judicial decisions to one party…

The present case illustrates how past decisions about attorneys’ fees and costs can advance the litigative process. The underlying August 29, 2008 decision on attorneys’ fees and costs cited to some decisions discussing the reasonable hourly rate for specific individuals… Relying upon past decisions was necessary because [petitioner’s counsel] did not provide evidence to support a proposed hourly rate. Without some basis for determining the reasonableness of the expert’s proposed hourly rate, another alternative would be to deny the request for lack of evidence. By avoiding this alternative, the past decisions that identify experts by name actually benefit [the petitioner]. (Order, September 23, 2008, p. 4)

The special master dismissed Mr. Shoemaker’s concern for the potentially embarrassing consequences of the publication of the Sabella fee and cost decision.

Finally, to the extent that [the petitioner]‘s attorney argues that the release of the unredacted decision would cause harm to someone’s reputation is a legally adequate basis for redacting information, this argument is legally erroneous. Harm to an attorney’s professional reputation is not a basis for preventing the public to access a judicial decision. (Order, September 23, 2008, p. 4)

The special master denied Mr. Shoemaker’s motion to redact his and his colleagues’ names from the Sabella fee and cost decision. He also denied the request to redact the petitioner’s name, reasoning that there would be no invasion of privacy given the fact that the same information had already been disclosed in the May 21, 2007 decision authorizing compensation.

The order denying the motion to redact was issued on September 23, 2008, with instructions to make it publicly available on the U.S. Court of Federal Claims website in accordance with the E-Government Act of 2002. On the same day, the court authorized official publication of the August 29 fee and cost decision, which had been withheld pending resolution of the redaction motion.

Mr. Shoemaker filed a Motion for Review of the fee and cost decision on September 29, and expanded that motion on October 15. The case has been assigned to U.S. Court of Federal Claims Judge Emily C. Hewitt.

The Motion for Review notwithstanding, Special Master Moran’s fee and cost decision and subsequent order denying the motion to redact, were posted uncensored to the U.S. Court of Federal Claims website during the week of October 13, 2008.


What transpires in the court room is public property… Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

Craig v. Harney, 331 U.S. 367 (1947)


*Note: In these passages, I have taken the liberty of replacing the petitioner’s name with the bracketed term “[petitioner’s attorney]” or “[petitioner’s counsel]” when the conduct described is that of the attorney rather than the petitioner.

Comments


  1. I wonder which internet blogger has him so cowed ?

    I wonder if he enjoyed his remedial ethics course ?

    — _Arthur    2008-10-22 15:09    #

  2. What is sad is that the Special Masters in all their generosity to these lying trough-swillers have made lives harder for autistic people and contributed to fears over vaccines.

    Their generosity in overpaying the phony experts has encouraged those experts to continue to produce more and more lying “evidence”. Their overpaying lawyers has encouraged them to continue to back phony “parent groups” and further encourage parents to lie and exaggerate what has happened to their children when retelling the stories in the media.

    If the SM’s weren’t so generous, would the thieving lawyers be able to bankroll and direct the actions of the “parent advocate” organizations? I believe several of the well known “parent advocates” are for the most part sock-puppets for the lawyers.

    — Ms. Clark    2008-10-22 17:11    #

  3. Now, was this aimed at saving the bacon of that hog at the trough, Mark Geier?

    No apologies for the analogy – definitely intended.

    — alyric    2008-10-22 18:36    #

  4. Cliff Shoemaker is getting rich off of causing the parents of autistic children to entertain false hopes. Despicable. And Ms. Clark is correct – the court’s generosity has hurt autistics more than it has helped the truly vaccine-injured.

    — isles    2008-10-22 20:57    #

  5. “HHS agreed to pay $103,000.00 in compensation to the petitioner . . . Six months later, Mr. Shoemaker filed a motion requesting payment of $211,663.37 in fees and costs”

    Unbeleivable. Mr. Shoemaker is claiming to be on the side of the petitioners, yet he believes that his routine work is worth more than the total amount awarded to the petitioner for life-long compensation for an injury. Again, this is simply unbelievable.

    — Broken Link    2008-10-22 21:23    #

  6. I’d like to see how many of Mr. Shoemaker’s clients become paying patients of Dr. Geier.

    How much more money is flowing—and this from parents to “expert”.

    — Sullivan    2008-10-22 23:27    #

  7. Thank you for spending the time to find, organize and present this information. Most of us know these cases are going on but are unaware of the degree that some of these people are trying to rip off the taxpayers.

    I don’t understand why these inflated demands for payment are not considered fraud under the False Claims Act.

    — Another Voice    2008-10-23 09:33    #

  8. While Ms. Clark is absolutely correct, the fact that the SM’s are willing to put any limits on payment, as well as their unwillingness to quash publication of names and amounts is encouraging.

    It takes a LOT for lawyers to reign in their own. Shoemaker is so beyond the pale that he is finally ticking off his own group.

    Joe

    — Club 166    2008-10-23 10:01    #

  9. This system where lawyers are payed regardless of whether they win or not is obviously in need of reform. The system encourages unscrupulous lawyers and their “expert” friends to promote manufactroversies, and to overcharge taxpayers as much as they can.

    — Joseph    2008-10-23 10:16    #

  10. I love how how the judge rejected requests for “Dr.” Geier’s fees because “a reasonable person would not want to pay for Dr. Geier’s work”… Nice.

    — Bobby M    2008-10-23 11:56    #

  11. Oh boy, and we hear about the attempt to suppress information from the toxin/biomed crowds?

    Coverup would be a good nick name in this case, you know, like Scoop Jackson?

    — Patrick    2008-10-23 16:46    #

  12. I think the Special Master attempted to convey the message that this handicapped plaintiff would have received the same compensation in much less than 7 years had he retained better lawyers paying off less bogus or redundant experts.

    — _Arthur    2008-10-23 20:48    #

  13. Alyric,

    I must object! You have grievously insulted innocent hogs with your analogy!

    Prometheus

    — Prometheus    2008-10-24 14:31    #

  14. Oops, sorry:)

    — alyric    2008-10-24 16:55    #

  15. Just ain’t kosher!

    — Phil Schwarz    2008-10-25 23:51    #

  16. Not halal either!

    — Clay    2008-10-26 13:31    #

  17. How can you pay anyone stupid enough to believe that a vaccine causes learning disabilities to worsen $645 per hour. Why not pay him the rate the government pays subspecialty doctors, namely $16 every 15 minutes. The judge made a silly decision, but this lawyer is simply stealing.

    — Christopher Eckel    2008-11-03 12:25    #