The Blank Check Stops Here · 2009-03-21 13:00

A recent opinion from the U.S. Court of Federal Claims reaffirms the right and obligation of Vaccine Injury Compensation Program special masters to award petitioners’ attorneys only reasonable and necessary fees and costs, even if counsel to the U.S. Department of Health and Human Services does not challenge specific line items or hourly rates.

In her ruling in the case Sabella v. Secretary of the Department of Health and Human Services (Case 02-1627V, February 10, 2009), Judge Emily C. Hewitt upheld Special Master Christian J. Moran’s decision (previously discussed on this weblog) to trim over $100,000.00 from the fee and cost petition submitted by career vaccine-injury attorney and Omnibus Autism Proceeding Petitioners’ Steering Committee member Clifford J. Shoemaker of Vienna, Virginia.

The Sabella petition sought $173,443.20 for attorneys’ fees and $61,800.87 for consultants’ fees and other costs, for a requested total of $235,244.07. After extensive scrutiny and discussion, the special master disallowed roughly two-thirds of that amount, concluding with noticeable understatement that “the fee petition was not presented well.”

In a Motion for Review, Mr. Shoemaker countered that:

“[t]he Special Master abused his discretion by arbitrarily and capriciously slashing petitioner’s attorneys’ hours in a punitive manner, by applying, in hindsight, an arbitrary and unsupported ‘second-guessing’ analysis to hours, that he further misapplied the law with respect to a determination of hourly rates, and finally, that his determinations with respect to allowable petitioner’s costs is contrary to law, arbitrary and capricious and an abuse of his discretion.”

Mr. Shoemaker argued that because Special Master Moran was assigned to the case in April 2006, after its inception, he was incapable of determining the reasonable amount of fees and costs incurred before that time, and “[could not] possibly understand the effort that was involved” to develop evidence to support his client’s claim. He characterized as “ludicrous” the special master’s decision to compensate the petitioner’s original counsel, Mr. Joel Korin, at the rate he cited when he first agreed to represent the client, and disparaged the court’s refusal to raise Mr. Korin’s rate after he moved to a different law firm.

Although the Vaccine Act requires petitioners to document fees and costs at the time a fee petition is filed, Mr. Shoemaker maintained that by acting of his own accord to reduce the amounts requested — including amounts lacking any supporting documentation — the special master had deprived his client of the right to offer evidence of their reasonableness.

This argument failed. After citing statutes and case law authorizing payment of no more than reasonable attorney’s fees and costs to VICP petitioners, and noting that Mr. Shoemaker had added to the Sabella bill an extraordinary $8,236.20 in fees for preparing the Motion for Review, Judge Hewitt recalled that his original award was reduced, in part, due to his ad hominem attacks against HHS attorneys, and reminded him that attacks against the special master would be no more favorably received or generously compensated.

“The court does not look favorably on ad hominem attacks. Critical commentary on the special master’s tenure as a special master does not aid petitioner’s argument. The decision of the special master was not a personal attack on Mr. Shoemaker, as petitioner charges. The court finds the special master’s deduction of $215, representing one hour spent on ‘attacks against respondent’s counsel, personally,’ to be fair and reasonable, and not an abuse of discretion. Similarly, the court will reduce the amount of attorneys’ fees requested for time spent personally attacking the special master in petitioner’s Motion for Review. The court reduces its award of attorneys’ fees for the preparation of this Motion for Review by $310, representing one hour spent on ad hominem attacks against the special master. The court therefore awards petitioner $1,690.00 for work preparing this Motion for Review.”

Mr. Shoemaker claimed that VICP clients cannot be competently represented without the same level of staffing that many firms devote to civil malpractice litigation, essentially arguing that VICP special masters must unquestioningly compensate petitioners’ attorneys for every hour they bill to taxpayers.

“Having two lawyers work together on a potential malpractice case was the normal, customary procedure for this law firm, and it is the normal, customary procedure for many law firms, whether on the plaintiff or defense side of such a case.”

“[N]o one suggested that the time recorded was not spent doing what was described… No one is suggesting that the paralegal did not spend the time recorded or that the work performed was anything but first rate… [T]here is no argument that the time claimed was not spent as it has been described… Apparently, the burden that the special master intends to impose upon counsel from now on is to not only describe the work performed (which has been done in great detail), but also to explain why the work was important and how it advanced the case… [A] new standard is being imposed upon fee applicants.”

Judge Hewitt observed that the standard so abhorred by Mr. Shoemaker, whereby petitioners bear the burden of substantiating the reasonableness of fees claimed, is the standard currently in force, and affirmed “that petitioner’s lawyers actually expended the time does not automatically establish that the time was reasonably expended.”

Reviewing the compensation awarded to the petitioner’s experts, Judge Hewitt upheld the special master’s determination that “a reasonable person would not want to pay” for Dr. Mark Geier’s rebuttal of expert opinions in neurology and psychiatry, since he is a geneticist previously deemed unqualified to offer expert opinions in either discipline. She upheld the disallowance of hours spent by Dr. Geier preparing original articles unrelated to the case, and the reduction of his fees for conducting literature searches. She also upheld the reduction of neurologist Dr. Charles Poser’s hourly rate from $350 to $200; the disallowance of costs related to obtaining a SPECT scan from Cincinnati internist Dr. Harold Pretorius three and a half years after the petitioner received the vaccines at issue; the disallowance of compensation for vocational economist Robert Wolf, retained to prepare an analysis of lost earning capacity even though rates of compensation for lost earning capacity are statutorily established; the reduction of fees for psychologist Dr. Jerome Knast and internist Dr. David Condoluci, neither of whom submitted invoices or explained the basis of their hourly rates; and the authorization of $2,950.00 in fees to medical/legal consultant Dr. Mark Greenspan, instead of the $13,000.00 originally billed.

Consistently assuming the victim posture, Mr. Shoemaker contended that the special master’s adjustments of Dr. Geier’s fees constituted an “attack” on his longtime colleague. He described the court’s reduction of Dr. Poser’s fee as “evidence that this entire fee decision was designed to punish Petitioners, their counsel and their experts.” He argued that “the special master was preparing to attack Dr. Pretorius’ testimony even before he heard it.” He complained that the court was “penalizing” him for “doing the normal, reasonable and prudent thing” by retaining Mr. Wolf. He asserted that the special master’s award to Dr. Knast was “absurd,” and that the award to Dr. Condoluci was “a ridiculously low amount,” disregarding his own failure “to provide documentation to support a different outcome.” He insisted that Dr. Greenspan’s insights were “critically important” and “invaluable,” even though much of his work was duplicative and could have been competently performed by a paralegal.

Defending his demand for compensation for two unidentified “experts” who neither testified nor submitted reports, Mr. Shoemaker asserted that his word should be considered as good as judicial gold:

“When counsel… represents to the Court that he has expended these funds in the furtherance of his client’s case, then his word, as an officer of the Court, should be sufficient… [There is] a real need to protect these doctors from unnecessary exposure in the event that they are not, in fact, called upon to prepare a report or testify.”

These arguments did not avail Mr. Shoemaker or his bevy of colleagues, recruited with apparent certainty that every demand would be paid from the public fisc. In her only increases to the award originally granted by Special Master Moran, Judge Hewitt corrected an error in his calculation of expert witness fees, and raised the rate for Israeli immunologist Dr. Yehuda Shoenfeld from $300 to $350 per hour. The final bottom line over and above the award of $103,000.00 paid to the petitioner in Sabella v. HHS was $62,897.50 for attorneys’ fees and $24,637.28 for costs. Given that 42 U.S.C. § 300aa-15(e)(3) prohibits attorneys from charging petitioners for fees or costs in excess of the amount awarded by the court, one can only guess whether those individuals whose services were judged to be unnecessary or overvalued will seek alternate means to recover their anticipated rewards.

Comments


  1. That deduction for ad hominem attacks gave me quite a chuckle. So well deserved!

    — abfh    2009-03-21 14:11    #

  2. “Consistently assuming the victim posture, Mr. Shoemaker contended that the special master’s adjustments of Dr. Geier’s fees constituted an “attack” on his longtime colleague.”

    Sounds like he’s finally starting to understand. The jig is up, Cliffie, go chase an ambulance. If you keep sucking at the public’s tit, it’s gonna turn sour on you.

    — Clay    2009-03-21 15:37    #

  3. I love this guy. If he is from Vienna, VA, does this mean he has some kind of tie-up with that crazy Barbara Fisher? I suspect that’s how he has turned this autism thing into cash.

    — Richard Taylor    2009-03-23 14:27    #

  4. Yes, Mr. Shoemaker is on the board of the National Vaccine Information Center.

    It pays to stir the pot.

    — Kathleen Seidel    2009-03-23 14:40    #

  5. Shoemaker is shameless! It’s breathtaking. I’m glad to see a little restraint placed on his cash grab.

    — isles    2009-04-13 16:57    #