Awards, Appeals & A Warning · 2009-04-03 10:00

A Decent Payday

Attorneys for the petitioners in Cedillo v. HHS (Case No. 98-916V) have been granted an interim award of $1,452,806.11 for fees and costs incurred in the course of their work on that case, and on the presentation of general causation arguments in the Omnibus Autism Proceeding.

Ronald Homer, Esq. of the Boston firm Conway, Homer & Chin-Caplan submitted a request for $2,180,885.29 to the court in August 2008. On December 21, Special Master George Hastings authorized reimbursement of $19,321.28 for out-of-pocket expenses incurred by the petitioners, and reserved consideration of the attorneys’ portion for a later date.

On February 12, 2009, the special master issued a 183-page opinion and order examining in detail the evidence and testimony presented in the case, finding that the petitioners had failed to demonstrate the likelihood that vaccines can or did cause autism, and dismissing the petition.

Attention then returned to the matter of attorney compensation. In a Decision Awarding Interim Fees issued on March 11, the special master first recounted the basis and scope of the Cedillo fee request.

In their application, the petitioners sought a total of $2,180,885.29 for interim fees and costs. This total reflected the fact that this case was the initial “test case” in the OAP. Because this was a “test case,” in which the petitioners sought to present all of the “general causation” evidence concerning the theories (1) that the MMR vaccine can cause autism and (2) that thimerosal-containing vaccines can cause immune system dysfunction, petitioners have requested fees and costs for seven different law firms that participated in the development and presentation of the evidence, while six different expert witnesses prepared expert reports and testified at length during the evidentiary hearing.

Dismissing the objections of HHS attorneys, the special master ruled that interim fee payment was warranted due to the relevance and value of the findings in Cedillo to thousands of other pending claims.

…I conclude that the presentation of the PSC’s first general theory of vaccine causation was undoubtably a crucial and huge step toward resolving the pending autism cases. The petitioners have now presented their evidence, and received rulings, concerning one of the PSC’s two general theories of vaccine causation. All of the petitioners with pending claims can now study those rulings, and consider their impact upon the viability of the pending cases… [B]ased upon both my experience in prior “omnibus proceedings” under the Program, and my understanding of the issues involved in these autism cases, I am confident that the massive efforts made by the petitioners’ counsel and experts, the respondent’s counsel and experts, and the special masters, in presenting and resolving this Cedillo case and the other autism test cases, will ultimately, after the resolution of all appeals, prove to be very fruitful in leading to the ultimate resolution of most, if not all, of the pending autism petitions.

Addressing the extraordinary amount of the fee award, the special master described the extraordinary duration of the case, and the equally extraordinary complexity of the evidence presented.

I am aware that the amount that I award in this Decision is startlingly large, far higher than I have ever previously awarded in a Program case. I take very seriously my duty and responsibility, in all Program cases, to award Program funds only in reasonable and appropriate amounts. Accordingly, a few additional comments are appropriate.

As noted above, after my own careful review of the record, I conclude that the amounts awarded are reasonable and appropriate under all the circumstances. There is ample justification for the high amounts involved. First, the amount awarded for the work performed and costs incurred by the CHC firm represents compensation for years of work performed by multiple lawyers and other employees of that firm, along with the reimbursement of substantial costs that the law firm incurred on behalf of the Cedillo family.

In addition, the law firm reasonably spent so many hours on this case because the amount of existing scientific evidence relevant to the causation issues involved in this case, evidence which this law firm was obligated to consider and analyze in prosecuting this case, was absolutely massive. The amount of existing evidence relevant to this case far exceeded the amount of evidence relevant to any prior causation issue in the history of the Program. As I noted in my Decision filed in this case on February 12, 2009, the record of this case contains about 7,700 pages of [petitioner]‘s medical records alone. The parties filed a total of 50 expert reports in the three test cases. During the evidentiary hearings, 16 expert witnesses testified in Cedillo, four in Hazlehurst, and eight in Snyder. The hearing transcripts totaled 2,917 pages in Cedillo, 1,049 pages in Snyder, and 570 Hazlehurst. The parties filed six post-hearing briefs in this Cedillo case alone, totaling 462 pages. In addition, in the three cases combined the parties filed a total of 939 different medical journal articles, medical textbook excerpts, or other items of medical literature, with the total number of pages of those 939 documents running well into the tens of thousands of pages. In short, this extremely large amount of relevant evidence, which the CHC firm was required to analyze, justifies the amount of time spent by the firm on the case.

Further, the extreme complexity of the material involved here is an important factor as well. The causation issues involved many different subspecialties of biology and medicine, including neurology, gastroenterology, virology, immunology, molecular biology, toxicology, genetics, and epidemiology. Obviously, it took much time for the lawyers involved in this case to familiarize themselves with so many varied and complex areas of medicine and science.

One must consider, as well, the extreme importance of this case as a “test case.” Petitioners’ counsel well knew that the outcome of this case would have significance for not only the Cedillo family, but also for 5,000 other families with pending Program petitions involving autism.

In light of all those factors, I find that the CHC firm acted reasonably in expending a very large amount of time, and substantial costs, in prosecuting this case.

The special master observed that even in the absence of compensation to petitioners, reasonable and timely-paid attorneys’ fees are necessary to motivate competent counsel to represent petitioners in Vaccine Injury Compensation Program claims.

[I]t is very important, for the families that have brought Program claims involving autistic children to this court, that the petitioners have had their chance to present their evidence concerning their theories about the causation of autism, and to get rulings from special masters concerning those theories. That evidence did not ultimately persuade the special masters who heard the “first theory” test cases, but it is important that the theories were presented and considered. In other words, it is important that the autism petitioners have had their “day in court,” or at least the first of their “days in court.” And it was the CHC firm that stepped forward to shoulder most of the burden of assembling and presenting the evidence in the first of those test cases. It is appropriate, therefore, that the firm is reasonably compensated for the time and expense spent in shouldering that heavy burden.

Accordingly, under all of the circumstances here, I conclude that it is appropriate for me to reasonably compensate the CHC firm for the work performed by the firm in this case. I believe that doing so will benefit future Vaccine Act petitioners, by making it clear that counsel who provide solid assistance to such petitioners will be reasonably compensated for their work.

An interim fee award of $1,362,906.11 was authorized to Conway, Homer & Chin-Caplan, $14,900 to the Phoenix firm Yen, Pilch, Komadina & Flemming, and $75,000 to Williams, Love, O’Leary & Powers of Portland, Oregon. Compensation for the remaining law firms and expert witnesses will be determined at a later date.

Interim fees and costs have also been awarded to Curtis Webb, Esq., attorney for the petitioners in Hazlehurst v. HHS (Case No. 03-654V). In a ruling issued on March 5, Mr. Webb was awarded $216,164.09 for fees and costs and the petitioners $5,813.48 for reimbursement of expenses incurred during the course of the proceeding.

Spoiling For The Next Round

Immediately after judgment was entered for the fee and cost award, Mr. Homer filed a motion for reconsideration of the Cedillo decision. In an order of dismissal, Special Master Hastings observed that the motion was untimely filed; that “new evidence” submitted by the petitioners was either available prior to the decision or failed to directly address the question of vaccine causation of autism or gastrointestinal dysfunction; and that the motion largely relied on “gross mischaracterizations of [the] decision… too numerous to describe.”

Those “gross mischaracterizations” are set forth in Mr. Homer’s subsequent motion for judicial review, which attributes the disappointing outcome of the case to deliberate malfeasance on the part of the special master (who had so recently gone on the record with affirmations of the petitioners’ good faith, and compliments on the extraordinary efforts made on their and other families’ behalf by counsel).

[T]he special master purposely turned a blind eye on her evidence, especially the substantial concessions by the respondent’s expert witnesses… [T]he special master abandoned his obligation to impartially weigh the evidence… [T]he special master inappropriately assumed the respondent’s role as protector of the integrity of vaccines… [T]he special master has defied congress and the Federal Circuit… [Petitioner] has been denied the fundamental fairness compelled by Rule 7 of the Vaccines of the United States Court of Federal Claims… [T]he special master abused his discretion, was arbitrary, capricious, and has issued a decision that is not in accordance with law.

Mr. Homer protested the allegedly prejudicial impact of publicity about the case (the fruit of a coordinated campaign by petitioners, their advocates and allies), and accused the special master of dismissing the claim not because the evidence warranted dismissal, but because he feared the societal consequences of a ruling implicating vaccines as a cause of autism.

During the past decade, the publicity afforded the issue of whether vaccines can cause autism has been intense. In [petitioner]’s view, due to this publicity, both the respondent and the special master feared that a finding in her favor would drive down immunization rates… Due to the extraordinary publicity in her case, [petitioner] submits, she was not afforded the “fundamental fairness” required by the Vaccine Rules. Instead, she was sacrificed to protect the integrity of vaccines.

He protested the decision to apportion the caseload between three special masters (a case management strategy necessitated by the avalanche of autism filings that he and his colleagues began to facilitate in 1998; Mr. Homer’s firm represents approximately 1,200 or 25% of the nearly 5,000 claims included in the Omnibus Autism Proceeding). The two then-new additions to the Office of Special Masters were, he implied, less qualified than Special Master Hastings to consider the general causation evidence presented in the case (Special Master Denise K. Vowell is the U.S. Army’s former Chief Trial Judge, and Special Master Patricia Campbell-Smith served for seven years as clerk to U.S. Court of Federal Claims Judge Emily C. Hewitt, whose responsibilities include review of VICP decisions).

On January 9, 2007, the Petitioners’ Steering Committee (“PSC”) proposed that a “test case” be heard by Special Master George L. Hastings, Jr. In this regard, the PSC relied upon the fact that Special Master Hastings was uniquely qualified to hear such a case. He not only had served as a special master since the inception of the Program, he also had presided over a number of similar test cases that had the effect of resolving hundreds of cases. Two days later, on January 11, 2007, the chief special master assigned two new, recently appointed special masters, Special Master Vowell and Special Master Campbell-Smith, to assist Special Master Hastings with the autism docket…

Having now reviewed the decision of the special master in her case, as well as the decisions of the special masters in Hazlehurst and Snyder, [petitioner] submits that she had the burden of persuading not one but three special masters that her MMR vaccine can cause autism.

He protested the court’s reliance upon the opinions of “the government’s paid witnesses,” and accused the special master of deliberately disregarding statements they made under cross-examination (for the most part, confirmation of undisputed aspects of the child’s medical history).

In [petitioner]’s view, the special master, to protect vaccine integrity in a very public case, chose to impose upon [petitioner] an unattainable standard of proof. To protect the vaccine’s integrity he rejected all of [petitioner]’s credible evidence and blindly accepted the conclusions of the respondent’s seventeen experts… [Petitioner] welcomed the opportunity to cross-examine the respondent’s experts, who invariably conceded important aspects of [petitioner]’s case. The special master, however, relied solely upon the number of the respondent’s experts, their obvious qualifications, and their conclusions to find against [petitioner]. However, in so doing, the special master chose to ignore the many concessions of the respondent’s experts that supported [petitioner]’s case. In this case, apparently, the special master found the respondent’s experts’ conclusions reliable, but their concessions unreliable. For him to have done so was arbitrary, capricious, and an abuse of his discretion.

He protested the introduction of relevant, critical evidence by Dr. Stephen Bustin, including two “highly technical” documents and an “impossibly technical” PowerPoint presentation, released pursuant to a court order shortly before the hearing. He protested the special master’s supposed disregard for the opinions of the child’s treating physicians (simultaneously conceding that none of them had concluded that the MMR had caused her autism).

He protested the criticism levied against Dr. Arthur Krigsman, and offered a history of his accelerated development of a newly-conceived (and undoubtedly lucrative) medical subspecialty — i.e., performing gastrointestinal examinations on autistic children, one thousand in less than ten years. He argued that parental consent implies that each procedure was medically necessary. He dismissed as irrelevant and insignificant several professional investigations and disciplinary actions that were brought to light during the course of the proceeding (including an inquiry into the remarkable number of inadequately-documented colonoscopies and endoscopies Dr. Krigsman had performed on autistic children during the term of his association with Lenox Hill Hospital, a pattern that ultimately attracted the attention of the Office for Human Research Protections).

The special master reserved special venom for [petitioner]’s treating gastroenterologist and expert witness, Dr. Arthur Krigsman, a board-certified gastroenterologist, accusing him of “gross medical misjudgment.” In fact, the special master’s attack is grossly unfounded. In response, [petitioner] points out, at the time of her hearing, Dr. Krigsman had evaluated the gastrointestinal tracts of a thousand autistic children. At the hearing, he testified of his initial skepticism that autistic children had bowel symptoms. He testified that he conducted a history and physical of the initial eight patients referred to him, and when appropriate, ordered non-invasive testing. When that testing revealed no abnormalities, he declined to treat them further. Only when shown an article by a prominent gastroenterologist in a textbook he had used in medical school did Dr. Krigsman reconsider his original thinking. He offered to conduct additional evaluations of the original patients. All parents agreed. What the special master does not acknowledge is that most parents will not allow a physician to conduct invasive procedures on their child unless the symptoms are chronic and unremitting, causing physical and emotional distress to their child, where they have been non-responsive to traditional treatment. All eight of Dr. Krigsman’s original patients ultimately underwent colonoscopies.

(The special master has relied heavily upon the disciplinary action instituted by Lenox Hill against Dr. Krigsman for attacking his credibility… None of these proceedings concerned the competence of Dr. Krigsman as a physician or gastroenterologist.)

He protested the court’s refusal to consider “new evidence,” and insisted that the handful of book chapters and articles filed with the Motion for Reconsideration raised new questions of fact sufficient to warrant reopening the case. He protested the special master’s reference to the criteria for evaluation of scientific evidence articulated by the U.S. Supreme Court in Daubert v. Merrill Dow Pharmaceuticals when determining the weight to afford evidence presented in his clients’ VICP claim. He insisted that in Program cases, the court need only determine whether a petitioners’ process of formulating a causation hypothesis is logical, and may therefore discount competing conclusions (presumably, even conclusions that proceed from a superior analysis of the evidence).

As legal support for his determination that [petitioner]’s evidence is unreliable, and that her theories are not generally accepted in the scientific community, the special master relies on the Supreme Court’s decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., and a 1999 Federal Circuit decision, Terran ex. rel. Terran v. Sec’y of HHS,, that indicates that Daubert plays some role in Vaccine Program proceedings. [Petitioner] submits, once again, Daubert refers only to the methods scientists use, not to the expert’s conclusions…

[I]f evidence establishes equally plausible etiologies for an injury then the petitioner should prevail… [Petitioner]’s burden, therefore, is to prove a prima facie case that her vaccines were a substantial contributing factor to her injury. She believes she has done so… The special master improperly used Daubert as a clout to dismiss [petitioner]‘s petition.

The motion for review of the Cedillo decision was filed on March 16, accepted and assigned to U.S. Court of Federal Claims judge Thomas Wheeler.

Like his colleague, but with considerably less fanfare, attorney Curtis Webb filed a Motion for Review of Special Master Patricia Campbell-Smith’s dismissal of the Hazlehurst claim. The case has been assigned to Senior Judge John P. Wiese; a hearing has not yet been scheduled.

Dancing With Deadlines

In a decision issued on March 16, Special Master Denise Vowell took petitioners’ attorney Christopher Wickersham, Sr. to task for attempting to force an extension of his time to appeal the dismissal of Snyder v. HHS (Case No. 01-162V) by waiting beyond the last minute to submit it.

On Friday, March 13, 2009, at 6:02 PM, petitioners filed a motion for reconsideration of my February 12, 2009 decision denying compensation in this case. The instant motion, which was untimely filed, was accompanied by over 140 pages of what purportedly is “new evidence.”

(This “new evidence” consists of several book chapters from a book published in January, 2009; two medical journal articles, one published in September, 2008, and one published in March, 2009; additional medical records for [petitioner] that were available, but not filed, at the time of the hearing in her case; and an affidavit from Dr. Ronald Kennedy challenging some of Dr. Burtus Rima’s trial testimony (without offering any explanation for why such testimony could not have been offered in rebuttal during the Snyder hearing, in which both witnesses testified). I note that the book chapters are not generally “cutting edge” in terms of new scientific research, and that the chapters filed in this case cite many of the same medical journal articles already filed into the record and discussed in my decision. With the exception of [one] article […] all of this “new evidence” was published before my decision issued. A cursory review of that article indicates that it does not address the central question of vaccine causation of autism spectrum disorders. Petitioners’ failure to request to reopen the evidentiary record to present the other “new evidence” prior to the decision issuing in this case says volumes about the value of this evidence to any causation decision and speaks loudly about the motivation for this untimely filing.)

Vaccine Rule 10(c) clearly sets forth that, within 21 days of a special master’s decision, either party may file a motion for reconsideration. In this case, that 21 day period expired March 5, 2009. Petitioners offered no explanation for missing this filing deadline. This untimely filing was not accompanied by a motion for leave of court to file the motion out of time or a motion for enlargement of time. Either petitioners’ attorneys were unaware of the existence of Vaccine Rule 10(c) or simply chose to ignore it.

I am mindful of the importance of this case as one of the three test cases on the theory that a combination of the measles, mumps, and rubella vaccine and thimerosal-containing vaccines cause autism. For that reason, I accepted supplemental expert reports and additional medical literature filed months after the conclusion of the hearing in this case in 2007. For that reason, I did not close the evidentiary record in this case until July, 2008, some eight months after the hearing concluded. The untimely filing of this motion for reconsideration, on the eve of the deadline for filing a motion for review of my decision, suggests a thinly veiled effort by petitioners’ counsel to obtain additional time for filing their motion for review, while placing additional evidence before the reviewing court. In the process, petitioners’ counsel seriously mischaracterizes several aspects of my decision denying compensation and the evidence adduced in the general causation case.

Because Vaccine Rule 10(c) is not based on any statutory time constraint, I will assume, for the purposes of deciding this motion, that I have discretion to consider an untimely filing. However, based on the last minute nature of the filing and petitioners’ failure to demonstrate good cause for that untimely filing, the motion for reconsideration is DENIED. Alternatively, even were I to consider petitioners’ arguments and the accompanying exhibits, petitioners have failed to demonstrate that the interest of justice would be served by the granting of their motion, and for that reason their motion would be denied.

A motion for judicial review was nonetheless accepted by the court, and the case was assigned to Judge Margaret M. Sweeney. Oral argument is scheduled for the afternoon of July 29.

In Reasonable Anticipation

In an otherwise-routine fee and cost decision in Gerard v. HHS (Case 99-381V, February 17, 2009), Clifford Shoemaker, Esq. was warned that future occurrences of the sort of improbable billing practices encountered in a host of his recent fee petitions would not henceforth be tolerated. In a directly-worded footnote, special master Denise Vowell advised that:

[O]n February 11, 2008, petitioner’s counsel billed 0.10 hour of attorney time for reviewing an order advising counsel of a rules change regarding ECF filing. Payment for this time is authorized in this case only, as this was a general notice pertaining to all active cases in the Vaccine Program. Applications for fees for reading this order will not be paid in any subsequent cases.

Comments


  1. Your courageous, knowedgeably meticulous, and highly effective effective probing of rent-seeking medical litigation in America has my admiration and gratitude. I hope to return and communicate in more detail in the future

    — nnamelet    2009-04-19 01:32    #

  2. Why is it only proof of “unclean hands” when lawyers make money? Dr. Paul Offit has made $29 million dollars from the sale of rotavirus vaccine by Children’s Hospital of Philadelphia. Yet people that are vehemently pro-vaccine believe everything Dr. Offit has to say. Yet a lawyer who has the gall to bring a case in Vaccine Court is apparently inherently dishonest according to you. . .

    — JShamz    2009-06-03 09:37    #

  3. JShamz: “Yet people that are vehemently pro-vaccine believe everything Dr. Offit has to say.”

    Perhaps because what he says is backed by actual evidence. This evidence is readily available, including the large epidemiological studies done in several countries.

    So your point is?

    When has Dr. Offit failed to declare any conflict of interests? He recused himself when there was a vote on Rotashield because of his declared conflict of interest.

    The question is why do people still want to believe Wakefield who failed to declare his conflict of interests, and actually misrepresented the medical records of some of the dozen children used in his now discredited study.

    — Chris    2009-06-07 00:51    #