"The Appalling Poling Saga" · 3 days ago

The current issue of the Journal of Child Neurology (JCN) contains a remarkable trio of letters regarding Developmental Regression and Mitochondrial Dysfunction in a Child with Autism, a report by Dr. Jon S. Poling, Dr. Richard E. Frye, Dr. Andrew W. Zimmerman and Dr. John M. Shoffner which was published in that journal in February 2006.

Developmental Regression and Mitochondrial Dysfunction in a Child with Autism describes the case of an unnamed child whose health and development deteriorated after a series of ear infections and a vaccine-induced varicella (chickenpox) infection. The child was diagnosed with autism at two years of age; numerous blood tests and a muscle biopsy revealed an underlying mitochondrial dysfunction. Review and comparison of laboratory records of Kennedy Krieger Institute patients with autism and other neurological conditions yielded various abnormal metabolic markers in a portion of the autistic subjects. The authors discuss indicators and possible triggers of mitochondrial dysfunction, such as immune activation by infections or immunization, and end with a call for further research to identify reliable laboratory markers to detect mitochondrial abnormalities.

As is customary in scientific papers, the authors acknowledge limitations of their analysis, such as the possibility that their data might have been skewed by false-positive laboratory results. However, although it is also customary for authors to disclose potential conflicts of interest, the published article includes no mention of the fact that co-author Dr. Jon Poling is the father of the child described in the report, and that he, his wife and daughter are petitioners in Poling v. HHS (Case 02-1466V), a pending Vaccine Injury Compensation Program (VICP) claim involving exactly the matters described in it. (According to the U.S. Health Resources and Services Administration, the average VICP award amount totaled approximately $1 million at the time Dr. and Mrs. Poling filed their petition for compensation.)

This lapse went relatively unnoticed until February 2008, when publicist David Kirby announced the decision of the Division of Vaccine Injury Compensation (DVIC) to compensate Miss Poling for injuries possibly induced by one or more vaccinations. (Although DVIC issued its entitlement decision in November 2007, Mr. Kirby did not publicize it until after Dr. Zimmerman and Dr. Mark Geier submitted expert reports in the case, and after the Polings’ attorney, Clifford Shoemaker, negotiated compensation for treatment of the child’s seizure disorder, which emerged when she was six years old.) In his announcement, Mr. Kirby cited “some journal articles and other articles” whose authors had speculated that “10% to 20% of all autism cases may involve mitochondrial disorders.” Developmental Regression and Mitochondrial Dysfunction in a Child with Autism was described as:

Another article published in the Journal of Child Neurology and co-authored by Dr. Zimmerman… The authors… reported on a case-study of the same autism claim conceded in Vaccine Court…

Mr. Kirby did not disclose that the lead author of the case-study was not the relatively well-known Director of Medical Research at the Kennedy Krieger Institute, but the child’s father and petitioner in the VICP claim.

A carefully-orchestrated storm of publicity ensued. In a press conference, appearances on Good Morning America, Larry King Live and Cable News Network, and interviews with USA Today, The Atlanta Journal-Constitution and other national media outlets, Dr. and Mrs. Poling, Mr. Shoemaker, Mr. Kirby, Dr. Geier, and other vaccine-injury plaintiffs’ advocates hailed the decision as a landmark with potential to affect the outcome of more than 5,000 pending VICP claims.

On February 29, Dr. Steven Novella of Yale University published a discussion of the Poling decision, answering the question, “Has the Government Conceded Vaccines Cause Autism?” with an emphatic “No.” Dr. Poling responded with a comment posted to (and since deleted from) Dr. Novella’s blog, and simultaneously published as an open letter on Age of Autism, a group blog promoting the interests of vaccine-injury plaintiffs. Although he advised that he would “not be able to respond to individual comments,” I took the liberty of asking one specific question prompted by his disclosure that he had “accepted consultancy or speakers honoraria from Pfizer, Eisai, Ortho-McNeil, Biogen, Teva, Immunex (now Amgen), and Allergan.”

You’ve declared your COI’s [conflicts of interest] in this post. Why didn’t you declare your COI’s in your article in the Journal of Child Neurology — most notably, the fact that you were father to the the subject of the case-study, and party to a pending legal claim involving precisely the issues described in it?

As promised, Dr. Poling did not reply, either on Dr. Novella’s blog or on other online forums where Developmental Regression and Mitochondrial Dysfunction in a Child with Autism was being discussed.

The matter eventually attracted the attention of the publisher of the Journal of Child Neurology, as evidenced by the publication in its September 2008 issue of a letter by Dr. Jon Poling, a second letter by co-authors Dr. Richard E. Frye, Dr. Andrew W. Zimmerman and Dr. John M. Shoffner, and a third by JCN’s Editor-in-Chief Dr. Roger A. Brumback, Professor at Creighton University School of Medicine. (Throughout October 2008, Sage Publications is offering free public access to all of its online journal content, including these three letters.)

In his letter, Dr. Poling defends the quality of the report, explains his failure to reveal his status as the father of the child described in it, and maintains that the details of her case were disclosed without his consent.

Our report was fair and accurate, adhering to the highest standards. [My daughter’s] name was withheld to protect a 6-year-old child. A third party subsequently leaked, without our knowledge or permission, my daughter’s identity and the government’s concession report to the media. In hindsight, I agree that I should have declared my daughter’s identity in a separate letter to JCN. I apologize for that omission. [emphasis added]

Defending his failure to disclose his status as a VICP petitioner, Dr. Poling cites the long delay in case processing and his minimal input, and asserts that publishers’ disclosure requirements have already impeded the free flow of “promising leads or discoveries” involving researchers’ family members.

Regarding the 2002 case filed through the U.S. Vaccine Injury Compensation Program (VICP) on behalf of my daughter, neither I nor my wife Terry included or referenced the JCN case report in any information that we submitted to the government… Before HHS government physicians conceded that Hannah’s July 2000 vaccinations triggered her encephalopathy, my only VICP activities were signing a short original petition and submitting a required sworn parental affidavit, first in 2002 and updated in 2006. Otherwise, I had no involvement in my daughter’s case, or in any other child’s ‘vaccine court’ process… Dr Zimmerman’s December 2007 letter was the only VICP involvement of any coauthor.

…There are certainly other physicians who have chosen not to publish promising leads or discoveries involving family members, out of respect for privacy or fear of the kind of criticism our article has generated. I suggest the JCN explore ways to encourage these helpful contributions, even when the patient is a family member. [emphasis added]

In a separate Conflict of Interest Statement, Drs. Frye, Zimmerman and Shoffner offer their own explanation and apology.

The facts of the case were presented fairly and without our knowledge of the prior filing with the vaccine court on behalf of the patient… The report was submitted to the Journal of Child Neurology after this child’s case was filed through the U.S. Vaccine Injury Compensation Program, but before any proceeding occurred on this matter. In retrospect, a full disclosure of the relationship of the patient to the lead author and the submission of this case to the Vaccine Adverse Event Reporting System and the U.S. Vaccine Injury Compensation Program should have been made to the journal prior to publication. We regret this oversight. [emphasis added]

Whereas scientific journals generally publish amendments with simple titles such as “Errata” or “Correction,” Dr. Brumback’s response is emblazoned with the headline, “The Appalling Poling Saga.” In it, he recounts the chain of events that led to the report’s publication and the information that came to light two years later. His letter is illustrated with a reproduction of the manuscript’s title page, in which the authors explicitly declare that they “have no conflicts of interest to disclose.”

On January 29, 2005, Jon S. Poling, Richard E. Frye, John Shoffner, and Andrew W. Zimmerman submitted online to the manuscript website of Journal of Child Neurology (JCN) an article titled “Developmental Regression and Mitochondrial Dysfunction in a Child with Autism” as indicated on the manuscript title page. Peer review suggested acceptance of the manuscript without revision, which was done on March 31, 2005. On that same date, a copyright agreement signed by Jon Poling was received by the Editorial Office. On November 29, 2005, the accepted manuscript was assigned to an article batch scheduled for publication in February 2006 (volume 21, issue 2) and subsequently appeared in that issue. As can be noted from the title page, the authors claimed no conflict of interest at the time of initial submission nor did they notify the Editor-in-Chief or the journal office of any such conflict of interest during the 12 months following initial manuscript submission until publication.

In late February and early March 2008, a media frenzy developed over a story about the ruling of a “vaccine court” in favor of a 9-year-old Georgia girl named Hannah Poling. A recent New England Journal of Medicine article describes some of these media events. In the March 6, 2008, edition of the Atlanta Journal–Constitution newspaper, staff writer Alison Young indicated that the child’s case had been reported by her father in JCN.

In the United States Federal Register of May 21, 2003 (volume 68, number 98), on page 27829, there is an entry (“145. Terry and Jon Poling on behalf of Hannah Poling, Vienna, Virginia, Court of Federal Claims Number 02-1466V”) mentioning a filing under the National Vaccine Injury Compensation Program listing of petitions received. This occurred before the manuscript was submitted for consideration by JCN and clearly represents a conflict of interest. Yet the authors made a definitive statement to the Editor-in-Chief and to potential peer reviewers that there was no conflict of interest. To any journal editor, this is an appallingly troubling issue. Openness and transparency related to any and all potential conflicts of interest is critical to maintaining the integrity of science in general and of journal quality in particular. Whether the manuscript would have been accepted for publication if the authors had disclosed earlier the conflict of interest is now a moot point, but this does not excuse the behavior of the authors in not disclosing the conflict of interest at the time, despite their current apologies.

Although, according to the leaked testimony (available to be viewed on numerous websites), it does not appear that the JCN article was used in the legal proceedings, media linkage of the published article to the legal outcome implies scientific support from JCN for this legal opinion. Of course it is possible to view this media exposure along the lines of the quip: “There is no such thing as bad publicity—just publicity.” However, in order for journals to maintain credibility with the scientific community and the general public, it is essential that any conflicts of interest be clearly identified.

Beginning in January 2009, statements from all authors concerning potential conflicts of interest will be published as a part of each article. However, no written statement can substitute for honesty, good faith, and integrity on the part of authors. [Citations and illustration omitted; emphasis added]

In spite of their carefully worded conflict of interest statement, it remains unclear whether Drs. Frye, Zimmerman or Shoffner learned of Dr. Poling’s VICP claim during the months between the report’s original submission and final publication — that is, soon enough to retract and amend the explicit assertion that the authors of Developmental Regression and Mitochondrial Dysfunction in a Child with Autism “[had] no conflicts of interest to disclose” before it found its way into print. Their statement nonetheless indicates that Dr. Poling withheld information about a highly relevant potential source of bias while collaborating with his child’s doctors on her case report. Although Dr. Poling’s co-authors have been appropriately circumspect in their references to their young patient, a recent Scientific American article quotes the opinion of Dr. Shoffner — a leading authority on mitochondrial disorders — that Dr. Poling has “mudd[ied] the waters” with unsupported public speculations about the percentage of children who might be susceptible to mitochondrial dysfunction, and the likelihood that vaccines might trigger such dysfunction.

It is simply incredible that a doctor who convenes a press conference to announce the favorable outcome of his child’s legal case, and internationally broadcasts her photograph and story — including in a two-page spread in People Magazine — would suggest that he sought to “protect” her by failing to disclose his relevant personal relationship and financial interests in a report submitted to a specialist scientific journal. Equally incredible is his suggestion that he should be excused for his failure to disclose an unquestionably relevant legal claim — a claim with a potential value exceeding $1 million — because it had not yet reached the hearing stage, and because his attorney was navigating the slowly-moving procedural waters for him. Most incredible of all is his suggestion that neither he nor anyone acting as his agent — such as his attorney, who represents hundreds of other VICP petitioners — consented to the disclosure of legal documents which could only have been obtained from parties to the case.

With Developmental Regression and Mitochondrial Dysfunction in a Child with Autism, Dr. Jon Poling takes his place with Dr. Andrew Wakefield, Dr. Mark Geier and Laura Hewitson, Ph.D. in the ranks of researchers who have concealed relevant legal and financial interests in studies purporting to confirm a causal relationship between vaccines and autism.

I extend my respect to Dr. Brumback for his undisguised editorial outrage and his unequivocal affirmation of researchers’ obligation to fully disclose their potential conflicts of interest to the scientific community and the general public.

Under the Wire to the IACC · 6 days ago

September 30, 2008

To the Members of the Interagency Autism Coordinating Committee:

I am mother to two young adults, one diagnosed with Asperger Syndrome, and have other family members with autistic spectrum diagnoses and traits. I am writing to offer several observations about the Committee’s August 15, 2008 draft Strategic Plan for Autism Spectrum Disorder Research.

The draft Strategic Plan cites a “sense of urgency” as the first “core value” underlying the Committee’s work. I fully support the development and implementation of effective, compassionate and respectful responses to the needs of autistic individuals and their families. However, I would caution the Committee to avoid allowing anyone’s “sense of urgency” to justify abandoning scientific rigor or exposing autism research subjects to greater than minimal risk in the absence of any evidence of potential for direct benefit to them. This is especially important given the Committee’s support for the development of “clinical trials that assess the safety and efficacy of widely used interventions that have not been rigorously studied for use in ASD populations.” Although some of these “widely used interventions” such as the gluten-free casein-free diet may be relatively innocuous, others such as extended administration of chelation drugs are associated with significant and well-documented risks. Certain entrepreneurs may have successfully marketed autism treatments that are not well-supported by scientific evidence and are premised on speculative hypotheses of autism causation, and may have persuaded parents of autistic children to consent to invasive, potentially traumatic diagnostic testing, blood draws, injections and intravenous infusions. However, the risks of such treatments and procedures should not be downplayed, or the strength of supporting evidence overplayed, in any autism research that is federally supported.

Although the draft Strategic Plan states that “numerous epidemiological studies have found no relationship between ASD and vaccines containing the mercury preservative thimerosal,” vaccines subsequently and inexplicably appear first in a list of possible environmental factors deserving further monitoring. The only conceivable reason for the inclusion of this recommendation is to placate plaintiffs’ advocates such as Mark Blaxill and IACC member Lyn Redwood, whose organization SafeMinds exists to support and publicize only those studies that validate their pre-existing conclusions about autism causation, and to influence the outcome of vaccine-injury litigation. The IACC must focus public resources on autism research that is rationally justified, rather than spend tax dollars in a futile attempt to mollify activists who alternate their demands for “more science” with expressions of suspicion against scientists whose research is supported by the federal government or the pharmaceutical industry, and condemnation and ridicule of scientists and studies with conclusions different from their own.

Please resist the efforts of vaccine-injury plaintiffs’ advocates to define themselves as representatives of “the autism community.” There are many people affected by autism spectrum conditions, many different theories of causation, and many different perspectives on appropriate ways to address the medical, cognitive, educational and social challenges faced by people on the autistic spectrum. There is no unified “autism community.” The IACC should therefore refrain from using the phrase “autism community” in its publications.

Sincerely,

Kathleen Seidel
neurodiversity.com | honoring the variety of human wiring
http://www.neurodiversity.com

Repetition & Unreason · 21 days ago

Special Master Christian J. Moran’s August 21, 2008 opinion in Barber v. Secretary of Health and Human Services (HHS) (Case 99-434V) explores the limits of compensation to Vaccine Injury Compensation Program (VICP) petitioners’ experts who offer opinions that fail to take into account scientific evidence presented during the course of a proceeding. Additionally, the decision further increases the number of instances in which the court has denied payment for professional services billed by (albeit previously paid to) career petitioners’ attorney Clifford Shoemaker, Esq. For both reasons, the Barber decision should be of special interest to those monitoring developments in the ongoing Omnibus Autism Proceeding.

Barber v. HHS was filed in July 1999, with the petitioner alleging that her child’s aplastic anemia was caused by an adverse reaction to the hepatitis B vaccine. Medical records were submitted to the court in 2002 and 2004; these included the results of blood tests performed in 1995 indicating signs of aplastic anemia that had developed prior to immunization. This finding formed the basis for HHS’ conclusion that the vaccine could not have caused the child’s condition. In contrast, U.C. Davis immunologist Dr. M. Eric Gershwin submitted that the child was healthy before her hepatitis B vaccination and that the vaccination caused her aplastic anemia. A hearing was held in September 2007, and a decision denying compensation was issued two months later.

Although the petitioner had originally been represented by Mr. Shoemaker, in May 2006 David Terzian, Esq. — a former U.S. Department of Justice staff attorney now in private practice — assumed responsibility for the case. The petitioner’s February 2008 motion for attorney fees and costs therefore included bills from Mr. Terzian, Mr. Shoemaker and Dr. Gershwin. HHS attorneys protested the hourly rates requested for Mr. Terzian, his paralegal, and Dr. Gershwin, and the appropriate amount of compensation to be awarded to Mr. Shoemaker. All of these matters were subsequently addressed in Special Master Moran’s 46-page decision.

The first half of the decision contains a lengthy discussion of prevailing market rates for attorneys who handle similar cases and practice in Richmond and the northern Virginia suburbs. The court noted that Mr. Terzian was “well-prepared for status conferences, comprehends medical issues, and advocates for his client appropriately,” “litigates his cases efficiently,” “delegates tasks to more junior attorneys and paralegals appropriately,” “ensur[es] that efforts are not duplicated,” displays “a concern about efficiency,” and “exercises billing judgment.” The court further noted his additional advantage, unique among VICP petitioners’ attorneys, of having “worked for the other side” in his former role as counsel to HHS. Ultimately, the special master approved compensation to Mr. Terzian at a rate of $340/hour.

Although Mr. Shoemaker’s rate of $300/hour was not in dispute, Special Master Moran subjected his invoice to the same scrutiny afforded his invoices in other hepatitis B cases and determined that many of the items duplicated billings previously submitted to his and his colleagues’ dockets. These included charges for preparing a mass mailing, discussing the case with an associate, reviewing the case file, and reading a brief order pertaining to 26 different claims. Overlapping claims cited in the decision included:

Emmendorfer v. HHS (Case 99-553V)
Duncan v. HHS (Case 99-455V)
Goss v. HHS (Case 99-407V)
Hamrick v. HHS (Case 98-683-V)
Kay v. HHS (Case 01-467V)
Lamar v. HHS (Case 99-583V)
Lamar v. HHS (Case 99-584V)
Nicks v. HHS (Case 99-662V)
Nicks 2 v. HHS (Case 99-663V)
Perrodin v. HHS (Case 99-473V)
Wied v. HHS (Case 01-505V)

(Other cases involving duplicative invoices include Carrington v. HHS (Case 99-495V), Helzner v. HHS (Case 01-263V), Pearl v. HHS (Case 99-209V), Pearl v. HHS (Case 99-210V), Radecky v. HHS (Case 02-1666V), Savin v. HHS (Case 99-537V), Szekeres v. HHS (Case 99-649V), and Wheatley v. HHS (Case 99-569V).)

Special Master Moran also disallowed Mr. Shoemaker’s claims for reviewing the file, reading medical literature and discussing the case with Dr. Mark Geier before the case was well-developed; for re-reviewing documents that had been submitted three years previously; and for allegedly performing case-related work after he was no longer counsel of record. The sum of deductions from Mr. Shoemaker’s bill totaled $707.25.

Although the special master accepted that the petitioner acted in good faith in originally filing the claim, he concluded that a reasonable basis for the petition ceased to exist once HHS filed the expert report of University of Chicago pediatric hematologist Dr. James Nachman, who determined on the basis of the child’s test results that her aplastic anemia existed prior to immunization with the hepatitis B vaccine. Although Dr. Gershwin had several months in which to digest this material prior to the September hearing, he “failed to offer any response that was even minimally persuasive” to rebut Dr. Nachman’s analysis of the medical records. The special master reasoned that if Dr. Gershwin had promptly and fairly considered this evidence, a hearing would have been deemed unnecessary and the claim would have been dismissed. He therefore determined that attorney’s fees and litigation costs could only be paid for services rendered prior to the hearing, and for preparation and defense of the fee petition.

This hearing should not have occurred because after considering all the material filed in the case, Dr. Gershwin lacked a reasonable basis for maintaining his opinion that the hepatitis B vaccine caused [the child’s] aplastic anemia. Before the hearing, Dr. Gershwin had a fair opportunity to realize his opinion was unsound and to withdraw it. [p. 38]

The petitioner supported Dr. Gershwin’s requested rate of $500/hour — in a bill totaling $13,775 for 27.75 hours of work — with a conclusory “statement from Dr. Gershwin that he charges this rate.” The petitioner further compared his work to that of Dr. Marcel Kinsbourne, who in February 2008 was awarded $500/hour for his work in Simon v. HHS (Case 05-941V). The special master, however, observed that an immunologist making his debut as an expert witness before the VICP should not paid at the premium rate awarded to a pediatric neurologist with twenty years’ experience testifying in vaccine-injury cases; it would be more fitting to compare him to Georgetown University Professor Emeritus Dr. Joseph Bellanti, an immunologist who has testified on behalf of VICP petitioners for over a decade. Using Dr. Bellanti’s previously-approved rate of $350/hour as a baseline, and taking into account his longer career and extensive Program experience, the special master set Dr. Gershwin’s hourly rate at $300/hour.

The immunologist reaped the benefit of the court’s assumption of good faith, and was fully compensated for time spent familiarizing himself with relevant literature in the field of hematology.

[T]he opinion presented in Dr. Gershwin’s report that [the child] did not have aplastic anemia when she received the hepatitis B vaccine ignores [her] medical record that shows her MCV [mean corpuscular volume] was abnormal. Thus, Dr. Gershwin’s initial report, arguably, was not reasonable. Nevertheless, [the petitioner] will be awarded compensation for the time Dr. Gershwin spent for preparing his report (3.00 hours), for reviewing articles on aplastic anemia (3.75 hours), and for reviewing documents on mean corpuscular volume (1.50 hours). Without some indication that Dr. Gershwin actually understood the significance of [her] MCV result, it will be assumed that Dr. Gershwin acted in good faith in presenting his report. [p. 38]

Special Master Moran articulated at length his concern over Dr. Gershwin’s failure to address crucial evidence, which consisted not only of Dr. Nachman’s reports, but also included articles filed and solicited by the special master himself, describing normal values for mean corpuscular volume — that is, evidence that set forth the fundamental basis for diagnosing aplastic anemia. He made it clear that expert witnesses are not free to pick and choose the evidence they will consider in formulating their opinions; that certain scientific questions are not open to subjective interpretation; and that a scientific opinion is worth only as much as its factual basis.

During the hearing, Dr. Gershwin stated that he believed that [the child’s] October 26, 1995 MCV was normal. This statement is wrong. The test result itself shows that the result was not normal. It is important to recognize that whether [her] MCV was within normal limits is an objective question. There is a right answer and a wrong answer. It is not a matter of subjective interpretation of a test result on which reasonable people can differ reasonably.

How Dr. Gershwin could conclude that [her] test was normal is not clear. Dr. Gershwin could have lacked knowledge about the normal MCV values for children. However, it seems like a doctor would have learned the different normal values as part of medical school training. If this assumption were the only basis for drawing conclusions about Dr. Gershwin’s knowledge, then Dr. Gershwin’s mistake could be understandable… However, the documents filed in this case informed Dr. Gershwin (and Mr. Terzian) that normal values differ. The Mosby’s Manual states that “[n]ormal values vary according to age.” In addition, Dr. Nachman’s initial report explains why MCV increases during incipient aplastic anemia — the body returns to a fetal process of erythropoiesis. Dr. Nachman’s supplemental report included the Harriet Lane Handbook that showed different normal values for different ages.

All this information was available to Dr. Gershwin several months before the hearing. Dr. Gershwin’s use of the material from the National Library of Medicine could have possibly been justified when Dr. Gershwin formed his original opinion. However, once the more specific information about age-specific norms was filed in this case, it was incumbent on Dr. Gershwin to address this information. He did not. [pp. 41-42]

Certainly, by the time of the hearing, Dr. Gershwin either actually knew or should have known that [the child’s] test result was consistent with an early (asymptomatic) form of aplastic anemia. Dr. Gershwin could have known that [the child’s] condition was not normal from his medical school training. (If Dr. Gershwin did not know the signs of aplastic anemia, then his ability to render an opinion would be questionable.) He also could have known (and probably should have known) that [the child’s] condition was abnormal because the lab report said [the child’s] score was abnormal. Dr. Gershwin overlooked, or ignored, this abnormal test result when writing his initial opinion… [W]hen Dr. Gershwin was asked to produce information supporting his opinion, he first did not submit any information and later, during the hearing, produced a general reference that failed to include age-appropriate norms. This is not adequate or reasonable. [p. 44]

The Federal Circuit’s 1994 decision in Perreira v. HHS (33 F.3d 1375), which affirmed the denial of attorney compensation after a reasonable basis for a petitioner’s claim ceased to exist, provided the foundation for the court’s decision to disallow compensation for preparation for and testimony at the Barber hearing.

Compensating Dr. Gershwin for time spent on the hearing would encourage petitioners and their experts to offer virtually any opinion with the comfort that they will be paid. Congress did not guarantee payment of attorneys’ fees and costs to every petitioner whose claim was denied. “Since the funds which are payable under this statute are limited, Congress must not have intended that every claimant, whether being compensated or not under the Vaccine Act, collect attorney fees and costs by merely having an expert state an unsupported opinion that the vaccine was the cause in-fact of the injury.” Perreira, 33 F.3d at 1377 (footnote omitted).

Furthermore, to the extent that this case alerts petitioners, their counsel and experts whom they retain that compensation will not be paid automatically, the Program will benefit as a whole. Petitioners will consider whether there is a reasonable basis for going forward to a hearing in light of all the evidence in the case. Without a guarantee of payment, petitioners are more likely to withdraw cases that lack a reasonable basis eliminating unnecessary and time-consuming hearings, improving judicial efficiency, and allowing stronger cases to move forward more quickly.

The final $58,366.65 fee and cost award in Barber included $40,623.00 in fees to Mr. Terzian’s firm, $8,393.50 in fees to Mr. Shoemaker, and $5,700 in compensation to Dr. Gershwin.

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