"The Conclusion is Ethereal" · 54 days ago

Maryland High Court Dismisses Autism-Mercury Lawsuit

On Thursday, May 7, the Court of Appeals of Maryland affirmed the December 2007 decision of the Circuit Court for Baltimore City in Blackwell v. Wyeth, excluding the testimony of geneticist Dr. Mark Geier, chemist Prof. Boyd Haley, pediatrician Dr. Elizabeth Mumper, pharmacologist Prof. Richard C. Deth and psychologist Dr. Stephen Siebert. All had been retained to support the claim that thimerosal, a mercury-based antibacterial contained in certain vaccines, brought about the plaintiffs’ son’s autism.

The complaint originally alleged that the child was harmed by both industrial mercury emissions and thimerosal-containing vaccines, and named as defendants pharmaceutical manufacturers Wyeth, Merck and Eli Lilly, chemical manufacturers Sigma-Aldrich, American International Chemical and Spectrum Laboratory Products, and Baltimore Gas & Electric Company. As the time for trial and admission of experts drew near, charges against all defendants but Wyeth were dismissed.

After a ten-day hearing featuring testimony by experts for both parties, Judge Stuart Berger found that neither the thimerosal-autism causation hypothesis nor the analyses supporting it were generally accepted in the relevant scientific community, determined that the plaintiffs’ experts were unqualified to testify about a causal relationship between thimerosal and autism, denied the admissibility of their testimony, and dismissed the complaint.

The plaintiffs appealed, arguing that the trial judge impermissibly ruled on the matter of causation, applying the “general acceptance” standard to their experts’ conclusions rather than to the process by which they reached their opinions, impermissibly evaluated the merit of their claim by using a heightened scientific certainty standard to determine the admissibility of their experts’ testimony, and thereby prevented a jury from being empanelled and engaging in appropriate fact-finding.

The Baltimore court’s decision focused primarily on the testimony of Dr. Geier, who was introduced as the plaintiffs’ chief expert in epidemiology. Upon review, the Court of Appeals agreed with Judge Berger that although Dr. Geier may have used data collected in generally accepted ways, the “analytical gap” between those data and his conclusions was too great to justify the results of his analysis. The court further agreed that neither Dr. Geier’s methods nor his theory of autism causation were generally accepted in the relevant scientific community, and that neither he nor Prof. Haley, Dr. Mumper, Prof. Deth or Dr. Siebert possessed sufficient knowledge, skill, experience, training, or education — especially in the discipline of epidemiology — to proffer reliable expert testimony on the “complex and novel” hypothesis of a causal relationship between thimerosal and autism.

From the opinion:

The quest for truth in the courtroom and the quest for knowledge in science are not necessarily intersecting endeavors. A trial, on the one hand, may be quick and determinative; it is a process by which “advocates for each side present evidence in the light most favorable to their case, and the finder of fact sifts through it and assesses whether it establishes guilt or liability to the required degree of proof.” The search for knowledge in science, on the other hand, is rarely quick or final; rather, it represents an ongoing cycle, in which each inquiry into an observable phenomenon is but one aspect of an ongoing quest. (p. 5)

The Supreme Court in General Electric Company v. Joiner… recognized that the analysis of data or extrapolation requires more than mere conjecture to pass reliability scrutiny:

“…Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”

Generally accepted methodology, therefore, must be coupled with generally accepted analysis in order to avoid the pitfalls of an “analytical gap.” Dr. Geier’s faulty extrapolation from VAERS data, a potentially reliable source, manifests the ipsa dixit because his conclusion is ethereal. The conclusion is ethereal because the bases of the expert’s opinion, including the theory of causation, and the methodologies, are not “generally accepted as reliable within the expert’s particular scientific field,” and the data he relies upon was not tested nor gathered for the purpose of testing the hypothesis that thimerosal in vaccines causes autism. None of Dr. Geier’s research aimed at establishing a link between thimerosal and autism, moreover, is based upon sound methodology.

Based on Judge Berger’s rejection of Dr. Geier’s underlying hypothesis and methodology, i.e. the identification of specific genes and differential diagnosis, we hold that Judge Berger’s ultimate determination — that Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it — should not be disturbed by us. (pp. 32-33, 36, 47)

Before us, the Blackwells urge that Judge Berger abused his discretion by disqualifying their witnesses from testifying. Wyeth, having addressed the experts’ credentials during voir dire, reasserts that the Blackwells’ experts lack the necessary knowledge, expertise, training or education to offer an opinion about a causal relationship between thimerosal and autism. Although we agree with the Blackwells that generally there is “no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure,” we cannot say, in this case, that Judge Berger abused his discretion by adhering to “artificial classifications” of a specialty’s title, without concern for “the witness’ knowledge” and ability to convey valuable information to jurors.

When a novel theory of science is presented, however, its reliability and validity are dependent not only on the application of generally acceptable methodology and analyses, but also upon the knowledge, skill, experience, training or education of the scientist who purports to utilize them, because the expert must embody expertise in the relevant scientific field to be able to give an opinion regarding the results of the process of scientific discovery.

In the present case, clearly the level of complexity regarding the establishment of a causal relationship between the administration of a vaccine containing thimerosal and the onset of autism is complex; to the extent that “establishing” such a conclusion is even possible, it involves the extrapolation from, and scientific review of, numerous studies spanning a gamut of fields and methodologies, and most particularly, available epidemiological studies. As Blackwells’ counsel stated during oral argument before this Court, their experts’ causal conclusions are based on: (1) peer reviewed published epidemiological studies; (2) in vitro studies; (3) toxicological studies; (4) pharmacokinetic studies that discuss the distribution of mercury throughout the body; (5) diagnostic tests of blood “to determine the level of glutathione in the body, which is a molecule necessary to eliminate mercury”; (6) porphyrin urine analysis to determine mercury toxicity; (7) differential diagnosis; and (8) “extrapolation from animal studies and from other in vitro studies.”

Judge Berger, therefore, did not abuse his discretion when he required a specificity of knowledge, skill, experience, training or education related to the resolution of the lawsuit, and concluded that Drs. Geier’s, Haley’s, Deth’s, Mumper’s and Siebert’s fields of expertise were not relevant to the specific bodies of science that purport to maintain generally acceptable scientific methods and analyses related to autism and its causes. Based upon all of the foregoing analysis, we agree with the well-reasoned and cogent opinion of Judge Berger. (pp. 50, 58-62)

The plaintiffs have been ordered to pay all costs involved in appealing the Baltimore court’s decision. Should they seek reversal of the Court of Appeals ruling, their next step will be to petition for a writ of certiorari to the U.S. Supreme Court. Approximately 7,500 such petitions are filed every year; approximately 80-150 are granted, most of them involving significant questions of constitutional law, including questions about the constitutionality of state laws. Given that Blackwell v. Wyeth raises no such questions, and given the clear articulation of the court’s rationale offered in the original dismissal and the Court of Appeals opinion, it seems unlikely that this case or any of the other thimerosal claims filed simultaneously in 2002 by plaintiffs’ attorney Thomas Yost Esq. will make their way to the nation’s court of last resort. And given this latest addition to the ever-flowing stream of judicial and administrative decisions rejecting the methodology and qualifications of proponents of the thimerosal causation hypothesis, it seems unlikely that any of the parents persuaded to believe their ethereal conclusions will be awarded the damages they have been persuaded to believe are their rightful due.

* Ipse dixit – “Because I said so.”

Awards, Appeals & A Warning · 92 days ago

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.

Omnibus Autism Proceeding: Resources & Documents · 101 days ago

Index to Cases, Testimony, Reports, Rulings & Experts

Basic Information

42 USC 300aa-1: National Vaccine Program

National Vaccine Injury Compensation Program
About the Omnibus Autism Proceeding

Federal Register: Lists of all VICP petitions filed
(Select all volumes, then enter “National Vaccine Injury Compensation Program List of Petitions” into search box.)

U.S. Court of Federal Claims
Omnibus Autism Proceeding Index
Omnibus Autism Proceeding Docket (July 30, 2002-current)
(Includes links to all omnibus procedural and discovery-related filings.)
Roster of Petitioners’ Steering Committee (January 14, 2008)
Background on the Autism Proceeding
Vaccine Program Background
Practitioners’ Guidelines
Vaccine Rules
Published [Precedential] Decisions (January 10, 1997-current)
Unpublished [Non-precedential] Decisions (April 20, 2005-current)
Vaccine Case Search
U.S. Court of Federal Claims CM/ECF Live System
(Available to users with a PACER account. Provides access to individual case dockets and filing information. Vaccine injury case documents are restricted to parties of record. Published rulings and slip opinions may be accessed via the U.S. Court of Federal Claims public website.)

Petitioners’ Scientific References

Petitioners’ Exhibits 1-85 (December 8, 2006)
Petitioners’ Second “Motion to Compel” and Exhibits 86-90 (December 8, 2006)
Petitioners’ List of Scientific Articles (September 12, 2007)
Petitioners’ Master List of Medical Literature for Second Theory (November 30, 2007)
Petitioners’ Master Reference List: Update (August 7, 2008)

Test Cases: MMR-Thimerosal Causation

Cedillo v. HHS (Case No. 98-916V)
Hearing on MMR-thimerosal causation hypothesis held June 11-26, 2007, Washington, D.C.
Special Master George Hastings, Jr., presiding, with Special Masters Patricia Campbell-Smith and Denise Vowell.
Ronald Homer, Esq., Sylvia Chin-Caplan, Esq. and Clifford Shoemaker, Esq., appearing for the petitioners.
Vincent Matanoski, Esq. and Linda Renzi, Esq., appearing for the U.S. Department of Health & Human Services.

Testimony
Day 01 (.pdf) (.wma)
Opening statements; Dr. H. Vasken Aposhian, Ms. Theresa Cedillo
Day 02 (.pdf) (.wma)
Ms. Theresa Cedillo, Dr. Arthur Krigsman
Day 03 (.pdf) (.wma)
Dr. Karin Hepner, Dr. Ronald Kennedy
Day 04 (.pdf) (.wma)
Dr. Vera Byers
Day 05 (.pdf) (.wma)
Dr. Marcel Kinsbourne
Day 06 (.pdf) (.wma)
Dr. Eric Fombonne, Dr. Edwin Cook
Day 07 (.pdf) (.wma)
Dr. Max Wiznitzer
Day 08 (.pdf) (.wma)
Dr. Brian Ward, Dr. Stephen Bustin
Day 09 (.pdf) (.wma)
Dr. Stephen Hanauer, Dr. Christine McCusker
Day 10 (.pdf) (.wma)
Dr. Nicholas Chadwick, Dr. Jeffrey Brent
Day 11 (.pdf) (.wma)
Dr. Eric Fombonne, Dr. Diane Griffin
Day 12 (.pdf) (.wma)
Ms. Theresa Cedillo; closing statements

Respondent’s Expert Reports
Dr. Jeffrey Brent
Dr. Edwin Cook, Jr.
Dr. Eric Fombonne
Dr. Robert Fujinami
Dr. Michael Gershon
Dr. Diane Griffin
Dr. Stephen Hanauer
Dr. Christine McCusker
Dr. Brian Ward
Dr. Max Wiznitzer
Dr. Andrew Zimmerman
Dr. Nicholas Chadwick
Dr. Stephen Bustin (Report)
Dr. Stephen Bustin (Affidavit)
Dr. Bertus Rima

Petitioners’ Post-Hearing Brief (November 12, 2007)

Rulings
Ruling on Respondent’s Motion for Production of Videotapes (May 10, 2007)
Ruling on Interim Costs (December 18, 2008)
Decision (February 12, 2009)
Decision Awarding Interim Fees (March 11, 2009)

Appeal
Petitioners’ Memorandum in Support of Motion for Review of the Special Master’s Decision of February 12, 2009 (March 16, 2009)
Order Denying Motion for Reconsideration (March 16, 2009)

Hazlehurst v. HHS (Case No. 03-654V)
Hearing held October 15-18, 2007, Charlotte, North Carolina.
Special Master Patricia Campbell-Smith, presiding.
Curtis Webb, Esq., appearing for the petitioners.
Vincent Matanoski, Esq., Lynn Ricciardella, Esq., Linda Renzi, Esq., and Joseph Lowe, Esq., appearing for the U.S. Department of Health & Human Services.

Testimony
Day 01 (.pdf) (.wma01) (.wma02) (.wma03) (.wma04)
Opening statements; Ms. Angela Hazlehurst, Ms. Ann Gerrard, Mr. Aud Hazlehurst, Mr. Rolf Hazlehurst
Day 02 (.pdf) (.wma01) (.wma02)
Dr. Jean-Ronel Corbier
Day 03 (.pdf) (.wma01) (.wma02) (.wma03)
Dr. Robert Rust
Day 04 (.pdf) (.wma01) (.wma02) (.wma03)
Dr. Christine McCusker; Dr. Thomas McDonald; Ms. Angela Hazlehurst; closing statements

Respondent’s Expert Reports
Thomas McDonald, Ph.D.
Dr. Christine McCusker
Dr. Robert Rust

Rulings
Decision (February 12, 2009)
Ruling on Petitioners’ Motion to Strike Certain Evidence from Dr. Stephen Bustin (February 12, 2009)
Ruling on Interim Fees & Costs (March 5, 2009)

Snyder v. HHS (Case No. 01-162V)
Hearing held November 5-9, 2007, Orlando, Florida.
Special Master Denise Vowell, presiding.
Christopher Wickersham, Sr., Esq. and Thomas Powers, Esq., appearing for the petitioners.
Vincent Matanoski, Esq., Voris Johnson, Jr., Esq. and Katherine Esposito, Esq., appearing for the U.S. Department of Health & Human Services.

Testimony
Day 01 (.pdf) (.wma01) (.wma02) (.wma03) (.wma04)
Opening statements; Ms. Katherine Snyder, Ms. Samantha Noonan, Ms. Katherine Timlin, Dr. James Bradstreet
Day 02 (.pdf) (.wma01) (.wma02) (.wma03) (.wma04) (.wma05)
Dr. Ronald Kennedy, Dr. Marcel Kinsbourne
Day 03 (.pdf) (.wma01) (.wma02)
Dr. Burton Zweiman, Dr. Max Wiznitzer, Dr. Michael McCabe
Day 04 (.pdf) (.wma01) (.wma02) (.wma03) (.wma04) (.wma05) (.wma06)
Dr. Bertus Rima, Dr. Brian Ward
Day 05 (.pdf) (.wma01)
Closing Statements

Respondent’s Expert Reports
Dr. Michael McCabe
Dr. Bertus Rima
Dr. Brian Ward
Dr. Max Wiznitzer
Dr. Michael Oldstone
Dr. Max Wiznitzer

Rulings
Decision (February 12, 2009)
Ruling on Motion for Reconsideration (March 16, 2009)

Test Cases: Thimerosal Causation

King v. HHS (Case No. 03-584V)
Mead v. HHS (Case No. 03-215V)
Joint hearing on thimerosal causation hypothesis held May 12-30, 2008, Washington, D.C.
Special Master George Hastings, Jr., presiding, with Special Masters Patricia Campbell-Smith and Denise Vowell.
Thomas Powers, Esq. and Michael Williams, Esq., appearing for the petitioners.
Lynn Ricciardella, Esq., Vincent Matanoski, Esq. and Linda Renzi, Esq., appearing for the U.S. Department of Health & Human Services.

Testimony
Day 01 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04) (.mp3-05) (.mp3-06)
Opening statements; Dr. Sander Greenland, Dr. H. Vasken Aposhian
Day 02 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. H. Vasken Aposhian, Dr. Richard Deth
Day 03 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03)
Dr. Marcel Kinsbourne, Mr. George Mead
Day 04 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Ms. MyLinda King, Dr. Elizabeth Mumper
Day 05 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03)
Dr. Elizabeth Mumper
Day 06 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Jeffrey Brent, Dr. Richard Mailman
Day 07 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03)
Dr. L. Jackson Roberts, Dr. Jeff Johnson
Day 08 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Robert Rust
Day 09 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Dean Jones, Thomas Kemper, Patricia M. Rodier
Day 10 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Patricia Rodier, Dr. Steven Goodman
Day 11: Memorial Day observed
Day 12 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Michael Rutter
Day 13 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03) (.mp3-04)
Dr. Catherine Lord, Dr. Eric Fombonne
Day 14 (.pdf) (.mp3-01) (.mp3-02)
Dr. Richard Deth
Day 15 (.pdf) (.mp3-01) (.mp3-02) (.mp3-03)
Dr. Marcel Kinsbourne, Dr. Elizabeth Mumper, Dr. Eric Fombonne. Dr. Jeff Johnson, Dr. Jeffrey Brent; closing statements

Respondent’s Expert Reports (identical in both cases)
Dr. Jeffrey Brent, King/Mead
Dr. Manuel Casanova, King/Mead
Dr. Steven Goodman, King/Mead
Jeff Johnson, Ph.D., King/Mead
Dr. Dean Jones, King/Mead
Thomas Kemper, Ph.D., King/Mead
Dr. Catherine Lord, King/Mead
Dr. Richard Mailman, King/Mead
Dr. L. Jackson Roberts, King/Mead
Dr. Patricia Rodier, King/Mead
Dr. Michael Rutter, King/Mead
Dr. Carlos Pardo-Villamizar, King/Mead
Dr. Eric Fombonne, King/Mead
Dr. Robert Rust, King/Mead
Dr. Robert Rust, King/Mead
Dr. Jeffrey Brent, King/Mead

Rulings
Order Re: Dr. Aposhian’s “Theory 2” Rebuttal Report (August 29, 2008)

Dwyer v. HHS (Case No. 03-1202V)
Hearing held July 21-22, 2008, Washington, D.C.
Special Master Denise Vowell, presiding.
Richard C. Ferrell, Esq., appearing for the petitioners.
Lynn Ricciardella, Esq. and Traci Patton, Esq., appearing for the U.S. Department of Health & Human Services.

Testimony
Day 01: Ms. Maria Dwyer, Mr. Timothy Dwyer
Day 02: Dr. Elizabeth Mumper, Dr. Bennett Leventhal
(No transcripts posted; links lead to docket with sound files.)

Respondent’s Expert Reports
Dr. Bennett Leventhal

Rulings
(TBA)

Expert Witnesses for Petitioners

H. Vasken Aposhian, Ph.D.
Toxicologist
Faculty page, University of Arizona
Curriculum Vitae (January 10, 2007)
Expert Report: Thimerosal and Its Biotransformant Ethylmercury Cause Injury to the Developing Brains of Human Embryos and Young Children (September 4, 2007)
Expert Report: Mercuric Mercury in the Developing Brains of Young Children Exposed to Thimerosal-Containing Vaccines (July 29, 2008)
Testimony, Cedillo Day 01 (June 11, 2007)
Testimony, King/Mead Day 01 (May 12, 2008)
Testimony, King/Mead Day 02 (May 13, 2008)

Harland D. Austin, Ph.D. and Cathy Lally
Epidemiologists
Harland Austin faculty page, Emory University
Cathy Lally staff page, Emory University
Expert Report: A Reanalysis of the Vaccine Safety Datalink Project Conducted by the Centers for Disease Control and Prevention Pertaining to Safety Issues Related to Thimerosal-Containing Vaccines (December 7, 2006)

James Jeffrey Bradstreet, M.D.
Family practitioner
Professional website
Testimony, Snyder Day 01 (November 5, 2007)

Vera Byers, M.D., Ph.D.
Immunologist
Professional website (archived July 2007)
Curriculum Vitae (January 10, 2007)
Testimony, Cedillo Day 04 (June 14, 2007)

Jean-Ronel Corbier, M.D.
Pediatric neurologist
Professional website
Testimony, Hazlehurst Day 02 (October 16, 2007)

Richard Deth, Ph.D.
Pharmacologist
Faculty page, Northeastern University
Expert Report: The Relationship Between Thimerosal and Autism (August 28, 2007)
Testimony, King/Mead Day 02 (May 13, 2008)
Testimony, King/Mead Day 14 (May 29, 2008)

Sander Greenland, Ph.D.
Epidemiologist
Faculty page, University of California at Los Angeles
Expert Report to Special Master Hastings Regarding the Propriety of Delaying Consideration of General Causation Issues in the Omnibus Autism Proceeding (January 31, 2006)
Expert Report Regarding Epidemiologic Evidence on the Possible Link Between Mercury-Containing Vaccines and Autism (Part One) (Part Two) (August 28, 2007)
Testimony, King/Mead Day 01 (May 12, 2008)

Karin Hepner, Ph.D.
Molecular biologist
Testimony, Cedillo Day 03 (June 13, 2007)

Ronald C. Kennedy, Ph.D.
Microbiologist, immunologist
Faculty page, Texas Tech University
Curriculum Vitae (September 4, 2007)
Testimony, Cedillo Day 03 (June 13, 2007)
Testimony, Snyder Day 02 (November 6, 2007)

Marcel Kinsbourne, M.D.
Pediatric neurologist
Faculty page, The New School for Social Research
Curriculum Vitae (January 10, 2007)
Expert Report: Thimerosal Exposure, Neuroinflammation, and the Symptoms of Regressive Autism (April 22, 2008)
Testimony, Cedillo Day 05 (June 15, 2007)
Testimony, Snyder Day 02 (November 6, 2007)
Testimony, King/Mead Day 03 (May 14, 2008)
Testimony, King/Mead Day 15 (May 30, 2008)

Arthur Krigsman, M.D.
Gastroenterologist
Staff page, Thoughtful House
Testimony, Cedillo Day 02 (June 12, 2007)

Elizabeth Mumper, M.D.
Pediatrician
Professional website
Expert Report: Professional Opinion About the Role of Thimerosal Containing Vaccines in the Case of W.M. (November 20, 2007)
Expert Report: Professional Opinion About the Role of Thimerosal Containing Vaccines in the Case of J.K. (December 14, 2007)
Testimony, King/Mead Day 04 (May 15, 2008)
Testimony, King/Mead Day 05 (May 16, 2008)
Testimony, King/Mead Day 15 (May 30, 2008)
Testimony, Dwyer Day 02 (July 22, 2008)

Expert Witnesses for the U.S. Department of Health & Human Services

Jeffrey Brent, M.D., Ph.D.
Pediatrician, toxicologist
Faculty page, University of Colorado Health Sciences Center
Expert Report, Cedillo (April 24, 2007)
Testimony, Cedillo Day 10 (June 22, 2007)
Expert Report, King/Mead (February 25, 2008)
Testimony, King/Mead Day 06 (May 19, 2008)
Testimony, King/Mead Day 15 (May 30, 2008)
Expert Report, King/Mead (Response to Aposhian rebuttal) (October 3, 2008)

Stephen A. Bustin, Ph.D.
Molecular scientist
Faculty page, Barts & The London School of Medicine & Dentistry
Affidavit (May 11, 2007)
Expert Report, Cedillo (May 30, 2007)
Testimony, Cedillo Day 08 (June 20, 2007)

Manuel F. Casanova, Ph.D.
Neuroscientist
Faculty Page, University of Kentucky, Louisville
Expert Report, King/Mead (February 20, 2008)

Nicholas Chadwick, Ph.D.
Biochemist
Declaration, Cedillo (May 23, 2007)
Testimony, Cedillo Day 10 (June 22, 2007)

Edwin H. Cook, Jr., M.D.
Psychiatrist
Faculty page, University of Illinois at Chicago
Expert Report, Cedillo (April 24, 2007)
Testimony, Cedillo Day 06

Eric Fombonne, M.D.
Psychiatrist
Faculty page, McGill University
Expert Report, Cedillo (April 24, 2007)
Testimony, Cedillo Day 06
Testimony, Cedillo Day 11 (June 25, 2007)
Expert Report, King/Mead (February 25, 2008)
Testimony, King/Mead Day 13 (May 28, 2008)
Testimony, King/Mead Day 15 (May 30, 2008)

Robert S. Fujinami, Ph.D.
Microbiologist, immunologist
Faculty page, University of Utah
Expert Report, Cedillo (April 24, 2007)

Michael D. Gershon, M.D.
Pathologist
Faculty page, Columbia University
Expert Report, Cedillo (April 24, 2007)

Steven Goodman, Ph.D.
Epidemiologist
Faculty page, The Johns Hopkins University
Expert Report, King/Mead (February 25, 2008)
Testimony, King/Mead Day 10 (May 23, 2008)

Diane E. Griffin, M.D., Ph.D.
Microbiologist, immunologist
Faculty page, The Johns Hopkins University
Expert Report, Cedillo (April 24, 2007)
Testimony, Cedillo Day 11 (June 25, 2007)

Stephen B. Hanauer, M.D.
Gastroenterologist
Faculty page, University of Chicago
Expert Report, Cedillo (April 23, 2007)
Testimony, Cedillo Day 09 (June 21, 2007)

Jeff Johnson, Ph.D.
Pharmacologist
Faculty page, University of Wisconsin-Madison
Expert Report, King/Mead (February 25, 2008)
Testimony, King/Mead Day 07 (May 20, 2008)
Testimony, King/Mead Day 15 (May 30, 2008)

Dean P. Jones, Ph.D.
Molecular toxicologist
Faculty page, Emory University
Expert Report, King/Mead (February 25, 2008)
Testimony, King/Mead Day 09 (May 22, 2008)

Thomas L. Kemper, M.D.
Neurobiologist
Faculty page, Boston University
Expert Report, King/Mead (February 20, 2008)
Testimony, King/Mead Day 09 (May 22, 2008)

Bennett Leventhal, M.D.
Child psychiatrist
Faculty page, University of Illinois at Chicago
Expert Report, Dwyer (July 18, 2008)
Testimony, Dwyer Day 02 (July 22, 2008)

Catherine Lord, Ph.D.
Clinical psychologist
Faculty page, University of Michigan
Expert Report, King/Mead (February 20, 2008)
Testimony, King/Mead Day 13 (May 28, 2008)

Richard B. Mailman, Ph.D.
Pharmacologist
Faculty page, University of North Carolina
Expert Report, King/Expert Report, Mead(February 24, 2008)
Testimony, King/Mead Day 06 (May 19, 2008)

Michael J. McCabe, Jr., Ph.D.
Immunotoxicologist
Faculty page, University of Rochester
Expert Report, Snyder (October 2, 2007)
Testimony, Snyder Day 03 (November 7, 2007)

Christine T. McCusker, M.D., M.Sc.
Pediatrician
Faculty page, McGill University
Expert Report, Cedillo (April 12, 2007)
Testimony, Cedillo Day 09 (June 21, 2007)
Expert Report, Hazlehurst (September 14, 2007)
Testimony, Hazlehurst Day 04 (October 18, 2007)

Thomas T. McDonald, Ph.D.
Immunologist
Faculty page, Barts & The London School of Medicine & Dentistry
Expert Report, Hazlehurst (September 6, 2006)
Testimony, Hazlehurst Day 04 (October 18, 2007)

Michael B.A. Oldstone, M.D.
Virologist, immunologist
Faculty page, The Scripps Research Institute
Letter, Snyder (re experience with Andrew Wakefield) (September 28, 2007)

Carlos Pardo-Villamizar, M.D.
Neurologist, pathologist
Faculty Page, The Johns Hopkins University
Letter, King/Mead (May 13, 2008)

Bertus K. Rima, M.Sc., Ph.D.
Molecular biologist, virologist
Faculty page, The Queen’s University of Belfast
Affidavit, Cedillo (May 13, 2007)
Expert Report, Snyder (September 29, 2007)
Testimony, Snyder Day 04 (November 8, 2007)

L. Jackson Roberts, II, M.D.
Pharmacologist
Faculty page, Vanderbilt University
Expert Report, King/Mead, (February 21, 2008)
Testimony, King/Mead Day 07 (May 20, 2008)

Patricia M. Rodier, Ph.D.
Prenatal teratologist
Faculty page, University of Rochester
Expert Report, King/Mead (February 21, 2008)
Testimony, King/Mead Day 09 (May 22, 2008)
Testimony, King/Mead Day 10 (May 23, 2008)

Robert Rust, M.D.
Neurologist, epileptologist
Faculty page, University of Virginia
Expert Report, Hazlehurst (September 19, 2007)
Testimony, Hazlehurst Day 03 (October 17, 2007)
Expert Report, King/Mead (March 12, 2008)
Expert Report, King/Mead (March 19, 2008)
Testimony, King/Mead Day 08 (May 21, 2008)

Michael L. Rutter, M.D.
Developmental psychopathologist
Faculty page, University College of London
Expert Report, King/Mead (February 18, 2008)
Testimony, King/Mead Day 12 (May 27, 2008)

Brian J. Ward, M.D., M.Sc.
Infectious disease specialist
Faculty page, McGill University
Expert Report, Cedillo (April 24, 2007)
Testimony, Cedillo Day 08 (June 20, 2007)
Testimony, Snyder Day 04 (November 8, 2007)
Expert Report, Snyder (Response to Kinsbourne and Kennedy reports) (October 2, 2007)

Max Wiznitzer, M.D.
Pediatric neurologist
Faculty page, Case Western Reserve University
Expert Report, Cedillo (April 19, 2007)
Testimony, Cedillo Day 07 (June 19, 2007)
Expert Report, Snyder (September 28, 2007)
Testimony, Snyder Day 03 (November 7, 2007)
Expert Report, Snyder (April 4, 2008)

Andrew W. Zimmerman, M.D.
Pediatric neurologist
Staff page, Kennedy Krieger Institute
Expert Report, Cedillo (April 24, 2007)

Burton Zweiman, M.D.
Immunologist
Professor Emeritus of Medicine, University of Pennsylvania
Testimony, Snyder Day 03 (November 7, 2007)

The Blank Check Stops Here · 104 days ago

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.

Dialing for Autism Dollars · 113 days ago

The “Autism Spectrum Disorder Foundation” & Its Telemarketing Campaign

I had just finished putting away my groceries last Wednesday afternoon when the phone rang. I picked up the receiver, and several seconds later an unfamiliar woman’s voice asked for Mr. or Mrs. Seidel. Although I am generally quick to tell telemarketers my policy of not responding to telephone solicitations, this time I replied, “This is she, may I help you?”

Her pitch went something like this:

“I’m calling for the Autism Foundation Wings of Hope Neighborhood Campaign. We’re calling to ask if you would send letters to your friends and neighbors to raise funds for camp scholarships and help for families with autistic children. You don’t have to write the letters yourself, we have a kit that we can send you.”

I said, “What was the name of that organization again?”

“The Autism Spectrum Disorder Foundation.”

I told the woman that I happened to be an autism advocate and was familiar with the names of many different autism organizations, but had never heard of either the Autism Foundation or the Autism Spectrum Disorder Foundation. I asked her where it was located. She left the phone briefly, then returned and stated that it was based in Everett, Washington. I then asked whether the foundation conducted programs in New Hampshire, and what other programs it provided in addition to the one for which she was raising funds. When she was unable to answer, I said, “So you’re not personally familiar with the foundation, but are raising funds on their behalf?” She admitted that this was true, and suggested that I visit the Autism Spectrum Disorder Foundation website at http://www.myasdf.org.

Establishing The Virtual Presence

The Autism Spectrum Disorder Foundation website greets visitors with a statement of charitable purpose and legal status.

“The goal of the Autism Spectrum Disorder Foundation (ASDF) is to support children with an autism spectrum disorder by providing education, information and financial assistance to their families and relevant community service organizations.”

“Funds donated to ASDF will be used to address any and all kinds of issues in assisting children with Autism and their families.”

“Autism Spectrum Disorder Foundation is recognized as tax-exempt under section 501(c)(3) of the internal Revenue Code. Your donation is TAX DEDUCTABLE. [sic]“

Visitors are informed that ASDF furnishes daycare providers, pediatricians and early childhood educators with free “autism emergency response” kits that include “risk assessment tools” and an educational video designed to assist them in early identification and diagnosis. The logo of Goodwill Industries of Southwestern Michigan is displayed beside an announcement of that agency’s partnership with ASDF to “help disseminate key information” about autism.

Other pages on the site provide basic information on autism spectrum conditions, screening tools for autism and Asperger Syndrome, intervention programs, safety issues, and entitlement programs. Most of this text is adapted from publicly available sources such as the National Institute of Mental Health, National Research Council and Autism Society of America.

Descriptions of ASDF’s family assistance and camp scholarship programs state that “ASDF partners with state Autism chapters [sic] in helping to locate and assist families in need.” Testimonials from the directors of the Mt. Hood Kiwanis Camp and the Autism Society of Oregon express their gratitude for donations that enabled local ASO members to participate in a social skills seminar and camp programs.

In a brief podcast, an unnamed mother describes her concern over her son’s development, and her discovery of the ASDF website. In a 30-second public service announcement, pediatrician Dr. Mary Alice Reid briefly describes early signs of autism, and encourages concerned parents to visit http://www.myasdf.org.

Visitors to the “Wings of Hope” page wishing to participate in the letter-sending campaign are instructed to address return envelopes to Autism Spectrum Disorder Foundation, P.O. Box 96730, Washington DC 20090-6730, and to call 866-747-7691 should they require additional fundraising materials.

Visitors to the “Donate Today!” page are promised that contributions will “help us help children with autism,” exhorted to “feel confident in their donation” due to the organization’s tax-exempt status, and encouraged to mail checks, money orders or cashier’s checks to Autism Spectrum Disorder Foundation, 228 W. Lincoln Hwy. #301, Schererville, Indiana 46375

Filling In The Blanks

Although the Washington, D.C. address suggests a national presence, although the references to a neighborhood campaign and regional grantmaking suggest widespread local programming, and although numerous autism researchers, organizations and advocates are invoked and personally thanked throughout the ASDF website, the identities of its own directors, officers, staff, members or volunteers are nowhere to be found.

A call to directory assistance yielded no District of Columbia telephone listing or street address for the Autism Spectrum Disorder Foundation. The District of Columbia Business License Center confirmed that ASDF is not registered to conduct charitable solicitations in that jurisdiction, and that solicitation endorsements are never issued to charities without a street address.

The Schererville, Indiana address provided on the “Donate Today!” page belongs to a rented mailbox at a UPS Store in a strip mall.

A call to the toll-free number listed on the website (866-747-7691) was greeted by a “please hold” recording that did not specify an organizational name; the call was disconnected after a 35-minute wait.

A call to the toll-free number identified as the source of the call to my home (866-670-6296) was greeted by a recorded message:

“Thank you for calling the Autism Foundation Wings of Hope Program. We are very sorry we missed you. We will try to reach you again in the next few days. We are calling you with some recent updates. If you would like more information about our organization please press “1” now. To speak with an Autism Foundation representative, please hang up and dial 1-866-582-7634. Representatives are available 8:00a.m. to 9:00p.m. Eastern Standard Time.”

Pressing “1” led to another message:

“The goal of the Autism Spectrum Disorder Foundation (ASDF) is to support children with an autism spectrum disorder by providing education, information and financial assistance to families and relevant community organizations.”

A call to the toll-free number mentioned on the recorded message (866-582-7634) was greeted by another non-specific “please hold” recording. The call was answered after thirty minutes by a young woman who informed me that my name and contact information had been provided to her employer, InfoCision Management Corporation, by the Autism Spectrum Disorder Foundation.

The GuideStar database contains numerous entries for groups with names that incorporate the terms “Autism” and “Foundation,” such as the Autism Society of America Foundation and the California Autism Foundation, and for state and local Autism Society of America chapters, such as the Autism Society of Colorado. However, although the telephone solicitation, recorded call-back message and “Wings of Hope” website page refer to “The Autism Foundation,” the only groups called simply “The Autism Foundation” are a Florida- and Massachusetts-based charity that was dissolved in 1998, and a small, identically-named fund associated with the Philadelphia-based Center for Autism.

GuideStar does, however, contain an entry for the Autism Spectrum Disorder Foundation, c/o Michael Slutsky, at 10512 19th Avenue, Ste. 101, Everett, Washington 98208. ASDF was granted tax-exempt status in 2007; its address belongs to the office of Charlotte Maris, CPA. A 990 nonprofit tax return has not yet been filed by the organization.

A file for ASDF was opened with the The U.S. Better Business Bureau in October 2008, but it is not identified as an BBB Accredited Charity. A comment from BBB indicates that “the most recent report on this organization has expired,” and that “a new report has not been developed due to lack of inquiries.”

The domains autismspectrumdisorderfoundation.com, autismspectrumdisorderfoundation.org, autismspectrumdisorderfund.com, autismspectrumdisorderfund.org, and myasdf.org are registered to Michael Slutsky at a residence on Muirfield Court in Schererville, Indiana. (The first four domain names were secured on February 15, 2007, and myasdf.org eight months later.) Mr. Slutsky is principal of Angel Lite Fundraising, a business located at the same address that sells private label scented jar candles to school groups, sports booster clubs and churches conducting fundraising campaigns. Angel Lite was established in 2002 and is registered with the Indiana Secretary of State as an active for-profit business entity; however, the company’s website was taken offline sometime after January 2008.

Building The “Nonprofit” Business Enterprise

In March 2007, shortly after its first four domains were registered, the Autism Spectrum Disorder Foundation was incorporated in Delaware (1) with Ms. Doris Rieke named as its initial director. The initial mailing address provided for ASDF is that of the Kansas City law firm of Copilevitz & Canter, which represents nonprofit organizations, professional fundraisers, and commercial businesses in the areas of charitable solicitation, telemarketing, fundraising and regulatory compliance. Among the firm’s more notable victories was a successful First Amendment challenge to the Federal Trade Commission’s 2003 restrictions on telephone solicitations, made on behalf of telemarketers U.S. Security, Global Contact Services and InfoCision Management Corporation, and the Direct Marketing Association.

ASDF’s Bylaws locate its main office at a residential address in Marysville, Washington, and describe its purpose:

“to provide education, financial support and in-kind support in connection with the early detection of, and intervention in, autism and related disorders affecting children, as well as supporting research and treatment of autism and related disorders by any and all means and to engage in other charitable and educational activities consistent with an organization exempt from Federal Income Taxation under Section 501(c)(3) of the Internal Revenue Code.”

Copilevitz & Canter attorneys registered the Autism Spectrum Disorder Foundation as a Washington state nonprofit entity and submitted ASDF’s application for tax-exemption in May 2007. The application names Michael Slutsky as President; Marysville, Washington school psychologist James Michael Roan as Treasurer; and Jan Coyer of Moriches, New York as Secretary. The application discloses the organization’s projected income and expenses from May 2007 through December 2009:

  2007 2008 2009 TOTAL
Income $200,000 $400,000 $750,000 $1,350,000
Expenses        
Fundraising $10,000 $30,000 $50,000 $90,000
Grants $0 $30,000 $30,000 $60,000
Prof. fees $10,000 $30,000 $30,000 $70,000
Programs $180,000 $310,000 $540,000 $1,030,000
Total expenses $200,000 $400,000 $650,000 $1,250,000


A description of planned activities states that roughly half of program expenses will be spent on information services — i.e., website development, preparation and distribution of informational materials and assessment tools — and the other half on making grants to other organizations that conduct autism research and provide direct services to autistic children and their families. Central to the public information program is the Modified Checklist for Autism in Toddlers (M-CHAT), a screening instrument developed by University of Connecticut researchers in 1999; since its creation, the M-CHAT has enjoyed increasingly widespread use by clinicians, researchers and social service agencies working with young children.

A description of fundraising programs describes the anticipated source of capital for ASDF’s plans.

“ASDF will rely primarily on personal solicitation of individuals and the development of foundation and government grant appeals. All members of the board and volunteers will be encouraged to inform their families, friends and contacts about the ASDF and its many services, and need for public support. When future resources are available, ASDF may seek the services of outside consultants to assist it in further developing its fundraising strategies. However, no such service providers have been engaged, to date.”

“ASDF may also rely on passive, on-line giving by those who visit the organization’s website once it is developed. Interest will also be generated through word of mouth and partnerships with participating (and benefitting) organizations.”

“ASDF will primarily conduct fundraising in a limited geographic area in its first years of existence, but will be prepared to accept funds from any potential donor located outside of that intended region.”

Tax-exempt status was granted by the IRS to the Autism Spectrum Disorder Foundation on August 14, 2007.

In mid-2007, a website was created for ASDF by Indiana web designer Nikki Massey, who also developed Mr. Slutsky’s fundraising supplies business website. The new ASDF site went live shortly thereafter, and in early 2008, the Angel Lite Fundraising site was taken offline.

In November 2007, Ms. Massey posted ASDF’s public service announcement to YouTube. Two months later, new YouTube member “watrpilot” — a username identical to the prefix of the email address listed on Mr. Slutsky’s domain registrations — praised the video as “excellent and informative,” without disclosing that he had commissioned its production.

Bankrolling The Charitable Start-Up

Contrary to his assurances to the IRS that fundraising would initially be conducted in a limited geographic area in ASDF’s first years of existence, as soon as tax-exemption was granted, Mr. Slutsky contracted with Precision Performance Marketing, a for-profit fundraising consulting firm that plans and manages multi-state direct mail campaigns and targeted mailing list rentals. Campaigns could be conducted immediately in the twelve states that do not require charities to register before soliciting donations — i.e., Delaware, Hawaii, Idaho, Indiana, Iowa, Montana, Nebraska, Nevada, South Dakota, Texas, Vermont, and Wyoming — and after October 29, 2007 in California, the first regulated state to grant ASDF a charitable solicitation license. In a Fundraising Disclosure Form later filed with the North Carolina Secretary of State, ASDF indicated that it received $14,602 from the PPM campaign by the end of 2007.

According to documents later filed with the Washington Secretary of State, the Oregon telemarketing firm Jadent, Inc. also conducted fundraising campaigns for ASDF during 2007, but no further information is publicly available about their outcome.

In May 2008 — barely eight months after tax-exempt status was awarded — Mr. Slutsky expanded the scope of his fundraising to encompass direct-mail and telemarketing campaigns in all fifty states. He and co-director and Chief Financial Officer Janet Coyer entered into a three-year contract with Precision Performance Marketing. The PPM campaign, and the ultimate fate of contributions made by well-meaning donors, carries considerable uncertainty.

“Targeted Audience. It is the intention of the parties to contact those individuals who have a predisposed interest in the program service of ASDF, but who have not yet affirmatively expressed the same. Because of the nature of this campaign, PPM and ASDF acknowledge and agree that the income generated from the contemplated mailing program cannot be forecast in advance, and may in fact prove to be less than the cost of maintaining this program.”

Also in May 2008, ASDF’s attorneys at Copilevitz & Canter began to submit ASDF’s charitable solicitation registrations in the thirty-nine states besides California that require them: Alaska, Alabama, Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin.

Although he is identified as a Director and Treasurer in ASDF’s application for tax-exemption, the name of school psychologist James Michael Roan does not appear on the board rosters filed with the state registrations. (2) The address provided for Mr. Slutsky in the state filings is a unit in the Camelot Apartments in Schererville, Indiana. A newly-named Foundation director, Helen Ignas, is owner of the apartment complex and owner-occupant of the Muirfield Court residence previously given as Mr. Slutsky’s home address. CFO Janet Coyer, formerly identified as a resident of Moriches, New York, is listed in the state registrations at another Schererville residence.

The audit submitted with the state registrations was prepared by Charlotte Maris, CPA of Everett, Washington, who is designated as custodian of ASDF’s financial records. Ms. Maris discloses that she “is not independent with respect to Autism Spectrum Disorder Foundation, Inc.” but does not elaborate further on the nature of her relationship to the organization. The audit reports the following figures for the period March 14-December 31, 2007 — the first nine months of ASDF’s existence:

Revenue  
Revenue from direct public support $14,602.00
Expenses  
Business expenses $865.00
Contract services $2,250.00
Employee wages $138.90
Operations $3,005.38
Other $12,428.70
Total operating expenses $18,699.69
Net loss ($4,097.69)
   
Assets  
Checking account $234.01
Liabilities  
Michael Slutsky payable $4,245.71
Payroll liabilities $22.35
Wages payable $63.64
Total liabilities $4,331.70
Net loss ($4,097.69)
Total liabilities & stockholder’s equity $234.01


After obtaining approval to solicit donations in a number of states, Mr. Slutsky and Ms. Coyer entered into a contract with the Akron, Ohio-based firm InfoCision Management Corporation, “to recruit volunteers through a residential campaign, who will solicit voluntary contributions from neighbors” on behalf of ASDF. InfoCision’s responsibilities include developing scripts, making telephone solicitations, verifying pledges, and sending mailings. Completed telephone calls are charged at $3.30 apiece; each fulfillment and follow-up letter costs ASDF $1.01, plus the cost of postage and stationery. Communicator training, telephone lookups, computer programming and other services are also separately charged.

The contract offers no estimate of the percentage of gross revenues that ASDF can hope to receive from the campaign. A “break even” clause guarantees that the “client’s liability for costs incurred under this Agreement shall not exceed the gross telemarketing income generated under the agreement” — i.e., although ASDF may ultimately receive nothing from the campaign, the only losers will be the donors who intended their contributions to support autism research and programs for autistic children and their families.

Sprinting To The Financing Goal

The Autism Spectrum Disorder Foundation’s telemarketing campaign began in late summer 2008. Calls were received by participants in online autism discussion groups, who expressed skepticism about the organization’s legitimacy and the ultimate destination of donations. Call recipients complained of hang-ups and calls made late in the evening. Others commented on how unusual it was for an autism organization to raise funds in such a manner. The Autism Society of North Carolina issued an “Autism Telemarketing Alert” to warn its members that ASDF was in no way connected with their organization, and that its representatives were unaware of well-established autism programs in their state:

“The Autism Society of North Carolina wants you to know that despite the [The Autism Spectrum Disorder Foundation’s] claims to provide support to families of children with autism and camper scholarships, it does not appear that this happens. In fact, when contacted about their claims to work with state organizations, a representative of myasdf.org did not know that the Autism Society of North Carolina existed or that we run a summer camp program.”

“The above organization is located in Washington state and uses telemarketing to raise funds. The Autism Society of North Carolina does not have any affiliation with this organization.”

“The Autism Society of North Carolina’s mission is to provide supports and promote opportunities that enhance the lives of individuals within the autism spectrum and their families. To accomplish this we hold fundraising events like the Autism Ribbon Run on October 11. ASNC also may ask for contributions to support programs like the summer camp program or other services via the mail and email. The Autism Society of North Carolina DOES NOT USE TELEMARKETERS to raise funds. The money raised through our mail and email campaigns is used to provide services and supports to North Carolinians on the autism spectrum and their families.”

Although Mr. Slutsky asserts that donors to his Foundation can “feel confident” that their donation will “help us help children with autism,” this caveat from the Oregon Department of Justice offers a much less rosy view:

“InfoCision Management Corporation estimates that the nonprofit organization will receive 22.0394736842105% of all donations collected. Please note that if InfoCision Management Corporation over-estimated donations or under-estimated expenses of the solicitation campaign, the nonprofit organization may receive nothing and InfoCision Management Corporation may retain all donations collected to cover the cost of conducting the campaign.”

Parallel to the ongoing InfoCision effort, on November 14, 2008, ASDF retained another professional fundraising enterprise, Associated Community Services — a firm with a track record of returning as little as 11% of contributions raised to its nonprofit clients. (In August 2008, the firm was fined $100,000 by the Missouri Attorney General’s Office following consumer complaints about its employees’ belligerent, rude, obscene, intimidating and too-frequent fundraising calls.)

The calls continue into 2009, with telemarketers located in call centers and home offices throughout the Midwest making thousands of automatically-dialed contacts with members of the target audience, introducing themselves as representatives of “The Autism Foundation,” soliciting donors to send their checks to a post office box in the nation’s capital, all for the alleged purpose of benefiting autistic children and their families.

A Foundation Of Little-Known Quantities

Although the Autism Spectrum Disorder Foundation’s current principals all live in Schererville, Indiana, neither ASDF nor Mr. Slutsky are known to Lake County, Indiana members of the Autism Society of America or to representatives of the Indiana Resource Center for Autism.

When I called Michael Slutsky to ask him for more information about ASDF, he described its program of public and professional education, camp scholarships, and financial support to families. When I asked about the scholarship program, he was unable to recall the names of any participating camps. When I asked about financial support, he stated that ASDF had underwritten swimming lessons for a child in Massachusetts, making the grant directly to the family rather than through an agency. He acknowledged that he has no personal connection to or professional expertise in the field of autism, yet claimed that ASDF works with “community health departments across the country.” When pressed for specifics, he identified the Multnomah County (Oregon) Health Department as one such agency.

During our conversation, Mr. Slutsky stated that he was the source of most of the contributions to ASDF. However, a Fundraising Disclosure Form filed with the North Carolina Secretary of State indicates that the entire $14,602 in “direct public support” described in the 2007 audit came from ASDF’s initial direct mail campaign, conducted by Precision Performance Marketing. (3) Additionally, the net loss recorded in the 2007 audit is roughly equivalent to the liability payable to Mr. Slutsky, suggesting that his “contributions” are recorded in the Foundation’s books as loans which he expects to be repaid.

The Multnomah County Health Department staff member whose name was given to me by Mr. Slutsky indicated that he had recently called her with an offer to provide a computer to a local family in need; she noted that although the donation had not yet been completed, he had already expressed his hope that she would provide a testimonial thanking ASDF for its gift. When I asked whether she was acquainted with ASDF board member and CFO Janet Coyer, she replied that Ms. Coyer was Mr. Slutsky’s office manager.

When I called James Michael Roan to inquire about ASDF, he described himself as a “technical advisor” and Mr. Slutsky as a childhood friend and businessman with no autistic family members or professional credentials. He explained that he and Mr. Slutsky developed the idea of establishing a nonprofit organization several years ago during a conversation about Mr. Roan’s work evaluating children with suspected developmental and learning disabilities. He indicated that he had helped to develop the informational material on the website about a year and a half ago, but has had little contact with his old friend since that time. When I asked for his opinion about ASDF’s telemarketing solicitations of donations from residents of states where no programs were offered, he stated that he knew nothing about the business part of the Foundation’s operations. Although in his responses to parent questions on AllExperts.com Mr. Roan formerly described himself as “Past President and current board member of the Autism Spectrum Disorder Foundation,” the reference was removed from his biography in January 2009.

I also asked Dr. Mary Alice Reid, the Elkhart, Indiana pediatrician featured in ASDF’s public service announcement, about the nature of her relationship with the organization. Dr. Reid stated that she appeared in the PSA after being invited to do so by the media director of a local high school given a grant by ASDF to produce it; she felt that it had excellent potential to educate families in the early signs of autism, and to educate students in video production techniques. She also stated that she has no other connection to the organization, has no knowledge of its financial data or business dealings, and has never met anyone directly involved with it.

The director of the Autism Society of Oregon, Genevieve Athens, confirmed that Mr. Slutsky contacted her directly some time ago offering to make small grants to local families for respite care, social communication seminars and camp attendance, and that those grants were very much appreciated by their recipients. However, after ASDF’s telemarketing campaign was brought to her attention by ASA chapter directors who had received telephone solicitations at their homes, she informed Mr. Slutsky that she could no longer accept his offers of assistance, and has more recently sought to have her testimonial removed from the ASDF website.

Let The Donor Beware

In the December 2008 report, Pennies for Charity: Telemarketing by Professional Fundraisers, New York State Attorney General Andrew Cuomo aggregated the results of 553 telemarketing campaigns conducted on behalf of 442 charities, which raised a total of $178.7 million during the year 2007. Key findings include:

“In nearly 80 percent, or 436 of the 553 campaigns, the charities kept less than 50 percent of the funds raised.”

“In nearly half, or 271 of the 553 campaigns, the charities received less than 30 percent of the funds raised.”

“In 51 of the 553 campaigns reflected in the report, charities actually lost money.”

“In only 45 of the 553 campaigns did the charity retain at least 65 percent of the money raised, the amount deemed acceptable under the Better Business Bureau’s standards for charitable organizations.”

“In total, 60.54 percent, or $108.2 million, of the funds raised by telemarketers in 2007 was paid to the fundraisers for fees and/or used to cover the costs of conducting the campaigns. By comparison, charities retained 39.46 percent, or $70.5 million, of the total funds raised in the campaigns.”

According to the Cuomo report, the rate of return to nonprofits for fundraising campaigns conducted by InfoCision Management Corporation ranged from 0% to 78.5%. Although well-established organizations such as St. Jude Children’s Research Hospital, American Heart Association and the U.S. Fund for UNICEF netted from 57% to 78% of their donors’ dollars, size and name recognition did not guarantee high performance; for instance, an Easter Seals campaign netted only $28,355 out of $373,876 raised — a paltry 7.58%. The one campaign conducted by Associated Community Services that is included in the Cuomo report returned 17.5% to its nonprofit client — $190,164 out of a total of $1,086,651 in donations collected.

Other public reports indicate that ASDF’s other telemarketing partner, Jadent, Inc., averages a return of only 26% of contributions to its nonprofit clients — a pittance, albeit a significant improvement over the 12% figure reported by the Oregon Department of Justice in 2003.

The Autism Spectrum Disorder Foundation’s fundraising projections, were they to be realized, would place the organization among the wealthier small nonprofits dedicated to autism research, education and service provision. ASDF’s grandly-stated plans to work with public health departments and organizations across the country might seem credible were they formulated and executed by individuals with a personal or professional stake in furthering the welfare of autistic people and their families, and expertise in how this might be brought about. However, this is far from the case with respect to this fledgling enterprise — an enterprise established by a professional fundraising supplies salesman, its board populated with old friends, business associates and housemates, none of whom have any connection to autism save for a school psychologist who helped to develop content for its website, but who has been only nominally involved since.

References to ASDF as “The Autism Foundation” and to “partner[ing] with state Autism chapters in helping to locate and assist families in need,” and instructions to potential “volunteers” to address solicitation letters to a Washington, D.C. address, create the very real potential of misleading donors into believing that they are contributing to the most well-known national, membership-based autism organization — the Autism Society of America, which provides services to and advocacy on behalf of individuals and families affected by autism, which supports autism research and professional education, and which has 190 local and regional chapters throughout the United States.

Autistic citizens, their families, and the organizations that serve them need all of the financial support they can muster. Most operate on a shoestring budget and concentrate their expenditures on programs intended to provide immediate benefit to their constituents. Donors to community- and membership-based autism organizations can generally feel confident that their contributions will be used for their intended purpose, and will not be deployed as InfoCision founder Gary Taylor recently pledged to deploy $10,000,000 of his profits — to purchase naming rights to a football stadium.

Autistic citizens and their families do not need self-appointed philanthropic middlemen who concoct an obfuscatory tangle of toll-free telephone numbers, post office boxes and forwarding orders, and misrepresent their identity and scope of activity in their public appeals, to create an illusion of prestige and far-reaching effect. They do not need carpetbagging fundraisers-for-hire who blanket the nation with intrusive telephone solicitations and siphon resources away from legitimate support and advocacy organizations. They do not need ambitious empire-builders who exploit the golden opportunity in increased autism awareness, gather a fortune from well-intentioned donors, expend most of that fortune on their own salaries and fundraising expenses, dole out the meager leftovers to the real intended beneficiaries of their donors’ generosity, and seek credibility-boosting testimonials from their grantees before the ink on the check has even had a chance to dry.

A Creative Alternative

If the Autism Spectrum Disorder Foundation’s tele-minions come to call, turn the tables and suggest that they themselves donate to reputable organizations that actually provide services to children and adults on the autistic spectrum, and to the families and professionals who love and educate them. Here are a few:

Asperger’s Association of New England (AANE)
ARC of King County
Autism National Committee
Autism Network International
Autism Society of America Foundation
Autism Society of Indiana
Autism Society of New Hampshire
Autism Society of North Carolina
Autism Society of Oregon
Autistic Self-Advocacy Network
Autistics.org
Provincial Autism Center (Halifax, NS)

Resources on nonprofits, professional fundraisers and fundraising campaigns

State Filings for Nonprofits (USA.gov)
Features state-by-state links to information on incorporating nonprofit organizations, and to state forms and information on charitable solicitation activities.

Better Business Bureau: Check Out A Business or Charity
Organization entries provide information on programming, governance, fundraising, tax status and finances, and evaluate compliance with BBB’s “20 Standards for Charity Accountability.”

GuideStar
Information on nonprofit organizations from federal filings. Includes 990 forms for organizations with more than $25,000 in annual contributions.

Charity Navigator
Features “Top Ten” lists such as “10 Charities Overpaying their For-Profit Fundraisers,” “10 Charities Drowning in Administrative Costs” and “10 Charities Stockpiling Your Money.”

Office of the Attorney General of Massachusetts: Non-Profits & Charities Document Search
Includes document filings from 2005 forward in .tiff format.

North Carolina Secretary of State Charitable Solicitation Licensing Section
A gold mine of information on the business of fundraising. Publishes .pdf’s of all documents submitted by charities seeking to solicit donations in the state, including incorporation papers, audits, and contracts with professional fundraising firms. Start here, then go to New York for the tax exemption application, and you will have everything you need to document an organization’s federal and state filing history.

New York State Office of the Attorney General Charities Bureau Registry Search
In addition to requiring organizations to submit their certificate of incorporation, bylaws and IRS determination letter, New York also requires an organization’s application for tax-exemption. All of these documents are made available in .pdf format.

West Virginia Secretary of State
Unique among the states, West Virginia publishes nonprofits’ disclosures of the percentage of contributions from the state and the percentage of program funds disbursed within it.

Washington Secretary of State Division of Charitable Solicitations and Trusts; Registered Charity and Commercial Fundraiser Search
Features a cleanly-designed, easily navigable database interface.

Washington State Commercial Fundraiser Activity Report Listed by Overall Percentage of Funds Retained by Charity Clients
Office of the Secretary of State Charitable Solicitations Program, December 2007.

Iowa charities and fund-raisers
A user-friendly directory maintained by the Des Moines Register, with information current to November 2008. The database contains information for all nonprofit organizations and professional fundraisers registered to raise funds in that state, whether based in Iowa or elsewhere.

Pennies for Charity: Telemarketing by Professional Fundraisers
New York State Office of the Attorney General

Professional solicitors take a cut of your donation to charity: Data on over 4,000 Virginia fundraising campaigns
Provides data from 2000 forward. Search interface features simultaneously useful and cumbersome drop-down lists of all registered charities and solicitors.


Footnotes

1. See document labeled “09/09/2008 Filing Amendment” at NC Secretary of State.
2. See document labeled “06/27/2008 Attachment” at NC Secretary of State.
3. See document labeled “06/27/2008 Attachment” at NC Secretary of State.

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