The Commerce in Causation · 2008-03-24 19:30

News outlets have been brimming with the story of Poling v. HHS — the first Vaccine Injury Compensation Program (VICP) claim included in the Omnibus Autism Proceeding (OAP) that has resulted in an award to petitioners. The case first attracted widespread attention on February 25, when Evidence of Harm author David Kirby issued a triumphant proclamation of the award on the Huffington Post. This was followed the next day by Mr. Kirby’s publication of the partially-redacted text of a theretofore confidential U.S. Department of Health and Human Services (HHS) report, which recommended compensation to Miss Hannah Poling due to the likelihood that a vaccine reaction aggravated a maternally-inherited metabolic disorder and led to development of a seizure disorder.

This storm of publicity surrounding Poling v. HHS has prominently featured career vaccine-injury attorney Mr. Clifford Shoemaker — a founding member of the Omnibus Autism Proceeding Petitioners’ Steering Committee, counsel to the Poling family, and long-time business associate of Dr. Mark Geier.

Mr. Shoemaker was one of the first attorneys to specialize in prosecuting claims filed in the Vaccine Injury Compensation Program (VICP). Since 1990, he has represented petitioners in 577 cases (282 closed and 295 pending). In many of these cases, Poling v. HHS included, Dr. Geier has served as an expert witness or litigation consultant.

Although he has made the Vaccine Program his primary professional milieu, Mr. Shoemaker is also lead counsel to Rev. Lisa Sykes and Seth Sykes in their product-liability lawsuit, Sykes v. Bayer (formerly Sykes v. Glaxo; currently pending in the U.S. District Court for the Eastern District of Virginia), which alleges that the Sykes’ autistic son was harmed by thimerosal-containing RhoD immune globulin injections. Additionally, Mr. Shoemaker served as plaintiffs’ counsel in King v. Leavitt, a lawsuit against the U.S. Department of Health and Human Services appealing the March 2007 dismissal of a petition demanding removal of mercury-based compounds from FDA-approved drug products. After King v. Leavitt was dismissed in March 2007, the “Coalition for Mercury-Free Drugs” (consisting of Dr. Paul King, Dr. Geier, Rev. Sykes, and colleagues) subsequently filed a new petition, now pending, reiterating at greater length their previously dismissed allegations and demands.

In September 2005, Mr. Shoemaker incorporated the Institute for Chronic Illnesses as a tax-exempt private nonoperating foundation to finance medical research conducted by Dr. Geier and his son, David Geier. Mr. Shoemaker also serves as an “affiliated non-scientist” on the Institute’s Institutional Review Board (IRB) — the panel that conducts ethical review of research involving human subjects. His fellow IRB members include Dr. and Mr. Geier; Dr. Geier’s wife, Mrs. Anne Geier; Rev. Sykes and fellow vaccine-injury petitioner Ms. Kelly Kerns; and Dr. Geier’s business partner and former malpractice codefendant, Dr. John L. Young. Since the Institute’s establishment, Dr. and Mr. Geier have published nine research reports citing Institute sponsorship; six of these discuss the medical investigations and experimental pharmaceutical treatment of autistic children which have been the subject of numerous articles published on this weblog over the past two years.

On the March 6, 2008 edition of Larry King Live, Mr. Shoemaker contended that young Hannah Poling’s mitichondrial disease was not genetically transmitted, but that thimerosal-containing vaccines had harmed her. He expressed his hope that the award might “bode well” for pending and future VICP petitioners. He voiced his dissatisfaction with the statute of limitations, which requires that claims filed within three years of a suspected vaccine injury. In interviews with Good Morning America, the Washington Post, Associated Press, Atlanta Journal-Constitution, Time, People Magazine, and Lawyers USA, Mr. Shoemaker and his clients have repeatedly asserted that far more children suffer from mitochondrial dysfunction than heretofore recognized, and that the facts of Hannah Poling’s case are virtually identical to those of many others.

Hidden behind such generous estimates and far-reaching conclusions are compelling economic incentives. In the VICP, petitioners’ attorney’s fees and costs are paid by the court, regardless of whether a claim is successful; a petitioner need only demonstrate that the petition was filed in good faith, and that there was a reasonable basis for the claim. Such an arrangement enables ordinary citizens to seek compensation for vaccine injuries without incurring extraordinary legal expenses. The elimination of litigative risk, however, provides a motivation for VICP specialists facing a paucity of substantiable claims to nurture exaggerated public perceptions of vaccine risks; to overstate the likelihood that facts in compensable cases are similar to those that are not; to promulgate dubiously-supported claims of the range of maladies that might be caused by vaccines; and to encourage individuals and families grappling with chronic, disabling medical and developmental problems to attribute causation of those problems to heretofore unrecognized, “long onset” vaccine reactions.

There is a comfortable income to be generated by attorneys who provide legal representation in even marginal vaccine-injury claims. The fees paid by the VICP to petitioners’ attorneys, regardless of the merit of their clients’ allegations, are enumerated in many unpublished decisions available on the U.S. Court of Federal Claims website. The following list represents all unpublished decisions on attorney’s fees and costs issued in the last eighteen months for cases in which Mr. Shoemaker served as petitioner’s counsel. In two-thirds of these, the Special Master determined that the petitioners’ claims of vaccine injury did not meet the relatively relaxed, “fifty percent and a feather” standard of proof required to establish eligibility for compensation.

Gurries v. HHS, Case 01-656V (Jun. 5, 2006)
Petition dismissed. Mr. Shoemaker was paid $43,628.88, reduced from his original request for $48,628.88. $5,000,00 of the final amount was designated for the services of Dr. Mark Geier.
Kinner v. HHS, Case 02-398V (Jun. 22, 2006)
Petition dismissed. Mr. Shoemaker was paid $19,615.92, reduced from his original request.
Vidaver v. HHS, Case 99-0499V (Aug. 9, 2006)
Petition dismissed. Mr. Shoemaker was paid $10,624.88.
Durham v. HHS, Case 99-0379V (Oct. 31, 2006)
Petition dismissed. Mr. Shoemaker was paid $32,756.84.
DeLong v. HHS, Case 02-0162V (Oct. 31, 2006)
Petition dismissed. Mr. Shoemaker was paid $21,711.53.
Sohn v. HHS, Case 99-0580V (Nov. 13, 2006)
Petition dismissed. Mr. Shoemaker was paid $23,454.24.
Kemper v. HHS, Case 02-1489V (Jan. 25, 2007)
Compensation awarded. Mr. Shoemaker was paid $40,662.46, reduced from his original request after HHS objected to “excessive,” “unreasonable” and “unnecessary” hours claimed by experts M. Reed Knight and Mark Geier.
McAlpine v. HHS, Case 02-0720V (Feb. 2, 2007)
Petition dismissed. Mr. Shoemaker was paid $25,587.90, reduced from his original request.
Boothby v. HHS, Case 00-0371V (Feb. 6, 2007)
Compensation awarded. Mr. Shoemaker was paid $53,796.49, reduced from his original request after HHS objected to the petitioner’s “excessive use of experts/consultants,” Mark Geier’s hourly rate, and “excessive personal travel costs.”
Wheatley v. HHS, Case 99-569V (Feb. 16, 2007)
Petition dismissed. Mr. Shoemaker was paid $6,357.99.
Grimes v. HHS, Case 02-1491V (Apr. 30, 2007)
Petition dismissed. Mr. David Terzian was paid $11,100.00; petitioner’s original counsel, Mr. Shoemaker, was paid $6,480.00.
McNear v. HHS, Case 98-0521V (Jun. 5, 2007)
Compensation awarded. Mr. Shoemaker was paid $69,634.21.
Shaffer v. HHS, Case 03-0349V (Jul. 19, 2007)
Compensation awarded. Mr. Shoemaker was paid $110,108.77.
Alper v. HHS, Case 99-521V (Aug. 20, 2007)
Compensation awarded. Mr. David Terzian was paid $12,000.00; petitioner’s original counsel, Mr. Shoemaker, was paid $10,358.50.
Noe v. HHS, Case 99-207V (Oct. 29, 2007)
Petition dismissed. Mr. Shoemaker was paid $15,286.03.
Butcher v. HHS, Case 99-409V (Oct. 30, 2007)
Petition dismissed. Mr. Shoemaker was paid $8,920.84.
Sand v. HHS, Case 99-579V (Nov. 1, 2007)
Petition dismissed. Ms. Ann Toale was paid $18,638.32; petitioner’s original counsel, Mr. Shoemaker, was paid $6,195.37.
Kooi v. HHS, Case 05-438V (Nov. 21, 2007)
Compensation awarded. Mr. Shoemaker was paid $10,439.22; the court determined that the activities of the petitioner’s husband — also an attorney — constituted self-help, and were noncompensable.
Kabat v. HHS, Case 99-0438V (Jan. 28, 2008)
Petition dismissed. Mr. David Terzian was paid $57,594.12; petitioner’s original counsel, Mr. Shoemaker, was paid $10,761.11.
Lasch v. HHS, Case 99-525V (Mar. 3, 2008)
Petition dismissed. Mr. Shoemaker, was paid $4,580.90.
Davis v. HHS, Case 99-510V (Mar. 3, 2008)
Petition dismissed. Mr. Shoemaker, was paid $18,328.81.
Niazi v. HHS, Case 01-0617V (Mar. 3, 2008)
Compensation awarded. Mr. Shoemaker, was paid $35,158.39.
Compensated (7) : $330,158.04
Dismissed (15) : $254,291.25
TOTAL (22) : $584,449.29

These nonprecedential decisions reveal only a portion of Mr. Shoemaker’s VICP income since June 2006; they pertain to fee requests to which HHS and the presiding Special Master raised few objections. In contrast, published decisions on fees and costs offer a more detailed view of controversies calling for a comprehensive judicial analysis, and of the billing practices of petitioners’ attorneys.

to be continued

Comments


  1. I’m sick over this already – and it sounds like the worst is yet to come. Will take some Pepto-Bismol before reading the continuation of this report.

    — isles    2008-03-25 12:14    #

  2. Damn, that guy makes a lot of money. It puts his statements in perspective.

    — Joseph    2008-03-25 18:26    #

  3. $18K here, $50K there, before too long it starts to add up!

    What a great gig for Shoemaker. I can see why he wants to milk it for all it’s worth. Where else could he make such easy money (Win the suit-get paid. Lose the suit-get paid).

    Joe

    — Club 166    2008-03-27 18:46    #

  4. So let’s see…..
    average of $26 566 per case.
    577 cases since 1990 = >$15 million income, just from vaccine litigation alone.

    No wonder he’s hit you with an intimidating subpoena – your expose of his deeds must rankle somewhat.

    — Deetee    2008-04-03 19:52    #

  5. Lawyer/framer Shoemaker has polished shoes and dresses in fancy suits as he frames, supoenaes, and milks the fabricated debate.

    Most importantly, Shoemaker has virtually unlimited ability to make fees because he has full legal license to milk due process, supoena anybody & everybody, and create lawyerly frames (the schemas of lawyering) leading to prompt payment of gigantic attorneys’ fees – as you have documented.

    “Tis the fee that justifies the lawyer’s pretense,” said Benjaminn Franklin more than 200 years ago.

    Shoemaker is sniggering as he demands that your physical body and your very life are secondary and completely beholden to his lucrative milking.

    The judge is a Bar member lawyer just like Shoes&suits.

    The judge’s job is to help Shoes&suit get the money – they are brother lawyers in the elitist monopoly.

    — gerald spezio    2008-04-04 13:20    #

  6. “average of $26 566 per case.
    577 cases”

    I’m in the wrong profession!!!

    That else I’m too bloody ethical!

    — David Andrews M. Ed. (Distinction)    2008-04-19 07:41    #

  7. You’re too bloody ethical, but you’re far better off for it.

    At least you’ve got your head screwed on straight. That alone is worth far much more than money…..

    — The Integral    2008-04-21 12:59    #

  8. Why all the hating?? he is providing a service and is being paid for his expertise. Personally, I think it’s great what he is doing. At least he is helping to shine the spotlight on this important issue.

    — bippers    2008-06-26 03:37    #

  9. “Personally, I think it’s great what he is doing. At least he is helping to shine the spotlight on this important issue.”

    Yep. Much like John Dillinger worked tirelessly to expose the flaws of bank security in the 1930’s.

    — bobby b    2008-07-03 01:57    #