Billing the Adversary · Jul 9, 01:30 PM

Numerous decisions issued over the twenty year history of the Vaccine Injury Compensation Program document the extent to which the limits on attorney compensation have been tested by practitioners seeking remuneration from its taxpayer-financed coffers. The following review summarizes decisions involving the recently-sanctioned VICP specialist Clifford Shoemaker, Esq. — a central instigator of the campaign to convince the public of the speculative, scientifically unsupported hypothesis that a significant number of cases of autism result from vaccine injury, co-founder of the Institute for Chronic Illnesses, and a founding member its Institutional Review Board, which sponsors and provides ethical oversight of medical research and experimentation on autistic children and adolescents conducted by his long-time colleague Dr. Mark Geier.

Double the Money and Then Some

One of the earliest published VICP opinions documents Mr. Shoemaker’s efforts to reap by force of argument a windfall similar to one granted to him for meritorious service almost a decade before.

Under the Vaccine Act, fee and cost awards to claimants who received vaccinations prior to the establishment of the program were subject to a $30,000.00 maximum. Nonetheless, at the close of Davis v. HHS — a 1989 case that was not challenged by HHS, and resulted in an award of compensation to the petitioner — Mr. Shoemaker requested $35,775.00 in attorney’s fees for himself, $11,200.00 for another attorney who had worked on the case, and $14,482.95 in expenses, including costs for four expert witnesses and a medical consultant. In addition to requesting payment for representing his client in the VICP proceeding, Mr. Shoemaker’s bill included fees and costs related to a prior civil action in which he represented the same client under a contingency fee arrangement.

He then requested that his fee award be doubled, citing as precedent In Re Swine Flu Immunization Products Liability Litigation, a 1980 decision arising from a multi-district proceeding in which he had played a crucial supporting role. In that decision, the court had specifically praised the young attorney for his work as a liaison between plaintiffs and the court, doubled the fees paid to his employer, and awarded an additional $20,000.00 exclusively for his services.

Nine years later, in his fee petition for Davis, Mr. Shoemaker claimed that he had incurred “tremendous risk” in taking the case before the newly-established VICP, asserted his professional skill, and reminded the court of the outcome in favor of the petitioner and the long delay in receiving payment. If the court were to accede to his request, Mr. Shoemaker would be paid $71,550.00 and his colleague $22,400.00 in fees; adding litigation costs, the total outlay would come to $108,432.95.

Special Master Elizabeth Wright ruled that approval of such an amount “would unreasonably enrich petitioner’s counsel beyond what is contemplated by the statute.” She pointed out that there is little to no risk involved in Vaccine Act cases, since fees and costs are routinely awarded to successful and unsuccessful petitioners alike. The ultimate goal of such a scheme is not to “produce windfalls” but to “award fees adequate to attract competent counsel.” To construe the Vaccine Act as Mr. Shoemaker urged would “require the application of at least some force to fit within the statutory language.”

The special master determined that Mr. Shoemaker’s request for $150/hour was reasonable, but disallowed numerous hours claimed. These included 28 hours and travel costs for attendance at two meetings of the American Trial Lawyers Association DPT Litigation Group, and 33.8 hours’ worth of miscellaneous telephone consultations with his client. He also sought payment for 1.2 hours spent dealing with car trouble on the way to the entitlement hearing, and reimbursement for $732.31 in towing, repair and storage costs. The court declined the invitation to pay for Mr. Shoemaker’s garage bill, finding “that [he] happened to incur car trouble is of no significance in assessing the costs of litigation.” Since the reasonable hours and costs for the case exceeded the $30,000.00 maximum for fees and costs, $30,000.00 was awarded.

Inflate, Soak and Repeat

Analyzing Mr. Shoemaker’s fee petition in the 1990 claim Alger v. HHS — a claim that, like Davis, went unchallenged by HHS — Special Master Paul T. Baird noted 52 entries between April 1988 and August 1989 that described review of brief court orders, telephone calls and written requests for information. Although each of these tasks could be completed by a competent attorney in fifteen minutes or less, each was billed at a half-hour. The court significantly reduced the time allowed for these charges. A claim for 1.5 hours for reviewing a brief order was cut to 0.2 hours. Over 35 hours for clerical tasks charged at attorney’s rates were disallowed. Mr. Shoemaker claimed that he had spent 20 hours attending a two-day hearing; however, after noting that the first session lasted 6.5 hours and the second 4 hours, the special master authorized payment for 14 hours only.

The fee petition also claimed 12 hours for Mr. Shoemaker’s attendance at the April 1988 meeting of the DPT Litigation Group — the same non-case-specific cost denied in Davis — and 5 hours for a May 1989 hearing that lasted considerably less than 5 hours, and for which he had billed 4.5 hours to Davis. Warning that “if counsel is going to bill more than one client for a particular activity, the total time should be divided proportionately between the clients,” the special master allowed 2.5 hours for the hearing. In the end, over 70 hours were cut from the 225 originally billed. Instead of paying Mr. Shoemaker the $40,000.00 he requested, the court approved the statutory maximum of $30,000.00 for fees and costs combined.

In her 1992 decision in Cousins v. HHS, Special Master E. LaVon French awarded $30,000.00 award for fees and costs, including $18,681.25 to Mr. Shoemaker. Prior to authorizing this payment, she disallowed nearly 16 hours claimed for work that was unrelated to the case, clerical, or duplicative of other work performed by lesser-paid staff; reduced by over $2,000.00 the fees charged by a life care planner, much of which pertained to work not compensable by the Vaccine Program; and cut photocopy charges from $.25/page to $.08/page. She also called attention to a claim for $2,000.00 in fees and $500.00 in travel costs for a medical expert’s unnecessary attendance at a hearing; when he arrived at the courthouse, he had been informed that his testimony was not needed, and was dismissed before the hearing began — a fate that could have been avoided by better planning and brief telephonic testimony.

A Growing Appetite

In her April 1998 decision in Erickson v. HHS, Special Master Elizabeth Wright addressed the emergence of Mr. Shoemaker’s worrisome pattern of escalating fee requests.

A review of past cases in which I awarded Mr. Shoemaker attorney’s fees is enlightening. In Coe v. Secretary of HHS, Case 91-0177V (Fed. Cl. Ct. Spec. Mstr. Mar. 23, 1993), I awarded Mr. Shoemaker $225.00 per hour. In that case, Mr. Shoemaker requested 59.70 hours of attorney time in a case which proceeded to an evidentiary hearing encompassing both factual and expert testimony. In Sanko v. Secretary of HHS, 1994 U.S. Claims LEXIS 246, Case 91-0095V (Feb. 25, 1994) (unpublished), Mr. Shoemaker requested 79.40 hours for a case which also involved an evidentiary hearing involving both fact and expert witnesses. I again awarded Mr. Shoemaker an hourly rate of $225.00. In both of these cases, Mr. Shoemaker obviously was efficient in his use of time and was able to provide excellent services to his clients in a reasonable number of hours. More recently, in Reisner v. Secretary of HHS, 1998 U.S. Claims LEXIS 345, Case 91-0495V (Fed.Cl.Spec.Mstr., Jan. 30, 1998) (unpublished) Mr. Shoemaker requested 108.15 hours. In Reisner, there was a brief evidentiary hearing to take the testimony of one fact witness, after which respondent decided no longer to defend the entitlement portion of the case. I issued a decision finding petitioner entitled to compensation and the parties were ordered to file life care plans. However, shortly after petitioner’s counsel filed a minimally supported life care plan, petitioner passed away and I issued a decision awarding his estate compensation for his vaccine-related death. In my attorney’s fee decision, I found that counsel spent an excessive number of hours on simple tasks and failed to make efficient use of his time. For example, counsel claimed over 19 hours preparing for and attending a factual hearing in which one witness testified for approximately an hour and a half. I awarded Mr. Shoemaker an hourly rate of $185.00 for his work in Reisner.
It would seem as if the number of hours recently requested by Mr. Shoemaker, in cases that are not, in my view, as complex as those he has handled previously before me, has increased. Although no one case is exactly the same as another, one would expect an attorney who has worked with Vaccine cases for a number of years to have acquired a greater knowledge of Vaccine Act proceedings which in turn would, presumably, lead to a more efficient use of an attorney’s time…

This criticism notwithstanding, she approved a rate of $200/hour for Mr. Shoemaker’s legal services, and awarded nearly $38,000.00 in attorneys’ fees and costs.

Spinning the Wheels of Justice

Densmore v. Secretary of HHS was originally filed without medical records in 1999, two days before the expiration of a deadline for filing petitions alleging injury by the Hepatitis B vaccine. Although Special Master Richard Abell approved Mr. Shoemaker’s request for subpoenas for production of medical records, by March 2003 none had found their way into the file. Pursuant to a court order, records were finally submitted that May; it later emerged that Mr. Shoemaker had made no effort to compel compliance on the subpoenas he had requested. By March 2004, only 90 pages of medical records and 40 pages of insurance billing records were available for review. This paucity of evidence notwithstanding, a fact-finding hearing was held for the purpose of establishing the onset date of the alleged injury — a hearing in which no briefs were filed. The petition was dismissed in March 2005.

Four months later, Mr. Shoemaker submitted a bill for $39,382.38 for legal services and expenses. Although HHS had consented to a rate of $250/hour, the agency objected to the “exorbitant” 142.27 hours claimed for the services of four attorneys, and to the “non-substantive, ministerial” nature of much of the work they performed. Almost 80 hours of Mr. Shoemaker’s time in 2003 and 2004 were purportedly dedicated to “interoffice communication regarding the medical records, reviewing the status of the medical records and the status of the file, updating the calendar, discussing the case with staff, and preparing internal memos.” 10.3 hours were allegedly spent in consultation with two doctors, neither of whom filed expert reports. 34.45 hours were billed at attorney’s rates for administrative or office tasks. 16.7 hours of associate time was claimed for work duplicated by Mr. Shoemaker. $3,437.50 was requested for consulting services performed Dr. Mark Geier for reviewing “medical literature and whatnot.”

The special master held that the number of hours claimed was excessive and unreasonable, and that many billing entries were unacceptably vague. He observed that Mr. Shoemaker’s premium hourly rate reflected his level of Program experience, which should require him to spend far less time on a case than a novice attorney, and reduced the number of billable hours by 20%.

Although HHS objected to Mr. Shoemaker’s request to compensate Dr. Geier, the special master asserted the petitioner’s right to engage him as a consultant in spite of his lack of qualifications to offer expert medical testimony. However, his $250/hour rate — a rate ordinarily reserved for testifying experts — was reduced to $150/hour. The consultant’s fee finally approved by the court totaled $2,406.25, 30% less than requested. The final take for the petitioner’s attorney and experts was $28,530.75 — 25% less than the amount originally requested by Mr. Shoemaker.

A Long, Expensive Goodbye

In Melbourne v. Secretary of HHS, filed in August 1999, the petitioner alleged that a Hepatitis B vaccination caused him to suffer from migratory arthritis. Between May 2000 and March 2001, Mr. Shoemaker filed four status reports stating that he was collecting medical records and working with potential experts. In July 2002, the case was temporarily stayed pending the outcome of the Hepatitis B Omnibus proceeding.

One set of medical records was filed three years later, in July 2005. One year after that, the petitioner withdrew from the Omnibus proceeding, and requested that the court issue a judgment on the record. The claim was dismissed by Chief Special Master Gary Golkiewicz on July 7, 2006.

In February 2007, Mr. Shoemaker submitted a request for $10,324.21 in fees and costs. The record indicated that in August 2003, Mr. Shoemaker communicated with his client regarding dismissal of the claim; in an August 2005 letter, the petitioner “anticipated this was the end of his case.” Nonetheless, Mr. Shoemaker claimed to have spent 30 hours — approximately 75% of the total number billed — prosecuting the claim after his client indicated that he no longer wished to pursue it.

The special master determined that “the number of hours billed is unreasonable in light of the fact that there was little substantive work done on this case and very little was done to advance petitioner’s claim.” In response to Mr. Shoemaker’s assertion that he was ethically and legally obliged to inform his client of the potential consequences of withdrawing his petition, the special master reminded him of his corresponding obligation to avoid frivolous litigation, and advised him that “there comes a point when… unsuccessful efforts foretell pointless continuous efforts.” Once it became apparent that there was no evidence in the medical records and no medical opinion to support the claim, the only reasonable option was to dismiss the case.

Over 10 hours were billed for discussions with staff attorneys regarding dismissal; the special master deemed this an unreasonable amount of time given Mr. Shoemaker’s extensive VICP experience. In August 2005, the petitioner wrote his attorney to request that his petition be withdrawn; Mr. Shoemaker nonetheless continued to schedule and attend status conferences, set calendar deadlines and confer with medical professionals about the case, including holding a half-hour meeting with a doctor in December 2005 to discuss the possibility that he might be retained as an expert witness.

Other entries indicated an unreasonable amount of time spent in duplicative, unproductive and trivial activity. One-half hour was billed for updating a spreadsheet and transferring the information to a laptop computer. Nearly a half-hour was billed for training an associate in the procedure for filing a voluntary dismissal — a dismissal that was eventually filed in error and had to be resubmitted. Nearly an hour was billed for preparing and filing a routine one-page, one-line motion regarding document submission.

Special Master Golkiewicz expressed his grave concern about the accuracy of Mr. Shoemaker’s billing system, and the likelihood of error in entries for more substantive pleadings in this case and in others before the court. In closing, he observed:

“This case presents an egregious example of an attorney failing to exercise good billing judgment. Petitioner requested dismissal in August 2003. Yet counsel continued to bill a total of 28.95 hours after that date. While petitioner’s counsel relies on his ethical obligation to represent his client’s interest, even in the face of his client’s request to dismiss, there is no indication in these billing entries of substantive work being performed on behalf of the client. Instead, the entries contain an assortment of unproductive efforts and communication between members of the same firm discussing what the client requested — dismissal of his case. After hours of apparently useless effort, that is what counsel did — dismiss the case. Without some explanation of how the time spent benefited the client, it is unreasonable to bill the client, and thus the Program, for the numerous hours spent effectuating the client’s request to dismiss his claim.”

Only time spent prosecuting and properly ending the case the client would be allowed. $7,152.66 in attorney’s fees and costs was finally awarded, a 30% decrease from the $10,324.21 originally sought.

Opportunities for Multiplication

In Duncan v. HHS, the petitioner alleged injury from the Hepatitis B vaccine; the claim was paid by HHS, and on May 30, 2008, a $12,262.50 fee award was authorized by Special Master Christian Moran. While the total amount is relatively unremarkable, it represents a $1,467.00 reduction from Mr. Shoemaker’s original request. The decision specifically documents the tedious yet necessary process by which that figure was calculated.

The lion’s share of reductions were taken from professional services purportedly rendered between 1999 — when the claim was filed without medical records — and 2005, by which time only a handful of documents had been accumulated. The special master cut by more than half a claim for hours spent reviewing and discussing a file that at the time contained no more than 15 pages of exhibits. He disallowed compensation for a “meeting re medical literature and recent decisions” conducted before any medical records had been obtained, and noted that he had previously rejected a claim for compensation for the same meeting, which Mr. Shoemaker had submitted four months before at the conclusion of Hamrick v. HHS. $700.00 was trimmed from claims for routine document requests and review of the still-slim file.

For the 2006-2007 period, the special master disallowed nearly $500.00 in charges for work that was clerical, duplicative or inadequately justified. One small item in particular attracted his special notice:

2/15/06
CJS Review order of 2006/02/08 – Re reassignment to SM Moran
0.10/hour @ $300/hour = $30.00
The first item concerns the review of an order reassigning the case. This order, which was signed by the Chief Special Master, reassigned 27 cases to the undersigned. The order is exactly one sentence long.
Normally, charging one-tenth of an hour to read an order (even a short order) is appropriate. However, this order differs from other others because the same order was issued in 27 cases. In some of these other cases, Mr. Shoemaker has received compensation for the reading of the order. He included a charge for reading this order in Nicks, No. 99-663V; Perrodin, No. 99-573V; Emmendorfer, No. 99-553V; and Goss, No. 99-407V. These previous awards of compensation reasonably reimburse Mr. Shoemaker for this activity… If the law firm could be reimbursed for time spent on this one-sentence order, then the law firm ultimately would charge $810.00 (27 cases X 0.10 hours per case X $300 per hour). This amount is unreasonable for a single-sentence order. Thus, because Mr. Shoemaker has been compensated in other cases, no compensation is warranted in this case.

(On June 27, 2008, Mr. Shoemaker requested review of this decision, which is now under consideration by Senior Judge Eric Bruggink of the U.S. Court of Federal Claims.)

The Value of Institutional Memory

Given this history, it is likely that similar fiscal phenomena will be encountered by the VICP special masters when they evaluate fee petitions for claims currently pending in the Omnibus Autism Proceeding. Once this process is underway, the court will be guided by standards articulated by the Federal Circuit in its 1993 decision in Saxton v. HHS. Appealing the reversal of a fee and cost decision grounded in the special master’s comprehensive review of similar decisions and his experience with VICP petitioners’ attorneys, counsel for HHS asserted that:

…[D]etermining what is ‘reasonable’ requires the special master to use his prior experiences to compare attorneys across cases. Such prior experiences are particularly relevant in the context of the vaccine program because a small group of attorneys repeatedly appears before the small group of special masters.

Citing to a U.S. Supreme Court decision pertaining to awards of attorneys’ fees in civil litigation under fee-shifting statutes, the appeals court affirmed that the exercise of institutional memory is well within the limits of administrative discretion permitted under the Vaccine Act.

When a statute provides for recovery of reasonable attorneys’ fees, the trial forum must determine what fee is ‘reasonable.’
[A] reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate…. The [trial forum] also should exclude from this initial fee calculation hours that were not “reasonably expended.”…. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983).
Trial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests… Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications… Such fee determinations are within the discretion of a trial forum and are entitled to deference. It [is] well within the special master’s discretion to reduce the hours to a number that, in his experience and judgment, [is] reasonable for the work done.

The court will have many opportunities to consider the definition of “reasonable” as the OAP lawyers’ and experts’ bills roll in.

Cases cited

Davis v. HHS, Case 89-18V, 20 Cl. Ct. 168, 1989 U.S.Cl.Ct. LEXIS 310 (Oct. 3, 1989), aff’d 1990 U.S. Cl. Ct. LEXIS 172 (Apr. 16, 1990).
In Re Swine Flu Immunization Products Liability Litigation, MDL No. 330, Misc. No. 78-0040, 89 F.R.D. 695, 1980 U.S. Dist. LEXIS 16446 (U.S. District Court for the District of Columbia, Sep. 16, 1980).
Alger v. HHS, Case 89-31V, 1990 U.S.Cl.Ct. LEXIS 296 (Jul. 13, 1990).
Cousins v. HHS, Case 90-2052V, 1992 U.S.Cl.Ct. LEXIS 127 (Mar. 9, 1992).
Erickson v. HHS, Case 93-0102V, 1998 U.S.Cl.Ct. LEXIS 343 (Apr. 9, 1998).
Densmore v. Secretary of HHS, Case 99-588V (Fed.Cl.Spec.Mstr., August 14, 2006) (unpublished)
Melbourne v. Secretary of HHS, , Case 99-694V, 2007 U.S.Cl.Ct. LEXIS 221 (Fed.Cl.Spec.Mstr., June 22, 2007).
Duncan v. HHS, Case No. 99-455V (Fed.Cl.Sp.Mstr. May 30, 2008)
Hamrick v. HHS, Fed. Cl. 99-683V, 2007 WL 4793152 *8 (Spec. Mstr. Jan. 9, 2008)
Saxton v. HHS, 3 F.3d 1517 (Fed. Cir. 1993)
Hensley v. Eckerhart, 461 U.S. 424 (1983)

Comments


  1. I don’t know how to comment on this without using the words “greedy” and “swine” so I better not comment.

    — Ms. Clark    Jul 9, 07:47 PM    #

  2. I love the bit about billing the court for his car repairs.

    — Tom    Jul 10, 08:42 AM    #

  3. Add an Ethics in Billing class to go along with that Ethics in Discovery sanction.

    — Patrick    Jul 10, 11:49 AM    #

  4. I’m wondering now that I have though more about it… if you misspelled “bilking” in the title of your article?

    — Ms. Clark    Jul 10, 02:39 PM    #

  5. the car repair bit was classic.

    This is funny up to the point that one remembers that it is real life. Then it becomes aggravating.

    The bills for the Omnibus will be very interesting, I am sure.

    — matt    Jul 10, 05:16 PM    #

  6. Any chance that Shoey will subpoena you again and a special master will get to read all this? Thought not.

    — mike stanton    Jul 12, 08:04 AM    #

  7. Did you figure out his annual billing for this kind of work?

    — Skeptico    Jul 12, 10:59 AM    #

  8. Hey, people! Be nice. Mr. Shoemaker is a /very/ hard-working attorney. According to billing records, he puts in over 60 200-hour weeks a year for his clients.

    — D. C. Sessions    Jul 31, 09:29 AM    #