Repetition & Unreason · 2008-09-15 15:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments


  1. And what a nice and sensible precedent to set, just thinking of Elizabeth Mumper’s testimony before the Special Masters.

    — alyric    2008-09-15 16:11    #

  2. It seems to me that the Special Masters are bending over backwards to live up to the spirit of the vaccine act’s attorneys fee and cost award provision, but you really do have to draw the “reasonable basis” line somewhere.

    Although lawyers frequently represent claimants on a contingent fee basis, experts generally don’t provide their services that way. I wonder whether the vaccine case experts make the petitioners pay them if their bills are rejected or drastically cut down by the Special Masters. Would the lawyers be willing to pay the experts out of their fee awards?

    Can you imagine what would happen if the Special Masters determined that there was no reasonable basis for the petitioners to proceed with the hearings in the autism omnibus cases? After all, the PSC spent years requesting delays because of lack of support for their causation theories. The expert fees must be staggering. They are hanging over somebody’s head right now.

    — Anne    2008-09-15 22:45    #

  3. No, the petitioners shouldn't get stuck with any unpaid bills for experts, attorneys, or their three-martini cabals. Here’s some boilerplate that often appears as a footnote in VICP fee and cost decisions:

    This amount is intended to cover all legal expenses. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, 42 U.S.C.A.§300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) which would be in addition to the amount awarded herein. See generally, Beck v. Sec’y of Health and Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).

    — Kathleen Seidel    2008-09-16 05:41    #

  4. It strikes me that the accounting time to find the double billings and all from Mr. Shoemaker must cost the system more than the ~$700 deducted from his pay. The fact that they are willing to start looking in that detail should be sending a message.

    — Matt    2008-09-16 09:56    #

  5. When doctors get similarly creative with Medicare, they face criminal penalties.

    Is there no criminal penalty for defrauding the DOJ?

    — Tom    2008-09-16 10:42    #

  6. If there isn’t, Tom, there should be. In fact, I think that would make a really nice amendment to the Vaccine Injury Compensation Act.

    Just when I thought we had seen the heights (depths?) of shamelessness in Shoemaker, along comes Gershwin! This coupled with his questionable judgment in publishing the Geiers in the journal he edits (Autoimmunity Reviews, IIRC) seems like cause for his colleagues to question his fitness for scholarship.

    — isles    2008-09-16 20:43    #

  7. Thanks, Kathleen. I do see that, in Barber, Mr. Terzian advanced the expert witness fee and claimed it as an attorneys’ cost. So, yes, either Mr. Terzian or Dr. Gershwin will absorb the shortfall.

    In civil cases other than vaccine claims, some attorneys advance the cost of expert witnesses and some don’t. I’m sure it’s commonly done in vaccine claims, or that the expert bills are submitted as yet-unpaid expenses, but … I notice that in some of Mr. Shoemaker’s cases, the petitioners appear to be paying the experts. In Carrington, the petitioners paid the expert’s retainer, at least. And in the McNear case, the petitioner had $26,000.00 in litigation expenses that he paid himself, so I’m guessing he paid the expert.

    I never thought to look at the “petitioner’s personal expenses” item in the attorneys’ fees decisions before.

    — Anne    2008-09-17 19:00    #