Who Needs a Lawyer?
You know the common statements, “I hate them damn attorneys. They get everything all screwed up.” “Don’t want them messing in my life.” Or “the lawyer that represents the insurance company is stalling.” Pretty common, until the day you need one.
It's the 30th anniversary of the the National Childhood Vaccine Injury Act (NCVIA) being signed into law by President Ronald Reagan (Nov 14, 1986). It is more than high-time to start the conversation about several areas of injustice of this Act.
Since the Act was drafted by several lawyers in Congress, let’s start there, with the attorneys.
And here is why.
The signing of the NCVIA in 1986 established the National Vaccine Injury Compensation Program (NVICP) or commonly known as the Vaccine Court. The law also established VAERS, requires the CDC to develop and distribute vaccine information statements (VIS) for each vaccine administered, established a committee within the Institute of Medicine to review the literature on vaccine reactions, and created the Vaccine Injury Trust Fund to provide compensation for injuries or death from childhood vaccines.
Note that we mentioned childhood vaccines, not vaccines administered to adults.
“The first thing we do, let’s kill all the lawyers”
Shakespeare wrote in Henry VI, “the first thing we do, let’s kill all the lawyers.” Even the band The Eagles picked up on that line in their own song, Get Over It. There have been thousands of good, quality jokes about lawyers.
Yet no one laughs when faced with the seriousness of a vaccine injury and the comforting voice of an experienced attorney from the vaccine bar.
Most of us do not know that several attorneys associated with the vaccine bar have gone to great personal financial hardship and sacrificing their own family life.
If you ever get a chance to attend a seminar presentation by one of the attorneys that practice in the NVICP or just have a casual conversation, listen and appreciate their words and message.
Our government is closing the door on those who have been injured seeking compensation from the Vaccine Court, and one subtle way is making it more difficult to be represented by legal counsel.
Special Master and Department of Justice
The NVICP has long been a source of consternation and indigestion regarding how attorneys who represent petitioners in the Vaccine Court, get paid for their time and expense. Then the nightmare of reimbursing medical experts for their time and expense on providing written and oral testimony on behalf of petitioners.
The Pharma cabal and our government including the Department of Justice attorneys argue the position that attorneys who represent petitioners will get paid for their time and effort even if their client loses. But that is not the case. Matter of fact, when we pull back the curtain and reveal the process of how the attorneys are paid, it is very appalling. And there is an argument to be forwarded that the amount of money paid to the attorneys is considerably less than what that person would receive in private practice of personal injury or defective product litigation environment.
Probably 20% to 50% less.
One Way Only
Do you know that the process of seeking payment of attorney fees and reimbursement for costs is totally unique compared with other federal and state court systems? In the NVICP, the petitioner’s attorney will forward worksheets, time sheets and expenses to the Special Master and the Department of Justice attorneys for review and approval. But this is a one-way street.
The petitioner’s attorney is not granted the same. They have no say in the expenditures of attorney fees and associated costs incurred by the Respondent. Lawyers representing your federal government. The public becomes aware of petitioner’s fees and costs when a decision is handed down awarding or denying fees. There are many, many cases of where the special master will reduce the reimbursement. Yet the public is kept in the dark on the costs of attorney fees, costs, and medical expert fees that our government uses to depend the Secretary.
Lack of Transparency
Several of my FOIA requests dating back to 2013 to DOJ have gone unanswered. One requesting all costs for 10 specific decisions. One requesting all costs for a specific fiscal year. Another asking for all fees and expenses paid to specific medical experts retained by our government. And another asking for all fees and costs associated with the OAP.
Love to find out how much money was paid to the British law firm, the British government, or other entity for the last minute Bustin Report in Cedillo v HHS.
In response to one of my FOIA requests, I received a letter from the Civil Division of the DOJ dated May 1, 2013. In response to my request for detailed reports of expenditures, the following sentence was part of their denial of my FOIA. “The vast majority of records maintained by the Civil Division are likely to be exempt from disclosure under statutory exemptions including 5 U.S.C. 552 (b)(5) as attorney work product, deliberative process and attorney client privilege communications.”
The budget to fund operations of the Civil Torts Division of the Department of Justice that prosecutes all petitions within the NVICP comes from the Vaccine Injury Trust Fund. All costs associated with adjudication of all petitions should be transparent and not hidden from the public eye.
I wonder if Shakespeare was correct when he wrote the play, Henry VI and voiced his opinion about lawyers, the ones that represent the government cauldron.
In the Beginning
When the NVICP commenced on Oct 1, 1988, attorney fees and petitioner’s pain & suffering were capped at $30,000.00 combined. So an injured child had to share their pain & suffering awards with attorney fees. Soon this became a big problem knowing that attorneys could rack up hundreds of hours and expenses to litigate their case on the behalf of the petitioner, for several years. This placed a lot of pressure on the relationship of the petitioner and their attorney.
The statute was later changed to accommodate the growing number for protracted litigation petitions.
The United States Supreme Court
A U.S. Supreme Court decision that dealt directly with attorney fees was Cloer v Sec’y of HHS. This decision, May 2013, held in limbo hundreds of attorney fee petitions for representation of many petitioners, mostly of the Omnibus Autism Proceeding where the petition was deemed to be denied because of statute of limitation issues. Cloer prevailed in unanimous ruling. It was extremely important for Cloer to prevail in this case. The government argued that attorneys should not be compensated for their work when they represented a petition that was ruled to exceed the statute of limitations after they filed in the NVICP.
Thus, if the government would have prevailed, an undue burden and an ever higher hurdle to overcome for petitioners to file for compensation of a vaccine injury or death, when the date of the onset of injury is not known at the time of filing or is subject to determination by a future evidentiary hearing.
It was another way to close the door on petitioners seeking compensation for their injuries. Most attorneys would not agree to represent the injury party and the following is the reason why.
In short, it would be nearly impossible for many petitioners to file for compensation on their own or “Pro Se.” In my book, The Vaccine Court, I wrote about the dangers of filing Pro Se petitions. Analyzing over 6,000 petitions, less than 1% of all pro se petitions were successful.
IN GOOD FAITH and with a REASONABLE BASIS
Attorneys can seek reimbursements for their fees and expenses even when their client, the petitioner, does not prevail. Section 300aa-15(e)(1) of the Act allows for attorney fees and expenses if the claim by the petitioner was brought “in good faith” and with “a reasonable basis.”
That seems to be a genuine and reasonable approach to accept fee applications. However, it is a two-sided coin and has been used by the government as leverage against an attorney that would advocate on behalf of their client too aggressively.
If the petitioner prevails, they are entitled to an award of attorney fees and costs. The Court of Federal Claims (jurisdiction over NVICP) has observed in Grice v HHS, petitioners are entitled to a presumption of good faith.
But what about if the petitioner is not successful and the petition is dismissed?
A recent decision on attorney fees by Special Master Mindy Roth clearly illustrates the mental gymnastics and hurdles the petitioner’s attorney must overcome to successfully claim reimbursement for fees and costs when their client’s petition is dismissed.
Reasonable basis is typically viewed as “an objective standard determined by the ‘totality of the circumstances.’” Chuisano v. United States, 116 Fed. Cl. 276, 286 (May 30, 2014) (citations omitted). This somewhat amorphous standard has often been defined not by what it includes, but rather by what is lacking in cases in which a reasonable basis has been found not to exist. Typically, reasonable basis is not found when “fundamental inquires [sic] are not made.” Di Roma v. Sec’y of HHS, No. 90-3277, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).
Additionally, a case may have a reasonable basis when filed, but may lose reasonable basis during the pendency of the case. Perreira v. Sec’y of HHS, 33 F.3d 1375, 1376-77 (Fed. Cir. Aug. 31, 1994); McNett v. Sec’y of HHS, No. 99-684V, 2011 WL 760314, at *6 (Fed. Cl. Spec. Mstr. Feb. 4, 2011). Furthermore, the burden lies with petitioner to “affirmatively demonstrate a reasonable basis.” McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 305 (Nov. 4, 2011).
Some of the factors considered when assessing reasonable basis include: “‘the factual basis, the medical support, jurisdiction issues,’ and the circumstances under which a petition is filed.” Chuisano, 116 Fed. Cl. at 288 (citing Di Roma, 1993 WL 496981, at *1). Neither the fact that no medical records or supportive expert opinion was filed nor the fact that the claim was filed beyond the statute of limitations automatically negates a finding of reasonable basis. Chuisano, 116 Fed. Cl. at 288 (citations omitted). Furthermore, “[a] looming statute of limitations does not forever absolve a petitioner from his or her obligation to proceed with a reasonable basis to support his claim, at least not if the petitioner hopes to recover any fees and costs.” Id. at 287 (citations omitted).
In the present case, the undersigned finds that the petitioner had a reasonable basis for filing his claim. Here, the petition was filed on September 8, 2014, close to three years after petitioner received the allegedly causal vaccination and started to experience symptoms. Furthermore, petitioner’s counsel’s billing records show that petitioner sought representation from counsel around February of 2012, about one and a half years before the petition was filed. Motion (Tab A) at 1. Petitioner’s counsel and his staff spent significant time attempting to have petitioner return his “client info packet” and once this was received, petitioner’s counsel began to locate and obtain petitioner’s medical records. Id. at 1-4. Before the petition was filed, petitioner’s counsel contacted petitioner to have him draft a narrative, gathered petitioner’s numerous medical records, analyzed the medical records, which based upon the petitioner’s complaint following receipt of his vaccination, suggested that a compensable case was being filed. Id. at 1-17. Counsel prepared all of the documents for filing. Id. Therefore, I find that petitioner’s counsel fulfilled his duty to investigate the claim and did so through extensive discussions with petitioner and his family, along with a review of the medical records received.
Did you get all that? You have to read that part of the decision a few times to start to understand the legal morass and understand why the swamp known as the NVICP should be sterilized or drained.
Slowdown Dead Ahead
There is a developing concern in the NVICP regarding cash flow and how it affects the payouts due to the attorneys and the medical experts who testify on behalf of the petitioners. Remember, the Vaccine Trust Fund (VIT) balance sits at $3.6 billion and growing.
For the last 5 or 6 years, it appears that HHS slows down the payments in the last few months of each fiscal year. There is no hard evidence such as a secret memo or smoking gun to support this argument. Yet it does happen. The fee applications take longer to process.
Attorneys have long complained that starting around late spring and early summer, their applications for fees and costs get “slow played” by the NVICP process.
The assets are available in the VIT, yet the conduit for payment is tightened. Maybe cash flow is the issue. The Fund is not liquid, it holds IOU’s from our government in the form of Treasury Bonds, Notes, and T-Bills. All the cash received from the pharmaceutical industry on a monthly basis from the $0.75 levy minus administration costs is not deposited directly into the fund and remain as cash. The cash goes to the Federal Government General Fund. The VIT receives IOU’s.
Over the last 10 years, the average fee paid to attorneys has decreased by over 50%. The average attorney fee for FY 2007 was $49,200.00. The amount paid each year since has been declining. The average fee for the current FY 2016 is sitting around $23,800.00.
Some would say that the amount of money received by the attorney on average is high. That depends on how you look at that figure. If the length of time to adjudicate a petition takes 3 years, then $24,000 is not a lot of money for many hours including paralegals, office staff, and medical expert costs.
The percentage outlay of the Vaccine Injury Trust Fund that is paid to attorney fees and costs is approximately 9.0% with the remain 91% being paid as compensation to petitioners. In private practice, contingency awards might consume 25% to 40% of the settlement or damage award. But in the NVICP it appears the cost of legal representation is 9%.
Is there an agenda by our government to reduce the use of attorneys who provide legal consul for those who have been injured or have died as the result of a vaccination? One could argue that point by looking at the reimbursement rates for attorney fees, the delay in processing payment, and federal government’s arguments in Cloer.
If you are injured by one of the designated countermeasure vaccinations such as anthrax, a possible ebola vaccine, maybe a newly developed Zika vaccine, the injured party files a claim in the CounterMeasures Injury Compensation Program instead of the NVICP. And you are not allowed the use of an attorney. Facing a statute of limitations that is more restrictive, just 1 year, than the NVICP. You against the Federal Government. Good luck with that.
The Act, in the beginning, did not allow interim fees for attorney fees or medical expert costs. They had to wait until the petition was adjudicated. This created some tense and undue burdens upon the petitioner. If a leading medical expert was going to testify on the behalf of a petitioner, it could be argued that the expert might not want to “stick” their necks out or place their reputation or careers on the line, if they knew that their fee was not going to be paid until several years later. It also created a burden with small firms or single practice attorneys who could not cover the medical expert costs until the firm was reimbursed. Some petitioners in order to keep their petition moving forward, had to cover the costs of the medical experts.
It was another way to close the door on petitioners seeking compensation for their injuries.
Then comes Avera v HHS and Shaw v HHS decisions upheld by the Court of Appeals, Federal Circuit back in 2008 and 2010 respectively, permitting an award of attorney fees and costs on an interim basis.
These decisions allow petitioners to seek reimbursement of costs and fees while their petition is still pending before a Special Master. This was a big win for the petitioners. However, almost every motion placed in front of a Special Master for interim fees has been objected by the respondent. And in most cases, the Special Master will overrule that objection.
The Special Master has discretion to make an award for interim fees and costs. In Shaw and Avera, the Federal Circuit has considered as appropriate interim fees such factors as protracted proceedings, costly experts, and undue hardship.
The undue hardship includes hardship for the attorney as well as petitioners. The withdrawal of an attorney will be looked upon favorable for an interim award.
Although a case pending less than two years is usually not “protracted,” Special Masters can infer that the adjudication or litigation specific to this case will become protracted. A Special Master can award interim fees and costs for these specific instances.
Basically, a petitioner can meet the eligibility requirements for an interim award of attorney fees and costs, yet the Special Master has discretion to make such an award. Even after good faith and reasonable basis has been established, the Special Master still must determine whether to exercise his or her discretion to award attorney fees and costs.
So for the petitioner and their attorney and medical expert to process interim fees before their case has been decided, not only do they have to overcome the burdens of qualifying, they still have to receive the blessing of the Special Master for fees and costs that have been qualified as interim fees by the Program.
Exit, Stage Left
There is an ongoing argument that the NVICP and a few similar specialty courts could violate the 7thAmendment. Trial by jury. Lots of debate on both sides of this argument. And if we continue down the current road that we are traveling regarding vaccine injury, we might lose our rights to be represented by legal counsel in a court of law.
As for the attorneys that represent us and our children, we need their expertise and their guidance in dealing with such a corrupt and adversarial legal process.