Depriving Vaccine Injury Compensation Program Petitioners the Opportunity of Seeking Legal Counsel
By Wayne Rohde
How does the National Vaccine Injury Compensation Program (NVICP) and the Federal Court of Claims deprive petitioners, who are seeking compensation for their injuries, the opportunity to seek and retain legal counsel? Very cleverly. But it takes some understanding of how legal representation in the program has evolved and more importantly, how fees are paid.
Federal Court of Claims & 6th Amendment
The NVICP was established in 1986 and the legal proceedings are to be conducted within the Federal Court of Claims jurisdiction, located in Washington D.C. The Federal Court of Claims is the only federal court system that allows a person to sue the federal government.
Your right for legal counsel to represent you lies within the 6th Amendment. However, the right to legal representation is a matter for criminal proceedings not civil matters.
“In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” [i]
The Assistance of Counsel Clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.[ii]
Attorney fee compensation
Congress authorized the payment of fees and costs to compensate attorneys that represented petitioners. Under the Vaccine Act, a special master who has awarded a petitioner “compensation” on a vaccine related claim “shall also award as part of such compensation an amount to cover . . . reasonable attorneys’ fees.” [iii]
So who pays for the petitioner’s attorneys and medical experts? The Vaccine Injury Trust Fund.
In the beginning, the fees and costs were capped at $30,000.00. The caveat is that the petitioner’s pain & suffering was included with that total. Can you imagine the consternation of a petitioner who suffered greatly from an injury and the special master awards only $5,000.00 in P&S because the attorney submitted a bill for $ 25,000.00 in fees and costs for legal representation in the NVICP?
Both the petitioner and their attorney suffered here.
Congressional action
Congress quickly addressed this issue and split fees and expenses from pain and suffering. And a cap of $250,000.00 was added to the P&S. Somehow that does not provide comfort to the hundreds of petitioners who sought compensation from the NVICP in the early years.
After addressing the issue of P&S damages, Congress went silent on addressing three big remaining issues regarding attorney fees.
One, what to do about cases that drag on for several years, some as long as 15 years. Should attorneys who constantly work on behalf of their clients wait until the case has been decided before getting reimbursed for many of the costs incurred including expensive medical experts?
Second, what to do with petitions that were filed correctly, in good faith and have a reasonable basis only to be dismissed because of statute of limitations that was determined after petition filing. Hundreds of attorney fee applications from autism petitions were held in suspension because our government, the Sec’y of HHS and DOJ contended that they attorneys should not be compensated because the petition was dismissed due to statute of limitations.
Third, was it the intent of Congress not to address the issue of how to pay for attorney fees and medical expert costs when the petitioner is denied compensation?
Interim Fees
The answer to the first question of paying interim fees was determined not by Congress, but rather by the courts. In Avera v HHS,[iv] the Court granted special masters to use their discretion in awarding fees and costs on an interim basis. Most of the time, the length of time before interim fees will be considered in three years. However, if the petitioner or his attorney can show financial hardship, special masters will consider for shorter periods of time.
By allowing interim fees, this cleared up a secondary problem facing petitioners. Medical experts would not have to wait four years, eight years, or even 15 years before getting paid. Many experts were saying no to the petitioners before Avera.
Cloer v Kathleen Sebelius
In answering the second question, The US Supreme Court ruled in favor of the petitioner’s attorney and against the wishes of our government in Cloer v Kathleen Sebelius[v]. This was a very big win for the petitioners. If the US Supreme Court ruled in favor of the Sec’ of HHS, another high hurdle would have been placed in front of future petitioners since statute of limitations was merely a subjective finding at best with autism petitions, not clearly defined by statute.
Good Faith and a Reasonable Basis
The answer to the third question to compensate attorneys even when their clients were not compensated by the NVICP is a devilish debate and where the special masters try to hold a hammer over the attorneys.
I wonder how many times the following statement has been whispered or inferred within the discussion of attorney fees, “You must play ball or we will not compensate you for your work now and possibly in the future”? The statute allows for payment, yet the devil is in the details.
Within the NVICP, attorneys shall be compensated for fees and expenses when a client is successful with their petition for compensation from an injury or death.[vi] When a petitioner is not successful, the Special Masters can award attorney fees and expenses at their discretion.[vii]
And this is where it gets very tricky and recently, this is where we start to lose our ability to obtain legal counsel to represent our claims within the NVICP.
The Special Master uses his/her discretion to award fees using the Good Faith and Reasonable Basis standard.
Even if a petitioner is not awarded “compensation,” the special master “may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees . . . if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” [viii]
Simmons v HHS
In Simmons v HHS, the special master dismissed the petition claiming influenza vaccine caused GBS, citing failure to prosecute and insufficient proof. [ix] However, the SM awarded fees with petitioner attorney arguing that his conduct was in good faith and supported by a reasonable basis, given the proximity for expiration of the statute of limitations at the time he filed the petition. [x]
The attorney was trying to protect the case against the fast approaching deadline for filing a petition. This is what a good attorney does, acting in the best interests of their client. Protecting their rights against the statute of limitations filing period.
The government objected in awarding fees. They appealed to the Court of Federal Claims citing “counsel did not have a reasonable basis for filing the petition and that the petition was not filed in good faith.”[xi]
In her opinion, Senior Judge Nancy Firestone of the Court of Federal Claims, reverses the special master’s decision to award fees, finds that the special master erred in awarding fees because the record before the special mater demonstrated that the counsel did not have a reasonable basis for filing the petition. [xii]
At the time of filing the petition, the client provided counsel with a copy of his medical records including vaccination. Counsel determined after consulting with his client, that he had a “potentially viable vaccine-injury claim”.[xiii] However after filing, the petitioner failed to communicate with his attorney, refusing to return phone calls and emails. Yet, the attorney kept the petition moving forward.
We now arrive at a point in this case where the attorney who zealously represents his client, protecting their legal rights, racing to file a petition before the clock strikes midnight with the statute of limitations, is now being second guessed of what is reasonable or not?
Petitioner’s attorney files for an appeal to the Court of Appeals for the Federal Circuit, one step below the US Supreme Court. In a three-judge decision, the court affirms the Judge Firestone’s decision to vacate the special master’s decision to award fees and costs.[xiv]
And this is how the program and the courts are constricting our opportunity to seek and retain legal counsel within the NVICP. The attorneys are being second guessed when filing a petition near the filing deadline.
Aggressive Screening of New Clients
Since this appellate ruling, a few attorneys have now altered their practice and screening of clients by not taking any new clients if the petitions are within 4 to 6 months of the statute of limitations. They cannot take the risk of losing their costs, which can be several thousand dollars associated with verifying medical records and filing a petition.
And after the CAFC ruling in Simmons v HHS, there have been a few other attorney fee applications denied only after filing their petition, obtaining medical records, a thorough examination of those records, discussions with medical experts associated with the case and to have the special masters after all this has been done, rule that the petitioner has no reasonable basis to continue.
The attorneys will file motions to leave as counsel and motions for fees and costs up to the point of the special master determination. Yet the special masters deny the fees and costs, all the work the attorneys have done representing their client and costs incurred are not compensable.
This is the current state we are facing within the NVICP. Shutting the door to compensation for all petitioners, especially if you are a child, unless you have an adult petitioner with a slam dunk case of GBS or SIRVA. Attorneys are now screening new clients very aggressively. And we are denied our opportunity to seek legal representation.
Nightmare Scenario
Here is a scenario of screening of a potential client and saying no to legal representation. Petitioner wants to file a petition claiming that her miscarriage was caused by her influenza vaccination. On the surface this type of petition should be filed. But add in the fact that the petitioner did not approach an attorney soon enough. The statute of limitations is fast approaching. Three months remain of the statute of limitations deadline. When the petitioner suffered a miscarriage and the filing deadline.
Petitioner has the medical records showing the date she received the influenza vaccine. No problems so far. File the petition to stop the tolling for statute of limitations.
Yet the attorney will not have time to request complete medical records of the mother’s health only to learn that she had the flu as well as being vaccinated while pregnant.
How do you determine if the vaccination caused the miscarriage or did some other medical condition? The attorney will have to retain one or more very expensive medical experts to issue their opinions. Fast forward a couple of years to the date the special master issued decision to dismiss because no medical theory has been proffered to logically state the vaccine not the mother’s medical condition caused the miscarriage.
And then rules against the attorney for thousands of dollars in fees and medical expert costs because of a lack of reasonable basis. This is happening now and will continue to happen.
The 6th Amendment allows for criminals to retain legal counsel. Yet petitioners in the NVICP are being denied legal counsel.
Just another example of how our government is shutting the door on those who have been injured or have died as a result of a vaccine.
[i] The Assistance of Counsel Clause is a part of the Sixth Amendment to the United States Constitution
[ii] https://en.wikipedia.org/wiki/Right_to_counsel
[iii] 42 U.S.C. § 300aa-15(e)(1).
[iv] Avera v HHS, CAFC 2007-5098, Feb 6, 2008
[v] Supreme Court of United States, SEBELIUS, SEC’Y OF HHS v. CLOER 12-236, May 20, 2013
[vi] 42 U.S.C. § 300aa–15(e).
[vii] 42 U.S.C. § 300aa-15(e)(1).
[viii] 42 U.S.C. § 300aa-15(e)(1).
[ix] Simmons v HHS, 13-825v, April 30, 2014
[x] Simmons v HHS, 13-825v, April 14, 2016
[xi] Court of Federal Claims, Senior Judge Firestone, Simmons v HHS 13-825v, Sept 21, 2016 pg 2
[xii] Court of Federal Claims, Senior Judge Firestone, Simmons v HHS 13-825v, Sept 21, 2016 pg 2
[xiii] Simmons v HHS, 13-825v, April 14, 2016
[xiv] CAFC 2017-1405, Nov 7, 2017
Wayne Rohde, author of The Vaccine Court – The Dark Truth of America’s Vaccine Injury Compensation Program
Wayne Rohde is author of Vaccine Court, from Skyhorse Publishing.
Thank you for explaining some of the technical details of how this "court" is failing the vaccine injured.
A statute of limitations of three years seems perhaps meant to whittle cases down to the most obvious to connect to a vaccine, and yet we hope the "protection" from a vaccine lasts a lifetime, or well, 5-10 years, and, how many vaccine recipients even completely detoxify the vaccine components within that 3-year time limit?
Posted by: Jeannette Bishop | August 01, 2018 at 04:26 PM
@ Mark Wax
"Call me an tell me where I can go and get our lives back?"
My grandson is now 18 years of age .. he was among the purported 5,000 families who filed for compensation that the SENATE .. "acted to revise the Code to protect Pharma ( the "Lilly Rider" ) .. IN THE DEAD OF NIGHT .. before the vote on the 2002 Homeland Security Bill"
And so .. our family .. like yours and thousands of others .. has been asking that very same question for 15 years .. with no end in sight.
My friend .. I can only remind you of Jesse Jackson's famous quote .. KEEP HOPE ALIVE.
After all is said and done .. HOPE IS THE ONLY THING WE HAVE.
Posted by: bob moffit | August 01, 2018 at 04:15 PM
My case was but one of the many ultimately dismissed by the SOL of 36 months. We sought legal counsel within the time allowed from diagnosis ( reasonably could have known). While trying to determine the correct course of action, more time elapsed. We finally decided that we would test the U.S District Courts in Eastern District of NY. The attorneys knew it would land with Judge Weinstein, father of mass tort litigation. We would be "lead plaintiff" in Wax v. Aventis, declaring Thimerosal as the "additive" to vaccines that poisoned our son. No State Court had ever allowed a case to proceed. The case was "stayed" and redirected to follow individual protocol in the USCFC. BUT, the Judge essentially allowed a return to District Court with that "stay." The U.S. Senate would act to revise the Code to protect Pharma ( the "Lilly Rider" ) in the dead of night before the vote on the 2002 Homeland Security Bill. Despite a very credible claim, ( our Vaccine lawyer was paid) and the appeal, DOJ sustained the dismissal with the SOL defense. All this despite the fact that it would have impossible to have filed the claim "timely" , as I had never even heard of the Vaccine Court, nor did a single doctor raise the specter of a "adverse vaccine reaction." I wonder how many incompetent children born in 1992 suffer indeterminably. How many families destroyed? So comforting to know that mandatory vaccines will save children from being home from school for a few days. How many lives sacrificed for that headline?
See Wax v. H.H. S. if you are of the legal profession. I am sure you have read 100's or 1000's of similar chapter and verse. Call me an tell me where I can go and get our lives back?
Posted by: Mark Wax | August 01, 2018 at 12:36 PM
You know this whole problem has always been the justice department. Everything rest on the justice department and they have not been working for the people for a good 40 years, if ever. It is the justice department, that is not going in and aggressively handling Dr. William Thompson's witnessing the CDC broke the law. .
OH, there is enough blame to go around; Congress, vaccine manufacturers, the federal health agencies, but it is the justice department that was the biggest failure. . If the justice department had done justice then the vaccine manufactures and the federal health agencies (the criminals) would not have gotten away with ruining the nation with brain injuries, neurological disabilities, rampant autoimmune diseases.
I don' t know why it took me so long to see it.
I kept blaming just Congress and the federal health agencies, only, (I did not blame the vaccine manufacturers cause- well they are the criminal beast, and they will get away with what they will; if allowed. We depend on authority to protect us from criminals, and if not: then it is wild west time (pry my gun from my cold, dead hand) all that stuff. It is the crooked sheriff in town that everyone hates the most; more so than the crooks. Is that not right? They could not do this, if the justice department was doing what it is suppose to, and giving the American people justice.
Thirty some years ago I did kind of thought it was not right when I could not find a lawyer anywhere. I kind of thought it when I finally asked for the papers to fill out all by myself. I kind of thought so when I received the papers to fill out, and those papers told me exactly what temperature my son was allowed to have. He could have the temperature of 102, but no higher. If he had a temperature of 104 then that was not the right number. Oh, and that temperature had to be recorded in the medical records, by doctors.
ER rooms don't or didn't keep medical records 30 years ago, and besides the vaccine reaction of the DPT is not called a temperature SPIKE for nothing, it all happens in minutes.
It is the justice department, it is the crooked cop, it is the crooked sheriff.
Posted by: Benedetta | August 01, 2018 at 10:20 AM
Interesting article, and good comment, John, on the situation in the UK, which I believe is corrupt from the top down. On another legal matter, the BBC just gave a twenty minute report on the latest in the case of Tommy Robinson, former leader of the English Defense League. I don't recall a similar length of report on such a case as this by the BBC. Whatever one may think of the EDL I'm heartened by this change. All people are becoming aware of the corruption of the legal system.
Posted by: Grace Green | August 01, 2018 at 09:25 AM
Thanks Wayne
The position in the U.K. where the vaccine manufacturers were never given this kind of protection is that citizens have a theoretical right to sue, but practical access is through a politicised legal aid body attached to the Ministry of Justice, formerly called the Legal Aid Board, then Legal Services Commmission and now the Legal Aid Agency.
In the 1990s the Legal Aid Board toyed with allowing pharma litigation perhaps without having the intention of letting it progress, and of course in 2003 they (by then the LSC) collapsed the MMR litigation, although a few fragments survived until 2007, which they slowly undermined and pulled the plug on. But then, of course, they even obstructed litigation against Merck over Vioxx despite highly successful legal actions in the US. Plainly, drug manufacturers operate without any real threat of legal sanction in the U.K. now and the British government/state will always move to protect them, hovever disgracefully they behave. They are effectively beyond the law and can do just as they please, at least in regard to product safety.
In regard to the MMR litigation it may be mentioned that theLegal Services Commission illegally gave litigant documents to the GMC in their prosecution of Wakefield, Walker-Smith and Murch (and GMC equally illegaly received them) but, of course, no one can do anything about it.
An advantage of the US system is that at least in principle the concept of vaccine damage is accepted, whereas in the U.K. its existence is increasingly denied.
Posted by: John Stone | August 01, 2018 at 07:06 AM
When all is said and done …. it is CONGRESS and every succeeding administration that has held the Presidency .. BOTH PARTIES .. that deserves the lion's share of blame for the disaster they named the VACCINE COURT. In addition .. the SUPREME COURT also deserves credit for their role in allowing this TRAVESTY OF JUSTICE .. THE VACCINE COURT .. to continue in spite of the obvious obstruction of the US CONSTITUTION intent to guarantee "equal justice for all". Consider:
"The 6th Amendment allows for criminals to retain legal counsel. Yet petitioners in the NVICP are being denied legal counsel."
The very creation of the Vaccine Court .. where criminals are provided legal counsel being denied petitioners in the NVICP .. couldn't have happened in our country if not for the SWAMP that our government and Justice System has become. Shame on all involved .. the politicians, judges, institutions themselves .. as well as the individuals who serve in those morally/ethically bankrupt institutions.
Posted by: bob moffit | August 01, 2018 at 06:44 AM