Fees for the Omnibus Autism Proceeding hit $7M

20 Feb

In the United States, the court hearings on whether vaccines cause autism were held under the Omnibus Autism Proceedings (OAP). These proceedings represented over 5,000 families who filed for consideration that they had a child who (a) suffered a vaccine injury and (b) this injury resulted in autism.

The OAP heard six “test cases”. Each test case represented both the question of whether the specific test-case child considered suffered a vaccine injury and also the general question of whether the idea that vaccines cause autism was proven.

The first three test cases considered the question of whether the MMR vaccine could cause a vaccine injury resulting in autism. The second three test case considered the question of whether thimerosal containing vaccines could cause vaccine injury resulting in autism.

The decisions from the MMR cases have been handed down, and they were unanimously and definitively against the MMR causes autism theory. These have been appealed and that appeal was denied. I believe an appeal to the U.S. Supreme Court has been either filed or planned.

The decisions in the thimerosal cases have not been handed down yet.

The OAP was a very long process, starting in 2002 and still ongoing, involving multiple law firms and many lawyers and experts. It has been an expensive process. We are slowly learning just how expensive.

Last year an interim award of over $2M in legal fees was granted for lawyers working on the Cedillo test case. That was the first case heard in the MMR segment of the AOP.

The Court has now granted an interim award of $2,300,000 for the King test case, the first heard in the Thimerosal segment of the AOP.

During an unrecorded telephonic status conference on July 1, 2009, the law firm of Williams, Love, O’Leary, and Powers (WLOP) agreed to reduce its interim attorneys’ fees and costs request from $3,101,764.84 to $2,300,000.00, including $2,070,000 in fees and $230,000 in costs. Respondent’s counsel then indicated that respondent will not object to that amount. WLOP’s reductions included: the withdrawal of time and expenses relating to direct legislative lobbying, that is, any activity relating to efforts to affect the outcome of the political process; the withdrawal of time and expenses relating to “case specific” work in cases other than this claim, and unrelated to “general causation” work on the OAP; the withdrawal of time and expenses WLOP conceded were related exclusively to civil cases outside of the Vaccine Program; and the withdrawal of time and cost claims relating to public relations and media work during the pendency of the OAP. In addition, WLOP generally reduced the fees it requested for time spent on the OAP. Finally, WLOP agreed to significantly reduce the expenses for which it sought reimbursement, particularly those costs incurred while on travel.

Let me highlight a couple of statements:

the withdrawal of time and expenses WLOP conceded were related exclusively to civil cases outside of the Vaccine Program.

and

WLOP’s reductions included: the withdrawal of time and expenses relating to direct legislative lobbying, that is, any activity relating to efforts to affect the outcome of the political process

Bold is mine.

Apparently, the law firm applied for and was denied funding for work done for civil cases that were outside of the vaccine program and for lobbying efforts. What were they thinking trying to get tack that onto their fee request? Let’s face it, the Omnibus has already subsidized any upcoming civil cases by giving the lawyers time to research their arguments and pay experts. And, really, asking the program to pay for lobbying?

This is only an “interim” fee request. Fees are still mounting, and not all the past fees have been assessed:

Of note, this Decision resolves all fees and costs requested by the WLOP firm in the King interim fees application, at Tabs A & B of that application. This Decision does not resolve the amounts requested at Tabs C through U of that application.

I don’t know how much is involved with “Tabs C through U”, but it sounds like the remaining fees could be considerably more than the $2.3M granted.

It is interesting to note that the father/son team of David and Dr. Mark Geier have expert fee requests submitted (and as yet unpaid) for this case, even though they were not called as witnesses and, to my knowledge, did not submit expert reports:

This does not resolve the vast majority of fees and expenses relating to Drs. Geier and Young. The majority of expenses relating to Dr. Geier, David Geier, and Dr. Young are included in the PSC Committee Costs, at Tab C of the initial Fee Application

The Geier’s are well known “experts” in the vaccine court. Young, I suspect, is the same person as co-authored a paper with the Geiers purporting to show a link between neurodevelopmental disorders and thimerosal in vaccines. That paper was reported to have been recieved funding “…from the Autism Petitioners’ Steering Committee of the no-fault National Vaccine Injury Compensation Program (NVICP).”

I am all for petitioners in the Vaccine Court having access to good experts. I don’t consider the Geier team to meet that standard. Should the Petitioners’ Steering Committee have decided to fund this reasearch, I see that as their expense, not one that should be passed on to the vaccine program. Dr. Mark Geier has been referred to in court documents as:

There are multiple cases where Dr. Geier’s opinion and testimony have been given little or no weight because they exceeded the scope of his expertise.

and

Dr. Geier is “a professional witness in areas for which he has no training, expertise, and experience”

I frankly suspect that funding The team of Young, Geier and Geier in this instance is another attempt to get the Vaccine Program to pay for work the lawyers expect to use in the civil cases that will follow the likely rejection of the Vaccine Court hearings. Remember, they weren’t called as expert witnesses in the Omnibus.

One other expert witness of note, Dr. Vas Aposhian, is also mentioned in the fee ruling:

This decision resolves the $34,048.25 that WLOP requested for expenses related to Dr. Aposhian ($31,750.00 in fees; and $2,298.25 in expenses incurred in May 2008). This decision does not resolve the $207,382.53 in fees and expenses included in the PSC Committee Costs for costs relating to Dr. Aposhian, nor does it resolve the $7,910 requested by Williams Kherkher for costs associated with Dr. Aposhian. See Tab C at 3887 and Tab E at 4396-98.

We don’t have the decisions from the King hearing yet, but here are some comments from the Cedillo decision:

Thus, concerning this issue [genetic hypersensitivity to mercury], I conclude that the testimony of Drs. Brent and Cook was persuasive, and that the testimony of Dr. Aposhian was not.

I find that Dr. Brent’s testimony on this point [the lack of an established mercury efflux disorder] was persuasive, and that the testimony of Dr. Aposhian was not.

I wonder if Dr. Brent, whose expertise was persuasive, will be paid anything like the roughly quarter million dollars that Dr. Aposhian has billed.

So we have $2M in fees granted for the Cedillo hearings, and now $2.3M for the King hearings. This is part of a total of over $7,000,000 requested in interim fees:

In their application, the petitioners sought a total of $7,202,653 for interim fees and costs. This total reflected the fact that this case was, as explained above, one of the “test cases” in the OAP. Because this was a “test case,” in which the petitioners sought to present all of the “general causation” evidence concerning the theory that thimerosal-containing vaccines can cause autism, several different law firms participated in the development and presentation of the evidence, while five expert witnesses prepared expert reports and testified at length for petitioners during the evidentiary hearing. The high total sought reflects the participation of all those law firms and expert witnesses.

I don’t think anyone is surprised that this is a very expensive proceeding.

Millions of dollars were spent trying to prove the now discredited (and never well supported) hypothesis of Dr. Wakefield. The thimerosal hypothesis also never had much substance, and has cost millions more.

One thing good out of all this is that the proceeding also paid to compile expert reports from some real experts debunking the MMR and Thimerosal myths.

17 Responses to “Fees for the Omnibus Autism Proceeding hit $7M”

  1. David N. Brown February 20, 2010 at 08:17 #

    “One thing good out of all this is that the proceeding also paid to compile expert reports from some real experts debunking the MMR and Thimerosal myths.”
    Except, this appears to have been the basis for the accusations/libels against Rutter.

  2. Ullie February 20, 2010 at 13:16 #

    Has anyone else noticed that the German word “Geier” means vulture? 😛

  3. Perry February 20, 2010 at 13:53 #

    What did the taxpayers pay Dr. Clarkson and Dr. Magos to write expert reports on mercury only to have the respondents hide the reports after they decided they didn’t like the conclusions? Do you have that information Sullivan?

  4. LS February 20, 2010 at 19:41 #

    I did notice that “Ullie” is Cornish for “excretory opening of the alimentary canal”. neener neener.

  5. isles February 20, 2010 at 22:52 #

    Lobbying…very telling. If you lose on the science, try the judiciary system instead, and when it’s looking like that’s a lost cause too, try to sucker legislators into vinicating you. Niiice.

  6. Sullivan February 21, 2010 at 02:22 #

    isles,

    another possibility for the lobbying money–the attempt to change the statute of limitations for vaccine injury.

    If they want to lobby, fine. Just don’t charge the U.S. Taxpayers for it.

  7. jr February 22, 2010 at 06:00 #

    I’m guessing you intended for 7 million to sound like a big number.

    from a 2006 Newsweek piece
    “…Drug companies spent another $27.7 billion on promotion, including $15.9 billion on free drug samples and $7.3 billion on sales-rep contacts (free lunches and pens), $4 billion on direct-to-consumer advertising and $500,000 on journal advertising, according to IMS Health, a pharmaceutical information and consulting company.”

    7.3 billion on marketing lunches and pens for an industry that can’t be sued directly, but 7M is a big deal? What is the annual legal budget of these companies to protect their immunity?

    If a fraction of that 7.3 billion had been spent on preservative free single dose packaging instead of safety marketing, we wouldn’t be talking about this.

    • Sullivan February 22, 2010 at 06:52 #

      jr,

      the department of Health and Human Services has requested $7M just for this next year for costs involved in the Autism Omnibus.

      Yes, I think millions of dollars are big amounts. $7M would set my kid up well.

      This does represent years of work by the law firms and, as long as the charges are legitimate, I don’t have a problem with it. I would rather the U.S. Government had spent that money on autism research.

      If we want to compare big numbers, to paraphrase a gentleman I respect: Health Fraud is a multi Billion dollar industry, and the bad guys know about autism.

      Much more money will be wasted this year on useless and potentially harmful “alternative” treatments for autism than on the Omnibus.

  8. Liz P February 22, 2010 at 06:20 #

    What is most despicable is the fact that, while the attorneys will be compensated, regardless of the quality of case they persent, the children will be left twisting in the wind with no funds to meet their significant medical need, sooner or later
    becoming a significant burden on the State and Federal systems.

    Had the Government not eliminated their right to sue for damages, outright, these cases would have been long-since settled in Civil court. Since Phrma succeeded in lobbying for full protection, “vaccine court” was intended to be a simple no-fault solution for those injured by vaccines; it has been morphed into a fully adversarial kangaroo court leaving thousands in limbo for many years and thousands more with no opportunity to pursue a claim.

    If a manufacturer sells an automobile with leaky brake lines, which then is involved in an accident because the brakes failed; the manufacturer is held liable in the US. However, when a vaccine manufcaturer produces a product for injection into newborns and infants, containing known poisons, carcinogens, mutagens, tetragens, and neurotoxins, which results in permanent, lifelong disability or death; the vaccine manufacturer is gladly absolved of any responsibility by the US Government…Of the people or for the people? No longer…

    • Sullivan February 22, 2010 at 06:48 #

      Liz P.,

      Had the U.S. government kept the old method of settling vaccine cases, we would no longer have a vaccine program. There are people who seem to think this would be a good idea, but I don’t agree.

      The U.S. Government would also not have stepped up to accept the responsibility they (we) hold for a mandated program.

  9. Do'C February 22, 2010 at 06:51 #

    Had the Government not eliminated their right to sue for damages, outright, these cases would have been long-since settled in Civil court.

    Or dismissed, or failed due to lack of scientific evidence. Attorneys work on contingency or require payment by the plaintiff in civil courts, by the way, which makes that a potentially very expensive proposition if the evidence is flimsy.

    However, when a vaccine manufcaturer produces a product for injection into newborns and infants, containing known poisons, carcinogens, mutagens, tetragens, and neurotoxins, which results in permanent, lifelong disability or death; the vaccine manufacturer is gladly absolved of any responsibility by the US Government.

    “which results in permanent, lifelong disability or death” being the key phrase here. Cases that demonstrate this with a low standard of proof in vaccine court (or by table injuries) are compensated.

    The PSC in the Omnibus had the opportunity to present their top cases, and completely failed to show “which results in autism”.

  10. Sullivan February 22, 2010 at 07:29 #

    Do’C,

    I would differ with you on this. From where I sit, the key phrase starts with “known poisons…”

    If a vaccine manufacturer were negligent or were found to be hiding safety information, they should not (in my view) be offered the protection the vaccine court offers.

    The fact of the matter is the vaccines-cause-autism cases don’t meet that standard.

    The fact of the matter is there are areas where vaccine safety could be improved. However, the so-called vaccine safety organizations have ignored those areas.

  11. Prometheus February 22, 2010 at 19:33 #

    Liz P complains:

    “Had the Government not eliminated their right to sue for damages, outright, these cases would have been long-since settled in Civil court.”

    If Liz P means to imply that “the Government” eliminated the right to sue for damages from vaccine injuries outside of the VICP, she is mistaken. The parents in the Autism Omnibus Proceedings, if their case is rejected or if the award is not to their liking, can take their case to a regular state or federal court. The only requirement is that their first hearing be through the VICP.

    In fact, the Autism Omnibus Proceedings have been very helpful to parents seeking compensation for what they perceive to be autism caused by a vaccine injury because it has saved each of them thousands of dollars in legal fees, expert witness fees and the potential of being stuck with the respondents’ legal costs, all of which are being paid by the taxpayers. If they want, they can take this treasure trove of information and testimony and try their case in a state or federal court.

    While it is possible that some of these parents would have prevailed in their individual cases had they been tried in state or federal courts, that would have been – so the evidence tells us – due to the randomness of jury trials and not because their evidence was better or more compelling.

    Let’s face it, the Autism Omnibus Proceedings (AOP) were the “best shot” from the “vaccines-cause-autism” movement. They had an opportunity to have all of their “experts” testify in an environment that was designed to bend over backwards for them. Fully 90% of the plaintiffs’ “expert testimony” presented in the AOP would have been barred from a regular courtroom by Daubert standards, so they can’t argue that their “voices” weren’t heard – they were heard, but didn’t convince.

    As a taxpayer, I don’t begrudge the parents in the AOP the legal fees and expert witness fees – even though I think (and so did the Special Masters) that their “expert witnesses” weren’t very expert – because it should allow us to put this issue to rest. If there are some people who aren’t convinced yet….well, there are still people who think the Apollo moon landings were faked, and I don’t think we’ll ever convince them, either.

    Prometheus

  12. jr February 23, 2010 at 16:39 #

    It would be a lot for us too, but we were never part of the equation of where else that money could go. When the govt took on the business end of defending vaccines, this is what they signed up for. I can only assume there were some what-if scenarios lying around that would have required much higher payouts, thus the full court press on all sides. And as long as nobody is getting compensated for MMR injuries(?), the govt is still collecting about $30 million a year in dose taxes on MMR alone and this shot remains a revenue source even with $7 million in legal fees.

    I can appreciate the government taking some responsibility for a mandated program in the order to promote overall public health, but it seems odd that they don’t get a share of the non-tax revenue. Now that it has been litigated, MMR should be cozy $200+ million/yr market in the US, fully mandated and fully protected, without so much as a licensing fee.

    • Sullivan February 23, 2010 at 17:00 #

      jr,

      you have some misconceptions going on here.

      The tax from each dose of vaccine (75 cents as I recall) is not a revenue stream for the U.S. government. It is a way to fund the trust that is held to pay out claims in Vaccine Court. Notice that the $7M is a line item in the HHS budget–that is *not* coming out of the trust.

      My guess is that you are correct and that the MMR does not have a license fee. That is because the MMR vaccine was invented long enough ago that the patent on the vaccine has run out.

      Vaccines are not “fully protected”. One must go through the vaccine court as a first step, but one’s right to sue in regular court remains.

  13. jr February 23, 2010 at 19:41 #

    I don’t mean revenue, like profit, but I’m familiar with any tax being referred to as a revenue to the govt, even if it is tagged for a particular need. Prior to vaccines administered in 1988 the program was funded directly by congress, and afterward by the excise tax. The federal excise tax is 0.75 per disease per dose, so the MMR tax is 2.25 per dose. How they separate funding sources for defense(via DOJ) vs awarded claims vs interim fees is a bit of a shell game. As an autism research funding zapper, I’m more concerned about the general study of genetics being billed to autism.

    The vaccine court is pretty big hoop to get through in term of time, money, and meeting their requirements for covered events. As far as I have heard, these vaccines have been adequately protected enough to stay out of the news. As to the ? in my previous post, there have been 295 MMR awards so far on 52 claims of death and 800 claims of injury.

    http://www.hrsa.gov/vaccinecompensation/statistics_report.htm

    I don’t mean a licensing fee in terms of intellectual property rights, more like concession or oil drilling rights on public land. If a company is going to sell a product covered by this program and enjoy a marketplace created through legislation and certain protections not given to other businesses, maybe they should engage in some form of profit sharing with the govt in exchange for that subsidy. Right now, much of the cost of this program is really getting paid via the health insurance premiums of the kids getting the shots, which is a little like charging admission to play a Russian game of chance. Since it is not just the consumer who gets the benefit, maybe a more general and less constrained funding source would be more appropriate.

  14. David N. Brown February 23, 2010 at 19:56 #

    The fundamental problem with claiming a “vaccine tax” as a source of revenue to the government is that more than half of vaccines in the US are BOUGHT by the government. Any tax would appear to be effectively collected by the government from itself!

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