Attorney Compensation Under the Vaccine Act

Recently the Court reviewed the certiorari petition in Rodriguez v. Sebelius, a case involving the compensation of attorneys representing claimants under the National Childhood Vaccine Injury Act. This Vaccine Act created a no-fault compensation program for persons injured by vaccines, motivated by the fear that traditional tort liability was causing vaccine manufacturers to stop developing and producing medicines vital for public health. An interesting facet of the Vaccine Act is that the government will pay claimants’ “reasonable attorneys’ fees”, regardless of whether the claim is ultimately successful, as long as it was “brought in good faith” and with “a reasonable basis”. 42 U.S.C. § 300aa-15.

In the instant case, the petitioner sought reimbursement for legal fees in excess of $94,000, with billable rates as high as $645/hour. The U.S. Court of Special Claims special master rejected the petitioner’s use of the Laffey Matrix, a fee schedule which determines appropriate rates for attorneys engaging in “complex federal litigation”. The Federal Circuit affirmed, noting that using the Laffey fee schedule for complex litigation was inappropriate given the structure of the court. The Vaccine Act presents “petitioners with an alternative to the traditional civil forum, applies relaxed legal standards of causation, and has eased procedural rules compared to other federal civil litigation. Vaccine Act proceedings, which involve no discovery disputes, do not apply the rules of evidence, and are tried in informal, streamlined proceedings before special masters well-versed in the issues commonly repeated in Vaccine Act cases…”

One point of contention between the Federal Circuit and the petitioner’s cert petition was just how likely it is for attorneys’ fees to be awarded in losing cases. The Federal Circuit wrote, “it is appropriate to take account of the fact that the Vaccine Act attorneys are practically assured of compensation in every case, regardless of whether they win or lose and of the skill with which they have presented their clients’ cases… The attorneys’ fees provisions of the Vaccine Act ‘were not designed as a form of economic relief to improve the financial lot of lawyers’” (the court’s emphasis).

The petitioner’s cert petition questions this finding and cites statistics showing that for “more than 66% of claims in which petitioners did not prevail, no attorney fees were awarded” (the total number of dismissed cases, at the time, was 5,792). This calculation is misleading because it fails to, or is unable to, distinguish claims brought without a “reasonable basis”. It is meaningful to note that of the 14,016 cases filed since 1988, over 40% (5,638) involved autism, which the court has never found a vaccine to cause.

In fact, the Vaccine Court is more than generous with attorneys’ fees. Since 1988 over $83 million has been paid to lawyers over the 2,788 claims that were compensated (an average of $29,838 per case) and over $41 million has been paid to lawyers with claims that have been dismissed (an average of $15,675 per case). Although the court has never found a vaccine to cause autism, it will still authorize attorneys’ fees for the Omnibus Autism Proceedings, in which only 1 of 2,151 claims was compensated. Here, the special master cut the attorneys’ fees down from a requested high of $645/hr to a high of $335/hr.

Congress created the the Vaccine Injury Compensation Program to pay for the medical treatment of children injured by side effects of vaccines which are necessary to protect public health. Claimants do not have to prove any design or manufacturing defects, or mistake by the administering physician, only that their injury was caused by a vaccine. The Vaccine Act will also pay attorneys’ fees, so claimants can better find representation. By all accounts, this system is preferable to most schemes our country offers to compensate persons injured by medical procedures, and their lawyers. The Supreme Court wrote in Blum v. Stenson that reasonable attorneys’ fees should be “adequate to attract competent counsel, but which do not produce windfalls to attorneys.” The number of cases filed since 1988 gives no evidence that lawyers are deterred from practicing in the area because of inadequate compensation. It is not the lawyers who bear little risk of nonpayment if they lose as long as they brought a reasonable case, it is their injured clients. If any party is to be compensated more, it should be the clients.

 

Photo taken from Wikimedia Commons.