The firm of 'A Civil Action' fame takes on vaccine injury cases

[Guest guest]

'Vaccine Bar' May Be a Shot in the Arm for Small FirmThe firm of 'A Civil Action' fame takes on vaccination injury casesSheri QualtersThe National Law JournalMay 19, 2008 Five-lawyer Boston law firm Conway, Homer & Chin-Caplan has transformed itself from the products liability firm that housed Jan Schlichtmann's toxic tort case immortalized in the movie "A Civil Action" into a prominent plaintiffs firm in the vaccine bar. But it hasn't been an easy ride. Name partner Conway, and other lawyers specializing in vaccine cases filed as part of the National Vaccine Injury Compensation Program, say the program's fee rules make it hard for vaccine lawyers to stay solvent. The tax-funded vaccine compensation program, which was designed as a no-fault option for resolving vaccine injury claims, allows lawyers to collect fees for claims made "in good faith" and with "a reasonable basis," whether they win or lose the case. Yet because lawyers collect fees at the end of a case, work done in prior years is based on past billing rates that might be devalued by inflation. "It's a terrible business model for lawyers," Conway said. What's more, the lawyer's reimbursement for expert witnesses doesn't include interest for the delay in payment and is frequently challenged by the government, Conway said. The program is administered by the U.S. Department of Health and Human Services, with help from the U.S.

Department of Justice and the U.S. Court of Federal Claims in Washington. Special masters hear cases filed at the Federal Claims Court, but either side can appeal rulings to the court or, ultimately, to the U.S. Court of Appeals for the Federal Circuit in Washington. Conway Homer, which slowly eased into the vaccine business at the beginning of the 20-year-old vaccine program, addressed the cash-flow dilemma by creating a high-volume business handled by four lawyers in Massachusetts and one in Houston. The firm has 1,200 vaccine cases alleging that the shots caused autism and about 200 other vaccine injury cases, Conway said. "For the first seven to eight years our other work sustained it," he said. "Now we have a cash flow from vaccine cases that started years ago." CORE IS THE SAME Schlichtmann left the firm in 1991. But Conway said that "the core of the firm" remains the same because his current

partners worked for the firm during Schlichtmann's tenure. As the names on the masthead changed a couple of times over the years, the firm's vaccine caseload increased, and the drawbacks of the cases became more apparent. The firm hasn't collected any fees on one 15-year-old case, for example, Conway said. "Had we known what it was going to be like, we wouldn't have done it," Conway said. "The firm is now financially stable enough for the attorneys to enjoy the upsides of vaccine work, including lack of competition from other attorneys and the satisfaction of helping injured clients." The firm's decision to buy a brownstone and convert it to office space also makes expenses more predictable and insulates the firm from fluctuations in Boston's real estate leasing market. Lawyers hope a recent ruling at the Federal Circuit will make it easier to collect fees before the end of all appeals on a vaccine case. Although the

court denied interim fees to the lawyer on the case, it clearly rejected the government's argument that the Vaccine Act bars interim fees for attorneys. Avera v. Secretary of Health and Human Services, 515 F.3d 1343 (Fed. Cir. Feb. 6, 2008). "There is nothing in the Vaccine Act that prohibits the award of interim fees," wrote Judge B. Dyk. Conway bills the vaccine program at $320 an hour for work down in 2008 with lower rates in prior years down to $250 an hour for all years up through 2004, but lawyers in lower-rate legal markets say they're struggling to make it on much lower fees. Subscribe to The National Law Journal

[Guest guest]

'Vaccine Bar' May Be a Shot in the Arm for Small FirmThe firm of 'A Civil Action' fame takes on vaccination injury casesSheri QualtersThe National Law JournalMay 19, 2008 Five-lawyer Boston law firm Conway, Homer & Chin-Caplan has transformed itself from the products liability firm that housed Jan Schlichtmann's toxic tort case immortalized in the movie "A Civil Action" into a prominent plaintiffs firm in the vaccine bar. But it hasn't been an easy ride. Name partner Conway, and other lawyers specializing in vaccine cases filed as part of the National Vaccine Injury Compensation Program, say the program's fee rules make it hard for vaccine lawyers to stay solvent. The tax-funded vaccine compensation program, which was designed as a no-fault option for resolving vaccine injury claims, allows lawyers to collect fees for claims made "in good faith" and with "a reasonable basis," whether they win or lose the case. Yet because lawyers collect fees at the end of a case, work done in prior years is based on past billing rates that might be devalued by inflation. "It's a terrible business model for lawyers," Conway said. What's more, the lawyer's reimbursement for expert witnesses doesn't include interest for the delay in payment and is frequently challenged by the government, Conway said. The program is administered by the U.S. Department of Health and Human Services, with help from the U.S.

Department of Justice and the U.S. Court of Federal Claims in Washington. Special masters hear cases filed at the Federal Claims Court, but either side can appeal rulings to the court or, ultimately, to the U.S. Court of Appeals for the Federal Circuit in Washington. Conway Homer, which slowly eased into the vaccine business at the beginning of the 20-year-old vaccine program, addressed the cash-flow dilemma by creating a high-volume business handled by four lawyers in Massachusetts and one in Houston. The firm has 1,200 vaccine cases alleging that the shots caused autism and about 200 other vaccine injury cases, Conway said. "For the first seven to eight years our other work sustained it," he said. "Now we have a cash flow from vaccine cases that started years ago." CORE IS THE SAME Schlichtmann left the firm in 1991. But Conway said that "the core of the firm" remains the same because his current

partners worked for the firm during Schlichtmann's tenure. As the names on the masthead changed a couple of times over the years, the firm's vaccine caseload increased, and the drawbacks of the cases became more apparent. The firm hasn't collected any fees on one 15-year-old case, for example, Conway said. "Had we known what it was going to be like, we wouldn't have done it," Conway said. "The firm is now financially stable enough for the attorneys to enjoy the upsides of vaccine work, including lack of competition from other attorneys and the satisfaction of helping injured clients." The firm's decision to buy a brownstone and convert it to office space also makes expenses more predictable and insulates the firm from fluctuations in Boston's real estate leasing market. Lawyers hope a recent ruling at the Federal Circuit will make it easier to collect fees before the end of all appeals on a vaccine case. Although the

court denied interim fees to the lawyer on the case, it clearly rejected the government's argument that the Vaccine Act bars interim fees for attorneys. Avera v. Secretary of Health and Human Services, 515 F.3d 1343 (Fed. Cir. Feb. 6, 2008). "There is nothing in the Vaccine Act that prohibits the award of interim fees," wrote Judge B. Dyk. Conway bills the vaccine program at $320 an hour for work down in 2008 with lower rates in prior years down to $250 an hour for all years up through 2004, but lawyers in lower-rate legal markets say they're struggling to make it on much lower fees. Subscribe to The National Law Journal