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Geier v. Conway, Homer & Chin-Caplan, P.C.

United States District Court, District of Columbia

February 8, 2013

MARK R. GEIER, et al., Plaintiffs,
v.
CONWAY, HOMER & CHIN-CAPLAN, P.C., et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For MARK R. GEIER, DAVID A. GEIER, Plaintiffs: James R. Klimaski, LEAD ATTORNEY, KLIMASKI & ASSOCIATES, P.C., Washington, DC; James M. Love, LEAD ATTORNEY, PRO HAC VICE, TITUS HILLIS REYNOLDS LOVE DICKMAN & MCCALMON PC, Tulsa, OK.

For CONWAY, HOMER & CHIN-CAPLAN, P.C., Defendant: Keith M. Bonner, LEAD ATTORNEY, BONNER KIEMAN TREBACH & CROCIATA, LLP, Washington, DC; Mark Alden Schofield, BONNER KIERNAN TREBACH & CROCIATA, LLP, Washington, DC.

For JOHN H. KIM & ASSOCIATES, P.C., Defendant: Elizabeth H. Mykytiuk, Pamela Anne Bresnahan, LEAD ATTORNEYS, VORYS, SATER, SEYMOUR AND PEASE LLP, Washington, DC.

For LOMMEN, ABDO, COLE, KING & STAGBERG, P.A., Defendant: Dennis John Quinn, LEAD ATTORNEY, CARR MALONEY PC, Washington, DC.

For WILLIAMS KHERKER HART BOUNDAS, LLP, Defendant: Robert W. Hesselbacher, Jr., LEAD ATTORNEY, Meighan G. Burton, WRIGHT, CONSTABLE & SKEEN, LLP, Baltimore, MD.

OPINION

Rosemary M. Collyer, U.S. District Judge.

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Dr. Mark Geier and his son, David, brought suit seeking payment for consulting services rendered. Defendants are four law firms: Conway, Homer & Chin-Caplan; John H. Kim & Associates, P.C.; Lommen, Abdo, Cole, King & Stageberg, P.A.; and Williams, Kherkher, Hart & Boundas LLP (collectively, the Law Firms). The Geiers allege that a committee of attorneys, including the Law Firms, retained the Geiers to provide consulting services in support of petitions filed in the U.S. Court of Federal Claims under the National Childhood Vaccine Injury Compensation Act. The petitions filed under the Act alleged that petitioners suffered autism as a result of certain mandatory childhood vaccinations and sought compensation from a government fund. The Geiers contend that the Law Firms failed to pay for consulting services rendered by the Geiers. The Law Firms move to dismiss for lack of personal jurisdiction and for failure to state a claim. While the question of general personal jurisdiction might require discovery, it is not necessary to burden the parties or the Court because the Complaint must be dismissed for failure to state a claim. Certain Counts will be dismissed with prejudice, and others will be dismissed without prejudice.

I. FACTS

A. Petitions for Vaccine Injury

The National Childhood Vaccine Injury Compensation Act, 42 U.S.C. § § 300aa-1-34, established the National Vaccine Injury Compensation Program. The Program permits those who have suffered injury or death allegedly as a result of a compulsory childhood vaccine to petition the federal government for damages. Instead of filing suit against the vaccine manufacturer or administrator, an individual claiming injury can file a petition for " no-fault" compensation against the Secretary

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of Health and Human Services. See 42 U.S.C. § 300aa-11. Such a suit must be filed in the U.S. Court of Federal Claims, located in Washington, D.C. The clerk of court then forwards the case to the Office of Special Masters for assignment to a special master. Id. § 300aa-11(a)(1). A tribunal that hears cases under the Vaccine Injury Compensation Act is commonly referred to as a " Vaccine Court." In Vaccine Court, a claimant is not required to prove negligent design, negligent manufacture, or failure to warn, but he is required to causation--that a covered vaccine caused injury or death. Id. § § 300aa-11(c), -13(a), -22, -23.

Awards from Vaccine Court are payable from the Vaccine Injury Compensation Trust, funded by a federal tax on vaccines. A petitioner has a right to receive reasonable attorneys' fees and costs, even if the Vaccine Court declines to award compensation, so long as the claim was filed in good faith. " [T]he special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition 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." See id. § 300aa-15(e)(1)(B).

B. Petitions Alleging Autism Caused by Vaccines

More than 5,000 petitions were filed in the Court of Federal Claims alleging that claimants suffered autism as a result of mandatory childhood vaccination. King v. Sec'y of HHS, No. 03-584V, 2010 WL 892296, at *5 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). Because such a large group of cases involved a common factual issue, i.e. whether certain vaccines caused autism, the Office of Special Masters conducted a series of informal meetings to decide how to proceed. As a result, the Chief Special Master entered " Autism General Order #1," which created Omnibus Autism Proceedings. See Claims for Vaccine Injuries Resulting in Autism Spectrum Disorder v. Sec'y of HHS, 2002 WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002) (Autism Master File, General Order #1). In the Omnibus Autism Proceedings, the court established a Petitioners' Steering Committee (PSC). Membership in the PSC was to be determined by agreement among counsel, but in the event of a dispute, membership would be resolved by the special master. Id.

The PSC obtained and presented evidence regarding the general issue of whether certain vaccines cause autism and under what circumstances. Id. Then the evidence was applied to six test cases, alleging two general causation theories: (1) that the MMR vaccine [1] and thimerosal-containing vaccines can combine to contribute substantially to the causation of autism; and (2) that thimerosal-containing vaccines alone can contribute substantially to the causation of autism. King v. Sec'y of HHS, No. 03-584V, 2011 WL 5926126, *1-2 (Fed. Cl. Spec. Mstr. Sept. 22, 2011). The special masters uniformly rejected both causation theories, and the petitioners were denied compensation. Id.

C. Retention of the Geiers

On September 18, 2003, Dr. Geier and the PSC entered into a contract for consulting services. Notice of Removal [Dkt. 1], Compl. [Dkt. 1-1], Ex. 1 (Consulting Agreement). The Consulting Agreement provided:

Whereas, Law Firm desires to retain Geier for consulting and/or other related

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services (such as for providing expert testimony), and Geier is willing to be retained on the terms and conditions below,

Now therefore, Geier and Law Firm agree as follows:

1. Recitals

The above recitals are made a substantial part hereof.
2. Services to be performed by Geier.
Obtaining and evaluating VSD [Vaccine Safety Datalink records], screening data, obtaining medical scientific literature as defined by client need.

Consulting Agreement at 1. While expert testimony was contemplated as a possibility, the PSC never called upon Dr. Geier to testify in Vaccine Court. Dr. Geier executed the Consulting Agreement, and Kathleen M. Dailey signed it as " Member NVICP [2] PSC Executive Committee." Id. at 2. At the time, Ms. Dailey was a member of Williams, Dailey, O'Leary, a law firm based in Portland, Oregon. Id. at 1.

On October 8, 2004, the parties amended the Consulting Agreement. The Amendment added Dr. Geier's son, David Geier, as a consultant and altered the timing and terms of payment as follows:

The Geiers understand and agree that they will not be paid for their time on this project until the Vaccine Court has approved their fees, which may not be for two or more years. They are not working on a contingency fee basis but on a deferred fee basis. The PSC will support them in their fee petition and will help to get the Geiers paid fairly and fully at the appropriate time.

Compl., Ex. 2 (Amendment) at 1. [3] The Amendment was signed by Michael L. Williams, " on behalf of the Petitioners' Steering Committee." Mr. Williams is a partner in the Oregon law firm mentioned above. That law firm is now known as Williams, Love, O'Leary & Powers, P.C. (Williams Love).

D. Vaccine Court's Rejection of the Geiers' Claim for Fees

One of the test-case petitioners, Jordan King, petitioned the court for attorney fees, expert costs, and litigation costs. The special master ruled that the petitions were brought in good faith and awarded substantial fees and costs. King, 2011 WL 5926126 at *3-5. The Geiers, together with two other doctors, claimed that they were owed more than $447,000 as compensation for work on an original medical article regarding autism and vaccines. The Vaccine Court determined that the article was produced for the purpose of the litigation and thus was inherently biased. Even more importantly, the court found that the article did not provide any value to the litigation because it was deeply flawed. The data was " dishonest and unacceptable, involving adding numbers which [were] completely invented." Id. at 9. Because " no rational 'hypothetical paying client' of the PSC would have agreed to pay for the production of such a flawed study," the court declined to award compensation for any amounts related to the medical article. Id. at 10. [4]

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In addition to the claim for compensation for work done on the medical article, the Geiers sought over $197,000 for other work. Id. at 25. The special master declined to provide any compensation for the work of David Geier because he was not qualified to serve as a consultant on medical issues. His only academic degree is a Bachelor of Arts with a major in biology. Id. at 26. With regard to Dr. Mark Geier, the court awarded only $33,130.35 in compensation and declined to award any additional amount. The court noted that special masters in other cases had concluded that Dr. Geier was not an honest or candid witness. One special master in particular described Dr. Geier's testimony as " intellectually dishonest" and an " egregious example of blatant, result-oriented testimony." Id. The court also found that despite his claim to the contrary, Dr. Geier was not an expert on the subject of epidemiology. [5] Id. at 15. After the test cases concluded, the PSC disbanded. See Autism Master File, Autism Update Jan. 12, 2011 at 2 (available at http://www.uscfsc/uscourts.gov/node/2718 (last viewed Jan. 23, 2013)).

E. Maryland Lawsuit

In April 2011, the Geiers, father and son, filed suit in the Circuit Court of Maryland for Montgomery County, naming as defendants: (1) the PSC; (2) the Law Firms; (3) Williams Love; (4) Williams Love partner Michael Williams; and (5) Williams Love partner Tom Powers. The Maryland complaint sought to recover the fees and costs that the Vaccine Court declined to award in the Omnibus Autism Proceedings. On May 22, 2012, the Montgomery County Circuit Court dismissed the four Law Firms that are Defendants here for lack of personal jurisdiction. On June 11, 2012, the Geiers ...


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