Monday, April 07, 2008

In the matter of Shoemaker v. Seidel; Court of public opinion; The Hon. Bugs Bunny Presiding.

Thanks in part to it being April, Autism Awareness Month, the Neurodiversity Weblog has managed to set of a minor firestorm, both within and increasingly outside of the core Autism blogging community. But not all by themselves.

They had help from an unlikely source in bringing wider attention to the post which in the normal course of events, would have remained unnoticed by the great majority and certainly widely ignored within the blogging community of the Law, though the author, Kathleen Seidel is well-known within the Autism community.

The story itself is about a particular settlement in vaccine court, which is being cited by "mercury moms" as being "proof" that mercury really does cause autism, though it was judged as being possible in this quite particular case and Vaccine Court standards do not rise to even the "balance of probability" standards of ordinary civil court.

neurodiversity weblog: The Commerce in Causation:

"News outlets have been brimming with the story of Poling v. HHS — the first Vaccine Injury Compensation Program (VICP) claim included in the Omnibus Autism Proceeding (OAP) that has resulted in an award to petitioners. The case first attracted widespread attention on February 25, when Evidence of Harm author David Kirby issued a triumphant proclamation of the award on the Huffington Post. This was followed the next day by Mr. Kirby’s publication of the partially-redacted text of a theretofore confidential U.S. Department of Health and Human Services (HHS) report, which recommended compensation to Miss Hannah Poling due to the likelihood that a vaccine reaction aggravated a maternally-inherited metabolic disorder and led to development of a seizure disorder."
The article goes on to examine the economic motives of one particular player in this somewhat sad and misleading tale in the usual dispassionate impersonally merciless way Neurodiversity is known for. The article reveals that there is another peculiartity of Vaccine Court - council is paid regardless of outcome.

And the council in this case is the same as in many, many, MANY other cases.

This storm of publicity surrounding Poling v. HHS has prominently featured career vaccine-injury attorney Mr. Clifford Shoemaker — a founding member of the Omnibus Autism Proceeding Petitioners’ Steering Committee, counsel to the Poling family, and long-time business associate of Dr. Mark Geier.


Now, this would not embarrass any ordinary attorney; a specialty is something that you get rewarded for doing because you are very, very good at it. It's what lets you eat steak instead of rice and beans, and that's something worth having known, even if you are very very good at something that many folks would consider kind of - well, grasping, opportunistic and mercenary, like say, "Ambulance Chasing."

But Seidel 's article reveals that if Mr. Clifford Shoemaker had to rely on making successful personal injury tort claims in a court of law with the usual standards of evidence, and on a contingency fee - he'd probably need a second job.

Over the last 18 months, he's 7 for 15, but either way, he gets paid. Now, you might wonder if that is because he doesn't feel the need to be selective - considering he gets paid either way. That was my initial thought. Cynical, perhaps; opportunistic, of course - but not presumptive of incompetence.

But to "deal with" Seidel he decided a quick and dirty variant of a SLAPP suit was in order.

He had Seidel served with a subpoena that - well aside from it's obvious tactical and punitive character, also serves to inadvertently, but clearly demonstrate the reason he's working in this "sheltered workshop" of the Law. If you don't wish to read the whole, Paragraph 9 is a howler; while paragraph five clearly indicates that he has at least mastered the copy function in a browser - it's contents being neurodiversity's blogroll!

In the inimitable words and tones of Tweety Bird: "He don't KNOW me vewwy well, DO he?"

Siedel's response is a masterpiece of classic aspergean reasoning - and demonstrates a far better grasp of both the relevant law and the relevant political climate than that of the supposed professional

Compare the subpoena to Sidel's pro se "motion to quash." It's the difference between an elegant and spare recorder solo - and a TAPE recorder solo.

Quite aside from your position regarding the causation of autism and who may be responsible for it, which person would you want drafting a brief in support of your cause?

Indeed, which person would you want working at your law firm? I raise a toast to the imaginary firm of "Dawson And Seidel"

It's not an entirely silly idea, is it?

Related Reading Update:
New York Personal Injury Law Blog: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena

Great article and links to other blog reactions.

1 comment:

Liz Ditz said...

"Court of Bugs Bunny" -- very funny.

I am one of the 100+ bloggers mentioned in item 5 of the subpoena.

I am keeping a running list of responses to the Seidel subpoena at I Speak of Dreams.

Thanks for sending me the link to this post so that I could add it to the list.

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