# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 18, 2020

* * * * * * * * * * * * * *

CARRIE SCHMATZ

, * UNPUBLISHED

*
Petitioner, * No. 1 7

- 1 241 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * *

Jerome A. Konkel

, Samster, Konkel & Safran, S.C., Milwaukee, WI , for Petitioner. Jennifer L. Reynaud , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On April 6 , 2020

, Carrie Schmatz (“Petitioner”) filed a motion for attorneys’ fees and costs.

Petitioner’s Motion for Attorne y Fees (“Fees App.”) (ECF No. 39 ). For the reasons discussed

below, I GRANT Petitioner’s motion for attorneys’ fees and costs and awards a total of
$ 22,568.95

.

I. Procedural History

On September 13 , 2017

, Petitioner filed a petition in the National Vaccine Injury Compensation Program

. 2 Petitioner alleged that s he suffered Guill ain

- Barr é syndrome as a result of receiving an influenza vaccin ation on November 3, 2015

. Petition at 1 (ECF No. 1). On October

18 , 2019 , the parties filed a stipulation, which I adopted as my Decision awarding compensation

1 I intend to post this Ruling on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpu blished ruling contains a reasoned explanation for the action in this

case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services).

2 The National V accine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury

Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2

on the same day

. ( ECF No. 34 )

.

On April 6 , 2020 , Petitioner filed a motion for attorneys’ fees and costs. Petition er re quests compensation for h er atto rne y, M r. Jerome Konkel

, i n the total amount of $ 22,568.95 , representing
$ 18,814.80 i n attorneys’ fees and $ 3,754.15 in costs. Fees App. at 1

. Pursuant to General Order

No. 9, Petitioner warrants s he has not personally incurred any costs in pursuit of h is claim. Id. at

50. Respondent reacted to the fees motion on April 20 , 2020

, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case .” R esponse

at 2 (ECF No. 4 0 ). Petitioner did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Under the Vaccine Act, the special master may award reasonable attorneys ' fees and costs for a petition that does not result in an award of compensation but was filed in good faith and supported by a reasonable basis. § 300aa

– 15(e)(1). Here, because P etiti oner was awarded compensation, s he is entitled to an award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs. , 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is

filed. Id. at 484 n. 1 . The special master has the discretion to reduce awards sua sponte , i ndependent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs. , 86 Fed.

Cl. 201, 208

– 09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs

. , 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99

– 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

Petitioner requests the following rates for the work of h er counsel, Mr. Jerome Konkel : $3 12 .00 per hour for work performed in 2016 , $3 58 .00 per hour for work performed in 2017,
$3 68 .00 per hour for work performed in 2018, and $ 3 78 .00 per hour for work performed in 2019.

These rates are consistent with what Mr. Konkel has previously been awarded for h is Vaccine Program work, and the undersigne d finds them to be reasonable herein. See, e.g., Hogan v. Sec’y
of Health & Human Servs. , No. 18

- 1201V, 2019 WL 5395576 (Fed. Cl. Spec. Mstr. Jul. 19, 2019).

Turning next to review of the submitted billing statement, I find that the overall hours spent

on this matter appear to be reasonable. The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. Respondent also has not identified any particular entries as being objectionable. Therefo re, Petitioner is entitled to final attorneys’ fees of $ 18,814.80

.

b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total3

attorneys’ costs in the amount of $ 3,754.15

. This amoun t is comprised of acquiring medical records and review of those records by Record Reform. Petitioner has provided adequate supporting doc umentation for all the costs, and they appear to be reasonable upon review. Accordingly, Petitioner is awarded the full amount of attorneys’ costs sought.

III. Conclusion

In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

Attorneys’ Fees Requested $ 18,814.80
(Reduction of Fees )

- Total Attorneys’ Fees Awarded $ 18,814.80

Attorneys’ Costs Requested $ 3,754.15
(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 3,754.15

Total Attorneys’ F e es and Costs $ 22,568.95

Accordingly, I award a lump sum in the amount of $ 22,568.95

, representing

reimbursement for P etitioner’s attorneys’ fees and costs, in the form of a che ck payable to

P etitioner and h er attorney, M r. Jerome Konkel

. 3

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

/ s/ Thomas L. Gowen

Thomas L. Gowen Special Master

3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney fr om charging or collecting fees (including costs) that would be in addition to the amount awarded

herein. See generally Beck v. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed. Cir. 1991).

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).