Judges: Thomas L. Gowen
Filed: Sep. 08, 2020
Latest Update: Sep. 09, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 18, 2020 * * * * * * * * * * * * * * CARRIE SCHMATZ, * UNPUBLISHED * Petitioner, * No. 17-1241V * Special Master Gowen v. * * Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent.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. DECI
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 18, 2020 * * * * * * * * * * * * * * CARRIE SCHMATZ, * UNPUBLISHED * Petitioner, * No. 17-1241V * Special Master Gowen v. * * Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent.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. DECIS..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 18, 2020
* * * * * * * * * * * * * *
CARRIE SCHMATZ, * UNPUBLISHED
*
Petitioner, * No. 17-1241V
* 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 COSTS1
On April 6, 2020, Carrie Schmatz (“Petitioner”) filed a motion for attorneys’ fees and costs.
Petitioner’s Motion for Attorney 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 she suffered Guillain-Barré syndrome as a result
of receiving an influenza vaccination 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 unpublished 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 Vaccine 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.
on the same day. (ECF No. 34).
On April 6, 2020, Petitioner filed a motion for attorneys’ fees and costs. Petitioner requests
compensation for her attorney, Mr. Jerome Konkel, in the total amount of $22,568.95, representing
$18,814.80 in attorneys’ fees and $3,754.15 in costs. Fees App. at 1. Pursuant to General Order
No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of his 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.” Response
at 2 (ECF No. 40). 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 Petitioner was awarded
compensation, she 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, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs.,
86 F.
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 her counsel, Mr. Jerome Konkel:
$312.00 per hour for work performed in 2016, $358.00 per hour for work performed in 2017,
$368.00 per hour for work performed in 2018, and $378.00 per hour for work performed in 2019.
These rates are consistent with what Mr. Konkel has previously been awarded for his Vaccine
Program work, and the undersigned 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. Therefore, 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 total
2
attorneys’ costs in the amount of $3,754.15. This amount is comprised of acquiring medical
records and review of those records by Record Reform. Petitioner has provided adequate
supporting documentation 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’ Fees and Costs $22,568.95
Accordingly, I award a lump sum in the amount of $22,568.95, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Mr. 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 from 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).
3
