Matsel v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0478V

ROYANN MATSEL, as wife and representative of Chief Special Master Corcoran THE ESTATE OF DAVID MATSEL, Filed: June 6, 2024 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Mark Paul Schloegel, Popham Law Firm, Kansas City, MO, for Petitioner.

Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On April 28, 2022, Royann Matsel, as wife and representative of the Estate of David Matsel filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that David Matsel suffered Guillain-Barre Syndrome (“GBS”), resulting in his

1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision 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.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). death, as a result of an influenza vaccine received on September 15, 2020. Petition at 1.

On August 30, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 30.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $29,827.31 (representing $29,219.25 in fees plus $608.06 in costs). Petitioner’s Application for Attorneys’ Fees (“Motion”) filed January 16, 2024, ECF No. 35. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred out-of-pocket expenses in the amount of $2,584.00 in estate planning costs. ECF No. 35 - 3.

Respondent reacted to the motion on January 17, 2024, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion.

Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 36. Petitioner filed no reply.

I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF Nos. 38 - 39. Respondent offered no specific objection to the rates or amounts sought.

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, Petitioner is awarded the total amount of $32,411.31 as follows: • A lump sum of $29,827.31, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Mark Schloegel; and • A lump sum of $2,584.00, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 3

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master