VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-02016 Package ID: USCOURTS-cofc-1_19-vv-02016 Petitioner: Kimberly Draeger Filed: 2019-12-31 Decided: 2024-10-15 Vaccine: influenza Vaccination date: 2017-09-14 Condition: acute disseminated encephalomyelitis (ADEM) Outcome: compensated Award amount USD: 179606 AI-assisted case summary: Kimberly Draeger filed a petition on December 31, 2019, alleging that an influenza vaccine administered on September 14, 2017, caused acute disseminated encephalomyelitis. The public stipulation materials do not provide a detailed neurologic treatment narrative. Respondent denied that Ms. Draeger's alleged ADEM or residual effects were caused-in-fact by the flu vaccine, and denied that the vaccine caused any other injury or current condition. The parties nevertheless resolved the case by stipulation. Special Master Sanders adopted the stipulation on October 15, 2024. Ms. Draeger received a lump-sum injury award of $179,606.00 for all damages available under the Vaccine Act. A later fee decision concerned attorney fees and costs only. She was represented by Scott B. Taylor of Urban & Taylor, S.C. in Milwaukee, Wisconsin. Theory of causation field: Influenza vaccine on September 14, 2017 allegedly causing acute disseminated encephalomyelitis (ADEM). COMPENSATED by stipulation, not by admitted causation. Respondent denied vaccine causation, residual effects, other injury, and current sequelae. Public stipulation gives limited clinical detail. Petition filed December 31, 2019; decision by SM Sanders on October 15, 2024. Award $179,606 lump sum. Later fee award was attorney compensation only. Attorney: Scott B. Taylor, Urban & Taylor, S.C., Milwaukee WI. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-02016-0 Date issued/filed: 2024-11-15 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 10/15/2024) regarding 52 DECISION Stipulation/Proffer. Signed by Special Master Herbrina D S Young. (krt) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 1 of 7 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 15, 2024 * * * * * * * * * * * * * * * KIMBERLY DRAEGER, * No. 19-2016V * Petitioner, * Special Master Sanders * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Scott B. Taylor, Urban & Taylor, S.C., Milwaukee WI, for Petitioner. Benjamin Rex Eisenberg, U.S. Department of Justice, Washington, DC, for Respondent. DECISION1 On December 31, 2019, Kimberly Draeger, (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2018). Petitioner alleged that the influenza (“flu”) vaccine she received on September 14, 2017, caused her to suffer from acute disseminated encephalomyelitis (“ADEM”). Pet. at 3, ECF No. 1. On October 11, 2024, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Stipulation ¶ 7, ECF No. 51. Respondent “denies that [P]etitioner’s alleged ADEM or its residual effects were caused-in-fact by the [flu] vaccine; and denies that the [flu] vaccine caused [P]etitioner any other injuries or [P]etitioner’s current condition.” Id. ¶ 6. Nevertheless, the parties agree to the joint stipulation. See id. ¶ 7. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. 1 Because 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. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 2 of 7 The parties stipulate that Petitioner shall receive the following compensation: A lump sum of $179,606.00, in the form of a check payable to Petitioner. Id. ¶ 8. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 3 of 7 Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 4 of 7 Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 5 of 7 Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 6 of 7 Case 1:19-vv-02016-UNJ Document 56 Filed 11/15/24 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-02016-cl-extra-10741420 Date issued/filed: 2024-11-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10274830 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 15, 2024 * * * * * * * * * * * * * * * KIMBERLY DRAEGER, * No. 19-2016V * Petitioner, * Special Master Sanders * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Scott B. Taylor, Urban & Taylor, S.C., Milwaukee WI, for Petitioner. Benjamin Rex Eisenberg, U.S. Department of Justice, Washington, DC, for Respondent. DECISION1 On December 31, 2019, Kimberly Draeger, (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2018). Petitioner alleged that the influenza (“flu”) vaccine she received on September 14, 2017, caused her to suffer from acute disseminated encephalomyelitis (“ADEM”). Pet. at 3, ECF No. 1. On October 11, 2024, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Stipulation ¶ 7, ECF No. 51. Respondent “denies that [P]etitioner’s alleged ADEM or its residual effects were caused-in-fact by the [flu] vaccine; and denies that the [flu] vaccine caused [P]etitioner any other injuries or [P]etitioner’s current condition.” Id. ¶ 6. Nevertheless, the parties agree to the joint stipulation. See id. ¶ 7. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. 1 Because 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. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. The parties stipulate that Petitioner shall receive the following compensation: A lump sum of $179,606.00, in the form of a check payable to Petitioner. Id. ¶ 8. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_19-vv-02016-cl-extra-11309934 Date issued/filed: 2026-04-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10842579 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 29, 2026 * * * * * * * * * * * * * * KIMBERLY DRAEGER, * * Petitioner, * No. 19-2016V * v. * Special Master Young * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI for Petitioner. Voris Edward Johnson, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On December 31, 2019, Kimberly Draeger (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to -34 (2018)2 (the “Vaccine Act” or “Program”). Petitioner alleged that the influenza (“flu”) vaccine she received on September 14, 2017, caused her to suffer from acute disseminated encephalomyelitis (“ADEM”). Pet. at 3, ECF No. 1. On October 11, 2024, the parties filed a joint stipulation, which I adopted as my decision awarding compensation on October 15, 2024. ECF No. 52. On April 1, 2025, Petitioner filed a motion for attorneys’ fees and costs. Pet’r’s Mot. for AFC, ECF No. 57. Petitioner requests total attorneys’ fees and costs in the amount of $77,031.69, representing $17,469.00 in attorneys’ fees and $54.37 in attorneys’ costs associated with representation by Urban & Taylor, S.C., as well as $46,175.50 in attorneys’ fees and $13,332.82 1 Because 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. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. in costs associated with representation by Attorney Jerome A. Konkel. Pet’r’s Mot. for AFC at 8– 9.. Pursuant to General Order No. 9, Petitioner represents that she did not personally incur any costs related to the prosecution of her petition. Pet’r’s Mot. for AFC, Ex. E-E. Respondent responded to the motion on May 12, 2025, stating that Respondent “is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2, 4, ECF No. 58. Petitioner did not file a reply. This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of her or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because Petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. A. Reasonable Hourly Rates 2 The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules can be accessed online.3 1. Urban & Taylor, S.C. Petitioner requests the following hourly rates for the work of her counsel, Attorney Scott B. Taylor: $482.00 per hour for work performed in 2023, and $538.00 per hour for work performed in 2024. These rates are consistent with what counsel has previously been awarded, and I find them to be reasonable herein. 2. Attorney Jerome A. Konkel Petitioner requests the following hourly rates for the work of Attorney Jerome A. Konkel and his associates: for Mr. Konkel, $368.00 per hour for work performed in 2018, $378.00 per hour for work performed in 2019, $433.00 per hour for work performed in 2020, $455.00 per hour for work performed in 2021, $490.00 per hour for work performed in 2022, $525.00 per hour for work performed in 2023, and $555.00 per hour for work performed in 2024; for Mr. Ryan Truesdale, $325.00 per hour for work performed in 2021 and $350.00 per hour for work performed in 2022; and, for Ms. Jubaile, $289.00 per hour for work performed in 2023 and $305.00 per hour for work performed in 2024. Petitioner also requests rates between $112.00 per hour and $182.00 per hour for work performed by paralegal Jennifer Varga from 2018-2025. These rates are consistent with what counsel and Ms. Varga have previously been awarded, and I find them to be reasonable herein. B. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon review, I find the overall hours billed to be reasonable. Counsel have provided sufficiently detailed descriptions for the tasks performed, and upon review, I do not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees as follows: $17,469.00 for the work performed by Urban & Taylor, S.C., and $46,175.50 for the work performed by Attorney Konkel. C. Costs 3 The OSM Fee Schedules are available at: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly- rate-fee-schedules. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. 3 Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). 1. Urban & Taylor, S.C. Petitioner requests a total of $54.37 in attorneys’ costs for postage. Pet’r’s Mot. for AFC, Ex. C. Petitioner has provided adequate documentation supporting this cost and is therefore awarded the full amount sought. 2. Attorney Jerome A. Konkel Petitioner requests a total of $13,332.82 in attorneys’ costs comprised of acquiring medical records, the Court’s filing fee, medical records review and chronology services provided by Record Reform ($1,295.00), and expert services provided by Derek Smith, M.D. Pet’r’s Mot. for AFC, Exs. E-B, E-C, E-D. Petitioner requests reimbursement for expert services performed by Dr. Smith at $500.00 per hour for 20.2 hours totaling $10,100.00. Pet’r’s Mot. for AFC, Ex. E-D. Dr. Smith’s requested rate is reasonable and will therefore be awarded. Petitioner has provided adequate documentation supporting the remaining costs and is therefore awarded the full amount sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), I have reviewed the billing records and costs in this case and find that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, I find that it is reasonable to compensate Petitioner and her counsel as follows: Urban & Taylor, S.C. Attorneys’ Fees Requested $17,469.00 (Reduction of Fees) - Total Attorneys’ Fees Awarded $17,469.00 Attorneys’ Costs Requested $54.37 (Reduction of Costs) - Total Attorneys’ Costs Awarded $54.37 Total Attorneys’ Fees and Costs $17,523.37 (Urban & Taylor, S.C.) Attorney Jerome A. Konkel Attorneys’ Fees Requested $46,175.50 (Reduction of Fees) - Total Attorneys’ Fees Awarded $46,175.50 Attorneys’ Costs Requested $13,332.82 (Reduction of Costs) - 4 Total Attorneys’ Costs Awarded $13,332.82 Total Attorneys’ Fees and Costs $59,508.32 (Attorney Jerome A. Konkel) Total Attorneys’ Fees and Costs $77,031.69 Accordingly, I award following: 1) A lump sum in the amount of $17,523.37, representing reimbursement for Petitioner’s attorneys’ fees and costs incurred by Urban & Taylor, S.C., to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. 2) A lump sum in the amount of $59,508.32, representing reimbursement for Petitioner’s attorneys’ fees and costs incurred by Attorney Jerome A. Konkel, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.4 IT IS SO ORDERED. s/Herbrina D. S. Young Herbrina D. S. Young Special Master 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 5