VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01445 Package ID: USCOURTS-cofc-1_20-vv-01445 Petitioner: Timothy Schwalbe Filed: 2020-10-23 Decided: 2024-07-08 Vaccine: pneumococcal 13-valent conjugate (Prevnar-13) Vaccination date: 2018-06-11 Condition: severe psoriasis flare Outcome: compensated Award amount USD: 10000 AI-assisted case summary: On October 23, 2020, Timothy Schwalbe filed a petition alleging that a pneumococcal conjugate vaccination administered on June 11, 2018 caused injuries including a severe psoriasis flare. He alleged that the residual effects lasted for more than six months. Respondent denied that the pneumococcal immunization caused the psoriasis flare or any other injury, and also denied that vaccination significantly aggravated any condition. The public stipulation decision does not describe the onset of the skin flare, dermatology findings, treatment course, medication response, or any expert causation theory. Special Master Daniel T. Horner adopted the parties' stipulation on July 8, 2024. Mr. Schwalbe received $10,000.00 as a lump sum payable directly to him for all damages available under the Vaccine Act. A later July 30, 2025 decision addressed attorneys' fees and costs only and did not add injury compensation. Theory of causation field: Adult petitioner; Prevnar-13/pneumococcal conjugate vaccine June 11, 2018; alleged severe psoriasis flare/significant aggravation. COMPENSATED by stipulation. Respondent denied causation and significant aggravation; public merits text lacks dermatology chronology or expert mechanism. Award $10,000.00 lump sum. SM Horner July 8, 2024. Petition filed October 23, 2020. Attorney: Jerome A. Konkel. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01445-0 Date issued/filed: 2024-08-05 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 7/8/2024) regarding 78 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1445V Filed: July 8, 2024 TIMOTHY SCHWALBE, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jerome A. Konkel, Samster Konkel and Safran, Wauwatosa, WI, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On October 23, 2020, petitioner 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 he suffered injuries, including a severe psoriasis flare, as a result of his June 11, 2018 pneumococcal 13-valent conjugate (“Prevnar-13”) vaccination. Petition at 1; Stipulation, filed July 8, 2024, at ¶¶ 2, 4. Petitioner further alleges that he has experienced the residual effects of his condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of his condition, and that his vaccine was administered in the United States. Petition at 1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that the pneumococcal immunization is the cause of petitioner’s alleged psoriasis flare and/ or any other injury. Respondent further denies that vaccination significantly aggravated any alleged condition.” Stipulation at ¶ 6. 1 Because this document 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 document 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. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 2 of 7 Nevertheless, on July 8, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $10,000.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 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. 2 Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 3 of 7 Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 4 of 7 Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 5 of 7 Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 6 of 7 Case 1:20-vv-01445-UNJ Document 82 Filed 08/05/24 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01445-cl-extra-11167859 Date issued/filed: 2025-10-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10701272 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1445V Filed: July 30, 2025 TIMOTHY SCHWALBE, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jerome A. Konkel, Samster Konkel and Safran, Wauwatosa, WI, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On December 26, 2019, Timothy Schwalbe filed a petition under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that he suffered injuries, including a severe psoriasis flare, as a result of his June 11, 2018 pneumococcal 13-valent conjugate (“Prevnar-13”) vaccination. Petition at 1. On July 8, 2024, the parties filed a stipulation, which I adopted as my decision awarding compensation on the same day. (ECF Nos. 77-78). On January 6, 2025, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 83) (“Fees App.”). Petitioner requests the following compensation: attorneys’ fees and costs in the amount of $76,419.87, representing $60,634.60 in fees and $15,785.27 in costs. Fees App. Tab A. Petitioner warrants he did not personally incur any costs in pursuit of this claim. Fees App. Ex. D. On July 8, 2024, respondent filed a response to 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), Petitioners have 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. 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). petitioner’s motion. (ECF No. 84). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys' fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully requests that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 4. 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 costs. § 15(e). 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, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347- 48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 894-95. 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. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of 2 Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. a. Hourly Rates Petitioner requests the following rates of compensation for his attorneys: for Mr. Jerome Konkel: $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, $350.00 per hour for work performed in 2022, and $370.00 per hour for work performed in 2023; for Ms. Jubaile Abila: $289.00 per hour for work performed in 2023, and $305.00 per hour for work performed in 2024. See Fees App. Ex. A. Additionally, Petitioner requests between $112.00 to $197.00 per hour for work performed by paralegal Jennifer Varga from 2019-2025. See id. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and I find them to be reasonable herein. I shall also award the requested paralegal time at the provided rates. b. Hours Expended 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. While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Upon review, the overall number of hours billed appears to be reasonable. I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $60,634.60. c. Attorneys’ Costs 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). Petitioner requests a total of $15,785.27 in attorneys’ costs. Fees App. at 1. These costs are comprised of acquisition of medical records, medical records translation services, postage, the Court’s filing fee, and expert services provided by Dr. totaling $3,580.00 and by Dr. Jashin Wu totaling $10,949.00. Fees App. Ex. B at 37. 3 These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought.3 II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the billing records and costs in this case and finds that petitioner’s request for fees and costs is reasonable. I find it reasonable to compensate petitioner and his counsel as follows: a lump sum in the amount of $76,419.87, representing reimbursement for petitioner’s attorneys’ fees and costs, 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 shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 In awarding the full amount of costs sought, I am not specifically endorsing any particular hourly rate for the work of Dr. Wu. Rather, I find that the total amount billed for Dr. Wu’s work is reasonable, and respondent did not identify with particularity any objection. 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). 4