In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1063V
Filed: September 12, 2016
Not for Publication
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JOHN LOVELADY, *
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Petitioner, *
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Attorneys’ fees and costs decision;
v. *
reasonable attorneys’ fees and
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costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
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Respondent. *
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Ronald C. Homer, Boston, MA, for petitioner.
Lisa A. Watts, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
On October 31, 2014, petitioner filed a petition for compensation under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioner alleged he
developed polymyalgia rheumatica as a result of his receipt of the tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine on January 2, 2013. On January 29, 2016, the undersigned issued a
decision dismissing the case for failure to make a prima facie case under the Vaccine Act.
On May 25, 2016, petitioner filed a motion for attorneys’ fees and costs. Petitioner
requested attorneys’ fees in the amount of $23,894.45, attorneys’ costs in the amount of
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
$2,571.52, and costs in the amount of $341.94, for a total request of $26,807.91.
On June 9, 2016, respondent filed a response to petitioner’s motion explaining that she is
satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs
under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. However, respondent states that her
“estimation of reasonable attorneys’ fees and costs for the present case roughly falls between
$9,000.00 and $15,000.00.” Id. at 3. Respondent bases this estimate on a “survey of fee awards
in similar cases and her experience litigating Vaccine Act claims.” Id. She also cites one case in
which a petitioner was awarded $15,757.19 in attorneys’ fees and costs. Sease v. Sec’y of HHS,
No. 11-228V, 2012 WL 5921066 (Fed. Cl. Spec. Mstr. Nov. 6, 2015). The petitioner in Sease
was represented by Conway, Homer & Chin-Caplan (“CHCC”). Id. The case was dismissed for
failure to make a prima facie case under the Vaccine Act. Id.
On June 20, 2016, petitioner filed a ten-page reply to respondent’s response to his
application for attorneys’ fees and costs. In his reply, petitioner objects to respondent’s method
of providing a range of reasonable attorneys’ fees and costs. Reply at 6-7. He argues that
“blanket” objections and vague responses “have routinely been rejected by Special Masters.” Id.
at 5. Petitioner contends that “[n]egotiated settlements for attorneys’ fees and costs are clearly
the best practice,” and states that if petitioner does not want to participate in negotiating fees,
“perhaps [she] should no longer participate at all.” Id. at 9. Petitioner requests an additional
$474.50 in attorneys’ fees and costs for drafting the reply, for a total request of $27,282.41.
On June 27, 2016, respondent filed a sur-response to petitioner’s reply. In the sur-
response, respondent attempts to clarify why she is no longer negotiating fee awards with
petitioners. Sur-reply at 1. She briefly reviews the history of respondent’s role in determining
appropriate attorneys’ fees and costs awards in vaccine cases and comes to the conclusion that
her previous approach of negotiating fee settlements and/or providing detailed objections to fee
requests often “had the antithetical result of leading to more litigation over fees and to higher fee
awards . . . .” Id. at 1.
Petitioner filed a sur-reply on July 1, 2016. Petitioner states that he does not want to
“engage in protracted briefing regarding his fees,” but “he must respond to certain inaccuracies
in the respondent’s [sur-response].” Sur-reply at 1. Petitioner then goes on to explain CHCC’s
experience in settling attorneys’ fees and costs applications with respondent before her recent
approach of providing ranges of reasonable fee awards. Petitioner requests an additional
$710.00 for drafting the sur-reply, for a total request of $27,992.41.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in
order to receive a fee award as long as petitioner brought the claim in “good faith and there was a
reasonable basis for the claim.” Id. The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3
2
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
Respondent bases her range on “experience in similar cases under the Vaccine Act.”
Resp’t’s Resp. at 3. The undersigned does not find respondent’s argument persuasive. It is not
necessarily instructive to compare cases involving similar procedural histories in order to
determine the appropriate amount of attorneys’ fees and costs. Each case in the Vaccine
Program is different. Even petitioners alleging the same vaccine injury may have vastly
dissimilar medical histories, and, consequently, different numbers of medical records petitioners’
attorneys need to locate, file, and review.
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds that the majority of petitioner’s attorneys’ fees and costs request is reasonable.
Petitioner’s request for supplemental attorneys’ fees for the time his attorney spent drafting the
reply is reasonable. However, the additional $710.00 in fees requested for attorneys’ sur-reply
are unreasonable. In the sur-response and sur-reply filed in this case, respondent and petitioner
argue over respondent’s new approach to applications for attorneys’ fees and costs. The parties
do not comment on the instant case. The undersigned is aware of respondent’s new approach of
choosing not to negotiate fees, and the history involving CHCC and Special Master Gowen’s
decision in McCulloch. McCulloch v. Sec’y of HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015). Petitioner’s sur-reply did not add anything new to the undersigned’s
understanding the attorneys’ fees and costs issue in the instant case. Therefore, the undersigned
will not award the additional $710.00 requested by petitioner for his attorney’s time drafting the
sur-reply.
The undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs.
Accordingly, the court awards:
a. $26,940.47, representing attorneys’ fees and costs. The award shall be in the form of
a check made payable jointly to petitioner and Conway, Homer & Chin-Caplan, P.C.
in the amount of $26,940.47; and
b. $341.94, representing petitioner’s costs. The award shall be in the form of a check
made payable to petitioner for $341.94.
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. 2
IT IS SO ORDERED.
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3
Dated: September 12, 2016 s/ Laura D. Millman
Laura D. Millman
Special Master
4