Lovelady v. Secretary of Health and Human Services, 14-1063

Petitioner filed a Vaccine Act claim alleging polymyalgia rheumatica from a Tdap vaccination; the case was dismissed for failure to make a prima facie case.
Petitioner filed an attorneys’ fees and costs application requesting $27,282.41 (including supplemental requests for time drafting post-response briefs).
Respondent agreed the statutory requirements for an award were met but proposed a much lower reasonable range ($9,000–$15,000) based on experience and survey of similar cases, and explained she would no longer negotiate fee awards in detail.
Petitioner objected to respondent’s use of a range and sought additional fees for drafting a reply and a sur-reply; respondent filed a sur-response explaining her changed approach.
The special master reviewed the billing records, awarded the bulk of petitioner’s requested fees and costs, allowed fees for drafting the reply, but denied the additional $710 requested for the sur-reply as unnecessary.
Final award: $26,940.47 to petitioner and counsel jointly for attorneys’ fees and costs, and $341.94 to petitioner for costs; judgment to be entered absent review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Entitlement to fees after dismissal	Fees are warranted because claim was brought in good faith and had a reasonable basis	Respondent concedes statutory requirements satisfied	Fees permitted under Vaccine Act despite dismissal; entitlement established
Reasonableness of total fee request	Original billing supports requested amount ($23,894.45 fees; $2,571.52 costs plus expenses)	Proposes a lower reasonable range ($9,000–$15,000) based on survey/experience	Special master found bulk of petitioner’s request reasonable and awarded most fees and costs
Fees for drafting reply brief	Time reasonably spent responding to respondent’s objections; requests $474.50 additional	Implicitly opposes excessive or duplicative briefing	Awarded supplemental fees for the reply as reasonable
Fees for drafting sur-reply addressing respondent’s policy change	Requests $710 more for sur-reply to correct respondent’s assertions	Argues sur-reply and respondent’s sur-response led to unnecessary briefing	Denied the $710 for sur-reply as it added nothing material to the court’s understanding

Perreira v. Sec’y of HHS, 27 Fed. Cl. 29 (1992) (special master has wide discretion in reviewing fee applications)
Perreira v. Sec’y of HHS, 33 F.3d 1375 (Fed. Cir. 1994) (affirming discretion in fee determinations)
Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517 (Fed. Cir. 1993) (recognizing special masters’ use of prior experience in fee review)