Taylor Avila v. HHS - DTaP, seizure syndrome (2009)

On June 22, 2005, Robert and Heather Avila, as legal representatives for minor child Taylor Avila, filed a claim under the National Vaccine Injury Compensation Program. They alleged that a DTaP vaccination caused Taylor to suffer from a "seizure syndrome." The Special Master, George L.

Hastings, denied the compensation claim on June 18, 2008, finding that Taylor's injury was not listed on the Vaccine Injury Table and that the petitioners could not prove the vaccine actually caused the injuries, as the records did not contain a medical expert's opinion supporting causation. The petitioners did not appeal this decision.

Subsequently, the petitioners filed a petition for attorneys' fees and costs on October 8, 2008, seeking $14,558.89. On June 26, 2009, the Special Master awarded $9,882.89 in attorneys' fees and costs.

This award was based on the "forum rate" exception, applying local Cheyenne, Wyoming rates rather than higher District of Columbia rates, as established in Avera v. Secretary of Health & Human Services.

The Special Master reasoned that the attorney, Robert T. Moxley, performed all work in Cheyenne, Wyoming, where prevailing rates are significantly lower than in the District of Columbia.

The petitioners argued that a separate market for complex federal litigation existed in Cheyenne, with rates comparable to the District of Columbia, and challenged the Special Master's rejection of the affidavit from Cheyenne attorney Donald I. Schultz as insufficient evidence.

The court reviewed the Special Master's decision regarding attorneys' fees and costs, affirming the award of $9,882.89. The court found that while the Special Master may have erred in requiring specific details from Mr.

Schultz's affidavit, the affidavit was still insufficient to establish prevailing Cheyenne rates for Vaccine Act practice. The court found Mr.

Moxley's own declarations to be more persuasive. The court also denied the petitioners' motion for interim attorneys' fees pending appeal, finding they did not meet the standards set forth in Avera, as the proceedings were not protracted, no costly experts were retained, and the amount awarded was not substantial.

The court noted that the core issue on appeal was attorneys' fees, not the merits of the compensation claim. The court affirmed the Special Master's decision on attorneys' fees, finding no abuse of discretion in the application of the Davis exception and the rejection of certain evidence regarding prevailing rates.