# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 0

- 493 V

(not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

YOLANDA MAZUREK, as Guardian Ad Litem *

for minor son, Q.M.

, * Special Master Corcoran

*

*

Petitioner, * Filed: May 31 , 2017

*

v. * Decision; Attorney’s Fees and Costs.

*

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES

, *

*

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Neal Jordan Fialkow

, Neal Fialkow, Esq.

, Pasadena

, CA

, for Petitioner

.

Linda Sara Renzi

, U. S. Dep ’ t of Justice, Washington, DC, for Respondent

.

DECISION AWARDING FINAL ATTORNEY’S FEES AND COSTS 1

On July 29, 2010

, Yolanda Mazurek filed a petition on behalf of her minor child, Q.M.,

seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine

Program”)

. 2 Petitioner alleges t hat Q.M. suffered from seizure activity, expressive language

disorder, learning disabilities, and developmental delays as a result of his August 21, 2007, receipt

of the Hepatitis B (“Hep B”), Haemophilus Influenzae type B (“HIB”), Diphtheria

- Tetanus

acell ular Pertusis (“DTaP”), IPV, Prevnar, and Rotavirus vaccines. The parties eventually filed a

1 This Decision has been designated “not to be published,” which means I am not directing it to be posted on the Court

of Federal Claims’s website. However, it will nevertheless be published l ater, in accordance with the E

- Government

Act of 2002, 44 U.S.C. § 3501 (201 2). As provided by 42 U.S.C. § 300aa

- 12(d)(4)(B), however, the parties may object

to the published decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule

18(b), each party has fourteen days within which to reque st redaction “of any information furnished by that party: (1)

that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes

medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”

Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its present form

. Id

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 9 9

- 660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12) (“Vaccine Act” or “the Act”)

. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix)2

stipulation for damages on November 4, 2016 (ECF No. 88 ), which I adopted as my decision on

damages the same day. ECF No. 89

.

Petitioner has now filed a motion , dated May 3, 2017

, requesting final attorney’s fees and

costs

. See ECF No. 97 (“Fees Mot.”) . Petitioner requests reimbursement of attorney’s fees and

cos ts in the combined amount of $ 115,761.01 ($ 85,779.17 in attorney’s fe es

, plus $ 29,981.84 in

costs). 3 Id . at 1 . Respondent filed a document react i ng to the fees request on May 24 , 2017,

indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and

costs are met in this case, but deferring to my discretion the determination of the amount to be

awarded. ECF No. 98 at 2.

A s a successful Vaccine Program p etitioner, Ms. M azurek is entitled to a fees and costs

award. Although I have not previously decided if Petitioner’s present counsel

— Neal Jordan

Fialkow E sq.

— is entitled to forum rates , other special masters have found that attorneys similarly

geographically located (in the Los Angeles area) were c onsidered to practice in

- forum

. See e.g.,

Davis v. Sec’y of Health & Human Servs.

, No. 1 4

- 978 V, 2017 WL 656304 (Fed Cl. Spec. Mstr.

Jan. 23, 2017 ) ; Gomez v. Sec’y of Health & Human Servs. , No. 15

- 160V, 2017 WL 587228, at *2

(Fed Cl. Spec. Mstr. Jan. 18, 2017)

. Mr. Fialkow has over 20 years’ experience in the Program

, and another ten years’ experience with va ccine claims prior to the program’s inception. Fees

Motion at 11. Following suit with the other special masters (although not binding on my decision),

I will award Mr. Fialkow the top end of forum rate

— $425 per hour

, consistent with his years of

relevant experience. In addition, t he hours expended on this matter appear to be reasonable.

T he requested litigation costs in this case were somewhat high

— $29,981.84

— as they

included not only copying and filing fees

, but also expenses related to hiring a life care planner,

conservatorship issues, and expert fees

. After generally reviewing the costs expended, I find that

they are reasonable under the circumstances and complexity of this case

, and I will award them in

full.

I hereby GRANT Petit ioner’s motion for attorney’s fees and costs. Accordingly, a n award

of $ 115

, 761. 0 1 should be made in the form of a check payable jointly to Petitioner and Petitioner’s

counsel, Neal Fialkow , Esq. Payment of this amount represents all attorney’s fees and costs

available under 42 U.S.C. § 300aa

- 15(e). In the absence of a motion for review filed pursuant to

3 Petitioner did not mention or reference General Order No. 9 in her application for attorney’s fees and costs. I find

that the Petitioner has waived her right to recover any unreimbursed costs not already awarded herein, given the

amount of time that has passed since the damages award in November 2016.3

RCFC Appendix B, the clerk of the Court SHALL ENTER JUDGMENT in accordance with the

term s of this decision. 4

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (j ointly or separately) they file notices

renouncing their right to seek review.