Milan Harper v. HHS - Tdap, Shoulder Injury Related to Vaccine Administration (SIRVA) (2021)

Milan Harper filed a petition for compensation under the National Vaccine Injury Compensation Program on February 8, 2018, alleging a Shoulder Injury Related to Vaccine Administration (SIRVA) resulting from a tetanus-diphtheria-acellular pertussis (Tdap) vaccine she received on December 29, 2016. At the time of vaccination, Ms.

Harper was 31 weeks pregnant. Her shoulder pain began within 48 hours of the vaccination and progressed to the point where she could not lift her left arm.

She was hospitalized for four days. Subsequently, she received intermittent treatment for her shoulder injury for approximately three years, including orthopedic evaluations, a steroid injection, and recommendations for surgery and physical therapy, though she did not undergo surgery.

The respondent, the Secretary of Health and Human Services, initially argued that the petitioner failed to meet the threshold severity requirement of suffering residual effects for more than six months. However, following a Finding of Fact by Chief Special Master Brian H.

Corcoran on October 28, 2020, that the petitioner did meet this requirement, the respondent elected not to defend the case. The respondent's Supplemental Rule 4(c) Report indicated that the Division of Injury Compensation Programs determined the petitioner's medical course was consistent with SIRVA as defined by the Vaccine Injury Table, noting no recent history of shoulder pain or dysfunction, onset within 48 hours of vaccination, pain limited to the vaccinated shoulder, and no other identified condition to explain the pain.

On November 16, 2020, Chief Special Master Corcoran issued a Ruling on Entitlement, finding the petitioner entitled to compensation. The parties subsequently stipulated to $4,185.03 for unreimbursed expenses but disputed the amount for pain and suffering.

Following a hearing on September 24, 2021, Chief Special Master Corcoran issued a Decision Awarding Damages on October 8, 2021. He awarded Ms.

Harper $92,000.00 for actual pain and suffering, bringing the total award to $96,185.03. In determining the pain and suffering award, the Special Master considered the severity and duration of the injury, noting the petitioner's initial severe pain, hospitalization, and intermittent treatment over three years.

He also considered affidavits detailing the impact of the pain on her daily life and care for her children. However, he also factored in gaps in treatment and the lack of more intensive medical interventions, such as surgery or extensive physical therapy, which led him to award an amount lower than requested by the petitioner but higher than recommended by the respondent.

Petitioner was represented by Michael Patrick Milmoe of the Law Offices of Leah V. Durant, PLLC, and respondent was represented by Colleen Clemons Hartley of the U.S.

Department of Justice.