VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00202
Package ID: USCOURTS-cofc-1_18-vv-00202
Petitioner: Milan Harper
Filed: 2018-02-08
Decided: 2021-11-09
Vaccine: Tdap
Vaccination date: 2016-12-29
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 96185

AI-assisted case summary:
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 November 9, 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.

Theory of causation field:
Milan Harper, age 29.75, received a Tdap vaccine on December 29, 2016, and subsequently developed Shoulder Injury Related to Vaccine Administration (SIRVA). The injury met the Vaccine Injury Table criteria, with onset within 48 hours, localized to the vaccination site, and no other identified cause. The respondent elected not to defend the case after a Finding of Fact established the injury's severity for more than six months. The parties stipulated to $4,185.03 for unreimbursed expenses. Chief Special Master Brian H. Corcoran awarded $92,000.00 for pain and suffering, totaling $96,185.03. The decision was issued on November 9, 2021. Petitioner was represented by Michael Patrick Milmoe and respondent by Colleen Clemons Hartley.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00202-0
Date issued/filed: 2020-12-02
Pages: 7
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/28/2020) regarding 51 Findings of Fact & Conclusions of Law, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-202V
UNPUBLISHED
MILAN HARPER, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Statutory Six Month
HUMAN SERVICES, Requirement; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT1
On February 8, 2018, Milan Harper filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of her December 29, 2016 Tetanus Diphtheria
acellular Pertussis (“Tdap”) vaccination. Petitioner alleges a Table case for SIRVA.
1 Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am
required to post it 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). This means the fact ruling will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 2 of 7
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
For the reasons discussed below, I find that Petitioner suffered the residual effects
of her alleged vaccine-related injury for more than six months after vaccination, as
required by Section 11(c)(1)(D)(i) of the Vaccine Act.
I. Relevant Procedural History
On March 31, 2019, Respondent filed a Status Report indicating that he had
completed review of the evidence filed in this case and wished to engage in settlement
discussions. ECF No. 25. By October 8, 2019, however, the parties had determined that
further settlement discussions would not be fruitful, and proposed instead that
Respondent file a Rule 4 (c) Report within 60 days providing his position in this case. ECF
No. 35.
On December 9, 2019, Respondent filed his Rule 4(c) Report arguing that
Petitioner’s case should be dismissed for failure to satisfy the “threshold severity
requirement” that Petitioner suffered the residual effects of her alleged vaccine-related
injury for more than six months after vaccination. ECF No. 36. On January 6, 2020, I
convened a Rule 5 Status Conference at the request of the parties. ECF No. 37. During
the conference, I proposed a preliminary finding that Petitioner would likely be able to
establish entitlement to compensation, through satisfaction of the Table requirements for
a SIRVA case. 42 C.F.R. § 100.3(c)(10) (2017). Additionally, I made a second preliminary
finding that Petitioner has suffered the sequela of her injury for more than six months. Id.
Thereafter, Respondent indicated he no longer intended to defend this case and
proposed filing an amended Rule 4(c) Report within 30 days the filing of Petitioner’s
outstanding medical records. ECF No. 38. However, after additional consideration,
Respondent requested I issue formal findings of fact and conclusion of law regarding the
severity issue, after which Respondent would file his supplemental Rule 4(c) Report. ECF
No. 42. A status conference was convened on April 27, 2020. It was agreed that I would
issue formal findings of fact and conclusions of law in regard to the severity requirement,
and that Respondent would file his supplemental Rule 4 Report within 14 days thereafter.
ECF No. 43. Subsequently, Petitioner filed a supplemental affidavit, additional
documentation, and updated medical records. Exs. 17-21. On July 16, 2020, Petitioner
filed a Status Report indicating that the record is complete and requesting I rule on the
severity requirement issue. ECF No. 49.
2

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 3 of 7
II. Issue
Whether Petitioner suffered the residual effects of her alleged vaccine-related injury
for more than six months after vaccination, as required by Section 11(c)(1)(D)(i) of the
Vaccine Act.
III. Authority
The purpose of the Vaccine Act is to award “vaccine-injured persons quickly,
easily, and with certainty and generosity.” Weddel v. Sec’y of Health & Human Servs.,
100 F.3d 929, 932 (Fed. Cir. 1996) (quoting H.R. Rep. No. 99-908, at 3 (1986)). The Act
was meant to remedy the problem that “for the relatively few who are injured by vaccines
– through no fault of their own – the opportunities for redress and restitution [were] limited,
time consuming, expensive, and often unanswered.” Cloer v. Sec’y of Health & Human
Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc) (quoting H.R. Rep. No. 99-908,
at 6 (1986)). As a result, the program places some emphasis on speed and efficiency,
especially in close cases.
The Vaccine Act requires that a Petitioner demonstrate that “residual effects or
complications” of a vaccine related injury continued for more than six months. Section
11(c)(1)(D)(i). A Petitioner cannot establish the length or ongoing nature of an injury
merely through self-assertion unsubstantiated by medical records or medical opinion.
Section 13(a)(1). In particular, a petitioner must prove, by a preponderance of the
evidence, the matters required in the petition by Section 11(c)(1). A special master must
consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or
summary concerning the nature, causation, and aggravation of petitioner’s injury or illness
that is contained in a medical record. Section 13(b)(1). “Medical records, in general,
warrant consideration as trustworthy evidence. The records contain information supplied
to or by health professionals to facilitate diagnosis and treatment of medical conditions.
With proper treatment hanging in the balance, accuracy has an extra premium. These
records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of
Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, 2005 WL 6117475, at *19 (quoting Murphy v. Sec’y of
3

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 4 of 7
Health & Human Servs., 23 Cl.Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226
(Fed.Cir.1992)).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1334 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the
special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
I make the following findings after a complete review of the record to include all
medical records, affidavits, Respondent’s Rule 4 report, and additional evidence filed.
Specifically, I base the findings on the following evidence discussed below.
• Ms. Harper received at Tdap vaccination in her left deltoid on December 29,
2016. She was 29 weeks pregnant. Ex. 10 at 1;
4

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 5 of 7
• On January 8, 2017, Petitioner went to the emergency room reporting left
shoulder pain “that began 10 days ago after receiving the Tdap vaccine.”
Ex. 2 at 68. Petitioner was found to have limited range of motion of the left
upper arm and shoulder, and was admitted to the hospital. Ex. 2 at 44-45;
• Kenneth Ham, MD conducted an orthopedic evaluation on January 9, 2017
and assessed Petitioner with “reactive rotator cuff impingement, bursitis.”
Pet. Ex. 5 at 3-4. It was noted that Petitioner experienced “pain in the left
shoulder following a pertussis vaccination to her left shoulder region. The
patient noted aching pain that increased and became intense from which
she had trouble lifting.” Ex. 5 at 3. Petitioner was discharged on January
11, 2017. Ex. 2 at 77-78;
• Petitioner was evaluated on January 17, 2017 at her obstetrician’s office for
left shoulder pain. Her arm was noted to be in a sling. Petitioner reported
she was advised at the hospital she had bursitis and a rotator cuff
impingement due to the Tdap vaccination being administered “too high.” Ex.
6 at 93. Petitioner indicated that surgery was recommended, but that she
postponed shoulder surgery until after delivery of the baby. Ex. 6 at 93;
• On February 11, 2017, Petitioner delivered her baby via cesarean section.
Ex. 4 at 134-135;
• On April 19, 2017, Petitioner was seen by her primary provider for a sore
throat and received a strep test. Ex. 11 at 24-26. No report of shoulder pain
was detailed in this record;
• On June 2, 2017, Petitioner was admitted to hospital for acute back pain
and a urinary tract infection. Ex. 2 at 389. Petitioner was discharged on June
4, 2017 with diagnosis of acute back pain and urinary tract infection. Id. No
report of shoulder pain was detailed in this record;
• On September 7, 2017, Petitioner was seen by her primary care provider
for left shoulder pain “for the last 20-30 days.” Ex. 3 at 3. A history was
provided detailing Petitioner’s receipt of a Tdap vaccine high in her shoulder
when she was six months pregnant, followed by admittance to the
emergency room, and recommended surgery and physical therapy after
delivery. Id. Petitioner recounted that she had been on medication as a
result of her cesarean section and that her shoulder pain had dissipated but
was now continuous. Id. On exam, Petitioner’s active range of motion was
5

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 6 of 7
limited in her left shoulder and her strength was less than her right. Ex. 3 at
5. Petitioner was referred to an orthopedist. Id.;
• On October 4, 2017, Petitioner was evaluated by orthopedist, Ram Aribindi,
MD “complaints of left shoulder pain since December 2016. She had noted
this pain after a Tdap injection.” Ex. 13 at 1. Petitioner was assessed with
“left shoulder pain with limited active motion of the shoulder with tendinitis
of the shoulder.” Id. Petitioner received a steroid injection. Id. at 2;
• On March 13, 2018, Petitioner was seen by her primary care provider for
her left shoulder pain. Her history of shoulder pain and related
hospitalization when she was pregnant was provided, as well as the
recommendation she undergo surgery and physical therapy post-delivery.
Petitioner indicated it was not convenient to have surgery now with a one
year old. Ex. 11 at 6. On exam Petitioner exhibited severely decreased
passive range of motion of left shoulder. Ex. 11 at 8. An MRI and physical
therapy were recommended. Id. at 8-9.
In this case, it is undisputed that Petitioner received a Tdap vaccination on
December 29, 2016 in her left deltoid. Respondent also has not raised any dispute
concerning the onset of Petitioner’s left shoulder pain, and there is preponderant evidence
that the onset of her pain was immediate after receipt of her Tdap vaccination. Ex. 2 at
44-45. Further, I find, based on the above medical records that Petitioner suffered the
sequela of her shoulder injury for more than six months after her December 29, 2016
Tdap vaccination.
Although, Petitioner’s September 7, 2017 visit to her primary care provider
indicates left shoulder pain “for the last 20-30 days” the record for that visit also provides
a “History of “Present Illness” that describes Petitioner’s receipt of a Tdap vaccination
when she was six months pregnant and emergency room visit due to her pain in her
shoulder followed by a diagnosis of shoulder bursitis and discharge. Ex. 3 at 3. The record
of that visit further details Petitioner’s receipt of medication after her C-section and
corresponding reduction in pain. Id.
This record is consistent with Petitioner’s affidavits. Petitioner avers in her
affidavits that after her C-section surgery she received pain medication, Norco, which
helped her shoulder pain. Petitioner further explained that while she continued to
experience pain between mid-January and September 2017, and that she wore an arm
sling much of the time after her Norco was exhausted. During the summer after her baby
was delivered, her mother and two friends were able to provide help with her home and
her son. However, in September once she no longer had assistance and as her son began
6

Case 1:18-vv-00202-UNJ Document 56 Filed 12/02/20 Page 7 of 7
to move about more, Petitioner sought further medical care. Exs. 7, 15, 17. Thus, although
some intervening records do not record continuous, post-vaccination pain, the records do
support the conclusion (bulwarked in this case by Petitioner’s sworn statements) that she
continued to experience pain throughout, if intermittently.
Accordingly, I find that preponderant evidence establishes that Petitioner
suffered the sequela of her alleged vaccine injury for more than six months after
her December 29, 2016 Tdap vaccination.
Respondent shall file his Supplemental Rule 4 Report by no later than
November 11, 2020.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-00202-1
Date issued/filed: 2020-12-16
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/16/2020) regarding 53 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00202-UNJ Document 58 Filed 12/16/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-202V
UNPUBLISHED
MILAN HARPER, Chief Special Master Corcoran
Petitioner, Filed: November 16, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Table Injury;
HUMAN SERVICES, Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 8, 2018, Milan Harper filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that that she suffered a Shoulder Injury Related to
Vaccination Administration (“SIRVA”) as a result of her December 29, 2016 tetanus-
diphtheria-acellular pertussis vaccine. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it 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). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-00202-UNJ Document 58 Filed 12/16/20 Page 2 of 2
On October 28, 2020, I issued a Finding of Fact wherein I found that Petitioner
suffered the sequela of her alleged SIRVA for more than six months as required by
Section 11(c)(1)(D)(i) of the Vaccine Act. ECF No. 51. In reaction, on November 9, 2020,
Respondent filed a Supplemental Rule 4(c) Report indicating that he “has elected not to
defend this case” after further review of the facts, medical records, and my Finding of
Fact. ECF No. 52 at 5 - 6.
Respondent further indicated that as stated in his initial Rule 4 Report:
DICP [Division of Injury Compensation Programs, Department of Health
and Human Services] determined that petitioner’s medical course is
consistent with a shoulder injury related to vaccine administration (“SIRVA”)
as defined by the Vaccine Injury Table. Specifically, petitioner had no recent
history of pain, inflammation, or dysfunction of her left shoulder, pain
occurred within 48 hours after receipt of an intramuscular vaccination, pain
was limited to the shoulder where the vaccine was administered, and no
other condition or abnormality, such as brachial neuritis, has been identified
to explain petitioner’s shoulder pain. 42 C.F.R. § 100.3(a); 42 C.F.R. §
100.3(c)(10).
ECF No. 52 at n. 13.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation. A Damages Order will issue.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

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DOCUMENT 3: USCOURTS-cofc-1_18-vv-00202-2
Date issued/filed: 2021-11-09
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 10/08/2021) regarding 73 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00202-UNJ Document 76 Filed 11/09/21 Page 1 of 8
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-202V
UNPUBLISHED
MILAN HARPER, Chief Special Master Corcoran
Petitioner, Filed: October 8, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On February 8, 2018, Milan Harper filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a Table Injury – a Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of a Tetanus Diphtheria
acellular Pertussis (“Tdap”) vaccine received on December 29, 2016. Petition, ECF No.
1 at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters (the “SPU”). The parties could not agree on damages, so the disputed
component of pain and suffering was submitted to SPU Motions Day.
1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
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).
This means the Decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-00202-UNJ Document 76 Filed 11/09/21 Page 2 of 8
For the reasons described below, and after holding a brief hearing in this matter, I
find that Petitioner is entitled to an award of damages in the amount $92,000.00,
representing compensation for her actual pain and suffering.
I. Procedural Overview
As noted above, the case was initiated in February 2018. Respondent filed a Rule
4(c) Report arguing that Petitioner’s case should be dismissed for failure to satisfy the
“threshold severity requirement” that Petitioner suffered the residual effects of her alleged
vaccine-related injury for more than six months after vaccination. ECF No. 36. On October
28, 2020, I issued a Finding of Fact, however, determining that Petitioner had established
severity in conformance with Section 11(c)(1)(D)(i) of the Vaccine Act. ECF No. 51. In
reaction, on November 10, 2020, Respondent filed a Supplemental Rule 4(c) Report
indicating that he “has elected not to defend this case” after further review of the facts,
medical records, and my Finding of Fact. ECF No. 52 at 5 – 6. I therefore issued a Ruling
on Entitlement on November 16, 2020, finding Petitioner entitled to compensation for her
SIRVA. ECF No. 53.
The parties were subsequently unable to informally resolve the issue of damages,
so a briefing schedule was set on March 17, 2021. ECF No. 63. Petitioner filed her brief
on May 22, 2021, requesting that I award her $120,000.00 in compensation - representing
her past/actual pain and suffering. ECF No. 66. Conversely, in a brief filed on July 16,
2021, Respondent argued that Petitioner should be awarded only $77,500.00 for past
pain and suffering. ECF No. 69. Petitioner filed a Reply brief on August 2, 2021. ECF No.
70. (The parties have otherwise agreed upon an award of $4,185.03 representing
Petitioner’s unreimbursed expenses, so that amount is not disputed and will be awarded
as well).
In August of this year, I informed the parties that this case was appropriate for an
expedited hearing and ruling via my “Motions Day” practice, at which time I would decide
the disputed damages issues based on all evidence filed to date plus whatever oral
argument they wanted to make. ECF No. 71. The parties agreed, and an expedited
hearing took place on September 24, 2021. Minute Entry dated October 1, 2021.3 I orally
ruled on Petitioner’s damages at that time, and this Decision memorializes my
determination.
3 Michael Milmoe appeared on behalf of Petitioner, and Colleen Hartley appeared on behalf of Respondent.
The transcript of the September 24, 2021 Hearing in this case was not filed as of the date of this Decision,
but my oral ruling is incorporated by reference herein.
2

Case 1:18-vv-00202-UNJ Document 76 Filed 11/09/21 Page 3 of 8
II. Pain and Suffering
A. Legal Standard and Prior SIRVA Pain and Suffering Awards
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Sections II and III of Berge v. Sec’y
Health & Human Servs., No. 19-1474V, 2021 WL 4144999, at *1-3. (Fed. Cl. Spec. Mstr.
Aug. 17, 2021).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.
Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.4
B. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Ms. Harper’s awareness of the injury is not disputed, leaving only the
severity and duration of that injury to be considered. In determining appropriate
compensation for pain and suffering, I have carefully reviewed and taken into account the
complete record in this case, including, but not limited to: Petitioner’s medical records,
affidavits, filings, and all assertions made by the parties in written documents and at the
expedited hearing held on September 24, 2021. I have also considered prior awards for
pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon my
experience adjudicating these cases. However, my determination is ultimately based
upon the specific circumstances of this case.
The record establishes that Petitioner’s shoulder pain was initially quite severe
prompting her to go the emergency room on January 8, 2017, only ten days after her
vaccination. Ex. 2 at 68. Significantly, at that time she was 31-weeks pregnant. Id. She
reported that her shoulder pain began after receipt of her Tdap vaccine and had
progressed to the point where she could not lift her upper left extremity. Id. She was
4 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3
(Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).
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transferred to the Labor and Delivery Department of the hospital and admitted for
observation. Ex. 2 at 44, 89. The following day she received orthopedic evaluation from
Kenneth Ham, MD, who assessed Petitioner with “reactive rotator cuff impingement,
bursitis.” Pet. Ex. 5 at 3-4. It was noted that Petitioner had experienced “pain in the left
shoulder following a pertussis vaccination to her left shoulder region. The patient noted
aching pain that increased and became intense from which she had trouble lifting.” Ex. 5
at 3. She was discharged from the hospital after four days. Ex. 2 at 77-78. Thereafter,
she underwent intermittent treatment for her shoulder injury for approximately three years.
However, the record also establishes that Ms. Harper suffered on balance a
moderately severe injury. After her discharge from the hospital, Petitioner was evaluated
at her obstetrician’s office on January 17, 2017 for left shoulder pain. Her arm was noted
to be in a sling at that time. Ex. 6 at 93. Petitioner indicated that surgery had been
recommended to her, but that she postponed shoulder surgery until after delivery of the
baby. Ex. 6 at 93. On February 11, 2017, Petitioner gave birth after undergoing a
cesarean section. Ex. 4 at 134.
Subsequently, Petitioner had two appointments for post-partum care by her
obstetrician on March 1, 2017 and April 5, 2017 (Ex. 20 at 73-76, 81-84), an examination
by her primary care physician on April 19, 2017 for a sore throat (Ex. 11 at 24-26), and
was seen in emergency room on June 2, 2017 for back pain and admitted to the hospital
(Ex. 2 at 389). Petitioner was discharged from the hospital on June 4, 2017 with a
diagnosis of acute low back pain and a urinary tract infection. Id. Significantly, none of
these medical records documented any complaints of left shoulder pain.
Petitioner sought follow-up care for her shoulder pain with her primary care
provider on September 7, 2017 – nearly eight months since she had last sought treatment,
and approximately seven months after the birth of her son. Ex. 3 at 3-6. Her primary care
provider detailed Petitioner’s history of receipt of a Tdap vaccine high in her shoulder
when she was six months pregnant, followed by admittance to the hospital two weeks
later. Id. at 3. Petitioner indicated she was advised to undergo surgery and physical
therapy after her delivery of her baby. Id. Petitioner reported that she had been on
medication as a result of her cesarean section and that her shoulder pain had “dissipated,”
but that the pain was now “continuous”, and she was taking ibuprofen. Id.
On exam, Petitioner’s active range of motion was limited in her left shoulder and
her strength was less than her right. Ex. 3 at 5. Petitioner was referred to an orthopedist
and advised to take “Tylenol/Motrin as needed” and to “use heating pad” to treat her left
shoulder pain. Id. Petitioner followed-up one month later with an orthopedist, Ram
Aribindi, MD, on October 4, 2017. Ex. 13 at 1. Dr. Aribindi indicated Petitioner had
“complaints of left shoulder pain noted since December 2016” following her Tdap
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injection. Id. Petitioner was assessed with left shoulder pain and “limited active motion of
the shoulder with tendinitis” and administered a steroid injection to treat her shoulder pain.
Id. at 1-2.
Subsequently, Petitioner next sought treatment with her primary care provider five
months later on March 13, 2018. Ex. 11 at 6. Petitioner’s history of shoulder pain was
related, as well as the recommendation she undergo surgery and physical therapy post-
delivery. Petitioner indicated it was not convenient to have surgery now with a one-year-
old. Ex. 11 at 6. On exam Petitioner exhibited severely decreased passive range of motion
of left shoulder. Ex. 11 at 8. An MRI and physical therapy were recommended. Id. at 8-9.
However, Petitioner did not undergo an MRI or engage in physical therapy. Ten more
months passed before Ms. Harper again sought treatment for her SIRVA, this time on
January 7, 2019 from Oh J. Lee, MD. She requested that Dr. Lee provide her with a
referral to an orthopedic specialist for a steroid injection – Dr. Lee provided her the referral
and recommended she receive physical therapy. Ex. 16 at 1-2. No records have been
filed evidencing that Petitioner ever followed up with an orthopedic surgeon or received a
steroid injection.
The only subsequent reference to Petitioner’s shoulder pain occurs eleven months
later, on December 6, 2019, when Petitioner sought a fertility referral from Dr. Lee, the
notes from this visit indicate “left shoulder had a shot5 with better [sic], and taking
ibuprofen [as needed].” Ex. 16 at 3. While I do not conclude from this record that Petitioner
had completely recovered from her shoulder injury at that point, I find that her SIRVA and
related sequela had significantly improved. No further treatment records have been filed
that would document additional treatment. 6
Also bearing on the pain and suffering sum to be awarded are Petitioner’s multiple
sworn affidavits (Exs. 7, 15, 17, 23), as well as those provided by her family members
(Exs. 24-26), all of which fill in the gaps between Petitioner’s limited medical
appointments. The affidavits detail the intense pain Petitioner felt following her
vaccination (which she retrospectively rates in her May 7, 2021 affidavit as 10/10, and
then 7/10 for all of 2017). See, e.g., Ex. 7 ¶ 3, Ex. 23 ¶ 2. Petitioners’ affidavits further
detail how her pain limited her ability to care for, and be active with her oldest son, born
only months following her injury, as well as her second child born in 2020. E.g., Ex. 23 ¶¶
2, 5. This caused Petitioner to undergo unique suffering as she sought for many years to
become a mother. E.g., Ex. 23 ¶ 1.
5 The records indicate Petitioner received only one steroid injection to treat her shoulder pain,
notwithstanding Dr. Lee’s referral on January 7, 2019 to an orthopedic surgeon for a steroid injection.
6 Petitioner’s counsel confirmed in May 2021 that Petitioner has no updated medical records outstanding.
Informal Communication dated May 24, 2021.
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In addition, the affidavits detail other limitations experienced by Petitioner over the
course of her injury, including: difficulty sleeping, preforming household chores (such as
carrying groceries, washing dishes, and doing laundry), and driving. E.g., Ex. 7 ¶ 10, Ex.
23 ¶ 3. Petitioner details how she has had to rely on the use of a sling, ibuprofen, Tylenol,
an adjustable bed, CBD oil, and a TENS machine to manage flare-ups of shoulder pain.
E.g., Ex. 23 ¶ 6. Additionally, Petitioner explains how as a result of her shoulder pain she
was forced to reply upon her husband, mother, sister-in-law, for assistance with
household chores and the care of her children. E.g., Ex. 15 ¶ 7, Ex. 23 ¶¶ 2, 6.
Finally, the affidavits address the gaps in Ms. Harper’s treatment. Petitioner
explains that post-delivery of her first child she was initially able to manage her shoulder
pain with the use of Norco she received after her cesarean section, and then with
childcare assistance provided by her mother. E.g., Ex. 15 ¶¶ 3-4. Later, she explains she
did not engage in physical therapy or undergo surgery, because she was advised that at
least initially these interventions would increase her pain and she indicates that could not
bear further pain. E.g., Ex. 17 ¶ 3. Further, Petitioner explains that she did not seek
additional treatment as she was focused on the care of her family, including children with
their own medical issues, and that her family was also financially constricted with poor
insurance coverage. E.g., Ex. 17, ¶ 3, Ex. 23 ¶4. Additionally, Petitioner’s husband
explains in his affidavit that Petitioner believes she can “tough everything out and would
go to the doctor [at] the very last minute when the pain is unbearable” and she had
“exhausted all options.” Ex. 24 at ¶ 5.
Based upon all of the above, Petitioner has offered adequate record substantiation
for a pain and suffering award higher than that recommended by Respondent. The
affidavits in particular were helpful in illuminating the paucity of medical treatment overall.
However (and informed by my experience adjudicating SIRVA claims), I also note that
severe SIRVA injuries usually necessitate ongoing treatment and/or intrusive and time-
intensive medical interventions (such as surgery, multiple steroid injections, and physical
therapy). Petitioners living with such persistent pain will seek out this level of treatment
despite considerations like cost or competing personal obligations – and it is reasonably
inferred from treatment lapses or gaps that severity was somewhat lower. See, e.g.,
Dirksen v. Sec’y of Health & Hum. Servs., No. 16-1461V, 2018 WL 6293201, at *9-10
(Fed. Cl. Spec. Mstr. Oct. 18, 2018) (treatment gaps are “a relevant consideration in
determining the degree of petitioner’s pain and suffering”). Accordingly, in this case the
gaps in treatment, and lack of medical visits and/or formal medical interventions, support
an award lower than that requested by Petitioner.
Petitioner argues that her case is comparable to two other SIRVA decisions not
involving surgery. See Binette v. Sec’y of Health & Hum. Servs., No. 16-0731V, 2019 WL
1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $130,000.00 for actual pain and
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suffering, and $1,000.00 per year for projected pain and suffering); Cooper v. Sec’y Health
& Hum. Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018)
(awarding $110,000.00 for actual pain and suffering). But these cases are factually
distinguishable. The Binette petitioner underwent two rounds of physical therapy
(approximately 25 sessions) to treat her injury and received five steroid injections. Binette,
2019 WL 1552620, at *5-6,13. Additionally, the Binette petitioner’s injury was deemed
surgically inoperable. Id. The Cooper case, like the instant matter, involved a gap in
medical treatment and no MRI evidence, but the Cooper petitioner also underwent a
significant amount of physical therapy – approximately 35 physical therapy sessions – in
addition the Cooper petitioner sought chiropractic care, acupuncture, and massage
therapy. Cooper, 2018 WL 6288181, at *3-8, 12-13. I thus find the awards in these cases
exceed what is appropriate here.
However, I also find that Petitioner’s injury was more severe than the two cases
primarily cited by Respondent in support of his proposed award. Knauss v. Sec’y Health
& Hum. Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018)
(awarding $60,000.00 for actual pain and suffering); Dagen v. Sec’y of Health & Hum.
Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2019) (awarding
$65,000.00 for actual pain and suffering). Rather, I find the instant case most comparable
to the Desrosiers case – acknowledged by Respondent in a footnote within his damages
brief. Desrosiers v. Sec’y Health & Human Servs., No. 16-0224V, 2017 WL 5507804 (Fed.
Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for past pain and suffering). While
the Desrosiers petitioner did undergo some physical therapy, it was not as extensive as
the physical therapy undertaken by the Cooper or Binette petitioners. Desrosiers also
involved a petitioner who was pregnant at the onset of her SIRVA – like Ms. Harper.
Ultimately, I determine that an award higher than that in Desrosiers is most
appropriate. Ms. Harper suffered a somewhat more severe injury than that in Desrosiers,
despite the gaps in her treatment, particularly given her four-day hospitalization following
the initial onset of her shoulder pain.
Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $96,185.03, representing $92,000.00 in compensation for
her actual pain and suffering, plus $4,185.03 for Petitioner’s unreimbursed
expenses. This amount represents compensation for all damages that would be available
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under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this decision.7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
8