Inside the VICP: Exploring the Early Years of the Vaccine Injury Compensation Program with Mike Milmoe

Mike Milmoe: As a Department of Justice lawyer, you could read some medical files and say this family must be crushed by what’s happened to their baby. But when you meet that family, it has changed the trajectory of their lives.

Leah V. Durant: I’m Leah V. Durant, and this is Vaccine Law Today, the show where you get real answers about vaccine injury, your legal rights, and what to do next. On today’s episode, we’ll discuss a firsthand look at how the vaccine injury compensation program came to be, what a new bill in Congress could mean for claimants, and a listener question about the most common vaccine injury we see and what SIRVA actually is.

I want to kick things off today with some recent news out of Congress that I think is really important for anyone navigating or thinking about filing a vaccine injury claim. So our topic for today is the Bipartisan Vaccine Injury Compensation Modernization Act of 2026, better known as H.R. 9672. The bill was introduced on July 14th, 2026 by Representatives Lloyd Doggett and Lloyd Smucker. It really is the most significant VICP update in nearly 40 years.

It would bring COVID-19 vaccine injuries into the VICP for the very first time, and it would replace the Countermeasures Injury Compensation Program, which has only compensated fewer than 1% of claims. Some of the key changes in this bill is it raises compensation caps from 250,000 to 600,000. It extends the filing deadline for claims from three to five years, and it increases the number of special masters to address the current case backlog that we see in vaccine injury claims.

The takeaway is that if you filed a COVID vaccine injury claim that went nowhere, or if you’ve been waiting to file, this bill could change everything. Looking ahead, this bill is currently referred to committee, and my team and I have personally met with both sponsors who have indicated that they’re 100% committed to seeing this bill passed into law. We’ll be keeping a close eye on this one as it moves its way through Congress, and you’ll hear about any new developments right here.

Now, let’s get into today’s main conversation. My guest today is Mike Milmoe, one of the first attorneys ever hired by the federal government to work on vaccine injury cases. Mike helped figure out how to actually make the VICP work back when it was brand new and nobody had done it before. He’s now retired after a truly remarkable career on both sides of these claims, and I’m so glad to have him here. Mike, welcome to the show.

Mike Milmoe: Thank you so much for having me this afternoon. It’s a pleasure to be here.

Leah V. Durant: I know you’ve been doing this longer than pretty much anyone. Most people have so many questions about the program and how it began, and how did we get to where we are today? First off, can you just introduce yourself to our listeners and give them a sense of your career and how you got to where you are today in vaccine litigation?

Mike Milmoe: As you said, I’m Mike Milmoe and I am a practicing attorney. I got my JD degree in 1986, and I came into the Department of Justice originally through the Drug Enforcement Administration. And in late 1988, the vaccine section, which was newly formed, it consisted only of one man and his secretary, and that was a gentleman by the name of John Euler. And John Euler asked me to join him in being the first trial attorney to take on vaccine cases.

Leah V. Durant: Wow.

Mike Milmoe: In the beginning, the Department of Justice was not even participating in such cases. I was literally writing briefs that were filed and they were being filed by attorneys at the Department of Health and Human Services. And then that changed when the Department of Justice got funding and decided to pursue these cases. And I tried the first vaccine case in 1989.

I worked at Justice for 28 years doing nothing but vaccine litigation. I retired June 30th, 2017. And since that time, I’ve been working in private practice. So I’ve been working continuously in the vaccine space since late 1988 until the present.

Leah V. Durant: That’s amazing. Well, thank you so much for your service to the program. I’m sure the program is better for it. So how did you and your boss basically figure out how to make this program work, or at least the Office of Vaccine Litigation work at the Department of Justice, how did you figure out how to make it work on a day-to-day basis?

Mike Milmoe: Well, you’re right. There really was no music sheet to play off of, and we did a lot of it by playing music by ear, if you will. When I first started working for John, there had been several thousand cases already filed that were just awaiting someone to look at them at the Department of Health and Human Services. And so there were literally just boxes and boxes and storage rooms full of files that had been filed.

I remember shortly before the filing deadline, there were literally FedEx trucks that were lined up in front of the Department of Justice, and I could see down the corner to the US Court of Federal Claims where the cases were being filed, trucks just lined up at our office as we got service copies of the petitions that were being filed. This was amongst the original set. There ended up being over 5,000 such cases.

Leah V. Durant: When I think about that and I get that visual in my mind, I guess I’m wondering, A, were there any times that you though this program’s just not going to make it? And then B, I guess I’m wondering, what were some of the biggest challenges that you faced in those first few years?

Mike Milmoe: Well, I think I did wonder in the early years whether the program would really survive. You may recall that when the act was passed, it was funded originally by regular tax dollars out of the general fund. And we ran out of money early on. And there were a few losses that we at the Department of Justice took in those early days because we were not actively defending the cases.

And at some point, the Reagan administration decided that, rather than just lose these cases undefended, that they would go ahead and ask for funding for the cases. And Congress gave us that funding, so we were able to move on. But the original five years of judgments out of the vaccine court were supposed to be paid from the general fund, and the fund that they had set up for that purpose ran out of money relatively early on.

So we had to wait until the excise tax kicked in. And excise tax is a tax that’s applied to each vial of vaccine. And so currently the excise tax for every vial of vaccine that is administered is 75 cents. Every shot has a 75 cents excise tax applied to it. That money, that 75 cents, goes into the vaccine injury trust fund, and that’s what pays for these injuries.

In those early years, I think there was some idea that maybe this new creation from Congress wasn’t going to go very far. And of course, time has worn on, and any suspicions I had at that time have been more than answered. Here we are over 40 years later and the act is going strong. The act has now paid out over $5 billion in judgments and case numbers continue to rise every year. And refresh me again what your second question was.

Leah V. Durant: Well, I guess I was wondering, what were you thinking at the time? What are some of the biggest challenges that you experienced during those first few years?

Mike Milmoe: Well, unlike some areas of the law, the Vaccine Act, when printed out on a printer is just about 30 pages long. So it’s a framework. It’s nothing more than a framework with some rules and some hard law in it, but how to administer the program was a real challenge. And John Euler did a fantastic job. He’s a wonderful administrator. He tried to come to agreements with the court as to how this whole thing would work together. He and the first chief special master of the court, Gary Golkiewicz, met frequently about how are we going to process 5,000 cases that just came off these FedEx and UPS trucks, and get them into a system and get them organized. So the challenge really was trying to create some substance out of nothing because the vaccine rules, which are now in place and the vaccine guidelines, they didn’t come along till much later.

Leah V. Durant: Wow. So as I’m listening to what you’re saying, I guess I’m thinking major challenges, new program, no funding, no framework, no staff, no law. What was it about that situation that made all of you feel like this was a program that was going to fly? It sounds to me as if you walked into chaos.

Mike Milmoe: Well, you’re right. There was a lot of chaos in those early years, but I think that what spurred all of us on really was the understanding that this was really important for the health policy of our country. I think there was just a feeling between John and I and the folks over at HHS and at the court that this was sort of our civic duty, to be honest with you. It was our way of participating to make vaccines available and to make them safer and to make people continue to feel comfortable receiving vaccines and having their children vaccinated.

At the time, there was a kind of a movement, some things in the popular press, that were saying that, “Hey, there’s a possibility that vaccines can really injure children and can injure them very seriously.” I mean, there’s a wide range of things that can happen after a vaccine is administered, and some of those can be very mild reactions, some swelling at the point of the injection or a rash or something like that. But there was talk at the time that vaccines were responsible based on everything that was going on in the public press. So a lot of people were saying, gosh, I don’t want to have my new little baby who’s only two months old or four months old or was just born vaccinated with some live vaccine that’s going into this brand new immune system.

So it was kind of the birth of the vaccine hesitancy movement. So it was just a grit that we believed in the mission. We believe that strongly that this was important for our country. Anybody who joins the Department of Justice could probably make more money in a private law firm, but you join the Department of Justice because you believe in something, you believe in doing the right thing, and you believe that you are wearing a white hat. And I know that, now being on the other side, that some people don’t believe that justice wears the white hat, and I think sometimes maybe they don’t. But you go to the Department of Justice to be a public servant and you realize that vaccines are an important part of our nation’s health policy and that you wanted to contribute to that.

Leah V. Durant: I really do see it as a public service. I mean, you’re ensuring that the public has the vaccinations that they need to keep ourselves healthy and safe and it’s admirable work. Absolutely. So you’ve now worked on both the government side, you now have worked on petitioner’s side. How did crossing that line, if you will, change the way that you understood the program?

Mike Milmoe: Well, I think the answer to that, Leah, is that it made it much more personal for me. I loved my time at the Department of Justice. I was there 28 years and I defended the cases and I thought I did the job as fairly as it could be done. But at the Department of Justice, for all the thousands of cases that I put my hands on in one form or another, you don’t get the personal side of it.

Nine years ago when I came to this firm where I’m working now and started taking telephone calls from clients who had experienced vaccine injuries, and you really understood the pain. You understood it intellectually as a Department of Justice lawyer. You could read some medical files, and say, “This family must be crushed by what’s happened to their baby.” And you knew that intellectually. But when you meet that family, that these people have tremendous injuries, it has changed the trajectory of their lives.

It’s a completely different experience than working on a case at the Department of Justice. I always tell the story that at the Department of Justice, when I did a good job on a case, maybe some higher up at DOJ would send a letter saying, “Gosh, Mr. Milmoe performed admirably in this case and got a great result.” And that always felt good, to have your superiors recognize that you are working 80 hours a week and doing the best that you can to administer the program fairly.

But on this side, we get rewarded with cookies and homemade fudge, and people who send us things, pictures of their family, and their Christmas cards with personal notes about how much what we did for them helped them. You don’t get that at the Department of Justice. And that’s been very meaningful to me for the last nine years, and I’m extremely proud of that.

Leah V. Durant: Absolutely. And I think you’re right. You’re talking to people every day. They’re injured. They’re just so pleased to have someone who’s working on their side, to have someone who believes them and who can help to see them through this process. So thank you for what you do.

I guess in looking at the historic background of the program versus where things are today, what can you tell us about the program today? I mean, is it working the way Congress intended? Where have things gone right? What are challenges that could potentially be fixed to make the program more in line with what Congress originally intended?

Mike Milmoe: I always said when I worked at the Department of Justice that there were two places that the government always got criticized for. One is that the program is too adversarial, and two, that things take too long. Congress really intended this program to be a much less adversarial way of gaining compensation. They were hoping by putting in the vaccine injury table, which is just a table of saying if you experience certain symptoms within a certain timeframe, then you are presumed to be entitled to vaccine compensation, you win. But that has not necessarily worked out that way.

So cases are becoming more adversarial and it becomes full-blown litigation. I don’t think that’s what Congress intended at all. I think they wanted a very fast program. When Congress passed the act, they put in time restrictions for how long they envisioned a case to work its way through the program. And that was 240 days. That’s eight months from the time that you file your petition until the time that your case is concluded and the court decides you are entitled to compensation or you’re not entitled to compensation was supposed to be eight months. I think the average length of the case in this program now is probably closer to three or four years, and there are outliers.

I think Congress also intended that close calls went to the petitioner. And so in close cases, Congress intended people to be compensated. What you have now is, of course, is a program where these cases go on forever. They’re litigated and litigated very hard. And I think that level of adversarialness and the time it’s taking is too long.

And then I just briefly would say, yes, the act is a great thing. It was passed by Congress with great noble goals. They did a great job of putting a framework together. And when the act was passed in 1986, the maximum you could recover was $250,000 in pain and suffering. Well, that was a significant amount of money in 1986, but well, here we are now in 2026, and that $250,000 is worth more than $650,000.

And so the act has never been significantly amended after the first year of this program existing. And I think that’s kind of a shame because the injuries haven’t changed. People are still suffering. I have so many clients now working on this end that would say, “Michael, I would pay $250,000. I would take a second mortgage on my house not to have the injury that I have.” $250,000 is nothing. The amount of money needs to be updated and needs to be updated, I think, quickly.

Leah V. Durant: I tell you, the information and the history that you’re providing listeners is just unmatched, I’m sure. I guess a question that I have for you is what do you wish that more people understood about the program that they just don’t know? Is there anything that just comes to mind that you think if people understood this about the program, this would be helpful?

Mike Milmoe: Well, I will say that one of the most unique features of the vaccine program is that you are allowed to hire an attorney and that the program will pay for that attorney. Unlike in civil litigation where you might take 33% or 40% of a client’s award here, because of the unique structure that Congress put into place where your attorney’s fees are paid by the program itself, that’s how much Congress wanted this program to work. They were willing to fund the attorneys on an hourly basis to represent people. Congress wanted experienced and well-educated and well-versed vaccine lawyers to be able to take on clients’ cases.

And so that’s a question I have all the time from clients like, “I’d love to hire you, but I’m sure you’ve been doing this for so long that I’m not going to be able to afford you and you’re going to take a third or 40% of my award.” And that’s not true. And so I think that’s a really important point that people who have suffered a vaccine injury will not pay out of their pocket for their attorney.

Leah V. Durant: Absolutely. Well, now that you have had an opportunity to practice both at the government as well as representing petitioners, how do you look back at this work now that you’ve done this work for 38 years? What are you most proud of?

Mike Milmoe: I’m really just very proud of my participation in this program from the very beginning. I’ve been doing this work for almost 40 years and our law firm strives every day to do this work, do it honorably, do it the right way, and to help our clients as best we can. So when I get that package of cookies that says, “This is for a job well done. Our family will never be able to thank you for everything that you’ve done,” that’s worth the world to me. Because again, you get into public service as a Department of Justice attorney or you get into law, at least I did, not to be a corporate lawyer and make millions of dollars, but to help people. And this entire almost 40 years of working in the program has helped me to do that.

Leah V. Durant: And we thank you for everything you’done during your career, your storied career in this program. Are there any parting thoughts that you’d like to share with our listeners about the program or just anything that you’d like to share?

Mike Milmoe: Yes. I’d like to just go back to the thing that we talked about earlier to say Congress takes a lot of heat, especially now in the 2020s, and people are unhappy with their government for one reason or another, and the legislative branch is not spared from that in any way. But Congress did a fantastic job in 1986 in coming up with this program.

I guess my parting thought would be it needs to be modernized. There’s a lot of great pieces to the program. But if we were to get back to what Congress intended when they passed this thing in 1986, it’s pretty clear that this program has drifted pretty far from those lofty goals that Congress set out. And so I am hoping that sometime before I retire completely from vaccine litigation, that Congress will take some action to modernize the act, to change the funding up to 2026 levels, and then have it be adjusted for inflation each year to increase the number of special masters, to increase the statute of limitations that are pretty strictly enforced now, and those kinds of things.

Modernization of this program is imperative in order to meet the two goals that Congress set out for, the two litigation goals that they set out. One was to make the thing fast, get people their money as quickly as possible, and two, to make the thing less adversarial. I mean, from my experience and from talking to others like me who’ve been doing this work for decades, sometimes it’s easier to win a case in state court than it is in the program because these things are litigated to the hilt, and I really don’t think that’s what Congress intended.

So if Congress could try to make it a little easier for the practitioners to work in this space, I think that would be wonderful. That would bring it back to what Congressman Waxman intended and Senator Kennedy intended. And my hat goes off to both of those gentlemen for creating a program and envisioning something that would really be helpful for our country.

Leah V. Durant: Absolutely. Well, thank you very much, Mike. This has been a fascinating interview. Just really appreciate your time and look forward to having you again.

Mike Milmoe: My pleasure. Anytime, Leah.

Leah V. Durant: Before we wrap up, I’d like to answer a question that came in from someone in our audience, and it’s one I hear a lot, so I think it’ll be useful for many of you. So the question is, what is the most frequently occurring injury that you see in the National Vaccine Injury Compensation Program? The most frequent injury that we see in the program is called SIRVA. SIRVA stands for shoulder injury related to vaccine administration.

These cases occur when a needle is injected into the shoulder and the needle is either injected too high or goes too deeply, and it winds up causing all sorts of shoulder pain, injury, reduced range of motion, rotator cuff tears, and all kinds of difficulties related to that vaccine administration. So the key takeaway is if you have pain that began after vaccination, don’t wait. Go in to be seen as soon as possible. Keep good documentation of when your pain began and be engaged. Review your medical records, ensure that your records are an accurate reflection of what occurred, and contact a vaccine injury attorney if you believe that you suffered a vaccine injury.

Thanks for listening to Vaccine Law Today. If you have a question you’d like me to answer on the show, or if you think you might have a vaccine injury claim, visit us at vaccinelaw.com. New episodes come out every two weeks. Follow or subscribe wherever you get your podcasts, and we’ll see you next time.