SANCHEZ v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

TRYSTAN SANCHEZ, by and *

through his parents, GERMAIN * No. 11-685V

SANCHEZ and JENNIFER * Special Master Christian J. Moran

SANCHEZ, *

* Filed: August 14, 2024

Petitioners, *

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Lisa A. Roquemore, Law Offices of Lisa A. Roquemore, Rancho Santa Margarita,

CA, and Richard Gage, Richard Gage, P.C., Cheyenne, WY for petitioners;

Jennifer L. Reynaud, United States Dep’t of Justice, Washington, DC, for

respondent.

PUBLISHED ORDER DENYING MOTION FOR PROTECTIVE ORDER 1

Based upon the evidence available to the Federal Circuit, the Federal Circuit

found that Mr. and Ms. Sanchez, the petitioners, are entitled to compensation and

remanded to determine the amount of damages to which they as guardians for their

child, Trystan, are entitled. Sanchez v. Sec’y of Health & Hum. Servs., 34 F.4th

1

Because this order contains a reasoned explanation for the action in this case, the

undersigned is 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 order will be

available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),

petitioners have 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, the

undersigned agrees that the identified material fits within this definition, the undersigned will

redact such material before posting the decision.

1350 (Fed. Cir. 2022). As the Sanchezes were documenting the scope of their

compensation, they produced documents that should have been produced during

entitlement. The Secretary obtained full copies of records from four providers, and

identified numerous other documents which should have been produced earlier.

These include, in chronological order:

• Handwritten Subjective, Objective, Assessment and Plan (SOAP) notes

taken by PA Luna during a February 17, 2009 urgent care visit reporting

Trystan’s cough symptoms but not mentioning arm contortions;

• A March 8, 2010 record from the Inland Counties Regional Center

assessment noting Trystan had a seizure episode on August 8, 2009;

• A June 3, 2010 email from Ms. Sanchez to James. F. Gusella, Ph.D.,

providing a chronology suggesting that Trystan’s arm contortions began

after he recovered from an upper-respiratory illness;

• A record from a November 5, 2010 occupational therapy evaluation

mentioning arm contortions beginning after Trystan’s illness;

• A record of an August 6, 2011 visit to Dr. Valencia memorializing Ms.

Sanchez’s request to “change” a PA’s notes regarding onset of Trystan’s

symptoms;

• A record from Dr. Brown dated August 19, 2011 stating that Ms. Sanchez

asked him “to write a clarifying letter” about his appointment with Trystan

in May 2009. Dr. Brown stated that he did not believe Trystan had unusual

arm movements in May 2009, as he would have documented such and

ordered additional testing. Dr. Brown stated that he faxed and mailed this

record to Ms. Roquemore.

The Secretary is seeking a reopening of entitlement pursuant to an August 16, 2023

motion, which remains pending. Mr. and Ms. Sanchez oppose reopening.

As part of the process regarding reopening, the Secretary is seeking oral

testimony at a hearing to be held in California, the state where Mr. and Ms.

Sanchez live. A purpose of the hearing is to question the witnesses about why the

identified documents were not produced during the entitlement phase of this case.2

Mr. and Ms. Sanchez maintain that this testimony is not appropriate and are

2

Another potential topic could be the meaning of the recently produced documents,

providing an opportunity for direct testimony and cross-examination that could have been given

during the original fact hearing if the relevant documents had been produced before then.

2

seeking a protective order. Pet’rs’ Mot., filed June 21, 2024. The Secretary

contends that the Sanchezes have not justified the entry of a protective order.

For the reasons explained below, the anticipated oral testimony is reasonable

and necessary. The Sanchezes have not established that a hearing is overly

burdensome. Thus, their motion for a protective order is denied.

I. Factual Events in the Life of Trystan Sanchez3

Mr. and Ms. Sanchez are the parents of Trystan Sanchez, who was born in

2008. At age six months, on February 5, 2009, Trystan received a dose of the

diphtheria-tetanus-acellular pertussis (“DTaP”) vaccine. Mr. and Ms. Sanchez

alleged---and the Federal Circuit found---that the DTaP vaccination caused an

aggravation of Trystan’s previously unmanifested Leigh’s syndrome. “Leigh's

syndrome is a severe neurological disorder that often presents in the first year of

life, is characterized by progressive loss of mental and movement abilities, and

typically results in death within ‘a couple years.’” Sanchez, 34 F.4th 1350, 1352

(Fed. Cir. 2022) (citing record).

Throughout this litigation, the parties have disputed when Trystan first

began to manifest unusual movements. Via written affidavits and oral testimony,

Mr. Sanchez, Ms. Sanchez, and other family members averred that Trystan started

having seizures by February 16, 2009, a date that is Ms. Sanchez’s birthday. Mr.

and Ms. Sanchez maintain that Trystan continued to have seizures until he was

seen by a physician’s assistant, Micaela Marin-Tucker, who worked in the office of

a pediatrician Rainilda Valencia. During this appointment, which occurred on

August 17, 2009, Ms. Marin-Tucker documented that Ms. Sanchez stated that

Trystan began to lose skills “2-3 months ago.” Exhibit 1 at 54.

The Secretary did not agree with the testimonial assertions of Mr. Sanchez,

Ms. Sanchez, and other family members. The Secretary pointed out that during the

time when Trystan was allegedly having abnormal movements, medical

professionals saw Trystan and failed to document any complaint about abnormal

3

The pending motion for a protective does not rely upon any particular event in Trystan’s

life. Thus, Trystan’s medical history is summarized to provide a context for the Secretary’s

motion to reopen, which underlies the motion for protective order. For a more thorough

description of Trystan’s medical history, see Decision on Remand, 2020 WL 5641872 (Aug. 26,

2020), mot. for rev. denied, 142 Fed. Cl. 247 (2019), rev’d, 34 F.4th 1350 (Fed. Cir. 2022).

3

movements. Examples of medical professionals who saw Trystan during the

critical months of February to May included Jonathan Luna, a physician’s assistant

(February 17, 2009); Dr. Nabil Seleem, a pediatrician (April 29, 2009) ; and Dr.

Philip Brown, a pediatrician (February 5, 2009 and May 13, 2009). The Secretary

reasoned that if Trystan were having seizures, Ms. Sanchez would have reported

the seizures or abnormal movements to medical professionals and the medical

professionals would have documented (and investigated) that complaint. To the

Secretary, the absence of a notation in the medical records of these providers

during the relevant period of time within which the Sanchezes have maintained

that Trystan was having abnormal arm movements suggestive of seizure activity

indicates that Trystan was not have seizures. The Sanchezes, in turn, maintain that

they consistently informed medical professionals about Trystan’s abnormal

movements but these professionals did not document their concerns.

Presently, the parties agree that Trystan suffers from Leigh’s syndrome.

Leigh’s syndrome has had devastating consequences for Trystan. Trystan’s

condition has caused Mr. and Ms. Sanchez to devote an extensive amount of

energy and money to care for him. Their dedication to their son is admirable.

II. Procedural History

The parties’ dispute has been long running. For purposes of the present

order, the procedural history is divided into three phases. The first period can be

considered “broad background,” running from when the petition was filed to when

the Federal Circuit found that Mr. and Ms. Sanchez were entitled to compensation.

Two themes are involved: first, a determination about when Trystan experienced

seizures / abnormal movements was a critical issue; and second, the parties

consistently disputed when Trystan experienced seizures / abnormal movements.

The next period (Section II.B.) concerns the revelation that Mr. and Ms.

Sanchez did not produce all required documents during the entitlement phase. This

lack of production of allegedly material documents is the basis for the pending

motion to reopen. As part of the motion to reopen, the Secretary has requested a

hearing during which Ms. Roquemore and Ms. Sanchez would testify about the

reasons why these documents were not produced during the entitlement phase.

The final period (Section II.C.) involves the pending motion for protective

order. Section II.C. recounts the parties’ arguments in favor of and in opposition to

developing evidence through oral testimony.

4

A. From Petition through Second Federal Circuit Opinion

Represented by Attorney Lisa Roquemore, Mr. and Ms. Sanchez filed their

petition in October 2011. They supported their petition with a collection of

medical records from multiple providers, Exhibit 1. They also presented affidavits.

Exhibits 3-7. They certified that “After a good faith effort, Petitioner [sic] believes

all available medical records have now been filed.” Pet’rs’ Statement of

Completion filed Oct. 27, 2011. The Secretary, as previously noted, disputed the

assertion that Trystan began to display seizures or abnormal movements around

February 16, 2009. See Resp’t’s Rep., filed Feb. 28, 2012.

As part of the process for determining how the evidence regarding the onset

of Trystan’s abnormal movements preponderated, a hearing was held on May 15,

2012, in San Diego, California. During the hearing, Ms. Sanchez testified about

her interactions with Mr. Luna, Dr. Seleem, and Dr. Brown. Tr. 74-77 (direct

examination about Mr. Luna), 79-83 (direct examination about Dr. Seleem), 85-87

(direct examination about Dr. Brown) 115 (cross-examination about Mr. Luna),

116 (cross-examination about Dr. Seleem), 116-17 (cross-examination about Dr.

Brown), 125 (cross-examination about Dr. Seleem), 135 (special master’s question

about Mr. Luna).4 On May 15, 2012, Ms. Sanchez could not have been asked

about certain documents associated with visits to Mr. Luna or Dr. Brown

(specifically, Mr. Luna’s notes from an urgent care visit on February 17, 2009 and

a record from an August 19, 2011 appointment with Dr. Brown) because the

petitioners had not filed those documents.

Findings of Fact were issued on April 10, 2013. The undersigned found that

Trystan did not exhibit arm contortions from the period beginning around February

16-17, 2009 to late April 2009. Ruling Finding Facts, ¶¶ 8-11.

4

During the May 15, 2012 fact hearing, Ms. Sanchez testified that after the May 2009

appointment with Dr. Brown, she decided she “was never going there again.” Tr. 87. Based

upon this testimony, Ms. Roquemore asked if Ms. Sanchez changed pediatricians, which Ms.

Sanchez confirmed, explaining that she “didn’t want to go to Dr. Brown anymore.” Tr. 88-89.

Ms. Roquemore then asked: “So you saw Dr. Brown in May, never to see him again, but your

next medical appointment was not until August 2009 [with Dr. Valencia]. Why was that?” Tr.

90. These questions and answers indicated that Ms. Sanchez never brought Trystan back to Dr.

Brown after the May 2009 appointment. In fact, a later record revealed Ms. Sanchez saw Dr.

Brown with Trystan on August 19, 2011, which was approximately nine months before the

hearing. Exhibit T at 17-18.

5

The parties obtained reports from experts about whether the DTaP vaccine

harmed Trystan. Around this time, Mr. and Ms. Sanchez requested an award of

attorneys’ fees and costs for work performed by their attorney, Ms. Roquemore.

Pet’rs’ Fee Appl’n, filed Sep. 16, 2014. Ms. Roquemore submitted her Timesheets

to support this application as exhibit 2 to the Fee Application. Based upon Ms.

Roquemore’s time entries, the Secretary requested the production of four items:

All photographs and videos reviewed by Ms. Roquemore depicting

Trystan’s condition “before and after.” See Billing Entry dated

7/26/2011; see also Billing Entry, dated July 27, 2011 (0.3 billed to “Cross-

reference L. Roquemore’s photo observations to the timeline of events and

prepare spreadsheet of findings.).

Jennifer Sanchez’s Journal for 2009. See Billing Entries: 8/23/2011 (0.8

hours billed to “Review Jennifer’s Journal for 2009”); 8/24/2011 (0.2 hours

billed to “Electronically highlight relevant portions of the journal”);

8/29/2011 (0.5 hours billed to “Review ‘original’ of journal for half of 2008

and all of 2009.”). See also, Transcript of May 15, 2012 Fact Hearing

(“Transcript”) at 113 (In response to, “When you were preparing your

statement, did you look at any calendar or journal or anything where you

would’ve kept this information,” Ms. Sanchez answered, “No.”); Transcript

at 128 (In response to, “Were you keeping any sort of journal or diary or

baby book during the spring of 2009?” Ms. Sanchez answered, “No. I had

one and I never filled it out but, no, I didn’t.”).

All audiotapes of doctor’s appointments with Ms. Marin-Tucker and

Dr. Davies. See Billing Entries: 8/29/2011 (1.0 hour billed to “Listen to

audio tape of doctor appointment with Dr. Micala [sic] [a.k.a. Micaela

Marin-Tucker, P.A.] and another one with Dr. Davies regarding reporting of

stiff arms and weird movements.”); 3/1/2012 (0.5 billed to “Review

Recording of appointment with Micaela and Dr. Valencia regarding they

don’t write everything down.”); 3/2/12 billed to “Research regarding usage

of recordings of conversations.”).

Day planner reviewed by Ms. Roquemore in March 2012. See Billing

Entries: 3/8/12 (1.1 hours billed to “Review day planner in day to day detail

and draft memorandum regarding pros and cons of providing as evidence.”);

3/8/12 (1.3 hours billed to telephone conference with Sanchezes, discussed

inter alia the fact hearing, and “go over day planner in detail so that clients

can decide whether it gets filed based on risks and benefits addressed. Go

6

over declarations compared to day planner and medical records.”); 3/8/12.

(0.1 hours billed to “Review e-mail from Jennifer [Sanchez] requesting my

memorandum pertaining to day timer.”).

Resp’t’s Resp. to Pet’rs’ Appl’n for Interim Compensation, filed Nov. 24, 2014, at

2 n.1. 5

Some of the time entries that the Secretary cited reflect Ms. Roquemore’s

activities in July and August 2011, when Ms. Roquemore was developing the case

before drafting the petition. The Secretary did not comment that around the same

time, Ms. Roquemore created another time entry on August 24, 2011. In this entry,

Ms. Roquemore wrote that she spent 0.1 hours “Review[ing] letter from Dr.

Brown.”

In an order memorializing an unrecorded status conference, the undersigned

expressed “concern[] about the completeness of petitioners’ presentation of

evidence.” Order, issued Dec. 2, 2014, at 1. The Sanchezes were ordered to file

four items: (a) Trystan’s baby journal, (b) the day planner, (c) the audio recording

of the visit with Ms. Marin-Tucker, and (d) a list of any other audio recordings

with doctors. Id. at 3 ¶ 1. In addition, if any items were not available, petitioners

were directed to explain why the items were not available in a statement made

under penalty of perjury. Id. at 3 ¶ 2.

Ms. Sanchez provided her explanation about the baby journal, day planner,

and audio recording with Ms. Marin-Tucker. Exhibit 56 (affidavit, signed Dec. 11,

2014). In doing so, she submitted the baby journal and day planner. Exhibits 57-

58. Only the first few pages of the baby journal were filled out, containing

information on Mr. and Ms. Sanchez’s family trees. The day planner had many

entries between January 16, 2009 and October 13, 2009 for birthdays, family

members’ appointments, payments due, and social events. In the planner, Ms.

Sanchez wrote reminders for Trystan’s appointments and often added a short note

memorializing what happened at the appointment. At times, she also recorded

Trystan’s moods and fever. This production appeared to resolve the dispute about

5

More substantively the Secretary opposed an award of attorneys’ fees and costs on the

ground that the claim lacked a reasonable basis. In the Secretary’s view, the expert for Mr. and

Ms. Sanchez had disregarded facts about the onset of Trystan’s seizures / abnormal movements.

Resp’t’s Resp., filed Nov. 24, 2014, at 10-15. Mr. and Ms. Sanchez were awarded a portion of

the amount requested. First Interim Fees Decision, 2016 WL 909186 (Feb. 17, 2016).

7

production of materials, although, as revealed later, Mr. and Ms. Sanchez had not

filed all materials.

In the context of supporting the application for an award of attorneys’ fees

and costs on an interim basis, Ms. Roquemore submitted a “Supplemental

Declaration.” CM/ECF 108. Ms. Roquemore recounted her actions in

representing Mr. and Ms. Sanchez. A particular point concerned activities in July

and August 2011. Id. at ¶¶ 13-17. Ms. Roquemore acknowledged that Vaccine

Rule 2 requires the production of medical records. Id. at ¶ 50. Ms. Roquemore,

however, disputed whether the Sanchezes were obligated to produce “photos,

calendars, journals, diaries, day timer, day planners and the like” because the

Guidelines are not a “law.” Id. She averred that she did not attempt “to thwart or

not fulfill my legal obligations in the Vaccine Program.” Id.

After the parties obtained reports from experts, the experts testified at an

entitlement hearing. The First Entitlement Decision found that Mr. and Ms.

Sanchez were not entitled to compensation. 2018 WL 5856556, issued Oct. 9,

2018. The First Entitlement Decision stated around February 15, 2009, Trystan’s

“arms contorted and he was jerking around. However, these movements were of

the type typically displayed by an infant suffering from a cold.” Id. at *4.

A motion for review was denied, 142 Fed. Cl. 247 (2019) and judgment was

entered on February 11, 2019. Mr. and Ms. Sanchez appealed the judgment

denying them compensation to the Federal Circuit. The Federal Circuit ruled that

there was an error because of the discrepancy between the April 10, 2013 Findings

of Fact and the [First] Entitlement Decision. Thus, the Federal Circuit vacated the

judgment and remanded the case. 809 Fed. Appx. 843, 852-53 (Fed. Cir. 2020).6

Upon remand, the parties obtained additional reports from the key causation

experts. A Second Entitlement Decision denied compensation. A primary reason

was that Trystan’s February 16, 2009 “arm contortions were not a manifestation of

a neurologic injury.” 2020 WL 5641872, at *40 (Aug. 26, 2020). Based upon the

April 10, 2023 Findings of Fact, the Second Entitlement Decision also re-stated

that Trystan did not make abnormal arm contortions from February through the

end of April. Id. at *40-45. In this context, the Second Entitlement Decision

6

The Federal Circuit also discussed a genetic issue. However, the Secretary’s pending

motion to reopen is not based upon newly discovered genetic information. Thus, this order does

not describe the genetic issues.

8

found that the February 16, 2009 episode of arm contortions was “short-lived,

singular, and did not signify a neurologic injury due to vaccination.” Id. at *42.

A motion for review was denied, 152 Fed. Cl. 782 (2021), and judgment was

entered again on February 16, 2021. Mr. and Ms. Sanchez appealed a second time.

A majority of judges from the Federal Circuit panel again vacated the judgment.

The Federal Circuit panel majority found an error in that the Second Entitlement

Decision did not explain why Trystan did not have seizures / abnormal movements

between February and May. 34 F.4th 1350 at 1354-56. The Federal Circuit panel

majority determined that it could find that the evidence before it preponderated in

favor of finding that Trystan’s seizures / abnormal movements started in February

and continued through May. The Federal Circuit panel majority, thus, concluded

that that Mr. and Ms. Sanchez were entitled to compensation. The case was

remanded for purposes of determining the amount of damages.

B. Activities on Second Remand, Including Discovery of Missing

Documents and Motion to Reopen

Upon receipt of the Federal Circuit’s mandate, the undersigned began to

schedule deadlines to resolve compensation quickly.7 This case warranted

prioritization because (a) the Sanchezes were entitled to compensation, and (b) at

the time of remand, this case had been pending the second longest amount of time

at the Office of Special Masters. See Order, issued Mar. 17, 2023 (denying the

Secretary’s motion for enlargement of time); Order, issued Nov. 9, 2022

(maintaining deadlines for life care plans in advance of damages hearing).

To document an unreimbursed expense for which they sought compensation,

Mr. and Ms. Sanchez produced, on April 12, 2023, an office note from Dr.

Valencia, dated August 6, 2011. Exhibit 262. On this date, Dr. Valencia

documented Trystan’s developmental delay and cerebral palsy. Id. at 2. She also

prescribed a medication for otitis media (an ear infection). Id.

More importantly for the pending motion to reopen and pending motion for

protective order, Dr. Valencia wrote about Ms. Sanchez’s request to change Ms.

Marin-Tucker’s medical record:

7

After the remand, the parties continued to develop their positions regarding damages.

Those events are not recounted in this order.

9

See Chief complaints; per Mom she wants her lawyer to talk to

us as she is trying to get compensation from VAERS for his

condition now. She needs letters to give them a strong case and

she was asking me to change Micaela Marin-Tucker's (PA)

notes on her first visit ESP [especially] the ROS [review of

symptoms] and the onset of symptoms. Per Mom she believes

our office did not “do anything wrong but instead is helping her

son and that she is not going after us but she needs

supplemental support from another agency”. In conclusion I

and my PA (Micaela Marin-Tucker) advised Mom that “we can

not change or ALTER” any of our previous documents since

they are considered PERMANENT RECORDS and that our

notes is based on the interview and assessments at the time of

visit and that it will be hard to recall anything on those visits

unless they were documented.

Id. at 1 (some spacing adjusted without notation). Ms. Sanchez’s request appeared

to be directed at the August 17, 2009 record from Ms. Marin-Tucker that reported

that Ms. Sanchez “noticed a change in [Trystan’s] development about 2-3 months

ago,” i.e., around May 17, 2009, or June 17, 2009. See Exhibit 1 at 54-56.

The Secretary noted this newly produced record in support of a motion to

extend the deadline for his filing a life care plan. See Resp’t’s Reply, filed May 1,

2023, at 5. The Secretary asserted that based upon Ms. Roquemore’s time entries

shortly before and shortly after August 6, 2011, “Ms. Roquemore was plainly

aware of the existence of Dr. Valencia’s August 6, 2011 record.” Id. at 6. In

addition, the Secretary also noted that Mr. Sanchez and Ms. Sanchez produced, for

the first time, records from Inland Regional Center (“IRC”) on March 22, 2023 as

Exhibit 243. These records, too, contain a statement from Ms. Sanchez about

when Trystan started to develop problems. Id. at 3-6.

Soon after the Secretary discovered the incompleteness in the production of

medical records from Dr. Valencia, a status conference was held, which was

recorded. During this status conference, Ms. Roquemore did not state whether she

possessed Dr. Valencia’s August 6, 2011 medical record but failed to produce it.

Tr. May 24, 2023 at 8.

The Sanchezes did not produce other medical records as well. The Secretary

sought to confirm that the production of other medical records was complete. So,

in a recorded status conference and later by motion, the Secretary requested

10

authority to issue subpoenas. During the status conference, Ms. Roquemore stated

that she would have to speak with the Sanchezes about it, but that she did not think

they would object. Tr. May 24, 2023 at 20-21. The Sanchezes ultimately did not

file any opposition to the request. The Secretary subpoenaed medical records from

four providers. Resp’t’s Mot’s., filed May 25, 2023. The Secretary obtained these

records. Exhibits S-V.

Of this group of records, the Secretary initially identified two more

documents that should have been produced during the entitlement phase. These

documents are at the foundation for the motion to reopen, which the Secretary filed

on August 16, 2023. 8 These are:

• An August 19, 2011 report from Dr. Brown. Exhibit T at 17-18.

• A June 3, 2010 email to James. F. Gusella, Ph.D. Exhibit U at 771-

72.

In Dr. Brown’s August 19, 2011 letter, he documents that he briefly

examined Trystan, who was “generally hypotonic.” Exhibit T at 17.9 Dr. Brown

stated that Trystan “showed no significant signs of neurologic disability before his

immunizations [on February 5, 2009] or 3 months later. This is apparently some

sort of degenerative neurologic process with an insidious onset that has left him

significantly disabled. Based upon the timing of the process and no conclusive

diagnosis after 2 years of testing, an immunization reaction cannot be totally

discounted.” Id. at 17-18.

The basis of Dr. Brown’s statement that Trystan “showed no significant

signs of neurologic disability” within three months of his vaccination apparently

was based upon his office notes from May 13, 2009. See Exhibit 1 at 53 (Dr.

Brown’s May 13, 2009 record noting a nasal congestion and a resolving viral

infection with no mention of arm movements). In his August 19, 2011 letter, Dr.

Brown wrote that Ms. Sanchez brought Trystan to him with a request to change his

previous record with respect to the onset of Trystan’s problems. Dr. Brown wrote:

8

Copies of the three medical records are also found as the appendix to Resp’t’s Mot. to

Reopen.

9

Dr. Brown wrote in all capital letters. However, this order quotes Dr. Brown with more

traditional capitalization. Dr. Brown also mistakenly refers to the February 5, 2009 and May 13,

2009 appointments as “2/5/11” and “5/13/11”.

11

3 year-old boy here with his mother with request for me to

write a clarifying letter concerning my last office visit

(5/13/09). I had seen him on one other occasion on 2/5/11 at 5

months-old when he received his first set of immunizations.

The 5/13/11 visit was for nasal congestion. His mother says that

shortly after his first immunizations she noticed he occasionally

moved his arms in a strange way. She says she told every

provider on his 3 subsequent visits in our office about these

movements and no one was concerned. She was hoping I would

remember her mentioning these movements and would clarify

my notes.

When I asked her to demonstrate the movement she was seeing,

she described and demonstrated a tonic extension and internal

rotation of her arms. This can represent decerebrate posturing

consistent with a seizure. Had I been told of that activity on any

of Trystan’s visits, I would not only have documented that in

the chart, but I would also had ordered an EEG (and MRI if the

EEG were abnormal). Therefore, I do not believe that particular

arm movement was brought to my attention on Trystan’s only

visit with me after the immunizations.

Exhibit T at 17. Dr. Brown finished his letter with an addendum: “A copy of this

encounter has been faxed and mailed to mother’s lawyer, Lisa Roquemore at 949-

222-2022. 18191 Von Karman Ave. Suite 470 Irvine, CA. 92612." Id. at 18. (The

fax number on Dr. Brown’s letter matches the fax number listed on CM/ECF for

Ms. Roquemore’s office). In the context of seeking a reopening of entitlement, the

Secretary contended that based upon Dr. Brown’s addendum, “petitioners’ counsel

knew of this record.” Resp’t’s Mot. to Reopen at 8.

After the Secretary filed the motion to reopen entitlement, a recorded status

conference was held on August 31, 2023. In this context, Ms. Roquemore stated

that to the extent the opposition to the forthcoming motion to reopen relied upon

factual allegations, they would be supported with affidavits. Tr. Aug. 31, 2023 at

19.

The Sanchezes opposed the motion to reopen. Pet’rs’ Resp., filed Sep. 6,

2023. The Secretary maintained his position. Resp’t’s Reply, filed Sep. 18, 2023.

As part of his reply, the Secretary identified another document, which arguably

supported reopening entitlement: handwritten notes from Trystan’s February 17,

12

2009 visit to Urgent Care. Exhibit T at 50. These notes appear to list Ms.

Sanchez’s concerns about Trystan and do not include a worry about a seizure or

abnormal movement. The reply appeared to complete the briefing for the motion

to reopen. 10

Mr. and Ms. Sanchez added a Sur-Reply on October 6, 2023. They

expressed an interest in presenting affidavits. The Sur-Reply stated:

Further, the silence [in their Response] is a mere unwillingness

to be baited into Respondent's quagmire of rabid and highly

speculative accusations which are veiled as facts or close to

fact, especially in light of the Vaccine Program's philosophy

that it is supposed to be, among other things, non-adversarial.

Although Petitioners do not believe that further explanation

regarding the medical records are relevant to the Motion to

Reopen, they have an understanding that it may be relevant for

this Court's future and other determinations. As such, separate

declarations will be filed shortly as to what happened over 10

years ago.

Pet’r’s Sur-Reply, filed Oct. 6, 2023, at 2.

In a status conference, the parties discussed a schedule. Ms. Roquemore

stated that the petitioners were planning to file an affidavit from Mr. Sanchez.

When asked whether she would be filing an affidavit herself, Ms. Roquemore

stated that it was undetermined. The Secretary did not oppose the submission of

affidavits. However, the Secretary inquired about a fact hearing in which any

affiants might testify. Tr. Oct. 31, 2023 at 25.

The petitioners were permitted to file an affidavit from Mr. Sanchez.

However, the testimony of Ms. Sanchez appeared more significant as she

possessed more direct knowledge. Order, issued Nov. 2, 2023, at 2 (citing

evidence). Thus, regardless of whether Mr. Sanchez testified via an affidavit, the

Secretary could seek oral testimony from either Mr. Sanchez, Ms. Sanchez, or both

Mr. Sanchez and Ms. Sanchez. Id.

10

Because the present ruling resolves only the motion for protective order, this ruling

does not set forth all the details of the arguments for and against reopening entitlement.

13

The petitioners filed an affidavit from Mr. Sanchez. Exhibit 295. They also

filed a status report regarding the motion to reopen on November 29, 2023. The

petitioners did not file an affidavit from Ms. Roquemore.

The Secretary requested oral testimony regarding the motion to reopen from

Ms. Sanchez and Ms. Roquemore. Resp’t’s Status Rep., filed Dec. 8, 2023. The

Secretary further developed arguments in support of reopening.

The parties discussed the possibility that Ms. Roquemore might be called

upon to explain the failure to produce documents, including the Dr. Brown letter,

in other status conferences. In light of these discussions, Mr. and Ms. Sanchez

retained a separate attorney with experience in the Vaccine Program, Richard

Gage. See Notice, filed Jan. 17, 2024.

At the request of Mr. and Ms. Sanchez, the Secretary reinforced his motion

to reopen via a Comprehensive Brief, filed on Jan. 11, 2024. The Secretary argued

that a “‘substantial change in the evidence’” may justify a departure from an

appellate court’s mandate. Resp’t’s Comp. Br. at 15, quoting Retractable Tech. v.

Becton Dickinson, 756 F.3d 1366, 1372 (Fed. Cir. 2014). Along the same line, the

Secretary contended that special masters may reopen entitlement based upon an

assessment of four factors: “‘(1) the nature of the proffered new evidence; (2) the

prejudice to the parties; (3) the length of the delay; and (4) the reason for the

delay.’” Resp’t’s Comp. Br. at 26, quoting Vant Erve v. Sec’y of Health & Hum.

Servs., 39 Fed. Cl. 607, 612 (1997), aff’d, 232 F.3d 914 (Fed. Cir. 2000).

The Secretary sought to establish that the newly discovered evidence

supported both a departure from the Federal Circuit’s mandate and a reopening of

entitlement. Included with the brief was an appendix listing 92 items which, the

Secretary contended, should have been produced during the entitlement phase. Of

these documents, the Secretary highlighted another potentially relevant record:

notes from a March 8, 2010 visit to Inland Counties Regional Center, during which

Ms. Sanchez reported that Trystan had a seizure episode on August 8, 2009.

Resp’t’s Comp. Br. at 13-14. The Secretary asserted that this was evidence that the

arm contortions began months, not days, post-vaccination. The Secretary also

again argued for the testimony of Ms. Sanchez and Ms. Roquemore. Id. at 29-30.

In doing so, the Secretary explained why, in his view, testimony from Ms.

Roquemore would not invade the attorney-client privilege or the attorney work

product doctrine. Id. at 30. The Secretary also requested five additional sets of

documents. Id. at 28-29. One of these items was the presentation of the Dr.

Brown letter that Ms. Roquemore had reviewed on August 24, 2011.

14

The formal request for Ms. Roquemore’s testimony raised to the forefront a

question as to whether the rules of ethics allowed Ms. Roquemore to remain as

counsel of record in a case in which she was likely to testify. See Order to Show

Cause, filed March 26, 2024.11 After the parties submitted briefs as well as the

Sanchezes averring that they wanted Ms. Roquemore to continue to represent them

(Exhibit 325), the undersigned took Mr. and Ms. Sanchez at their word. Ms.

Roquemore was permitted to continue to represent Mr. and Ms. Sanchez. Order,

issued Apr. 10, 2024.

In addition to allowing Ms. Roquemore to remain as counsel of record for

Mr. and Ms. Sanchez, the April 10, 2024 order attempted to schedule a few steps.

The sequence involved resolving the Secretary’s pending request for documents,

receiving a comprehensive brief from the petitioners regarding the motion to

reopen, and conducting a hearing on the motion to reopen. The plan was to hold

the hearing in San Diego, California, in the latter part of the summer.

Mr. and Ms. Sanchez opposed the Secretary’s request for documents.

Pet’rs’ Resp., filed Apr. 25, 2024. However, the arguments were presented far too

vaguely to be persuasive, and their objections were overruled. Order, issued Apr.

29, 2024. This order encouraged the parties to begin conferring about potential

dates for the hearing on the motion to reopen. Id. at 2 ¶ 4. The April 29, 2024

order did not reference the production of the Dr. Brown letter Ms. Roquemore had

reviewed.

Mr. and Ms. Sanchez maintained that entitlement should not be reopened.

Pet’rs’ Comp. Opp’n, filed May 9, 2024. First, they argued that the evidence was

cumulative in nature and/or not relevant. Additionally, they contended that the

mandate and the law of the case doctrine precluded re-litigation of entitlement, and

the circumstances did not justify a deviation from the mandate. The Sanchezes

also argued that, as the Secretary “knew or should have known” in 2014 that the

record was incomplete, he had waived the ability to raise the issue and should not

be allowed to benefit from his lack of due diligence. Pet’rs’ Comp. Opp’n at 23.

11

Around this time, Mr. and Ms. Sanchez attempted to prevent the undersigned from

ruling upon the pending motion to reopen via two different procedural paths. These efforts

resulted in further delays. See Opinion and Order, issued Mar. 22, 2024, 2024 WL 1637913.

15

Mr. and Ms. Sanchez were directed to produce the Dr. Brown letter that Ms.

Roquemore had reviewed. Order, issued May 16, 2024. The date of production

was set for May 31, 2024.

On May 31, 2024, Mr. and Ms. Sanchez did not comply with the May 16,

2024 order by submitting the Dr. Brown letter. They did not file anything. As

such, Mr. and Ms. Sanchez were directed to file this letter as a separate exhibit for

a second time. Order, issued June 5, 2024. Mr. and Ms. Sanchez requested

additional time to respond because Ms. Roquemore was out of the country when

the May 16, 2024 order was issued. Pet’rs’ Mot., filed June 11, 2024. Although

the motion made no representation about Mr. Gage’s status on May 16, 2024,

when the original deadline was set, the deadline was extended until June 21, 2024.

The deadline for Mr. and Ms. Sanchez to propose potential dates for the hearing on

the motion to reopen was also extended until June 21, 2024.

C. Pending Motion for Protective Order

Mr. and Ms. Sanchez opposed the order for a hearing. Pet’rs’ Mot. for

Protective Order, filed June 21, 2024. The motion is slightly longer than four

pages of which approximately half sets forth background material, leaving

approximately two pages of analysis. Mr. and Ms. Sanchez cited no cases.

Although the Sanchezes stated that “no further discovery or hearing are reasonable

and necessary,” they did not expand on this point or cite to any authority. They

argued that the Secretary was not entitled to be heard on a motion to reopen due to

waiver and lack of due diligence. They further argued that an in-person hearing

would be overly burdensome and might violate attorney-client privilege and work

product privilege.

The Secretary contended in a seven-page response that the hearing should

proceed. Resp’t’s Resp., filed July 26, 2024. 12 The Secretary essentially argued,

for various reasons, that Mr. and Ms. Sanchez had not established the high

standards for a protective order.

Mr. and Ms. Sanchez submitted a reply, approximately three pages in length.

The Sanchezes cited 42 U.S.C. 300aa-12(d)(3)(B) and argued that any proceedings

in the Vaccine Program must be “reasonable” and “necessary.” They repeated

12

The time was extended for the Secretary to file this response due to unexpected health

problems of his counsel.

16

their argument that there was waiver and a lack of due diligence by the Secretary,

and also argued that the documents were cumulative and would not change their

entitlement to compensation.

III. Analysis

In the Vaccine Program, special masters govern the production of evidence.

42 U.S.C. § 300aa–12(d)(3)(B). The Federal Circuit has recognized that “the

permissible scope of the special master’s inquiry is virtually unlimited. Congress

desired the special masters to have very wide discretion with respect to the

evidence they would consider and the weight to be assigned that evidence.”

Whitecotton v. Sec’y of Health & Hum. Servs., 81 F.3d 1099, 1108 (Fed. Cir.

1996).

Although special masters have latitude about the production of evidence, this

“very wide discretion” has some bounds. For example, parties in the Vaccine

Program may invoke privileges as they would in other courts, such as the Court of

Federal Claims. E.g. Wittner v. Sec’y of Health & Hum. Servs., 43 Fed. Cl. 199,

206 (1999) (ruling that special master did not err in allowing respondent to call a

doctor whom the petitioner’s attorney had consulted despite the argument of

attorney work product); C.f. Royal Bush Manufacturing, Inc. v. United States, 75

F.4th 1250, 1260 (Fed. Cir. 2023) (stating, in the context of a dispute over

antidumping duties, that Customs and Border Patrol has an “inherent authority to

issue protective orders”). In opposing Mr. and Ms. Sanchez’s motion for

protective order, the Secretary has not argued that special masters lack the

authority to issue protective orders.

In support of the request for a protective order, Mr. and Ms. Sanchez’s

motion cites only a single authority.13 Rule 26(c) of the Rules of the Court of

Federal Claims (“R.C.F.C.”). Pet’rs’ Mot. at 3. As discussed in the previous

paragraph, incorporating R.C.F.C. 26(c) into the Vaccine Program via Vaccine

Rule 1 appears both uncontroversial and appropriate.

This provision, in relevant part, states: “A party or any person from whom

discovery is sought may move for a protective order. . . . The court may, for good

13

The Sanchezes cite to 42 U.S.C. 300aa-12(d)(3)(B) in their reply. However, arguments

not presented in an opening brief are waived. SmithKline Beecham, Corp. v. Apotex Corp., 439

F.3d 1312, 1320 (Fed. Cir. 2006); Braseth Trucking, LLC v. United States, 126 Fed. Cl. 608, 615

(2016).

17

cause, issue an order to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” 14 A key provision is the “good cause”

standard. “Good cause requires a showing that the discovery request is considered

likely to oppress an adversary or might otherwise impose an undue burden.”

Forest Products Northwest, Inc. v. United States, 453 F.3d 1355, 1361 (Fed. Cir.

2006) (affirming denial of a motion for protective order because, in part, the

moving party did not provide sufficient detail). “For good cause to exist, the party

seeking to limit the disclosure of discovery materials must show that specific

prejudice or harm will result if no protective order is granted.” In re Violation of

Rule 28(D), 635 F.3d 1352, 1357–58 (Fed. Cir. 2011).

By these measures, the motion for protective order falls well short. Mr. and

Ms. Sanchez have not detailed why testimony is not appropriate. This lack of

specificity, by itself, justifies the denial of the motion for protective order. This is

not the first time that Mr. and Ms. Sanchez have been found to present arguments

against discovery too vaguely. Order, issued Apr. 29, 2024.

The Secretary has sufficiently explained why Ms. Roquemore’s testimony is

necessary, as it will help “fill [the] evidentiary gap” regarding the letter from Dr.

Brown which was reportedly sent to her office via fax and mail, and Ms.

Roquemore’s timesheet entry for reviewing a letter from Dr. Brown. Resp’t’s

Comp. Br. at 29-30 (discussing the Vant Erve “reason for delay” factor).

Although Mr. and Ms. Sanchez propose that they might provide information

via written interrogatories, such a proposal is not an adequate substitute for in-

person testimony for several reasons. To the extent that Mr. Sanchez, Ms.

Sanchez, and/or Ms. Roquemore wished to explain in writing the circumstances of

how and why multiple medical records were not produced during entitlement, they

separately or collectively could have produced affidavits or declarations made

under penalty of perjury months ago. Overall, Mr. Sanchez, Ms. Sanchez, and Ms.

Roquemore have seemed to be attempting to avoid discussing their failure to

produce documents. Their willingness to provide information voluntarily on their

terms seems to have expanded after they were ordered to produce the information.

14

Another portion of R.C.F.C. 26(c)(1), which was deleted from the material quoted in

the text as marked by the ellipses, requires a moving party to confer. Mr. and Ms. Sanchez have

stated that they conferred with the Secretary via correspondence dated June 18, 2024. Pet’rs’

Mot. for Prot. Order at 3.

18

Next, regardless of the motivations of Mr. Sanchez, Ms. Sanchez, and Ms.

Roquemore, the Secretary has a good faith basis to explore the circumstances of a

failure to produce many documents. The Secretary possesses a right to choose the

method of investigation. De Graffenreid v. United States, 2 Cl. Ct. 640, 644

(1983) (“a party cannot evade oral depositions merely by soliciting written

interrogatories”). Writing answers to written interrogatories would not allow the

Secretary to press follow up questions and could, simply, delay adjudication as the

parties almost inevitably would dispute whether the Secretary could ask questions

at another hearing to a witness that answered interrogatories.

The Secretary’s preference for in-person oral testimony is sensible.

Famously, Professor Wigmore declared that cross-examination is “beyond any

doubt the greatest legal engine invented for the discovery of truth.” 5 J. Wigmore,

Evidence § 1367, p. 32 (J. Chadbourn rev. 1974), quoted in United States v.

Salerno, 505 U.S. 317, 328 (1992) (Stevens, J., dissenting).15 Written

interrogatories are less likely to lead to the discovery of truth. Furthermore,

without live testimony, the undersigned cannot assess the witness’s demeanor in

spontaneously answering questions under oath. This assessment may be critical

because Ms. Sanchez and Ms. Roquemore will be testifying as fact witnesses. See

Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009)

stating a “trial court makes a credibility determination in order to assess the candor

of a fact witness”); Herrman v. United States, 129 Fed. Cl. 780, 784 (2017)

(denying a request from non-party witnesses to appear by videoconferencing

because, in part, the “court values the ability to evaluate the witnesses’ credibility

and demeanor in person”). Trial courts “enjoy wide latitude to determine

admissibility and the mode and order of evidentiary presentations.” SEB S.A. v.

Montgomery Ward & Co. Inc., 594 F.3d 1360, 1373 (Fed. Cir. 2010) (internal

quotation marks omitted), aff’d on non-relevant point, Global-Tech Appliances,

Inc. v. SEB S.A., 563 U.S. 754 (2011).

A lively and free-flowing exchange of questions and answers during oral

testimony is much more likely to produce the truth, either because of what the

witness says, what the witness does not say, or how the witnesses say what they

say. In the course of any testimony, the questions posed to Ms. Sanchez and/or

Ms. Roquemore may (or may not) come close to information protected by either

the attorney-client privilege and/or the attorney work product doctrine. But, this

15

The Federal Circuit quoted an earlier edition of the same treatise in SynQor, Inc. v.

Vicor Corp., 988 F.3d 1341, 1352 n.5 (Fed. Cir. 2021).

19

possibility does not mean that all questions will. The questions can be evaluated

on a question-by-question basis. 16 See In re Unilin Décor N.V., 153 Fed. App’x

726, 727 (Fed. Cir. 2005) (stating in a non-binding order denying a petition for

mandamus that the “determination of what is a legal strategy and what is a

discoverable fact is undoubtedly a tough line to draw and, in the absence of a

showing of clear abuse of discretion, is best left to the supervision of the trial judge

on a case-by-case basis”).

This ruling should not be construed as a ruling that Mr. and Ms. Sanchez

have failed to interpose an objection to any question based upon the attorney-client

privilege or the attorney work product doctrine. As just stated, questions will be

considered one at a time. Whether Mr. and Ms. Sanchez choose to assert any

privileges available to them is for them to decide. In this regard, Mr. and Ms.

Sanchez may wish to consider that at least in some cases, when the actions of a

represented party are called into question, attorneys sometimes testify. See, e.g.,

Backertop Licensing LLC v. Canary Connect, Inc., 107 F.4th 1335, 1344 (Fed. Cir.

2024) (holding that District Court was “reasonable . . . to require in-person

testimony in furtherance of its authority to investigate attorney and party

misconduct”); Luv n' Care, Ltd. v. Laurain, 98 F.4th 1081, 1095 (Fed. Cir. 2024)

(noting that party’s former counsel gave testimony in proceeding over unclean

hands). Certainly, these examples do not require Mr. and Ms. Sanchez to waive

any privileges, but these examples do indicate that attorneys have testified. Mr.

and Ms. Sanchez may, arguably, have already waived the attorney-client privilege

by submitting a declaration from Ms. Roquemore on December 12, 2014.

CM/ECF 108.

Mr. and Ms. Sanchez argued in a few sentences that oral testimony should

not be conducted until the undersigned has declared what the law is and resolve

their contention that the Secretary waived his opportunity to seek the production of

the newly revealed documents. See Pet’rs’ Mot. at 4. However, Mr. and Ms.

Sanchez have not cited any authority for this rationale for a protective order.

16

In anticipation of the hearing, the undersigned invites Mr. and Ms. Sanchez to discuss

the metes and bounds of the attorney-client privilege and the work product doctrine in a

memorandum. Any discussion would be more informative if Mr. and Ms. Sanchez presented

authorities that analyzed the attorney-client privilege and the work product doctrine in the

context of a party’s failure to disclose evidence.

20

Trial courts “are afforded broad discretion to control and manage their

dockets, including the authority to decide the order in which they hear and decide

issues pending before them.” Amado v. Microsoft Corp., 517 F.3d 1353, 1358

(Fed. Cir. 2008). In the undersigned’s assessment, the better practice is first to

obtain all relevant and non-privileged evidence and then to resolve the motion to

reopen. 17

Finally, the May 16, 2024 order required Mr. and Ms. Sanchez to submit as

a separately numbered exhibit the Dr. Brown letter that Ms. Roquemore reviewed

on August 24, 2011. Mr. and Ms. Sanchez have not complied with this order. The

pending motion for protective order emphasizes the alleged burdensomeness of a

hearing. Very little, if any, of the motion for protective order concerns the

production of a single document. To the extent that the motion for protective order

could be construed as seeking relief from the obligation to produce Dr. Brown’s

letter, that aspect of the motion for protective order is denied as well.

Mr. and Ms. Sanchez are being given a final opportunity to cure their lack of

compliance with respect to the production of the Dr. Brown letter as a separately

filed exhibit. If Mr. and Ms. Sanchez do not comply with this order to file the Dr.

Brown letter as a separately filed exhibit, the Secretary may seek sanctions as

provided in Rule 37(b) of the Rules of the Court of Federal Claims.

IV. Conclusion and Schedule

The petitioners’ June 21, 2024 motion for protective order is DENIED. The

proposed testimony is reasonable and necessary to adjudicate the motion to reopen.

To advance the resolution of this case, the following schedule is established:

1. Mr. and Ms. Sanchez are directed to file the Dr. Brown letter that Ms.

Roquemore reviewed on August 24, 2011 as a separately filed exhibit

by Wednesday, August 21, 2024.

2. Mr. and Ms. Sanchez are directed to file a status report regarding their

availability for a two-day hearing to be held in San Diego,

California.18 Mr. and Ms. Sanchez should propose dates that are

17

In between the completion of oral testimony and the resolution of the motion to reopen,

an in-person oral argument may be scheduled.

18

For a range of dates that were once convenient, see Resp’t’s Status Rep., filed May 22,

2024 and Order, issued June 5, 2024. The week of September 16 is no longer available.

21

convenient for Ms. Roquemore because Ms. Roquemore will be called

to testify as a witness. The deadline for this status report is

Wednesday, August 28, 2024.

3. If Mr. and Ms. Sanchez fail to comply with the order to submit the Dr.

Brown letter that Ms. Roquemore reviewed on August 24, 2011 as a

separately filed exhibit by Wednesday, August 21, 2024, the Secretary

may file a motion for sanctions. Any such motion shall be filed by

Wednesday, September 25, 2024. If the Secretary seeks sanctions,

Mr. and Ms. Sanchez may respond within the time permitted by the

Vaccine Rules.

4. Mr. and Ms. Sanchez may file a memorandum regarding the attorney-

client privilege and the attorney work product doctrine. The purpose

of this memorandum would be to inform the adjudication of any

objections to questions posed during the forthcoming hearing. As

such, the memorandum is likely to be more helpful if it discusses the

attorney-client privilege or the attorney work product doctrine in the

context of a party’s failure to produce documents. The memorandum

is also likely to be more helpful if it discusses the waiver of attorney-

client privilege or the attorney work product doctrine in the context of

attorneys describing their activities. The deadline for any such

memorandum from Mr. and Ms. Sanchez is Wednesday, September

25, 2024. If Mr. and Ms. Sanchez file a memorandum, the Secretary

may respond with a memorandum within 21 days.

5. Finally, although not related to the motion for protective order or the

motion to reopen, Mr. and Ms. Sanchez shall file any updated records

for Trystan. The updated records should be certified by a custodian of

documents. Mr. and Ms. Sanchez shall file any updated records by

Wednesday, September 25, 2024. If there are no updated records,

Mr. and Ms. Sanchez should file a status report on the same date.

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special Master

22