SANCHEZ v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

GERMAIN SANCHEZ and *

JENNIFER SANCHEZ, *

parents of T.S., *

* No. 11-685V

Petitioners, * Special Master Christian J. Moran

v. *

*

SECRETARY OF HEALTH * Filed: February 17, 2026

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, Zoey Wade, and Madylan Yarc, United States Dep’t of Justice, Washington,

DC, for respondent.

ORDER REGARDING RESPONDENT’S

MOTION TO REOPEN AND MOTION FOR SANCTIONS1

Germain and Jennifer Sanchez filed this case in 2011, claiming that various childhood

vaccinations given to their son, T.S., on February 5, 2009, harmed him by causing a neurologic

problem. Pet., filed Oct. 17, 2011. A critical issue was when T.S. first displayed any symptoms

of a neurologic problem.

After litigation lasting more than a decade, the Federal Circuit found, as a fact, that T.S.

started having neurologic problems, specifically abnormal arm movements, close in time to the

vaccinations. The Federal Circuit primarily relied upon testimony from Mr. and Ms. Sanchez,

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), the

parties 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.

1

given first by affidavit in 2011 and later by oral testimony in 2012 (fact hearing). Based upon

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

34 F.4th 1350 (Fed. Cir. 2022).

In 2023, while investigating the amount of compensation to which Mr. and Ms. Sanchez

were entitled, the Secretary received medical records that Mr. and Ms. Sanchez should have

produced years and years earlier. The Secretary grounds the pending motion to reopen the issue

of entitlement upon his recent discovery of previously available evidence, arguing that this

evidence is sufficient to undermine the previous finding of fact. The Sanchezes maintain that the

newly produced evidence is cumulative with previous evidence. The Sanchezes also argue that

their failure to produce documents is excused because the Secretary should have requested the

missing documents earlier in the litigation

The Secretary also moved for an imposition of sanctions on the Sanchezes due to their

and their attorney’s alleged misconduct with respect to the preservation and production of

evidence. The Secretary moved for dismissal or, in the alternative, an order granting an adverse

inference. Mr. and Ms. Sanchez opposed the motion for sanctions.

The Secretary has satisfied the standards for reopening entitlement because the medical

records produced in 2023 constitute newly discovered evidence that warrant a departure from the

Federal Circuit’s mandate. Mr. and Ms. Sanchez and their attorney, Lisa Roquemore, were

responsible for the failure to file crucial medical records in 2011. Thus, the argument that the

Secretary is responsible for the absence of missing records is not persuasive. Further, upon a

reopening of entitlement, preponderant evidence supports finding that T.S.’s initial abnormal arm

movements occurred months later than previously found. Whether this change in fact-finding

results in a change in outcome will be determined later.

As discussed below, the Secretary has deferred any request for sanctions until Mr. and

Ms. Sanchez seek additional attorneys’ fees and costs. The Secretary’s motion for sanctions is

therefore denied as moot.

The outline of this lengthy opinion is as follows:

I. The Process by Which Medical Records are Submitted ............................................. 3

II. Procedural History ...................................................................................................... 5

III. Analysis Part One: Motion to Reopen .................................................................. 19

IV. Analysis Part Two: Findings of Facts ................................................................... 35

V. Analysis Part Three: Motion for Sanctions ............................................................... 66

VI. Conclusion ............................................................................................................ 66

2

I. The Process by Which Medical Records are Submitted

For the motion to reopen and the motion for sanctions, the key issue concerns the

production of medical records. Thus, the law regarding the duties for submitting medical records

is explained as a foundation for the analysis that follows. By way of background, the Vaccine

Program is intended to be “less adversarial.” Vaccine Rule 3(b)(2). Congress’s plan to create a

less adversarial process for resolving claims that a vaccine injured someone is reflected in

several aspects of the Vaccine Act.

Congress directed that when a petition is filed, the petition “shall contain … (2) pre- and

post-injury physician or clinic records (including all relevant growth charts and test results), all

post-injury inpatient and outpatient records (including all provider notes, tests results, and

medication records).” 42 U.S.C. § 300aa–11(c). This statutory requirement is at center of the

parties’ dispute regarding whether entitlement should be reopened.

As to the scope of material to be filed with a petition, judicial officers offered some

instructions. First, the judges of the Court of Federal Claims promulgated the Vaccine Rules.

Citing 42 U.S.C. § 300aa–11(c), the Vaccine Rules require petitioners to present medical records

relating to “any post-vaccination treatment of the injured person, including all in-patient and out-

patient records.” Vaccine Rule 2(c)(2)(A)(iii).

Second, special masters authored a set of Guidelines, which detail the types of medical

records expected to be filed. In the 2004 version, which was in place at the time the Sanchezes

filed their petition, the Guidelines provided:

The statute at § 11(c) explicitly sets forth the required documents,

as does Vaccine Rule 2(c). The scope of the requirements is,

intentionally, very broad. Counsel should include all medically-

related records that might possibly shed light on the question of

causation. Indeed, in the typical case where the vaccine recipient

was an infant when vaccinated, the petition should include all

medical records relating to the pregnancy and resulting delivery, as

well as records pertaining to the infant’s entire lifetime prior to the

vaccination, including those of “well baby” visits. In addition, the

petition must contain in every case all records pertaining to the

vaccination itself and all post-vaccination medical examination and

treatment records of the individual.

In short, if there is any doubt whether a record falls within the

above description, it should be included.

3

Section II.B.1.2 Through the Guidelines, the special masters also added: “If petitioner has doubts

about the relevance of requested records, petitioner should keep in mind that the standard used

for determining relevance will ordinarily be a quite liberal one, i.e., whether the requested

records might shed light upon any issues relating to petitioner’s claim.” Section III.3

In 2011, when Mr. and Ms. Sanchez were submitting medical records about T.S., the

informal spirit of the Vaccine Program was reflected in how petitioners submitted medical

records. To a large degree, respondent and special masters tended to trust that petitioners were

presenting accurate and complete sets of medical records. The Secretary, to the undersigned’s

knowledge, rarely, if ever, attempted to verify the accuracy and completeness of medical records

submitted by a petitioner’s attorney by obtaining medical records directly from the medical

provider. Without this investigatory oversight, the submission of medical records largely, if not

entirely, depended upon the good faith and professionalism of the petitioners and the attorneys

representing them.4

The Secretary, too, has a responsibility to present accurate information. In the context of

a case in which a doctor retained by the Secretary did not disclose that his medical license was

suspended, a judge of the Court of Federal Claims stated: “The court believes that a party in a

vaccine injury case has a duty to update or supplement inaccurate information in the record

before the special master." Contreras v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 472, 477

(2014), judgment vacated on other grounds after intervening proceedings, 844 F.3d 1363 (Fed.

Cir. 2017).

Outside of the Vaccine Program, the obligation to supplement disclosures is codified in

paragraph (e) of Rule 26 of the Rules of Civil Procedure. See Ideal Innovations, Inc. v. United

States, 167 Fed. Cl. 314, 341-43 (2023) (noting that plaintiff was responsible for changing its

responses to interrogatories when its position changed). Although the Federal Rules of Civil

Procedure do not govern how cases are processed in the Vaccine Program, see 42 U.S.C.

§ 300aa–12(d)(2); see also Cedillo v. Sec'y of Health & Hum. Servs., 617 F.3d 1328, 1342 (Fed.

Cir. 2010) (noting that the discovery rules of the Federal Rules of Civil Procedure “do not apply

2

This comment in the Guidelines---to err on the side of producing all information---is

consistent with the legislative history associated with the Vaccine Act. Congress “intend[ed] for

the parties and the court to construe this provision broadly so as to require the submission of a

meaningful file of information.” H.R. CONF. REP. No. 101-386, at 514-15 (1989), as reprinted

in 1989 U.S.C.C.A.N. 3018, 3117-18.

3

The current Guidelines are similar. See Guidelines Section II, Chapter 3.

4

After questions arose about how petitioners and their attorneys were gathering medical

records, special masters began to require that petitioners and their attorneys submit certifications

from custodians of medical records about the number of pages being provided. When the

Sanchezes were submitting T.S.’s medical records in 2011, they were not required to submit

certifications.

4

to proceedings under the Vaccine Act. Rather, such proceedings are governed by [the Vaccine

Rules]”); portions of the Rules of the Court of Federal Claims (“RCFC”) have been followed in

Vaccine Program cases. See, e.g., Snyder v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 390,

392 (2006) (following Rule 25 regarding substitution of parties), aff’d on non-related ground sub

nom., Zatuchni v. Sec’y of Health & Hum. Servs., 516 F.3d 1312 (Fed. Cir. 2008); Seacor v.

Sec’y of Health & Hum. Servs., 34 Fed. Cl. 141, 143-44 (1995) (using Rule 6(a) to determine

how a state holiday affected the deadline for filing a motion for review).

II. Procedural History

When adjudicating a motion to open a judgment due to the discovery of previously

available evidence pursuant to Rule 60(b)(2) of the Rules of Civil Procedure, an “[a]nalysis of

the record is necessary.” Venture Industries Corp. v. Autoliv ASP, Inc., 457 F.3d 1322, 1329

(Fed. Cir. 2006). Thus, the procedural history of the case, including the creation of the

evidentiary record, is provided. A list of all the published opinions and published orders can be

found in Appendix A.

A. Consultation and Retention of Attorney Roquemore

To pursue a potential claim in the Vaccine Program, Ms. Sanchez consulted with the

attorney who eventually filed the petition, Lisa Roquemore, on July 29, 2010. Timesheets at 6.5

It appears that Ms. Roquemore reviewed medical records that Mr. and Ms. Sanchez provided to

her. Over the next few months, Ms. Roquemore continued to review information, to conduct

legal research, and to confer with a potential expert, Lawrence Steinman.

Ms. Roquemore agreed to represent Mr. and Ms. Sanchez on April 19, 2011. Timesheets

at 7; Supp’l Decl. at ¶ 10.6 The Sanchezes collected T.S.’s medical records.7 Eventually, the

5

“Timesheets” refer to Ms. Roquemore’s invoices. Mr. and Ms. Sanchez submitted Ms.

Roquemore’s invoices as “Fee Exhibit 2” in support of a first motion for an award of attorneys’

fees and costs on an interim basis, filed on September 16, 2014. The citation to specific pages

refers to the pagination appearing in the bottom right corner.

6

After the Sanchezes filed their first motion for an award of attorneys’ fees on an interim

basis, the Secretary identified potential omissions of materials, argued that there was no

reasonable basis for filing the petition, and argued that the amount of fees and costs was

unreasonable. See Order, issued Dec. 2, 2014. On December 12, 2014, the Sanchezes filed a

reply addressing these points, accompanied by a supplemental declaration from Ms. Roquemore

explaining some of the entries on her timesheets and discussing some materials that were not

submitted.

7

In a recorded status conference on May 24, 2023, Ms. Roquemore stated that, in 2011,

she “always had the clients collect the medical records.” May 24, 2023 Tr. at 9. Her office’s

“current practice” is to have the client obtain certified records “in conjunction with the office.”

Id.

5

petition presented information about medical records created by, among others, Dr. Brown on

August 19, 2009, and Ms. Marin-Tucker on August 17, 2009. As discussed below, the medical

professionals creating these medical records did not memorialize any complaint that T.S. was

moving his arms abnormally.

Around this time, Ms. Sanchez provided Ms. Roquemore with a day planner, reflecting

some activities in 2009. Supp’l Decl. ¶ 16. As discussed below, Mr. and Ms. Sanchez did not

produce this day planner until December 2014, when it was filed as Exhibit 58. Ms. Roquemore

maintained that because the day planner is not a medical record, she did not have an obligation to

produce the day planner. Supp’l Decl. ¶¶ 16, 52.

B. Medical Records Created in August 2011 and Ms. Roquemore’s Comments

on Them

On August 5, 2011, Ms. Roquemore spoke with Ms. Sanchez about “upcoming doctor

appointments and clarifications of medical records. Further discuss journal entries.” Timesheets

at 15. Because Ms. Sanchez had informed Ms. Roquemore that she (Ms. Sanchez) had told

T.S.’s doctors that he was moving strangely, Ms. Roquemore suggested that Ms. Sanchez

“attempt to obtain clarification by T.S.’s doctors to see what was recalled and if the doctor was

willing to provide a clarification letter.” Supp’l Decl. ¶ 15. The doctors from whom Ms. Sanchez

sought clarification were Dr. Valencia and Dr. Brown.8 The materials associated with Dr.

Valencia and Dr. Brown are critical to the pending motion to reopen.

1. Dr. Valencia

Ms. Sanchez brought T.S. to see Dr. Valencia on August 6, 2011. Exhibit 262 at 1. The

Secretary has identified this record as a record that should have been provided much earlier.

Resp’t’s Reply regarding Mot. to Reopen, filed Sept. 18, 2023, at 5-7. Dr. Valencia has

documented:

[Ms. Sanchez] 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 the ROS

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

8

The author of the August 19, 2009 medical record (Exhibit 1 at 54-56) is Ms. Micaela

Marin-Tucker, who is a physician’s assistant in Dr. Valencia’s office. For a time, Ms. Sanchez

believed that Ms. Marin-Tucker was a doctor.

6

RECORDS and that our notes [are] 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.

Exhibit 262 at 1.

Ms. Sanchez made an audio recording of this appointment at Dr. Valencia’s office, using

her phone. Exhibit 56 ¶ 6. Ms. Sanchez provided a compact disc with the recording to Ms.

Roquemore. Exhibit 56 ¶ 7; Supp’l Decl. ¶¶ 17, 55. This audio recording was not filed as an

exhibit and in her December 11, 2014 affidavit, Ms. Sanchez stated that she had no idea where

the recording is. Exhibit 56 ¶ 7.

Within two weeks of the August 6, 2011 appointment at Dr. Valencia’s office, Ms.

Roquemore reviewed an “e-mail from J. Sanchez regarding meeting with Dr. Micaela.”

Timesheets at 15 (Aug. 17, 2011). Ms. Roquemore conferred with Ms. Sanchez about “more

details of meeting and items needing clarifying. Further discuss upcoming meeting with Dr.

Brown. Further discuss status of journal, date of entries, and other witness statements.” Id.

In the following week, Ms. Roquemore reviewed “medical records for office visit with

Dr. Micaela” and she had a telephone conference with “Dr. Micaela’s office to discuss medical

record.” Timesheets (Aug. 22, 2011); accord Supp’l Decl. ¶ 17 (“Ms. Roquemore ‘was even

called upon to discuss the issues with Micaela’s/Dr. Valencia’s office’”). The following day,

Ms. Roquemore spoke with a malpractice attorney about a clarification letter. Timesheets (Aug.

22, 2011); Supp’l Decl. ¶ 17. Ultimately, Ms. Marin-Tucker’s August 17, 2009 record was not

clarified. See Supp’l Decl. ¶ 17 (“the attempt to obtain clarification of what was reported to

them [Dr. Valencia and Ms. Marin-Tucker] by [Ms. Sanchez] turned out to be a dead end.”)

2. Dr. Brown

Ms. Sanchez brought T.S. to see Dr. Brown on August 19, 2011. Dr. Brown

summarized that the purpose of the visit was to address Ms. Sanchez’s request that Dr. Brown

“write a clarifying letter concerning my last office visit (5/13/09).” Exhibit T at 17.9 Dr. Brown

then memorialized information from Ms. Sanchez: “The 5/13/11 [sic, should probably be

5/13/09] visit was for nasal congestion. His mother says that shortly after his first immunization

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.”

Id.

Dr. Brown then elicited additional information from Ms. Sanchez: “When I asked her to

demonstrate the movement she was seeing, she described and demonstrated a tonic extension and

internal rotation or [sic, presumably “of”] her arms. This can represent decerbrate posturing

9

Dr. Brown wrote his letter using ALL CAPITAL LETTERS. However, his letter is

quoted above using more traditional capitalization.

7

consistent with a seizure.” Exhibit T at 17. Dr. Brown communicated his response to Ms.

Sanchez: “Had I been told of that activity on any of [T.S.]’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 [T.S.]’s only visit with me after the immunizations.”

Dr. Brown also conducted “a brief exam.” He stated T.S. suffered from “some sort of

degenerative neurologic process with an insidious onset that has left him significantly disabled.

Based on the timing of the process and no conclusive diagnosis after 2 years of testing, an

immunization reaction cannot be totally discounted.” Exhibit T at 17-18. This “brief exam”

means that Dr. Brown created a “medical record.” See 42 U.S.C. § 300aa-11(c) (requiring the

production of “all post-injury . . . outpatient records (including all provider notes. . .).” When

testifying about this record in 2025, Ms. Roquemore agreed that Dr. Brown’s August 19, 2011

document was a “medical record.” Tr. 4342.

Dr. Brown added that “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.

At the fact hearing in 2025, Ms. Sanchez testified that she did make a recording of an

appointment with Dr. Brown, but she could not recall if it was the May 2009 or August 2011

appointment. Tr. 4062-66. However, earlier statements indicate that Ms. Sanchez recorded this

August 2011 appointment with Dr. Brown. Ms. Sanchez averred in 2014:

Ms. Roquemore said it couldn't hurt to see if [the medical providers] recalled that

which I recalled and if so if they would be willing to write a letter to that effect or

some sort of correction to the medical records . . . I believe I made a recording of

a meeting with Dr. Brown as well. But, I don’t remember much about it other

than I felt he was one of the most uncaring doctors ever.

Exhibit 56 ¶ 6. Additionally, in opposition to the Secretary’s motion to reopen, Mr. and Ms.

Sanchez stated, “Mrs. Sanchez met with Ms. Michaela, P.A. and Dr. Brown to obtain

clarifications of the medical records and had recorded the meetings.” Pet’r’s Opp’n, filed Sep. 6,

2023, at 19. However, regardless of which appointment was recorded, the status of an audio

recording with Dr. Brown is unknown.

Within one week of the August 19, 2011 appointment with Dr. Brown, Ms. Roquemore

spent 0.1 hours reviewing a “letter from Dr. Brown.” Timesheets at 16 (Aug. 24, 2011). She

also emailed Ms. Sanchez “regarding Dr. Brown and Petition.” Id.

C. Submission of Petition and Initial Sets of Medical Records, October 2011

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

October 17, 2011. They alleged that various childhood vaccinations, given to T.S. on February

5, 2009, harmed him. Pet., filed Oct. 17, 2011. The petition referred to an appointment with a

physician’s assistant, Micaela Marin-Tucker, on August 17, 2009, during which Ms. Sanchez

8

reported that she noticed a change in T.S.’s development about two to three months earlier. Id.

at 5, citing Exhibit 1 at 54-56.10 Ms. Roquemore represented that after the case was converted to

electronic filing, the petition would be accompanied by “Medical Records, pre- and post

February 05, 2009 vaccinations from all hospitals and medical treatments within the United

States.” Id. at 13.

Within approximately two weeks of the petition’s submission and the conversion to

electronic filing, Ms. Roquemore stated that “After a good faith effort, Petitioner believes all

available medical records have now been filed.” Pet’rs’ Statement of Completion, dated Oct. 27,

2011. Mr. and Ms. Sanchez did not submit the August 6, 2011 medical record from Dr. Valencia

or the August 19, 2011 medical record from Dr. Brown. They also did not submit records from

some places where T.S. had received therapy, such as the Inland Regional Center, at this time.

D. Affidavit Testimony regarding T.S.’s Health from February 5, 2009 through

August 17, 2009

Mr. and Ms. Sanchez submitted five affidavits with their petition. The most significant

comes from Ms. Sanchez because she was the one who took T.S. to see various doctors.

1. Jennifer Sanchez’s Affidavit, Exhibit 3

Ms. Sanchez averred as follows: After the February 5, 2009 vaccination, T.S. was very

upset and cried. His temperature was 102.2 degrees. He had a lump on his thigh. Exhibit 3 ¶ 5.

The fever lasted about two days. She considered this reaction to be typical as Dr. Brown had

informed her that “fever and fussiness were normal side effects of the immunization.” Id.

On Ms. Sanchez’s birthday, February 15, T.S. began to run a fever again. On the evening

of February 16, 2009, T.S. was very hot and crying inconsolably. Exhibit 3 ¶ 6. Mr. Sanchez

was caring for T.S. because Ms. Sanchez, who was pregnant, had nausea, vomiting, and fatigue.

Late in the evening, Mr. Sanchez brought T.S. upstairs and showed her that T.S. was stiffening

his arm. Id.

On February 17, 2009, Ms. Sanchez brought T.S. to Urgent Care, where he was seen by a

Physician Assistant, Jonathan P. Luna. Exhibit 3 ¶ 7. Ms. Sanchez inquired about “all the

fussiness and strange stiffness.” Id. Ms. Sanchez told Mr. Luna “about the weird movements

and [T.S.] being stiff in addition to his other symptoms.” Id. Mr. Luna did not conduct any tests

and “he failed to document everything that was said in the medical records.” Id. He advised Ms.

Sanchez to continue medicine to reduce T.S.’s fever.

Between the February 17, 2009 visit with Mr. Luna and the April 29, 2009 visit with Dr.

Seleem, Ms. Sanchez and Mr. Sanchez were anxious about T.S. Exhibit 3 ¶ 8. They observed

that T.S.’s behavior changed in that he was not as active. His development slowed. T.S. was

10

The notice of filing for Exhibit 1 identifies this material as T.S.’s medical records

without identifying the source of those records. Notice of Filing, filed Oct. 21, 2011.

9

“lethargic, tired, weak and just appeared to be in a daze.” Id. The family did not take T.S. for

medical attention because his symptoms were not of serious concern according to his doctor.11

Ms. Sanchez brought T.S. to the pediatrician’s office where Dr. Seleem saw him. Exhibit

3 ¶ 9. Dr. Seleem diagnosed T.S. as suffering from an ear infection and bronchitis. Ms. Sanchez

told Dr. Seleem about “the strange behavior,” but the “doctor completely ignored this fact and

did not report everything in the medical record that [he was] told.” Id.

Ms. Sanchez brought T.S. to see Dr. Brown on May 13, 2009, with her mother. Exhibit 3

¶ 10. T.S. was still congested. Ms. Sanchez “expressed her concerns to the doctor and explained

the strange body and arm stiffness, fevers, congestion, and lethargy. . . . The doctor appeared to

not care at all.” Id. “The doctors tried to make us believe that the progression of [T.S.]’s illness

was ‘normal,’ that the duration of his congestion, other cold symptoms and the odd

movements/stiffness were not suspicious, and that there was no need to be overly concerned.”

Id.

Mr. and Ms. Sanchez decided to change T.S.’s pediatrician for his one-year well-baby

appointment, which they scheduled with Ms. Marin-Tucker. Exhibit 3 ¶ 11. Ms. Sanchez

informed Ms. Marin-Tucker that she had noticed a change in T.S.’s development. She also

reported that after the first set of shots, T.S. got really sick and that he had made these strange

movements with his body and arm.

Ms. Sanchez signed her affidavit on October 5, 2011. She did not discuss any visits she

had with Dr. Brown or another pediatrician, Dr. Rainilda Valencia, in August 2011.

2. Germain Sanchez’s Affidavit, Exhibit 4

Mr. Sanchez’s affidavit largely tracks the affidavit from his wife. Mr. Sanchez added

more information about the evening of February 16, 2009, when he was caring for T.S. while his

wife was sick and exhausted. Mr. Sanchez stated that T.S. “felt very stiff and uncomfortable.”

Exhibit 4 ¶ 6. “[T.S.] began to hold his arm behind his back with a lot of tension and jerk his

head back. . . . This lasted for only a few minutes.” Id.

3. Affidavits from Other Family Members: Lupe Sanchez, Emma Fernandez,

and Bertha Sanchez, Exhibits 5-7

These family members, who are T.S.’s grandmothers and paternal great-aunt, recounted

their recollections. Emma Fernandez averred that she was present when her daughter (Ms.

11

Although Ms. Sanchez’s affidavit uses the word “doctor,” the only medical

professional who had seen T.S. after the February 5, 2009 vaccination was Mr. Luna, a

physician’s assistant. Exhibit 3 at 3-4. Ms. Sanchez later testified that she did not learn that Mr.

Luna was not a doctor until much later.

10

Sanchez) asked Dr. Brown about T.S.’s “‘weird movements.’” Dr. Brown appeared “hurried”

and gave “short answers.” Exhibit 6 ¶ 4.

E. Resolution of Factual Issues about T.S.’s Health and Abilities

From the beginning of the case, the parties disagreed about T.S.’s health in the six

months after the February 5, 2009 vaccinations. Ms. Sanchez averred that T.S. began having

unusual movements within approximately two weeks. See Exhibit 3 (affidavit). The Secretary,

however, disputed the accuracy of this recollection in part because of the medical record Ms.

Marin-Tucker created. Resp’t’s Rep., filed Feb. 28, 2012, at 12-13.

Due to the parties’ dispute over T.S.’s health, a hearing was held on May 15, 2012. Mr.

Sanchez, Ms. Sanchez, and other family members testified about their recollections of T.S. Ms.

Sanchez testified she had a baby journal but “never filled it out.” Tr. 128; see also Tr. 113. She

further testified that after she saw Dr. Brown in May 2009, she decided she “was never going

there again.” Tr. 87. When Ms. Roquemore stated that Ms. Sanchez “saw Dr. Brown in May,

never to see him again,” Ms. Sanchez did not correct this statement. Tr. 90.

Because Mr. and Ms. Sanchez had not filed some records, such as Dr. Valencia’s August

6, 2011 record and Dr. Brown’s August 19, 2011 record, they were not asked any questions

about these records during the May 15, 2012 hearing. Likewise, Mr. and Ms. Sanchez were not

asked any questions about recordings of conversations with medical personnel because the

recordings had not been disclosed before the hearing.

Ms. Marin-Tucker’s August 17, 2009 record stated that Ms. Sanchez noticed that her son

was having developmental issues two to three months ago. Exhibit 1 at 54-56. This recollection

was generally credited as accurate and has not been challenged. Instead, the parties dispute

when T.S. moved his arm abnormally.

The findings regarding abnormal arm movements have varied. A Ruling Finding Facts

found (a) that T.S. did not have abnormal arm movements in February around the time of his

mother’s birthday and (b) that T.S. did not have abnormal movements in March through May

2009. A primary reason was that the medical records created by Mr. Luna, Dr. Seleem, and Dr.

Brown did not memorialize any complaint from Ms. Sanchez about abnormal movements.

Ruling Finding Facts, 2013 WL 1880825, issued April 10, 2013.

The First Entitlement Decision was consistent with the Ruling Finding Facts, in part, and

inconsistent in part. The First Entitlement Decision was consistent in the sense that the First

Entitlement Decision found that T.S. did not have abnormal arm movements in March through

May 2009. The First Entitlement Decision was inconsistent with the Ruling Finding Facts in the

sense that the First Entitlement Decision found that T.S. had one episode of abnormal arm

movements around Ms. Sanchez’s birthday but this episode was due to a cold. 2018 WL

5856556, issued October 9, 2018.

11

The First Federal Circuit Opinion ruled that the First Entitlement Decision contained an

12

error. The error was that the First Entitlement Decision found that the isolated abnormal arm

movement was due to a cold, a proposition for which there was inadequate expert support. Thus,

the Federal Circuit remanded the case to address this issue. The First Federal Circuit Opinion

did not change any findings that T.S. did not move his arm abnormally in March through May

2009. 809 Fed. App’x 843, 850 (Fed. Cir. Apr. 7, 2020)

The Second Entitlement Decision attempted to address the remanded issue. Based upon

new expert reports and testimony, the Second Entitlement Decision found that the isolated

abnormal arm movement in February 2009 was due to a cold. Because this sequence was

incompatible with the theory of vaccine-causation proposed by the experts retained by the

Sanchezes, they were denied compensation. 2020 WL 5641872, issued August 26, 2020.

The Second Federal Circuit Opinion reversed the judgment denying Mr. and Ms. Sanchez

compensation in a split opinion.13 The panel majority found that T.S. had abnormal arm

movements in March through May. Thus, in the majority’s view, T.S. responded to the

vaccinations in a way consistent with the theory of causation, entitling Mr. and Ms. Sanchez to

compensation. The Federal Circuit, therefore, remanded for a determination of damages. 34

F.4th 1350 (Fed. Cir. 2022).

As discussed below, the discovery of information during the damages phase is the basis

for the pending motion to reopen. However, part of the Sanchezes’ response to the pending

motion to reopen is based upon other events occurring earlier in the litigation. Thus, those

events are briefly recounted.

F. Submission of Timesheets with Disclosure of Unproduced Material,

September to December 2014

Mr. and Ms. Sanchez submitted a first motion for an award of attorneys’ fees and costs

on an interim basis on September 16, 2014. This fee motion contained Ms. Roquemore’s

Timesheets, which are cited above. The Timesheets arguably revealed the existence of two types

of unproduced material---material the Secretary requested explicitly and material the Secretary

12

Before the case reached the Federal Circuit, the Court of Federal Claims denied a

motion for review. 142 Fed. Cl. 247. However, this opinion is generally superseded by the

opinion from the Federal Circuit.

13

Again, there was an intervening opinion from the Court of Federal Claims. 152 Fed.

Cl. 782 (2021).

12

did not request explicitly. The items discussed in this section bear upon the pending motion to

reopen.14

1. Material the Secretary Requested Explicitly

The Timesheets revealed that Ms. Sanchez had created a baby journal and day planner,

which had not been submitted. See Resp’t’s Resp., filed Nov. 24, 2014, at 2 n.1 (identifying

newly identified material). The Timesheets also revealed the creation of an audio file regarding

Ms. Marin-Tucker.

These missing items were discussed in a November 25, 2014 status conference. Mr. and

Ms. Sanchez were generally obligated to file these items. Order, issued Dec. 2, 2014.15

Ms. Sanchez explained her account of what happened in an affidavit, signed on

December 11, 2014. Exhibit 56. Ms. Sanchez stated that she began, but did not finish, T.S.’s

baby book. Id. at 2. Ms. Sanchez averred “I never gave it [the baby book] to Ms. Roquemore as

it didn’t really have anything in it.” Mr. Sanchez and Ms. Sanchez filed the baby book as

Exhibit 57.

For the day planner, Ms. Sanchez recognized that she “made a few notes regarding

[T.S.].” Exhibit 56 at 2. This document was filed in black and white as Exhibit 58.

As to the audio recordings with Ms. Marin-Tucker, Ms. Sanchez averred she provided a

version on compact disc to Ms. Roquemore, but it was difficult to hear. Ms. Sanchez reported

that Ms. Roquemore returned the CD to her, but she did not know where it was. Exhibit 56 at 3-

4.

After this evidence was filed, neither party sought an opportunity to seek additional oral

testimony from Ms. Sanchez. Neither party sought a revision of the April 10, 2013 Ruling

Finding Facts. See Opinion and Order, 142 Fed. Cl. 247, 250-51 (2019) (ruling that the special

master did not err in not discussing information from the day planner in denying entitlement

14

These items also contributed to the Secretary’s motion for sanctions. However, the

Secretary appears to have withdrawn the motion for sanctions for the time being, while keeping

open the possibility of revisiting the issue in the context of attorneys fees. Tr. 4627.

15

The Secretary also requested before and after photos of T.S. that Ms. Roquemore

reviewed. Resp. to Mot. for Interim Fees, filed Nov. 24, 2014 at 2 n.1. The special master

denied this request, explaining:

A family possessing pictures of their young child ishardly surprising. If the Secretary

anticipated that photographs would be useful, the Secretary easily could have requested

them. Thus, the petitioners’ failure to disclose photographs is not prejudicial.

Order, issued Dec. 2, 2014.

13

when the petitioners did not raise the day planner in their briefs and the experts did not discuss

it), vacated on other grounds, 809 F. App'x 843 (Fed. Cir. 2020).

2. Material that the Secretary Did Not Request Explicitly

In 2014, the Secretary did not seek the production of material created by Dr. Valencia,

her assistant Ms. Marin-Tucker, or Dr. Brown. According to the position taken in opposition to

the Secretary’s 2023 motion to reopen, the submission of Ms. Roquemore’s Timesheets in

August 2014 as part of the Interim Fee application alerted the Secretary that “Mrs. Sanchez met

with Ms. Michaela, P.A. and Dr. Brown to obtain clarifications of the medical records and had

recorded both meetings.” Pet’r’s Opp’n, filed Sep. 6, 2023, at 19. According to Mr. and Ms.

Sanchez, the Secretary’s failure to seek the documents in 2014 constitutes a waiver of the right to

obtain documents from Dr. Valencia, Ms. Marin-Tucker, and Dr. Brown. Id. at 19-20; see also

id. at 12.

3. Assessment of Compliance

Following a status conference on November 25, 2014, the special master commented that

the Sanchezes “appear[ed] to have complied” with their obligation to produce all medical

records. Order, issued Dec. 2, 2014. However, “whether petitioners [had] complied with their

secondary obligation to present non-medical records [was] questionable.” Id. As noted, the

Secretary requested the production of certain items, such as the day planner and the baby book.

Mr. and Ms. Sanchez produced them as well as an affidavit from Ms. Sanchez. Exhibits 56-58.

Mr. and Ms. Sanchez also presented a declaration from their attorney, Ms. Roquemore,

explaining certain entries in her timesheets and discussing some of the non-medical record

materials that had not been submitted. Neither the affidavits nor the declaration corrected the

special master’s impression that the Sanchezes had submitted all medical records.

G. Submission of Additional Materials during Damages Phase

At the start of the process for determining the amount of compensation, Mr. and Ms.

Sanchez were directed to file additional documents, including updated medical records. Order,

issued Aug. 30, 2022, at 6. After many months, Mr. and Ms. Sanchez submitted a set of records

from Inland Regional Center as Exhibit 243 and the August 6, 2011 record from Dr. Valencia as

Exhibit 262. As noted above, in the August 6, 2011 record, Dr. Valencia memorialized a request

from Ms. Sanchez to change Ms. Marin-Tucker’s record with respect to T.S.’s “onset of

symptoms.” Exhibit 262 at 1. The Secretary identified these old, yet newly filed, documents as

supporting a request for additional time to respond to petitioners’ life care plan. Resp’t’s Reply,

filed May 1, 2023, at 5-7.

An extensive status conference was held on May 24, 2023, which was recorded.16

During the status conference, Ms. Roquemore stated that she did not know why the documents

16

The Secretary filed the transcript as part of the motion to reopen entitlement on August

16, 2023, which is docket number 386.

14

were not filed earlier. May 24, 2023 Tr. at 6-7. As to the Inland Regional Center, Ms.

Roquemore’s response was two-fold. Ms. Roquemore maintained that she was not aware that

petitioners were supposed to file treatment records and Ms. Roquemore also stated that she was

not aware that T.S. was being treated at the Inland Regional Center. Id. at 4-6, 13. When the

Secretary’s attorney pressed the issue of Dr. Valencia’s August 6, 2011 record, Ms. Roquemore

stated that it was not an established fact that her office possessed the pediatrician’s record. Upon

discovery of some records that the Sanchezes arguably should have submitted during the

entitlement stage, the Secretary requested authority to subpoena medical records from four

providers of medical services. Id. at 19-20. The purpose was to confirm the completeness of the

medical records that were already on file. See Resp’t’s Motions for Subpoena, filed May 25,

2023. The Secretary submitted the responses to those subpoenas as Exhibits S to U on July 26

and 28, 2023.

H. Motion to Reopen, filed Aug. 16, 202317

The Secretary argued that the belated discovery of medical records supported reopening

the entitlement stage of the case. Resp’t’s Mot. to Reopen, filed Aug. 16, 2023. In this context,

the Secretary asserted that new evidence can justify a departure from an appellate court’s

mandate. Id. at 11-12. Pursuant to an August 18, 2023 order, the Secretary supplemented his

initial motion on August 25, 2023. The Secretary argued that Vant Erve v. Sec’y of Health &

Hum. Servs., 39 Fed. Cl. 607, 612 (1997), aff’d after remand in non-precedential op., 232 F.3d

914 (Fed. Cir. 2000), sets forth the controlling test to assess whether entitlement should be

reopened.

Mr. and Ms. Sanchez opposed reopening entitlement. They recognized that “some

medical records that were not originally received and/or inadvertently not filed, came to light in

the Summer 2023.” Pet’rs’ Resp., filed Sep. 6, 2023, at 10. The main thrust of their opposition

was two-fold. First, any material that was produced late is cumulative with previous evidence

such that the newly discovered evidence does not justify reopening. Second, the Secretary

waived any argument about the newly discovered evidence by not requesting it sooner.

The Secretary addressed the Sanchezes’ arguments via a Reply, filed Sep. 18, 2023. The

Secretary emphasized that Mr. and Ms. Sanchez did not deny that they knew the belatedly

produced records existed and they did not deny that they had an obligation to produce them

during the entitlement phase. In the Secretary’s view, the newly produced documents are

17

The motion to reopen has affected the resolution of damages. Initially, the proceedings

regarding compensation were not delayed, and the case proceeded on a parallel track,

simultaneously but separately addressing the issues of damages and the motion to reopen. Order,

issued Sep. 22, 2023 (denying the Secretary’s motion to stay). A hearing on damages was held

on September 26-27, 2023. However, the witnesses did not complete their oral testimony.

Damages issues remain pending. See Order, issued Dec. 20, 2024.

15

informative, not cumulative. The Secretary also responded to the argument that he had waived

his right to ask for documents by not asking earlier.

Mr. and Ms. Sanchez filed a Sur-Reply on October 6, 2023 without seeking leave. They

stated that preparing for and participating in the damages hearing, which had been held on

September 26-27, 2023, prevented them from filing declarations regarding the production of

records. However, they planned to file declaration(s) soon.

Mr. Sanchez, alone, discussed the production of documents. Exhibit 295, filed Nov. 29,

2023. Although Mr. Sanchez was speaking for the family, he lacked direct knowledge of what

happened at various medical appointments as Ms. Sanchez primarily took T.S. to see doctors

without her husband. Mr. Sanchez also recounted disruptions in Ms. Roquemore’s practice of

law in 2011.

In response to Mr. Sanchez’s declaration, the Secretary sought oral testimony from Ms.

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

maintained that their testimony would be relevant to assessing the fourth Vant Erve factor, the

reason for the delay in production of documents.

The Secretary’s request for testimony from Ms. Roquemore raised a question as to

whether Ms. Roquemore could remain counsel of record because, generally, an attorney should

not both represent a party and testify about a disputed matter. Because Ms. Roquemore’s status

was unsettled, a second session of a damages hearing was cancelled. See Order, issued Dec. 14,

2023. Mr. and Ms. Sanchez ameliorated this issue, to a degree, by retaining Attorney Richard

Gage as an associate attorney. See Pet’rs’ Notice, filed Jan. 17, 2024.

At the request of Mr. and Ms. Sanchez, the Secretary consolidated his arguments

regarding reopening in a Comprehensive Motion, filed Jan. 11, 2024. In this motion, the

Secretary requested that Mr. and Ms. Sanchez produce certified copies of various items.

Although delayed by intervening events discussed below, Mr. and Ms. Sanchez opposed the

request to reopen via a Comprehensive Response, filed May 9, 2024. The Secretary did not file a

separate reply.

I. Miscellaneous Procedural Steps

Mr. and Ms. Sanchez interposed various obstacles to the undersigned’s resolution of the

motion to reopen. Although these actions delayed adjudication, the outcomes do not

meaningfully affect resolution of the motion to reopen. Details about the outcomes of the

various motions can be found in the published opinions. Examples include four motions for

protective orders. These were denied. Order, issued Aug. 14, 2024, 2024 WL 4564656 (finding

Ms. Sanchez’s and Ms. Roquemore’s testimony about the failure to produce documents was

reasonable and necessary); Order, issued Oct. 28, 2024, 2024 WL 5467401 (finding that Ms.

Sanchez was required to produce her mental health records because she had placed her mental

health status in issue); Opinion, filed Dec. 2, 2024, 2024 WL 2024 WL 5414170 (ruling that the

Court of Federal Claims lacked jurisdiction to review the denial of protective orders); Order,

issued Feb. 13, 2025, 2025 WL 2783118 (finding Ms. Sanchez remained obligated to testify).

16

Mr. and Ms. Sanchez sought a mandamus from the Federal Circuit and this petition was denied

as well. No. 2025-114, 2025 WL 670189 (Fed. Cir. Mar. 3, 2025).

J. Pending Motion for Sanctions, October 2024 to November 2024

Based upon Ms. Roquemore’s statement that she could not locate the Dr. Brown letter

that she had reviewed on August 24, 2011, the Secretary requested sanctions. Resp’t’s Mot.,

filed Oct. 23, 2024. The Secretary argued that Ms. Roquemore’s failure to preserve this

evidence was a form of spoliation and that Ms. Roquemore and Ms. Sanchez had engaged in a

pattern of misconduct. The Secretary argued that the drastic remedy of dismissal was

appropriate. In the alternative, the Secretary argued that an adverse inference should be drawn.

Mr. and Ms. Sanchez contested the motions for sanctions. Pet’r’s Resp., filed Nov. 6,

2024. The Secretary kept his position. Resp’t’s Reply, filed Nov. 13, 2024.

A hearing regarding the motion to reopen and motion for sanctions was held in June

2025. Ms. Sanchez testified first, with both attorneys (Ms. Roquemore and Mr. Gage) present.

Ms. Roquemore testified next. The hearing concluded on June 3, 2025.18

K. Finding of Fact Regarding Day Planner

After the parties completed submitting evidence, which mainly consisted of reviews of

day planners, a finding of fact was made. Clear and convincing evidence supported a finding

that Ms. Sanchez altered her day planner before she submitted it into evidence. 2025 WL

2988894.

L. Findings of Fact Regarding Dr. Valencia’s and Dr. Brown’s Records

Regarding Dr. Valencia and Dr. Brown’s medical records, tentative findings were

announced in a June 23, 2025 order: that Ms. Sanchez possessed Dr. Valencia’s August 6, 2011

medical record and Dr. Brown’s August 19, 2011 medical report before the statement of

completion was filed; and that Ms. Roquemore possessed Dr. Brown’s August 19, 2011 medical

report before the statement of completion was filed. Mr. and Ms. Sanchez did not contest these

findings. Pet’rs’ Status Rep., filed July 23, 2025.

As to the remaining tentative finding, which concerns Ms. Roquemore’s possession of

Dr. Valencia’s August 6, 2011 medical record, Mr. and Ms. Sanchez contested this one. See

Pet’rs’ Status Rep., filed July 23, 2025. They argued that the email from Ms. Sanchez to Ms.

Roquemore in 2011 did not contain the August 6, 2011 medical record. However, Ms.

Roquemore did not explain how she retrieved the email from August 2011. Thus, there was a

question about the authenticity. Moreover, when the Secretary requested a production of all the

relevant emails, Mr. and Ms. Sanchez did not verify their account by producing them.

18

The transcripts for the June 2025 start with a “4” in the thousand place, i.e., 4xxx.

Similarly, pagination from the oral argument in December 2025 continues this pagination.

17

Accordingly, Ms. Roquemore was also found to have possessed Dr. Valencia’s August 6, 2011

medical record before Ms. Roquemore certified the medical records as complete. Findings

regarding Dr. Valencia’s and Dr. Brown’s Medical Records, issued Oct. 1, 2025, 2025 WL

3004761.

M. Additional Briefing and Oral Argument

Following the findings of fact regarding the day planner and the August 2011 medical

records created by Dr. Valencia and Dr. Brown, an oral argument was tentatively announced.

Order, issued Oct. 16, 2025. Part of this order requested clarification as to the basis for the

Secretary’s pending motion for sanctions. The order noted:

The Secretary argued that sanctions are appropriate primarily

(maybe exclusively) because of Ms. Roquemore’s alleged failure

to preserve a letter from Dr. Brown, leading to an allegation of

spoliation. However, the October 1, 2025 findings of fact found

that Ms. Roquemore possessed and reviewed Dr. Brown’s August

19, 2011 letter, which is in evidence as Exhibit T pages 17-18.

Thus, it is not clear whether sanctions are appropriate as the

allegedly missing document actually is in evidence.

Id. The order further questioned whether a sanction of dismissal would be appropriate for an

alleged failure to preserve a single document, and asked whether and what other, less drastic

sanctions might be available. Id.

In response, the Secretary stated that the finding that Ms. Roquemore had reviewed Dr.

Brown’s August 19, 2011 medical record did not moot the motion for sanctions. Resp’t’s Supp’l

Br., filed Nov. 6, 2025. The Secretary contended that his motion for sanctions “was based on

malfeasance that was both pervasive and egregious.” Id. at 5. The Secretary further argued that

a sanction less than dismissal would not be appropriate.

In response to a request from Mr. and Ms. Sanchez, the undersigned provided some

guidance about the anticipated scope of oral argument. Order, issued Nov. 12, 2025. This order

permitted the parties to cite additional cases in support of their respective positions by a deadline

shortly before Thanksgiving. The parties each submitted short status reports citing a few

additional cases.

Oral argument was held on December 3, 2025.19 On the topic of the motion to reopen,

the parties maintained the positions expressed in their briefs. As to the motion for sanctions, the

Secretary revised his petition regarding sanctions for the time being, stating:

19

A more thorough discussion of the parties’ arguments is recounted in the analysis

section of this Order.

18

while we believe the dismissal would be an appropriate sanction

for the misconduct that Petitioners and Ms. Roquemore committed

in this case, but given that now about 14 years later we appear to

have a complete record of the events that occurred in the days and

weeks following [T.S.]’s vaccinations, we believe that the most

prudent approach would be to reopen the record on entitlement and

to decide the case on the merits. But then the question of sanctions

could be revisited in the context of attorneys' fees.

Tr. 4627.

This oral argument makes the motion to reopen and the motion for sanctions ready for

adjudication. The first part of the analysis is to determine whether the entitlement should be

reopened. Because the Secretary has demonstrated extraordinary circumstances that justify a

departure from the mandate rule, entitlement is reopened. In the second part of the analysis, the

relevant evidence regarding the onset of T.S.’s abnormal arm movements is reviewed and a new

finding of fact is made. Finally, in the third part of the analysis, there is a short discussion of the

Secretary’s motion for sanctions.

III. Analysis Part One: Motion to Reopen

A. Introduction

To review, during the process of determining the amount of compensation, Mr. and Ms.

Sanchez produced Dr. Valencia’s August 6, 2011 medical record for the first time in 2023 as

Exhibit 262. This belated production prompted the Secretary to subpoena other medical records

directly from the providers and the Secretary found that other records, such as Dr. Brown’s

August 19, 2011 medical record, had not been produced.

Based upon this newly discovered evidence,20 the Secretary sought to reopen entitlement.

Resp’t’s Mot. to Reopen, filed Aug. 16, 2023. A Comprehensive Motion, filed Jan. 11, 2024,

elaborated upon the Secretary’s arguments. Mr. and Ms. Sanchez’s most extensive arguments

against reopening are found in their Comprehensive Resp., filed May 9, 2024.

The analysis of the motion to reopen is contained in the following parts. First, the factors

to be considered in determining whether the entitlement phase of the case can be reopened are set

20

Cases differentiate newly discovered evidence from newly created evidence. E.g.,

Magnesystems, Inc. v. Nikken, Inc., 933 F.Supp. 944, 951 (C.D. Ca. 1996) (ruling that two

patents, which were more than 15 years old, could have been discovered with due diligence

before the trial court ruled upon a motion for summary judgment). The rationale is that the

newly discovered evidence must have existed before the initial resolution. Sigmatech, Inc. v.

United States, 144 Fed. Cl. 159, 175-76 (2019). In the present case, all of the evidence on which

the Secretary relies to reopen entitlement is newly discovered.

19

forth. Before these factors are analyzed, the issue of the Secretary’s opportunity to discover the

evidence at issue years earlier is next addressed. An analysis of the relevant factors follows.

B. Standards for Reopening Entitlement

In proposing that entitlement be reopened, the Secretary advanced a four-factor test

announced in Vant Erve v. Sec’y of Health & Hum. Servs., 39 Fed. Cl. 607, 612 (1997), aff’d

after intervening proceedings, 232 F.3d 914 (Fed. Cir. 2000). Resp’t’s Mot. to Reopen, filed

Aug. 16, 2023, at 10; Resp’t’s Comp. Mot. at 16. Mr. and Ms. Sanchez appear to agree. Pet’rs’

Comp. Resp. at 12 (citing a case that relied upon Vant Erve).

A review of the Vant Erve litigation is illuminating. Mr. and Ms. Vant Erve alleged that

a diphtheria-pertussis-tetanus vaccine caused their son, Christian, to suffer a residual seizure

disorder and/or an encephalopathy, two injuries then listed on the Vaccine Table. Vant Erve, 39

Fed. Cl. at 608. Mr. and Ms. Vant Erve supported their claim with an affidavit from Christian’s

treating pediatric neurologist, Dr. Mathisen. Dr. Mathisen disclosed his opinions via an affidavit

in which he described MRIs performed in December 1991 and August 1992. Id. at 609. The

December 1991 MRI was discussed during an entitlement hearing held on May 26, 1994, but the

August 1992 MRI had not been produced then. Id. at 610 n.10. After a hearing, the special

master found in favor of Mr. and Ms. Vant Erve. More specifically, the special master found

that they had established that Christian suffered from a residual seizure disorder and an

encephalopathy and that the Secretary had failed to rebut the presumption of causation by

establishing a factor unrelated. Id. at 609. The case proceeded to damages.

During damages, the Secretary obtained information about the August 1992 MRI, and a

third MRI from April 1993. Vant Erve, 39 Fed. Cl. at 610 n.10. These MRIs existed before the

evidentiary hearing in May 1994. The Secretary also obtained information about an MRI from

January 1997. Based in part upon these studies, the Secretary sought to reopen entitlement. The

Secretary supported this motion with a statement from a neurologist, who opined that the series

of MRIs supported a diagnosis that Christian suffered from a “genetic inborn error of

metabolism.” Id. at 610.

The special master denied the motion to reopen entitlement. Although the lately

produced evidence could have been important to resolving the case, the special master reasoned

that the failure to produce the evidence was “the direct result of respondent’s negligence”

because “she could have asked for the documentation earlier.” Id. at 611. The special master

then determined the amount of compensation to which the Vant Erves were entitled.

The Secretary challenged the entitlement ruling by filing a motion for review. A primary

argument was that the special master had “placed an improper burden on respondent to request

documents that petitioner should have furnished without a special request.” Vant Erve, 39 Fed.

Cl. at 611. The Court of Federal Claims ultimately granted the motion for review.

In this process, the Court adopted the four-factor test, which the special master had used.

These four factors are: “(1) the nature of the proffered new evidence; (2) the prejudice to the

20

parties; (3) the length of the delay; and (4) the reason for the delay." Id. at 612. In addition, the

Court commented upon those four factors.

1. Nature of Proffered New Evidence. This part of the test is “paramount.” Id. In the

Vant Erve case, the Secretary’s new evidence---that Christian suffered from a genetic disease of

metabolism---would, if credited, demonstrate that the entitlement decision was “simply wrong.”

Id. at 613.

2. Prejudice to the Parties. The Court defined prejudice to the parties in terms of the non-

moving party’s inability to re-establish its case, perhaps because a witness became unavailable.

The Court rejected attempts to define “prejudice” in terms of emotional toil. Id. at 613.

3. Length and 4. Reason for the Delay. When the case went to an entitlement hearing, the

Secretary did not have access to much information created about Christian. “The Special Master

place[d] the responsibility for that circumstance on the respondent. In the court’s view, this was

erroneous.” Vant Erve, 39 Fed. Cl. at 614. The Court eventually determined that the Vant Erves

shared responsibility for the failure to produce some evidence, including MRI data, because their

expert seemed to mislead the Secretary into thinking there was only one MRI, which was from

January 1991 and which the Secretary possessed.

In discussing the burden of production, the Court commented about the expectations in

the Vaccine Program:

It would turn the informal vaccine process on its head if —in

circumstances such as those here, where information fundamental

to the correct diagnosis came into existence, petitioners should

have known that respondent was interested in the data, and the

absence of those new materials was not known to respondent—the

respondent had to specifically ask for supplementation of the

petitioner's medical history or be barred from relying on it later.

Id. at 616. Thus, the Court ruled that the special master abused his discretion in denying the

motion to reopen, granted the motion for review, and remanded for further considerations.

On remand, Mr. and Ms. Vant Erve were denied compensation. Vant Erve v. Sec’y of

Health & Hum. Servs., No. 92-341V, 1998 WL 887126 (Fed. Cl. Spec. Mstr. Dec. 3, 1998). The

special master found that “Christian’s neurologic condition is, more probably than not, the result

of a progressive, dysmyelinating metabolic disorder.” Id. at *3. One reason was that the special

master “based upon the overall history of the case,” came “to question the candor of Dr.

Mathisen’s testimony.” Id. at *5.

This decision did not end the litigation. Mr. and Ms. Vant Erve filed a motion for review,

which the Court of Federal Claims denied. Vant Erve v. Sec’y of Health & Hum. Servs., 43 Fed.

Cl. 338 (1999) (ruling that the special master’s factual findings were not arbitrary or capricious).

Mr. and Ms. Vant Erve appealed the judgment denying them compensation to the Federal

Circuit. In an unpublished and nonprecedential opinion, the Federal Circuit ruled that the Court

21

of Federal Claims “did not err in concluding that the special master abused his discretion in

denying the government’s motion to reopen.” Vant Erve v. Sec’y of Health & Hum. Servs., 232

F.3d 914, 2000 WL 425005, at *1 (Fed. Cir. 2000). The Federal Circuit also ruled that the

special master’s later findings were not arbitrary and capricious. Thus, the Federal Circuit

affirmed the judgment denying compensation.

The Vant Erve case has some procedural resemblances to the present case. For example,

in both cases, a judgment awarding compensation has not been entered.

On the other hand, there is a prominent procedural difference between Vant Erve and

T.S.’s case. In T.S.’s case, the Federal Circuit has determined, based upon the record that was

before it at the time, that Mr. and Ms. Sanchez were entitled to compensation. 34 F.4th 1350;

see also Tr. 4511, 4529. Normally, the mandate rule would prevent a lower tribunal from

changing what an appellate authority has determined. See Northern Helex Co. v. United States,

225 Ct. Cl. 194, 634 F.2d 557, 560 (Ct. Cl. 1980). However, the mandate rule has some

exceptions, including an exception for newly discovered evidence. Rembrandt Vision

Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 818 F.3d 1320, 1329 (Fed. Cir.

2016) (ruling a district court abused its discretion in denying a motion for a new trial and noting

that the mandate rule did not preclude the granting of a motion for a new trial); Tronzo v.

Biomet, Inc., 236 F.3d 1342, 1349 (Fed. Cir. 2001) (recognizing that trial courts “have

considered revisiting issues otherwise foreclosed where there has been a substantial change in

the evidence”); Cf., Packet Intelligence LLC v. NetScout Systems, Inc., 100 F.4th 1378, 1384

(Fed. Cir. 2024) (stating that “our precedents hold that remanded patent cases remain vulnerable

to post-mandate developments concerning patentability, even if liability – including patent

validity – has already been conclusively resolved by appellate review”). Thus, the Secretary’s

motion is at least procedurally proper in the sense that newly discovered evidence can justify a

trial court’s reconsideration of an issue that an appellate court already addressed. Tr. 4619-20.

In this regard, the Federal Circuit’s resolution of Mr. and Ms. Sanchez’s petition for a writ of

mandamus did not suggest that the pending motion to reopen was frivolous. In re T.S., by and

through Sanchez, No. 2025-114, 2025 WL 670189 (Fed. Cir. Mar. 3, 2025).

C. Opportunity to Discover Information Earlier

It seems that a preliminary issue to be decided is Mr. and Ms. Sanchez’s argument that it

is not their fault the documents were not produced earlier in the litigation because the Secretary

should have asked for them. Pet’rs’ Comp. Resp. at 24, 44. This issue is preliminary in the

sense that the set of relevant documents to be analyzed in terms of whether they support

reopening entitlement should be limited to those documents that (a) Mr. and Ms. Sanchez did not

produce in the entitlement phase and (b) there was no waiver of the production of those

documents.

The parties primarily rely upon Vant Erve (respondent) and Stone v. Sec’y of Health &

Hum. Servs., 676 F.3d 1373 (Fed. Cir. 2012) (petitioners). Vant Erve was summarized above.

Thus, the relevant procedural history from Stone, which is an opinion in a consolidated case, is

taken up next.

22

Scott Hammitt asserted that a diphtheria-tetanus-acellular pertussis vaccine caused his

daughter, Rachel, to suffer a neurologic problem known as severe myoclonic epilepsy of infancy

(“SMEI”). Hammitt v. Sec’y of Health & Hum. Servs., No. 07-170V, 2010 WL 3735705, at *1

(Fed. Cl. Spec. Mstr. Aug. 31, 2010). Mr. Hammitt relied upon opinions from the neurologist

whom he retained, Marcel Kinsbourne. Dr. Kinsbourne and the Secretary’s expert testified at a

hearing on May 14-15, 2009. Id. at *2. Based upon this record, the special master found that the

Secretary demonstrated that a genetic mutation caused the SMEI. Id. at *1. Mr. Hammitt filed a

motion for review. The Court held that the special master applied an incorrect legal standard and

remanded. See Hammitt v. Sec'y of Health & Hum. Servs., No. 07-170V, 2011 WL 1135878, at

*1 (Fed. Cl. Mar. 4, 2011) (discussing opinion remanding the case).

After remand, Mr. Hammitt sought to submit additional evidence. However, the special

master denied that request. Hammitt, 2011 WL 1135878, at *1 n.4. Although the special

master’s decision does not detail the reason for denying the motion to supplement, the opinion on

the motion for review states that the motion to submit additional information was denied for

three reasons: (1) because the Remand Order required a re-evaluation of the existing evidence,

not further development of the record, (2) because Mr. Hammitt knew about the article proposed

to be submitted and could have submitted the article into evidence earlier, and (3) because the

proposed additional evidence does not appear to support Mr. Hammitt’s claim. Hammitt v.

Sec’y of Health & Hum. Servs., 98 Fed. Cl. 719, 723 (2011). As to the merit of Mr. Hammitt’s

claim, the special master denied entitlement on the ground that “the SCN1A gene mutation was

the sole, substantial cause of Rachel’s SMEI.” 2011 WL 1135878 at *3.

Mr. Hammitt challenged the outcome by filing a second motion for review. Most of the

Court’s opinion explained that the special master’s conclusion complied with the legal standards

and was not arbitrary and capricious. However, as relevant to the arguments of Mr. and Ms.

Sanchez, the Court also agreed with the denial of the request to file additional evidence.

Hammitt, 98 Fed. Cl. at 729. Thus, judgment was entered against Mr. Hammitt.

Mr. Hammitt appealed to the Federal Circuit, which resolved his case in conjunction with

an appeal brought by another set of parents, Jennifer and Gary Stone. Mr. Hammitt contested the

special master’s denial of his motion to submit additional evidence. Stone, 676 F.3d at 1385.

The Federal Circuit stated the grounds on which the special master had relied. These were (1)

the remand order did not call for development of additional evidence, (2) Dr. Kinsbourne knew

about the article before the initial opinion, and (3) the article did not support Mr. Hammitt’s

claims. The Federal Circuit ruled that the special master did not abuse his discretion in declining

to allow Mr. Hammitt to submit additional evidence. Id. at 1386.

Based upon these events in Stone / Hammitt, Mr. and Ms. Sanchez argue that the

situation in their case resembles Hammitt in that the newly discovered evidence “was, in fact,

known and available to Respondent prior to any Decision by the Special Master. . . . Hence,

Respondent failed to act diligently in 2014 to submit the evidence in a timely fashion.” Pet’rs’

Comp. Resp. at 14. During the December 2025 oral argument, Mr. and Ms. Sanchez likewise

argued that Stone was their strongest case. Tr. 4511.

23

Stone / Hammitt does not bear the load that Mr. and Ms. Sanchez place upon it. First, the

Federal Circuit’s holding was that the special master did not abuse his discretion in declining to

accept more evidence. Under the abuse of discretion standard, it seems that, arguably, a special

master could also exercise appropriate discretion in allowing more evidence. See Hanlon v.

Sec’y of Health & Hum. Servs., 191 F.3d 1344, 1350 (Fed. Cir. 1999) (noting that special master

did not abuse her discretion in considering medical evidence that was not available earlier);

Veryzer v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 344, 348 (2011) (noting that a special

master reopened the record for additional evidence on remand). The practice of allowing

additional evidence on remand was followed in Mr. and Ms. Sanchez’s case. Opinion and Order,

152 Fed. Cl. 782, 787 (2021) (noting the special master permitted the parties to file additional

expert reports and held an additional hearing), rev’d on non-related grounds, 34 F.4th 1350 (Fed.

Cir. 2022). Thus, the Federal Circuit in Stone / Hammitt did not establish an absolute rule

prohibiting the consideration of additional material on remand.

Second, and relatedly, an interpretation of Stone / Hammitt as always forbidding

consideration of additional material would conflict with other Federal Circuit cases. In other

situations, the Federal Circuit has recognized its mandate may not need to be followed when,

upon remand, there is newly discovered evidence. Tronzo, 262 F.3d at 1349; see also

Retractable Technologies v. Becton Dickinson, 757 F.3d 1366, 1372 (Fed. Cir. 2014) (finding no

actual change in the evidence). The exception to the mandate rule for newly discovered evidence

would be pointless if the trial forum could not consider the newly discovered evidence.

Third, in Hammitt, the special master’s third reason for denying Mr. Hammitt’s motion to

submit additional evidence was that the special master reasoned that the evidence did not support

petitioner’s claim. (This determination implies that the special master at least looked at the

potential evidence.) But, in the present case, the evidence that forms the basis for the Secretary’s

motion to reopen, especially Dr. Brown’s August 19, 2011 medical record, does help the

Secretary’s argument. The helpfulness of Dr. Brown’s medical record is further discussed

below.

Fourth, and perhaps most importantly, in Hammitt, the special master found that Mr.

Hammitt was “knowing” about the medical article’s “existence ‘well in advance of’ the Special

Master’s initial decision. Hammitt, 98 Fed. Cl. at 723. In the Federal Circuit’s recounting, “Dr.

Kinsbourne was ‘aware of the article and its significance’ well before the special master issued

his initial opinion.” Stone, 676 F.3d at 1385. Regardless of whether the relevant person is Mr.

Hammitt (through his attorney) or Dr. Kinsbourne, an important aspect is that the person

possessed actual knowledge or awareness.

This focus on actual knowledge serves to distinguish the facts in Hammitt from the

situation for Mr. and Ms. Sanchez. Here, there is no basis to find that the Secretary, including

his attorney Ms. Reynaud, knew about Dr. Brown’s August 16, 2011 letter in 2014 or earlier. To

the extent that Mr. and Ms. Sanchez argue that Dr. Brown’s letter “was, in fact, known . . . to

Respondent” (Pet’rs’ Comp. Resp. at 14), Mr. and Ms. Sanchez use language imprecisely. As

discussed below, Mr. and Ms. Sanchez have a basis to argue that the Secretary could have known

about Dr. Brown’s August 19, 2011 letter. Although an argument about what the Secretary

24

should have known has some legitimacy, it ultimately fails in persuasiveness for several reasons,

including Vant Erve.

To return to Vant Erve briefly, in that case, the petitioners’ expert and treating doctor (Dr.

Mathisen) based his opinion upon an MRI from December 1991, which the petitioners presented

with their petition. Vant Erve, 39 Fed. Cl. at 615. Via an affidavit from June 11, 1993, Dr.

Mathisen cited an MRI from August 1992. Id. at 616. Although this affidavit disclosed the

August 1992 MRI, the Secretary did not request it. To add to the complexity, Dr. Mathisen’s

June 11, 1993 affidavit did not disclose that he had also reviewed an MRI from April 30, 1993.

Then, Dr. Mathisen testified during a hearing in May 1994. Id. at 615. In this testimony, he

referred to the original December 1991 MRI. The Court stated that Dr. Mathisen’s testimony

“creates the impression, albeit no doubt unintentionally, that he was speaking from materials

already presented.” Id. at 616. Based upon this sequence, the Court ruled the special master

committed a legal error in determining that the Secretary was “negligent” in not obtaining the

evidence before the hearing. Id. at 614.

In overturning the special master’s finding that the Secretary was negligent in Vant Erve,

the Court stated: “There is no support in the vaccine rules, in other words, for the observation

below that ‘the primary reason for the delay in this case plainly seems to have been respondent's

own negligence in failing to timely seek obvious relevant records.’” 39 Fed. Cl. at 616 (quoting

decision by the special master). Although not spelled out in Vant Erve, the following Vaccine

Rules appear relevant.

A basic Vaccine Rule is the rule requiring the production of medical records. Vaccine

Rule 2(c)(1) incorporates provisions of the Vaccine Act and also mandates the submission of

medical records.21 Congress has already imposed an obligation on petitioners: the petition

“shall contain … (2) . . . all post-injury . . . outpatient records (including all provider notes, tests

results, and medication records).” 42 U.S.C. § 300aa–11(c). From the starting point that

petitioners are required to disclose information, other consequences follow. For example, “There

is no discovery as a matter of right.” Vaccine Rule 7(a). This rule is consistent with Congress’s

intention that litigation in the Vaccine Program be “less adversarial.” 42 U.S.C. § 300aa–

12(d)(2)(A).

21

The relevant portion of this rule includes: As required by 42 U.S.C. § 300aa-11(c), the

petition must be accompanied by the following documents:

(A) Medical Records. Petitioner must include a certified copy of all available medical

records supporting the allegations in the petition, . . .

(iii) any post-vaccination treatment of the injured person, including all in-patient and

out-patient records, provider notes, test results, and medication records.

25

The culture of litigation in the Vaccine Program also reflects the spirit of being “less

adversarial.”22 Special masters, attorneys for the petitioners, and attorneys from the Department

of Justice cooperate to attempt to make proceedings fair and expeditious. This cooperation, in

turn, is based upon the trust among attorneys as officers of the court.

Unfortunately, the trust extended to Ms. Roquemore in this case was misplaced. On at

least two occasions, Ms. Roquemore made statements about the completeness of medical records

that were not accurate. The first occurred on October 27, 2011 when Ms. Roquemore certified

that the case’s record included all medical records. This certificate of completeness was not

accurate because Mr. and Ms. Sanchez had not produced records from California’s Inland

Regional Center and Loma Linda. See Exhibits 243, 326; see also Tr. 4391 (Ms. Roquemore’s

under-oath acknowledgement that with the benefit of hindsight the statement of completion was

not accurate). The 2011 certificate of completeness was not accurate also because, as determined

in the October 1, 2025 Finding regarding Dr. Valencia’s and Dr. Brown’s medical records, clear

and convincing evidence shows that Ms. Roquemore possessed both Dr. Valencia’s August 6,

2011 medical record and Dr. Brown’s August 19, 2011 medical record. See section II.L, above.

Yet, despite her possession of these two medical records, Ms. Roquemore did not file them into

evidence. Her certification of completeness was, therefore, at minimum, in error.

During the December 2025 oral argument, the attorneys for Mr. and Ms. Sanchez

explained that in some instances, an attorney for petitioners will certify the record as containing

all medical records, but then officials within the Government identify and request missing

medical records. Tr. 4512 (Ms. Roquemore), 4518-19 (Ms. Roquemore), 4524 (Ms.

Roquemore), 4526 (Mr. Gage), 4528 (Ms. Roquemore). This description is accurate, as the

Secretary recognized. Tr. 4536 (Ms. Reynaud). This practice in which the Secretary has asked

for medical records is the foundation for the petitioners’ argument that the respondent has missed

his opportunity to request medical records.

Petitioners’ argument has at least some plausibility with respect to the group of medical

records from T.S.’s treatment at places such as California Inland Regional Center and Loma

Linda. Exhibits 243, 326. Although Ms. Sanchez was aware that T.S. received treatment at these

places before the petition was filed in 2011 and, therefore, Ms. Sanchez should have filed these

medical records when the petition was filed in 2011, there is not any reliable basis for finding

that Ms. Roquemore knew about California Inland Regional Center records or Loma Linda

records when Ms. Roquemore certified the medical records as complete in 2011. A finding that

an attorney did not knowingly withhold some documents does not exonerate a party as,

according to the Federal Circuit, “even an accidental omission qualifies as misconduct under

[Fed. Rule of Civil Proc.] 60(b)(3).” Rembrandt Vision Technologies, L.P. v. Johnson &

22

On numerous occasions, attorneys who are coming to the Vaccine Program for the first

time have told the undersigned that they have found working with their counterpart at the

Department of Justice to be a refreshing change from traditional litigation.

26

Johnson Vision Care, Inc., 818 F.3d 1320, 1328 (Fed. Cir. 2016) (ruling that a district court

abused its discretion in denying a motion for a new trial).

However, with respect to Dr. Valencia’s August 6, 2011 medical record and Dr. Brown’s

August 19, 2011 medical record, the analysis changes. Based upon the October 1, 2025 Findings

of Fact, both Ms. Sanchez and Ms. Roquemore knew about and possessed both medical records

before Ms. Roquemore certified the medical records as complete. Although Mr. Gage contended

that “We are all doing the best we can,” (Tr. 4532) that description does not explain why Ms.

Roquemore failed to file in 2011 two medical records that she possessed.23

The second instance in which trust in Ms. Roquemore was misplaced occurred in the

context of the first motion for an award of attorneys’ fees and costs on an interim basis on

September 16, 2014. See section II.F, above. In support of this motion, Mr. and Ms. Sanchez

presented Ms. Roquemore’s timesheets. The detailed time entries from August 2011 revealed

that Ms. Roquemore had considered material such as the day planner, T.S.’s baby book, and

audio recordings. The Secretary requested production of this material. See Resp’t’s Resp., filed

Nov. 24, 2014, at 2 n.1 (identifying newly identified material).

The timesheets also showed that on August 22, 2011, Ms. Roquemore called “Dr.

Micaela’s office to discuss medical record”24 and on August 24, 2011, Ms. Roquemore

“[r]eviewed letter from Dr. Brown.” These entries are the crux of Mr. and Ms. Sanchez’s

argument regarding the Secretary’s lack of diligence. See Pet’rs’ Comp. Resp. at 20. In their

view, the Secretary had sufficient information “right there and then in 2014 to subpoena the

records.” Id. at 20-21. In other words, the Secretary should have known something was missing.

The completeness of the disclosure of information by Mr. and Ms. Sanchez was

discussed in an unrecorded status conference on November 25, 2014. See Order, issued

December 2, 2014. Mr. and Ms. Sanchez maintained that they were not obligated to file items

like the day planner because they were obligated to file only “medical records,” and the day

planner is not a medical record. In resolving this dispute, the undersigned made a preliminary

point---that “Petitioners appear to have complied with this obligation [to produce all medical

records].” Order, issued Dec. 2, 2014, at 1; see also Tr. 4517. Ms. Roquemore subsequently

affirmed her understanding was that petitioners are required to present medical records. Ms.

23

Two things merit noting. First, Mr. Gage joined the case in 2024, well after medical

records were (and were not) filed in 2011. Second, Ms. Roquemore appears to contest the

Findings of Fact regarding her possession of Dr. Valencia’s and Dr. Brown’s 2011 medical

records. See Tr. 4527. While Mr. and Ms. Sanchez, of course, possess a right to seek appellate

review, the tenor in the December 3, 2025 oral argument that Ms. Roquemore did nothing wrong

is inconsistent with the current findings of fact.

24

Again, in 2011, Ms. Sanchez and Ms. Roquemore believed Ms. Marin-Tucker was a

doctor, not a physician’s assistant in Dr. Valenica’s office.

27

Roquemore’s Supp’l Dec. in support of Pet’rs’ Reply regarding Mot. for Interim Fees, filed Dec.

12, 2014, at 15; see also Tr. 4515.

However, Ms. Roquemore did not correct the undersigned’s belief that Mr. and Ms.

Sanchez had complied with their obligation to produce all medical records. In fact, as was later

revealed, Mr. and Ms. Sanchez had not presented many medical records about T.S. To the extent

that discussions at the end of 2014 revealed to Ms. Roquemore and the Sanchezes that they

should have produced more of T.S.’s medical records earlier in the case, then the Sanchezes

should have made that production voluntarily without any additional request from the Secretary.

See 42 U.S.C. § 300aa–11(c)(2) (requiring the submission of “all post-injury . . . records”); see

also Ideal Innovations, Inc. v. United States, 167 Fed. Cl. 314, 341-44 (2023) (discussing parties’

obligation to supplement their discovery responses and imposing sanctions preventing the

plaintiff from relying upon documents produced late); Contreras v. Sec’y of Health & Hum.

Servs., 116 Fed. Cl. 472, 477 (2014) (noting that the Secretary had an independent obligation to

update the curriculum vitae of an expert whose medical license became suspended), vacated on

unrelated grounds, 844 F.3d 1363 (Fed. Cir. 2017).

As to the accusation that the Secretary and his attorney did not act with due diligence, the

Secretary’s response is short, but true: “For respondent to have sought further discovery after

2014, he would have had to disbelieve the representations of petitioner and Ms. Roquemore that

all such records had been filed.” Resp’t’s Comp. Mot., filed Jan. 11, 2024, at 27. Although Mr.

and Ms. Sanchez responded, they did not explicitly contend that the Secretary should not have

believed their representations in 2011 and 2014 concerning the production of medical records.

How the Secretary responded in 2024, after Mr. and Ms. Sanchez produced Dr.

Valencia’s August 6, 2011 medical record, is not the question. The pertinent time is 2014, when

arguably Ms. Roquemore’s timesheets suggested that the petitioners and she were not fulfilling

their obligations to present medical records. Again, this affirmative duty to produce medical

records comes from Congress and is found in the Vaccine Act.

The perspective from 2024 wrongly brings in information not available in 2014. The

Federal Circuit has warned that hindsight should not affect an assessment of whether a discovery

(invention) was obvious. See Orexo AB v. Actavis Elizabeth LLC, 903 F.3d 1265, 1271 (Fed.

Cir. 2018) (“Judicial hindsight must be avoided”); Outside the Box Innovations, LLC v. Travel

Caddy Inc., 695 F.3d 1285, 1297 (Fed. Cir. 2012) (“courts have recognized that, although

advances in technology may in retrospect appear obvious to a judge, stimulated by advocacy, it

is relevant that the advance eluded persons in the field. The distortions flowing from judicial

hindsight have often been remarked”); Mintz v. Dietz & Watson, Inc., 679 F.3d 1372, 1378 (Fed.

Cir. 2012). Likewise, the Supreme Court has reasoned “[a] factfinder should be aware, of

course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon

ex post reasoning.” KSR Internat’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007).

From the information available in 2014, the Secretary cannot have been expected to sniff

out potential litigation misconduct by seeking the authority to issue subpoenas. To start, Ms.

Roquemore certified the medical records as complete on October 27, 2011. Then, in 2014, a gist

28

of the argument regarding the failure to produce the day planner was “we complied with our

obligations because we produced [all] the medical records.” This appeared credible at the time.

When viewed from a trusting perspective in 2014, Ms. Roquemore’s time records did not

set off any alarms. For example, Ms. Roquemore spent some time in early August 2011

checking with people in Dr. Valencia’s office about whether a medical record could be corrected.

These efforts do not necessarily inform either the Secretary or the undersigned that Ms.

Roquemore possessed a medical record that she did not file. Similarly, Ms. Roquemore’s

August 24, 2011 time entry about reviewing a letter from Dr. Brown does not signal that Ms.

Roquemore is reviewing information that was not filed into evidence. Before this date, Dr.

Brown had created two other documents, which were filed with the petition as Exhibit 1 pages

44 (Feb. 5, 2009), and 53 (May 13, 2009). Thus, a natural interpretation of Ms. Roquemore’s

August 24, 2011 time entry is compatible with an assumption that Mr. Sanchez, Ms. Sanchez,

and Ms. Roquemore are playing by the rules. See Resp’t’s Reply, filed Sep. 18, 2023, at 6

(arguing that the Secretary had no reason to disbelieve the representations from Ms.

Roquemore); Tr. 4538.

To the extent that information from 2024 or 2025 could influence the evaluation, this

information seems to support the view that the Secretary did not have a substantial basis to

request discovery. For example, in the context of discussing the (lack of) production of Dr.

Valencia’s August 6, 2011 medical record, Ms. Roquemore maintained that she did not know in

2011 that the visit was going to be memorialized in a medical record. May 24, 2023 Tr. at 10.

Ms. Roquemore maintained this account when she testified in 2025. Tr. 4387. And Ms.

Roquemore further testified that she did not know Dr. Valencia created a medical record. Tr.

4304. Ms. Roquemore professed ignorance on these topics even though she was communicating

with Ms. Sanchez. Similarly, Ms. Roquemore did not know when she testified in 2025 what

letter from Dr. Brown she reviewed on August 24, 2011. Tr. 4251. Nevertheless, the gravamen

of the argument from petitioners is that counsel for the Secretary should have had greater

knowledge about what was going on in August and October 2011 than Ms. Roquemore. This

argument is not persuasive.

To the extent that Mr. and Ms. Sanchez are arguing that the information presented in Ms.

Roquemore’s timesheets was a basis for the Secretary to glean various clues to reach the

conclusion that medical records from 2011 were missing, Mr. and Ms. Sanchez appear to

overlook that the same information presented in Ms. Roquemore’s timesheets would be a basis

for Ms. Roquemore also to conclude that medical records from 2011 were missing. As Ms.

Roquemore contended, “maybe both parties are at fault.” Tr. 4528.

Overall, the misconduct in failing to present Dr. Valenica’s August 6, 2011 medical

record and in failing to present Dr. Brown’s August 19, 2011 medical record taints the position

of Mr. and Ms. Sanchez.25 This misconduct amounts to an affirmative choice to hide evidence.

25

“Misconduct” is used in the sense of its meaning in Fed. R. Civ. Proc. 60(b)(3). Cases

interpreting the meaning of misconduct as used in Fed. R. Civ. Proc. 60 are helpful to define

“misconduct.” See Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care,

29

Additional misconduct occurred with respect to other medical records, such as the records from

Inland Regional Center where T.S. received treatment, although the failure to obtain these

treatment records appears to have been based upon Ms. Roquemore’s lack of awareness. Tr.

4156 (Ms. Sanchez’s testimony that she does not recall whether Ms. Roquemore asked whether

T.S. was receiving any therapy).26 In any event, the misconduct by Ms. Sanchez and Ms.

Roquemore taints their position such that they cannot persuasively argue that the Secretary alone

was to blame. See 4DD Holdings, LLC v. United States, 169 Fed. Cl. 164, 179 (2023) (ruling

that the United States could not assert the defense of equitable estoppel because “[t]he

government comes before the court with unclean hands. It has intentionally destroyed evidence

and lied to 4DD about its actions”), mot. for reconsideration denied, No. 15-945C, 2024 WL

2240359 (Fed. Cl. Apr. 26, 2024), appeal docketed, No. 24-1996 (Fed. Cir. June 25, 2024); Cf.

Oak Grove Technologies, LLC, v. United States, 116 F.4th 1364, 1383-85 (Fed. Cir. 2024)

(finding that the Court of Federal Claims did not abuse its discretion in imposing a sanction – a

financial penalty – against the government when it failed to include documents in the

administrative record of a bid protest).

At the end of the day, the Sanchez case resembles Vant Erve. In both situations,

petitioners were at least aware of information relevant to entitlement but did not file the

information. In both cases, petitioners have attempted to shift responsibility from themselves to

the Secretary, arguing that the Secretary was not diligent. This argument lacked persuasiveness

Inc., 818 F.3d 1320, 1328 (Fed. Cir. 2016) (differentiating “misconduct” from “fraud” and

“misrepresentation” and citing Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).

However, Rule 60 does not govern the Secretary’s motion to reopen entitlement. Rule 60 comes

into play when there is a judgment. Vant Erve, 39 Fed. Cl. at 612. Here, there is no judgment.

See Pet’rs’ Comp. Resp. at 41, 46.

26

As part of the briefing, Mr. and Ms. Sanchez located a passage in one of Dr. Dipple’s

medical records that noted that T.S. was being seen at Inland Regional Center. Pet’rs’ Comp.

Resp. filed May 9, 2024, at 7 and 23, citing Exhibit 1 at 131. In an ideal world, the Secretary

could have noted this mention and requested the production of these medical records. See

Vaccine Rule 4(a)(2) (explaining that “If respondent concludes that relevant documents are

missing, respondent must immediately notify petitioner regarding the perceived omission”). But,

the same can be said for Mr. and Ms. Sanchez---in an ideal world, either Ms. Roquemore or they

also would have seen the phrase in Dr. Dipple’s records and sought out the records from Inland

Regional Center as the Vaccine Act requires them to do. Thus, the records from Inland Regional

Center are comparable to the MRIs in Vant Erve for which the Court found that both parties

shared the responsibility for the lack of earlier production. Vant Erve, 39 Fed. Cl. at 614.

Notably, although the respondent was partially responsible for the delay in the production of a

critical medical record, the Court still granted the Secretary’s motion to reopen entitlement. Id.

at 615 (noting that, “At a minimum, the onus of the delay in production can be shared equally

between the parties”).

30

in Vant Erve and in this case because the duty to produce medical records then and now was with

the petitioners.

D. Newly Discovered Medical Records

The set of newly discovered medical records is considerable. For example, the materials

from Inland Regional Center, where T.S. received therapy, exceeds 1700 pages. Exhibit 243.

For purposes of analysis, the set of newly discovered medical records can be divided into two

categories: (1) Dr. Valencia’s and Dr. Brown’s August 2011 medical records and (2) other

medical records in which Ms. Sanchez (and sometimes Mr. Sanchez) told medical personnel

T.S.’s history.

1. Dr. Valencia’s and Dr. Brown’s August 2011 Medical Records

The background for the creation of these medical records provides a context to

understanding why they are important for the litigation. After T.S. received the vaccines in

February 2009, according to the family’s affidavits, he started to experience abnormal

movements that he displayed for multiple months. See, e.g., Exhibit 3 ¶¶ 6-11 (Ms. Sanchez’s

aff., dated Oct. 5, 2011). During the time when T.S. was assertedly moving abnormally, Ms.

Sanchez brought him to Dr. Brown for an ear infection. Exhibit 1 at 53. Dr. Brown’s record

from this visit fails to memorialize any complaints about abnormal movements. The first

medical record to document an abnormality in T.S.’s development was the August 19, 2009

record that Ms. Marin-Tucker, a physician’s assistant in Dr. Valencia’s office, created. Exhibit 1

at 54-56. According to this history, Ms. Sanchez noticed a delay in Tristan’s development two to

three months ago, making the potential onset around May or June 2009.

These medical records posed a challenge for the Sanchezes’s claim that the February 5,

2009 vaccination harmed T.S in several respects. First, the absence of a documented complaint

supports an inference that T.S. was not having abnormal movements at the time Dr. Brown saw

him. If T.S. had been experiencing abnormal movements in May 2009 when Ms. Sanchez

brought him to see Dr. Brown, then Ms. Sanchez would have told Dr. Brown about those

abnormal movements and Dr. Brown, at a minimum, would have documented the complaint.

Without documentation, the special master could find that Ms. Sanchez’s testimonial account

was unpersuasive. This reasoning has been found not arbitrary. See Bradley v. Sec'y of Health

and Hum. Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993). Second, Ms. Marin-Tucker’s August

19, 2009 medical record tends to corroborate the analysis of Dr. Brown’s May 13, 2009 medical

record. As just stated, one interpretation of Dr. Brown’s May 13, 2009 is that T.S. was not, in

fact, having abnormal movements May 13, 2009. Then, the history that Ms. Marin-Tucker

obtained from Ms. Sanchez places the onset of T.S.’s abnormal movements around the end of

May 2009, which is after the visit with Dr. Brown. Third, if the combined effect of Dr. Brown’s

May 13, 2009 medical record and Ms. Marin-Tucker’s August 19, 2009 medical record

persuasively established that T.S. started abnormal movements at the end of May 2009, then it

was unlikely that the February 5, 2009 vaccination caused the problem. See Pafford v. Sec'y of

Health & Human Servs., 451 F.3d 1352, 1358 (Fed. Cir. 2006) (“If, for example, symptoms

normally first occur ten days after inoculation but petitioner’s symptoms first occur several

weeks after inoculation, then it is doubtful the vaccination is to blame.”).

31

From this starting point, Ms. Roquemore suggested that Ms. Sanchez inquire whether the

doctors might correct their medical records. The basis for this suggestion was Ms. Sanchez’s

recollection that she had consistently reported that T.S.’s abnormal movements started in

February 2009, right after the vaccination. Exhibit 3 (Ms. Sanchez’s affidavit) ¶¶ 7-10; Ms.

Roquemore’s Supp’l Decl. ¶ 15. Thus, Ms. Roquemore and Ms. Sanchez planned that Ms.

Sanchez would see if the doctors were “willing to provide a clarification letter.” Ms.

Roquemore’s Supp’l Decl. at ¶ 15.

Dr. Valencia’s August 6, 2011 medical record and Dr. Brown’s August 19, 2011 medical

record are the result of this plan. Both Dr. Valencia and Dr. Brown document that Ms. Sanchez

was asking for a change to the medical records. Exhibit 262 (filed Apr. 12, 2023) and Exhibit T

at 17-18 (filed July 26, 2023). Both Dr. Valencia and Dr. Brown declined to change their

underlying records. Dr. Valencia stated that Ms. Marin-Tucker and she “can not change or

ALTER any of our previous documents since they are considered PERMANENT RECORDS

and that our notes [are] based on the interview and assessment at the time of [the] visit and that it

will be hard to recall anything on those visits unless they were documented.” Exhibit 262 at 1.

The parties differed in their interpretation of Dr. Valencia’s August 6, 2011 medical

record. The Secretary maintained that Dr. Valencia is saying in 2011 that “there was nothing

omitted from the original records.” Tr. 4589. Mr. and Ms. Sanchez contended that the August 6,

2011 medical record “only says that it would be hard to recall anything on those visits unless it

was documented. It doesn’t mean everything was documented.” Id.

Although Dr. Valenica’s August 6, 2011 record could be viewed as neutral, not adding or

subtracting information about when T.S. started to move his arm abnormally, this medical record

revealed that Ms. Sanchez sought correction of T.S.’s medical records from at least one doctor.

Tr. 4590. If Mr. Sanchez and Ms. Sanchez had filed Dr. Valenica’s August 6, 2011 medical

record with the other medical records from Dr. Valencia that they filed on October 26, 2011 as

Exhibit 11, then almost certainly there would have been questions asked about whether Ms.

Sanchez had sought correction of records from other doctors. For example, the undersigned

almost certainly would have inquired about this topic during the May 15, 2012 fact hearing. In

this scenario, a truthful response to this question would have required Ms. Sanchez to disclose

she also sought a correction of Dr. Brown’s records.

From the information discovered in response to the Secretary’s 2023 subpoena, Dr.

Brown’s response to Ms. Sanchez’s 2011 attempt to change T.S.’s medical record is now known.

Dr. Brown went a step farther than Dr. Valencia. Dr. Brown disagreed with Ms. Sanchez’s

statement in 2011 that she in 2009 told him that T.S. was having abnormal movements. Dr.

Brown stated that if she had told him about those abnormal movements, then Dr. Brown would

have acted upon them. In particular, Dr. Brown would have ordered an EEG. Exhibit T at 17.

Mr. and Ms. Sanchez acknowledge that a physician’s ordering an EEG in response to a

complaint that an infant was moving abnormally was not something out of left field. Tr. 4596.

32

2. Other Medical Records Created in 2009-10

Although potential litigation sparked Ms. Sanchez to seek corrections to Dr. Valencia’s

and Dr. Brown’s medical record, other newly discovered medical records show how Ms.

Sanchez reported T.S.’s medical history before she consulted an attorney. These include reports

to a physical therapist and occupational therapist in October 2009. Exhibit 326 at 13, 43.

Another example is the report to Inland Regional Center in March 2010. Exhibit 243 at 4, 604.

A third example is the parents’ email to Dr. Gusella in June 2010. Exhibit U at 771. These are

discussed in more detail in section IV.C.

E. Assessment of Newly Discovered Medical Records

The parties differ in how they value the newly discovered medical records. The

Secretary maintains that “these newly discovered medical records, individually and collectively,

represent a substantial change in the evidence that requires this special master to set aside the

Circuit’s mandate and reopen the record on entitlement.” Resp’t’s Comp. Mot. at 21. In

contrast, Mr. and Ms. Sanchez generally argue across multiple pages that the newly discovered

evidence either is cumulative or supports their account. See Pet’r’s Comp. Resp. at 24-40.

The newly discovered medical records are not cumulative with previously produced

evidence. Dr. Brown’s letter, in particular, contradicts Ms. Sanchez’s account that she told Dr.

Brown (and other medical professionals treating T.S.) that T.S. was moving his arm abnormally.

This is especially significant when considering the lack of evidence negating Ms. Sanchez’s

account in the previous (incomplete) record. See Second Federal Circuit Opinion, 34 F.4th at

1355 n.5. Taken together, the newly produced evidence constitutes an extraordinary

circumstance that justifies revisiting the entitlement finding that the Federal Circuit made

without the benefit of all the evidence. See Vant Erve, 39 Fed. Cl. at 612 (stating that whether to

consider reopening entitlement, the “paramount test is the nature of the proffered new

evidence”). While the newly discovered evidence is “highly relevant,” 39 Fed. Cl. at 612, the

four-factor Vant Erve test has other components as well.

F. Other Vant Erve Factors

Although Vant Erve emphasizes that the factor weighing the most heavily is the nature of

the newly discovered evidence, there are additional factors.

1. Prejudice to the Parties

Vant Erve defined prejudice to the parties in terms of the non-moving party’s inability to

re-establish its case, perhaps because a witness became unavailable. The Court rejected attempts

to define “prejudice” in terms of emotional toil. 39 Fed. Cl. at 613.

The Secretary contended that allowing reopening would not prejudice Mr. and Ms.

Sanchez. Resp’t’s Mot. to Reopen, filed Aug. 16, 2023, at 12-13. He points out that after he

subpoenaed documents, the records have been preserved.

33

Mr. and Ms. Sanchez provide relatively little comment about a potential prejudice to

them. Much of their argument regarding prejudice is tangled with arguments that the Secretary

should have sought production of documents earlier. See Pet’r’s Resp. to Motion to Reopen,

filed Sep. 6, 2023, at 12-13. As found earlier in this order, an attempt to shift blame for the lack

of production of records onto the Secretary is not persuasive. Otherwise, Mr. and Ms. Sanchez

note that the case has been pending for more than a decade and has been to the Federal Circuit

twice. Id. at 12.

The record supports a finding that Mr. and Ms. Sanchez would not be prejudiced in the

sense that they can continue litigating the case.27 Mr. and Ms. Sanchez have not identified any

witnesses who have become unavailable. See Pet’rs’ Opp’n to Mot. to Reopen, filed Sept. 6,

2023 at 13; see also Resp’t’s Reply, filed Sep. 18, 2023, at 2 n.1.28

2. Length of Delay and Reason for the Delay

In Vant Erve, these two factors were treated together. 39 Fed. Cl. at 614-15.

A predominant question is who is responsible for the delay in producing the newly

discovered evidence, starting with Dr. Valencia’s August 6, 2011 medical record and Dr.

Brown’s August 19, 2011 medical record. As discussed in the October 1, 2025 Finding of Fact,

Ms. Sanchez and Ms. Roquemore possessed both documents before Ms. Roquemore certified the

records as complete on October 27, 2011. 2025 WL 3004761. Their failure to comply with their

obligations caused the delay. This litigation misconduct weighs in favor of the Secretary’s

argument for reopening and weighs against the Sanchezes’ argument opposing reopening. See

Luv n’ Care, Ltd. v. Laurain, 98 F.4th 1081, 1094-96 (Fed. Cir. 2024) (ruling that trial court did

not abuse its discretion in finding that a litigant’s “unclean hands” barred it from seeking relief

for alleged infringement of patents).

27

Although reopening entitlement is “prejudicial” in the sense that reopening might lead

to a finding that Mr. and Ms. Sanchez are not entitled to compensation, this risk is inherent in

any motion to reopen. Thus, the potential change in outcome is not a basis for denying a motion

to reopen. See Vant Erve, 39 Fed. Cl. 613-14.

28

The Sanchezes also contend that, “From the Sanchezes’ perspective, more delay in this

case is seen as an attempt to ‘run the clock’ on [T.S.]’s life. That, in and of itself, and the time it

will take to go through a reopening of entitlement, is most definitely prejudicial to this child and

his family.” Pet’rs’ Sur-Reply, filed Oct. 6, 2023, at 3; see also Pet’rs’ Comp. Opp’n, filed May

9, 2024, at 52. This comment is regrettable and inconsistent with how the Government acts.

Routinely, after there has been a finding of entitlement (regardless of whether the Secretary

contested entitlement), the Secretary cooperates in the process of resolving damages. What

distinguishes the T.S.’s case from other cases is the discovery of medical records that should

have been produced years earlier. Moreover, as stated, Vant Erve rejected attempts to factor

emotional toil into a determination of prejudice. 39 Fed. Cl. at 613.

34

The length of the delay is, unfortunately, long, as the case was filed in 2011, and the

Secretary filed the motion to reopen entitlement in 2023. However, as the Secretary contends,

“Years of litigation could have been avoided if petitioners had disclosed these records.” Resp’t’s

Mot. to Reopen, filed Aug. 16, 2023, at 13.

G. Summary regarding Motion to Reopen

The obligation to produce medical records rests with Mr. and Ms. Sanchez, according to

both the Vaccine Act and Vaccine Rule 2. At the beginning of the case in 2011, they did not file

all of T.S.’s medical records. Some of the missing records included medical records that Ms.

Sanchez and Ms. Roquemore possessed and knew about before Ms. Roquemore certified the

record as complete.

Mr. and Ms. Sanchez have not persuasively transformed their burden to produce all

medical records into a burden for the Secretary to request records such that the Secretary can be

found to have waived the right to request medical records. The information contained in Ms.

Roquemore’s timesheets submitted in 2014 did not alert the Secretary that Ms. Roquemore and

Ms. Sanchez possessed a medical record from Dr. Valencia and a medical record from Dr.

Brown that they had not produced. Moreover, even if both parties were somehow responsible

for the lack of production of these records, Vant Erve demonstrates that reopening entitlement is

proper when the character of the newly discovered evidence is highly relevant to entitlement.

As set out above in section III.E., the newly discovered medical records are highly

relevant to entitlement. The newly discovered medical records contain information about how a

doctor who treated T.S. in 2009 would have acted if Ms. Sanchez told him about abnormal arm

movements. This evidence is new and undermines Ms. Sanchez’s account. Multiple newly

discovered medical records also present an account in which T.S. developed an illness, which

lasted for weeks or a month, and then around the time he was recovering from the the illness,

started to move his arms abnormally. Moreover, the other Vant Erve factors are either neutral or

weigh in favor of reopening entitlement. See section III.F above.

Accordingly, the Secretary has met his burden of establishing the extraordinary

circumstances warranting revisiting the entitlement finding made by the Federal Circuit.

IV. Analysis Part Two: Findings of Facts

A. Introduction

Before the analysis of these arguments proceeds, one preliminary point should be

acknowledged. The question of when T.S. started to display abnormal movements is not a new

issue. Therefore, the ensuing weighing of the evidence does not start on a fresh page as many

pages have already been written on this topic.29

29

For a summary of rulings on this topic, see Appendix B.

35

This history of litigation does not preclude a reassessment of the evidence by the

undersigned. Because special masters (not juries) resolve claims in the Vaccine Program in the

first instance, a motion to reopen is necessarily directed to the same finder of fact. See, e.g.,

Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 629 (1998) (ruling a special master

reasonably reopened entitlement to receive evidence from an expert), aff’d, 191 F.3d 1344 (Fed.

Cir. 1999); Vant Erve, 40 Fed. Cl. at 616 (remanding the case to the same special master). The

previous findings of fact do not require disqualification of the undersigned. See In re T.S. by and

through Sanchez, No. 2025-114, 2025 WL 670189, at *3 (Fed. Cir. 2025) (denying petitioners’

motion for reassignment due to alleged bias); Opinion and Order Denying Petitioners’ Mot. for

Protective Order, No. 11-685V, 2024 WL 5414170, at *4 (directing petitioners to file any motion

for reassignment of the case to the chief special master); see also Order, issued Apr. 10, 2024

(considering sua sponte whether the undersigned’s concerns about the credibility of Ms.

Roquemore required recusal).

These prior adjudications, especially the resolutions by the Federal Circuit, certainly

merit considerable respect. But, they do not control the outcome because the evidence has

changed. See Deribeaux v. Sec’y of Health & Hum. Servs., 717 F.3d 1363, 1365-66 (Fed. Cir.

2013) (describing a procedural history in which information produced during damages led a

special master to find the petitioners were not entitled to compensation).

B. Standards for Adjudication

The undersigned’s obligation is to make findings of fact and conclusions of law. Munn

v. Sec'y of Health & Hum. Servs., 970 F.2d 863, 869 (Fed. Cir. 1992); 42 U.S.C. § 300aa–

12(d)(3)(A)(i). In finding facts, the question is how does the evidence preponderate? Petitioners

are required to establish their case by a preponderance of the evidence. 42 U.S.C. § 300aa–

13(1)(a). The preponderance of the evidence standard requires a “trier of fact to believe that the

existence of a fact is more probable than its nonexistence before [he] may find in favor of the

party who has the burden to persuade the judge of the fact's existence.” Moberly v. Sec’y of

Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted). Proof of

medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d 867, 873

(Fed. Cir. 1991).

Distinguishing between “preponderant evidence” and “medical certainty” is important

because a special master should not impose an evidentiary burden that is too high. Andreu v.

Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379-80 (Fed. Cir. 2009) (reversing special

master's decision that petitioners were not entitled to compensation); see also Lampe v. Sec’y of

Health & Hum. Servs., 219 F.3d 1357 (Fed. Cir. 2000); Hodges v. Sec’y of Health & Hum.

Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (disagreeing with dissenting judge's contention that the

special master confused preponderance of the evidence with medical certainty).

C. Summary of Evidence

In all cases, special masters are required to consider the record as a whole. 42 U.S.C.

§ 300aa-13(a)(1). Consideration of the entire record is even more important in the context of

reopening entitlement because any evaluation of whether the newly discovered evidence is

36

different from previously produced evidence or is cumulative with previously produced evidence

inherently requires a review of the previously produced evidence.

The evidence concerning T.S.’s health from February to August 2009 is divided into

three categories.

1. Medical Records Created from February 5, 2009 through August 2009

T.S. was born in August 2008. T.S. was taken to his six-month well-baby checkup with

Dr. Philip Brown on February 5, 2009. Exhibit 1 at 44. Dr. Brown found his growth and

development to be normal. Id. at 46. On this day, T.S. received the diphtheria-tetanus-acellular

pertussis, hepatitis B, Haemophilus influenzae type B, inactivated polio, and pneumococcal

conjugate vaccines. Id. Dr. Brown recommended that T.S. return in two months to receive

further vaccinations. Id.; see also Ruling Finding Facts, 2013 WL 1880825 (Fed. Cl. Spec. Mstr.

Apr. 10, 2013) at ¶ 6.

On the morning of February 17, 2009, Ms. Sanchez brought T.S. to an Urgent Care,

where he was examined and treated by certified Physician Assistant Jonathan P. Luna.30 Ms.

Sanchez told Mr. Luna that T.S. had been coughing and congested, and had a fever. Exhibit 1 at

49. The medical record did not mention anything about T.S. exhibiting unusual arm movements.

See id. at 48-51. T.S.’s temperature was 98.9 degrees and “fever” was noted. Exhibit 1 at 49;

Tr. at 74, 115. Mr. Luna diagnosed T.S. with a “[c]ommon cold” and “[v]iral syndrome.”

Exhibit 1 at 48, Tr. at 74, 115.

A later discovered medical record adds some additional information. When the Secretary

subpoenaed records from Mr. Luna’s office, the office produced one page which was previously

not produced. Exhibit T at 50. The parties typically refer to this page as the “SOAP”

(Subjective, Objective, Assessment, and Plan) notes. The SOAP notes contain a typed portion

that describes the nature of the illness or injury as a “bad cough.” The nurse who filled out the

SOAP notes wrote that the chief complaint was a “cough & congestion.” The SOAP note

contains no notation of abnormal arm movements. Ms. Sanchez signed the document twice,

reflecting that she consented to treatment and certifying that the follow-up instructions were

explained to her and that she understood them. Id. at 49-51.

On April 29, 2009, when pediatrician Dr. Nabil R. Seleem saw T.S., then eight and a half

months old, he noted that T.S. had suffered cough and congestion for two weeks. No unusual

30

Documents about this Urgent Care visit are found in two places, produced at different

decades in the litigation. The initial document about the February 17, 2009 Urgent Care visit

was filed in conjunction with the petition in October 2011 and is found at page 48-49 of Exhibit

1. The complete document about the February 17, 2009 Urgent Care visit was filed with other

documents produced in response to the Secretary’s subpoena on July 26, 2023. Exhibit T at 50-

51.

37

arm movements or developmental issues were reported. In his neurological review, Dr. Seleem

noted “[n]o neurological symptoms.” Ultimately, he diagnosed T.S. with an ear infection and

bronchitis and prescribed amoxicillin. Exhibit 1 at 50-52.

Ms. Sanchez and T.S.’s grandmother (likely Emma Fernandez, see Exhibit 6 ¶ 4)

returned with T.S. to St. Mary High Desert Medical Group on May 13, 2009, when he again saw

Dr. Brown. Dr. Brown’s May 13, 2009 medical record is one the more critical medical records.

The history of present illness states: “8 month-old boy here with his mother and gm

[grandmother] with c/o [complaints of] still congested since 4/29/09 visit with Dr. Seleem who

tx [treated] him with amoxicillin for otitis. Mother says the congestion sx [symptoms] are worse

during the daytime. No known exposures, but sibs attend school.” Exhibit 1 at 53.31 Dr.

Brown’s May 13, 2009 medical record memorializes that Dr. Brown conducted a physical

examination of three aspects: “Gen,” “HEENT,” and “Chest.” Based upon this information, Dr.

Brown reached three impressions: “Nasal congestion and some rhonchi,” “Resolving URI/Viral

LRI infection,” and “Resolved otitis.” Id. Dr. Brown’s plan was to use a humidifier, elevate the

head of T.S.’s bed, and to follow up “PRN increased S/SX.” Exhibit 1 at 53.

In August 2009, Ms. Sanchez was pregnant with her daughter. A baby shower was held

on August 8, 2009. Exhibit 58 (day planner) at 31. Family members attended this baby shower.

At about one year old, T.S. was seen by Physician Assistant Micaela Marin-Tucker for a

well-child exam. Exhibit 1 at 54-56 (Aug. 17, 2009); Tr. 89-90. Ms. Sanchez informed Ms.

Marin-Tucker that she “noticed a change in [T.S.’s] development about 2-3 months ago32 but

since she had taken [T.S. to the pediatric clinic] with Dr. Brown she thought that everything was

ok.” Exhibit 1 at 54. Upon a review of systems, Ms. Marin-Tucker found that T.S. did not walk,

stand, crawl, and hold his head up while sitting, or make any attempt to move his lower

extremities. She also noted in her examination that his extremities seemed soft, yet rigid at

times. As the result of her examination, Ms. Marin-Tucker ordered a battery of lab tests. Exhibit

1 at 54-55. She also referred T.S. to a neurologist, physical therapist, and occupational therapist.

Id. at 55; Exhibit OO at 150; Tr. at 90. Additionally, T.S. received his third hepatitis B vaccine,

as well as his second doses of the pneumococcal conjugate, diphtheria-tetanus-acellular

pertussis, and Hib vaccines. Exhibit 1 at 55; Tr. at 92. T.S. was to return to the nurse the next

week to receive the remaining vaccinations that were due, including the measles, mumps, and

rubella, varicella, and hepatitis A vaccines. Exhibit 1 at 55.

Dr. Valencia ordered some genetic tests. These turned out negative. Exhibit NN at 106

(date reported: Oct. 5, 2009).

Dr. Brown’s May 13, 2009 record uses all capital letters. This opinion reformats Dr.

31

Brown’s medical record using more traditional capitalization.

32

According to this report, T.S.’s developmental changes began between May 17, 2009

and June 17, 2009.

38

2. Medical Records from October 2009 to August 2012

For purposes of resolving the motion to reopen, the changes in T.S.’s state of health

beyond October 2009 are not relevant. Thus, this order tends not to restate the results of most

tests performed on T.S. during this time. The presentation of information about T.S.’s health

from October 2009 forward draws mainly from the medical records. The Sanchezes generally do

not dispute the accuracy of the medical records created after October 2009. See, e.g., Exhibit 3

¶¶ 13-17 (discussing additional appointments with medical personnel, including Ms. Marin-

Tucker on Oct. 7, 2009; Dr. Michelson on Nov. 12, 2009; Dr. Michelson on December 15, 2009

to discuss the results of the MRI; and Dr. Valencia on Dec. 24, 2009). Although the summary of

T.S.’s medical records is relatively sparse, all medical records have been reviewed. By way of

contrast, information about T.S.’s past medical history is relevant to the pending motion to

reopen. Thus, the following sections tend to put forward the information that Mr. and Ms.

Sanchez told medical personnel about how T.S.’s disorder began.

In the August 19, 2009 visit, Ms. Marin-Tucker had referred T.S. to a neurologist,

physical therapist, and occupational therapist. Exhibit 1 at 55; Tr. at 90. Although Mr. and Ms.

Sanchez produced records from a neurologist at the beginning of the case (and this record is

discussed below), the records from the physical therapist and occupational therapist were not

produced until May 1, 2024. These records are contained in records from Loma Linda

University Health, which was filed as Exhibit 326.

About six weeks after the first appointment with Ms. Marin-Tucker, both Mr. and Ms.

Sanchez went to see Ms. Marin-Tucker for a follow-up. In a review of T.S.’s systems, Ms.

Marin-Tucker noted no seizures, weakness, or tics. She made no notation of tremors or

twitching. Upon neurologic examination, she found T.S. to be unable to grasp, sit, crawl, or

make much eye contact. Mr. Sanchez reported that there was “another child in the family with

the same symptoms and doctors [could] find nothing wrong.” Ms. Marin-Tucker emphasized the

importance of making the appointment with a neurologist as soon as possible. Exhibit 1 at 57-58

(Oct. 7, 2009).

Between the occupational therapist and the physical therapist, the occupational therapist

saw T.S. first. On October 8, 2009, the occupational therapist, who appears to be Stacey

Cunningham, recorded that T.S. had been diagnosed with developmental delay. Exhibit 326 at

13; Exhibit OO at 196 (duplicate). Ms. Cunningham further reported that T.S.’s “M [mom]

stated he decreased [functioning] after 6 mos. shots. In Aug., pt’s pediatrician recommended

neurology eval per M. No other PMH [past medical history] per M.” Id. Ms. Sanchez’s goal for

T.S. was “‘Being where he is supposed to be at.’” Id. at 14. Ms. Cunningham evaluated T.S.’s

functioning, noted deficits in several areas, and recommended occupational therapy, which T.S.

attended.

The physical therapy evaluation was relatively similar. The diagnosis is again

developmental delay. The history recounts: “14 month-old male, referred @ 12mo well child-

visit for Delay. Mom states pt was developing normally until immunizations @ 6 mo; got

infection & was not the same since.” Exhibit 326 at 43; Exhibit OO at 193 (duplicate). Unlike

the occupational therapy form, the form for the physical therapy evaluation prompts information

39

about onset date. The answer is “Feb. 5, 2009.” Id. Another note on this form states: “Baby

was normal according to mom, but @ 6 mo visit to MD, got immunization shots, got sick & was

not the same since. Pt did not have another MD visit until 12 months when MD referred.” Id. at

44.33 The physical therapist, who appears to be Lisa Hwang, also evaluated T.S.’s functioning,

found problems, and recommended more therapy.

On November 12, 2009, T.S. was taken to see Dr. David J. Michelson, the neurologist to

whom he was referred. Dr. Michelson’s summary of the history of present illness begins: “The

parents are good historians and there are some prior clinic notes and laboratory test results

available for my review.” Exhibit 1 at 140. The HPI section also memorializes that T.S.

“previously held his right arm stiffly behind him episodically, he does not do this lately.” Id.

Dr. Michelson’s account of T.S.’s past medical history includes that he suffered no chronic

illnesses.

Otherwise, much of Dr. Michelson’s November 12, 2009 note documented T.S.’s current

condition. Dr. Michelson recorded that T.S. was unable to sit independently, his hands stayed

closed, and his feet went forward when at rest. He noted that, T.S. “holds his mouth open tightly

and drools at times, but at other times he chews and swallows well.” Dr. Michelson’s review of

systems was positive for muscle spasms, global developmental delay, weakness, walking

problems, constipation, and birthmarks. Dr. Michelson noted that T.S. suffered from “global

developmental delay of unclear etiology, though a genetic predisposition is suspected based on

the family history and a [central nervous system] cause is suggested by the physical exam

findings.” Exhibit 1 at 140-41.

An MRI / MRA that Dr. Michelson had ordered suggested that T.S. suffered from

abnormalities in a part of his brain known as the basal ganglia. Exhibit 1 at 142. Dr. Valencia

referred to this notation in a note following a December 24, 2009 medical appointment. Exhibit

1 at 64-65. The doctors suspected that this problem in the basal ganglia might respond to

treatment with biotin.

At the end of 2009, T.S. was treated for a rash. See, e.g., Exhibit OO (Loma Linda

records) at 127, 132, 304 (history and physical).

The physical therapist, Ms. Hwang, reported on T.S.’s progress on February 10, 2010.

Exhibit 326 at 49. In Ms. Hwang’s account, T.S.’s medical history includes: “Mother states pt

was developing normally until immunizations at 6 months of age. Pt. had infection after

immunizations and once resolved, began demonstrating difficulty with gross motor skills. Pt.

has been declining since.” Id.

33

Between the immunizations, which were on February 5, 2009, and the one-year check-

up, which was on August 17, 2009, Ms. Sanchez brought T.S. to see three medical providers:

Mr. Luna, Dr. Seleem, and Dr. Brown.

40

A chief complaint of “possible Biotin-responsive basal ganglia disease” and

developmental delay was the basis of an appointment with a geneticist at UCLA, Katrina Dipple,

on February 22, 2010.34 Exhibit 16. Mr. and Ms. Sanchez informed Dr. Dipple that T.S.

has head control since he was born and then at 5 to 6 months of

age, he lost his head control. Around 6 months of age, he was

congested for about 4 weeks. Parents noted around this time, he

started having contortions of his arms which included twisting and

turning backwards, the arms were very stiff, this would come and

go and last minutes to hours. He then began having the same

[problem] with his feet. This progressed to be his whole body

becoming stiffer and tighter.

Id. at 2. This history does not mention the vaccinations. However, a later portion of this same

record states that T.S. was behind schedule on his immunizations “per parent’s preferences.” Id.

at 3.

Based upon the results of various tests, Dr. Dipple stated that the differential included a

“metabolic abnormality [such] as mitochondrial disease including Leigh’s disease.” Id. at 3. Dr.

Dipple was uncertain about a biotin-responsive basal ganglia disease because T.S.’s

improvement when taking biotin “has been mild.” Id. at 4. Dr. Dipple ordered additional tests,

but they were not enlightening.

By March 8, 2010, T.S. was being evaluated for services through California’s Inland

Regional Center. Exhibit 243 at 571 (Individual Family Services Plan, dated March 8, 2010), at

1448 (assessment, dated April 1, 2010). He was found eligible for services. See id. at 222

(Early Start Report, dated April 8, 2010). Through the Inland Regional Center, T.S. received

extensive services. Much of the work of Inland Regional Center is captured in Individualized

Program Plans (IPPs) over the years. But, these IPPs are not relevant to the motion to reopen.

The Inland Regional Center documents were not produced until March 22, 2023.35

Arguably, the only records from Inland Regional Center relevant to the Secretary’s pending

motion to reopen are from his initial evaluation. See Resp’t’s Comp. Mot., filed Jan. 11, 2024, at

13-14. As part of the family’s application for benefits, Ms. Sanchez was asked whether T.S. had

34

Before seeing Dr. Dipple, the Sanchezes had seen a different pediatric geneticist, James

Bartley. Exhibit NN at 24-25 (Feb. 4, 2010). However, Dr. Bartley’s record does not present

any information about T.S.’s medical condition in 2009.

35

The original version was missing pages labelled 237-239. After the Secretary noted

the omission of these pages, Mr. and Ms. Sanchez filed an amended version of the Inland

Regional Center on January 14, 2024 and explained that the omission was likely due to an error

in scanning. Pet’rs’ Comp. Resp., filed May 9, 2024, at 39. The initially missing pages

consisted of an immunization record and a third-party billing inquiry.

41

ever had a seizure. Ms. Sanchez wrote: “don’t know / has put his arms back and shook.” Exhibit

243 at 604. The staff member at Inland Regional Center added a note “8-8-09 had an episode –

arm back straight all body shaking lasted for a few seconds to a minute.” Id. This exchange of

information is repeated in the typed assessment, which adds “There have been no further

episodes of this behavior.” Id. at 4.

T.S. returned to UCLA’s pediatric geneticist, Dr. Dipple, on May 10, 2010. Exhibit 1 at

82-84. In updating T.S.’s progress since Dr. Dipple last saw him on February 22, 2010, Dr.

Dipple noted that T.S. “has made some developmental progress. He is making raspberries. He

started services from the Regional Center and currently gets OT and PT.” Id. at 82. Based upon

information available to her, Dr. Dipple assessed T.S. with “biotin-responsive basal ganglia

disease (BBGD), which is a disorder due to mutations in the thiamine transporter to SLC19A3

gene on 2q36. . . [M]itochondrial disease is unlikely.” Id. at 84.

It appears that Ms. Sanchez searched the internet for information about biotin-responsive

disorders of the basal ganglia. See Exhibit 1 at 196 (“Mom was doing online research on

biotinidase”). Ms. Sanchez’s investigation led her to email a researcher, Dr. James Gusella,

whom she believed “could shed some light” on T.S.’s situation, on June 3, 2010.36 As part of

Ms. Sanchez’s plea for help for T.S., she supplied Dr. Gusella with the following chronology,

which presents information about the start of abnormal arm movements after the recovery from

illness:

We first noticed something was [amiss] when he missed some

important developmental milestones like sitting up and crawling.

Then at around six months old he got sick with a cold followed by

an ear infection and congestion that lasted about a month. When

we took him to the doctor they told us he was normal but we

suspected something was wrong. When he finally did get better he

wasn’t quite the same. He began to clinch his hands and hold his

arms in strange positions behind his back. He also started to have

little fits of seizures. Little twitches of his body that I could tell he

wasn’t controlling.

Exhibit U at 771.37 A senior genetic counselor forwarded this email to Dr. Jennifer Friedman, a

neurologist, on June 22, 2010.

36

A website from 2023 identifies Dr. Gusella as the “Bullard Professor of Neurogenetics

in the Department of Genetics at Harvard University.”

https://bmiphd.hms.harvard.edu//people/james-francis-gusella.

37

The Secretary obtained this 2010 document via a subpoena issued in 2023. This

document was not included in the material the Sanchezes produced.

42

Mr. and Ms. Sanchez brought T.S. to see neurologist Dr. Jennifer Friedman, the same

doctor to whom Ms. Sanchez’s email to Dr. Gusella was forwarded.38 The appointment took

place on August 2, 2010. Exhibit 1 at 194-99.39 Dr. Friedman obtained a history about the onset

of T.S.’s problems:

[T.S.] was perfectly normal until 6 month vaccines. Parent report

he was saying mama, dada and supporting weight on his legs at

that time. Parents didn't do 2 month or 4 month shots, then showed

up for 6 month vaccines at 5 mo of age. (at this visit noted to have

normal development, rolling back to front and standing when

placed, passing objects hand to hand and rake sand grasping small

objects, sitting with support, no head leg with pull to sit) Got his

shots, then shortly developed fever and cranky. Then developed

congestion (1-2 weeks after). Were giving him Tylenol. Saw PMD,

Dx otitis media, gave Amox. ("It was horrible he was really sick,

he couldn't eat). There was one particularly bad night where he

started: he started making weird movements. At night he would

stiffen his arms behind his back, he would jerk his arms and his

neck, sometimes at same time, sometimes one after another. Arms

much more prominent than the head. Would do this minutes at a

time. Dad would try to straighten his arms but they would snap

back. He would do this when awake and asleep. No post-ictal.

Exhibit 1 at 194. Evidently, Dr. Friedman reviewed some medical records because Dr. Friedman

stated the first document showing abnormal neurologic symptoms is from August 2009, when

Ms. Sanchez described a “2-3 month changes in development.” Id. at 194-95. Dr. Friedman

assessed T.S. as suffering from “global developmental delay and dystonia secondary to a

presumptive diagnosis of biotin responsive basal ganglia disease." Id. at 197.

Dr. Friedman ordered additional tests, including an EEG. The EEG suggested seizures,

but she did not recommend any treatment. See Exhibit 1 at 182-82.

Dr. Friedman referred the family to a specialist in metabolic diseases, Fred Levine.

Exhibit 1 at 201-02 (Sep. 21, 2010). The history of present illness that Dr. Levine obtained

includes: “entirely normal until 6 months of age when had febrile illness associated with

significant lethargy. Dating from that point, parents noted abrupt loss of developmental

38

Both Ms. Sanchez and Ms. Roquemore persuasively deny that Ms. Roquemore

facilitated the appointment with Dr. Friedman. See Exhibit 56 ¶ 2; Supp’l Decl. at 2 n.2.

39

A portion of the August 2, 2010 report was written by Jeffrey Gold. However, the

parties tend to refer to this medical record as written by Dr. Friedman.

43

milestones. They have considered vaccine reaction as a possibility but they recall also

mentioning to their physician the possibility of West Nile virus infection.” Id. at 201.

On November 5, 2010, an occupational therapist, Kenneth Latner, memorialized that T.S.

“stopped progressing with gross motor skills after this illness and began shaking in bilateral

extremities.” Exhibit 246 at 1877 (emphasis added).

On December 7, 2010, T.S. was seen by pediatrician Valerie Wong. Dr. Wong obtained

a history from Ms. Sanchez:

[T.S.] received his vaccinations at 6 months of age. Prior to this,

he had only received the hepatitis B vaccine. Mother believes the

vaccines caused the patient’s present state. At the same time,

mother relates that the patient had a very high fever, greater than

103° F, for at least 4-5 days, during which he was miserable with

coughing and a runny nose. At approximately 6 months of age,

soon after the illness and the vaccinations, mother noted that the

patient was no longer advancing in his milestones.

Exhibit 246 at 1873.

T.S. continued to see various doctors and receive medical treatments. On August 7,

2012, T.S. saw another doctor for the first time. Dr. Haas recorded:

[T.S.] was perfectly normal until 6 month vaccines. Parents report

he was saying mama, dada and supporting weight on his legs at

that time. Parents didn't do 2 month or 4 month shots, then showed

up for 6 month vaccines at 5 mo of age. (at this visit noted to have

normal development, rolling back to front and standing when

placed, passing objects hand to hand and rake sand grasping small

objects, sitting with support, no head leg with pull to sit) Got his

shots, then shortly developed fever and cranky. Then developed

congestion (1-2 weeks after). Were giving him Tylenol. Saw PMD,

Dx otitis media, gave Amox. The fever persisted and he had

inconsolable crying. 11 days after the vaccination, he had an

episode of ‘contortion' in the upper limbs. He would stiffen his

arms behind his back, he would jerk his arms and his neck,

sometimes at same time, sometimes one after another.

…

After that time (about 7 months) he lost his head control for about

1-2 moonths, but then started getting it back. Arm stiffening

continued high frequency for about 1 month. They tried Sinemet,

which gave him dyskinesias. After 1.5 years, these dystonic

episodes stopped.

44

First note of abnormal development is in 8/09 at 12 months of age.

Mother at this point notes a 2-3 month concern with changes in

development.

Exhibit 26 at 1. Dr. Haas stated that “currently” T.S. was “making slow developmental

progress.” Id. at 2. His impression was that T.S. had “acute onset regression and dystonia at 6

months of age, following vaccination, which repeated with the next set of vaccines at 12

months.” Id. at 3. “The next step would be for his muscle to be sent for mtDNA sequencing.”

Id.

Dr. Haas continued to see T.S. periodically. In due course, Dr. Haas ordered genetic

tests. The results showed that T.S. has two genetic mutations. However, the Federal Circuit has

already found that there is “no evidence [that T.S.’s] mutations would have resulted in the same

progression and severity of his Leigh's syndrome absent the vaccine,” and that “the government

did not meet its burden to establish [T.S.]’s Leigh's syndrome was the result of factors unrelated

to the vaccine.” Sanchez v. Sec'y of Health & Hum. Servs., 34 F.4th 1350, 1356 (Fed. Cir.

2022). Furthermore, the production of the results of the genetic tests is not a basis for the

Secretary’s motion to reopen. Thus, the genetic issue plays no role in the outcome of the motion

to reopen.

3. Testimonial Assertions

As noted in section II.D above, Ms. Sanchez, Mr. Sanchez, and other family members

testified about T.S.’s health during the critical time in the months after the February 2009

vaccination.

D. Assessment of All Evidence

Some evidence is reliable and entitled to a great deal of weight. Examples of evidence

that is strong includes (1) the set of medical records created from February 2009 through May

2009 and (2) the set of medical records created from October 2009 and later in which a history

was created. A chart summarizing key medical records from February 17, 2009 through August

7, 2012 is located in Appendix C. By way of contrast, the evidence in the form of testimonial

assertions is not reliable and given much less weight.

1. Medical Records Created within about Four Months of Vaccination

Medical records created contemporaneously with the events being described are often

credited as accurate. Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir.

1993). However, they are not presumptively complete. Despite their training, doctors may

sometimes fail to record something. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl.

184, 203 (2013), aff’d 746 F.3d 1334 (Fed. Cir. 2014). A medical record can also be incomplete

because a patient does not communicate all information to the doctor. Kirby v. Sec’y of Health

& Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021); La Londe, 110 Fed. Cl. at 203 (listing

four explanations for inconsistencies between medical records and testimony).

45

Kirby presented a much different factual situation from the case at hand. Christie Kirby

alleged that an October 8, 2013 flu vaccine injured her shoulder or arm. Kirby v. Sec’y of

Health & Hum. Servs., No. 16-185V, 2019 WL 6336026 (Fed. Cl. Spec. Mstr. Nov. 1, 2019).

Ms. Kirby reported a problem within one week of the vaccination and, therefore, sought

treatment for pain from October through November, including multiple sessions of physical

therapy. Id. at *4-6. In December 2013, a doctor told her she had reached maximum medical

improvement. In January 2014, she told a doctor that she was “feeling fine.” Id. at *6, *19. Ms.

Kirby next told a doctor about shoulder pain in October 2015. Id. at *6.

As part of her claim for compensation, Ms. Kirby was required to establish that her injury

lasted more than 6 months. 42 U.S.C. § 300aa–11(c)(1)(D). The special master found that her

injury lasted more than 6 months based, in part, upon medical records that suggested that small

problems persisted and, in part, upon Ms. Kirby’s testimony. Id. at *19-20.

The Secretary challenged this determination, and the Court granted the motion for

review. Kirby v. Sec’y of Health & Hum. Servs., 148 Fed. Cl. 530 (2020). Relying, in part,

upon Cucuras, the Court determined that the special master’s finding that the injury persisted for

more than six months was arbitrary and capricious primarily because of the January 2014

medical record in which Ms. Kirby said she was feeling fine. Id. at 539-40.

Ms. Kirby appealed to the Federal Circuit. The Federal Circuit reversed the opinion from

the Court of Federal Claims and reinstated the special master’s ruling finding entitlement. Kirby

v. Sec’y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021). The Federal Circuit

reviewed Cucuras and stated that Cucuras does not stand for the proposition that “medical

records are accurate and complete as to all the patient's physical conditions." Id. at 1382.

Instead, there can be occasions when a medical record is incomplete. The Federal Circuit

provided an example: “A patient having a heart attack is not likely to mention his runny nose,

nor is his physician likely to record it.” Id. at 1383. The Federal Circuit, therefore, did not see

much significance to the absence of complaints in the medical records from January 2014 to July

2015.

Although these medical records are silent about the existence of

any lingering symptoms, they are also silent about the

nonexistence of such symptoms. . . . The silence can, moreover, be

explained by the fact that Ms. Kirby had reached maximum

medical improvement and thus exhausted all available treatment,

. . . or that she was visiting the doctor for reasons unrelated to her

vaccine injury.

Id. at 1383.

Based upon this analysis, the Federal Circuit ruled that a reasonable fact finder could

credit Ms. Kirby’s testimony that her injury lasted for longer than six months. The Federal

Circuit, therefore, reversed the Court of Federal Claims. Id. at 1384. After Kirby, the Court of

Federal Claims has recognized that special masters may reject testimonial assertions as long as

46

the special master considers all evidence. Trinnaman v. Sec'y of Health and Hum. Servs., 171

Fed. Cl. 317, 325-26 (2024).

However, in some circumstances, a special master may weigh the absence of complaints

in medical records differently. A prominent example is Bradley v. Sec'y of Health and Hum.

Servs., in which Mrs. Bradley testified at a hearing before a special master that within days of

vaccination, her daughter Rachel had a high temperature, lost her appetite and muscle tone, and

had episodes of vacant staring and unresponsiveness. 24 Cl. Ct. 641, 642 (1991). Mrs. Bradley

further testified that “she telephoned her doctor at least once to express her concern over

Rachel’s temperature and disposition. However, no visit was made to the doctor’s office and no

records substantiate[d] the events Mrs. Bradley described as having occurred in the three-day

period immediately following” vaccination. Id. at 643.

In a bench ruling, the special master determined “that the absence of any

contemporaneous recordation in Rachel’s medical records of the events immediately following

the January inoculation rendered suspect the accuracy of Mrs. Bradley’s testimony concerning

those events and impaired its believability.” 24 Cl. Ct. at 644. The special master reasoned that

the behaviors Mrs. Bradley recalled were too significant to go unrecorded. The special master

stated:

[I]f Ms. Bradley had ever given doctors the same description of

Rachel's behavior in the three-day period that she now has given to

me, a note of that description would be somewhere in the medical

records here.

I think that if in fact Rachel's behavior during the crucial three

days had been as dramatic as Ms. Bradley testifies, that she had not

been able to get the child's attention whatsoever, for a period of a

minute or so a number of repeated times, that the child would have

ended up at a doctor's [office].

Id. at 645. The special master found that the Bradleys had not established that Rachel suffered a

Table injury. Id.

The Bradleys filed a motion for review, arguing in part that the special master’s rejection

of Mrs. Bradley’s testimony ran counter to legislative intent that the Vaccine Program be a non-

adversarial forum that administered awards quickly and easily. 24 Cl. Ct. at 644. The Court of

Federal Claims rejected this argument and denied the motion, explaining that Congress’s intent

does not mean, however, that the special master must accept,

without question, the testimony of a witness simply because that

testimony stands unrebutted. The search for truth goes on whether

the hearings are formal or not. Thus, the proper discharge of the

fact-finding function requires that the truth of the testimony

offered be evaluated not only in terms of a witness' demeanor but

also by the probative force of attendant circumstances.

47

Id. The Court stated that “the special master act[ed] within permissible bounds in rejecting Mrs.

Bradley’s testimony,” as the decision was based on reasonable inferences. Id. “The special

master’s conclusion that the absence of any medical recordation of Rachel’s post-inoculation

symptoms was more telling than Mrs. Bradley’s testimony was clearly reasonable given the

dramatic nature of the symptoms claimed, the close medical attention that had been focused on

Rachel since the time of her birth . . . and Mrs. Bradley’s self-described preoccupation with her

daughter’s state of health . . . The rejection of Mrs. Bradley’s testimony was a legitimate exercise

of the special master’s fact-finding function.” Id.

The case was then appealed to the Federal Circuit. 991 F.2d 1570 (Fed. Cir. 1993). The

Bradleys argued that the special master was arbitrary and capricious in relying on the absence of

medical records, and also in rejecting Mrs. Bradley’s testimony. Id. at 1574-75. The Federal

Circuit affirmed, explaining that although a special master “may find the first symptom of an

injury occurred within the applicable time frame, even if the occurrence of the symptom was not

recorded,” such a finding may not be made “based on the claims of a petitioner alone,

unsubstantiated by medical records or by medical opinion.” Id. at 1574 (quoting 42 U.S.C. §

300aa–13(a)(1)). The Federal Circuit determined that the special master “did consider the facts

and circumstances involved in Mrs. Bradley’s testimony, and his rejection of that testimony, in

light of all its evidence, was not arbitrary and capricious.” Id. at 1575.

In the Sanchezes’ case, from the date after the vaccination until the date of the first

appointment with Ms. Marin-Tucker, T.S. saw three medical providers: Mr. Luna (Feb. 17,

2009), Dr. Seleem (Apr. 29, 2009), and Dr. Brown (May 13, 2009). Exhibit 1 at 48-53. None of

these people documented a complaint about abnormal arm movements. Thus, the April 10, 2013

Ruling Finding Facts found that T.S. was not experiencing arm contortions on February 17, 2009

when Mr. Luna saw him. 2013 WL 1880825, at *8 (findings 10-11). The April 10, 2013 Ruling

further found that between February and the April 29, 2009 appointment with Dr. Seleem, T.S.

did not exhibit arm contortions. Id. (finding 13).

The basic rationale was that if T.S. were contorting his arms as frequently as Ms. Sanchez

was asserting in her written and oral testimony, then Ms. Sanchez would have told T.S.’s doctors

and a doctor would have memorialized this complaint. Id. at *5-6. The Ruling Finding Facts

noted that while a failure of one medical professional to memorialize a complaint could be

reasonable, it is much less likely that three medical professionals did not document a complaint

from Ms. Sanchez. The undersigned further rejected the testimonial assertions of Ms. Sanchez

and other family members because their memories dimmed with the passage of time. Id. at *6.

The Federal Circuit in 2022 viewed the evidence differently, stating, “On the record

before us, the only reasonable conclusion is that [T.S.]’s arm contortions continued after

February 16 and were a symptom of a neurologic injury.” 34 F.4th at 1353. In reaching this

conclusion, the Federal Circuit specifically noted that “the absence of a reference to a condition

or circumstance is much less significant than a reference which negates the existence of the

condition or circumstance.” Id. at 1355 n.5 (quoting Kirby v. Sec'y of Health and Hum. Servs.,

997 F.3d 1378, 1383 (Fed. Cir. 2021) (internal quotation marks omitted)).

48

We now know that Ms. Sanchez and Ms. Roquemore violated the Vaccine Act’s mandate

to produce all post-injury medical records by failing to produce Dr. Brown’s August 19, 2011

medical record. Dr. Brown’s recollection entered into evidence in July 2023. Thus, until now,

the record before all judicial officers, including the Federal Circuit in 2022, lacked this critical

evidence. The newly discovered evidence from Dr. Brown answers the Federal Circuit’s

reasoning in that he contradicts Ms. Sanchez’s account that she told him about T.S.’s abnormal

arm movement. Dr. Brown described what he would have done if Ms. Sanchez had told him her

son was posturing his arms. Dr. Brown would have “documented that in the chart.” Exhibit T at

17. Dr. Brown would have also ordered an EEG. Id. Thus, Dr. Brown did “not believe that

particular arm movement was brought to [his] attention.” Id. Here, Dr. Brown’s August 19,

2011 medical record effectively “negates” the testimony that Ms. Sanchez told Dr. Brown about

abnormal arm movements.

Dr. Brown’s August 19, 2011 medical record bears indicia of reliability. First, he

memorialized Ms. Sanchez’s complaint. Doctors and medical professionals are recognized to be

trained to obtain accurate histories. See Cucuras v. Sec’y of Health & Hum. Servs., 26 Cl. Ct.

537, 543 (1992) (“It is equally unlikely that pediatric neurologists, who are trained in taking

medical histories concerning the onset of neurologically significant symptoms, would

consistently but erroneously report the onset of seizures a week after they in fact occurred”),

aff’d, 993 F.2d 1525, 1528 (Fed. Cir. 1993); Caron v. Sec’y of Health & Hum. Servs., 136 Fed.

Cl. 360, 384 (2018) (denying motion for review and finding special master was not arbitrary in

refraining from crediting testimonial assertions about problems not memorialized in medical

records created contemporaneously); Candell v. Sec'y of Health & Hum. Servs., No. 11-729V,

2014 WL 341449, at *7 (Spec. Mstr. Fed. Cl. Jan. 6, 2014); Ruling Finding Facts, 2013 WL

1880825, at *6.

Second, Dr. Brown explained how he would have responded if Ms. Sanchez had told him

about and shown him abnormal arm movements. In the undersigned’s experience, Dr. Brown’s

plan is consistent with how doctors typically respond. Pediatricians are sensitive to infants

possibly having seizures. Thus, EEGs are routinely ordered in this situation. During the

December 3, 2025 oral argument, Attorney Roquemore acknowledged that Dr. Brown’s

proposed plan was “not out of left field.” Tr. 4596. As the Secretary argued, Ms. Marin-

Tucker’s August 17, 2009 medical record is further evidence of how medical professionals

respond when presented with accounts of infants moving unusually. See Resp’t’s Comp. Mot. at

20-21. After Ms. Sanchez told Ms. Marin-Tucker about T.S.’s delayed development, Ms. Marin-

Tucker acted. Exhibit 1 at 54. Ms. Marin-Tucker did not ignore a mother’s worry. Ms. Marin-

Tucker referred the family to a neurologist. Exhibit 1 at 54; Tr. 92.

The evidence in the Sanchez case is very different from the facts in Kirby. A prominent

distinguishing feature is that within a week of the start of the injury, Ms. Kirby promptly told a

doctor about the onset of the pain and received treatment. This treatment continued until she

reached maximum medical improvement. Thus, the special master could conclude that “feeling

fine” reflected her usual state of health, which by January 2014, included nerve pain. In contrast,

T.S.’s abnormal arm movements were (allegedly) new. When T.S. saw Dr. Seleem in April

2009 and Dr. Brown in May 2009, T.S. had not received any treatment for abnormal movements.

It cannot have been a situation in which T.S. had reached maximum improvement and Ms.

49

Sanchez had adjusted to a different normal. In Kirby, the Federal Circuit reasoned that a patient

having a serious medical condition (a heart attack) is unlikely to tell a doctor about a trivial

medical condition (a runny nose). However, the scenario for T.S. seems to be the opposite. The

medical records from Dr. Seleem and Dr. Brown show that Ms. Sanchez brought her son to the

doctor’s office for relatively routine problems, such as congestion and an ear infection. But, Ms.

Sanchez is maintaining that she actually told the doctors about a potentially more serious

condition---abnormal arm movements. While it seems true that doctors and patients dealing with

a heart attack are likely to overlook a runny nose, would people with a runny nose or their

physicians overlook a heart attack?

The original determination in this case emphasized that if T.S. were having abnormal

movements and if Ms. Sanchez told the doctors about them, the doctors would have written

down her complaints. See Ruling Finding Facts, 2013 WL 1880825, at *6 (Apr. 10, 2013).

Although that determination was based upon an inference (or assumption) that doctors

memorialize significant reports of problems, such an inference (or assumption) is no longer

necessary now (at least for Dr. Brown) because Dr. Brown has stated what he would do. Exhibit

T at 17.

Additionally, although the First Entitlement Decision credited the testimonial assertions

that T.S. experienced one series of abnormal movements around the time of Ms. Sanchez’s

birthday, that finding was restricted to a single day. At the time of the First Entitlement

Decision, it appeared that Ms. Sanchez may not have communicated an abnormal arm movement

to Mr. Luna because Ms. Sanchez did not appreciate the significance of the abnormal arm

movement. This lack of appreciation, in turn, explains why Mr. Luna’s medical record does not

memorialize any complaints about abnormal arm movements.

The change in one fact (T.S. had an isolated set of abnormal arm movements) in the First

Entitlement Decision did not create a wave of other new findings. The First Entitlement

Decision was consistent with the April 20, 2013 Ruling Finding Facts in finding that T.S. did not

have abnormal arm movements in April when he saw Dr. Seleem or in May when he saw Dr.

Brown. At the time of the First Entitlement Decision, Ms. Sanchez’s testimonial assertions that

(a) T.S. was having 5-10 abnormal arm movements per day for multiple weeks, (b) she told Dr.

Brown and Dr. Seleem about the arm movements, and (c) the doctors neglected to write down

the complaints and failed to respond to c

This text is long and has been trimmed here. Open the source document for the complete record.